IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I HIM IIIM ^ U£ 12.0 1.8 Photographic Sciences Corporation 1-25 1.4 |||.6 t 6" ► 23 WEST MA of Provincial Acts fil 3. Ministerial Responsibilii y in connection witii disallowance of }'rovincial Acis 65 4. Provincial Legislation ; (L) Ontario . .' 82-244/ (2.) Quebec 245-470 (3.) Nova Scotia, 471-64G (4.) New Brunswick G47 766 (5.) Manitoba 767-1010 (6.) British Columbia 1010-1 152 (7.) Prince Edward Island 1 153 1 235 (S.) North-west Territories 1236-1 279 Appendices A, B and C 1281-1326 Table of Acts ^327 Index of Acts 1409 Index of Subjects 1439 f r: iJs£l^^'t^^M^i^^i^^ ijr-:i.WB^iKU-«ia: r-t f^^ ■- SSSS!2aUS:ncl January, 1871. Departmknt of Justice, Ottawa, 29th December, 1870. The undersigned has the honour to report to your Excellency, that, during the last session of the Canadian Parliament, while the Act 33 Vic, cap. 3, providing for the establishment and government of the province of Manitoba, was under considera- tion, the (juestion was raised as to the power of Parliament to pass the Act, and especifiily those of its provisions which gave the right to the province to have repre- sentation in the Senate and House of Commons of the Dominion. The " British North America Act, 1867," provides that " The Queen in Council, (m\ address from the Houses of Parliament of Canada, may " admit Rupert's Land and the North-western Territory, or either of them into the union, "on such terms and conditions as are in the address expressed, and as the Queen thinks " fit to approve, subject to the provisions of this Act, and any Order in Council in that " behalf sh.all have effect as if it had been enacted by the Parliament of the United "Kingdom." The address which was passed by the Parliament of Canada, contained no provisions with respect to the future government of the country, the only terms and conditions con- tained in it being those agreed upon between the Hudson Bay Company and Canada as the conditions of their surrender of their charter to Her Majesty. Even if the terms of the address had included a new condition for the North-west, it must, under the above cited section, have been subject to the provisions of the Imperial Act of Union. The Rupert's Land Act, 1868, passed by the Imperial Parliament, provides (section 5) for the admission of Rupert's Land (but not of the North-western Territory) into the Dominion of Canada, and that " thereupon, it shall be lawful for the Parliament "of Canada from the date aforesaid, to make, ordain, and establish within the laud and " territory, no admitted as aforesaid, all such laws, institutions and ordinances, and to "constitute such a court and officers as may be necessary for the peace, order and good '' government of Her Majesty's subjects and others therein." This provision of the Act may fairly be held to have authorized the Canadian Par- liament to pass the Act, giving the constitution to a portion of Rupert's Land : but still the question remains whether under the two Imperial Acts referred to, it had the power to give the people of the new provinces, representation in the Senate and House of Com- mons of Canada. The general purview of "The British North America Act, 1867," seems to be con- fined to the three provinces of Canada, Nova Scotia and New Brunswick, originally forming the Dominion. In the constitution of the Senate, the Dominion was divided into three divisions, each divisi(m having equal representation in that body, It fixes the normal number of the Senate at .seventy-two, subject to the provisions of the Act ; and the 28th clause pro- vides that the number of senators shall not at any time exceed seventy -eight ; the 147th clause, however, enacting that in case of admission of Newfoundland and Prince Edward island, the normal number of senators shall be seventy-six, and the maxinmm eighty-two. In like manner the clauses of this Act relating to the constitution of the House of Commons, gives a certain proportionable representation to the provinces originally con- •?«■•*— \! \ 10 IMPERIAL SUPERVISION stituting the Dominion, and makes no reference to the increase of nunabers, for any addi- tion to the territory of the Dominion. There is in the Act no provision whatever for the representation in the Senate or House of Commons, of Rupert's Land or the North-western Territory, or British Cohimbia. Under these circumstances, as the (juestionasto the constitutionality of the Act of the Canadian Parliament has been raised, and as the doubt may cause grave discjuiet in the territories which have been or may hereafter be added to the Dominion ; and in order also to prevent the necessity of repeated applications to the Imperial Parliament for legislation respecting the Dominion, the undersigned has the honour to reconunend that the Earl of Kimberley be moved to submit to the Imperial Parliament, at its next session a nieasuie : 1 . Confirming the Act of the Canadian Parliament, 33 Vic. cap. 3, above referred to, as if it had been an imperial statute, and legalizing whatever may have been done un- der it, according to its true intei-ests. 2. Empowering the Dominion Parliament from time time to time to establish other provinces in the North-western Territory, with such local government, legislature and constitution as it may think proper, provided that no such local government or legislature shall have greater powers than those conferred on the local governments and legislatures by " The British North America Act, 1867," and also empowering it to grant such provinces representation in the Parliament of the Dominion : the Acts so constitut- ing such provinces to have the same efl'ect as if passed by the Imperial Parliament at the time of the union. 3. Empowering the Dominion Parliament to increase or diminish from time to time the limits of the province of Manitoba, or of any other provinces of the Dominion, with the consent of the governnient and legislature of such provinces. •k Providing that the terms of the suggested Act be applicable to the Province of British Columbia whenever it may form part of the Dominion. All of which is respectfully submitted. JOHN A. MACDONALD, Minister of Justice. The Secretary of State for the Colonics to the Governor General. Downing Street, 26th January, 1871. My Lord, — I have the honour to acknowledge the receipt of your Lordship's des- patch No. 1, of the 3rd January, inclosing a minute of the Privy Council, approving a report made by the Minister of Justice, and recommending amongst other things, im- perial legislation to remove doubt respecting the validity of the Act of the Canadian Legislature, 33 Vic, cap. 3, and to empower the Canadian Parliament to establish new provinces in the Dominion. In compliance with the wish of your government, I have caused a bill to be prepared of which I annex a copy* and on learning that its provisions meet their views, I shall be prepared to introduce it into the Imperial Parliament during the coming session. I request that you will inform me on this point at your early convenience. Witii respect to the Sth section of the bill, I may refer you to the Imperial Act 31 and 32 A'^ic, cap. 92, which was passed to enable the legislature of New Zealand to withdraw part of the territory from a province, and to form such part into a county. I have, etc., KIMBERLEY. ■ Imperial Act 34 and 35 Vic, cap. 28. ■■ 1 r any addi- Senate or or British the Act of juiet in the d in order iament for iniend that it its next •eferred to, 'n done un- .blish other legislature ernraent or iments and it to grant constitut- cnent at the OVER DOMINION LEGISLATION. 11 p. ,^rt of the Hon. the Acting Minister oj Justice, approved by His E.v^Ue.ncy the Uovernor General in Council on the ,'Oth February, 1H7L Depautment OF Justice, Ottawa, February, 1871, whom was referred ^^^^^^^^^P*^^^^^^^^^^ 1^71 !,,,« the honour to suhn.it a .Iraft of a f^fwtrhe""oni^^^^^^ ^y yo- Excell<.ncy to the Earl, of T'S.H?.vLXbrby the Imperial Pa as containing all the provisions Ivimberley toi adoption ^yj' ^ , 1. j necessary to remove doubts respecting the perial T^^gislature. GEO. ET. CARTIEli, Acting Minisier oj Justice. •om time to Dominion, Province of Tustice. , 1871. ■dship's des- pproving a things, im- le Canadian, tablish new be prepared ew.s, I shall session, ce. mperial Act Zealand to t county. RLEY. Reserve* 35 Victoria (1872). An Act to amend the Act respecting Copyrights. ,r ,A • . - 7 ... 1 Hh Tune 1R7^- lioval Assent tvithheld by Des- dfor Her Majesty s pleasure, i4t.l1 June, la/,. , iiuy«.v ^ jmtch, loth June, 187 J^. The Governs General to the Earl 0/ Carnarvon Government House, Ottawa, 16th May, 1874. \T- T ouD -Ihavethe honour to transmit herewith for your Lordship's consideration, attested Lpls of Sou r^.; adopted by the Senate and House of ^o-^- .f^,^auada r/eclnr -ing the assent o! Her Majesty's Governmei^t to a bd en^ ed A, these resolutions. * « I have, tfec., DUFFERIN. 12 IMPERIAL SUPEKVISION Copy of Itesoluiion of Senate and House of Commons. That an humble address be presented to His Excellency the Governor General, praying that His Excellency will be pleased to convey to Her Majesty's Principal Secretary of State for the Colonies, the respectful expression of the anxiety of this House that a bill, entitled "An Aci to amend the Act respecting Copyrights," passed in the session of 1872, and reserved on the 14th June in that year, for the signification of Her Majesty's pleasure thereon, should not be allowed to lapse, by the expiry of the two years' limitation specified in the oTth section of " The British North America Act, 1867," and further to assure His Excellency that important interests in this Dominion, are prejudiced by absence of legislation such as this bill contemplates. : \- The Secretary of State for the Colonies to the GoverTwr General. DowNixcj Street, 15th June, 1874. My Lord, — I have to acknowledge the receipt of your despatch of the 16th ultimo, transmitting for my consideration attested copies of resolutions of the Parliament of Canada, urging that Her Majesty's assent should be given to a bill entitled " An Act to amend the Act respecting Copyrights," passed in the session of 1872, and reserved by Lord Lisgar. 2. You will have learned by my telegram of the 11th instant, that I have felt myself unable to advise Her Majesty to asseiit to this bill, ajid I now proceed to state shortly to you the ground upon which I have reluctantly, though without any doubt, been compelled, after taEing the advice of the law officers of the crown, to tender this advice to Her Majesty. 3. Ihe Imperial Copyright Act, 5 and 6 Victoria, cap. 45, is, as you are aware, still in force in its integrity throughout the British dominions, in so far as it prohibits the printing, in any part of such dominions, of a book in which there is subsisting copy- right under that Act, without the assent of the owner of the copyright, although the provision in that Act which pi-ohibits the importation of foieign reprints of British copyright works, has been modified by the subsequent Act, 10 and 11 Victoria, cap. 95. 4. There is a recital in the Canadian bill which, by " The British North America Act, 1867," express power is given to the Parliament of Canada to legislate upon the subject of copyright, but it is to be observed that the section (the 91st) containing this pro- vision, is one of .several having reference (under the 6th general head of the Act) to " the distribution of legislative power," and provides that " copyrights," amongst other sub- jects (under section 92) are to be exclusively dealt with by the provincial legislature. 5. The effect of the Imperial Act is to enable the Parliament of Canada to deal with colonial copyrights within the Dominion, but it is clear that it was not contem- plated to interfere with the rights secured to authors by the Imperial 'Acta of 5 and 6 Victoria, cap. 45, or to override the provisions of that Act. Upon this point I am supported not only by the opinion of the present law officers of the crown, but by the opinion of those eminen* lawyers, the present I^rd Selborne, and Mr. Herschell, Q.C., wl se reports will be found in the copyright paper presented to Parliament in 1872. 7. I may further observe, if confirmation of this view were needed, that the report of the Committee of your Privy Council of the 6th June, 1872, inclosed in your de.spatch, No. 159 of the 7th June, admits that the provisions of the Canadian bill are in conflict with imperial legislation. 8. In these circumstances I have had no alternative hut to advise Her Majesty that her assent could not properly be given to the Canadian bill, and I may add that the validity of this bill would not have been established even if Her Majesty had been pleased to assent to it, inasmuch as by the 2nd section of the " Colonial Laws Validity Act " (28 ik 29 Vic, cap. 63) any part of a colonial law, which is repugnant to an Im- perial Act, extending to the colony in which such law is passed, is y^ro tanto absolutely void and inoperative. OVER DOMINION LEdlSLATlON. 13 1874. 9. I am aware that the subject of colonial copyrights has long been under consider- ation, and that attempts were made l)y Her Majesty's late government, in communication with yourself and your ministers, t;) arrive at a settlement of this dithcult, but most important (juestion. I will now only express my readiness to co-operate, and my confi- dent hope tliat we may without difficulty, be able to agree in the provisions of a measure, which, while preserving the rights of the owners of copyright works in this country under the Iinperial Act, will give eflfect to the views of the Canadian Government and Parliament. I have, &c., CARNARVON. Note.— See jwgt page 30. 36 Victoria (1873) Chap. 1. Ax Act to Provide for the Examination of \\'itnesses on Oath by Committees of THE Senate and House of Commons, in certain cases. Assented to by Governor General, 3rd May, 1873. Disalloiced by Her Majeity. Pro- clamation dated 1st Jnly, 1873. Report of the Hon. the Minister of Justice. Department of Justice, Ottawa, 30th April, 1873. The undersigned, to whom has been referred, by your Excellency, the bill passed during the present session, by the Senate and House of Commons, intituled " An Act to provide for the exumination of witneities on oath by committees of the Senate and House of Commons, in certain cases," begs leave to report : — That by the 18th clause of " The British North America Act, 1867," it is pro- vided as follows : — " The privileges, immunities and powers to be held, enjo5'ed and exercised by the Senate and by the House of Commons, and by the members thereof respectively, shall )ie such as are from time to time defined by Act of the Parliament of Canada, but so that the same shall never exceed those at the passing of this Act held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ire_ land, and by the members thereof." 2. That subsequently on the 22nd May, 1868, the Canadian Parliament, by the Act 31 Victori.a, cap. 32, in pursuance of the authority so given by the Union Act, defined the privileges of the Senate and House of Commons respectively. The clause doing so is as follows : — " Tlie Senate and the House of Commons respective! }", and the members thereof respectively, shall hold, enjoy and exercise such and the like privileges, immunities and powers as, at the passing of "The British North America Act, 1867," were held, en- joyed and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the memliers thereof, so far as the same are con- sistent with, and not repugnant to, the said Act." 1 I ! r 1 r ^BS|te«ik»- u IMPERIAL SUPEHVI8I0N At this time neitlier tiio British House of Commons, nor any committee thereof, had power of examining witnesses on oath, except in certain specified cases, such as in private hills. That powc^r was only conferred upon tlie British House of Commons and the c(immitte(!s in 1H71, hy the Act 'M and 'My Vic, chap. 83. The l)ill now referred to the undersigned seeks to confer this power upon any committee of the Senate or House of Commons, when either House shall iiave resolved tiuit it is desirable that witnesses shduld be examined upon oath. The empowering section of th<' hill is as follows : — " Wliene\er any witness or witnesses is or are to he examined hy any committee of the Senate or House of Commons, and the Senate or House of Commons shall have re- solved that it is desirable that such witness or witnesses shall be examined upon oath, such witness or witnesses shall be examined upon oath or affirmation, where affirmation is allowed hy law." The (juestjon has been raised whether it is competent for the Parliament of Canada to confer this power on a committee of the Senate or Hou.se of Commons here, as it is a power which was not jiossessed or exercised by the British House of Commons at the time of the passing of " The British North America Act, 1867. " The undtMsigned has come to the conclusion, although not without doubt, that this bill is not within the competency or jurisdiction of the Canadian Parliament, and that the attention of Her Majesty's Govei'innent should be called to its provisions, and to the doubt that exists with respect to its validity. All of which is respectfully submitted. JOHN A, MACDONALD, Minister of Justice. The Governor General to the Secretary of State for the Colonies. Government House, Ottawa, Canada, 3rd May, 1873. My Loud, — I have the honour to forward to your Lordship, a certified copy of a bill entitled, "A Bill to provid for the examination of Witnesses on oath, by Com- mittees of the Senate and House of Commons in certain cases," which has passed both Houses of the Canadian Parliament, and to which I have this day given my assent. The introduction of this bill into the House of Commons arose out of the following circumstances. On the 2nd of April the Hon. Lucius Seth Huntingdon, member for Sheflbrd, in the province of Quebec, made the following motion : Hon. Mr. Huntingdon moved that Mr. Huntingdon a member of this House, having statefl in his place that he is credibly informed and believes that he can establish by satisfactory evidence — " That in anticipation of the legislation of last session, as to the Pacific Railway, an agreement was made hetv^-een Sir Hugh Allan, acting for himself, and certain other Canadian promoters, and G. W. McMuUen, acting for certain United States capitalists, whereby the latter agreed to furnish all the funds necessary for the construction of the contemplated railway, and to give the former a certain percentage of interest, in consi- deration of their interest and position, the scheme agreed on being o^stensibly that of a Canadian company with Sir Hugh Allan at its head. "That the Government were aware that negotiations were pending between these parties. " That subsequently an understanding was come to between the Government and Sir Hugh Allan and Mr. Abbott M.P., that Sir Hugh Allan and his friends should advance a large sum of money for the purpose of aiding the elections of ministers and their supporters at the ensuing general elections, and that fie and his friends should receive the contract for the construction of the railway. " That accordingly Sir Hugh Allan did advance a large sum of money for the pur- pose mentioned, and at the solicitation, and under the pressing instances of ministers. OVKIl DOMINION I.Kdl.Si-ATION. 1& .ee thereof, such as in innions and upon iiny ,ve resolved ■mpowering ninnittee of all have re- upoii oath, allirniation ament of nnions here, if Commons doubt, that lament, and •visions, and fALD, of Justice. 1873. ea copy of a th, by Com- i has passed iv\ my assent, the following [• Shefford, in this House, can establish iific Railway, certain other Bs capitalists, uction of the I'est, in consi- bly that of a )etween these ^ernment and riends should ministers and riends should y for the pur- E ministers. "That part of the moneys expended by .Sir Hugh Allan in connection with the obtaining of the Act of incorporation and charter, were paid to him In- the said lliiitcd States cajiitalistK uiu1ure]y legal one, to have reserved the l)ill for your Loidships consideration, and the more so because, as you will perceive by the inclosed minute. Sir John Macdonald is inclined to share the misgivings of those who question the competency of the Canadian Parliament in this matter ; but as the issue is one not of colonial, but of imperial con- cern, and as Sir John tendered his opinion mei-ely for my information, and not as my adviser — indeed he intimated that he would be glad if I .saw my way of assenting to the bill ;— I felt at liberty to consult my own judgment, more especially as it may be presumed that my government would not have promoted the " Oaths Bill," in the House of Commons und fathered it in the Senate, had the Minister of Justice enter- tained a decided conviction of its illegality. My conclusions have been further fortified, not only by the opinion of many legal authorities whom I have consulted, but more especially by that of Mr. Alpheus Todd, the author of " Parliamentaiy Gos-ernment in England," who, as your Lordship is aware, is exceptionally (lualitied to pronounce upon questions of this description, and who has been good enough to discuss the ciise in a short memorandum, of which I inclose a copy. I have, A'c, DUFFERIN. The Opinion of Mr. Alpheus Todd in reference to the meaning of the 18th Clause of British North America of 18U7" This clause is as follows : — " The privileges, immunities and powers to be held, enjoyed, and exercised by the " Senate and by the House of Commons, and by the memliers thereof, respectively, shall " be such as are from time to time defined by Act of the Parliament of Canada, but so " that the same shall never exceed those at the passing of this Act held, enjoyed, and ex- " ercised by the Commons House of Parliament of the United K ingdom of Great " Britain and Ireland, and by the members thereof." A bill having been introduced into the Dominion House of Commons in the pre- sent session, intituled " An Act to provide for the examination of witnesses on oath by comniittees of the Senate and House of Commons in certain cases," a (juestion has been raised as to whether the Dominion Parliament were competent to paxs this bill in view of the restrictions imposed by the 18th clause of the British North America Act aforesaid. L' OVKR DOMINION l,Kursuant to the maxim that ' all things nece.Hsary pass as incident.' ily limiting such |irivileges aiul powers to those possessed by the Imperial Housc! of Conunons in 1807, it presents, on the one hand, an I'.'idue encroachment or exteiuion of privilege, and on the other hand secui'es to the two Houses, and the members ther'cof, respectively, (ho privi- leges, immunities and powers appropriate to them as component parts of the Canailian Parliament. ft has been urged that the Act to authorize the examination of witneses on oath by Committees of the .Senate and House of Conunons of Caiuida, is an extension of their privileges, beyond those sanctioned by " The British North America Act," inasmuch as select committee-t of the Imperial House of Commons (not being private bill committees) did not possess such power in 1867, or until, by the Imperial "Parliamentary Witness Oaths A(rt of 1871 "; such power was for th(! first time conferred upon them. It is to be observed, however, that the [lower so conferred upon committees by the English House of Commons was not claimed as a " privilege " inherent in that body. It was merely a power conferred by statute, to facilitate legislative in(|uiries, similar to that which has been repeatedly conferred upon statutory commissions , and being so conferred it did not trench upon any prerogative of the crown, or enlarge the constitu- tional rights of the House of Commons. The Dominion Parliament were therefore clearly competent, in my judgment, to confer a similar power upon committees of the Senate and House of Commons, pursuant to the authority conveyed to that parliament by the 31st clause of "The British North America Act, 1867," to make laws for the peace, order and good government of Canada. In a word the restrictions contained in the 18th clause of the aforesaid Act, are restrictions upon claims that might be urged on behalf of the two Houses of the Cana- dian Parliament, or the members thereof, respectively, to inherent or e.rcfHxwe privifpgea, and are not intended to prevent the exercise of 1eijinlativc poioem by the whole Parlia- ment, provided that the same are exercised within appropriate constitutional limits. ALPHEUS TODD. Library of Parliament, 1st May, 1873. The Secretary of State for the Colonies to the Governor General. DowNiNO Street, 30th June, 1873. My Lord, — I have the honour to transmit to you an Order in Council disallowing the Act passed by the Parliament of Canada, to provide for the examination of witnesses on oath by committees f)f the Senate of the House of Commons in certain cases, and also the certificate as required by the 56th section of the British North America Act, 1867, stating when the Act was received in this department. Before tendering any advice to Her Majesty upon this Act, I referred to the law officers of the crown, and I was advised that the Act was ultra vires of the Colonial Legislature, as being contrary to the express terms of section 18 of "The British North America Act, 1867," and that the Canadian Parliament could not vest in themselves the power to administer oaths, that being a power which the House of Commons did not possess in 1867, when the Imperial Act was passed. The law officers also reported that the Queen should be advised to disallow the Act. My attention has been called to the fact that, by an Act of the Canadian Parlia- ment, cap. 24 of 1868, provision is made by the first section for examining witnesses upon oath at the bar of the Senate, and that that Act has been allowed to remain in operation. It appears to have escaped observation both here and in the colony that 16 IMPRIIIAL 8UPKHVI8ION tli()U;{li sui:li cxiiKiimition of wittu'H.ses is in iicconliincci with tlio priu-tit'C of tlu; Mouse of LonU, tho [lowoiH of llu' Sfiiiitc of (Jiiiiada tiro liiiiitod by " Tlio UritiHli North America Act, 1H(57," to Miicii jxiwtMs iM were then eiij<»ye(l hy the Houso of Ooininons, and tliat the first Heclionof tiie ('anat' tliJit Act. yiMi tliiit oiil luui iii- Ae't, "and it toes upon l)ef(>n' the linns liy Ul II.KY. )f State for object the tlie power ;le«'H of tlie rl lament of 1875. ideration, a the advice B invited to i of an Act 3as8 an Act Senate and ' my Privy ) same oon- 1873, seem the Senate Thi' despatch further states that, " by .ip Act of the Canadian Parliament of 1808, (cap. '2\) piovision whh made by the first section for exiiminin^' witiirsscs upon oalli At (lie bar of tlie Senate, and thai the Act bud iiecn allowed to rcnwiiii in force," and pointing <»ut that thatHection was void and inopeiative, a.s \mtm lepu^iiant to the provi.sion of the Hiitish North America Act, and cannot Im) lej^ally acted upon. 'I'lui .Mini.st(ir of Justice reports that it is ob\ ious that thti I'ailianient, of Canada should Im' enabled to ( xamine witiu'sscs on nalli. II(f therefore recommends that the attention of the Secretary of Statn for the Colonies be invited to tin; subject, with a view to movinj^r Her Majesty's (iovcrmiK^nt to obtain, during the present session of the Imperial Parliumeiit, the liasfiiRe ( !' an Act removing; all doubt as to the rij^lit of the Parliament of C'anada to pdHsesH the power to jiass an Act providin;; for the examination cap. 7, alHo 57-58 Vic. (18!)4) cap. 16. See also New South Wales Act, 45 Vic, tap. 5. iRIN. ved by His norandum, 3 attention le Colonies the crown ^o provide 1 House of 1 that the )aths, that e Imperial 36 Victoria (1873) Chap. 128. An Act relating to Shipfino, and for the Registration, Inspection and Cl jSIFICATION THEREOF. Reserved for Her Majesty's pleasure, 23rd May, 1S73. Royal assent given, 20th Novem- ber, 1873. Proclamation dated. Kith March, 187 Jf. Ji, force on and from 17th March, 187 Jf. 20 IMPERIAL SUPEKVISJON ;r 36 Victoria (1873) Chap. 129. An Act respecting the Shipping ob' Seamen. Reserved for Her Majesty's pleasure, 2Srd May, 1873. Royal assent given, 20th Xovem- ber, 1873. Proclamation dated 16th March, 187 Jf.. In force on and Jrom 27th March, 187 J^. 37 Vicw.-ia (1874) Chap. — . Ax Arx to Regulate the Construction and Maintenance op Marine Electric Telegraphs. Note. — Xo action having been taken with reapect to thi« riiserved bill — the Act, 38 Victoria (1875) chapter 2(), intituled " An Act to legulate the construction and maintenance of Marine Electric Tele- graphs," was subsequently passed. Reserved for Her Majesty's pleasure, J^th June, 181 4.. The Governor General to the Secretary of State for the Colonies. Ottawa, 4th June, 1874. My Lord, — I have the honour to inclose a copy of a bill which I have thought it advisable to reserve for your Lordship's approbation. Accompanying the bill is an Order in Council explaining its provisions, and in- sisting, with very great force, on the desirability of the object it is intended to effect. My government attach the very greatest importance to the measure, and have re- quested me to urge their views upon your Lordship in the strongest possible language, I have, &c., DUFFERIN. Copy of a Report of a Committee of the Honourable the Privy Council, approved by His Excellency tne Governor General on the 4-th June, 1874- The Committee of the Privy Council have the honour to report : — That at the last session of the Parliament of Canada, a bill was passed by both Houses entitled "An Act to regulate the construction and maintenance of Marine Electric Telegraphs," which, in accordance with paragraph seven of the royal instruc- tions, was, upon the advice of the Minister of Justice, reserved- by His Excellency t^^he Grovernor General for the signific.ition of Her Majesty's pleasure ; and that the Minister of Justice thus advised, as the bill " is one of some importance, and may possibly be " considered to piejudics the interests and rights of property of Her Majesty's subjects " not residing in Canada." ^^ *- "I ' tiwUl^c ia&.l^; OVER DOMINION' MCGISLATION. Vint given, 20th Xovem- rce on and Jrom 27th OF Marine Electric the Act, 38 "Victoria (1875) ce of Marine Electric Tele- 181J^. e Colonies. A, 4th June, 1874. lich I have thought it its provisions, and in- is intended to effect. » measure, and have re- est possible language. DUPFERIN. uncil, approved bv His 1874. art: — (ill was passed by Iwth aintenauce of Marine n of the rojal instruc- y His Excellency the and that the Minister , and may possibly be :Ier Majesty's subjects That the Anglo- American Telegraph Company appeared by council before the com- mittee of the Senate to which the bill was referred, and urged that their rights and privileges would lie r.fojudiced by it, but tliat the committee reported in favour of the bill, and the same was then passed by that body. That the advicj to the Governor (leneral that the bill should be reserved, was given merely in deference to the language of the royal instructions, and not from any conviction or beliei that "^he bill in any way intei-feres witli, or is pi'ejudicial to, the rights of the Anglo-American Telegraph Company, or any other company with similar objects, or with similar rights. That the bill in questiun is calculated to afford facilities to any persons seek'ng in- corporation for the purposes of marine telegraphs, and will tend to promote, not the establishment (or monopoly) of one company only, but of several, for the same pur- poses. Whilst, as regards any supposed rights or franchises of the Anglo-American Com- pany, or any other company witli which this bill can be alleged to interfere, the com- mittee are quite at a loss to know in what they can bo said or supposed t'> exist, or what peculiar rights of any kind that company or any other can at present claim in Canada. The fourteenth section prohibits any company, except such as have been or may be incorporated in Canada, from maintaining or constructing a marine telegraph (saving the user of any existing telegraph company, during the non-existence of any company arising within the provisions of the bill). But the fifteeu^.i section provides that "the necessary corporate powers in Canada (for any comj'\,ny so "prohibited by the fourteenth section,") may be procured from the Governor in Council ; upon condition, however, that other companies created under the authority of the reserved bill, shall have conceded them, and enjoy equally with it, any advantages or privileges which it may possess. In these provisions, therefore, will be found the object of the Act : the encourage- ment of marine telegraph companies in Canada ; but so, as that all companies, whether of Imperial or Canadian incorporation, shall enjoy equal rights and privileges in all respects amongst themselves, and without any special monopoly. That is to say. Parliament is willing to extend to companies of imperial or parlia- mentary ori'^in in Great Britain, the same corporate powers which it is proposed shall exist in any companies of Canadian incorporation, provided that equal rights and pri- vileges in all respects are enjoyed by all. The committee are of opinion that no company is in existence, possessing rights and privileges in Canada, which can in any way be legally affected by the reserved bill. They, at the same time, desire to express their strong conviction that this measure is calculated to be hignly benoliciai to the interests of Canada, and is also in accordance with the established policy of tiie country, and they submit that Her Majesty's Secre- tary of State for the Colonies be req-.'^sted to pray Her Majesty's sanciion to the bill at an early date. W. A. HIMSWORTH, C/erk Privy Vaiincil. The Governor General to the Secretary of State for the Colonies. :- OiTAWA, Canada, 2nd October, 1874. My Lord,- I have the honour to forward, for your Lordship's information, copy of an Order in Council dated the 2nd October, 1874, in reference to the recent Telegraph Act of the Dominion Legislature, which has been reserved for your Lordship's considera- tion. 2 R . ', .»#5F- 22 IMPEHIAL SUPERVISION. The Order in Council is accompanied by a copy of the " Money Market Review," and a pamphlet of the Anglo-American Telegraph Company, and by a copy of an Order in Council of the 4th June, 1*^74, relative to the same subject. These documents have only reached me as the mail was upon the point of closing, and I have not had times to do more than glance at the principal docunvant. I forward it, however, being unwilling to delay its arrival in your Lordship's hands. I have, itc, DUFFERIN. Copy of a Report of a Committee of the Eonourable the Privy Council, upproved by His Kccetfency the Governor General on the 2nd October, 187 J^. The Committee of Couneil,having reference to an Order in Council of the 4th June last, of the reserved " Marine Electric Telegraph Company's Bill," have the honour further to report : — That a telegram to the following effect from the Honourable the Secretary of State for the Colonies, was submitted by your Excellency : — " Before a decision is given as to the Marine Electric Telegraph Act, Her Majesty's Government desire to know whether effect of concession of exclusive rights of Anglo- Saxon American Company, confirmed so lately as 1869 by Prince Edward Island Act, has been duly considered, and whether that company would claim compensation for its witlulrawal, also whether interests of proprietors were fully considered before the bill was passed. *' Carnarvon." To which the following reply was sent :- " I am advised that the charter given by Prince Edward Island was not urged upon the committee in Parliament (when considering the Telegraph Bill), nor was it brought before the government. It is dilEcult to ascertain what privileges the concessions of exclusive rights to ' New York, Newfoundland, and London ' telegraph companies originally embraced. It is doubtful whether any such privileges now exist, as the com- pany is now apparently merged in another company without legislative sanction of Prince Edward Island, Canada. Despatch will be sent giving further particulars. " DUFFERIN." That some delay has necessarily arisen in the further consideration of the subject of the above, telegram to your Excellency, in order that the Privy Council for Canada might obtain full information thereupon. That after full inquiry the committee find as follows : — Pr^ I'slili'^! 1- Th"'*' '^'^y exclusive concession in Prince Edward Island by Acts 17 Vic, c. (14, 18.54 of its legislature, was in favour of " The New York, Newfoundland 20 Vic, c. 13, lKj-i7 ,,,,„' , ,, „ -vT ,. . 1 ^- J 25 Vic, c !i, ]8t>2 and London Telegraph Company, a Newtoum land corporation, and Act "iK.'vi Kt'c ''» '^^ ^^'^ expressly limited "during its existence." 2. That the Newfoundland company did not in fact avail itself of the exclusive provisions of the Act of 1854, or construct any cable on the faith of this protection. 3. That another company had previous to the passing of that Act, laid down a cable from the island to New Brunswick, and this by section 8, was vested in the Newfoundland company. 4. Than the committee aie informed that the service was, and Set- rwi tills m continued to be, so inefficiently performed, as to give rise to the con- isiis! ditional revocation of the company's powers by the Act of 1862. K OVER DOMINION LECISI.ATIOV. 28 cet Review," ff of an ( )rder nt of closing, t. I forward FERIN. oroved by His the 4th June 3 the honour etary of State ier Majesty's hts of Anglo- Island Act, isation for its )efore the bill NARVON." ot urged upon vas it brought concessions of ph companies it, as tlie com- /e sanction of ticulars. JFFERIN." the subject of 3il for Canada sland by Acts Newfoundland poration, and the exclusive )rotection. ;, laid down a fc'ested in the vice was, and je to the con- if 1862. See reference t givi- equivalent privi- leges to any other company in Newfoundland, the Parliament of Canfida considered this occupation to be oidy on sufferance, and determinable at will. That such occupation .ippears to have been taken and used without any author'ty (which would constitute it a right), but that such occupation can only be lawful and continue by compliance with the terms of the Act, and the condition that the company yield the like privilege to any other corporation in Newfoundland. That no franchise in favour of the Anglo-American company existed in any part of Canada, and that the company could not lawfully assume to exercise any such, except with the sanction of the Parliament of Canada. That it is olivious that Parliament could not recognize the position claimed by the Anglo-American company, inasmuch as by so doing it would admit by virtue of an Act of Newfoundland, the company had gained and could retain in Canada without the sanction of its supreme authority, privileges in the nature of a monopoly. In conclusion, the committee desire to call attention to the fact, that while the bill is plainly within the powers and jurisdiction of the Parliament of Canada, the original grant by Newfoundland was declared contrary to Imperial policy. (See despatch 18th -January, LSo.S.) The comnn'' tee submit that it would be in direct conflict with the spirit of the above despatch, now to interfere with the Parliament of Canada in the exercise of its consti- tutional right, to declare on what conditions alien corporations should be permitted to make use of any portion of its territory. W. A. HIMSWORTH, Clerk I'rivy Council. Tlie Hon. J. J. C. Abbott, Q.C., to the Hon, the Secretary q/' State of Canada, Montreal, 13th October, 1874. Anglo- SiR, — I have the honour to transmit to you the inclosed petition of the Airerican Telegraph Company, praying that no further steps be taken for the sanction ing of the Act respecting Electric Telegraphs passed during the last session of Parliament. I have, &c., J. J. C. ABBOTT. To the Bight Honourable the Earl of Dufferin, K.P., K.C.B., Governor General of Canada'' in Council. The humble petition of The Anglo-American Telegraph Company, Limited, — ■ SlIOWETH, That your petitioners are a corporation formed under the Act of the Imperial Legislature, entitled the "Companies Act, 1862," with u present capital stock of £7,000,000 (seven million pounds) sterling, which is held by between five thousand and six thousand stockholders mostly resident in Great Britain. That your petitioners were established in 1866 for the purpose of effecting tele- graphic communication lietween Great Britain and the American continent, and under various agreements and arrangements mode at and subsequent to the date of their in- corporation, and which have been sanctioned by the Imperial Parliament, your peti- tioners are now the representatives of the Atlantic Telegraph Company, and possess all the property, rights and privileges of that company, and by other agreements and arrangements made in the year 1873 your petitioners are now aLsoJthe proprietors of the ( OVER DOMINION LEGISLATION. :jo Canada, whicli luivalont privi- ada consitlered au}' authority be lawful and ,t tiie company d in anj' part ny such, except claimed by the ftuo of an Act a without the tliat while the [)f Canada, the (See despatcli irit of the aljove ise of its consti- e permitted to RTH, 111 Council. f Canada, ober, 187-1. of the Anglo- or the sanction- in of Parliament. BBOTT. leral of Canada'' ly, Limited,— if the Imperial capital stock of e thousand and t effecting tele- lent, and under late of their in- nent, your peti- and possess all agreements and ■op rietors of the cable and property of the Socidt^ du Cable Transatlantique Frani;ai8, Limited, and also of the cables, lines and other telegraphic pn^perty and rights of the New York, New- foundland and Ijondon Telegraph Conipau}'. That the last mentioned company has l)pen and is now consolidated with your petitioners by virtue of the provisions of Acts of the Legislature of Newfoundland, and agreements made thereunder. That the shareholders of all the said three companies, whose properties and rights are now held by your petitioners received shares of stock in your petitioners' capital as the purchase money for their respective properties and rights, so that your petitioners as now constituted comprise either the original holders of the share capitals of the srfid three companies or their direct representatives. That your petitioners, by themselves or their said predecessors, have for upwards of twenty years laboured to establish telegraphic communication between Great liritain and America, and through great ditliculties, and after many failures and heavy losses of capital, they succeeded in the year 1866 in laying two wubmarine cables btjtween Ireland and Newfoundland, and by means of such cables and local lines, either belong- ing to them or connected with their cables, they for the first time established effective telegraphic conniiunication between the eastern and western hemispheres. That your prjtitioners have since 186G, at great cost, laid two other submarine cables between Ireland and Newfoundland, and a line from France to St. Pierre (Mi(|uel(in) and Duckbury (M>ussacluisetts), and except for a few days when the lines have been in- jured by storms, they have, from 1866 to the present time, maintained such telegraphic communication as aforesaid, and have, as they believe, carried on their business to the satisfactitm of all parties interested therein. That your petitioners have from time to time reduced the rates of telegraj)hic mes- sages Ijetween England and America from i^20 for twenty words to the present rate of 4s. per word ; and they have so far perfected their connections and methods of operating as to enable them under ordinary circumstances to transmit telegrams between London and Newfoundland in periods averaging eight minutes, and between London and New York twenty minutes. That your petitioners possess numerous cables and land lines of telegraph in and between Newfoundland and Prince Edward island anil Cape Breton, and between New- foundland and St. Pierre (Mi(]uelon), several of these lines having benn laid or estab- lished by their predecessors, the New York, Newfoundland and London Telegraph Company, many years ago, and which have been in operation ever since for the trans- mission of Atlantic or local messages to and from Newfoundland and the Dominion of Canada or the United States of America. That such local cables are of great importance to your petitioners, and without some such means of communication your petitioners' Atlantic cables would be practi- cally useless. That by a bill passed by the Parliament of Canada in May, 1874, entitled "An Act to regulate the construction and maintenance of Marine Electric Telegraphs," and hereinafter referred to as the Act of 1874, it is enacted, amongst other things, (section 1), That the said Act shall apply to every company thereafter authorized by any special or general Act of the Parliament of Canada or under the provisions of the Act of 1874, to construct or maintain telegraphic cables in or across any tidal water within the juris- diction of Canada, so as to connect any province with any other province of the Dominion, or to extend beyond the limits of any province, and to every company author- ized to construct or maintain such telegraphs before the passing of the Act of 1874 by any such special or general Act of the Parliament of Canada, or by any other special Act or charter of any of the provinces constituting the Dominion, aiifl at the time of the passing of the Act of 1874 in force in Canada. (Section 14.) That no company other than those mentioned in the first section of the Act of 1874, or which becomes incorporated in Canada under the next following section, shall maintain, construct or use any telegraphic wire or cable connecting two or n'.ore provinces of the Dominion, or extending beyond the limits of any province, or up;in, under, or across any gulf, bay or 26 IMPERIAL SUPERVISION 1 ]' branch of any sea or any tidal water within the jurisdiction of Canada, or the shore or bed thereof respectively : Provided that nothing in this section contained sliall be con- strued to prohibit any existing telegiaph company or association from continuing to re- ceive and transmit messages over its line of marine telegraph until such time as another company, under the authority and within the {)rovisiona of this Act, has constructed and is operating a line of marine telegraph which has been determined by the Governor in Council to afford reasonable facilities for the transmission of marine telegraph messages in lieu of the line or lines of such existing teleg' tph company or association, or to be a line for doing business over a route of a compcjtitive nature. (Section 15), autliorizes certain companies therein mentioned to obtain a charter in Canada for the purpose of establishing and maintaining their telegraph and works within the juris- diction of Canada, but it is expressly declared that no such chaiter shall be granted to any company " wliich possesses any exclusive privilege of landing wire or cable for a "marine telegraph in or upon the coast of any state, province or country in America, " Europe, or elsewhere, unless an equal or reciprocal right or privilege of landing wire " or cai)le and establishing a marine telegraph upon the same coast, is conceded to any " and each of the companies in the first section of this Act mentioned, or which may " become incorporated in Canada under the provisions of- this section of this Act, s > that " any company incorporated or to be incorporated in Caniwhi may enjoy the same ad- " vantages in maintaining its marine telegraph line in and upon the same coast as the " said company which may possess such exclusive privilege." That the object and intention and effect of the said Act of 1874 appears to be to prohibit (for the benefit of a competing company) the working and use oi the local cables of your petitioners, which now extend to and are established upon the shores of the Dominion of Canada, and b}' means of which your petitioners' business is to a large ex- tent carried on, unless they give up the exclusive right of laying telegraph cables to and upon the island of Newfoundland. Your petitioners humbly submit to your Lordship that the above mentionv.. pro- visions of the Act of 1874 are unfair and inequitable, and would greatly prejudice and injure your petitioners, that the said Act ought not to be assented to by your Lordship on Her Majesty's behalf or allowed to become law, for, amongst others, the following reasons : — 1. Because the said Act injuriously affects your petitioners in their property and existing rights, and your petitioners had no notice, and no public notice was given of the intention to bring in the bill, or that any legislation was intended affecting your petitioners' interests. 2. Because your petitioners had no opportunity of petitioning Parlin'nent against the said Act before it was passed, and had but a few days' notice (winch was acci- dentally obtained by telegraph) that the bill was in progress, and therefore were unal)le to lay their case against the bill before either the House of Commons or the Senate. 3. Because, as your petitioners are informed, and as appears from the reports of the discussions on the said bill, its real object and effect were not fully represented or made known to the members of the Parliament, and that if its real object and effect had been understood, the bill would not have been passed in its present form ; but if passed at all, provision would have been inserted therein for the protection of your petitioners' just rights and interests. 4. Because the exclusive privileges held by your petitioners in Newfoundland were lawfully granted by the legislature of that island, and were approved by Her Majesty in Council ; and upon the faith thereof, several millions of pounds sterling have been expended by your petitioners and their predecessors, and it would be wholly unjust to them that they should be compelled to give up such rights without consideration or 'ompensation. < 5. Because your petitioners and their said predecessors have accomplished a great md most difficult work, a;id done great benefit to Canada as well as to Great Britain and ( 1 world at large, by establishing their Atlantic cables and local lines, and no sufficient L. mgmgr^ifmm^mm'im^i^m'mmmm OVER DOMINION l-KGISLATION. 27 or tlie shore or id shall be con- mtinuiiig to re- time as another [lias constructed )y the Governor rine telegraph or association, . (Section 15), Canada for the ithin the juris- be granted to or cable for a in America, landing wire ionceded to any ', or which may this Act, s) that >y the same ad- me coast as the ppears to be to the local cables shores of the s to a large ex- h cables to and mentionv.. pro- '/ prejudice and your Lordship s, the following ir property and ce was given of afl'ecting your liament against ■ bich was acci- therefoi'e were 'ommons or the the reports of represented or t and effect had ; but if passed )ur petitioners* aundland were 1^ Her Majesty ling have been lolly unjust to nsideration or ilished a great at Jiritain and d no sufficient cause is or can be assigned for depriving tb^m of the benefit of their vast outlay and unprecedented labours as proposed by the said Act. 6. Because great risk of total interruption of telepraphic communication between Canada and Europe would be occasioned if your petitioners were compelled to cease the working and use of their cables affected by the said Act. 7. JJecause the Act would have retrospictive effect, and is unconstitutional, and is unnecessary and is inexpedient in the public interest. Your petitioners therefore humbly pray Your Lordship not to assent to the said Act, and to advise Her Majesty to refuse assent thereto. JAMES ANDERSON, Director. JOHN GRANT, Dated 24th September, 1874. Secretary. The Hon. t/ie Secretary of State of Canada to the Hon. J. J. C. Ahhott, Q.C. Department op the Secretary op State, Ottawa, 14th October, 1874. Sir, — I have the honour to acknowledge the receipt of yovr letter of the 13th inst., inclosing a petition addressed to His Excellency the Governor General in Council, pray- ing that the bill })as8ed during the last session of Parliament, utituled " An Act to regulate the construction and maintenace of .Marine Electric Telegraphs " may not be allowed to become law for the reasons set forth therein. The said petition will be at once transmitted to Council ; at the same time I beg to inform you that the bill referred to i:aving been reserved for the consideration of Her Majesty the Queen, the subject- mattor now rests with the imperial authorities, who are in possession of the views of this ijovernment, so that practically the subject is no longer open for the consideration of the Government of Canada. I have, (fee, R. W. SCOTT. The Secretary of State for the Colonies to the Governor General. Downing Street, 29th October, 1874. My Lord, — I have the honour to acknowledge the receipt of your Lordship's des patch No. 249 of the 2nd inst., transmitting a copy of a report of the Privy Council of the same date on the subject of the Marine Electric Telegraph Bill of the Dominion Legislature, which has been reserved for the signification of Her Majesty's pleasure. 2. I have for some time felt little doubt as to the advice it would become my duty to tender to the Queen with reference to this bill, but I have defined any expression of opinion on the subject until the receipt of your promised despatch. 3. The bill was reserved (as stated in the previous report of the committee of Council dated June 4th, 1874, which accompanied the bill), because the measure was " one of some importance, and might ^ issibly be considered to prejudice the interests and rights of property, Her Majesty's subjects not residing in Camula." And it is further stated tliat this was done merely in deference to the language of royal instruc- tions as quoted above. The subject to which the bill relates is, in my opinion, one of those with which the Dominion Legislature has been, under the 91st and 92nd sections of the Imperial " British North America Act, 1867," expressly empowerev' to deal. It seems to me to be clearly within the competency of the Dominion Government and Parliament to legis- late without any interference on the part of the government of this country upon a local question such as forms the subject-matter of the bill, involving as it does, no points 1 1 ; in raapect of wliioli it would appear necessary that imperial interests should be guarded, or the relations of the Dominion with other colonial or foreign governments controlled. 4. I am well aware from the numerous repiesentations which have been made to me on both sides, that the reserved bill attects the pecuniary interests of many persons not residing in Oanada, but Her Majesty's Government is not on that account called upon to review th decision arrived at oy the legislature of the Dominion. Looking to the large intercourse maintained between Canada and this country, and the extent to which I3ritish subjects residing out of Canada hold real and personal property, and are interested in joint stock enterprises within the Dominion, it is obvious that, if the inter- vention of Her Majesty's (lovernment were liable to be invoked whenever Canadian legislation on local (juestions affects, or is alleged to affect, the property of absent persons, the self-government conceded to the Dominion might be reduced within very narrow limits. 5. It is to the Dominio!i government and legislature that persons concerned in the legislation of Canada on domestic subjects and its results must have recourse ; and this government cannot attempt to decide upon the details of such legislation without incur- ring the risk of thosa complications which are consequent upon a confusion of authority. 6. While, therefore, I entirely appreciate the action of your ministers in reserving the bill, I am of opinion that any further consideration of the subject should be given by that body whose province, as I have observed it, is to deal with such questions, and that I cannot properly assume the function of deciding between the conflicting views of those who have addressed me whether m favour of or against the policj embodied in this measure. In order to enable this to be done, I have decided to leave the present bill in abeyance, and to tender no advice to Her Majesty respecting it. I have, (fee, CARNARVON. The Secretary of State for the Colonies to tJie Governor General. DowNiNr. Street, 19th November, 1874. My Lord, — "With reference to my despatch, No. 220, of the 29th of October, I transmit tc you for your information, and for communication to your ministers, a copy of a despatch which I have addressed to the Governor of Newfoundland with regard to the power possessed by the Newfoundland Government, under section 15 of the New- foundland Act, No. 2, of 1854, to purchase the lines of telegraph and other property of the New York, Newfoundland and London Telegraph Company, with the view of terminating the monopoly conceded by that Act. I have, ifec, CARNARVON. The Earl of Carnarvon to Governor Sir J. Hill, DowNixa Street, 17th November, 1874. Sir, — I inclose for your information, and for communication to yoir ministers, a copy of a despatch which I have addressed to the Governor General of Canada, with regard to the reserved bill of the Dominion Parliament, " to regulate the construction and maintenance of Marine Electric Telegraphs." 2. Until the couise to be taken by Her Majesty's Government la this matter had been decided, I thought it expedient to defer answering your despatch, of the 9th May, in which you inclosed a minute of your Executive Council, inquiring whether Her Majesty's Government would, upon terms to be hereafter agreed upon with the Local Government, undertake the purchase claimed by the Government of Newfound- land, under the Act, cap. 2, of 1854, incorporating the New York, Newfoundland and London Telegraph Company, with a view of terminating the monopoly conceded by that Act. ■A OVEH UOMIMON LKi;i8LA'X'tUN. 39 uld 1)0 guarded, lilts cojitroUed. (■ lieen iniide to iiiaiiy persons account called Look in j; to (I the extent to oi)erty, and are lat, if theinter- lever Canfidian absent persons, y narrow liniita. oncerned in the )uise ; and this without incur- Dn of authority. ers in reserving should be given 1 (luestions, and licting views of mbodied in this he present bill fAllVON. [iber, 1874. h of October, I linisters, a copy 1 with regard to 15 of tile New- her property of th the view of fARVON. iber, 1874. ar ministers, a if Canada, with 16 construction ill this matter espatch, of the uiring whether upon with the of Newfound- Newfoundland ly conceded by .1. The decision which has been arrived at to take no action with respect to the Uominion reserved bill, in order that if thought desirable a fresh bill may be intro- duced next session, would seem to render it unnecessary, or perhaps impossible, to de- ci. Note— In 1875 an Imperial Act was i)asHed 38 and 39 Victoria, cliapter 53, intitled " An Act to give- effect to an Act of the Parliament of Canada reHjiectintf copyriKlit," by which jxiwer was panted to Her Majesty in Coimcil to nnsent to the Canadian bill notwithKtiinding the proviHionH of the Act (Imp.) 28 and 2J) Vic, chap. !i3, and the Order in Coimcil of 7th .Inly, 1808. See Statutes of Canada, 3i) Vic, 187(), pages VI. and VII. See also ante, page 11. ff 1 LJLJ i! 52 Victoria (1889) Chap. 29. An Act to amend " The Copyrujht Act," Chapter Sixty-two op the Revised Statutes. Report of the Hon. the Minister of Justice, approved by His Excellency the Governor General in Council on tfie 17th August, 1889. Department of Justice, Ottawa, 3rd August, 1889. To His Excellency the Governor General in Council : In reporting to your Excellency that the Act passed at the last session of the Par- liament of Canada, intituled " An Act to amend the Copyright Act " (chap. 62, Revised Statutes), might pioperly receive your Excellency's assent, the undersigned intimated that the Act would be made the subject of a more extended report, and he now respect- fully presents to your Excellency the following observations in pursuance of that inti- mation : — ^ iVKR DOMINION I.KfilHl.ATION. 31 1K(2UEK FOB THE ms fdrosliadowed it appeals to Her tiniatcd tliat the ajosty ill Council rted in the hill, 184, and note. ivn, 20tJi Ortnher^ Tin 11th Decnnber, tied " An Act to give- nr was granted to Her the Act (Imp.) 28 and OF THE Revised "ncy the Governor \ugust, 1889. iession of the Par- (chap. 62, Revised I'signed intimated nd he now respect- lance of that inti- The Act contains a provision that it shall not tonn* into forco nntil p'-oclainit'd hy your ExcelU'iu'y, and tluTc was not, and is not, any intctntion on the part of your Excellency's (Government, to advise tlu! issue of a proelaination liiin;,'ing it into force until it lias Iteen suhinitled to Her Majesty's (Jovernnieiit, with tins ex|)lanatioiis which your Kxcellency's alvisers can present, and until Her Majesty's (tovernnient shall concur in the issue of tin! proclamation. The coiuurrenco of Her Majesty's Government has lieon considered necea.sary, because the Act deals with a subject on which imperial legislation extending to all Her Majesty's possessions now exists, and in respect to which it is not desired liy your Kx- cellency's (loverninoMt that a measure should lie adopted which would conlliet with the policy which Ht'H from any r<^striction of that kind, not oidy as to the vast maikels of their own <'ountry, hut as to Canada as well. Parliament considered that the peculiar position in which (Canada is placed on ac- count of hei- proximity to the I'nited St.at(!H, and the copy ri},dit policy of the I'nited States demand peculiar treatment in lei^islation on this suhject, and treatment diffei-ont from holh tlie IJerno Convtmtion and from the Imperial and (/anadian Copyrij^ht Acts heretofoi-e in forct*. The Canadian Parliament has on more than one (x'casion expres.'^ed this opinion und did so emphatically at its last, session hy unainmously passin;.; the Act now under consideration. If it should setini to Her Majesty'.s (iovernmtMit that further explana- tions are needed to convince them of the expediency "f the proposed change, or of the necessity nf th<^ Act of last sessitin U'lng allowed to go into ojieration, he trusts that a further ojiportunity will be atl'orded of makitig tln^se (^xplanations, as abundant mater'-' exists therefor in the experience of all wlu) are interested in the publising busin" a Canada. The undersigned submits tluit the royalty provision of the Act of livst session in favour of the holders of tlni Hritish copyright is I'easonable, and affords ample facilities for collection. Tlui (jlovernment of Canada will bepreparcMl to submit to Her Majesty's Government the regulation which may lu; adopted under the Act for securing the collec- tion of the royalty and the payment thereof to the proper parties. ft only remains for the undersigned to observe as regards the policy of permitting re-pulilication in Canada, that under existing legislation the importation of foreign re- prints into Canada is jiernntted, on the imposition of a customs duty in favour of the coj)yright holder. The Act of last session will make the same provision in favour of the Canadian publisher, but under regulations which will restrain the influx of foreign re- prints and atl'ord a means of collecting the compensations to the copyright holder. The undersigned has reasor to apprehend that a (|uestioh may be lai.sed as to the power (jf the Parliament of Canada to pass the Act in (|uestion, because he is aware that the previous legislation on this subject has been sta*^ed to require the .sanction of the Imperial Parliament and because that view has been based on very eminent legal authority. On that subject he begs to present the following considerations : — The Act in question is understood not to conflict in any way with imperial legisla- tion pisseil since the adoption of the British North America Act, 1807. For that reason, as has been alreiuly intimated, no proclamation will be issued bringing the Act into force until after the Imperial Copyright Act of 1886, giving etiect to the Berne Convention, ceases to be applicable to Canada. The remaining (|uestion, therefore, simply is as to the right of the Parlian -^i t of Canada, under the Jiritish North America Act, to make regulation in Canada reravl !\g copyright in Canada, not- withstanding that these regulations may difl'er iroic those existing under imperial ' )gislation adopted prior to the British North Aineri'.. /.ct. The view which the undersigned respectfully iiv<,sents is that as regards all those subjects in respect of which powers were given to the Canadian Parliament by the liritish Noith America Act, the true construction of the British North America Act is that Parliament may properly legislate without any limitation of its competency except- ing the limitation which Her Majesty can always impose by disallowance (whether the Act be within the power of Parliament or not), and'excepting also as to control by imperial legislation subsetjuent to the British North America Act and applicable to Canada. As to this latter it may be considered, in so far as it deals with the subjects given to the Parliament of Canada, as amendatory of the British North America Act. OVKU UOMIMON l,K( ('iintidii to lc;;isl/ili' liy "Tlif lliitisli Nortli A ricii Act'' w;is " copyiii,'!!!,." (Sec hi'i-i iim !»1.) Wlicii, ill |M7l.', tlic I'uilijiiin'iit ot' Cm .iiilit piisscd mi Ac! i'i's[M'c(iiii' cuiiyrij^lit in |)iirMiiiiiicf nt' tliis Mi'ctidii of (lie lliiiisli Nurili Aiiu'rii'ii Ad, ilii> Act wiis rcHtTVccI tor niyiil iissciit, iitui lior i Ciiriiiii'viin in a il*>s|) it<'li iliitnil I Jtli .liiiit>, I 87 I, slutiMl to the I'iiirl of DiitVci'iii, one of your Kxct'lUiiicyM prcdcccsHors, that In* iiiid Ikh'Ii iiniil)lt' t<» iidvist' ll<'i' Miiji'sty 1(1 iiM-.fiit to tlic Act, mid tliiU lir hud liikcii tlin uih'ii'c of I lie law nlliccrs of lli«! CJrosviion tin- sulijcct. Lord C'lrmirvoii, in tlmt dcHiiiitcli, iiitiiniites tiiiil tlir l»isl scciion of ilic I'.ritisli North Aint'rica Act, above reft'iTcd to, is to Im inttM'prt'tt'd Wy out' of thn headings which appear in tlu! statuti;, namely, " Distrilmtion of Lei^iHlative Powers," and l»» almost seeiiiH to incline to the opinion that the !)l.st section on wliicii all the powers of the Parliament of C'anada depend, is intenr the Act of last session, did .uiything mori; than deal with coloni:il copyrights. It is claimed that the British North America Act, section 1»1, gave the Parliament of Canada power as full as that possessed by the Imperial Parliament to .say who should and who should not have copyright within the Dijminion; and as regards the ob.servation that it was not contemplated to interfere with the rights secured to autl.ors by the Imperial Act, all objections under that ht!ad may be disjcnsed with, because the Act of last session will not affect any rights which have been secured before it shall come into operation. The undersigned cannot advance the foregoing views without extrinne diffidence, because he finds that Lord Carnarvon's despatch intimates that in the opinion which his Lordship expresses he is supported by vJie law oflicers of the crown, and also by those eminent lawyers, the pri^sent Lon] Sel borne and the present Lord Herschell, whose report he laiil before Parliament in l(S7l'. In the face of such eminent authorities lie would hardly venture to press upon tiie attention of Her Majesty's government the view of the Canadian government which he has above presented, if it were not to his mind perfectly plain that the people of Canada would hold him culpable if he failed to assert what wcs the only interpretation under which they received the constitution and under which they were willing to be content with that constitution. If the 91st section of the British North America Act has not conferred on the Parliament f)f Canada all the powers of the Parliament of the United Kingdom in re- spect to the subjects there enumerated, the gift of powers made l>y that Act is delusive, in respect to the Canadian Parliament, and is less th.in the gift of powers which the provincial legislatures previously enjoyed regarding the same subjects. The undersigned is encouraged to state this opinion not only because it has been supported by the Canadian Parliament and because it agrees with the understanding of 3 B 34 IMPERIAL SUPERVISION the Canadian people on the subject from tlie first, but because the same view has been upheld, he ventures to submit, l)y the Judicial Committee of the Privy Council, on more than one occasion since the despatch of Lord Canuirvoii in 1874. Before referring to the decisions of that tribunal however, he would advert to the ■opinion presented to Lord Carnarvon in 1872, from the two law officers ; The Secretary of State for the Colonies to the Governor General. DowNiNf} Street, 20th August, 1889. Mv Lord, — I have the honour to transmit to you, for the inf(jrmation of your Lord.ship's government, copies of a letter signed on behalf of the Copyright .As.sociation and the Musical Co]iyright Association, and of the reply which had been returned to it respecting the Canpdian Copyright Act of 1889. I have, itc, KN UTSFORD. To the Right Ifonnurnhle Lord A'im/.tford, K.G., C.B., Her Mnj'nty'n Principal Secretary of Slate /or the Colonies and British Dependencies : Mv Lord, — We, the undersigned representing the Copyright Association and the Musical Cojiyright Association, respectfully drew your Lordship's attention to " The New Canadian Copyright Act of 1889, " and beg to point out that it is so highly injuri- ous to all British copyright owners, except those resident in the Dominion < i Canada, that we are constrained to ask you to advise Her Majesty to withhold from it Her Ma jesty's royal assent and saction. Section 1, repealing section 5 of the Canadian Copyright Act of 187o, substitutes therefore a section re(|uiring as a condition of retaining copyright therein in Canada, the registration on publication, and also the reprinting and republication in Canada within one month of original publication of all British copyiight works and work entitled to copyright under the Berne Convention. Section 2 repeals section G of tl';e said Act of 1875, and enacts that, if the above conditions are not complied with, a " licensed edition " may be juiblished by any one giving security to pay tlie Canadian government, for th(! copyiight owner, 10 per cent on the retail price of all cofjies issued, but the Canadian goverinnent is not to be respon- sible to the copyright owner for its collection. Section G provides that, whenever a licensed edition is published. Lhe Canadian government may prohibit the introduction into Canada of copies of the author's original edition. "MM i .«k#.*n t, ill respect to ^e tlio plenary 1 Committee), n time to time, ill North Am- jised with full ivhen exercised Her Majesty's into ojieration, imeiit for t! be allowed to detail, if nec- (la, not nieri'ly lowei'H of Par- transmitted to ON, o/ Justice. ust, 1889. nation of your ;ht Association 1 returned to it rSFORD. cipal Secretary iatiou and the ntion to " The L) hif,'hly injuri- ion (f Canada, om it Her Ma 175, substitutes in Canada, the Canada w ithiu 'ork entitlefl to at, if the above ed by any one lei", 10 per cent 3t to be rcspon- , Lhe Canadian luthor's ori{;inal OVER DOMINION LKGISLATION. 37 We nt>od hardly point out to your Lordship that such legis ationts ultra ^^res:h^t .s oontinning tins view we venture to quote the following optntons given to the Copy- right Association by Lord Selborne and Lord Herschell. OPINION. In consequence of some publishers in Toronto having issued an unauthorized reprint of " G nx's Blby," and of the newspapers in Canada clai.ntng for their pubbshe s e ri-dit ..f reprinting Knglish copyright works under the >;>''"'"«'^,/^f " . ^:- ' ' 7' ^i^' Canadian Co.-.y right Act of 1868, a case was submitted to ^ir Houndell 1 a me , Q.C., n^?d \Ir Farrer Herschell, Q.C., and their opinion asked on the following po nts :- "^' L W the "he Lnp;rial Copyright Act^ of 1842 (5 and 6 Yic.. cap . is s^i m force in its integrity and still runs in Canada, -.'t-fl-t';"'';^,^^^.'?''^' ^"'^..^'s;/ 18(17 (.W Vic , cap, 3), and the Canadian Copyright Act of 1868 (.H \ ic. cap Qi), e'peciilly having Ugal-d to the Imperial Act of 28 and 29 Vic, cap. 63, as to .olonial ^"^''"'f'lnlhe event of the above-mentioned Act of 1842 being in force, what course should be adopted to rectify the existing apparent anomalies consequent on ^ '«^;^n'^^'i;5 Act ..f 1868) 31 Vic, cap. 54), and to protect the interests of British authors and ''"'''? How is the exclusive legislative authority given by section 91 of the Dominion Act ^30 Vic cap. 3), to be c;)nstrued generally in reference to Imperial Acts f 4 Ifttabove^CauadianActbe^valid and ..verride the Imperial Act what pro- teHion have British authors in respect of reprinting and importation "'^o he Lmtecl I'ir , ,? .. of works printed a;id published in Canada under its provisions, either ^Mth or ^ ''"■ V:uetlK^"wlI lirst published in the United Kingdom are entitled to thebenelits ot ti.:.' .anadian Copyright Act, 1868 (31 Vic, cap. 54), if duly entered, reprinted or '-'^'tZ^'^U Q.C., and Mr. Herschell, Q^C, gave tl. following i.pl^ - We are of opinion that the Imperial Copyright Act, o and 6 ^ ic, cap. 4o .s still in force in its integrity throughout tlie British dominions, in so far as it prohibits the p"i t iii in any pJt olf such dominions, a book in which there is f^^fj^^^^ i„.l,-r that AJt without the c.nsent of the proprietor. It is abundantly cl -ai th.it the .vision in the Act of the Imperial legislature (30 Vic, cap. 3), by which the Domin on oi Canada was constituted, declaring that the exclusive legislative authority of U e Dominion Parliament extends (amongst other things) to copyrights, has reference only oTe delusive jurisdiction in Cannula of the Domini..n legislature as distinguished ro the legislatures of tiie provir.ces of which it is composed, and the recent Copy- • .d.t Act of the Canadian legislature (30 Vic, cap. 34) was in substance no more than a^-e-enactment for the whole Dominion, of provisions winch had previous y been in force in one at least, '^ftl'o provinces, bv the enactments of its legislature. It gave a copy- ri.rhrougho'c.,.L to works' published in any part of the Dominion, ^'Ut "-nir opinion it w.s ..,< c..,.petent to and did not atlect the protection against piracy afiorded bv the Impt iai ■>• t i.roughout the whole British dominions, in respect of works pub- ""'1^ p;:. -sL::' .^i^^'rand Oth Vic, which prohibits tl. importation into any part of the British u. •. ..ions of printed copies of British copyright works, is not n.,w fn force in its intercity. The Imperial Act of the 10th and ^ ^ ^h ^ c enable^^^^^^ Majesty to susr.nd the prohibition in the case of any colony which -^IjO^^l P^^ ^ Ac .-:v,.ij;ng reasonable protection to the authors of such works. 1 he Canadian legislature, un.ler thi., provision, p^ussed an Act (30 Vic cap. ;'«) ;."'l-«'"« ■^^;^" ^^^Z tirebenelit of the authors of such imported works, and the }''-f ^ f '^''VT.rti th s tation has accordingly been suspended, and does not now app y to Canada buwh this exception, the Copyright Act, 5 and 6 Vic, is still in force throughout tl a colonly. LiNCOLF> r .^. 7th September, 1871. Faureu Uerscuell. Il ■ i i; it '! 38 IMPEKIAL SUPERVISION OPINION. with The course taken V)y Canada in thus legislating is also directly at variance article 2 of the International Copyright Union, to which Canada is a party. To insist on registration in any other than the country of origin is also contrary to the Berne Convention and a hardship on authors, for they c.innot comply with it in the most cases without employing and paying special agents, and yet they are tlo be mulcted wit!i entire loss of copyright in the Dominion of Canada in default of so doing. In England it is not compulsory, in Germany it is not required, and in Franco it is only necessary to present copies and obtain a receipt. Registration is not now required in any country, except the country of origin. To insist on reprinting is detrimental to the author's writings, as he cannot revise the licensed edition. It also conflicts with the Imperial Copyright Act of 5 and 6 Vic, cap. 4r), sec. 15, and Berne Convention. According to the undermentioned opinion, copyright of a British work not first published in Canada, can only be obtained under the Imperial Copyright Act, 5 and 6 Vic, cap. 45, and therefore, the Canadian Copyright Act do'~- not affect British authors. Further opinion on fifth point of previous ca.se : — We are of opinion that the author of a work ai eady published in the United Kingdom, and posscs.sing the rights 'conferred upon him liy the Imperial Co))yright Act of 5 and 6 Vic, cannot by re-publ > "ion in Canada, and by compl3'iiig with the pro- visions of the Canadian Copyright j ^ ' Vic, c 54), obtain for his work the protec- tion against importation into Canada led by that Act. We think uj)on a true construction of the Act, it cannot apply ; : case of a work already possessing, by virtue of the Imperial Act, coj)yright throughout Canada. Any other construction would lead to this startling consequence, that the author of a work who had enjoj'ed copyright in Canada, by virtue of tlie Imperial Act, during the whole time for which it existed under that Act, could by then republishing and recording his work in Canada, obtain copyright in that colonly for the further pericnl of 28, or in some cases, 42 years. We think, further, that the provisions of the Imperial Act, 10 and 11 Vic, c 95 (which is now in force as regards Can.ada), afibrd additional ground for the view we take that the protec- tion alluded to cannot be obtained by a republication in Canada. ROUNDALI, PaLMKR. Farrer Herschell. Lincoln's Inn, 2nd December, 1871. Your Lordship will notice that under the Canadian Act the author is in effect com- pelled to grant a license to any number of applicants. It is true that the applicant is required to pay a royalty of 10 per cent, but this requirement is in realty illusory, becau.se he has no means of ascertaining or obtaining an account of the number of copies " issued." 'The word issued itself contains a difficulty, for it may mean copies printed, or copies sold, or copies given away. It is indefinite, but if it is on copies .sold or given away, no adequate provision is made for ascertaining the number of copies on which the royalty is to be paid. We must tiUo emphati'jally draw your Ix)rdship's attention to the fact that no power exists to prevent the Canadian reprint being imported into the United Kingdom and into other British colonics, or to hinder its competing with the author's edition, for it will be lawfully printed, an 1 printed within the British dominions. Such power is destructive of all British copyright. We may add that this change in the law is obviously not made in the interests of literature, for Canada imposes a 15 per cent duty on imported books and thus checks their introduction there, especially in the form of cheap editions. Neither is it required in the interests of the put)lisher, for he can make his own arrangements with the author even to the extent of supplj'ing the United States as well as his own, and we cannot refrain fiom observing that it is unjust from every point of view to the author. u -^ ij-j^i.m i jni),uj... -iitti^'-:. OVER DOMINION LEGISLATION. 39 at variance with )arty. s also contrary to ply with it in the are llo be mulcted of so doing. In France it i.s only I now required in ( he cannot revise :t of 5 and 6 Vic, sh work not first ight Act, 5 ana 6 ct British authors. 3d in the United •ial Copyright Act ing with the pro- s work the protec- think uj)on a true ssessing, by virtue ruction would lead joyed copyright in sh it existed under I, obtain copyright ^ears. We think, 13 (which is now in ke that the protec- Palmer. [erschell. or is in effect com- it the applicant is in realty illusory, e number of copies copies printed, or )pies sold or given opies on which the the fact that no ) United Kingdom uthor's edition, for s. Such power is in the interests of s and thus checks iither is it required its with the author n, and we cannot :ie author. May we also venture to add that the tendency in every country possessing ;< litera- ture or desiring to acquire one is to give the author full control of his work, and to leave him to make his commercial arrangements in the way which he thu.k.s best pro- motes his own interests. The law merely protects his right of proj,.-rty, and the spirit of the Berne convention is to make those rights as complete and unitor.n as possible. We have the honour to be your Lordship s humble servants, T. NORTON LONGMAN, Treasurer. F. R. DALDY, Hon. Secretary, C'opyriyht AKtiociation. E. ASHDOWN, If(m. Secretary, Musical Copyright Ansocintion. Colonial Office to Mr. Daldy. DowNiNfi Street, 20th August, 1889. Siu -T am directed by Lord Knutsford to acknowledge the receipt of the letter sicrned b'y Mr. Longman and yourself on behalf of the Copyright Association an.l by Mr. Ashdown for tlie Musical Copyright Association, respecting the Canadian Copyright "^ I am'to state that the Act in (,uestion has not yet been received in this department, and that it will be referred to the law officers of the crown when it arrives. I am, &c., JOHN BRAMPSTON. Report oj the Hnnourahle the Minister of Justice. Department op Justice, Ottawa, 17th January, 1890. To His Excellency the Governor General in Council : The undersigned to whom was referred a despatch from the Right Honourable the Principal Secretary of State for the Colonies, transmitting copie-- ot a letter signe.l on beh I of the r^,py right Association and the Musical Copyright Association respec-ting h Canadian Coyyright Act of 1889, and of his Lordship's reply thereto, has the honour to report that the'ubject has been already so fully reported on in an '^PP™^'*^'! '"^P"^ already tiansmitte reasons upon which this view is based are \ery clearly stated by Lord Carnarvon m nis despatch of blth June, 1874 (copy annexed), and I have only to express my concurrence in those reasons. This important subject will doubtless receive further consideration by your minis- ters, and it may, therefore, be perhaps not out of place, if I call attention to two provi- sions in the Act passrd last by the Dominion Parliament, which have been directly brought under my notice, and to which special objection is felt by the proprietors of copyright in this country. 1 n the first place, it has been pointed out that under the Canadian Copyright Act of 1875, which ha. 4 There is a recital in the Canadian bill tli.it by the British North America Act, 1867 exin-ess power is given to the Parliament of (Janada to legislate upon the subject of co'pvright, but it is to be observed that the section (the 91st) containing this pro- vision is one of several having reference, (under the Gth general head of the Act to " the distribution of legislative power,- and provides that "copyright amongst other subjects arc to be dealt with by the Parliament of Canada, whii.- ..iher subjects (under section 92) are to be exclusively dealt with by the provincial legislature. 5 The effect of the Imperial Act is to enable the parliament ot Canada to deal with colonial copyrights within the Dominion, but it is clear that it is notcontemplated to interfere with the right secured by authors by the Imperial Act ot ;) and b \ ict., cap. 4.'}, or to over-ride the provisions of that Act. 6. Upon this point I am supported not only by the opinion ot the present law officers of the Crown, but by the opinion of those eminent lawyers, the present Lord Selborne and Mr. Herschell, Q. C, whose reports will be found in the copyright paper presented t"efi pleased to assent to it, inasmuch as by the secoml section of the Colonial Laws Validity Act (28 and 28 Vic, c. 63) any part of a colonial law which is repugnant to an Imperial Act extending to the colony in which such law is passed, is pro tanto absolutely void and inoperative. , , , i • i 9 I am aware that the subject of colonial copyright has long been under considera- tion, and that attempts were made by Her Majesty's late government in communica- R 5*,'^?SW 42 IMPEIilAL aUHEIlVISlON !i:^ tion with yourself and your ministerH to arrive at a settlement of this difficult but most important question. I will only now express my readiness to co-operate and my con- fident liope that we may without difficulty \>e able to agree in the provisions of a measure wl'.ieh, while preserving the rights of the owners of copyright works in this country u.ider the Imperial Act, will give eB'ect to the Canadian government and Parliament. I have, itc, CARNARVON. Sir John Thompson to Lord Knuts/ord. ( (Letter approved by OrdiT in Council of 7th August, 1890.) Westminster Palace Hotel, London, S.W., 14th July, 1890. To the Jiicjht Ilonmtrablr Lord KnutHford, Her Majesty s Principal Secretary of State Jor the ('olonies, Downing Street: My Lord, — In the report which I had the honour to make to his Excellency the Governor General of Canada in Council on the subject of copyright in Canada, dated the ."Srd of August, 18f<9, and which was approved by his Excellency and transmitted to your Lordship, it was asked that his Excellency's government might be allowed to dis- cuss the questions dealt with in that report at further length, and in further detail if necessary, fis they involved grave question of great consecjuence to Canada, not only with respect to copyright, but in relation to the powers of the Parliament of the Dominion. Having had the privilege to-day of carrying on that discussion, to some extent, with your Ijordship, I avail myself of the permission accorded to me at our interview, to place in writing before you some of the arguments which I am instructed by tlie gov- ernment of Canada to advance, in amplification of my report above mentioned. In your Lordship's despatch of the 25th of March, 1890, in reply to the observation in that report, you called the attention of the government of Canada to some provisions of the Copyright Act of Canada of 1889, to which you stated that special objection was felt by the proprietors of copyright in Great Britain. One of these was the limit of time ^one month) alio d for the British author or publisher to republish in Canada, after publication in (■ teat Britain. Your Lordship had been assured that in a great majority of ca.ses it would be impracticable within the period of one month to make the necessary arrangements for republication in Canada, and expressed the hope that upon further consideration it might be recognized that the time proposed was insufficient. Upon this point, as well as to other details of the Act, it is unnecessary to trouble your Lordship with any argument at the present moment. The question to be settled first, and to which I understand your Lordship to wish that T shall address my.-^^ jlf, relate to the principle of the Act and to the power of the government of Canada to pass it. Any details which ere felt to be unfair or inadequate, in view of all the interest involved, will, I am sure, be reconsidered by the Parliament of Canada. At the same time 1 may observe that it is contended on the part of those who are interested in the publishing business in Canada that the time referred to is not unreasonably short, and that the holder of copyright in the United Kingdom can easily make arrangements for simul- taneous production in the two countries, so as to have republication made in Canada within the time specified in the Act. The time for republication must necessarily be of short duration, because, durinfj that period, the importation of foreign reprints of the work as well as the republication in Canada by other than the copyright holder in Great Britain is prevented, pending the exercise of the option by him as to whether he will avail himself of the Canadian copyright law or not. ii WMJJlMl ' M ' .a i JlWi-lil'-UJ i ... OVER DOMINION LROIHLATION. 48 (lifFicult hut most ■iitn iind my con lie j)r<)vinions of a it works ill this government and INARVON. 1 July, 1890. rrtary of State Jor lis Excellency the in Canada, dated nd transmitted to je allowed to dia- \ further detail if Canada, not only Parliament of the , to some extent, t our interview, to acted by the gov- entioned. to the observation to some provisions scial objection was e was the limit of ulilish in Canada, ed that in a great lonth to make the le hope that upon I was insuHici(int. [■y to trouble your :o be settled first, y.' jlf, relate to the to pass it. Any interest involved, '■ same time 1 may in the publishing >rt, and that the ments for simul- made in Canada necessarily be of ;n reprints of the [it holder in Great ' whether he will On this, and on all other matters of detail, any suiigestions which your Lordship may think proper to make will, J am sure, receive the earnest and ri'speclful attention of the Canadian government. Your Lordship's despatch refers his Excellency's government for sonu; particulars of the objections which liave been pressed on you to a letter (lat(Ml •' Aldiiie Ilousi^, Belvidere, Kent, L'Olii Fcbruury, 18;)0," »u[)po.sed to have Ijeeii ad(b-essed to me, signed V)y Mr. V. II. Daldy, honorary secretary of the Cctpyright Association, l)Ut I have been unaiile to gather much information from that letter as to the objections which are entertained in England with regard to the Canadian Act of lf<81). Mr. Daldy and the associatioii which he represents are hostile to any measure by which the right of any colony to self-government on this subject may be asserted or conceded, and ids letter suggests an entire abandonment of the legislation of IHS'J, and the adoption of fuither measures to carry out more strictly the existing law, which is unsatisfactory in Canada. I may mention here, in case the fact should l)e of any im[)ortance, that 1 know Mr. Daldy's letter only by the copy a{)pen(led to your Lordshijj's despatch. If Mr. Daldy lias ever .sent such a letter, it has never reached me. Coming now to a statement, more in detail than could be made at our interview, of the views which prevail in Canada on this suliject, I am charged by the Canadian gov- ernment to e.xpress to your [.lOrdship, in the strongest terms which can be useil with resflect, the di.ssatifaction of the Canadian government and Parliame'it with the present state of the law of copyright as applicable to Canada, and to reipiest most < arnestly from Her Majesty's gov«friiinent that they will apply a remedy, either by giving approval to a proclamation to bring the Canadian Act of 1889 into force, or by promoting legis- lation in the Parliament of Great liritain to remove any doubt which may exist as to the power of the Parliament of Canada to deal with this ipiestion fully and effectually. Your Lordshij) is aware that the statute of 1842 (") and Vic, c. 45) is the impe- rial statute by which copyright in Great Britain is extended to all the colonies and dependencies of the empire. Any principles of common law by which authors and publishers might have claimed copyright were su[)ersedecl by that Act and given to any person who should publish a literary work in the United Kingdom, if he slumld be a subject of Her Majesty, or a resident of any part of Her Majesty's dominions. I need not remind your lordship that the operation of the Act wivs immediately attended with great hardship and inconvenience in the North American colonies. The legielature of the pnjvince of Canada, in the year 1843, passed a series of reso- lutions expressing strong remonsta ice, and nearly all the other legislatures in North America followed. The legislature of Nova .Scotia, in 1 845, memorialized Her Majesty for a modification of the Act. They stated that the high prices of English books, and the monojioly of Ixmdon publishers, which were felt to be serious grievances in the LInited Kingdom, but mitigated there by the j)erio, the lc;{islature of Nova Siiotia again adopted a report, which was transmitted to the Hif^ht Honourable the Secretary of State for the Colonies. The report stated that attention had been f^iven by the eonnnittee to the despatch of Lord Stanley, dated the 27th November, 1845, and that they were convinced "that the practieal effects of the Copyright Act were deprive the people of the colonies of literature whosr^ means rendered them unable to purchase costly books issued from English publishing houses, to diminish the revenue and to encourage smuggling, without producing any corresponding benefit to the author.' These remonstrances drew from the Right Honourable Mr. Gladstone, the Secretary of State foi' the Colonies, a representation to the pulilisliing trade in England that " they must be induced to modify any exclusive view which might still prevail with I'egard to this important subject." At length, on the 19th October, Sir Stafford H. Northcote, by direction of the Lords of the Privy Council for Trade, reviewing the contentions, which had been thus pressed upon the home government by the legislatures of the colonies, made the following recom- mendation to the colonial office : — " lender the circumstances my Ijords see no course so likely to be successful as that of inviting the colonial legislature themselves to undertake the task of framing such regulations as they may deem proper for securing at once the rights of authors and the interests of the public. My Lords feel confident that they may rely upon the colonies being animated by a sense of justice which will lead them to co-operate with this country in endeavouring ^o protect the au'liorfrom the fraudulent appropriation of tlu; fruits of labours upon which he is often entirely dependent, while they entertain a sanguine hope that methods may thus be di.'icovered of accomplishing this important object with the least possible inconvenience to the community. '• I am accordingly directed to request that you will suggest for Lord Grey's con- sideration whether it might not be desirable to obtain from parliament an Act authoriz- ing the gh s o . th or and Uie interest of the public. Her Majesty s governn.ent w.l accordingly sin to parliament a bill authorizing M.o Queen in Council to confirm an.l finally enact ariv colonial law or ordinance respecting copyright, nothwithstanding any repugnancy of ay such Iv or onlinance to the copyright law of this country ; . being provided by tl e proposed Act of Parliament that no such law or ordinance shal be ,,t any torce or e Uuntil so confirmed and finally enacted by the Queen in Council, but that from the c nftrm tion and final enactment thereof, the copyright law of tins country slia 1 cea.se t le o any force or ..fiect within the colony in which any such colonial aw or ordinance has been made, in so far as it may be repugnant to, or inconsistent with the operati.m of any such colonial law or ordinance. •' "I have, etc., • "Grey." \fter a lapse of more than forty years, I am charged with the duty of reminding your Lordship that the promise c.ntaincd in that despatch ot Larl (,rey has n.-ver been fuimied and respectfully to ask its fulfilment at the haiuls o your government, llie Wo time which has intervened has strengthened ten- old every one of the reasons which induced it to be miule. At the date of that despatch respon.sible government had hanlly been established in the N.n-th American colonies ; now tliase colonics have had forty years' experience of self-government, and have a united parliamen under r „. t libeLl constitution, a parliament possessing great powers and responsibilities, .n :,„.g which is expressly mentioned the subject of copyright The experience which luus been gained of colonial legislation has, I hope, not lessened the confidence of Her Majesty's government in the disposition of that parliament to deal justly with the interests which have been entrusted to its care, and to carry out the views of Her Majesty's government in matters of imperial policy as far as possible. ■■'J.ifepM^.:-'r^=i':-~'^''- 46 IMPRRIAL HUPKRViaiON Afjiin tlio itioonvonidiicPH w'lich vpro pressed on the coiinideriition of Mor Mnjesty's gov^rir.neiit 17 years tmo by tlio colonirl IcgisliituroM liiivo iiicreiiHed, iidtwithstiuidiiig th« partml measure of relief which wan aoeurded three years after Karl (Jrey's despatch, and which permitted the importation of foreifjn n^priiits of British copyiight works. Tiie price of Mritish i)ul)licalioiis still i'Xi'e(>d six- or seven fold that for which reprints are purcliiiscd in America. The system of circulating iihiaries and perio <• legislative authority sho'dd be disposed to nuike (hm provi- sion for securing and protecting the rights of British uutlioi's in such possession. In the years 184t5-r)0 Her Majesty in Council made orders in council .suspending the prohibition c,'ht works. 'I'lio licli rt'piiiit.s iiro liciil sfilcs, wliich 1 MO |)liut) iti tlie is now, tliou^li it t 1h-, piTiiiittt'd to liitiwh copyri^'ht le known tlirouijh lis j)iisK(i(l, autiior- .ctof 18-12 whicli works as to any niako duo provi- :>sseR8ion, •W Huspinidiri); the 1 foi'ei^n reprints inie provided for tlior or copyright 80 of Earl Oroy, colonies, namely, [•a..tically only be I of the colonies ! ceased in conse- 1 the operation of seriously felt and ter of a century developed. The self-(;ov3rnment, e legislative con- ies. The neces- e United States, id by the opera- been principally rices of British peated warnings le has been done cs. Even to this a reprints The antidian reading publisher, unre- my British work but to the read- t any such work py right in Great sfer of printing lish publishing ith the view of which they have I OVKR DOMINION LEOI8LATION. 47 It has boon their intcre.ut to establish such brancii liouses in the I'idtcd States be- cause ihi^y have obtaini'd thereby tlie American niai'kct, whereas in Canada, even with the permissio'i of the holder of the copyrigiit, they would ordy iiave tlie ('anadiiin ))ublic for pucha.sers, and without t.hat permission could not set the type of a singh^ P'^K"- In many other well known instanc-cs, American authors in the I'nited States have availed themselves of the restrictions which fetter the pid)lishing trade in Canada under the lni|ierial Copyright Acts in a manner which is most unjust to Hritish subjects in Canada, and presents in a striking view the arbitrary and oppressive operation of those Acts. They do so in the following manner: The Imperial Copyright Act- of 18. J as inter[)rete(l by legal d(!cisions, enables any person who I'esidcs, (^veii temporarily, in British dominions, to obtain copyright if lie |)ublislies his works in the United Kingdom and such copyright has force throughout the t!mj)iro. "Publishing" has betni held not to mean printing necessarily, and residence may be of tlio most t(!inporary character. The American aulhoi's above i'ef(>rred to, for the purjxise of j)revenl;ing their' vuks being reprinted in I'ritish dominions, cross the St. Lawrenct,', reside for a few days within Canadian tei'ritoiy, send to London a few copies of their works ready to be iss\ied there, and thereupon obtain copyr'ight throughout the empire. They tlu^n mturn to their own country, where their works have been printed and co[)yriglitcd, and send into Canada those works in the sha])!? of foreign n^prints of iiritish copyrights, and on these the Canadian government coih^cts the impost in favoui' of the Amei'ican publisher, wiio thus enjoys copyright in his (jwn country which is not open to any British subject, and enjoys in the Iiritish dominions a right of reprinting which no coljrust can obtain. While this state of the law is being consl.intly made use of by American authors, the United States decline to (>nt(!r into any international agreement with (ireat Britain and have no inteiest in making any, because their people can thus use the Hritish Em- pire for their market without restriction, while offering no advantages in their own market in return. On the contrary, they refuse copyright to any one who is not a citi- zen of the United States, or who is not able to show resi' nee, in the sense of domicile. An American publisher, if he desires to make ah\ arrangement with the Iiritish copyright holder for the right to reprint the work of the latter, can easily outbitl the Canadian publisher, not only on account of the greater facilities ho possesses for the production of the book, and not oidy on account of the more extended market which he has in the United States, but because ho will have the Canadian n"\rket of 5,000,000 of readers at his command, inasmuch as the Imperial Copyright Acts forbid the reprint- ing of copyright works, but |)ermit8 the importation of the American reprints. In many modern instances, the British copyright holder has prefeired to sell Ids right to an American publisher rather than to a Canadian, and has bound himself by the terms of sale to prosecute any Canadian who may reprint his works for sale in Canada, which is the operation which the American sets himself about at once. The instances in which Canadian puljlisher.'-: have been able to make arrangements with copyright h(jlders in Great Britain have been comparatively few. It is unnecessary to seek for the reason of this. It is not because Canadian publishers are unwilling to make fair terms with the British copyright holder, but because Ameiican publishers have greater facilities, and because British authors prefer to deal wiih publishers in the United States. It is useless to say that it may be made to their interest to deal with the Canadian publishers, or to issue colonial editions. Pressure for forty years by the people of British North America and remonstrances from the colonial offices have been unavailing to change their practice in regard to a policy .so entirely prudent as that of providing for the wants of the reading public of British North America. Having stated these facts, your Lonlship, I hope, will appreciate the urgent desire of the Canadian government that a remedy should be applied as soon as possible. If the principal supply for the reading public of Canada must, by virtue of imperial legisla- tion, come from the United States, it follows that the business of publishing for Canada is far moi'e restricted than it ought to be, considering ."^he wants of the people of that country and the means they have of supplying themselves, and it follows that encourage- ment is continually being given, in an increasing degree, to all those who are engaged in 48 IMPERIAL SUPERVISION any ot" the en.ployraents which form pari ji bookmaking to seek a home for theinsel and their families in the United States ii preference to Canada? Overweighted as continually are, i)y reason of the vast competition of the United Stat'iS in ci'ery bran of trade, industry and commerce, your Lordship will not wonder at our being dispos to complain when, in regard to so important a matter as tlio furnishing of literature our people, we are hindered by a monopoly : nominally in favour of the London pi Ushers, but really and practically in favour of the publishers of the United States, when we are held in that position by virtue of an imperial statute passed nearly hal century ago, .\ hen the wants and capabilities of the people of Jiritish Nortli Amer were greatly different from what they ai-e no'v, wiien the j.opulation of Hritis)> l\oi America was only a fraction ui what is it now, and when the powers of its people, regards self-government, had only begun to exist, while they are now fully developed. I proceed now to show that the request which 1 am urging upon your Lordship, the direction of the Canadian government, was pressed on Her Majesty's governmr immediately after the Dominion of Canada was established, has been pressed .at ma time since, and has always been met in a manner which Justifies the hope that comy and wioh our request will not now be longer delayed. On the 15th May, 1868, the Senate of Canada passed an humble address to 1 Excellency the Governor General, as follows: — IM) I "TheSevate, 15th May. 18G8. "1. To call the attention of Her Majesty's government to the provisions of Imperial Act 10 and 11 Viccoria, c. 95, by which power is given to Her Majesty approve of any Act passed by the legislature of any British possession, admitin>.' such possession foreign rej^rints of British copyright works, provided that reasonal proteciion to the antlKjrs is, in Her Majesty's opinion, thereby secured to them. " 2. To impress upon Her Majesty's governme' t the justice and expediency of tending the privileges granted by the above cited Act, so that whenever reasonable pi vis'on and protection shall, in Her Majesty's opinion, be secured to the authors, coloni reprints of British copyr'.ght works shall be piared on the same footing as foreign reprin in Canada, by which means British authors will be more effectully protected in the rights, and a material benefit will be conferred on the printing industry of tl Dominion. " Ordered that such members of the privy council as are members of this hou do wait on his Excellency the Governor General with the said address. " Atte£?t. " F. Taylor, Clerk of the Senate." ■ In June, 186S, Mr. Rose, then Canadian Minister of Finance, being in Londo was referred to by the colonial office for information on the 'ubject of this address, ai in a memorandum, dated on the 30th of that month, he stated, I riefiy, the inconvenienc which were felt in Canada, and he declared the desire of Canada to be, in acoordan with the .address of the Senate, that the Canadian publisher be permitted to repri English c -pyrights on taking out a license and paying an excise duy, effectual chec being interpo'-ed, so that the duty on the number of the copies actually issued from tl press should be paid to the C;i-.:<^ian government by such publishers for the benefit the author. A letter from the Colonial Office to the Board of Trade stated that consideratic ought to be given to the course which should be taken with regard to the recommend tion of the Senate of Canada, that colonial rejjrints of copyrighted works be placed ( the same footing as foreign reprints in the Dominio'i, and that the Dukeof Buckingha and Chandos, then Her Majesty's Principal Secr.jtary of State for the Colonie«. tvoii be glad to be informed whether the memorandum submitted was sufficient t' enab their Lordships of the Board of Trade to form an opinion on this question. On the 21st July, 1868, his Grace informed the Governor General of Canada th he was in communication with the Board of Trade with regard to the recommendatic eek a home for themselves lada 1 Overweighted as we ited Stat'is iii cv'ery branch jnder at our V)eing disposed ! furnishing of literature for ,vour of the London pub- s of the United States, and statute pasf^ed nearly half a le of Jiritish Nortli America jpulation of British iNorth the powers of its people, as r are now fully developed. ;ing upon your Loidship, by 1 Her Majesty's government d, has been pressed at many ifies the hope that conipli- an humble address to hia :nate, 15th May. 1868. t to the provisions of the r is given to Her Majesty to ish pos.session, admitin^' Jnto ^, provided that reasonable shy secured to them. ustice and expediency ot ex- lat whenever reasonable pro- pured to the authors, colonial e footing as foreign reprints eff'ectully protected in their printing industry of the ire members of this liouse aid address. 31!, Clerk of the Senate." ^'inance, being in London, ubject of this address, and (l.l rieHy,the inconveniences Canada to be, in accordance ;her be permitted to ro^print xcise duy, effectual ch'^cks ips actually issued from the illishers for the benefit of e stated that consideration legard to the recomuienda- righted works be placed on at the Duke of Buckingham tate for the Colonie«, would was sufficient t' enable this question, or General of Canada that ard to the recommendation OVER DOMINION LKOISLATION. 49 of the Senate, and would ndvi.se his Excellency of the result as soon as he was placed in possession of theii- L(jrdships' views. The reply of the Board of Trade, dated 22nd July, 1868, was that the question raised was tar too important and involved too many consiciorations of imperial policy to )'ender it possible to cimi[)ly with tli(! desirt> expres.sed by the address of the Senate that legisl ition should be ol>tain('d during the then present session of Parli.iment. It was further stated to be most desirable that the Canadian question should be considered in connection with any negotiation." with tlie United States witii I'egard to copyright. The letter contained the following peragraph, which stateJ, in substance, the disposal of the ijuestion at that time : — " My Lord.s, however, fully a(hr.it that the anomalous position of Canadiiin pub- lishers, with respect to their rivals in the Unitt^d States t)f America, is a matter wliich calls for careful inquiry ; but they feel that sucl; an inquiry cannot be satisfactorily undertaken without at the same time taking into consideration various other questions connected with the imperial iaws of copyright and the policy of the subject be treated as a whole, and that an end(;i.\or .should be made to place the general law of copyright, espr'cially that part of it which concerns the whole continent of North America, on a more satisfactorily footing." Tlie Duke of Buckingham and Chandos, on the 31st July, 1868, sent to the Governor General of Canada the following formal reply : — ■ "Your Lordsliip will preceive that any inunediate legislatian on the matter was impossible, 'out that the anomalous position of the question in North America is not denied, and that it is admitted that the law of copyright generally nuiy be a very fit subject for future consideration." On the 9tli April, 1869, the government of Canada again moved in the 'natter transmitted to the colonial office a memorandum by the ISlinister of Finance, in reply, to the communication from the Board of Trade above referred to, and on the 27th of July, 1 869, the Board of Trade made an extended reply, to which I beg to refer your Lords! ip as showing that the request which had been made from Canatia in 1868, and which is still l>eing pressed, was not controverted in its merits, but was def('i;red in the hope that presently some international arrangement might be made with the United States, and under the impression that it would ba unwise to deal with the Canadian questioi' while the probability of such an arrangement was in view. The following passage from that communication bears this out, and sets forth a summary of the con- clusions at which the Board of Trade had arrived ;— "Under these circumstances the balance of argument is, in the opinion of the Lords of Trade, against any immediate adoption of the Canadian proposal. The truth is that it is impossible to make any complete or satisfactory arrangement with Canaila unless the United States are also parties to it. Whatever protection is to be given to authors on one side of the St. Lawrence must, in order to be effectual, be extended to the otiier ; and it is con.sequently impossible to consider this question without also considering the prospects of an arrangement between Great Britain and the United States. There are symptoms of the possibility of such an aiTangement. In 1853-51 an International Copy- •ight Convention was signed between the two governm' nts, but was allowed to drop, n the last session of the United Stiitcs Congress, a bili was introduced providing for international copyright in the United States. It requii' i ; epublication and reprinting in the United States as a condition of copyright there, anc was in this respect objection- able. But the correspondence showed that there wai- ;■. considerable interest in the question, and it was evident that the Americans wei ! h eling the want of an interna- tional arrangement on the subject." Accordingly, on the 20th October, 1869, Earl Granville informed the Governor General of Canada that the matter was one of some difficulty, and that Her Majesty's government felt it necessary to obtain further information before doriding; the proposal of the Canadian government, but that, in the meantime, action mi,;ht be taken as to a portion of the imperial law which was not affec id by the difficulties surrounding the present question, namely, that while, by the [resent law, publication in the United i R 60 IMPERIAL SUPERVISION Kingdom gave copyright throughout the empire, publication in a colony could not give lights outside the limits of the colony ; and he stated that Her Majesty's government were prepared to take steps, during the next session, to amend the law in that particular. On the 20th of December, 1869, the Governor General of Canada transmitted a number of documents, one of which was an address which he had I'eceived from the typographical union of Montreal, setting out in strong terms the prejudicial cilects of the Iinpt^rial Copyrights Acts in Canada. His Excellency had promised, in reply, that he would not fad to draw the attention of the Privy Council to the point thus raised. His Excellency also transmitted, at the same time, a report from the Minister of Finance on the first communication from the Board of Trade al)ove mentioned. The minister remonstrated again«t the Canadian request being delayed for the action of the United States. He said: "In refeience to the second objection urged against the desired change in the law, the undersigned is ready to admit that Canada ought not to ask for and should not expect to receive any privileges which could reasonably be held to prejudice or postpone the satisfactory adjustment of the great (juesticm of international copyright between England and the United States. But he is unable to see how the change iii the law asked for could have any such effect, especially if it were provided that the privilege accorded to Canadian publi.shers should be provisional and temporary, to deteimine on the conclusion of any international treaty of copyright between the two countries. " Under such limitations would not the granting of the privileges asked for on behalf of Canadian publishers operate rather to bring alwut the conclusion of an inter- national copyright treaty than to postpone or prevent it? If Canadian publishers were placed on the same footing as their American rivals, the latter would be, to a veiy great extent, depiived of the pecuniary benefits resulting to them, in the absence of any inter- colonial copyright treaty, from their piracy of the works of English authors." On the general question, which I have already discussed, the minister made use of the following expressions, which I cite for the purpose of showing that they are not now advanced for the fiist time to Her Majesty's government, and that those are not newly discovered grievances. " At present the Canadian public are mainly dependent on the supply even of foreign literature for which a copyright may be obtained in England, on the reprint from the United States. " It may be urged in answer to these objections that the Canadian publisher may make arrangements with the author for permission to publish ; but as the law now stands there is no motive or inducement either for the author to concede, or the publisher to obtain this sanction; the author has already made, or can make, his arrangements with the foreign publisher, who knows that circumstances will give him a large circulation in the Canadian markets, and that even the slight propoition of duty collected will be paid by the Canadian reader, because re publication there is forbidden. " At present the foreign publisher, having a larger market of his own, and kno« ing the advantages of access to the Canadian market, can hold out greater inducements to the author than the colonial publisher, and can afford to indeuuiify the author for agreeing to forego taking out any copyright and to abstain from printing in Canada." The minister concluded his report, which had the approval of his Excellency in Council, as follows : — "Having considered the arguments advanced against the modification of the copy- right law ask'jd for in the address of the Senate, the undeisigned would recommend that the attention of the imperial authorities be once more invited to the subject, and that they be earnestly requested to accede to the application ef the Senate, upon the under- standing, if thought proper, that the change in the law, if made, should be temporary, to be determined upon the conclusion of any international copyright treaty between England and the United States. " In conclusion, the undersigned may be permitted to note the fact that during the last few months the present subject has been very largely discussed in the leading jour- >ny could not give esty's government the \ii\v in that ada transmitted a leceived fioiii the ejudicial cilectH of ised, in reply, that :)int thus misled, n the Minister of -. mentioned. The • the action of the urged against the mada ought not to reasonably be held on of international le to see how the if it were provided nal and temporary, right between the Bges asked for on elusion of an inter- an publishers were be, to a veiy great isence of any inter- uthors." lister made use of t they are not now lose are not newly ihe supply even of id, on the reprint ian publisher may the law now stands' r the publisher to arrangements with large circulation in Uected will be paid own, and kno« ing er inducements to lify the author for ting in Canada." his Excellency in cation of the copy- ild recommend that i subject, and that te, upon the under- ould be temporary, ght treaty between act that during the n the leading jour- OVEU DOMINION LEGISLATION. 51 nals of Canada as well as at public meeting,*. The public sentiment throughout the country is that the privilege asked for is fair and reasonable in itself, and that the grant- ing of it would not only promote the interests of English authors, but give an iiiTpetus to the publishing and printing trade and other cognate branches of Canadian industry, and will be calculated to increase tlie circulation in Canada of the best British works and to foster the literary tastes and develop the literary talents of the Canadian pe()i>le." At this stage the British publishing interests intervened, and pressed upon the Ijoidn of Trade, who in their turn pressed upon tht; Colonial Office, the propriety of compelling the colonies to accept the modification of the imperial copyright laws, which had just been offered to them without any demand for concession in return, and which was obviously refiuired by the commonest principles of justice, namely, the concession that publication in the colony should be e(iuivalent of publication in Great l^ritain, on con- dition only that the colonies should give up their right, accorded under the Act of 1847, to import foreign rej>rints. When so little was being conceded in answer to the repeated requests or Canada for the right to supply our people with reprints, it would have been doubtful whether the Canadian government would have expressed its acciuiescenco in a measure so com- paratively unimportant, but when that concession became coupled with a condition which would have made the Imperial Copyright Acts absolutely unbearable and unforce- able, only one reply was possible, and that reply was the one which was transmitted from Canada on the 1st of July, 1870, stating that while there could be no objection to the proposed bill, making publication in the colony e([uivalent to publication in the United Kingdom, taking into consideration the suggested repeal of the Imperial Copy- right Act of 1847, it was highly inexpedient that legislation should take place at that time. liord Kimberley requested the Governor General of Canada on the 29th July, 1870, to forward to him a full statement of the views of the Canadian government on the question, in order that it might be considered before the next session. Accordingly, on the 30th November, 1870, a joint I'eport of the Ministers of Finance and Agriculture was adopted by his Excellency in Council, the substance of which is contained in what here follows : — " What the undersigned would venture to suggest is, that the duty on the reprints of books first published either in Great Britain or its dependencies, when imoorted from foreign countries, should be materially increased ; and that it should be levied in all cases for the benefit of the author or owner of the cop 'ight, should such exist ; and that to prevent evasion of the law a declaration should b .((uii'cd from importers' that any works which they may claim to import free of such dut> have i.ever bei'n pul>lished either in Great Britain or British depe.idencies ; that foreign reprints of works published in Canada should be wholly prohibited ; that any author publishing ui Canada should be, as at present, protected in his copyright, but that unless British copytii,dit works s luld be published concurrently in Canada, licensed Canadian publishers should be allow. 1 to publish, paying, for the benefit of the author or owner of the English copyright an excise duty, which should be collected by moans of stamps as easily as other duties of a similar kind. The undersigned have no doubt that such a scheme as that which tl.-v have suggested could be carried into practical effect with great advantage to th.' English authors, who, as a rule, would sell their copyrights for Canada to Can.idian publishers. It is true that British publishers could not gain the colonial circulation which they have long tried to obtain with success , but it is vain for them to expect that the expensive editions published in England can meet a sale in any part of the American continent. " The undersigned, therefore, recommend that your Excellency should acquaim Her Majesty's Principal Secretary of State for the Colonies that their is no probability of the Dominion Parliament consenting to any measure for enforcing British copyright in Canada, unless it provide 'iov local publications ; and that while the Canadian govern- ment will be ready to introduce a men8ure that will be a great advantage to British authors they must, in reference to the foreign reprints, have regard to the interests of Canadians as well as of British publishers." 4^ R * " i njij ii if^jw ii 52 IMPERIAL SUPERVISION In 1872 the government of Caiiiidii wert; still without a detiiiite reply to the re([uest which liHtl l)een made by the address of the Senate in 1868, and which had been reserved, as above stated, by Her Majesty's government, until further information could be gathered, and until the result oi negotiations with the United States might be known. On th(3 14th May of that year, the following report of a committee of tlie Privy Council of Canmla was approvini by the Ciovei'nor General and transmitted : — • "On a memi)randum dated lUth of May, 1872, from the Honourable the Ministers of Finance and Agriculture, reporting that much anxiety has been manifested i the Houses of the Canadian r.irliauientoii the unsatisfactory state of the Imperial Copyright Act, that, as no reply has yet been received to the approved report of the Committee of the Privy Council, dated 1st December, 1870, they think it desirable that the attention of Her Majesty's government should again be called to the subject. " That they liave reason to believe tiiat a good deal of discussion has taken place in England among the parties interested in copyright, and that the result of that dis- cussion liad been a considerable accession to tlie ranks of those who are in favour of the proposition submitted by tliem in the report already referred to. That it is apparent that the class which alone has a just claim to protection, viz., authors, have at length been convinced that their interests are no'., promoted by the maintenance of the present system. " That it is no doubt true, that the principal owners of the copyright are the London publishers, but it is, they state, equally true that those publishers have never paid the authors one single pound more for their copyrights in view of circulation in Canada. " That it cannot be denied that the Cansulian demand for concurrent publicution in Canada should alone entitle the author to the benefit of copyright. That under the pre- sent .system, which is wholly indefensible, and which is objected to, as well by the Engli.sh p' oiisliers as by Canadian publishers, the latter are treated with the greatest injustice. "Tha' it has long been tlie custom for the owners of English copyrights to sell to American publishers advance sheets of their works, and when Canadian pultlishers have offered to acquire copyright in Canada by purchase, they have been told that the arrange- ments made between English and American publishers were such as to prevent negotia- tions with Canadians. " That Cinada has passed a law by which British authors can secure copyright in Canala, and has further expressed a readiness, where authors do not choose to take out copyright, to secure adequate o unpensation to them by means of an excise tax on all English copyright works for the benefit of the authors. " They, the ministers, recommend that a further appeal be made to Her Majesty's government to legislate upon the subject without further delay. " The committee concur in the foregoing repoit, and submit the same for your Excellency's approval." In the session of i/i»e Canadian Parliament of 1872, a copyright bill was passed, in substance and principle like the Act of 1889. This was reserved by the Governor General for the signification of Her Majesty's i)!8asure. In May, 1874, the pleasure of Her Majesty not having been communicated, and in view of the fact that the two years within which the royal assent might be given to it would expire on the 14th of June, 1874, addresses to his ExcdliMicy the Governor General were presented by the Senate and the House of Commons respectively, asking him to convey to Her Majesty's Princijjal Secretary of State for the Colonies the respectful ex- pression of the necessity felt by the Senaie and the House of Commons that the bill passed in the ses.sion of 1872 should not be allowed to lapse by the expiry of the two years' limitation, specified in the 57tli section of the British North America Act of 1867, and begging to assure his Excellency that important inte^-ests in the Dominion wero prejudiced by the absence of legislation such as that bill contemplated. The answer was communicated on the 15th of June, 1874, by Lord Carnarvon, stating that the Imperial Act of 1842 was still in force throughout the British dominions, in so far as to prohibit the printing of a book on whicli copyright subsisted under that Act ; and that he had been advised that it was not competent for the Parliament of M^ OVER DOMINION LEGISLATION. 68 eply to the request had been reserved, irniiitioa could be 1 might be known. ittee of the Privy litted : — able the ]\rinisters manifested i the niperial Copyright the Committee of that the attention 5n has taken place result of that dis- •e ill favour of the L'hat it is apparent rs, have at length ince of the present ^ht are the London .ve never paid the ion in Canada, ■ent publiciition in hat under the pre- vell by the English greatest injustice, py rights to Kell to in publishers have 1 that the arrange- prevent negotia- 3cure copyright in choose to take out 1 excise tax on all to Her Majesty's he same for your bill WHS passed, in by the Governor municated, and in ?ht be given to it Governor General ly, asking him to the respectful ex- ons that the bill xpiry of the two 3rica Act of 1867, e Dominion wero Lord Carnarvon, British dominions, sistcl under that the Parliament of Canada to pass such a measure as the Act of 1872, inasmuch as its provisions would be in conllict with imperial legislation, and that he had no alternative but to advise Her Majesty that her assent could not be ])ropei-ly given to the bill. Lord Carnarvon c'osed his despatch with the following paragraph, which, I r(Mpe3t- fully submit, is a renewal of the promises often made in conmiction with this subject: — " I am aware that the subject of colonial cojjyright has long been under considera- tion, and that attempts were made by Her Miije^^ty's late government, in connection ■with youiself and your ministers, to arrive at a settlement of this ditUcult and most im- portant (jiiestion. I wi 1 only now expi'ess my readiness to co-operate and my conlident hope that we may without difficulty be able to agree in the provisions of a measure which, while preserving the rights of the owners of copyriglit works in this country under the Impfrial Act, will givi! effect to the views of the Canadian govern.uent and Parliament." Pending the fulfilment of the promises thus renewed by Lord Carnarvon, the Par- liament of Canada, in 1793, passed a Inll on the subject of copyright in Canada, which was cai'efully drawn, to a\oid as far as possible conflict with imperial legislation. In order to remo\e anv doubts as to the validity of tins bill, an imperial statute was passed to authorize its being assimted to. This latter is known in CJreat Britain as the " Cana- dian Copyright Act of 1875." It authorize 1 Her Majesty to assent to the reserved bill, but forbade the importation into the United Kingdom of colonial reprints of any work which might be copyrighted in Canada, and for which copyright subsisted in the United Kingdom. It placed, practically, the production of such works in Canada on the same footing as foreign reprints. Tim Canadian Act of 187.") then nxeived the royal assent. If is unnecessary that I should refer in detail to this Act, but it may be proper to state that it seems most liberal and fair in its provisions. It permits an author at any time, having printed his book in Canada, to obtain copyright there. It pei'inits the original author's edition to be imported at all time< so that superior and revised editions may always be procured. It established interim copyi ight, .so as to protect a work while passing through the press. It provided for tcmpoi-ary cojjyright, to cover the case of works published in serial form, and it extended all the privileges of copyright in Canada to any British sul)ject, and to the subjects of any country which had a treaty on this subject with Great Britain, and thus removed one of the objections which liad l)een taken in earlier times to the effect which Canadian copyright legislation might have on nego- tiations with the United States if such legislation should peimit the reprinting of works copyrighted in the United States. It was felb that, pending the question of the Dominion being free to legi.slate on the subject of copyright generally, it was important to have a Canadian copyright system, inasnmch as since the Imperial Act of 1812, works published in the United Kiligdom had copyright in all the colonies, while for a work published in any one of the colonies it was impo.ssible to obtain copyright in the United Kingdom. Our Act, consequently, gave local copyright, protecting the work printed in Canada, and prevented the importa- tion of republications of any such work, after it should have obtained the local copy- right, as the Imperial Act prevented the importation of works which had obtained a British copyright. I now beg to refer your Lordship to the proceedings of the Copyright Commission of 1876, of which your Lordship was a very prominent member, and in which Canada was represented by the late Sir John Rose. In the poition of the report of tiiat com- mission which deals with the branch of the subject falling under the head of "Colonial Copyright" some most important stateujent and reconnnendations are made. First, at section 184, it is admitted that "It is highly desirable that the literature of this country should be placed within easy reach of the colonies, and that, with this view, the luiperial Act should bo modified so as to meet the requirements of colonial readers. " In sections 186, 187 and 188 the following passages occur, which I now beg to cite, as confirmation of the narrative which I have given in the larly part of this lettei-, of the effects which immediately followed the Imperial Act of 1842, and as showing tliat the Canadian government is now but reiterating an oft repeated statement, the truth of which has long been established and admitted : J^ tf 54 IMPEUIAL SUPEKVI8I0N " 186. These means are not available, and indeed are impracticable, owing to the great distance and scattered population in many of the colonies, and until the cheaper English I'ditions have b(!eii published the colonial readers can only obtain British copy- right books by ])urchasing them at the high publishing prices, increased as thost; prices necessai'ily are by the exfiense of carriage and other charges incidental to the importa- tion of the books from the United Kingdom. " lt<7. Complaints of the operation of the Copyright Act of 1K42 were heard soon after it was passed and from the North American provinces urgent representations were ma in favour of admitting into those provinces the chea])er United States reprints of English works. Tn 1S46 the C(jloiiial Office and the IJoard of Trade admitted the justice and force of the consideration which had been pressed upon the home government ' as tending to show the injurious edects produced upon our more distant colonists by the operation of the imperial law of copyright' and in \HA7 an Act was piissed ' to amend the law relating to the protection in the colonies of works entitled to copyright in the United Kingdort of the undersigned of the .'ird August, 1889, both as to tlie powers of the Parliament of Canada and as to the reasons why such an Act as the Copyright Act of 1889, should be adojjted and be allowed to go into operation. By permission of his Lordship the views which were then pressed upon this con- sideration were expressed in writing in a letter from the undersignetl to his Lordship, dated 14th July, 1890, and the views set forth in that letter were approved by your Excellency in Council on the 7th August last. The undersigned has had referred to him, in this connecti by Her Majesty's ministers from timi^ to time, as set forth in the letter of the uiidersignt'd, to Lord Knulsford, of the 14th July. It would, in tho opinion of tli(! undersigned, in view of the (loul)ts which have b(!cn exjiressed, be mf)St desirable that the Canadian Copyright Act of LSiSO should also be ratihed and contirined by Impt^rial legislation. As regards the objections to the Copyright Act of 1889, stated by Mr. Hodges, the undersigned concurs that gr'eat ca.r(! should l)e taken t(» make the colhn-tion of royalty cliai'ges really ellieiont. The opinion indicated in tho letter of Mr. Hodges, that tho clauses relating to such collection which are contained in the Act referred to arc not surticient, does not probably make due allowance for the fact that rt-gulafions ,ire to be made on that subject by your E.\cellency in (jouncil, sf) soon as the Act shall coiiks into force, under the powers conferred by the fourth section. In the approved rejiort of tho undersigned, dated the 3rd day of August, 1H8'J, it was statt^d that " the govei'nment of " Canada would be prepared to submit to Her Majesty's goveiinnent tho regulations *' which might be adopted under the Act for securing tlu^ collection of the loyalty and "the payment thereof to the proper parties." The undersigned is unable to agree with Mr. Hodges that the efl'ect of the Act of 1889, may be to "abolish copyright alti^gether *' unless the person entitled thereto reprints or republishes in Canada." The Act merely deals with the subject of the reprinting of copyrighted woiks, under license, aiul will not; be found, on careful perusal, the un Senate mid House of Commons of Canada praying; for Tniperi d le;;isIatioa conferi'in;,' ujMin tlie I'arliamenI of Canada power to le;,'islate in I lie interests of the people of tlio Diiiniiiioii on all iiiatl(>rs relatin;; to the suiiit^ct of copyright ; and praying that notice may be f^iven hy J ler ^^aj<)sty's govcn-nmeiit of the withdrawal of (Jaiiada from the iSeriio Copyright Convention. 1 Imve, ifec, STANLEY OF I'HKSTON. To the Qniirin^H Moxl hlrcdlent Majeaty. Most (Juaciois SovmiKKiN, — Wo, your ^lajesty's most dutiful iind loyal Huhjects, the Senate and C(»minons of ('aiuuhi in ParliaiiKMit assijinhled, huiiilily lieg leave to approach Your Majesty for the purpose of representing : 'i'hat iiy the statute of your Majesty's Pai'liament (5 it G Yict. c. 4")) the privilege of copyright was given to any person who should publish a litei'ary woi'k in the United Kingdom if he should ho a Hul)j(!ct of your Majesty or a resident of any jiart of Your Majt'sty's dominions, and the republication within the Jinipire and the imjiortation into the Empire of any copyrighted work was prohibited. The operation of the above-mentioned Act was attendisd with great inconvenicince to the people of the North American colonies and formed the subject of formal remon- strances from several of their legislatures. Those remonstrances were replied to by a circular despatch from Ea;l Grey (then your Majesty's Principal Secretary of State for the Colo:ies) directed to all the gover- norp y)t the North American cohmies. The circular was in the words following : — DowNiNn SiKKET, November, 1846. • Siii, — Her Majesty's governmpnt, having had under their consideration the lepre- sentations which liave been received from the governors of some of the British North American Pro\incos complaining of the eft'ect in those colonics of the Imperial Copy- right Law, have decided on proposing measures to Parliament in the ensuing session which, if sanctioned by the legislature, will, they hope, tend to remove the riissatisfac- tion which has been expressed on this subject, and place the literature of this country within the reach of the colonies on easier terms than it is at present. With this view, relying upon the disposition of the colonies to protect the authors of this country from the fraudulent appropriation of the fruits of labours upon which they are so often, entirely dependent, Her Majesty's governmei\t propose to leave to the local legislatures the duty and responsibility of passing such enactment as they may deem proper for securing both the rights of authors and the interests of the public. Her Majesty's government will accordingly submit to Parliament a Bill authorizing the Queen in Council to confirm and finally eniict any colonial liw or ordinance respecting copyiight, notwithstanding any repugnancy of any such law or ordinance to the copyright law of this country ; it being pio\ ided by the proposed Act of Parliament that no such law or ordinance shall be of any force or effect until so confirmed and finally enacted by the Queen in Council, but that from the confirmation and final enactment thereof the copy- right law of this country shall cease to be of any force of effect within the colony in ■which any such colonial law or ordinance has been made in so far as it may be repug- nant to, or inconsistent with, the operation of any such colonial law or ordinance. I have, &c., GREY. ma^M ;t()W 19, 1891. itli a riMiucst tJiiit it nicious Miijcsty tho rmpcri il l<';,'isliition tln' intcrcHts of tlio yri;,'lit ; and |)rayiiig luJiawal of Canada )F PIIESTON. nnd loyal subjects, iiinbly lieg loavo to c. i'>) tlie privilege work in tho United f any part of Your .lie importation into ^reat inconvenience ct of formal remon- Ti Ea;l Grey (then ed to all the gover- ds following : — )vember, 1846. • [deration the repre- tho British North he Imperial Copy- the ensuing session )ve the dissatisfac- ire of this country With this view, tiiis country from they are so often le local legislatures r deem proper for ic. Her Majesty's ;ing the Queen in specting copyright, le copyiight law of hat no such law or lly enacted by the t thereof the copy- ;hin the colony in is it may be repug- )r ordinance. '6, &C., GREY. '■.^ For balance of Despatches, Orders in Council, &c., on subject of Copyright, see Appendix A, pages 1281-1313. I, &c., on subject of OVER DOMINION LEOISLATION. 58c' Tho intention of your Majesty'.s government, as expressed in this circul/ir, has never heen carried into effect. Tlie importation from foreign countries of works oopy- riglited in the United Kingdom was permitted under certain conditions, but tlie repub- lication of such works in the colonies, even under any conditions as regards tiu' holders of copyriglit, hfi.s never Ijeen permittc', nor has the right of the legislatures of i\w provinces or of the Doininio.i of Canari/i to make enactments to regulate the law of copyright been recognized by your Majesty's government, unless sucli enactments could be shown to be consistent with and subordinate to the Act of the United Kin<'dom before mentioned. Your Miijesty's Parliament, in the year 1867, in establis!:ing the Dominion of Canada, gave to its Parliament very extensive powers of government, including the right to legisl;>te on this important subject. The Parliament of Canada has enacted several statutes regulating the law of copyright for Canada. Thesf; statutes adopted the pro- visio!»s which the interests an i welfare of the people of this country, as connected with this matter, seemed to require, and at the same time gave liberal protection to the interests of all such persons as had accjuired, or might ac(]uire, copyright in tlie United Kingdom. These statutes have always been regarded by your Alajesty's goverimient however, as requiring sanction by the Parliament of the United Kingdom, and the most recent of them— i)assed in Canada in the year 1889 — remains inoperative for want of the assent of your Majesty's government to a proclamation which will brin" it into force. The provision of the Act of 1889 just mentioned are such as are required in the interests of the people of Canada, and its provisions have not been shown to be in any way unfair as rtgards any portion of your Majesty's subjects. Tlie Act was passed unanimously by both Houses of the Parliament of Canada, and has been earnestly pressed !)y the government of Canada upor\ the favourable consideration of your Majesty's government. Wiiile your memorialists hold the view that such a statute is within the compe- tence of the Parliament of Canada, under the Britisli North America Act, they have been informed that doubts upon that subject have been raised, and they humbly submit that such doubts should be removed by statute of your Majesty's Parliament, giving effect to the Can.xdi.m Copyright Act at once, and con'tirming the right of i he Parliament of Canada, according to the promise made by your Majesty's government in 1846, to make law.i on the subject of copyriglit as may from time to time be required for the country, notwithstanding that such laws may be inconsistent with the provisions of Imperial statutes passed before adoption of tlio Britlsii North America Act of 1867. Your memorialists beg to call attention to the fact that your Majesty's Boyal Commissioners on Copyright, in the year 1876, recommended that the colonial legisla- tures should be given the right to pjiss statutes embodying principles precisely the same as those which form the basis of thtxCanadian Act of 1889 before referred to. We, therefore, humbly pray, that your ^Majesty will be gi-aciously pleased to invite such legislation in the Parliament of the United Kingdom as will remove the doubts hereinbefore referred to, and explicitly confer upon the Parliament of Canada the power to legislate in the interests of the people of the Dominion on all matters relating to the subject of copyright, without regard to the statutes which may have been in force when the Parliament of Canada was established. We further pray that, in order to give effect to the Act of the Parliament of Canada of 1889 aforesaid, notice may be given by your Majesty's government of ohe with- drawal of Canada from the Berne Copyright Convention. The Senate, Wednesday, 30th September, 1891. House op Commons, Tuesday, 29th September, 1891. JOHN ROSS, Hpeaker of the Senate P. WHITE, Speaker of the Commons. {For balance of Despatches, Orders in Council, ike, on subject of Covyriyht see Apjjendix.) 58d IMPEHIAL 8UPEKVISI0N 1 39 Victoria (187G). Meuciiants' Shipping Act (Imperial). Todd, in liis work on Parliamentary Government in the Britinh Colonies (2nd edition, 1894, at pp. 183 and 184) says :— "The Imperial Mercliant S' ppiiig Act of 1876 contains certain general provisions app)'. able to vessels trading wiui Canada. But the 44th section of this Act declares that the regulations in respect to deck cargoes shall not apply to ships engaged in the coasting trade of any British possession, and that no part of the Act shall apply to any vessel trading exclusively in colonial inland waters. In 1878, however, a bill was passed through the Dominion Parliament to repeal, as respects all ships while in the watei-s of Canada, from and after the time which may be fixed for that purpose by a proclamation issued by Her Majesty in Council, the 23rd section of the said statute, which regulates the space occupied by deck cargoes which shall be liable for tonnage dues. This Act was not allowed by Her Majesty's government, inasmuch as it claimed to legislate, not merely for Canadian sliipping, and for the vessels epecially exempted by the 44th section above mentioned, from the operation of the Imperial Act, likewise for 'all shits while in Canadian waters. Such a provision was obviously in excess of the powers of the Canadian Parliament, tn making known to the Canadian government their dis approval of this Act, the Imperial Board of Triule suggested that another Act might be passed on the subject, but limited in iis operations to ships over which the Dominion government could exercise control." (Private information received from the Depart- ment of Marine and Fisheries, March, 1879.) " In 1879 the Canadian Parliament passed another Act (42 Vic, chap. 24) re- specting the tonnage of ships, which was expressly limited to vessels amenable to Can- adian law. (See also 43 Vic, chap. 20, .sec. 13.) Upon the same principle the Colonial Secretary, in a despatch to the Governor of New Zealand, dated 3rd May, 1878, whilst admitting that, so fir as relates to communication .with the shore and with the shipping in colonial waters. Her Majesty's ships should be subject to local quarantine regulations in the same manner as )nerchant ships, yet desired that instructions might be issued by the government of the colony to forbid the local authorities in any way to interfere with the internal management of Her Majesty's ships, or with their freedom to proceed to sea whenever the officer in command may deem such course requisite." (New Zealand Parliamentary Papers, 1878. App. A. 2, p. 19.) 49 Victoria (1886). An Act further to amend the Act REdPECTiNo Fishing by foreign vessels. Reserved for Her Majesty's pleasure 2nd June, 1886. Royal Assent given 26th November, 1886. Proclamation dated 24th December, 1886. Colonies (2nd ;eneral provisions this Act declares ps (>ngage(l in the ihall apply to any •, a bill was passed e in the waters of ly a proclamation, e, which regulates e dues. This Act >d to legislate, not )y the 44th section 36 for 'all ships ss of the powers of ^ernnient their dis ither Act might be liich the Dominion from the Depart- ic, chap. 24) re- , amenable to Can- iuciple the Colonial Mav, 1878, whilst . with the shipping •antine regulations anight be issued by liy way to interfere Freedom to proceed (New Zealand For balance of Despatches, Orders in Council, &c., respecting inperial Supervision over Dominion Legislation, see Appendix B, pages 1314-1323. ^EIGN VESSELS. I Assent given 26th t ■^. i ~' ia0 ' i j» 'iB the union of the provinces, the governor of each province cither assented to, or withheld Her Majesty's assent to, or reserved for Her Majesty's assent, such bills passed by the legislature as he thought proper, and he was specially enjoined by the royal instructions to reserve certain classes of bills therein specified. The same pnustice is continued by the Union Act with respect to the legislation of the Parliament of Canada. The Act provides that the lieutenant governor of each province may reserve bills for the consideration of the Governor General, but there is no provision by which the latter is to take Her Majesty's pleasure on such legislation. The royal instructions are also silent on this point. In the absence of instructions, I presume that I should exercise the power of assent to, or reservation of, bills, under the advice of the Privy Council of this Dominion. Now, although the powers of the provincial legislatures are considerably more limited, than those possessed by the same legislatures before the union, yet they have jurisdiction in many cases to which the royal instructions would seem to apply : I mean that a provincial legislature may pass a bill under the present constitution which, if it were passed by the Parliament of the Dominion, would have to be reserved under my instructions. If the 7th paragraph of the instructions be examined, it will be seen that it is quite competent for a local legislature to pass bills coming within the 2nd, 5th, 6th, 7th and 8th clauses therein mentioned. Again, doubts have already arisen as to the respective jurisdictions of the local and general legislatures. The local legislatures are naturally inclined to legislate on the same subjects of public interest, and to the same extent as they did before the union ; and, in case of doubt, to give themselves the benefit of the doubt, and construe their powers in the larger sense. ^^ cts which he may egislation of tlie inions. • when! objrction- r as cliisliiiig with govoniKieiit with be disaiiowoci, if !nt hiiH an oppor- looal legisiatureu CDONALI). ■omcH. March, 1869. remarks wliich a tly derived cohmr ajipreheiisioii and the prevention of 1 province either Majesty's assent, specially enjoined cificd. The same of the Parliament may reserve bills sion by which the royal instructions ime that I sliould vice of the Privy onsiderably more in, yet they have to apply : I mean titution which, if 3served under my be seen that it is he 2nd, 5th, 6th, y arisen as to the same subjects of ; and, in case of eir powers in the HESPKOTINa UIHALLOWANOE OF PROVINCIAL JT8. es r am informed, however, that on tlie whole, tlie local legislation has he«Mi satis- factory, and I think there will Imi little y H(!r Majesty's ( ioveiiunent, and steadily adhered to. At present, uomtate reynl, of tlin Domiruon, and wliih; it has no associations, poli tical or historical, no buttresses of prestig*; and tradition, a dirticulty is likely to be more felt, and more serious than probably it will lie in after times. As yet, the tendency of pul)lic men must naturally be to look, ns lieretoforc, rather to .sectional than to general intere.sts. By degrees, no doubt, this provincialism will wear away ; but, in the meantime, and under tlie circumstances, questions of moment having already ari.sen, it would, I submit be desirable, in a public point of view, as well as .satisfactory to myself, to have some specific instructions in my capacity, as an imperial otticer, as to my course : 1st. When an Act of a provincial legislature relates to any of the classes of sub- jects mentioned in the 7th paragraph of tlio royal instiuctions. 2nd. When it is, in my opinion, unconstitutional, or in excess of tlie power of the local body. 1 would beg leave to suggest that until the legislation of several years of the general and local bodies has practically settled their respective jurisdictions, it would be well for me to transuiit afinually t(» the Colonial Office the sessional volumes of statutes passed by each of theuj, with a report from the Minister of Justice, and such remarks as may occur to myself to be deserving your attention. It is worthy of consideration whether it would not be expedient to establish a tribunal with powers analogous to tho.se of the Supreme Court of the United States, for the decision of all questions of constitutional law and conflict of juri.sdiction. The British North America Act (sec. 101) emj)ower8 the Parliament of Canada to establish a (Jeneral Court of Appeal ; but I am advised that imperial legislation will be required to enable the Dominion Parliament to establish a court with oiiginal juris- diction over such subjects. The organization of a Court of Appeal is, I am told, likely to engage the attention of the Parliament here, at the coming session, and that then the whole subject of the best means of determining these respective juri.sdictions, and of settling constitutional questions geneially, will probably be discussed in all its bearings. I propose, in such case, to address you again on the subject. I have, &c., JOHN YOUNG}. Earl Granville to Sir John Young. Downing Street, 8th May, 1869. Sir, — I have the honour to acknowledge the receipt of your despatch. No. 2.3, of the 11th ultimo, asking for instructions as to the course which you should pursue with regard to any Act of the pro\ incial legislatures, which might relate to any of the classes of subjects mentioned in the seventh paragraph of the royal instructions, or which might, in your opinion, be unconstitutional, oi' in excess of the power of the local body. The prohibitions in the seventh paragraph of royal instructions, with one qualifi- cation, rest on grounds of imperial policy, and therefore the (lovernor General of the Dominion is not at liberty, even on the advice of his ministers, to sanction or a.ssent to any provincial law in violation of them. He would indeed be bound to instruct the Lieutenant-Governor of the province not to give such assent. The qualification to which I have above referred is this, that, while the Governor General is not at liberty to sanction the passing of a law making any donations or gratuity to himself, it would be for his ministers to consider whether they should advise him to consent to a donation by the province to the Lieutenant-Governor, and he would be at liberty to follow that advice. R C4 POWERS OF DOMINION OOVRRNMENT RKHPKCTINO DiaAhLOWANCR OK PHOVINCIAL ACTS. With regard to the second pftint : If the Governor (ioneni! wore advised l>y his ministry to disallow any provincial Act as illegal or unconstitutional, it would, in general, be his tluty to follow that advice, whether or not he concurred in their opinion. If h? v,ere advised hy his ministry to sanction any Act which appeared to him illegal^ it wouhl be his duty to withhold his sanction and refer the question to tlie Secretary of State for instructions. The same course might be taken if the Act recommended for his sanction by his ministers appeared gravely unconstitutional ; but it is impossible to relieve the (Jovemor (ioneral from the duty of judging, with respect to each particular case, whether the objection to an Act, not of doubtful legality, is sufticiently grave as, under all circum- stances, to warrant a refusal to act at once on the advicis tendered him. With regard to your remark, that it is worthy of consideration whether it would not be expedient to establish a tribunal for the decision of all questions of constitu- tional law and conflict of jurisdiction, I see no reason for the establishment of such a tribunal. Any question of this kind could be entertained and decide! by the local courts, subject to any appeal to the Judicial Committee of the Privy Council, and it dcms not appear in what respect this mode of det;ermination is likely to ba inadeciuate or unsatisfactory. I have, &c., r.RANVTLLE. [•ROVINCIAL ACTS. rMfi advised l>y lii.s oiuil, it would, ill mI in tlifMi- opinion, od to liini ill»'ji;al, to tlie Hecreta?"}' of s sanction by his liovo the (iovernor case, whetliei' the under all circuni- n. whether it would (stions of constitu- lishment of 8uch a ieidc.1 by the local Council, and it to ba inadeijuate lANVTLLE. MINISTEHfAL Ul-ISPONSTBILITY IN CONNKCTTON WITH DISAhLOVV- ANCK OF PROVINCIAL ACTS, Correspondence, Ucports of the Minister of Justice, and Orders in Council, upou the general question of Ministerial Kesponsibilily in connection with the disallowance of Acts of the Provincial Legislatures. T/ie Govermn- (Jenrral to the Earl of Carnarvon. Ottawa, 11th March, ISTf). My Lord, — T have the honour to inclose for your Lordship's infortnation, an vr I „. i^7r extract from the Votrs and Proceedings of the House of Commons of March, 10, IS/.'^i. ii „ m • • e l- i -n .■ i • i • the Uominion, from which you will see that an address has been voted to Her Most Cracious Majesty on the subject of the HcIkk)! Act recently passed by the legislature of the province of New Brunswick. I have, (fee. DUFFERIN. Resolution of Nfw Bmnaivick Legislature. House op Assemiily, Fredkricton, Saturday, 4th March, 1874. Whereas petitions, numerously signed, have been presented to this House, during the last and the present sessions of the legislature, praying that such amendment may be made in the Common School Act, 1871, as will secure to Her Majesty's Roman Catholic subjects of this province, schools generally known as "separate schools"; And whereas, this House continues to hold the opinion that any system of educa- tion, under the control and supervision of the State, should grant to all the people of the province, similar nnd equal rights in respect of education, without distinction of class or creed ; And whereas, by the provisions of the British North America Act, 1867, if a system of separate schools is established, it shall for ever thereafter bo beyond the power of the legislature to interfere with or repeal the Acts creating such a system ; And whereius, certain exclusive rights, pf)wers and jurisdictions have been vested in the legislature af this province, guariinteed to it by the terms and provisions of the " British North America Act, 1867," the enjoyment of which is essential to the welfare of this province, and the harmonious working of the constitution : Resolved, That after careful consideration of the said petitions, and whilst affirm- ing that various important changes may advantageously be made, from time to time, in the Acts relating to education, whereby the burdens imposed by the said Acts may be J 66 MINIHTBUIAt, flK«l'0\Hinil,IT7 IN ('ONNKCTION lit{li>.ntuHi or iiiiui(* to full morn (><|iiiUil)ly, thiH llotiso In of opinion tlmt no chanKO^ ■» tli(< siiid Ay M|i)'i-iiil riglitn hikI priviUt^i's in rcspfot of (loiiiiniinntiorial education slinuUi Ixi ^rnintt'd to luiy t-liiHs of pi'i'soMs in lliis province ; iind, furtlici' ; {{^.solved, That in tlic o|iinion of iIiIm Mouse no Acts should lie done or pitssed wherehy the jurisdiction and powern of the le;,'iRlature, r«slaltliHhed l)y ti;e liritish North Anieiica Act, 18(57, shall he impaired or f the p of this province, previ(»usly expressed at the pulls ; aixl therefore^ ; Iti^solved, That this IIous(^ reyrets it cannot ci)ni|ily with the piiiyer of the said }ietitions ; and, further, Hesolved, Thai- this House nmst respectfully, hut (irmly, main- tains and submits that no Acts should he done or jiasstnl at any timt* liy tJie Parliament ctf the United Kingilom of (Jieat Hritain and Ireland, or by the Parliament of the l>ominion of (Canada, to impair, curtail, alter or withdraw the said rights, powers and jurisdiction or any of theni, without the rerpiisition or consent of this legislat.ure for that purpose first maile or olitained, and signitie address. I have, ikc, DUFFKllTN. Address of IJouse of Commons to Her Majen/y. To THK Queen's Most Excellbnt Ma.iesty : Most Gracious Sovereign : We, your Majesty's most dutiful and loyal suhjects, the Commons of the Dominion of Canada, in Parliament assembled, humbly approach your Majt^sty for the purpo.se of representing : That in the opinion of this House, legislation by the Parliament of the I'nited Kingdom encroacliing on any powers reserved to any one of the provinces by "The British North America Act, 1H67," would be an infraction of the provincial constitu- tions ; and that it would be ine.xpedient and fraught with danger to the autonomy of each of the provinces, for this House to invite such legislation. That on the 29th day of May, 1872, the House of ('omnions adopted the following resolution : — " This House regrets that the School Act recently pa,s.sed in New Brunswick is un.satisfactory to a portion of the inhabitants of that province, and hopes that it may be so modified during the next session of the legislature of New Brunswick, as to re- move any just ground of di.scontent that now exists." That this flouse regrets that the hope expre.ssed in the said resolution has not l)een realized. That we most humbly pray that your Majesty will be graciously pleaded to u.se the influence of your Majesty with the Legislature of New Brunswick to procure such a moditication of the said Act as shall remove such grounds of discontent. u ^w?^ that no cliiini^its in /il(»g«s in i'('H|Mict of )ns ill tliis provinco ; (1 il(! flollfl or |)IU<.SiMl islu'd Uy tiif! Mritish Ihn Haiictioii of the ri'furc, ; priiyor of tlio naid ily, l)iit (irmly, inaiii- II* Ity the I'arliaint'nt iH I'ailiamfnt of the 1 rij^hts, jiowfirH and P (his If'^iHlatui'f for III thn legislature of HIJHH, Clerk. th April, lS7r.. I til March, 1875, in- votf'd liy the Flonse >y the l('<,'is]atiire of ismit the address to DlJFFr-'JUN. " "" ■ ". ' «i r. i ip nini.' i ^ ona of the Dominion y for the purpose of ment of the United provinces hy " The provincial constitu- to the autonomy of dopted the following 1 New Brunswick is d hopes that it may Brunswick, as to re- olution has not been ly pleased to use the : to procure such a tent. WITH lUHAI.LOWANrK UV I'ltUVINCIAI. ACTH. 67 Ori/tii'-il, Thai, the said address he engrosBod. On motion of Mr. Cauclmn, an Address was voted t,o Mis lOxcellincy the (Jovernor (lenoral, prayinj^ him to traimmit the forefroin;^ address of this liniise to Ifer MajeHty, in siK^h a way as his K.xcellency may deem 111', in ord(;r that the sami^ may lie lii.id at the foot of the Throne. /i III/, 'I'liat the sai, of the 1,'itli of April, comniunicating to me an Address voted hy the House of Oomnions of ('aiiada to the (.^ueen, on the subject of the Ni-w FJrunswick Hchools Act of 1871, and I have thought it convenient to defer my reply to it until ynur return to Canada. 'I'ho addi-e.ss was laid at the foot of the Throne, and the (Ju(!en was jilea.sod to re- ceive it very graciously, but I was not able to advise Her Majesty to take any action respecting it. 2. I concur with the representation of the address, that legislation by the Imperial Parliament, curtailing the powers vested in a province by the British North America Act, 1807, would bo an undue interference with the provincial constitutions, and witli the terms on which the provinces consented to liecoint; iiKunbersof the Dominion. And holding, as I do, this opinion, while I cannot but feel that if I wore to recommend the t^ueen to intervene directly in this matter, by advising that legislature to legislate in any parti record its protest against, ana dissent from, the said instructioi and to declare its determination to hold His Excellency's ministers responsible for h action in the exercise of the power so conferred by the said statute." An opportunity of brinj,'ing the subject before the Hou.ie did not occur unt Wednesday, 31»t March, when Mr. Blake moved the adoption of the resolution of whic he had given notice ; but after a debate, in the course of which Mr. Mackenzie and Si J. A. Macdonald expressed their as.sent to the con8tit'-;,I^;nal doctrines laid down by M Blake, that gent^eiman withdrew his motion. I have the honour to in.olose a copy of th^i parliamentary report of the debate tha took place on that occasion. I have, &c., DUFFERIN. ^^ -i The Governor General to ihe Earl of Carnarvon. •jrovEnNMKNT HousE, OTTAWA, 8tL .'Vpril, 1875. Mv Loud, — I have the honour, at the request of my I'rivy Council, to transmit t your Lordship a copy of a reoort. made to me by a committee of that body, on th question of ministerial responsibility in connec';ion with the disallowance by th Governor General, of Acts passed Ly the legislatures of the several provinces of th confederation. I hf^ve, e did not occur until moi the resolution of which lich Mr. Mackenzie and Sir doctrines laid down by Mr. y report of the debate that DUFFERIN. narvon. lAWA, 8tl. .'Vpril, 1875. vy (Jouncil, to transmit to nifcti^e of that body, on the the disallowance by the several provinces of the DUFFERIN. Coimcil, apjM'oved by Ilia 8th March, 1875. t-hc question of ministerial ed by the local legislatuiep IK, in despatch dated 30th Acts passed by the New that province, makes the WITH DISALLOWANCE OF PROVINCIAL ACTS. 69 •' 1. That these Acts of the New Brunswick legislature are, like the Acts of 1871, within the powers of that legislature. " 2. That the Caiiar'^-^ ^ House of Commons cannot constitutionally interfere with their operation by passing a reH<)lution, such as that of the 14th May last. If such a resolution were allowed to 1 ave ett'ect, it would amount to a virtual repeal of the section of the British North Amer ca Act, 1867, which gives the exclusive right of legisjp.tion in these matters to the prov ncial legislature. " 3. That this is a matter in which you must act on your own individual discre- tion, and on which you cannot bo guided by the advice of your responsible ministers of the Dominion." Section 90 of tiie British North America Act, 1807, reads as follows : — " The following provisions of this Act respecting the Parliament of Canada, namely : the provisions relating to appropriation and tax bills, the recommendation of money votes, the assent to bills, the disallowance of Acts, and the signification of pleasure on bills reserved, — shall extend and apply to the legislatures of the several provinces as if those provisions were here re-enacted and made applicable in terms to the respective })rovinces and the legislatures thereof, with the substitution of the Lieutenant- Governor of the province for tlie (jlovernor Geni i ~}. of the Governor General for tlie Queen and for a Secretary of State, of one year for twj years, and of the province for Canada. The power of disallowance is here clearly vested in the Governor (Jeneral, in the same manner as the power of assent or disallowance is vested in Her Majesty by sec- tions 56 and r)7, that is, in tlie Queen in Council. The commitcee, therefore, humbly submit that the passage above quoted would, if acted upon, destroy all ministerial responsibility and impose on the Governor General a responsibility not intended by the statute, and at variance with the constitution. It would also be impracticable in operation, as some practical legal authority must examine the statutes passed by the local legislatures, to enable the Governor General to arrive at an intelligent decision. If this could be done by importing the services of any one outside the Privy Council, it would establish a subsidiary body, not contem- plated by the constitution. If done by the minister or ministers, then the ministerial ' responsibility at once attaches. That this view is taken by Her Majesty's Privy Council, the following letter written by Mr. Reeve, clerk of the Council, and dated 13th December, 1872, clearly shows : — " Mr. Reeve to Mr. Holland. "Privy Council Office, 13th December, 1872. " Sir, — T have submitted to the Lord President <^f the Council your letter of the 9th instant, transmitting a copy of a despatch from the Governor General of Canada, with inclosures, respecting ai Act passed by the Provincial Legislature of New Brun.'-wick with reference to toiiimoi schools, and requesting to know whether the opinion of the Lords of the Judic'ai Committee of the Privy Council on thi« cjuestion can properly be obtained. " It appearii to his Lordship that, as the power of confirming or disallowing provin- cial Acts is vested by the statute in the Governor (leneral of the Dominion of Canada, acting under the idvice of his constitutional advisers, there is nothing in this case which gives to Her Majesty in Coun^'il any jurisdiction over this question, tiiough it is con- ceivable that the effect and validity of this Act may, at some future time, be brought before Her Majesty, on an appeal from the Canadian courts of justice. " This being the fact, his Lordship is of opinion that Her Majesty cannot with pro- priety be advised i-o refer to a committ<^e of the Council in England, a questi(m which Her Majesty in Counci' has at present no authority to determine, and on which the opinion of the Privy Council would not be binding on the parties in the Dominion of Canada. " I have, tfec, " Henry Reevk, " ReyiMrar Privy Council." 70 MINISTERIAL UEaPONSIBILITY I\ CONNECTION The committee advise that a copy of this minute be transmitted by your Excel- lency for the consideration of Her Majesty's Government. W. A. HIMSWORTH, Clerk Privy Council. Heport of the Honourable the Minister of Justice, approved hy His Excellency the Governor General in Council on the 29th February, 1876. Department of Justice, Ottawa, 22nd December, 1875. Tlie undersigned, to whom has been referred the despatch of the 5th November, 1875, from the Earl of Carnarvon to his Excellency, upon the Minute of Council of the 8th March, 1875, on the question of ministerial responsibility in connection with the disallowiinct )f provincial Acts, b,igs to report as follows : — The minute was evoked by a despatch from Earl Kimberley, dated 30th June, 187.), m which His Lordship, upon the advice of the 1-" .^r officers of the Crown in Eng- land, instructed His Excellency that the question whether a provincial Act should be disallowed, was a matter in which His Excellency should act on his own individual discretion, and in which he could not be guided by the advice of his responsible mini.sters. In order to have a clear understanding of the question raised, a brief preliminary bcateraeut is requisite. The powers of provincial legislatures are, by their constitution, limited to certain subjects of a domestic character, so tli.it their legislation can affect only provincial, and at li f>8t Canadian interests. Provincial A limited to certain inly provincial, and the ciiinpetence of ow " them, nor can t to their operation 1 the competence of disallov/ed. in his opinioii tLe rovin.-"ial legislatioa ver of disallowance that the considera- light, at first sight, >ed on the subject, ing the following the Imperial Gov- been conferred by Majesty's Govern- ^f colonies having the cases specially rial, and :; "*^ merely uent will be called vincial Acts, much respect to colonial Id be disallowed or )cts the interests of whether it exceeds the jurisdiction conferred on local legislatures, and, in cases where the jurisdic- tion is concurrent, whether it clashes with the legislation of the general Parliament." Without discussing how far this memorandum accurately states the circumstances under which the power of disallowance may be exercised, and referring only to the cases to which Lord Carnarvon more especially alludes, it will be found that in their disposition numerous grave and difficult questions may arise. There may be a provin- cial jurisdiction for a particular purpose, exercised in fact, though not in form, for the accomplishment of another purpose exclusively within Canadian jurisdiction. It is very often doubtful whether an Act is within or beyond th& competence of the local legislature. Frequently, local Acts are mainly valid, but yet contain some provision beyond the competence of the legislature. In the character of the enactments beyond the competence of the legislature there is a vast difference, since, though all such provisions are alike void, yet some Acts might be left to their operation without inconvenience, while to take the same course as to others might produce serious embarrassment and confusion. It is, in each par- ticular case, a question to be decided whether the Act, through containing some void provisions, should be disallowed or left to its operation, and in practice a considerable number of such Acts are so left. It thu:: appears that whatever be the range of the power of disallowance, and Jie principles on which it should be exercised, it must often be very difficult to decide whether, on the whole, any particular Act should be disallowed or left to its operation. Ti/" question at issue is by whom, and under what responsibilities, the power of disallowance is to be exercised. The power of disallowance of Canadian statutes is, by sec. 56 of the " British North America Act, 1867," vested in the Queen in Council. By sec. 90 of the same Act this provision is extended and applied to each province as if it were re-enacted, and is so made applicable in terms thereto, with the substitu- tion, among other things, of the Governor General for the Queen. The result is, that the express of words of the Act, the power of disallowance of provincial statutes is vested in the Governor General in Council — a phrase which, under the 13th section of the Act, means " the Governor General, acting by and with the advice of the Queen's Privy Council for Canada." If the British North America Act had not contained these express provisions it would seem that, upon the plain principles of the constitution, the result would have been the same. Supposing that the Act had vested the power of disallowance of Canadian statutes in Her Majesty, not according tm difficulty, and as I observed in my despatch of the 5th of November, 187-5, could, if any practical necessity for an authoritive decision of it should arise, I apprehend, only be finally decided Vjy an appeal to the Judicial Committee of the Privy Council, from a colonial judgment oi the con- struction of the British North America Act. As, however, no such necessity exists, or, at all ev«nts, is argent at the present motnent., T think there may be advantage in my inviting your ministers to consider a \ iew of the question to which my attention has 74 MINISTKRIAI, EESPONSimUTY IN CONNECTION been directed — it being understrwd that I am not now pressing this view in opposition to that of your government. 3. It has been suggested that the hmguage of that Act, which was very carefully chosen, for the purpose of preventing doubts on constitutional points, does not sustain the opinion that the power and responsibility of the Dominion Government are as com- plete with respect to the specially reserved subjects of provincial legislation, as to other (juestions. 4. In sections 10 and l.T the distinction between "the Governor General" and " the Governor General in Council " is carefully drawn, and this distinction is closely observed throughout the Act. It may, therefore, be urged, that if " the Governor General in Council " had been intended in section 90, that expression would have been used, especially a.s the object of the section was to declai'e in what manner the powers, which, after much negotiation, had been reserved to the provincial legislatures, were to be exercised. 5. It is further suggested that if the Dominion legislature, or those members of it who, for the time being, are selected as the advisers of the Governor (xeneral, could be said to have the power of controlling tne enactment, or operation, of Provincial Acts, the consequence would be a virtual repeal of the section of the " British North America Act, 1867," whicli gives the exclusive right of legislation in certain matters to the provincial legislatures. G. I regret that the records of this department do not show (and I do not suffi- ciently trust my own recollection on the subject) what was the precise intention of the provision requiring that the (lovernor Genera] should assent to or disallow provincial Acts. But it would seem not improbable that the intention may have beeii to entrust this function to an authority in Canada, not directly represencing tliat majority of the Dominion Parliament from whose jurisdiction these particular questions had been accepted, I should be glati to have the opinion of your ministers on this point. 7. Even, if, however, there were nothing to be said in answer to the general proposition of the able and careful memorandum prepared by your Minister of Justice, I should still l>e inclined to doubt M-bether, practically, the logical consequences should or would be so closely adhered to as to involve the resignation of ministers — at all events, in the large class of cases to which he has referred, as not raising serious questions, I have, «fec., CARNARVON. Report of the Honourable thv Minister of Jiimtice, approved hy His Excellen''y the Governor ixunernl in Council on the 19th Septeniher, 1876. Dbpahtment of Justice, Ottawa, 6th September, 1876. Upon the despatch of the Earl of Carnarvon to his Excellency, of 1st June, 1876, in reply to that of his Excellency, of the 6i;h April, upon the question of Ministerial responsibility in connection with the disallowance of provincial Acts referreii to the undersigned, he begs to report as follows ; — It appears difficult to see hosv die question could be brought by appeal to the Judicial Committee of the Privy Council from a colonial judgment on the construction of the Act, unless some pn>vinciai Act were attemptetl to be disallowed by the Governor acting independently and not through the agency of ministers, in w^hich case it is pos- sible th«t the issuH might arise between individuals, as to, to whether the Act was in effect disallowed. This statf-ment of th« nrtily process by which a judgment of a colonial ctnrt appeal- able to the J udicial Committee could be obtainei' , i1 .f1 WW W »— M mB WITH DI8ALL0WANCK OK PROVINCIAL ACTS. of State for the ot possibly have I people for the lood that he will ly and correctly pf the suggested lie of responsible responsibility of juntability, they KE, }' of Justice. ober, 1876. Deputy Gover- ! Privy Council, ints which were lestion of Minis- its. 6 Canadian Par- I Dominion, any ition would be ; responsible to of the power of ieulty in modify- icting the inter- of the " British ernor General " itinct from one id, however, to thorities in this hich I have ex- epared to insist lished his argu- te acts contrary i much advice, this, I would I been unaided, eard them, the ' the case, and able for him to mding that he is view of the das now laying ! that I incline hat no unyield- jonclusion (and 3es me to differ from hun, even m a limited degree, with much reluctance), there can l)e no doubt that tlie attention which the whole question has received, has been of much value and I am glad to be able te agree with Mr. Blake that the experience of the last ten years does not indicate the probability of any grave ditHculty occurring. I have, itc, CARNARVON. Jieport of the Honourable the Minister of Justice, approved by Ills Excellency the Governor General in Council, on the 21st A'ovember, 1876. Department or Justice, Ottawa, 16th November, 1876. Upon the despatch of the Earl of Carnarvon of 31st October, 1876, rpferrin<' to the memorandum of the undersigned, of 6th September, upon the subject of the dis- allowance of provincial Acts, the undersigned begs to report as follows :— Lord Carnarvon, referring to the argument that it is impossible for the governor to act against the advice of his ministers on his own unaided judgment, observes that in the case suggested, the governor's judgment would not, in fact, have been unaided ; that having recourse to the advice of his ministers, and having fully heard them, he would be thoroughly instructed as to the merits of the case, and would then be com- petent to judge of the course which it would be advisable for him to take, and that he would be acting under the advice of his ministers, notwithstanding that he might not feel himself able to act according to that advice. The undersigned ventures to suggest that it can hardly be assumed that the gov- ernor is aided by his ministers' advice in coming to a conclusion adverse to that advice; It seems to him that in the case put the governor is acting rather against than under the a,dvice of his ministers, and that his judgment may, without impropriety be called unaided, since his conclusion is based, not on his ministers' views, which he overrules, but on opposite views evolved by himself alone. The undersigned, who is very sensible of the kindness of Lord Carnarvon's lan- guage, has thought it due to his Lordship to make this statement of the sense in which the phrase was used. It still appears to him that, even apart from the constitutional question, the practical difficulty is insuperable; but his main position throughout has been that under the lett<>r and spirit of the constitution, ministers must be responsible for the governor's action— a position obviously untouched by the criticism to which he has referred. While the undersigned is unable to alter his conclusions, he does not think he can usefully add to, or reiterate, his arguments ; nor, indeed, does he understand Lord Car- narvon to intend a prolongation of the correspondence. He regrets that the discussion has not resulted in an agreement, but he ventures to hope that it has, at any rate, decreased the probability of future difficulty on a question of very grave importance. EDWARD BLAKE, Minister of Jtistice. Copy of a Report of the Committee of the Honourable the Privy Council, apjwoved by Bis Excellency the Governor in Council on the 29th November, 1882. The Committee in Council deem it their duty to call the attention of Your Excel- lency to the fact that in several provinces, bills passed by the legislature have been reserved for the Governor General's assent by their Lieutenant Governors on the advice of their ministers. This practice is at variance with those principles of constitutional government which obtain iu England, and should be carried out in Canada and its provinces. (^3^,ifci'..r,ffm tnrrs as it monv of the province and as legislation relating to the regulation of trade and comme ce 1^ expressly committed to the Parliament of the Dominion bv the Union Act '°""^'"'" ^^ U. r. ^'''^ "'^^^^''^'g'led. howev- r, would have recommended"that the Act sh.mld be left to ts operation, were it not for the 2L'nd and 23rd clauses, the first of which s an express provision affecting the regulations of trade and commerce ; and the second «2e'ns the leg";;;!'^"' ''^^' "' "''^' ^""^^^'^^ ^^^^ ^^'^^-^'y ^eyoU the ^oZs TZ\Z ol Vic cap. 5._That the Gth clause of cap. 5 is objectionable, inasmuch as it declares certain counterfeiting or imitation of stamps or stamped papS- for te purpose of that Act to be perjury, which is legislation respecting the Criminal Law ^ ^ fn H. 1 ""^''.''^'^'^f' ^ .■ecommends that the attention of the local government be called S/o? t:^^:^Z^-'-^ ''-- -y '^ -^^^-1 d-^".^ the coming S All which is respectfully submitted. JOHN A. MACDONALD. m w i- 82 ONTARIO LEGISLATION ONTARIO, 32-33 VICTORIA, 1868-69. 2nd Session — 1st Parliament. On a report from the Honourable the Minister of Justice, dated 19th February, 1869, approved by his Excellency the Governor General in Council on the 22nd February, 1869 the following Acts passed in the session above mentioned, being considered as free from objection, were allowed to go into operation, viz. : — Chapters 2, 4, 5, 7 to 20, 24, 25, 27 to 29, 31, 35, 37, 38, 40, 41, 43, 44, 46, 47^ 49 to 55, 57, 59, 60, 63 to 65, 67 to 69, 71 to 74, 76 to 79, 81 to 85. Report of the Honourable the Minister of Justice, approved by His Excellency the Governor General in Council, on the 17th July, 1869. Department OP Justice, Ottawa, 12th July, 1869. The undersigned has the honour to report, that after full consideration he is of opinion that the following Acts, passed by the legislature of the province of Ontario, at its second session (32nd Vic.) should, in addition to those mentioned in his report of the 19th February last, be left to their operation, viz. : — Chapters 23, 32, 33, 39, 42, 45, 48, 58, 61, 62, 66, 70, 76 and 80. Cap. 30. The undersigned also recommends that cap. 30, entitled : " An Act to provide for Registration of Births, Marriages, and Deaths," be left to its operation. At the same time he feels it incumbent upon him to express his doubt whether the subject of legislation in this Act comes within the provision of the 92nd clause of "The British North America Act, 1867 "; and as to the 16th clause, whether the expression that the party on conviction shall forfeit the sum of fifty dollars to Her Majesty, may not be held to vest in the Crown, for the purposes of the Dominion the amount of the penalty. These doubts can only be solved by judicial decision. Cap. 34. — He also recommends that cap. 34, entitled " An Act relating to Mining," be left to its operation. He would venture, however, to express a doubt whether sections 34 and 35 would not be held to be a portion of the Criminal La-w. Cap. 36. He also recommends that cap. 36, entitled, " An Act to amend and con- solidate the law respecting the Assessment of Property in the province of Ontario," be left to itb operation. He is inclined to believe, hov/ever, that section 177 is ultra vires, inasmuch as it in effect declares, that any unjust or fraudulent insertion in the name of any person on any assessor or collector's roll shall be a criminal fraud, (as contra-distinguished from a civil fraud), liable to be tried before a court of competent jurisdiction. This must mean a court of criminal jurisdiction. And it further declares that on conviction the party shall be liable to fine and imprisonment. It is difficult to avoid the conclusion that this clause makes the act of the fraudu- lent person a misdemeanour, and if so, it is a portion of the Criminal Law. It is a pro- vision, however, so just in itself, that the undersigned is unwilling to object to it, and leaves the objection to be taken before the courts. All of which is respectfully submitted. JOHN A. MACDONALD. ted 19th February, I the 22nd February, ng considered as free H, 43, 44, 46, 47; 49 is Excellency the W. .2th July, 1869. nsidei-ation he is of province of Ontario, oned in his report of 80. bitled : " An Act to to its operation. At whether the subject lause of "The British expression that the sty, may not be held ount of the penalty. relating to Mining," iss a doubt whether al Law. ct to amend and con- ^nce of Ontario," be ■es, inasmuch as it in of any person on any listinguished from a sdiction. This must at on conviction the ;he act of the fraudu- lal Law. It is a pro- to object to it, and ilACDONALD. 32-33 VICTORIA, 1868-69. , 83 Report of the Honourable the Minister of Justice appnwed by His Excellency the Governor General in Council on the 17th July, ISdO. Department of Justice, Ottawa, 14th July, 1869. With reference to the following Acts passed V)y the legislature of the province of Ontario, at its second session (32 Victoria), the undersigned has the honour to report, as follows : — That chapter 3, intituled : " An Act to define the privileges, immunities and powers of the Legislative Assembly, and to give summary protection to persons em- ployed in the publication of Se-)Sional Paper.s," is objectionable. By the 18th clause of "The British North America Act, 1867," it is enacted, that the privileges, immunities and powers to be held, enjoyed and exercised by the Senate and by the House of Contmons of the Dominion of Canada, shall be such as shall be from time to time defined by Act of the Parliament of Canada, but so that the qame shall never exceed those held, enjoyed and exercised at the passing of such Act by the House of Commons of the H lited Kingdom. It is to be assumed that the power to pass an Act defining those privileges was conferred upon the Parliament of Canada on the ground that, without such a provision, the Parliament of Canada could not have passed any such Act. It is clear from the current of judicial decision in England that neither of the branches of a colonial legislature have any inherent right to the privileges of the Imperial Parliament. Perhaps, however, under the legislative powers given to the Parliament of the Dominion by the 91st section of the Union Act, to make laws "for the peace, order and good government of Canada, ' it miglit have passed an Act without any enabling power from the paramount authority establishing and defining the privileges of itj two chambers. However this may be with respect to the general Parliament, it is to be observed that there is no clause in the Union Act similar to the 18th, giving to the provincial legislatures power to define or establish their privileges and that no g<'neral powers of legislation for the good government of the provinces, are given to their legislatures. Their powers are strictly limited to- those conferred by the 92nd, 93rd, 94th and 95th clausof" of the Union Act. }>y the Act in question it will be seen „hat the legislature of Ontario has declared that the Ijegislative AssemVjly and its members shall enjoy the same privileges as those exercised by the House of Commons of Canada. It would seem, therefore, that this Act is in excess of the power of the provincial legislature. If it has any power to legislate on the matter at all, it seems to follow that while the general Parliament can under the 18th clau.se, confer no greater privileges than those enjoyed by the Imperial House of Commons, the provincial legislature being bound by nc such limitation, might, if it were so disposed, confer upon itself and its members privileges in excess of those belonging to the House of Commons of England. That the second section of Chapter 22, intituled : "An Act to iunend chapter 15 of the Consolidated Statutes of Upper Canada, intituled : ' An Act respecting County Courts,' " is also objectionable. That section provides that the judges of those courts are to hold office during pleasure, and shall be subject to removal by the Lieutenant-Governor for inability, incapacity, or misbehaviour, established to the satisfaction of the Lieutenant-Gover in council. |l "^ By the 96th clause of the Union Act the Governor General is to appoint County Court judges ; and by the 100th clause, the salaries, allowances and pensions of those judges are to be fixed and provided for by the Parliament of Canada. It'oSMii.The inconveniences that may arise from tiie appointing power being in the Gov- ernor General, and the power of removal also in him, at his pleasure, while there at the Mi 84 ONTARIO LEGISLATION same time exists an independent power of removJil in the Lieutenant-Governor, are obvious. The provincial legislature evidently considered itself empowered to pass such an Act by the 14th subsection of the 92nd clause of the Union Act, by which the pro- vincial lej,'islatures have power to miike laws in lelation to the administration of justice in the province, including the constitution, maintenance and organizatiim of provincial courts. That the 6th section of cliapter 1, being the Supply Bill for 1809, is also objec- tionable, as by the 96th and 100th clauses of the Union Act it is piovided that the Governor (Jeneral shall appoint the judges of the superior courts, and the Parlia- ment of Canada shall fix and provide their salaries, allowances and pensions ; it would seem that the judges of those courts cannot properly, and without a breach of its pro- visions, receive emolument of any kind from any but the power which appoints and pays them the legal salaries attached to tl;eir judicial positions. On these three Acts, the undersigned, on the i^Otli February last, made a report to your Excellency, which you were pleased to transmit to the Secretary of State for the Colonies, for the purpose of being referred to the law officers of the Crown in England ; and the A ttor.aey and Solicitor General have given their opinion, that it was not competent for the legislature of Ontario to pass those Acts, or either of them. The undersigned recommends that the attention of the Government of Ontario be called to the two first mentioned Acts, and the 6th clause of the last Act, suggest- ing that they should be repealed next Session, and no action taken upon them meanwhile. He recommends also that a copy of Lord Granville's despatch in the subject, and of the opinion of the law officers of tho Crown, be transmitted, with any Order in. Council, that may be adopted on this report, to the Government of Ontario JOHN A. MACDONALD. The Under Secretary of State, Colonial Office, to the Law Officers of the Crown. DoAVNiNG Street, 27th April, 1869. Sir, — I am directed by Earl Granville to transmit to you copies of a despatch from the Governor General of the Dominion of Canada, No. 22, of the 11th March, 1869, and of a report from the Minister of Justice, inclosed therein, upon certain Acts passed by the legislature of the province of Ontario, and to the request that you will, jointly with the Solicitor General and Attorney General, favour his Lordship with your opinion, whether it was competent for that legislature to pass these Acts, or any of them. Copies of the commission and instructions to Sir J. Young are annexed. I am, &c., FREDERICK ROGERS. The Law Officers of the Crown to the Secretary of State, Colonial Office. Temple, 4th May, 1869. My Lord, — We are honoured with your Lordship's commands, signified in Sir Frederick Roger j's letter of the 27th April, 1869, stating that he was directed by your Lordships to transmit to us copies of a despatch Irom the Governor General of the Dominion of Canada. No. 22, of the 11th March, 18^9, and of a report from the Minister of Justice, inclosed therein, upon certain Acts passed by the legislature of the province of Ontario, and to request that we would favour your Lordship with our opinion, whether it was competent for that legislature to pass the Acts, or any of them. Sir Frederick Rogers was pleased to add, that copies of the commission, with instructions to Sir John Young, were annexed. 3nant-Governor, are •ed to pass such an by whicli the j)ro- adniinistratioii of and organization of 1809, is also objec- 5 provided that the ts, and the Parlia- penaions ; it would I bi'each of its pro- ,'hicii appoints and I these throe Acts, [• Excellency, which ies, for the puipose i the Attorney and it for the legislature eminent of Ontario le last Act, suggest- ion them meanwhile. ^n the subject, and with any Order in Ontario ACDONALD. $ of the Crown. bh April, 1869. of a despatch from nth March, 1869, certain Acts passed at you will, jointly with your opinion, any of them, nnexed. )K ROGERS. nial Office. th May, 1869. s, signified in Sir as directed by your nor General of the report from the the legislature of Lordship with our !ts, or any of them, commission, with 32-33 VICTORIA, 1 868-09. 8S In obedience to your Lordship's commands, we have the honour to report — That we have considered the three several Acts tt» which your Lordship has been pleased to direct our attention, and we are of opinion that it was not competent for the legislature of the province of Ontario to pass such Acts, or either of them. We consider them inconsistent with the provisions of sections 92 and 96 of " The British North Arnerioa Act." We have, itc, R. P. COLLIER. J. D. COLERIDGE. The Secretary of State for the Colonies to the Governor General. Downing Street, 8th May, 1869. Sir, — In compliance with the request contained in your despatch, No. 22, of the 1 1th March last, I caused a reference to be made to the law officers of the Crown, respecting the validity of certain Acts mentioned in the margin, lately passed by the legislature of Ontario, and of a clause con- tained in the Supply Bill for 1869, passed by the same legis- lature, relating to the increase of the salaries of the judges of the Supreme Courts of the province. I transmit to you, for your information, and for that of your Privy Council, the inclosed copies of the reply which has been received from the law officers, and of the letter from this office, in which their opinion was requested. Chap. 3.— "An Act to de- fine the privileges, immuni- ties and jK)wer» of the Legis- lative Assembly and to give summary jirotection to person j employed in the pub- lication of Sessi(mal Papers. " Chap. 22.—" An Act to amend Chapter 15 of the Con. Statutes ji Upper Canada, intituled : ' An Act resjiect- ing County Courts.'" I have, &c., GRANVILLE. Copy of a Report of a Committee of tlie Honourable t/te Privy Council, approved by Ilia E.Kcellency the Governor General in Council on the 17th July, 1869. On the recommendation, dated 12th July, 1869, from the Honourable the Minister of Justice, the committee advise that so much of the despatch from the Secretary of State for the Colonies to your Excellency, dated the 8th May last, as refers to Acts of the provincial legislatures, which might relate to any of the classes of subjects men- tioned in the 7th paragraph of the royal instructions, or which might, in your Excel- lency's opinion, be unconstitutional or in excess of the powers of the local body, be transmitted to the Lieutenant-Governors of the several provinces, for their information and guidance ; and also, that a copy of the said 7th paragraph be forwarded therewith. WM. H. LEE, Clerk Privy Council. Extract frotn the Despatch of the Secretary of State for the Colonies, dated Downing Street, 8th May, 1869, atid No. 85. I have the honour to acknowledge the receipt of your despatch, No. 23, of the 11th March, asking for instructions as to the course which you should pursue with regard to any Act of the provincial legislatures which might relate to any of the classes of sub- jects mentioned in the 7th paragraph of the royal instructions, or which might, in your opinion, bo unconstitutiona?, or in excess of the power of the local body. The prohibitions in ^he 7th paragraph of the royal iuitructions, with one quali- fication, rest on grounds of imperial policy, and therefore the Governor General of the Dominion is not at liberty, even on the advice of his ministers, to sanction or assent to any provincial law in violation of them. He would, indeed, be bound to instruct the Lieutenant-Governor of the province not to give such assent. 6 ■ I-}"- 86 ONTARIO LEGISLATION The qualification to which I have above referred is this, that while the Governor General is not at liberty to sanction the passing of a law making any donation or gratuity to himself, it would be for his ministers to consider whether they should advise him to consent to a donation by the province to the Lieutenant-Governor, and he would be at liVierty to follow that advice with regard to the second point. If the Governor General were advised by his ministry to disallow any provincial Act as illegal or unconstitutional, it would, in general, be his duty to follow that advice, whether or not he concurred in that opinion. If he were advised by his ministry to sanction any Act which appeared to him illegal, it would be his duty to withhold his sanction, and refer the tjuestion to the Secretary of State for instructions. The same course might be taken if the Act recommended for his sanction by his ministers appeared gravely unconstitutional ; but it is impossible to relieve the Governor General from the duty of judging, with respect to each particular case, whether the objection to an Act, not of doubtful legality, is suflQciently grave as under all circum- stances to warrant a refusal to act at once on the advice tendered to him. Copy of the 1th Section of Royal Instructions referred to. VII. And for the execution of so much of the powers vested in you by virtue of Assent to Bills. " The British North America Act, 1867," as relates to the declaring either that you assent in Our name to Bills passed by the Houses of Parliament, or that you withhold Our assevit therefrom, or that you reserve such Bills for the signification of Our pleasure thereon, it is Our will and pleasure that when any Bill is presented to you for Our assent, of either of the classes hereinafter specified, you shall (unless you think proper to withhold Our assent from the same) reserve the same for the signification of Our pleasure thereon ; subject, nevertheless, to your discretion, in case you should be Bills to be of opinion that an urgent necessity exists, requiring that such Bill be brought reserved, into immediate operation, in which case you are authorized to assent to such Bill in Our name, transmitting to us by the earliest opportunity the Bill so assented, with your reasons for assenting thereto, that is to say : — 1. Any Bill for the divorce of persons joined together in Holy Matrimony. 2. Any Bill whereby any grant of land or money, or other donation or gratuity, may be made to yourself. 3. Any Bill whereby any paper or other currency may be made a legal tender, except the coin of the realm, or other gold or silver coin. 4. Any Bill imposing differential duties. 5. Any Bill, the provisions of which shall appear inconsistent with obligations imposed upon Us by treaty. 6. Any Bill interfering with the discipline or control of Our forces in Our said Dominion. 7. Any Bill of an extraordinary nature and importance, whereby Our prerogative, or the rights and property of Our subjects not residing in Our said Dominion, or the Trade and Shipping of the United Kingdom and its dependencies, may be prejudiced. 8. Any Bill containing provisions to which Our assent has been refused, or which has been disallowed by Us. Mr. Assistant Secretary Patteson to Under Secretary of Staie. Provincial Secretary's Office, Toronto, 27th September, 1869. Sir, — I am commanded by the Lieutenant-Governor to transmit to you, for the in- formation of his Excellency the Governor General, a copy of a minute passed by the Executive Council of Ontario, having reference to three Acts of the Ontario legislature passed iX its last session, and pronounced objectionable in a report of a committee of the Privy Council, made on the 17th July last, founded upon a report of the Minister of Justice, bearing date the 14th of the same month, copies of which documents, as also lile the Governor nation or gratuity luld advise him to id he would be at Governor General r unconstitutional, it he concurred in ; which appeared sr the (juestion to s sanction by his lieve the Governor case, whether the under all circum- lim. d to, n you by virtue of he declaring either ment, or that you the signification of is presented to you (unless you think he signification of case you should be ich Bill be brought I to assent to such Bill so assented, [atrimony. nation or gratuity, le a legal tender, it with obligations orces in Our said y Our prerogative. Dominion, or the lay be prejudiced, refused, or which ^taie. tember, 1869. to you, for the in- aute passed by the Ontario legislature of a committee of »rt of the Minister documents, as also 32-33 VICTORIA, 1808-69. 87 of a despatch and enclosures from the Colonial Office, were communicated to tiie Lieutenant-Governor by letter from the Under Secretary of State for the Provinces. A copy of the report of the Attorney General of Ontario, upon which action has been taken by the Executive Council, is also transmitted herewith. I have, ikc, THOS. C. PATTESON, Assistant Secretary, 1. Report of the Honour- nble the MiniHter of Justice, dated 14th .July, 1869, with copy of Minute of Privy Council approving thereof, and dated 17th July, 1869. 2. A copy of Despatch of 8th May, 1869, from the Col. Minister to H's Flxcellency the Governor (xeneral. 3. Copy of letter from Under Secretary of State to Law Otficers of the Crown, dated 27th April, 1869, and letter from Law Officers of the Crown, dated 4th May, 18(59, with their opinio*.., iid- diesaed to the Rigtit Honour- able the Earl of Granville, Colonial Minister. Report of Honourable Attorney Generai Macdonald, apjyroved by llis Honour the Lieutenant-Governor of Ontario in Council, on the iilst September, 1869. The undersigned, to whom his Excellency the Lieutenant-Governor referred the letter of the Under Secretary of State, at Ottawa, dated the 24th day of July last, transmitting therewith certain reports and communications as per margin, and all bearing on specific objections to three several Acts passed during the last session of the Ontario legislature, has the honour to submit the following observations for his Excel- lency's consideration : — With respect to chapter 3, intituled : " An Act to define the privileges, immunities and powers of the Legislative Assembly, and to give summary protection to persona employed in publication of Sessional Papers," it is said the powers of the legislature of Ontario are strictly limited to those con- ferred by the 92nd, 93rd, 94th and 9r)th clauses of the Union Act, that there is no general power conferred on the respec- tive local legislatures to enact laws for the good government of the provinces, as there has been to the general or Dominion legislature ; and that the expressed provision contained in the 18th section of the Union Act, granting to the Senate and House of Commons of Canada, and to the members thereof respectively, " shall be such as are from time to time defined by the Act of the Parliament of Canada, but so that the same shall never exceed those, at the passing of this Act, held, enjoyed and exercised by the Commons House of Par- liament of the United Kingdom of Great Britain and Ireland, and by the members thereof," shows that without such a provision the Parliament of Canada could not have passed such an Act. On these grounds it has been concluded that the Ontario Statute under consideration, is in excess of the powers of the Ontario legislation. To justify this conclusion, it is said that if the local legislature can pass such a law, because it is not transmitted, it may pass a law exceeding the limitation which has been placed on tlie Dominion Parlipuient by the 18th section of the Union Act. It may not be quite easy to define precisely what power the local legislature may or may not lawfully exercise on the very numerous subjects which are within its juris- diction. It cannot be denied that the legislature must possess the power, if fiot by mere regulation, by statute, at any rate, to provide for the orderly course of its proceedings ; for freedom from arrest of its members whilst attending their duties, and for a reason- able time before and after each session ; for freedom of speech, not only against the Crown, but against private persons ; for the right to publish and distribute generally such matters as may be deemed conducive to the public interest, without the risk of suit for publishing what might be otherwise deemed to be defamatory ; and for the punishment of all persons guilty of contempt in the face of the House, or before its committees. For without such protection the legislature would be unable to maintain its dignity, and would be more feeble than a justice of the peace, who has a right to punish for contempt committed at his petty sessions. 6i 88 ONTARIO LEOIHLATION And it would be singular that a legislative bofly, which can cdnfer such privileges upon any court or municipal \Mx\y, should not be able to grant them to itself. The undersigned believes also that the Ontario legislature could have gone beyond the privileges just named, and could have declared that members of the legislature should be proceeded against in civil suits by a particular kind of process, and that all suits against them should be tried in a particular court, or that no civil suit at all should be conjinenced or prosecuted against them during the session of the House, or for a certain time before or after the session. The undersigned is also of opinion that witnesses sunnnoned to attend belore the House, or a r;ommittee, should be liable to be proceeded against by the House for con- tempt in disobeying the process, or in declining to give evidence or otherwise ; and that all matters pertaining to election of members should be tried and determined by the House. The only privileges which the House of Commons in England possesses, which may not be considered as applicable here, are when it acts as the Grand Inquest of the Nation to inquire into grave offences, and where it accuses for the purpose of a trial for the offence found, and when it adjudicates upon, and punishes contempt out of the House. Yet the undersigned believes there is nothing to prevent the legislature of Ontario from granting the power of in(iuisition to itself by statute. It may, undoubtedly, withdraw the power from grand jurors, by abolishing the grand jury system, or by transferring the powers now exercised by grand jurors to any other power, body or person. And that the legislature may also grant to itself the power to try for, and to punish contempts not committed before the House. It is familiar to every one acquainted with the practice of the superior courts to what extent contempts to the process and orticers of such courts are punished, though not committed in the precincts of the courts. There is no decision, the undersigned believes, at all touching the jurisdiction of the Legislature, to pass a statute for such purposes, though there are decisions that a legis- lative body hae, as such, no inherent right to assume such power. Powers analogous to those which are exercisable by the British House of Commons, because the latter body has acquired theirs by long usage and custom only, and powers so acquired, are not assumable by other bodies possessing general legislative authority in other places. The Dominion Act contains nothing against the legislation in question. It does not declare that the legislature of Ontario shall have authority over those matters which are mentioned in the Act, but that it may exclusively make laws relating to those subjects therein enumerated. And it seems difficult to maintain that a legislature which may amend the consti- tution of the province and may legislate on property and civil rights, and generally, on all matters of a mere local or private nature, may not by statute provide that the like power which the House of Commons of the Dominion and the members thereof possesses, may be possessed also by the Legislative Assembly of Ontario, and the representatives of the people assembled therein, and elected thereto by the same constituents who send members to the Commons. The argument that the legislature of Ontario may grant to the Assembly greater powers in the matters alluded to, because not restricted from doing so, than the House of Commons of Canada possesses, because it is restricted from assuming or exercising greater privileges than those which the British House of Commons enjoyed, is not, in the opinion of the undersigned, an answer to the exercise of those powers which are not more extensive than the House of Commons does possess. It does not follow that the legislature of Ontario has the power to exercise greater authority than the House of Commons of Canada can exercise. The limitation placed by the Union Act upon the greater body must, no doubt, be held by just construction of the statute to operate by limitation upon the subordinate legislatures as well. The conclusion to which the undersigned has arrived, with respect to the constitu- tionality of the Ontario Act, 32 Vic, cap. 3, is, that it is not liable to the exceptions nfer such privileges to itself. J have gone beyond H of the legislature recess, and that all ^il suit at all should the House, or for a rO attend belore the the House for con- )therwi8e ; and that I determined by the ossesses, which may iquest of the Nation se of a trial for the I out of the House, jislature of Ontario I, by abolishing the grand jurors to any ' to try for, and to very one acquainted to the process and cincta of the courts, e jurisdiction of the jcisions that a legis- Powers analogous i, because the latter ers so acquired, are ity in other places. uestion. uthority over those usively make laws amend the consti- and generally, on rovide that the like rs thereof possesses, the representatives istituents who send 8 Assembly greater so, than the House uming or exercising s enjoyed, is not, in )wers which are not to exercise greater must, no doubt, be )on the subordinate ect to the constitu- to the exceptions 32-3.1 virrontA, 1868-69. 89 which have been taken to it, and that sufticient consideration has not, in his humble opinion, been given to the important diatinetiun l)etween jmwers claimed by the authority of a statuii>, and powers claimed as inherently belonging to a legislative body. Chapter 22 of 32 Victoria, is intituled; "An Act to amend chapter 1") of the Consolidated Statutesof Upper Canada, intituled, 'An Act respecting County Courts.'" It is said the first section of this Act is inconsistent. The sentence is, " The judges of the several county courts, holding otHco when this Act takes effect, as well as the judges hereafter lo be appointed, shall hold their offices during pleasure, and shall be .subject to be removed by the Lieutenant-Governor for inability, incapacity or misbe- haviour, established to the satisfaction of the Lieutenant-Governor in Council, anything in the Interpretation Act or any other Act to the contrary notwithstanding." The inconsistency is stated to be, that the section provides that the judges are to hold their offices durinjf pleasure; that is, the pleasure of the Governor (jieneral, and yet they are to be subject to be removed by the Lieutenant-Governor f ( r inability, itc, itc If this be the objection taken to the Act; it is not nauessarily oj)en to exception. It may be that the Governor General should remove at pleasure, without cause assijined ; and that the Lieutenant-Governor should not have that power, but the power to remove only for inability, itc, itc. But to avoid any difficulty on that point, the clau,se may be modified, so as to preserve to the Lieutenant-Governor in Council the right of removal for inability, itc, which is the principal pur{M)se of the enactment. By the Union Act, the Governor General has the appointment of the Superior Court, District anfl County Court judges in the respective provinces. In Ontario, the Superior Court judge.s, consisting of the Court of Queen's Bench, Common Pleas and Chancery, are to hold their offices during good behaviour, but are removable by the Governor General on an address of the Senate and House of Commons. The tenure of the County Court judges, or their mode of removal, is not mentioned in the Act. The legislature of Ontario has express powei- to legislate respecting the establishment and tenure of provincial offices, and the appointment and payment of provincial officers. The appointment and payment of County Court judges are expressly reserve(^ to the Governor General ; but as it is only their appointment and payment that have been so vested in him, there seem no valid reason why tlie other power of the section should not be exercised by the provincial legislature, relating to the tenure of the ofiices of such judges, particularly aa it is the Ontario legislature alone which can establish these courts, and the offices to which the judges are to be afterwards to be appointed. The undersigned is by no means satisfied that the enactment of last session, declaring the County Court judges shall hold their office during the pleasure of the Governor General, is beyond the authority of the legislature of Ontario. The appointment to, and tenure of office are so entirely distinct, one from the other, that the provision in the Union Act, that the Governor General .shall appoint the officer and the provision of the Ontario legislature, that the officer shall hold his office only during the pleasure of the Governor General, may well stand together without repugnancy and even without inconvenience. But if is thought there is any apparent clashing of rights, the clause may be modi- fied, as before suggested. The undersigned does not understand that any objection has been made to the power of removal for cause, which has been conferred on the Lieutenant-Governor. It may, however, be as well to note what has occurred to the undersigned on this point. By the Consolidated Statutes of Upper Canada, chap. L"), the judges of the County Courts were appointed by the Governor, and were to hold their offices during good behaviour, but they were subject to be removed by the Governor by inobility or misbehaviour, established to the satisfaction of the Court of Impeachment. The legis- lature of Ontario has, as it unquestionably had the right to do, abolished the last named court, and in eflfect transferred the power of inquiry to the Lieutenant-Governor in Council by the enactment under consideration. This enactment undoubtedly goes fur- i 90 ONTARIO LEOIsr.ATION. ther than authorizing lui imiuiry to he niiwlo into tho Judge's conduct, as it dcclHrcN that the Lieutonant-Ctovornor may, on hoing wtisfied in Coupcii of tho trutli of this charge, remove tht* judge from his office, which was n power l»efore the late union, to be exer- cised by the Governor. The question then is, had the legishiture of Ontnrio the authority to confer the poNvor of romovnl on the Lieutenant-Governor, oh well as the power to investigate com- plaints against County Court judges ; or by tho late Union Act, is the power of removing these judges to be exerrsed by the (Governor Oeneial, or by the Lieutenant- Governor ? The 1 2th section of the Union Act provides, that " all powers, authorities, and func- tions which, under any Act of the legislature of Canada, are, at the union, vested in or exercisable by the respective Governors or Lieutenant CJovernors of those provinces, by those (Jovernors or Lieutenant-Governors individually shall, as far as the same continue in existence, and capable of being exercised after the union, in relation to the Govern- ment of Caniwla, be vested in and exercisable by the Governor General individually, as the case requires, subject, nevertheless, to be abolished or altered by the Parliament of Canada." The like enactment is contained in the 65th section of thf3 Act applicable to the province of Ontario, conferring all powers on the Lieutenant-Governor which were at the union, vested in or exercisable by the Governor of Upper Canada and Lower Canada, as far as the same are capable of being exercised after the Union, in " relation to the Government of Ontario," shall be vested in and exercisable by the Lieutenant-Governor. The question is— is the removal of the County Court judges for cause, a matter in relation to the Government of Canada, or a matter in relation to the Government of Ontario t The Governor General appoints the judges, and the Dominion pays them, by the express provisions of the Union Act. The general rule is that the power which appoints may aUo remove. There are reasons why it may be urged that the Governor General should alone remove, and why the tenure of such offices should therefore be considered to be a matter relating to the Government of Canada. On the other hand, the legislature of Ontario has alone jurisdiction over " the administration of justice in Ontario, i> luding the constitution, maintenance, and organization of provincial courts, both of civil and criminal jurisdiction." The legislature of Ontario maintains the County Courts, and can alter their con- stitution or abolish them; and the Lieutenant-Governor has authority, for what the undersigned has before said, to hold inquisition of all complaints against these judges, for the purpose of enabling it to be determined whether they should be removed or not. Independently, therefore, of the arguments before submitted, relating to the tenure of these offices being vested in the legislature of Ontario, which would conclude the ques- tion, there is strong reason for believing that the tenure of these judges, and their removal for cause, should be held to be a matter relating to the general government of Ontario, and not a matter relating to the general government of the Dominion. In taking a review of the particular question, the undersigned is of opinioL there is not the inconsistency in the section of the statute, which it has been stated appears there, for the Governor General to remove without cause, is not opppoyrid to the power of removal by the Lieutenant-Governor for cause. If it be supposed or insisted upon that the inconsistency suggested is so manifest to require amendment, the section can be altered to meet the difficulty raised. The legislature of Ontario has power to regulate the tenure of office of the County Court judges, because the tenure is a matter which has been especially delegated to it by the Union Act. And the Lieutenant-Governor may remove for cause, because the removal is, by the Union Act, a matter relating to the government of Ontario, and not to the general government. The Lieutenant-Governor, under section 65 of the Union Act, would have had the power, and not the Governor General, upon an adverse finding of the Court of Impeach. ^ as it declarcH thiit iruth of the oharf,'e, b union, to bo oxer- liority to confer the tt) investigate coni- t, is the power of by the Lieutenant- ithorities, and func- ) union, vested in or those provinces, by 8 the same continue tion to the Govern- aral iiiflividually, as ly the Piirliainent of ct applicable to the riior which were at and Lower Canada, in " relation to the ieu tenant-Governor. I' cause, a matter in I the Government of 1 pays them, by the nove. leneral should alone lered to be a matter isdiction over " the maintenance, and tion." can alter their con- rity, for what the jainst these judges, be removed or not. ng to the tenure of conclude the ques- \e judges, and their leral government of Dominion. is of opinio:., there been stated appears jpo'i'id to the power sted is so manifest ;y raised. )ffice of the County ivlly delegated to it e removal is, by the not to the general ivould have had the Court of Impeach. 32-33 VICTORIA. 1868-69. ftl ment, if that court had still been in existence, the powers of that court having been, in effect, transferred tf) the Lieutenimt-Governor in Council. The Lieutenant-Governor may now, by virtue of .section 6r), remove the County Court judges. The undersigned, on consiileratioii of the wlioUi (lU(^stio^, Huggests that the seotioii of the Act of last se.ssion objected to, should bo amended, by cniicting that the said judges shall hold their ortices during giMxl behaviour, but .shnll be subject to be removed by the Lieu tenant-! Jovern(»r for inhability, incapacity or inisljehaviour, e.stabli.shed to the satisfaction of the Lieutenant-Governor in Council. Chap. 1, 3'2nil Vic. — With respect to .section 6 of thi.s Act, which relates to the increase of salary made to the judges of the .Superior Courts, and which is in the fol- lowing words : " And whereas, under the altered circumstances of the country and the increased expense of living, it has been found that the judges of th(! Supei'ior Courts are inadequately paid, be it therefore enacted that there shall be paid for the year one thousand eight hundred and sixty-nine, and tV)r every year thereafter, out of the Consolidated Revenue Fund of this province, annually to the president or chief justice, of the Court of Error and Appeal, and to each of the judges of the Superior Courts of Law and Eciuity in this province, the sum of one thousand dollars." That it has been objected, thfj judges oi i'a i: courts cannot properly, and without a breach of the provisions of the Union Act, ri ■ ve enxjluments of any kind, from any bufe the power which appoints and pays them ,h legal salary attached to their jut of Justice, Ottawa, 24th November, 1869. With reference to the reports of the undersigned of the 14th July and 22nd October last, relating among, other things, to the Act passed by the legislature of the «HP )n the correspondence 3 of the legislature of ., cap. 22 ; 32nd Vic, ite paper, discusses at in his report to your with respect to future 1 legislature of Ontario good purpose to enter I, thought it expedient snt, for the purpose of eiving specific instruc- sported that, in their ass those Acts, or any 3tary of State for the \ your Excellency than iture of Ontario at its patch be sent to the rae time that, should of them, pass other to be taken into im- )f the legislature, should be repealed un- te bills. ute of Council founded itario, and that he be rdopted by his advisers MACDONALD. Ilia Excellency the 1869. th October, 1869. onsideration, he is of )rovince of Ontario at [led in his reports of v\7.. : — rs of the Legislative ctments therein men- lounty Judges. MACDONALD. y Hin Excellency the 1869. November, 1869. 14th July and 22nd he legislature of the 32-33 VICTORIA, 1868-69. 93 province of Ontario at its last session, being 32nd Vic, chap. 3, intituled : " An Act to define the privileges, immunities and powers of the Legislative Assembly, and to give summary protection to persons employed in the publication of Sessional Papers." And with reference also to the correspondence with the government of Ontario on the subject, the undersigned has now the honour to report that, in his opinion, it was not competent for the legislature of the province of (Jntario to pass such Act, and he therefore recommends that the same should not receive the confirmation of your Excellency. All of which, &c. JOHN A. MACDONALD. \Proclaniation diaalloiving Act above mentioned, pnhlished in the Canada Gazette, on the 4th December, 1869. Vol. Ill, i\"o. 33, }). 886.] Report of the Honourable the Minister of Justice, approved by His Excellency the Governor General in Council on the 20th January, 1870. Department OF Justice, Ottawa, 19th January, 1870. With reference to the Act passed by the legislature of the province of Ontario, at its second session, 32 Vic, cap. 1, intituled, "An Act for granting to Her Majesty certain sums of money required for defraying the expenses of Civil Government for the year 1869, for making good certain sums expended for the Public Service in 1868, and for other purposes," the undersigned has the honour to report, as follows : — That on the 14th July last he reported, that, in his opinion "the 6th section of the said Act is objectionable." Such 6th section is as follows : — " And whereas, under the altered circumstances of the country, and the increased expense of living, it has been found that the judges of the Superior Courts are inade- quately paid : be it therefore enacted, that there shall be paid, for the year one thousand eight hundred and sixty-nine, and for every year thereafter, out of the Con- solidated Revenue Fund of this province, annually, to the president or chief justice of the Court of Error and Appeal, and to each of the judges of the Superior Courts of Law and Equity in this province, the sum of one thousand dollars." He further reported, that "as by the 96th and 100th sections of the Union Act, it is provided, that the Governor General shall appoint the judges of the Superior Courts, and the Parliament of Canada shall fix and provide their salaries, allowances and pensions, it would seem that the judges of those courts cannot properly, and without a breach of its provisions, receive emolument of any kind from any but the power which appoints and pays them the legal salary attached to their judicial positions." With that report was also submitted the opinion of the Attorney and Solicitor General of England, that it was not competent for the legislature of Ontario to pass this section. Thereupon, by a despatch from the Secretary of State for the Provinces to the Lieutenant-Governor of Ontario, bearing date the 26th of October, 1869, he was informed that no other course was left to your Excellency, on the opinions of the law officers of the Crown in England, than to disallow this measure, unless it was repealed by the legislature of Ontario at its approaching session. It was at the same time stated, that should the legislature of Ontario, after repealing the Act, pass another measure on the same subject, your Excellency would cause it to be taken into immediate consideration, with an anxious desire to meet the viewx of the legislature ; but, that it would, of course, be necessary that the Act, if repealed, should be repealed unconditionally, and any substituted legislation embodied in a separate bill. The legislature of Ontario, at its last session, passed a bill intituled : — " An Act to remunerate certain members of the Court of Error and Appeal :" by the 1st section of v/liioh, the 6th section of the Act first above mentioned is repealed ; but, ill the sime Act, there is contained a provision that the sum of one thousand ill ; 94 ONTARIO LEGISLATION, 32-33 VICTORIA, 1868-69. dollars per annum shall bo paid to the chief justice of appeal and other members of the Court of Erroi and Appeal, being also commissioners under the Heir, devisee and ^'''As^hnXieTthus provided for the chief justice and judges of the Court of Appeal are p»,yable to the same persons as those mentioned in the 6th section of the previous Act, it will be necessary for your Excellency, under your instructions, to submit the measure for the sanction of Her Majesty. ^ . , .u Her Majesty may not be advised to give her sanction, and in such case, on the disallowance of the Act, section 6 of the previous Act would revive. Before Her Majesty's pleasure can be received, the year will have expired ^ylthln which it is competent for your Excellency to disallow the Act first above mentioned, the last day for disallowance being the 26th day of January instant, and it would then remain on the statute-book, although declared to be unconstitutional, and beyond the jurisdiction of the local legislature. ^ „ .. . r n „ fv,^ Ar.f ,•„ No other course is therefore left for your Excellency than to disallow the Act in '^'"^JTe ttso'tf b/disallowed is the Supply Bill for the year 1869, but as all pay- ments made under it during its continuance are legal, and as it P^j^^'des that any appropriation made under it, which shall be unexpended on the 3lHt day of December 1869, shall become void and of no efifect, no inconvenience wUl be suffered by the Government of Ontario by the disallowance. All which is respectfully submitted. JOHN A. MACDONALD. I Proclamation disallowing the Act above metdion^A published in the ''Canada Gazette" on the 22nd day of January, 1S70. Vd. Ill, No. SO, p. a20.] >,■■ other members of Heir, "Devisee and >s of the Court of 6th section of the ir instructions, to I such case, on the ive expired within ; above mentioned, and it would then il, and beyond the lisallow the Act in ^69, but as all pay- provides that any , day of December, )e suffered by the S.CDONALD. "■ Canada Gazette " 5.20.1 ONTARIO, 33rd VICTORIA, 1869. 3rd Session- -IsT Paulument. Report of the Honourable the Minister of Justice approved by His Excellency the Governor General in Council on the 21st January, 1870, Department of Justice, Ottawa, 17th January, 1870. With reference to the Imperial British North America Act, 1867, and also to the Order in Council of the 9th June, 1868, on the memorandum of the undersigned, relative to the course to be pursued with respect to the Acts passed by the provincial legislatures, the undersigned has the honour to report : — That in his' opinion all the Acts passed by the legislature of the province of Ontario in the third session thereof (33rd Vic), with the exception of those mentioned in the schedule hereunto annexed, are free from objection of any kind. He therefore recommends that the same be left to their operation. The Acts named in the schedule above referred to will be the subject of a further report. • All of which is respectfully submitted. JOHN A. MACDONALD. ' SCHEDULE. Cap. 12. — An Act to amend an Act passed in the Session held in the 32nd year of the reign of Her Majesty, entitled : " An Act to amend Cap. 1 5 of the Con- solidated Statutes of Upper Canada, intituled : ' An Act respecting County Courts.'" Cap. 71. — An Act to exempt from Municipal taxation, for a certain period therein mentioned, a Sugar Refinery proposed to be erected in the city of Toronto. Cap. 5. — An Act to remunerate certain Members of the Court of Error and Appeal. Cap. 19. — An Act to amend the Law relating to Bills of Lading. Cap. 11.-^ An Act respecting proceedings in Judges' Chambers at Common Law. Cap. 24. — An Act to provide for the organization of the Territorial District of Parry Sound. Cap. 28. — An Act to amend the Act intituled : " An Act respecting Tavern and Shop Licenses." MEMORANDUM. In consequence of the illness and absence of the Minister of Justice, the Acts mentioned in the foregoing schedule were not reported upon, and a year having elapsed since their receipt, by the Governor General, they are now left to their operation, subject, of course to any objection that may be raised to their constitutionality. f1 96 ONTARIO LEGISLATION ONTARIO, 34th VICTORIA, 1870-71. 4th Session — Ist Parliament. Lieutenant-Governor llowland to the Under Secretary of State for the Provinces. Government House, Toronto, 27th February, 1871. Si«, 1 have the honour to transmit herewith, for the consideration of his Excel- lency the Governor General, certified copies of the bills passed at the fouith session of the first Parliament of Ontario, and to which my assent has been given. I also inclose a petition presented to me in reference to the bill intituled : Chap- ter 99, "An Act to confirm the Deed for the Distribution and Settlement of the Estate of the Honourable George Jervis Goodhue deceased. The petition sets forth the objections which were urged against the bill, and prays that it may not receive the royal assent. I regard the principle involved in the bill and sanctioned by the assembly as very objectionable and forming a dangerons precedent ; but in the absence of instructions, and upon the advice of my cjfencil I gave it my assent. I have, &c., W. P. HOWLAND, Lieutenant-Governor. Memorial of Mr. Becher to the Lieutenant-Governor of Ontario, re Chapter 99. To His Excellency the Honourable William Pearce Howland, Companion of the Most Honourable the Order of the Bath, Lieutenant-Governor of the province of Ontario, «kc., &c., in Council. The humble petition of Henry C. R. Becher, of the city of London, in the said pro- vince, Esquire, one of the executors and trustees under the last will and testament of the Honourable George Jervis Goodhue, deceased, most humbly showeth — That a bill intituled : " An Act to confirm the Deed for the Distribution and Settlement of the Estate of the Honourable George Jervis Goodhue, deceased," has been passed by the legislature of Ontario, and will be shortly brought before your Excel- lency for the royal assent. , .„ That your petitioner, as one of the executors and trustees of the said will, opposed the said bill from its introduction into the legislature by all means in his power, but without avail ; and your petitioner's co-trustee, Verschoyle Cronyn, Esquire, though he did not petition the legislature against the passing of the said bill, or oppose the same, as your petitioner did, nevertheless expressed his dissent to the application for the said bill. That the enactments of the said bill give into the immediate and absolute posses- sion and enjoyment of the six children of the testator, money and other personal pro- perty, and real property to the amount of upwards of ni;iety thousand pounds, which, by his will, he directed should accumulate, and, with the accumulations, be held by his executors in trust for all his children who shall be living on the death of his wife, in equal shares, and the child or children of such of them as may then be dead, in equal shares, sisch grandchild or grandchildren to be entitled to the share his, her or their father or mother would have been intitled to if living. •muggt!- 34 vicToniA, 1870-71. 97 l/te Provinces. ruary, 1871. on of his Excel- ;he fouttli session iven. intituled : Chap- ettlement of the nst the bill, and assembly as very ;e of instructions, LAND, xnt-Governor, 3 Chapter 99. inion of the Most the province of n, in the said pro- l and testament of )th— Distribution and eceased," has been aefore your Excel- said will, opposed I in his power, but Esquire, though he )ppose the same, as on for the said bill, id absolute posses- jther personal pro- ,nd pounds, which, 9ns, be held by his ath of his wife, in 1 be dead, in equal re his, her or their That there are many grandchildren of the testator, all infants, five of his children having children, and the rights of such grandchildren under the will are, by tlie enact- ments of the said bill, all taken away and destroyed. The enactments of the said bill also take away the security provided by the testa- tor of the whole of his residuary estate, for the making good at the time his wife sIjuU die, of any loss or deficiency that may arise in the investment of $172,000, unde;- six deeds of settlement in the will mentioned, in favour of his children and grandchildren, and substitute for such security tlie sum of ten thousand dollars only. That the enactments of the said bill are, your petitioner humbly submits, beyond the powers of tlie said legislature, and unconstitutional, in depriving persons of rights and property without their consent, and without any compensation whatever. That one or more, or all of the said six children of the testator to be benefited by the said enactment might possibly never be entitled at all to anything under the said will, their being entitled at all depending entirely upon the contingency of their surviv- ing their mother. Your petitioner has annexed hereto a copy of the probate of the- said will granted in Ontario. That in addition to the lands in Illinois, in the United States of America, men- tioned in the said bill, and thereby directed to be apportioned and conveyed, there are other lands in the said state, part of the estate of the said testator, whereof he died seized, and which passed and are yet held under his will, the same having been duly executed according to the laws of Illinois, to pass real estate, of the value of sixteen thousand dollars or thereabouts, and also a debt secured by mortgage en lands thereof, $8,000, and the probate of the said will has been registered in the said state. And, further, the testator died possessed of about $10,000 United States Govern- ment bonds, which passed and are yet held under the will. That at the time of the testator's death he held in England twenty thousand pounds sterling and upwards, in three per cent consols, which passed under his will ; ten thou- sand five hundred pounds whereof are yet held under the said will, the residue having been sold out and the proceeds brought to Camida for investment by your petitioner and his co-trustees, to whom probate of the said will was granted by the Court of Probate in England, as well as in Ontario. That your petitioner humbly submits to your Excellency, that, independently of what he has already submitted, the said bill is, on the face of it, beyond the power of the legislature in relation to the lands therein mentioned in Illinois. That the said lands in Illinois and the said other lands there, the said United States bonds, and the said three per cent consols are not, or some of them are not, within the scope or mean- ing of the words " property or civil rights " in the province. That at the time of, and up to the p: sing of the said bill, and for some years before, two of the daughters of the said testator and their children, all of them British subjects, have resided and still reside, and were and yet are out of the Dominion of Canada ; one of them, Louisa M. Watson, and her children, in the city of New York, in the IJnited States of America ; the other, Maria Eliza Tovey, and her children, in Plymouth, in England. And your petitioner humbly submits to your Excellency that the said children of the said Louisa M. Watson and Maria Eliza Tovey, not so residing in the Dominion of Canada, are persons within the meaning of the published instructions to the Governor General of the Dominion of Canada, under section 55 of " the British North America A.ct," in effect part of that Act directing to be reserved for the royal assent, or dis- allowed "any bill of an extraordinary nature and importance * * * ♦ whereby * * * the rights and property of our subjects not residing in our said Dominion may be prejudiced." That there is no good or suflicient ground or reason whatever, either mentioned in the bill, or, in fact, for the setting aside the provisions and intentions of the testator, and the passing of the said bill — the reason being that the testator's children desire to take his bounty, not as he gave it, but as they prefer to take it. 96 ONTARIO LEGISLATION That the said bill is of a most extraordinary nature, and, unlike all other bills hitherto passed in relation to wills, it destroys, instead of aiding the will. That the legislature seemingly impressed with this or some other feeling in relation to the said bill, have since its passing, originated and are unanimously carrying a bill for the submitting of all private estate bills to commissioners, to be appointed from the judges of the Superior Courts ; and your petitioner humbly submits that this bill should be reserved for a future parliament, to be submitted to the test of such commis- sioners. And your petitioner further states that the Honourable the Attorney General, the Honourable the Commissioner of Crown Lands, and the loader of the Opposition in the said legislature, all voted against the said Goodhue Estate Bill. That for the reasons hereinbefore given, or appearing, or some, or one of them, your petitioner humbly submits to your Excellency that the deed by the said bill, sought to be confirmed and made valid, cannot, by the said bill, be " confirmed and made valid " ; and your petitioner and co-trustee " cannot cany into effect the several provisions thereof, and be saved harmless and indemnified " in the premises ; and the said bill would be no protection to your petitioner against the future, claims of the grandchildren. And, in addition to such reasons against the said bill becoming law, your peti- tioner humbly craves yoar Excellency's reference to the printed objections hereto annexed, marked " Appendix C." And your petitioner humbly prays that your Excellency will graciously be pleased to take all the premises into your favourable consideration, and either refuse to assent to the said bill, or, as a measure causing injury to no one, and reserving time for a care- ful and well considered decision, where the Constitution provides (time that your Ex- cellency may not have to give, owing to the close termination of the present session of Parliament) that you will be pleased to reserve the said bill for the signification of the Governor General's pleasure. And, as in duty bound, your petitioner will ever pray, HENRY C. R. BECHER. London, Ontario, 11th February, 1871. APPENDIX 0. Summary of objections to the Bill. The Act asked for is tvithout precedent, unnecessary and a violation of the rights of Property. 1. It is without prei "ieat. — No construction has been suggested which cannot be readily carried out as re^'f ids the whole will, without the aid of a statute, and without prejudice, either to public or private interests. The delay required in order to settle the construction in the ordinary way, cannot injure the property or individuals, more than in the case of every other will. Under such circumstances, there is no instance of Legislative interference, and each of the cases referred to,,will be found clearly distin- guishable on one or other of the grounds above mentioned. 2. It is unecessary. — (1.) As regards the law, assuming the legal construction of the will to be as the promoters suggest, the interference of the legislature is not called for, for our courts will place that construction upon it, and the trustees will carry it out. Assuming it to be otherwise, 8" the trustees are advised, it is improper, for there all other bills ling in relation carrying a bill minted from the that this bill af such commis- ley General, the )position in the )r one of them, the said bill, confirmed and ffect the several imises ; and the re, claims of the law, your peti- bjections hereto ously be pleased refuse to assent g time for a care- e that your Ex- esent session of nification of the BECHER. ent, unnecessary which cannot be lite, and without 1 order to settle individuals, more is no instance of nd clearly distin- 1 construction of ture is not called 3es will carry it proper, for there 'mm 34 VICTORIA, 1870-71. 99 is no reason why the law should not be followed. The argument that because opinions differ on the will, long litigation will bo required to settle its meaning, would apply equally to every other case of a doubtful devise, and would substitute the legislature for the courts. This argument, moreover, is founded im the assuuiption, that in the event of cmr courts deciding the fund to be distributable at once, the trustees would have to go to the Privy Council before acting on such decision. From this view of their duty, they (or Mr. J3echer at all events), entirely dissent. They will act witliout hesi- tation under any decision of our courts, as all othei' trustees in Canada do, and as they are advised they may do with perfect safety. They believe, however, that no decision such as the promoters of the bill desire will be given, because it would be contrary to law, and it seems plain that no confidence can be felt in the possibility of obtaining it, or it would have been asked for, before coming to the legislature. The suggestion that th^ trustees would necessarily carry the case to the Privy Council, is in fact a mere imaginary difficulty, and if it be not felt to be such by those who make it, why do they not put it to the test, by first getting an order from the Court of Chancery for distri- bution, and deferring this application until the trustees show a disposition to decline acting under it. Any decision in any other case, where the matter in controversy ex- ceeds .$4,000, would be subject to the same difficulty suggested here ; it might be appealed to the Privy Council and reversed ; and the argument therefore in effect is, that where the interest involved is of that value, no trustee should act, and no title can be consid- ered safe under the judgment of any Canadian court. Is our legislature prepared to affirm this? 2. As regards the facts, there is no suggestion of necessity ; there are no debts due by the estate ; no annual outlay not provided for ; no land tied up, for the trustees are directed to sell and invest the proceeds. The sole question is, whether the promoters shall have the proceeds immediately, without regard to the will, or when they become entitled under the will (which some of them may never be) and they assert no reason whatever, why the legislature should give them this money at once, whether the testator so willed or not, except their own c'esire to possess it. 3. It is a clear violation of the rights of property. — There are five daughters and a son of the testator now living, all of whom, except one, have infant children. By the will, should a son or daughter die during the widow's lifetime, leaving children, on the decease of the widow, could take their parents' share (in this Mr. Cameron agrees with the counsel for the trustees.) By the Act, it is proposed now to distribute the fund among the testator's children absolutely. One or more may dispose of or spend their share while the widow lives, and then die leaving children, in which event such children will be deprived of the property which, but for the Act, would have been theirs under the will. In other words, the children of each parent have now a right to their parents' share, should such parent die before the widow and this right the Act takes from them. Moreover, it is conceded, by Mr. Cameron at least, that should any child die with- out issue during the widow's life, such child would never become entitled to anything, while it is now proposed by the statute to give him his share absolutely. It may be added that the fact of five of the testator's children being daughters, and the possibility of a second marriage of a 3on-in-law during the lifetime of the widow, mak^ii it the more prudent to protect the rights of the grand-children, and may have influenced the testator in making the provision found in his will for that purpose. Suppose the testator, instead of making this will, had, while living, settled the money in the same terms, would any one then have ventured to assert the justice of in- terfering with it, either during, or after his lifetime ? And why are not his wishes, as expressed in his last will, to be at least equally binding ? In Sidmouth vs. Sidmouth, 2 Beav. 456, Lord Langsdale says : — "The parent may judge for himself when it suits his own convenience, or when it will be best for his son to secure him any benefit which he voluntarily thinks fit to bestow upon him, «fec." Note— For copy of Mr. Goodhue's will, see Sessional Papers, 1877, volume 9, No. 89, pp. 186, 189. 100 ONTARIO LEOI8LATION Beport of the Honnurabh the Minitif<'.f of Justice, approved hy His Excellency the Govermtr general in Council on the 22nd ^iejdember, 1S71. Department of Justice, Ottawa, l8th September, 1871. With reference to the Imperial " British North America Act, 1867," and also to the Order in Council of the 9bh June, 1868, on the memorandum of the undersigned, relative to the course to be pursued with respect to the Acts passed by the provincial legislatures, the undersigned has the honour to report : That in his opinion all the Acts passed by the legislature of the province of Ontario, in the session hold in the 34th year of Her Majesty's reign (1870) being the fourth session of the first Parliament of Ontario (with the exception of those under- mentioned, which will be the subject of a further report), are free from objection of any kind. He therefoie recommends that the same be left to their operation. The following are the exceptions above alluded to : — Cap. 4. — An Act to provide for the organization of the Territorial District of Thunder Bay. Cap. 17. — An Act to provide for the establishment and government of a Central Prison for the province of Ontario. Cap. 48. An Act to enable the Municipalities along the line of the Grand Junc- tion Railway Company to grant aid thereto, and to legalize certain by-laws granting aid to the said Company. Cap. 75.— An Act to incorporate the Simpson Loom Company (Limited). Can. 99. An Act to confirm the Deed for the distribution and settlement of the Estate of the Hon. George Jervis Goodhue, deceased. All of which is respectfully submitted. JOHN A. MACDONALD. Report of the Honourable the Minister of Justice, approved by His Excellency the Governor General in Council on the 2Srd February, 1872. Department of Justice, Ottawa, 22nd February, 1872. With reference to the report of the 18th September last, on the subject of the Acts passed by the legislature of Ontario, in the 34th year of Her Majesty's reign, the undersigned has the honour further to report, as follows : — Chapter 4. — With respect to chapter 4, intituled : " An Act to provide for the organization of the Territorial District of Thunder Bay," the undersigned thinks it well that the attention of the government of Ontario should be called to the proviso in the 13th section, which enact-? that "no appeal shall be from any judgment or decision of . the stipendiary magistrate." This would seem to be an enactment affecting procedure in criminal matters, and if so, it is ultra vires. Ch^ter 17, intituled : "An Act to provide for the establishment arid government of a Central Prison for the province of Ontario," seems also, in several of its clauses, to deal with matters of criminal procedure, and especially in the 13th, 14th, 15th and 38th clauses. The attention of tho provincial government should be invited to this Act with the view of amendment, unless it is considered advisable that a confirmatory Act should be passed by the Parliament of the Dominion. This latter course the undersigned thinks the better one, as the Act in question will be of great advantage in furthering and aiding the proper administration of criminal justice. Chapter 48, intituled : " An Act to enable the municipalities along the line of the Grand Junction Railway Company to grant aid thereto, and to legalize certain by-laws granting aid to the said Company." t Excellency the n. 3inber, 1871. 867," and also to the undersigned, by the provincial the province of (1870) being the 1 of those under- rom objection of >eration. itorial District of ent of a Central the Grand June- laws granting aid iimited). iettlement of the CDONALD. is Excellency the bruary, 1872. le subject of the Majesty's reign, the provide for the ned thinks it well he proviso in the nt or decision of linal matters, and b arid government ral of its clauses, h, 14th, 15th and this Act with the )ry Act should be le Act in question administration of )ng the line of the ze certain by-laws 34 VICTORIA, 1870-71. 101 Petitions have been received for the disallowance of this Act, but as it is witliin the conii)etence of the provincial legislature, the undersigned recommends that it be left to its operations. . ,^. ., . , o .i Cliapter 99.—" An Act to confirm the Deed tor the Distribution anil hettlement of the Estate of the Honourable George Jervis Goodhue, deceased." This Act has also been petitioned against, but for the same reason as that given with respect to chapter 48, the undersigned recommends tliat it be left to its operation. Chapter 75, intituled : " An Act to incorporate the Simi)Hon Loom Com[)any (Limited)." ,,..,.. - i , i The second clause of this Act seems to be beyond the jurisdiction ot the local lo-'islature, as it affects the patent laws. The undersigned does m)t, however recom- mend the disallowance, leaving the matter to be adjudicated upon by the legal tnbunah*. Chapter 19, intituled : " An Act relative to Government Road Allowances, and the quantity of Crown Timber Licenses therefor." A petition has been received from the municipal council of the county ot b ron- tenac, praying for the disallowance of this Act, but, as it is clearly within the compet- ence of the local legislature, the undersigned recommends that it be left to its operation. All which is respectfully submitted. JOHN A. MACDONALD. 102 ONTARIO LEfllSLATION, 35 VICTORIA, 1871-72. I i { ( } ONTARIO— 35th VICTORIA, 1871-72. IST SK88ION— 2nd PARLIAMENT. Report of the Honourable the Minister of Justice, approved hy Hia E:ecellenry the Governor General in, Council on the 10th January, lS7d. Department op Justice, Ottawa, 6th January, 1873. The undersif^ned, to wliom was referred certified copies of the Acts passed by the legislature of tlie province of Ontario, in the session held in the 35th jear of Her Majesty's reign, and assented to by the Lieutenant Governor on the 2nd March last, has the honour to report as follows ;— Chapter 13, intituled : "An Act to provide for the institution of suits against the Crown by Petition of Right, and respecting procedure in Crown suits." With respect to this Act, the undersigned recommends that the attention of tlie Government of Ontario be called to the fact that it is so general in its terms, that it may be held to apply to claims against tlie (Jovernment of the Dominion. It is presumed that this is not the intention, as the second clause of the Act pro- vides, that the fiat for a petition of right must be granted by the Lieutenant-Governor of the province. Now, it is obvious that in case of claims against the Dominion, the fiat should be granted by the Governor General. The passing of a short Act removing the doubt is suggested. Chapter 36, intituled : " An Act for the prevention of corrupt practices at Muni- cipal Elections." The 17th section of the Act appears, to the undersigned, to be objectionable, on the ground that it seems to deal with the evidence to be received in criminal proceedings, and is, therefore, beyond the competence of the provincial legislature. The attention of the Government of Ontario should be called to this, with a view to its amendment in the ensuing session of the legislature. Chapter 37, intituled : " An Act to establish Municipal Institutions in the Districts of Parry Sound, Muskoka, Nipissing and Thunder Bay." While the undersigned recommends that this Act should be allowed to go into operation, he thinks it well that the 26th section should be brought under the notice of the local government. The undersigned doubts the power of the provincial legislature to give a municipal council power to pass by-laws limiting the number of licenses for the sale of intoxicating liquors. Such legislature has the power of making laws r»:pect- ing licenses in order to the raising of a revenue, and apparently for no other purpose. If it cannot itself limit the number of licenses to be issued, it would seem that it cannot confer that power on a municipal council. With these exceptions, all the said Acts appear to be unobjectionable. The undersigned has, therefore, the honour to recommend that all the said Acts, except chapters 13 and 36, be left to their operation, and that with respect to those two Acts, further communication from the Ontario Government will be waited for. JOHN A. MACDONALD. Memorandum on above Report. On further consideration of Act 35 Vict., chap. 13, it was the opinion of the Minister of Justice, that it can only be held to apply to litigation, in matters Within the jurisdiction, and could not be held to the Crown in Dominion matters, and that it was therefore unobjectionable. The Act 35 Vict., chap. 36, has been amended in accordance with the suggestion made in the preceding report. The clause 17, above objected, being amended by 164th section of statute 36 Vict., chap. 48, it is now unobjectionable §'woac? the clause objected to. Ha Excellency the ,i. iiiuary, 1873. Lcts passed by the 35th J ear of Her le 2nd March last, f suits against the I) I attention of tlie I its terms, that it ion. ( of the Act pro- jutenant-Governor ilie Dominion, the lort Act removing practices at Muni- jectionable, on the ninai proceedings. The attention of its amendment in »ns in the Districts llowed to go into nder the notice of vincial legislature iber of licenses for king laws r»:pect- no other purpose. Jem that it cannot lable. all the said Acts, !8pect to those two aited for. .CDONALD. '.•.J he opinion of the matters within the , and that it was th the suggestion amended by 164th clause objected to. For Report of Executive Council of Ontario referred to in Despatch of Lieutenant-Governor of Ontario, dated 16t' January, 1874, see Appendix 0, pages 1324-1326, ONTARIO r.KfilSLATION, M VirTORIA, 1873. 103 ONTAKR), ;jGth VKJTORIA, 1873. 2ni) Sksmion— 'Jnd Farmamknt. jferred to in 6t' January, Report of tim Ilononrahle t/n' Ministp.r o/Jii.s/ic<; a/i/irovfif Inj //in Errel/eucy the ftovernnr iii.neral in Council on th: .iotk Auyanf, lS7,i. Department of Justioe, Ottawa, 2r)tli August, 1873. With reference to the Acts passed by tho Ipj^isliituio of the provinco of Ontiirio in the session held in the thirty-sixth year of Her Majesty's reij:?n, being the 8e<'oiid session of the second legislature of that province, the undersigned has the honour to report : — That after a careful examination of the Acts in (juestion, he is of opinion tiuit, excepting chapters l', 3, 4, 31, 35, 47, 48 and 50, tliey are all unobj(>ctional)le. With respect to chapter 2, intituled : " An Act to amend the Law respecting elections of iVIembers of the Tjegislative Assembly ; and respecting the tiial of such elections," the 7th and 11th sections are ultra vivn, as they declare certain actions of election af .its and candidates to be misdemeanours. (See reply to this report, by Executive Council of Ontario, in despatch of the Lieutenant-Governor, Ontario, to Secretary of State, 16th January, 1874.) This is legislation as to criminal law, which is beyond the jurisdiction of the provincial legislature. The undersigned recommends that the attention of the Government of Ontario be called to these two clauses, with the view of having them amended at the next session of its legislature ; meanwhile the undersigned does not propose that the Act should be disallowed. He also recommends that chapter 31 intituled: "An Act to make further pro- vision as to the custody of insane persons," be brought under the notice of the local government. The Act appears to be unobjectionable, except as regards the 29th section. That clause provides that " upon the appearing to the Lieutenant-Governor that an insane person has come, or been brought into the province, from some other province or country, the Lieutenant-Governor, by his warrant, may authorize the removal of such insane person back to the province or couiilry from whence he has been brought." It is believed that the provincial legislature has no power to authorize any such extradition. For the purpose of authorizing an insane or any person to be removed from one province of the Dominion to another, Iv^gislation must be procured from the Parliamen*^ of Canada ; and for the purpose of removing out of the Dominion, an Act must be passed by the Imperial Parliament. The attention of the provincial government is also invited to cap. 35, intituled : " An act to provide for the incorpor>',tion of Emigration Aid Societies in the Province of Ontario." By the 13th section it is provided that certain written contracts entered into by an immigrant can be enforced by civil suit ; and also that the refusal by such immigrant to perform certain obligations undertaken by him, shall be an oifence cognizable before a justice, and punishable by fine, and imprisonment until the fine be paid ; the clause further enacting that the payment of such fine shall not prevent or affect any civil remedy under the contract. m s)i :.• 104 ONTARIO LEGISLATION The use of the word "oflFence" in this clause, and the conviction for such offence being placed in contrast to a civil remedy, would appear to make conviction by the justice a criminal proceeding. The undersigned would beg leave to suggest the inex- pediency of describing, in provincial statutes, any breach of the law of the province, as an offence. The loth paragraph of the 19th section of "The British North America Act, 1867," enables a provincial legislature to make laws in relation to the imposition of punish- ment by fine, penalty or imprisonment, for enforcing any law of the province. The word " ofience " in legal parlance seems to imply a breach of the criminal law, and when not expressly declnred to be treason or felony, may be considered as synonymous with raisdenieanom. On reference to the loth section of the same Act, it will be seen that it also deals with the criminal law, by declaring that certain false statements shall be misdemeanours, punishable as wilful and corrupt perjury. Chapter oO, intituled " An Act to organize the Municipality of Shuniah, and to amend the Act for establishing Municipal Institutions in Unorganized Districts," seems to be unobjectionable, if the territory included in such municipality shall, when the western boundary of Ontario is settled, proved to be within the limits of that province. The undersigned desires to bring this under the notice of your Excellency and of the Local Government of Ontario, lest, by your Excellency allowing the Act to go into operation without remark, it might be held to be an acquiescence in the extent of territory claimed for the province. The undersignt therefore, begs leave to recommend that all the Acts of the said session, except chapters 3, 4, 34, 47 and 48, which will be reported upon hereafter, and chapters 2, 31, 35 and 50, to which the attention of the Government of Ontario is invited in this report, with a view to their amendment in the ensuing session of the legislature, be left to their operation. , All of which is respectfvUy submitted. JOHN A. MACDONALD. Note.— Chaps. 3, 4, 34, 47 and 48 do not appear to have lieen subsequently dealt with by the Minister of Justice. Report of the Honourable the Minister of Justice, approved hy His Excellency the Goveriior General in Council on the 29th August, 1873. Department of Justice, Ottawa, 25th August, 1873. The undersigned has had under consideration two Acts passed by the legislature of the province of Ontario, at its last session, entitled respectively : " An Act to incorporate the Loyal Orange Association of Western Ontario," and " An Act to incorporate the Loyal Orange Association of Eastern Ontario," which were reserved by the Lieutenant-Governor for the assent of Your Excellency, and now begs leave to report : That these Acts purport to incorporate two provincial associations. That the only object of these associations, appearing on the face of the Acts, is the holding of property, real and personal. That this being a provincial object, the Acts are within the competence and juris- diction of the provincial legislature. Such being the case, in the opinion of the undersigned, the Lieutenant-Governor of Ontario ought not to have reserved these Acts for your Excellency's assent but shouid have given his assent to them as Lieutenant-Governor. Under the system of Government that obtains in England, as well as in the Dominion and its several provinces, it is the duty of the advisers of the executive, to recommend every measure that has passed the legislature for the executive assent. The provision in "The British North America Act of 1867," that your Excellency may reserve a bill for the signification of Her Majesty's pleasure, was solely ma,de with the view to protection of imperial interests, and the maintenance of imperial policy, aairii tion for such offence ke conviction by the to suggest the inex- iw of the province, as 1 America Act, 1867," imposition of puniwh- le province. 1 of the criminal law, lay be considered as een that it also deals lall be misdemeanours, Y of nized ality imits your owin, ;ence Shuniah, and to Districts," seems shall, when the of that province. Excellency and w the Act to go in the extent of 11 the Acts of the said sd upon hereafter, and srnment of Ontario is nsuing session of the MACDONALD. dealt with by the Minister bv His Excellency 4,1873. 5th August, 1873. ssed by the legislature r : V"estern Ontario," and I Ontario," which were cellency, and now begs ations. face of the Acts, is the ! competence and juris- 3 Lieutenant-Governor Excellency's assent, but nd, as well as in the 3rs of the executive, to executive assent. " that your Excellency 3, was solely made with ace of imperial policy, and in case your Excellency should exercise the power of reservation conferred upon you you would do so in your capacity as an imperial officer, and under the royal instructions. kSo, in any province the Lieutenant-Governor should reserve a bili m Ins capacity as an officer of the Dominion, and under instructions from tho Governor General. The ministers of the 'Governor General and of the Lieutenant-Governor are alike bound to oppose in the legislature, measures of which they disapprove, and if, notwith- standing, such a measure be carried, the ministry should either resign, or accept the decision of the legislature, and advise the passage of the bill. It then rests with the Governor General, or the Lieutenant-Governor, as the case may be, to consider whether the Act conflicts with his instructions or his duty as an imperial or a Dominion officer, —and if it does so conflict, he is bound to reserve it, whatever the advice tendered to hun may be ; but if not he will doubtless feel it his duty to give his assent, in accordance with advice to that effect, which it was the duty of his ministers to give. With respect to the present measures, the undersigned is of opinion that the Lieutenant-Governor ought not to have reserved them for your Excellency's assent, as he had no instructions from the Governor General in any way affecting these bills. They are entirely within the competence of the Ontario legislature, and if he had sought advice from his legal adviser, the Attorney General of Ontario, on the question of competence, he would have undoubtedly received his opinion that the Acts were within the jurisdiction of the provincial legislature. This is evident from the fact t\w^ (as appears by Votes and Proceedings of the legislature) the Attorney General v >, ed for and supported the bills as a member of the legislature. Under these circu nstances, the undersigned recommends that the Lieutenant-Governor be informe J that your Excellency does not propose to signify your pleasure with respect to these reserved Acts, or to take any action upon them. The legislature of Ontario will, at its next session, wliich must meet before the expir- ation of the year within which, by the constitution, your Excellency has power to signify your pleasure, have the power, if it pleases, of considering these measures anew, and re-enacting, or rejecting them at its discretion. If the Acts should again be passed, the Lieutenant-Governor should consider him- self bound to deal with them at once, and not ask your Excellency to intervene in matters of )rovincial concern, and solely and entirely within the jurisdiction and com- petence of the legislature of the province. JOHN A. MACDONALD. «'i! 106 ONTARIO LEGISLATION ONTARIO, ;}7th VICTORIA, 1874. 3rd Skssion — 2nd Parliament. Report of the Honourable the Minuter of Justice, approved by His Excellency the Governor General in Council on the Ist Ajrril, 1875. Department of Justice, Ottawa, 18th November, 1874. The undersigned has the honour to report upon certain Acts of the legislature of the province of Ontario, passed in the 3rd session of the second Parliament of Ontario, as follows : — Chapter 5.—" The Ballot Act, 1874." Section 27 provides punishment by imprisonment for different offences, amongst which is that of forging, or counterfeiting, or fraudulently altering ballot papers, &c. It is suggested that it is not within the competence of a legislature to legislate on the subject of forgery, and that this clause will be in conflict with 32nd and 33rd Vic, Chap. 19, or some sections thereof. Chapter 7. — "An Act to make further provisions for the due Administration of Justice." This Act provides for the appointment, in the manner prescribed by " The Briti.sh North America Act, 1867," of three additional judges who are to be called Justices of the Court of Error and Appeal. The 2nd section provides that " the additional judges, so to be appointed, may be selected from the judges, for the time being, of the courts of Queen's Bench, Chancery and Common Pleas, or from such barristers as are eligible to In appointed judges of those courts." It is suggested that this provision, although put in a permissive sense, in so far as it limits the appointment of the judges, to such barristers as are eligible to be appointed judges of the courts mentioned, is ultra vire.% as by reference to " The British North America Act, 1867," clause 97, it will be found that the only limit upon the discretion of the Governor General in selecting judges for the several provinces is, that they shall be selected from the bars of the provinces respectively. It Avould appear, therefore, that this provision is ineffectual, as being beyond the jurisdiction of a provincial legislature, and that the Governor General would not, in this particular, be bound by such a limitation imposed on him in the appointment to the Bench. The 5th section deals with the question of -ank ami precedence. It gives the chief justice of the Court of Error and Appeal rai.k and precedence over all the other Judges of Her Majesty's Courts of Law and Equity in Ontario, " and the other judges of the said Court of Error and Appeal appointed under that Act, and the chief justice of Ontario, the chancellor of Ontario, and the chief justice of the Court of Common Pleas, shall have lank and precedence between themselves, according to their seniority of appointment to any of the said offices." The undersigned suggests that the question of rank and precedence of functionaries appointed by the Crown, is a matter which can be dealt with solely by the Crown, or by the authority to whom the Crown delegates the same. ,^' mfr is Excellency the amber, 1874. ;he legislature of id Parliament of offences, amongst Hot papers, itc. iture to legislate ;h 32nd and 33rd idministration of by " The British called Justices of ppointed, may be IJench, Chancery )ointed judges of iense, in so far as e to be appointed he British North on tlie discretion i, that they shall being beyond the al would not, in pointment to the ce. It gives the )ver all the other the other judges t, and the chief of the Court of ccording to their ) of functionaries the Crown, or by 37 VICTORIA, 1874. lor There is no delegation to a provincial legislature of the right to grant the same and it can hardly be urged that the precedence of judges can be deemed to be within the subject of the administration of justice within the province, oi- of the constitution and organization of provincial courts ; nor is it a matter of a merely local or private nature in the province. It is stated by Chitty— " Prerogatives of the Crown "—that the judges, generally speaking, derive their authority only from the Crown. He states also " the Crown alone can create and confer dignities and honours ; the King is not only the fountain, but the parent of them." " To the Crown also belongs the prerogative of raising practioners in the courts of justice to a superior eminence, by constituting them sergeants, itc, or by granting letters patent of precedence to such barristers as His Majesty thinks proper to honour with that mark of distinction, whereby they are entitled to such rank and pre-audience as are assigned in their respective patents." Dodd in his Manual of Dignities, states that "precedence is part and parcel of the law of England, subsisting under the authority of Acts of Parliament, solemn decisioiis in courts of justice, or public instruments proceeding from the crowr\." " It is to be observed ♦ * * seniority is amongst the leading prin- ciples of our system of precedence * * * Dates of patents and commis- sions determine the precedence which individuals of the same rank take amongst each other, and thus the station and degree of each are ascertained, by means, which rarely admit of controversy or doubt." " Rank and precedence in England may of course be granted to any person by the supreme power of the legislature ; or it may be imparted by an exercise of the royal prerogative in the form of a patent or warrant. Where the legislature is silent, or the sovereign has not thought it necessary to interfere, the particular station confessedly held and fully recognized to belong to any class, may be presumed to rest upon imme- morial usage." In England the rule appears to be undoubted that, unless precedence of judges is fixed by the exercise of the royal prerogative, or by Act of Parliament, they take pre- cedence amongst each other according to seniority of appointment. If it were necessary to make specific allusions to cases in which the point has arisen, it is believed that many precedents might be cited as being governed by this rule, but the undersigned suggests that the attention of the Lieutenant-Governor be drawn to this matter, with a view of making such amendment to the Act as his govern- ment may deem most likely to meet the case. Chapter 28. — " An Act to amend and consolidate the Public School Law." Sec. 1 84 provides that a pei-son willingly making false declaration of his right to vote shall be guilty of a misdemeanour. It is suggested that this is beyond the provincial legislative competence ; and the same remark applies to sec. 189, which provides that oflFenders, in respect or that section mentioned, may be indicted and punished for any of the offences thereinbefore men- tioned as a misdemeanor. Chapter 32. — "An Act to amend and consolidate the law for the sale of Fer- mented or Spirituous Liquors." Section 24 provides that no person shall sell, by wholesale or retail, any spirituous fermented or other manufactured liquors in the province of Ontario without first having obtained a license under the Act authorizing him so to do. Section 25 provides that no person shall keep, have in any house, Act. p9ct of trade and ant-Governor be I his GovernniPnt r of Justice. anada. itober, 1875. Council, approved 175, having refer- icy the Governor his Honour the State, dated 5th 5, 7. 28 and 32) Rt Secretary. ffis Honour the ^ 1S75. late Minister of is Excellency in r by a despatch he subject being n of the second his report : — ihapter 5 of 37 10 person shall," eface or fraudu- eputy returning I of this section erin not exceed- son, to imprison- 11 r." The report te on the subject dominion Act 32 hich the Ontario J . — II Whosoever cument or thing any such forged ny, and shall be ■ot less than two )r any term less than two years, with or without hard labour, and with or without solitary confinement ; and the wilful alteration, for any purpose of fraud or deceit, of any such document ot thing, or of any docunient or thing, the forging of which is made penal by this Act, shall be held to be a forging thereof." Reading this section in connection with the rest of the Act, it does not appear certain that the section will be held by the courts to apply tf the "constitu- 3res8 jurisdiction, ilation of the pre- d, also, that the 18 regulated by a Canada, cap. 10, ers of precedence litted ; for in the irerogative can be I submits that he », shown to be an ouncil approving dominion Govern- form merely. It w, cap. 28, which violation of a pro- , 31 Vic, cap. 71, ansniitted to the ng thereof, on the )ting in provincial wrong doing. But on of a provincial ion, the Dominion ur legislation, the term be avoided ain sections of the cap. 32, Ontario), report of the late case of llegina rs. the jurisdiction of AT, iriiey (General. lency the Gov.rnor ember, 1874. the legislature of •eign, on the 24th to amend the Law Ontario, have (1) )r have (2) become 37 vicTOiiiA, 1874 111 forfeited, whether for treason or felony, or any other cause, the Attorney General may cause possession of such lands, itc, to be taken, in the name of the Crown. It also provides that the Lieutenant-Governor in Council may grant lands which may be so escheated or become forfeited, with a view of restoration tt) any of the family of the person to whom it had belonged, and the same without entry or inquest of othee being found. The Act also provides that the Lieutenant-Governor in Council may make any assignment of personal property to which the Crown is entitled (1) by reason of the person last entitled thereto liaving died intestate, without kin or other persons entitled to succeed thereto, or (2) by reason of forfeiture of the same to the Crown ; and further, that the Lieutenant-Governor may waive or release the right of the Crown in such property. The undersigned is strongly inclined to entertain the opinion that this law is not within the competence of a local legislature, upon the following grounds, viz. : — First, as to Escheats, The law of England (except in so far as the same may have been affected in England by statute law, not applicable to Canada) prevails in the province of Ontario. The practice prior to confederation was for the issue, under the great seal of the late province of Canada, of Her Majesty's writ to commissioners, recjuiring them to summon a jury to ascertain the particulars of the estate, and its escheat to the Crown, and upon in(|uisition held, and return thereof, the same was filed in the Court of Queen's Bench of Upper Canada (now Ontario). The question is, whether circumstances are now varied, and whether escheat being a prerogative of the Crown, anything is to be found in " The British North America Act, 1867," by which the same is devolved upon the government of a province. Unless, there- fore, any such power is, by that statute, conferred upon the Local Government, the exercise of Her Majesty's pierogati\e would rest with the Governor General of Canada as her representative. The undersigned is not aware of any grounds upon which the legislature of a province can assume a right to legislate as to the prerogative right of escheat, unless it be claimed under : {a) Section 92, subsection 13, " property and civil rights in the province," or ; {b) Section 109, which provides that " all lands belonging to the several provinces cf Canada at the date of the union are to belong to the several provinces of Ontario * * * * in which the same are situate." As to the first point, concerning " property and civil rights " in the province, it appears to the undersigned, that so long as lands escheat to the Crown by reason of failure of issue (or from any other cause, if such there be, as distinct from forfeiture) the Legislature of a province, under the powers guaranteed to it in respect to property and civil rights by the 92nd section of "The British North America Act, 1867," cannot legislate or take any action, in derogation of the rights of Her Majesty. No prerogative rights of the Crown are vested in the Lieutenant-Governor of a province, unless it be under " the British North America Act ;" nor does his commission, issued by the Governor General under the Great Seal of Canada, confer on him the right of using or exercising any prerogative. There would, therefore, be no authority in the Lieutenant Governor to exercise the prerogative of the Crown is respect to escheat, nor would the I^egislature have com- petence to deal with such right, or to confer any powers on the Lieutenant (Governor in respect thereof ; nor would the Queen be bound by any Acts of a local legislature in " respect to property and civil rights " arising in regard to her Crown. If, however, they lay claim under the 109th section of " The British North America Act, 1867," the latter cannot apply, inasmuch as that section has reference alone to lands belonging to the province of Canada * * * * at the date of the union, and in such case the section would give no power to Ontario to deal with such lands as might become escheated to the Crown since the date of the Union, 1st July, 1867. ! ■I 112 ONTARIO LEGISLATION !■ Moreover, if tb.e 109th section of " the British North America Act, 1867," is relied upon, it must be remembered that such has reference to wliat are known aa "Crown lands " as c Htinguished from C-. N. A. Act, schedule 3, sec. 9) Ordnance hinds (B. ^'. A. Act, sec. 91, sub-sec. 24) Indian lands, and that the Act could not, if it applied to any lands, apply to the two latter classes. Second, an to Forfeitures. The Act of Ontario provides (1) that whenever any lands have become forfeited, whether for treason or felony, or for any other cause, the Attorney General may cause possession to be taken in the name of the Crown, &c., and that the Lieutenant-Governor in Council may make any grant of forfeited lands, or any assignment of personal prop- erty to which the Crown is entitled (1) by reason of the person last entitled thereto having died intestate and without leaving any kin, or (2) by reason of the same having become forfeited to the Crown. The forfeiture of lands or personal property for treason or felony (or for other cause than forfeiture for want of heirs) is also a matter of prerogative right of the Crown, the power of granting the same after the forfeiture has accrued to the Crown has not, by the British North America Act, been conferred upon a proviace or its Lieutenant-Governor, and it must still, therefore, continue to be administered by the Governor General of Canada as Her Majesty's representative. The Act of Ontario tends to confer power on the Lieutenant-Governor in Council to restore lands or personal property, forfeited for crime, to the family of the person to ■whom the same had belonged. This is in effect giving the power to exercise an attribute of pardon in the prerogative of mercy. .... Moreover, forfeiture is to be regarded as a matter of criminal law and criminal procedure— subjects which, by section 91 of "The British North America Act, 1867," subsection 27, are within the exclusive legislative jurisdiction of the Parliament of Canada. It should also be mentioned that the subject of forfeiture by corruption of blood has been already partially dealt with by the Act of Canada of 1869, 32 and 33 Vic, Chap. 29, sections 55 and 56. These sections provide that, except for certain offences, the attainder shall not disinhe: it the heir ; but only the right of the offender during his natural life. The Act of Ontario will be found to be in conflict with this provision of the Act of Canada. In either view, therefore, whether, as affecting Her Majesty's prerogative, or as entrenching upon the criminal law or criminal procedure, the undersigned is of opinion that the legislature of a province has no power to legislate in respect to forfeiture to the Crown, of land or personal property. But the statute deals also with forfeiture of personal property, by reason of want of kin o. other person entitled to succeed thereto. The views expressed above, in reference to escheats, are, in a great measure applic- able to this point. . The undersigned is equally of opinion that, under the head of " property and civil rights," no provincial legislature can exercise authority, in respect to the right of the Crown, to the personal property of an intestate, leaving no persons capable of inheriting. ■ u u t • The undersigned recommends that communication should be had with the Lieutenant- Governor of (Ontario to the above effect, suggesting that the Act in question is beyond the legislative competence of the legislature of Ontario, and that the same should therefore be repealed. < H. BERNARD, Deputy Minister of Justice. I concur. T. FOURNIER, Minister of Justice. ct, 1867," is relied aa "Crown lands " ds(Ji. ^•. A. Act, )lied to any landa, become forfeited, reneral may cause jutenant-Governor of personal prop- st entitled thereto t the same having (or for other cause of the Crown, the wn has not, by the lutenant-Governor, avernor General of )vernor in Council y of the person to Lerciae an attribute 1 law and criminal nerica Act, 1867," : the Parliament of )rruption of blood )9, 32 and 33 Vic, •r certain oflences, offender during his rovision of the Act prerogative, or as igned is of opinion !ct to forfeiture to by reason of want eat measure applic- ' property and civil to the right of the 36 r sons capable of ^ith the Lieutenant- question is beyond ,t the same should RNAED, iter of Justice. 37 VICTORIA, 1874. 113 Lieutenant-Governor Crawford to the Secretary of State of Canada. Government Houhe, Toronto, 22nd February, 187'). Sir, — With further reference to your despatch of the 28tli November last, respecting the disallowance of the Act pjussed by the Ontaiio logishiture, in reference to "escheats and forfeitures," I liave now the honour to transmit, for tlio consideriition of his Excellency the Governor (leneral in Council, copy of an order in council, upprov- ed of by me on the 22nd of Feb 'uary, 1875, together with copy of report on the subject, by the Honourable the Attorney General of this province. I have, etc., JOHN CRAWFORD. Lieutenant Governor, Re])ort of the Ilonourahle Attorney General Mo}ral, njyfyroved by 11 in Honor the Lieutenant Governor in Council, on the :i^nd day of Fehrnary, I87o. The undersigned has had under consideration the report of the Dejiuty Minister of Justice, dated 18th November, 1874, with reference to the act to amend the law respect- ing esclieats and forfeitures, passed 24th March, 1874, which report was concurred in by the Minister of Justice and approved by an order of the Privy Council, dated 27th November. Copies of these papers having been received here during the late session of the Ontario legislature, it was impossible for the undersigned to give to them immediate attention. The undersigned trusts that after the Minister of Justice has had an opportunity of reading and considering what the undersigned has now to submit, in support of the act of the Ontario legislature, he will not hesitate to withdraw the concurrence which, in the absence of any statement of the provincial view, he was led to express in the forcibly stated, but exparte opinion and recommendation, of his deputj'. The under- signed ventures to affirm (notwithstanding the arguments of the Deputy Minister of Justice to the contrary) that the act in question was not ultra inres, but wa^ entirely within the authority of the legislature to pass, and that, if this is not clear, v .e proper course will appear to be, confirmatory legislation on the part of the Dominion Parlia- ment, and not the disallowance of the act, or its enforced repeal. The matter is not likely to be very important to the Dominion or provincial exchequer, but is important for the principle on which the recommendation of the report is based. Property escheated or forfeited in the Dominion for crime, is too small for any contention about it, even if the custom were for such property to be applied to public uses ; and property escheated for want of heirs or next of kin has also amounted, hitherto, to very little. The undersigned is aware of but one estate of any con.'iderable amount which is supposed to have escheated for want of heirs ; and this estate is now in litigation in chancery, and is confidently claimed by several persons as being the legal heirs of the deceased. But when escheats and forfeitures occur, it has not been usual for the Crown in England, or this country, to take advantage of them for the benefit of the crown, or the public. The course, according to British usage, is stated in the books to be, that, upon a memorial being presented, " the Crown will often make a grant of escheated property to persons having moral claims upon the intestate ; as, for instance, illegitmate children to whom the property has been given by an invalid will," etc., etc.; " and in the same manner, it is stated that in practice the goods of felons are rarely, if ever, seized to the Crown's use." Tliat, where " a grant must be procured in order to make a title, either to the convict's forfeited or escheated estates in land, or to his lease- holds, money in court, or in the hands of parties requiring a valid discharge for it," the practice is for the convict's relatives, who conceive that they are fit objects, to memor- ialize the treasury, setting forth the facts relating to the property, and any circumstances favourable to the application, such as the indigence and good character of the memor- ialists, and on such memorial the desired grant is generally made. ii 114 ONTAKIO moiSLATlON All this, 80 far as regards lands, appears to be done in E^j^land under the authority of an imperial statute, .'?9 and 40 George HI , chap. 3, wiiich is not in force in Canada ; and that statute was the basis on which the ttli, (5th and 7th sections of the Ontario Act were framed. In this respect our Act but, brings the law of the province into harmony with what has Iwen the law of Great Britain for three-quarters of a century. The other sections of the Act (viz., the 1st, 2nd and 4th) have for their object the abolition of a preliminary process, which had its origin in a state of society that has happily pas.sed away, even in England — a process which is cumbrous, expensive, and of no practical utility at the present day. These provisions were framed in order to place the crown in the same relation to escheated or forfeited property as, in analogous cases, private individuals occupy in regard to property in general, 1. With regard to the right to such property, and to the jurisdiction to legislate respecting it, it is to bo remembered that, while property of this kind in the British North American province before confederation, was in the Queen's name, as all other public property was, and is, it did not belong to Her Majesty personally, and for her private use ; nor did it V)elong to the empire at large. On the contrary, such property, like ungranted and unappropriated wild lands, belonged to the provinces. And the provinces have still all former rights which have not been taken from them, or which they have not themselves parted with. The Confederation Act contains no clause repealing the old constitutional acts which governed the provinces, or declaring that all unenumeratfd rights founded upon, or de- rived under the former Acts, or otherwise possessed by the provinces, were to lease, or were to vest in the Dominion ; and it is not pretended i hat the Act contains any pro- vision vhich would give this property in the Dominion, ii a provision for that purpose is necessary. Either, therefore, escheated and forfeited property belongs still to the provinces, or the Crown at confederation resumed all provincial rights which the Confederation Act did not deal with, an alternative which is wholly unsupportable, and which the undersigned trusts that the authorities of the Dominion, as well as those of all the pro- vinces, will at all times unite in repudiating. The undersigned assumes it to be unden- iable that all rights of the provinces as they existed before confederation have, by the confederation act, been divided between the Dominion and the provinces, and that whatever has not been given to the former is retained by the latter. The undersigned submits that these considerations (not touched upon by the report of the Deputy Minister of Justice) are absolutely conclusive on the present question, for if escheated and forfeited property belongs to the provinces, the pro- vincial legislatures have certainly a right to deal with it, e,s falling under the head of " property and civil rights in the province." 2. But the express language of "The British North America Act 1867," happens to contain enough to establish the same view affirmatively from the Act itself. Lands, mines, minerals, royalties and other " public property " (an expression which, in English law, includes personal property as well as real), theretofore belonging to each province, are, by he 109th and 117th sections, declared to continue tobelongto such province, will, however, being and continuing to be in Her Majesty's name, but having long before, by express i-ecognizance or tacit argument, become to all intents and purposes the property of the provinces, to be used and administered by the provincial authorities for the use and advantage of the provinces, so that' such property, in the view of the Imperial Parliament, "belonged" to the provinces before the passing of the British North America Act. Such was the right of the provinces, not only with regard to lands which had never been the subject of grant by the Crown, but to lands also, which had been sold by the Crown, but not patented ; and to lands which had once been granted, but had subsequently been surrendered for provincial use, /and to lands in respect to which Her Majesty had any sort of right or interest, in trust for the provinces. The lands and other public property thus undoubtedly belonging to the provinces, amount to many thousand times more in extent and value, than all the escheated and forfeited property which will come into existence in half a century. _^' i! 37 vicTOBiA, 1874. 110 iler tho ftuthority forco in Canada ; ns of tho ( )ntario he province into rs of a cfntury. r tiioir ol)jfn!t the f society tliat has Rxpensivp, and of in order to pUico , analogous cases, iction to legishite ind in the British name, as all other tially, and for her •y, such property, vinces. And the 1 them, or which utional acts which nded upon, or de- were to lease, or contains any pro- for that purpose to the provinces, he Confederation e, and which the )se of all the pro- lies it to be unden- ion have, by the jvinces, and that )uched upon by 3 on the present ovinces, the pro- uder the head of st 1867," happens ct itself. Lands, which, in English to each province, ich province, will, ig long before, by )03es the property rities for the use w of the Imperial le British North regard to lands also, which had ce been granted, ids in respect to ivinces. The lands , amount to many 'orfeited property Now escheat is one of the few remaining incidents of the feudal tenure, and arose under the old feudal system per defectum xaiujiiiniH from the want of a tenant to per- form the services to the Lord, of whom the land was held or jti'r ilf/erfnin ti-iifntig by corruption of bliKxi by attainder, the escheat was not to the Crown unlt^ss thr down happened to be also the Lord of whom the land was held ; and many of the lands in England were hold of mesne Lords, and not of the Crown. This right of escheat was called by the old writers a species of reversion. All the lands in Ontario are held of the Crown, and not of a mesne lord, and the Crown retains in them (though limited by modern legislation) this right of escheat. On ordinary principles of construction the right so retained must be taken to have been included, and was included, like a reversion after a grant heretofore maflo for life or years, in the general words of the 109th and 1 17th sections of "The British North America Act 1867." It is impossible to suppt)se (and nobody does, in fact, suppose) that the Imperial Parliament meant to except such a right from the operation of these sections, and what Parliament must be taken to have meant, is the test of what any enactment legally signifies. • The doctrine of the report would deprive all the maritime provinces of innritina incri'mi'ntn, and of lands become di-relict by the sudden desertion of the sea. These belong to the Queen by her prerogative, but, under our system of confederation, the trust would surely be for the provinces, and not for the Dominion ; and if the trust is for the provinces, the provinces have a right to legislate and deal with such lands to the same extent, and in the same way, as they deal with other Crown lands which belong to the provinces. The undersigned agrees with the report that the Ontario Act cannot apply, nor was it designed to apply, to Indian, or to Ordinance lands. These lands were expressly reserved by "The British North America Act, 1867," to the Dominion ; and while they remain ungranted, they cannot possibly be liable to escheat or forfeiture. 3. Were the considei-ations thus advanced less conclusive than they are, an additional argument might be drawn for the provincial claim, from the position of the provinces witli reference to the administration of justice. The Confederation Act a'^signs to the provincial legislatures, power to make laws in relation to the " administration of justice in the province, including the constitution, maintenance and organization of provincial courts, both of civil and criminal jurisdiction, and including procedure in civil matters in those courts." But it has always been pre- sumed that the provinces not only have jurisdiction to make laws in relation to the administration of justice, but that on the provinces, under confederation, is imposed the executive duty, which the provinces had before, of administering justice in the Queen's name, and of bearing the expense of such administration, and the province of Ontario, being under this obligation, it has been admitted that the fees payable to the Crown on our legal proceedings since confederation, should of right, and do, belong to the pro- vince ; and that the labour of Ontario criminals who do not go to the Dominion penitentiary, should also belong to the province. Surely the occasional forfeitures which takes place for crime may, with equal reason, be construed and implied to go to the province, as incident to the administration of justice. It is impossible to draw any appreciable line of distinction ; and, if it were pos- sible, there is no just reason or good object for drawing a distinction between the right to the Crown fees, which occur on almost every proceeding, and the profits of criminal labour, on the one hand, and the right to the Crown forfeitures on the other hand. 4. A further argument in favour of the jurisdiction, is to be drawn from the express authority of provincial legislatures to make laws in relation to all mattera of merely " private nature." 5. Public convenience is obviously in favour of such property being dealt with by the province, where the question arises, and of such property being or becoming the property of the province for this purpose ; and a policy recognizing that convenience would favour all the provinces equally, and contravene no interest of the Dominion. Even when such cases arise in Ontario they may be far more conveniently dealt with by I 11 116 ONTAIilU LKniSLATtON thf provinco, thnn hy the execiitivo nnthority nt Ottawa, but, where such cases occur in till* iiion- (listiuit {ii'ovinces of th(> iHtiiiiiiinri, May in Itritish Coluinbiii, on t\u' onn si(li>, and I'l'iiii'ft Kiiwanl IsIiuhI on liic oilier, tlie coiivcnitMicT uf provincial, instciul of l)oniiniii!i action in dealing with tlii-ni, is too ))alpablf foranylMidy to<|ii(>stion it. Without local orticers to attend to such matters, the Donunion interest in them would \h? a shadow, an. arj^unieut nh incoiirfiiii'iifi in a rcicogni/.ed canon of interpretation. Arf/itiiirnhiin ali inr minds' of tho.se who settled or accepted the Act, as our constitutional charter. The report of the !)eputy Minister of .Justice nuikes .several objections to the Act in (|uostion, and the undersigned will now remark on tho.se. One objection is that the Act is in contlict with the Dominion statute, wliich confines forfeiture of lands to the life of the convict. This objection seems to refer Uy the third section of the Ontario Act, which provides for the granting of escheated and forfeited lands ; but the fact is overlooked that the third section refers to lands escheated for want of heirs, as well as to latuls escheated or forfeited for crime, and does not assume, as the Deputy Minister of Justice seems to do, that the estate to l)e granted is necessarily a fee, or more than a life estate ; but, on the contrary, provides for any interest being granted. The section must be read, reddendo sim/uln xingidi.K. The report of the Deputy Minister of Justice objects to the provision which authorizes the Lieutenant-Governor in Council to transfer escheated or forfeittid property to any one or more of the family of the person, to whom the same had belonged, the report suggesting that this provision is, in effect, giving to the Lieu- tenant-Governor the power to exercise an attribute of pardon, on the prerogative of mercy. The undersigned has already mentioned that the enactment corresponds with an Imperial enactment, which has for many years been in force in England, and the objection to its adoption by the Legislature of Ontario, may be answered by a refer- ence to social consideration. \. So far as regards the "legal ' claims to which the Act refers, the right of the Crown or public in forfeited property is subject to such claims independently of the Act; and, as to the "moral" claims, to which, also, the Act refers, if the property is ours, we must have the right of dealing wi! i; 'X as we choose. 2. The power contained in the Act is n )i to give forfeited property back to the criminal, while a pardon, where it affects the pi L;perty at all, restores it to the criminal, and he may thenceforward dispose of it re;.ir jiess of all moral claims. 3. Another satisfactory answer may ik' drawn from those enactments of the Parlia- ment of Canada before confederation, which gave to municipalities or informers, the lines and forfeitures that parliament imposed for violations of duty. As this parlia- mentary disposition of fines and forfeitures had often taken place, there can be nothing unreasonable in holding that other forfeitures continue since confederation to go to the provincial governments. The argument that the Act enables the party intitled to the forfeiture to forego part of the punishment which the law has assigned to Jbhe offence, would be at least as applicable to the fines which go to municipalities or informers, as to the forfeitures which the Act in question assumes to go to the provinces ; and, if the objection is good at all, it is, beyond all comparison., stronger as applied to the former than as applied ta the latter. B!9 cdflf's occur 111 till' OHO si(U', il, instead of II it. Witliout I lie II slim low, iiornl or lo^al •«'(l luinlly '"' iirf;iiniciit nh ificiniviiiiiii/i, >r\y, assorting ght, projMTty 1>C II clllHH of provided '' -i' ; I tlia^ .0, an as inay '>o 1 niindw of lis to till) Act )n Ih tliat the f lands to the )f the Ontario ut the fact is irs, as well as iputy Minister )r more than a . The section rovision which d or forfeited the same had J to the Lieu- prerogative of it corresponds England, and red by a refer- le right of the ndently of the he property is rty back to the ,o the criminal, s of the Parlior informers, the As this parlia- can be nothing ion to go to the iture to forego uld be at least the forfeitures )jection is good ,n as applied to The l>i>puty Minister oi Justice thinks that the circumstances of the ri^^ht to escheats and forfctiturcM being a prerogative right, atFords an argument against the ( )iitario Act. The undei'sigiicd iliH|)iit('s this notion. The recogiii/.('<| modern doctrine is, thit all prerogative rights are trusts for the benefit of the jieople ; and it is ea.sy to demonstrate that, far more of what is piercigative, falls within the acknowleilged authority oi the provinces, than within tin? authority assigned to the hoininion. luul that iiiiiiiy preroga- tive duties and i-ights devolve upon the Ijieuteiiani-dloveriii'r, iKit by tli<^ express terms of "The Hiitish North America Act, IHCiT," but from the iiatuK^ of the ollice which Im^ holds. Thus, grants from provincial governments continue of ncc3si'ity to be made in the Queen's name ; and all proceedings in the provinces for tlu. .niministration of justice, wliii'h, before confederation, were in the QutMMi's name, continue of necessity to be in the (.Queen's iiaiiK! still. In practice the provincial statut(\s also are expressiul to be by Her Majesty, with the advice and consent of the Legislative Assembly ; ami the Lieutenant-Governor, before proroguing parliament, assents, in the (Queen's name, t(j the bills which have been passed. If one thing mor" than another is matter of prerogative, it is the administra- tion of justice. The sovereign is said, by It^gal and constitutional writers, to be the "fountain of justi(re," and to have an "inherent right" inseparable from the Crown, to distribute " justice " amongst His and Her subjects. 80 it is said to be the sov((reign prerogative " to see to the execution of the laws ; " and by the 9th section of the Con- federation Act "the executive government and authority of and over Canada is declared to continue . I 1 be vested in tin; C^ueen." This plainly includes the executive goveiii- mont and authority of the province as well as of the Dominion ; the executive authority under tlii; Act being executed partly by the Oovernor General, and paitly by the Lieutenant-Governors. When the British North America Act cfmimences to set out the provisional const! tution.s, the first subject treated of is under the head of "execu- tive power." The Lieutenant-Governor, or any one discharging the duty of the Lieutenant-Governor, is called in the 62nd section " the chief executive olUcov ; " the 63rd section provides for an "Executive Council" in Ontario and Quebec, the 64th section declares that " the constitution of the execut >e authority in Nova Scotia and New Brunswick shall, subject to the provisions of the Act, continue as it existed at the union, until altered under the authority of the Act;" the 65th section provides that, all powers, authorities and functions which, under any Imperial or provincial Act were, at the union, " vested in, or exercisable by the respective Govcnors, or Lieutenant- Governors " shall, as far as the same are capaljle of being exercised after the uni(m, in relaticm to the Governments of Ontario and Quebec, respetively, be vested in and exer- cised by the Lieutenant-Governors under the new system ; and by the 82nd section it is directed that the Lieutenant-Governors of Ontario and Quebec shall, "from time to time, in the Queen's name, * * summon and ca,ll together the legislative assembly of the province." The Act gives no full enumeration or general statt.nent of the duties of the Lieutenant-Governor. To a large extent his duties and authorities are left to be implied and inferred from his character as Lieutenant-Governor or " chief executive officer," and from the known constitutional rights and duties, theretofore, belonging to the office of a Lieutenant-Governor, so far as relates to the government and legislation of the provinces. A further illustration of the same argument may be drawn from other considera- tions. Thus, the soil in our local roads is vested in the Queen, so also is the bed of our navigable streams and rivers. Nobody lias hitherto gainsaid our right to legislate for changing our roads and disposing of those which we abandon ; or for building bridges, or authorizing ferries to cross the rivers and etreams of the province, though we thus deal with what are technically matters of prerogative. Military roads alone are the property of Canada (3rd schedule) ; and the only ferries with which the Dominion has to do are "ferries between said province and any British or foreign country or between two provinces." So, also another prerogative of the sovereign, according to English law, is the care of the persons and property of miners, lunatics and idiots ; it has not hitherto been 8 IN s 118 ONTARIO LEGISLATION doubted (and the undersigned apprehends there is no reason for doubting), that provin- cial legislatures have tlieir property under their control ; and since confederation various provincial Acts have from time to time been passed with respect to them, which the Dominion authorities never questioned on this ground, and which our courts have recog- ni -ed and acted upon as valued laws. There is nothing in the " British North America Act, 1867," devolving this prerogative upon the Governor or legislature of the province, riless it is to be found in some of those general provisions which the undersigned has already quoted. These considerations show that there is no reason for presuming against a claim of the provinces, though the subjec*. may be what is technically a matter of prerogative, and has not been expressly assigned to the Lieutenant-Governors. Tlie undersigned may add, that on coming into the office he found that the govern- ments of the late Mr. Sanfield Macdonald and Mr. Blake had regarded escheated and forfeited property as belonging to the province, and as within provincial jurisdiction, and had acted on that view. The Surrogate Court here, and the Court of Chancery also, have assumed the juris- diction to be provincial, and acted accordingly. It thus appears that the jurisdiction of a provincial legislature and executive to deal with such matters rests on the strongest grounds, and that none of the objections suggested to the Act are sustainable ; and the undersigned has considerable confidence that the Minister of Justice and his deputy will, on consideration, coincide in this conclu- sion. If, in view of the whole matter, the Minister of Justice is not prepared at present to yield to the argument of strict constitutional or legal right in the provinces, the undersigned cannot doubt that he will think it both expedient and just to recommend to the Dominion Parliament to pass at its present session, an Act, confirming what has been done in Ontario ; and, either expressly giving escheated and forfeited pro- perty to the pi'ovinces, ci- distinctly recognizing by a declaratory enactment their right to such property, unless he should be content with advising non-interference by the Dominion autnorities. .i-ny such course would be in accordance with mucli that has been done in deaJiiig with provincial legislation hitherto. By a report of the Minister of Justice to the Privy Council, dated 8th June, 1868, printed in the Ontario Sessional Papers (Vol. 1, No. 19), it was justly laid down to be "of import- ance that the course of local legislation should be interfered with as little as possible, and the power (of disallowance) exercised with great caution, and only in cases where the law and general interests of the Dominion imperative'.y required it." In the same report it was recommended " that where a measure is considered only partially defective, or where objectionable as being prejudicial to the general interests of the Dominion, or as clashing with its legislation, communication should be had with the pi-ovincial government with respect to such measure, and that in such case the Act should not be disallowed, if the general interests permit such a course, until the local government has an opportunity of considering and discussing the objection takea, and the local legislature has also an opportunity of remedying the defects found to exist." The same minister, in accordance with the principles he so enunciated, declined on various grounds, recommeding the disallowance of several provincial statutes containing provisions which he regarded as ultra vires. Sometimes recommending confirmatory legislation to be submitted to the Dominion Parliament, and sometimes leaving to the courts to decide the question of the validity, if it should ever be raised. All which is respectfully submitted. O. MO WAT. 17th February, 1875. m^i mm 37 vicTOKiA, 1874, 119 oubting), that provin- confederation various t to them, which the our courts have recog- iritish North America ature of the province, I the undersigned has ing against a claim of natter of prerogative, ound that the govern- ijarded escheated and rovincial jurisdiction, ave assumed the juris- ure and executive to lone of the objections ansiderable confidence oincide in this conclu- )t prepared at present t in the provinces, the id just to recommend Act, confirming what ed and forfeited pro- tory enactment their ig non-interference by jcordance with much lerto. By a report of , 1868, printed in the wn to be " of import- ed with as little as tion, and only in cases 7 required it." iure is considered only o the general interests Dn should be had with t in such case the Act course, until the local e objection taken, and lefects found to exist." iiunciated, declined on ial statutes containing unending confirmatory metiraes leaving to the raised. O. MO WAT. Report from the Ifnnonrahh the Minister of Jiixfire, nppmvedhy Hm Excellency the Governor General in, Council on the Ist April, 1S7-'). Department of Justice, Ottav >, 26th March, 1875. The undersigned has had under consideration the report of the Executive Council of the province of Ontario, upon the report of the Attorney General of that province, on the Act })assed on the 24th March, 1874, respecting Escneats u,.-.J Forfeitures. The report of the Attorney (Genera, differs with the view expicssed in the (Jrder of the Privy Council of the 27th November, 1874, and affirms: — 1. That the Act incjuestion is not nltra vires, but is entirely within the authority of the legislature to pass ; and 2. That if this is not clear, the proper course will appear to be confirmatory legis- lation on the part of the Dominion Parliament, and not the disallowance of the Act, or its enforced repeal. The undersigned quite concurs with the Attorney (ieneral that the matter is impor- tant not as affecting the exchetjuer, but as to the principle ; and that property escheated or forfeited, whether for crime or for want of heirs, has amounted to but little, and that the Crown has, in Canada, never .sought to retain the same for its own benefit or tiiat of the public ; but has given it to the parties who, but for the escheat, would have beea entitled thereto. The course of British usage in this particular, and set forth by the Attorney General in the third page of the order of the Executive Council, is that which has been strictly followed in Canada. On all these preliminary subjects the undersigned is quite in accord with the views oxpressed by the Executive Council. With reference, however, to the paragraphs which refer to the right of pi-operty and the jurisdiction to legislate respecting it, the undersigned has the honour to remark as follows : As to the first paragraph ; this suggests : 1. That all property which was in the Queen's name prior to confederation, belongs to the Provinces ; and, 2. That all rights of the provinces as they existed before confederation, have by the Confederation Act been divided bf *^ween the Dominion and the provinces ; and that whatever has not been given to the former is retained by the latter. As to the first point, that is .settled by the 108th and 117th sections, but is apparently thereby confined to property in the Queen's name at the date of the union. ..\s to the second point, it is submitted that the view represented is hardly correct ; but that, on the contrary, whatever right has not been given to the provinces, is vested in the Dominion. This is peculiarly observable in the 91st and 92nd sections as to legislation. The former confers powers on the Queen, by and with the advice and con- sent of the House of Commons, in relation to all matters not coming within the classes of subjects by that Act assigned exclusively to the legislatures of the provinces ; and, 2. I'o gives exclusive legislative authority in certain matters by classes ; and 3. Fi'ovides, in conclusion, that any matter coming within any of the classes of those subjects, shall not he deemed to come within the class of matters of a local or a private nature, -.issigv ed exclusively to provincial legislatures. On the other hand, the legislature, which is defined to consist, as regards Ontario, of the lieutenant Govei-nor and of one House, styled "the Legislative Assembly of Ontario, ' has exclusive legislative competency in relation to matters of which the class s dre specially defined. Therefore, as the undersigned believes, escheats to be a matter of prerogative, and not % question of "property and civil rights," there seems no reason to depart from the view expressed in the Order of the Privy Council, that no prerogative rights of the Cro\< n are vested in the Lieutenaiit-Governor of a province, unless under the Confede- ration Act, and that, unless that Act can be found strictly to confer upon the Lieutenant 8i I h [1 120 ONTARIO LEGISLATION Governor, or the Legislature of a province, an express right to deal with any matter of prerogative, such power is not vested in either the one or the other authority. It may not be out of place here on this point, to quote from the despatch of Her Majesty's Secretary of State for the Colonies, of the 7th January, 1875, to the Governor General, in reference to the sentence passed in Manitoi)a upon one Lepine.j^It is as follows : " Tiie Lieutenant-Governors of the provinces of the Dominion, how((ver impor- tant, locally, their functions may he, are a part of the Colonial Administration Staff, and are more immediately responsible to the Governor General in Council. They do not hold connni.ssions from the Crown, and neither in power nor privilege resem- ble these governors of colonies to whom, after special consideration of their personal fitness, the Queen, under the great seal, and her own hand .and signet, dei».^ates portions of her prerogatives, and issues her own instructions." It is to i)e remembered, also, how great a difference exists in reference, not only to the legislative powers of a parliament or legislature, but the very distinct difference as to the component parts of each of those bodies. The Parliament of Canada is defined to consist of the Queen, the Senate find the House of Commcms, and the mode of legislation by the Parliament is defined to be that of the Queen, by and with the advice and consent of tli-^ Senate and House of Commons. Gn the other hand, the legislature of each province has a different definition. Taking that of Ontario, for instance, it is found to consist of the Lieutenant-(3overnor, and of one House styled "the Legislative Assembly of Ontario." It is true that the legislatures of the different provinces in enacting laws have used terms "Her Majesty, by and with the advice and consent of the legislative council and assembly of the province ' (or in respect of Ontario, of the Legislative Assemljiy il:' Ontario alone), and it may have been thought expedient to adopt that formula ; y<'r little doubt can be entertained that the same is incorrect ; thfit the enacting partj should be, under section 92, " the legislature " of the province, and that a Lieutenant- Governor has no power to assent to any laws of a legislature in the Queen's name, inas- much as the Queen herself has not that p(>wer, and, cannot, therefore depute it. The only instance in which, to the knowledge of the undersigned, there is an express delegation to a Lieutenant-Governor of ))rivileges of the Crown, is in the com- mission to the vjrovernor General, the 6th section of which is thus worded : "And we do further authorize and empower you to exercise, from time to time, as you may judge necessary, all powers lawfully belonging to us, in I'espect of assembling or proroguing the Senate or the House of Commons of our said Dominion, and of dissolving the said House of Commons, and we do hereby give the like authority to the several Lieutenant- Governors for the time being, of the province of our said Dominion, with respect to the legislative councils, or the legislative or general assemblies of those provinces respectively." In practice, the Lieutenant-Governor of Ontario appeals to have exercised this right, in so far as assembling or dissolving the legislative assembly ; but in respect to the proroguing, the journals of that legislature show that it is done in the name of the Lieutenant-Governor. These allusions are made as supporting the views already expressed, that the Parliament of Canada, to which the Queen is an actual party by name, and the actual enacting power, by and with the advice and consent of the two Houses of Parliament, is the only legislative power which can operate in matters not left to the provincial legislatures ; and that the Queen, not being in any way an enacting party or power, of such a legislature. Her Majesty's name is improperly used in provincial legislation, and even if so used, such user cannot justify any abandonment of prerogative o>* privilege which is not vested in the provincial legislature by the 92nd section. As to the second paragraph, the undersigned repeats 'thaf sections 109 and 117 allude merely to lands and public property belonging to the province at the time of the union, and that if property escheated, whether for want of h.eirs, or for crime, subse- quently to the date of confederation, it cannot be included as lands or propei uy belong- ing to the province at the time of the union. itli any matter of hority. despatch of Her to the (iovernor Lepine.j^It is as however iiiipor- tnistration Htaff^ Council. They • privilege resem- f their personal eii.(^ates portions ence, not only to net difference as Senate and the efined to be that use of Commons. Brent definition. ;enant-Governor, t; laws have used Hislative counci iive Assemluy n'i at formula ; yt'f enacting part} vt a Lieutenant- en's name, inas- epute it. ved, there is an 1, is ill the com- rded : " And we 3 you may judge g or proroguing ssolving the said eral Lieutenant- h respect to the bhose provinces e exercised this ; but in respect 3 in the name of •essed, that the , and the actual 1 of Parliament, I the provincial 3arty or power, loial legislation, prerogative o»* action. lis 109 and 117 the time of the )r crime, subse- ^ropei v,y belong- 37 VICTORIA, 1874. 121 As to lands sold by the Crown, prior to confederation, but not patented, the fee, so to speak, still remains iu the Crown for the provinces ; but under the 109th section the province-:, took such lands, subject to the trust of carrying out the sale whenever the purchaser complied with the terms thereof — similarly as th(^ lands which had once been grrnted, but which had subsequently been surrendered for jji-ovincial use ; and, also, t'.ie lands in respect to which Her Majesty had, on the 1st July, 1807, no sort of right or interest, but in trust for the provinces. As to the third paragraph, it does not seem to controvert the point that escheat is not within the jui-isdiction of the local legislature; and as to the fourth paragraph it can hardly be contended that escheat is a matter of a merely private and local nature. The fifth paragraph remarks that public convenience i.s obviously in favour of such property being dealt with by the province where the i|Uestion arises. This is a que£tion of expediency, and it is very possible that the arguments urged in the order of the executive council are entitled to weight. It cannot, however, afi'ect in any way the question of legislative competency, which is the one (juestion with which the undersigned proposes to rleal. Upon a reconsideration of the case, the undei signed is unable to arris-e at any other conclusion than the following : — Firstly, — That escheat is a matter of prerogative, which is not, by "The British North America Act, 18()7,'' vested in a provincial government or legislature. Secuii'lh/, — That it is not one of the subjects coming within the enumeration of subjects left exclusively to provincial legislatures. Thirdly, — That a j)rovincial legislature, by its very statutable composition, has no power to deal with the prerogatives of the Crown. Fourthly. — The Lieutenant-Governor has not, under the statute, or Ijy his com- mission, any powi_r io deal with prerogatives of the Crown ; and not being empowered to assent, !) the Queen's name, to any law of a provincial legislature, he cannot bind Her Majesty's prerogative rights. Fift/ily, —That the 109th and 117th sections of "The British North America Act, 1867," refer only to lands and public j)roperty of the several i)rovinces at the date of the union, subject to the reservations in section 108, and schedule 3. Sirthly, — That escheat cannot be dealt with under section 92, subsection 5, iu respect to the man.agement («hd sale of the public lands belonging to the province ; or subsection 13, as to property and civil rights in the province ; or subsection 16, as being & matter of a merely local or private nature in the province. Seventhly, — That forfeiture for want of heirs is virtual 1}^ escheat, and that forfeiture for crime and corruption of blood is a matter of criminal procedure. The report further submits that if, in view of the whole matter, it is not con- sidered proper at present to yield to the argument of strict constitutional or legal right in the pnn'inces, the executive council cannot douljt that it will be just to recommend to the Do'iiinion Parliament to p.iss an Act confirming what has been done in Ontario ; and either expressly giving escheated and forfeited property to the provinces, or dis- tinctly recognizing by a declaratory enactment, their right to such property, or by a non- interference on the part of the Dominion authorities. The undersigned is not prepared to say whether Parliament can confer on a pro- v'iacial legislature the powers to legislate in respect to a matter of royal prerogative ; or to recognize the right of a province to escheated propertj' ; nor does he feel justified in suggesting that the Act in question should be allowed to go into operation. He, therefore, feels it incumbent to advise that the Act of the legislature of the province of Ontario, passed on the 24th of March, 1874, intituled ; "An Act to amend the law respecting Escheats and Forfeitures " be disallowed by Your Excellency in Council. T. FOURNIER, Minister of Justice. ^Proclamation disallowing the above mentioned Act, published in the Canada Gazette, on the 3rd >lay of April, 1875. Vcl. VIII, Xo. Jfi, p. 1189.] Wi 122 ONTARIO LEGISLATION Report of the Honourable the Minister of Justice, approved by His Excellency the Governor Generai in Council on the 1st April, 1875. Department of Justice, Ottawa, 27th March, 1875. The undersigned, to wliom is referred the statutes of the province of Ontario, passed on the 24th March, 1874, has the honour to recommend that your Excellency do not exercise the rijrht of disallowance of the statutes undermentioned : Chaps. 1 to 4 inclusive, chaps. 9 to 28 inclusive, chaps. 29 to 31 inclusive, chaps. 33 to 99 inclusive^ and chaps. 101, 102 and 103. I concur, T. FOURNIER, Minister of Justice H. BERNARD, Deputy Minister of Justice. Jteport of the Hononrahl "Minister of Justice, approved by His Excellency the Governor ^ ' in Council on the 19th May, 1870. Department of Justice, Ottawa, 18th May, 187G. The undersigned begs to refer to the several reports of his predecessors upon the subject of the Act of the province of Ontario, passed on the 24th March, 1874, chap. 8, entitled , " An Act to amend the law respecting Escheats and Forfeitures," and to the despatches from the Lieutenant-Governor of Ontario with reference to that Act. Difi'erences of opinion having arisen between the two governments upon the legal questions involved in this correspondence, and the Act referred to, having been dis- allowed, as beyond the competence of the provincial legislature, it appeals to the undersigned important that these questions should be determined, and the undersigned has reason to believe that the Government of Ontario is prepared to assent to their submission under the 52nd clause of the Supreme and Exchequer Court Act to the Supreme Court for hearing and consideration. The undersigned accordingly recommends that the following questions be referred, under the said clause, to the Supreme Court for hearing and consideration, i.e. : — 1. Whether, since 1st July, 1867, any, and which of the following subjects be the property of the Crown for the province of Ontario, or that of the Crown for the Dominion of Canada, — (a.) Lands in Ontario escheated to the Crown by reason of intestacy without laAvful heirs ; (h.) Personal property in Ontario forfeited to the Crown by reason of intestacy and want of kin, or other persons entitled to succeed ; or (c) Lands or personal property in Ontario forfeited to the Crown for treason or felony, or for any other cause t 2. Whether, in case the escheat or forfeiture took place before 1st July, 1867, the same or dill'erent, and if so, what rules apply 'I 3. Whether the laws relating to any, and which of those subjects, be within the competency of the legislature of Ontario 1 The undersigned reconunends that a copy of this minute be transferred to the Lieu tenant-(}over nor of Ontario with a view to the necessary preliminary arrangements for the argument. EDWARD BLAKE, -^ Minister of Justice. is Excellency the klarch, 1875. vince of Ontario, . your Excellency )ned : Chaps. 1 to S3 to 99 inclusive^ er of Justice. w Excellency the May, 1876. ecessors upon the [arch, 1874, chap, rfeitures," and tO' ce to that Act. its upon the legal having been dis- t appears to the 1 the undersigned to assent to their Court Act to the 3tions be referred, tion, i.e. : — ig subjects be the e Crown for the intestacy without 1 of intestacy and iwn for treason or St July, 18G7, the cts, be within the ;ransferred to the lary arrangementa 5LAKE, 'er of Justice. Report of the Honourable the Minister of Justice, approved hy His E.ccellenry the Govenwr General in Council on the '^Jth October, 1876. Department of Justice, Ottawa, 18th October, 1876. The undersigned begs to refer to the Order in Council of 19tli May, 1876, upon the subject of esclieats and forfeitures, and to the various reports upon the same subject. In the report on which that order was founded, the undersigned recommended a refer- ence to the Supreme Court, with the consent of the province of Ontario, of certain questions, with a view of disposing of the legal point involved. The undersigned was led to recommend this course, for the following reasons :— 1st. With reference to forfeitures for treason, or other like cause, it was, as it is, the opinion of the undersigned that such forfeitures appertain exclusively to Canada. 2nd. With reference to escheats and forfeitures of land and personal property for want of heirs and representatives, although the opinion of the undersigned was advei'so to the pretensions of Canada, yet the views entertained by his predecessors on this sub- ject, and the course of action which had been pursued by the Government, seemed to him to render it improper that he should recommend the abandonment of the position heretofore taken, without a solemn, judicial decision. The undersigned was nob insensible of some inconvenience which might arise from the presentation of the question in the manner proposed, but it seemed, at that time, to be, upon the whole, the best mode of reaching a solution. Since that time, however, a judgment, which had been obtained in the Superior Court of Quebec, in favour of the rights of Canada, has bi-en appealed, and by the unanimous judgment of the Court of Queen's Bench, appeal side, of Quebec, composed of Mr. Chief Justice Dorion, Mr. Justice Monck, Mr. Justice Ramsaj', Mr. Justice Sanborn and Mr. Justice Tessier, reversed. The undersigned refers to a copy of this judgment, which he appends to this report. It appears to the undersigned that the more correct mode of obtaining the decision of the Supreme Court would be by prosecuting an appeal from that judgment ; but inde- pendent of a question which arises as to the practicability of appealing, tlie undersigned is disposed to attach much weight to the unanimous judgment to which he has referred, and he is of opinion that it has so altered the circumstances, as to render proper the adoption of a different course by the Government of Canada. The undersigned has reason to believe that the Government of Ontario is prepared to assent to the plan which he is about to propose. The undersigned recommends that the Order in Council of 19th May b ■ rescinded, and— 1. That for the future, unless there should be a judicial decision overruling that to which he has referred, the government should act upon the assumption that lands a)id personal property in any province, esclieated or forfeited by reason of intestacy without lawful heirs or next of kin, or other persons entitled to succeed, are subjects appertain- ing to the province, and within its legislative competence, and that the Government of Canada should decline to interfere in such matters. 2. That for the future, as in the past, unless there should be a judicial decision establishing the contrary view, the Government of Canada should act upon the assump- tion that lands and persoiuil property, forfeited to the Crown for treason, felony or other like cause, are subjects appertaining to Canada, and within its legislative competence. 3. That, in pursuance of this policy, the Government should leave to their opera- tion provincial statutes, otherwise unobjectionable, dealing with the first of these subjects, but should disallow provincial statutes dealing with the second of them. The undersigned recommends that a copy of the Order in Council based on this report, be transmitted to the lieutenant-governors of the several provinces, and that the various persons who have applied to the Government of Canada to act in matters arising out of the first of these subjects, should be infoaned that, having regard to the judicial decision referred to, the government declines to interfere. EDWARD BLAKE, Minister of Justice, 124 C.VTARIO LEGISLATION Canada, Province of Quebec. District of Quebec ■1 COURT OP QUEEN'S BENCH. (Appeal Siile.) Quelwc, Friday, the eight day of September, one tliousand eidit hundred and seventy-six. Present : The Honourable A. A. Dorion, Chief Justice. The Honourable Mr. Justice Monck, The Honoui-able Air. Just-' S'"""i-v " Ramsay, «« « lEssit... No. 67. The Attorney General for the province of Quebec (plaintiff in the court below) appellant, and Daniase Caron, of the parish of St. Patrice de la Riviore du Loup Burgess (defendant in the court below) and tiie Attorney General for the Dominion ot Canada (intervening party in the court below) respondent. The court of our lady the Queen now here, having heard the appellant and respondent, by their counsel respectively, examined as well the record and proceedings had in the court below, as the reasons of appeal tiled by tlie appellant, and the answers thereto and mature deliberation on the whole being had ; considering that, by the Honourable Attorney General for the Dominion of Canada, acting in this behalf for Her Majesty the Queen, and the late Edward Fraser, whose estate is claimed by the a(lniission> of the parties to the issue rai^ed upon the intervention Hied by tl - Honourable Attorney General for the province of Quebec, acting also in this behalf fur Her Mfx^iesty the Queen, died at Riviere du Loup, in the province of Quebec, about the se.'ond day of February, one thousand eight hundred and seventy-four, without heirs and intestate, and according to the pretensions of both parties, he left an estate which hiith escheated to the Crown. And considering this is one of the sources of revenue wluch, as a minor prerogative of the Crown, was yielded uo to the respective provinces now confederated into the Dominion of Canada, prior to the union of the provinces of C mada. Nova Scotia aud New Brunswick, and that such escheat, prior to the said union, formed part of the revenues of respective provinces where they arose And considering that by "The British North America Act, 1867," such revenues as were subject to the appropriation ->^ the respective legislatures of Canada, Nova Scotia and x\ew Brunswick, and which are revised by the several provinces since the union, in accordance with the .special powers conferred upon them by that Act, belong to said provinces. And considering as having jurisdiction over the law of descents, by virtue ot it^s jurisdiction over property and civil rights in the province under the said Act, the legislature of the province of Quebec is invested with power to appropriate this casual revenue to itself. it- i And considering that amongst other things, it is declared by the said British North America Act of 1 867, that all royalties belonging to the several provinces of Canada, Nova Scotia and New Brunswick, at the union, shall belong to the several provinces of Untano, Quebec, Nova Scotia and New Brunswick, in which the same are situate or arise, and that escheats, such as the one in question, are royalties. And, considering that such estate is composed of real as well as personal property, and that all temtonal crown rights and privileges possessed by the Jate provinces of Uuiada. Nova bcotia and New Brunswick, before the union thereof into the Dominion ot Canada, have been at the union given to the several provinces of Ontario, Quebec, JSova Scotia and New Brunswick, and the law of escfceats by reason of want of »^eirs is ot teudal origin and cognate with the law of tenures. And, considering that by the general tenor of the Act of Union, and the division ot assets and revenues, it is manifest that a casual local revenue like the one in question was intended to be left to the local province. . hundred and ! court below), ii-re du Loup, the Dominion appellant and )d proceedings d the answers f that, by the ;hi.s behalf for lainied by the filed by tl • this behalf t r bee, about the without heirs n estate which :es of revenue tive provinces le provinces of )r to the said )se. :h revenues as I, Nova Scotia ! the union, in belong to said ints, by virtue the said Act, propriate this British North es of Canada, 1 provinces of are situate or inal property. ! provinces of the Dominion tario, Quebec, i,nt of b"irs is i the division le in question, 37 vicroiuA, 1874. 125 And, therefore, considering that there is error in the judgment rendered in this cause in the Superior Court at Kamouraska, on the 2 9 th day of January, 1876, and now in Appeal, in maintaining the intervention of the Honourable the Attorney General for the Dominion of Canada, claiming said estate of the said late Edward Fraser, as belonging to the Dominion of Canada, and not the province of Quebec, doth reverse the said judgment, and proceeding to render the judgment which the court below ought to have rendered, doth maintain the appeal of the Attorney (ieneral for the provmce of Quebec in this cause, and doth reject the petition in intervention of said Attorney (Jeneral for the Dominion of Canada. And it is further ordered that the record be remitted to the Superior Court at Kamouraska. • F. Lanoelier. Mr. Assistant Secretary Eckhart to the Secretary of State of Canada. ToKONTo, 2nd December, 1876. ^IR> — I fim directed to transmit to you, herewith, a copy of an Order of his Honour the Lieutenant-Governor in Council, and of the report of the Honourable the Attorney General therein referred to, on the subject of escheats ai. 1 forfeitures, and to request that the same may be laid Ijefoie his Excellency the Governor General for the information of his Government. f I ha etc., I. R. ECKHART, Assistant Secretary. Report of the Honourable Attorney General Mowat, approved hy His Lieutenant-Governor iti Council on the ii^th November, 1870. IIoi the ToKONTo, 18th November, 1876. With reference to an Order of His Excellency the Governor General in Council, dated 25tli October, 1876, on the subject of escheats and forfeitures, a copy whereof has been transmitted to this Government, the undersigned has the honou follows : — r to re{)ort as That the report of the Minister of Justice, upon which the .said order is founded, refers to a recent decision of the Court of Queen's Bench (Appeal sifle) of Quebec^ affirming the right of that province to escheats within Quebec, and contains, amongst others, the following recommendations : — 1. That for the future, unless there should be a judicial decision overruling that to which he has referred, the Government of Canada should act upon the assumption, that lands and oraonal property in any province, escheated or forfeited by reason of intestacy SMthout lawful heirs or next of kin, or other persons entitled to succeed, are subjects appertaining to the province, and within its legislative competence ; and that the Government of Canada should decline to interfere in such matters. 2. That for the future, as in the past, unless there should be a judicial decision establishing the contrary view, the Government of Canada should act ujion tiie assump- tion, that lands and personal property forfeited to the Ci'own for treason, felony or other like cause, are subjects appertaining to Canada and within its legislative com- petence. That the recommendations of the Minister of Justice were approved by the s;'.id Order in Council, and now constitute the rule by which the Government of the Dominion will be guided in dealing with escheats and forfeitures. i:!l| 't I M 1.1 , tl 126 ONTARIO LEniHLATlON The undersigned has ah-eady, in former reports, fully treated of the matters in dis- pute between this government and the Dominion with reference to this subject, and he is of opinion that tiie plan of action adopted by the said order, is, upon the whole, a fair settlement of the matters in dispute, and he, therefore, recommends that, until a judicial decision be given, establishing the contrary to be the law, this Government acts upon the assumptions adopted by the said Order in Council for the guidance of the Dominion Government hereinbefore fully set out. O. MOWAT. » Mr. Cheater Draper to the Minister of Justice re Chap. 69. Office of the Port Whitby Harbour Company, Port Whitby, 4th April, 1874. Sir, — As intimated to you personally a few days since when at Ottawa, I beg now to call your attention to a Bill, chap. 59, " An Act to amend the Act incorporating the Port Whitby and Port Perry Railway Company," passed at the Session of the Ontario Legislature, just closed. I may mention, first, that, as you are aware, the Port Whitby Harbour Company purchased the harbour from the late Government of Canada in 1864. That by the Order in Council transferring the harbour, riparian owners have certain rights reserved to them as follows : " That any person or persons or any body or bodies corporate now or hereafter holding any land in freehold or for a term of years, border- ing on the waters of the said harbour, and desirous of building any pier or wharf within limits of said harbour, which, in the opinion of the Commissioner of Public Works of the said province, will not obstruct the proper using of the said harbour, shall have the right to build such pier or wharf into the waters of the said harbour in front of such land, having first obtained the authority in writing of the said commissioner so to do." By this you will observe " bodies corporate " have such power, which I take, it would apply to a railway company. Now the point is now : the Port Wliitby and Port Perry Railway Company, not being willing to avail themselves of the rights reserved to riparian owners, gave notice of intention to apply to the Local Legislature for " power to build piers, docks, warehouse, &c., within the limits of the harbour." To this pro- position the harbour compaiiy of course objected— first, upon the ground that the Railway Company could only build piers into the waters of the harbour as riparian owners in lie manner prescribed by the Order in Council ; and secondly, that the local legislature lad no jurisdiction within the limits of any of the public harbours, they, by the British North American Act, being declared to be the property of Canada. Besides this, the " trade " and " navigation " of all the great lakes, rivers, ikc, come so clearly under Dominion authority, that there seemed hardly room for a doubt as to the question of jurisdiction. But as there were doubts expressed, and being anxious myself to know whether the )-ights of the harbour company could be interfered with by the Local Legis- lature, I concluded to consult some of our best lawyers in t'le west, whom I thought ought to be authority upon such a subject. I consequently consulted Messrs. Crooks, Kingsmill & Cattanach, Messrs. Harrison, Osier k. Moss, as likewise the Hon. Edward Blake ; and I now purpose laying before you the pith of each of their replies. First, then, Messrs. Crooks, Kingsmill & Cattanach say : " If the company (meaning the railway company) wishes to have any other powers than the General Act and the Order in Council give, application must be ra ide to the Dominion Parliament. This is clearly one of those matters, in which the provincial legislature has no jurisdiction. " The Order in Council, which by statute has the force of law, also gives riparian owners for all time, the right of building piers under certain restrictions, so that no application would be necessary on their part for legislative authority. The restriction referred to is that the Railway Company mn&t first obtain the authority in writing of the Minister of Public Works. " Crooks, Kingsmill &. Cattanach." MHi E the matters in dis- this subject, and he pon the whole, a fair that, until a judicial kfemment acts upon nee of the Dominion O. MOWAT. 0. 69. th April, 1874. ; Ottawa, I beg now ct incoiporating the sion of the Ontario ire, the Port Wiiitby it of Canada in 1864. )wners have certain >r any body or bodies m of years, border- pier or wharf within )f Public Works of oour, shall have the jr in front of such missioner so to do." ;h I take, it would itby and Port Perry I rights reserved to slature for " power tour." To this pro- le ground that the harbour as riparian )ndly, that the local c harbours, they, by of Canada. Besides c, come so clearly bt as to the question ious myself to know by the Local Legis- b. whom I thought ;ed Messrs. Crooks, the Hon. Edward heir replies. First, io have any other ition must be raide uters, in which the also gives riparian rictions, so that no ;y. The restriction ority in ivriting of & Cattanach." 37 VICTORIA, 1874 127 Messrs. Harrison, Oaler & Moss say : — " It is difficult to anticipate what rights of the company are likely to be interfered with at the instance of the ' Port Whitby and Port Perry Jiailway Company,' unless it be to permit the Railway Company, owning land upon the shore of the harlmur, to build piers into the waters of the harbour, itc. " The Order in Council transferring the harbour to the company, a.s you point out in your letter of the 2()th ult., makes ample provisions for the construction of wliai'f by persons or bodies corporate having land on the shore of the harbour, and should it be an interference with the navigation of tlu^ harbour, other than such as contempl.ited by the Order in Council transferring the harbour, I apprehend the Dominion legislature only would have jurisdiction. " I cannot, however, think that any special privileges would be granted to the railway, or any other company at the expense of the harbour company, by either legislature, without full notice to the harbour company and full consideration of such arguments as may be addressed to the legislature by the hai-bour company, in opposition to any proposed legislation. R. A. Hakkison." On the same point the Hon. E. Blake says : — "The inclination of my mind is, that the action of the Parliament of Canada would be necessary in order to authorize the company to do anything which would interfere with the navigation, either of the lake or harbour ; whether building a pier out into ' high ' or ' deep ' water would do so, is not a question for a lawyer. E. Blake." These opinions, you will observe, all point to but one conclusion, viz., that the pro- vincial governments have no jurisdiction, but not withstanding, a Bill did pass the local house here, by a majority of four (4), having for its object, giving the Port Whirby and Port Perry Railway Company power to cross the property of the harbour company with "sidings," and to build either "on " or " without the said harbor." The meaning being simply this : that the railway company may first use property of the harbour company by the mysterious word " on," and having once crossed over to the outer or eastern break- water, they can then commence and erect piers, butting on the property of the harbour company, but really without the harbour, by virtue of the words, "or without the said harbour," and in this way it is proposed to take from the Harbour Company their vested rights. The bill I refer to, is Bill No. 83, to "amend the act incorjwrating the Port Whitby and Port Perry Railway Company." The objectionable clau.se being No. 11, or, rather, the objectionable part lieing embodied in that clause. The harbour company throw themselves entirely upon the protection of the Domin- ion authorities, trusting that they will not allow any infringeme. b upon their rights, ,as vested in them by the Order in Council which has the force of la.. ; but that all persons, bodies, bodies corporate, etc., shall only be allowed to build piers into the waters of the harbour, under and by virtue of the reservation set out in Order in Council, by which the harbour was vested in its present owners. I beg, therefore, to submit for your careful consideration, as to whether His Excel- lency the Governor General should not be advised to withhold his assent from that portion of the bill which, by implication, assumes the local legislature to have jurisdict- ion " on the harbour " or " without the harbour," meaning " on " Lake Ontario, outside the breakwaters, or "on " the harbour within its limits. I have etc., C. DRAPER, President Port Whitby Harbour Co. P.S. — If necessary, I will send down a formal petition for his Excellency, praying that the bill may be disallov/ed. (Signed) C. D. 128 ONTAUIO LErilSLATION Mr. Chfstfr Draper to the Deputy Minister of Justice. Ofkick ok the Pout Whithy HAunouii Company, June, 1874. Sill, — T had the. lionuur, som«! little tiiiKf sini^e, of calliiij,' tlie attention of the Hon. the ^Minister of .lustieo and yourself, to the Hill No. 5!), of the Ontario lej^islature, passed at its last session (1871), or rather that part of clause eleven (11) of said bill, having for its object the granting of certain power to the Port Whitby and Port Perry llail- way within the limits of the harbour, by allowing them to put down one or more sidings "on " oi"" in the harbour," as stated in my former letter, to which I again call your attention. I am advised that it is beyond the competence of the local legislatures to interfere with ])ublic harbours, they belong, by the British North America Act, under the jurisdiction of the Parliament of Canada : and if this be so, the bill in question should not receive the assent of his Excellency the (iovernor General. The Order in Council transferring the harbour, as you are aware, gives ample powers to riparian owners whether corporations or individuals (see clause nine), f'lr building piers into the waters of the harbour. And as this order has the force of law the haibour company contend that the railway company can oidy enter the liarbour under the con- dition laid down, and to which they do not oliject. Jiut that the loc>d legislatures can- not give any ])ower to the railway company, whereby the general powers of the railway act can be made to apply to the land, covered by the waters of the harbour. Will you kindly give this matter your grave consideration, as it is one deeply aflfecting the harbour company. I have, etc., 0. DRAPER, J'resident Port Whithy Harhotir Co, Heport of the Honourable the Minister of Justice on Chap. 59, approved by His Excel- lency the Governor General in Council on the 1st of April, 1875. Department of Justice, Ottawa, 30th March, 1875. he undersigned has the honour to report that an Act was passed by the legislature of ' tario, in the .37th Victoria, chap. .^O, and intituled : "An Act to amend the Act iri >orating the Port Whitby and Port Perry Railway Company." Mr. Chester Draper-, president of the Port Whitby Harbour Company, prays that tliis Act be disallowed, on the ground that it intrenches on rights vested in the harbour company, and also that the Act is calculated tc) interfere with navigation. The railway company was incorporated by the legislature of Ontario, in 1868, and power was given for the construction of a railway from such point within the limits of the town of Whitby, on the shore of Lake Ontario, or within the limits of the public harbour known as the Port Whitby Harbour, and now the property of the Port Whitby Harbour Company, as to the directors of the company may appear expedient. There are various Acts amending this Act of 1868, but not affecting the present question, and the section referred to by the report of the harbour company is the 11th of the present Act, which provides that the company shall have fuli power to e.Ktend their railway from some point at or near the town of W^hitby, * * * "and also to build one or more sidings from some point or points in or near to the town of Whitby to some point or points in or near the Whitby Harbour, or without the said harbour, so far as this legislature has jurisdiction to grant such a. Lhority and right, but subject to the rights of the Crown and to the terms and 6onditions set out and con- tained in Order in Council of the late province of Canada having reference to said har- bour, "^ — and the section continues by giving the powers of the Railway Acts, and by the Railway Special Act, to every extension and siding, etc., but "subject to the rights of the Crown and the Order aforesaid." ^^ m June, 1874. tion f)f the Hon. i^'islature, passed said bill, having Port Perry Jlail- t! or more sidings again call your il logislatures to a Act, under the bill in question ves ample powers le), for building law the hailwur • under the con- legislatures can- R of the railway lour. t i8 one deeply f arbour Co. 37 viCTOKi. 1874. 129 The Order in Council to whic'i reference is made in the Act is that of 1864, under which the harbour was transferred to the Port Whitby Harbour (/onipany, and contains a provision to the effect " that any person or persons, or any body or liodies corporati*, now or hereafter holding any land in freehold, or for a term of years, bordtiring on the waters of the said harlwur, and desirous of building any pier or wharf withirr the limits of the said harbour which, in the opinion of the Conrrnissioner of Public Works of the said provin e, will not obstruct the proper using of the said harbour-, ahidl have the right to build such pier or wharf into the waters of the said har-bour, in fr-ont of such land, having Hrst obtained the autherity in writing of the said commissioner so to do." Exception is taken by Mr. Draper', on behalf of the Port Whitby Harbour Com- pany, to the power given to the railway to build sidings " on or near the Whitby Har- bour or without the said [harbour," but it will be observed that the restriction is niiwle " so far as the legislature of Ontario has jurisdiction to gr-ant such authority and right, but subject to the rights of the Cr-own and to the terms of the Order in Council." Now, one of the provisions of the Order in Council r*eferred to is, that no pier or wharf shall be built, which, in the opinion of the Commissioner of Public Works of the said province (that is, the now Minister of Public Works of Caruula), will obstruct the proper using of the harbour. The undersigned is of opinion that it is withiti the competence of the legislature of Ontario to pass the Act, and that as the rights of the Crown in respect to navigation are reserved by the Order in Council, and by the wording of the eleventh clause of the Act in question, your Excellency should not be advised to exercise the right of disallowance of the Act. ' H. BERNARD, Deputy Minister oj Justice, I concur. T. FOURNIER, Minister of Justice. d by His Excel- ^75. arch, 1875. f the legislature amend the Act any, prays that vested in the lavigation. io, in 1868, and rin the limits of ts of the public le Port Whitby lient. ng the present my is the 11th •ower to extend 1 or near to the , or without the ority and right, et out and con- nce to said har- .cts, and by the a the rights of 130 ONTARIO LKniSI.ATION ONTARIO, 38TH VICTORIA, 1874. 4th Session — 2nd Parliamrnt. Petition of Miniiiti'rg oj' I'reiiltytery of (Hengarry to the (iovernor General re. Chap. 7^- To the Right Hononrahle Sir Fredkuick Tkmplb, Earl of Duffer in nad C/andeboye, and (iovernor (Jeneral of Canada : The petition of tho undersifined, boing a majority of the ministers of tlie Presby- tery of Glengarry, province of Ontario, Dominion of Canada, in our own name, and on behalf of a largo number of our co-labourers and adheients in this province, HUMIILV SlIEWETI! : — 1. That yoi'.r petitioners do respectfully call your attention to Act numlwr seventy- five (75) of iIk. Acts possed in tiie bust session of the second Parliament of the province of Ontario, Dominion of Canada, an Act designated, " An Act respecting the Union of certain Presbyterian Churches therein named," and we hund)ly submit that the said Act or Acts were passed in such haste as to preclude due notice of its jircxjsions being given to many of Her Majesty's subjects, who ar(> seriously and vitally affected by the same; and its provisions being in excess of that of any private bill, as it afl'eeti- otliers than the applied I as for said Act. * 2. Wo submit that a great religious change has been made in the doctrine ' le Presbyterian Church of Canada, in connection with the Church of Scotland, ' Act, and that the ancient staiidanls of the Church, that have the most solemn \ .» in its creed and practice, as well as in the union compact of Her Majesty's Kingdouj of (treat I^ritain. have been violated and changed, which matters of creed and doctrine have been ropcatodly sustained as the one, or one of the distinctive features of said church. 3. We hun)bly state, that the Act complained of affects a large portion of Her Majesty's subjects, and is wholly without precedent in any other part of Her Majesty's Don inion, wherein said Presbyterian Church, in connection with the Church of Scotland, had I legal recognition and existence ; as in the case of former unions of Presbyterian Chui ches in any part of this Dcmiinion, these churches were wholly clerical erections, brought ii\to existence by earnest, zealous ministers, whose labours were aided by the sympathy and support of such as joined themselves to tham ; and such congregations, or societies, could not complain of any change made upon the name, docti'ine or discipline of such societies, .so called into being, and so altered by such clerical guides, in each ca.se, having, as was judged upon every separate change, good and convincing reasons for such ecclesiastical changes ; but we and our people stand wholly different in the matter now complained of in and under said Act, as the people who adhere to the Presbyterian Church of Canada in connection with the Church of Scotland, are not followers of, or collected by such as would be leaders in the same, but are joined to ic as to the national creed of the land many of our people left ; and others were joined to its sacred truths, but, in all cases, separate and disinct from the pastor. And the pastors amongst said people in religious matters, were not chosen for their gifts, but for tl.o nnnie and creed under which they appeared amongst the people who continued, amid many trials, sometimes years being without a pastor of their own beloved Church and who do pray to be still allowed to continue said name and church. iii Ocneral re. Chap. 74- 'erin a,id Clandeboye, nifitei's of the Presby- ur own nume, and on province, iUMULY SllEWETH : Act nurnher soventy- ment of tlie province pectin^ tlie Union of )niit that the said Act inn i.sions being given ffected by the same ; it aflectf- others tlian the doctrine ' le of Wcotiand, 1 most .solemn j a • .Majesty's Kingdom f creed and doctrine tive features of said large portion of Her art of Her Majesty's B Chuich of Scothind, lions of Presbyterian ly clerical erections, rs were aided by the such congregations, doctrine or discipline I guides, in each case, icing reasons foi such it in the matter now to the Presbyterian not followers of, or it as to the national to its sacred truths, not chosen for their iigst the people who astor of their own d name and church. } •—"mmmmmmm 38 vicToniA, 1871. 181 4. We also submit, tliat said Act limits the toleration laws of the whole empire t(» our hurt, and to that of many as may deem il their .solemn duly to continue faithful to vowH and obligations freely and solemnly undertaken, as it prevents us and said adh parties as are led to and even to think they ' the whole of this Her ith such as once were and to make the whole " Do 'into others as ye f'd aissentient brethren 1 to exist in peace, and rs. is sorely on our spirits, ;er of Justice at Ottawa, art, so that no one need furnish such proofs of nients made in this our n the same, leaving out ister of Justice of the ■anny attempted tu be for we own no spiritual or agree to be ruled by claim from your I'xcel- the Queen, in this her leges, as long as we are in this grievous wrong, owance of said Act of iy to forward this our in Council. S McPHEKSON, DAVISON, IRODIE, Per T. McP. I MacCLAN, Per N. Brodie. roved by His Excellency iber, 1875. 3rd October, 1875. year 1874 by the legis- )f certain Presbyceriar rhomas McPher.son and the saii Act, n^ferred to report as follows : — le Presbyterian Church li of the Maritime Pro- ibyterian Ch',ir<;h of the rm one body or denomi- Church in Canada." but it deals with the Delonging to, or held in munion with any of the operty is to be affected, s not think it necessary imstanc^s. The undersigned does not conceive that he is called upon to express an opinion upon the allegations of the petition as to the injustice alleged to be effected by the Act. This was a matter for the local legislature. The 7 th clause, however, appears to deal with matters beyond the competence of the legislature. After providing that Knox College and Queen's College, both institu- tions in Ontario, shall stand in certain relations to the new body, it provides th;it the corporation of the Presbyterian Collefja of Montreal and the corporation of ilorin College a; Quebec, shall also stand in certain relations to the new body. It appears to the undersigned that these portions of the sections are nltra vires and inoperative ; but he has l>een informed that like provisions have been made by the local legislature of Quebec, and, unOer any circumstances, he could not recommend that the Act should be disabowed, by reason of this objection. • EDWARD BLAKE, Minister ofJnstii'e. Mr. Under Secretary Langevin to Rav. Thomas McPherson, Lancaster, Out. Department op the Secretary of State, Ottawa, 14th December, 1875. Sir, — I am ^^..ected to acknowledge the receipt of your letter of the 8th instant, addressed to his Excellency the Governor General, referring to a memorial subn)itted by yourself and others in the month of February last, praying for the disallowance of an Act o*: the Ontario legislature respecting the union of certain Presbyterian churches, and to inform you that the subject has received the consideration of his Excellency in Council, and that his Excellency has been pleased to direct that the Act in question be left to its operation. I have, Arc, E. J. LANGEVIlN, Undti Secretary of State. Rev. Thomas Mcl'herson to His Excellency the Governor General. Lancaster, 20th January, 1876. May it please Your Excellency : — I am directed by the Presbytery of Glengarry, in connection with the Church of Scotland, to acknowledge the receipt of your Excellency's letter, dated 10th December, 1875, informing us "that your Minister of Justice has been called upon to furnish a report on the prayer of the memorial," whereupon I communicated with the brethren of the presbytery near me, so as to send one or more of our number to explain to your Minister of Justice the grievances and persecutions we complain of, in accordance with the prayer of our petition. Before this arrangement was carried out, for lack of time, I received from your Excellency's Under Secretary of State, the letter dated at Ottawa, 14th December, 1875, intimating the sunmiarily disposing of our petition, without giving us any opportunity of being heard in the matter. Your Excellency cannot but be aware of the strife and coateution the Acts have caused in the province of Ontario amongst the Scotch Presbyt'^rian people in resist- ing claims not founded oil titles or deeds, but ... those acts complained of, as limiting the toleration laws of the empire in this provinri;. In these circumstances the presbytery jura from your Excellency that these papers, petitions and Acts be allowed to rei a;.i in statu r/wo until such time as your petitioners have made some arrangement to have the prayer of the said petition duly represented before the Queen in Council. I have, &c.. THOMAS McPHERSON. il iii 'I 'I i1 134 ONTAKIO LKfJISLATION Petition from Meinhem of Prenbyti'rian Church to Governor Genera/. To His E.vrellency the Right Hon. Sir Frederick Temple, Enrl of Bufferin, (t'c, ;i;y and of the said Presl)yterian Church of Canada in connection with the Church of Scotland, and to no other existing Presbyterian religious association. In like manner, an annuity fund was formed by contributions of the clergy and members of the said Presbyterian Church of Canada in connection with the Church of Scotland, which was entrusted to administrator.^, members of that church who were incorjiorated under the Act of the province of Canada, 10 and 11 Vic, chap. 103, intituled : " An Act to incorporate the Ministers', Widows' and Orphans' Fund of the Synod of the Presbyterian Church of Canada in connection with the Cimrch of Scot- land," which fund, in the nature of a trust fund, is exclusively to be applicable for the purposes of the widows and orphans of the clergy of the said church in connection with the Church of Scotland, and none other. That by the said Acts of incorporation respectively, the said corporation thereby enacted and estaVjlished, were of a general nature, and co-extensi^ e with the said pro- 1 38 VICTORIA, 1874. 135 >• Oeneraf. Dufferin, f Quebec and Ontario, Acts of incorporation for their said union, extend- ing the same throughout the Dominion of Canada, as general Acts for the Dominion of Canada, with authority to appropriate the said temporalities and widows' and oi'phans' funds to the purposes of the said union, to wit : the said Presbyterian Church of Canada in connection with the Church of Scotland. That three Acts of the nature complained of were passed by the legislature of Quebec during its last session, in the 38th year of Her Majesty's reign, namely, chap- ters 61 and 64 respectively, to amend the said Act of incorporation for the widows' and orphans' fund management, above intituled, and amendments thereto, and to amend the said Temporalities Act, and chapter 62, an Act respecting the union of certain Presbyterian churches therein named, and two Acts of a similar nature by the legislature of Ontario, at its last session, to wit : 38 Vic, chaps. 7") and 76 respectivel}-, intituled: ''An Act respecting the union certain Presbyterian Churches therein named," and "An Act respecting Queen's < 'liege, at Kingston." That the subject matters of the said Acts of both local legislatures respectively, are not of a merely local or private nature within the said respective provinces or either of them, and do not come within the class of subject exclusively assigned to such provincial legislation, but are general in character for the Dominion ot < Canada, and afi'ect the civil rights of per.sons residing in either province, extra territorial of its jurisdiction, to wit : the ministers and members of the Presbyterian Church <)f ( 'aiiada in connection with the Church of Scotland, their said rights being geiifral and nut pro- vincial in their nature, and indivisible in their disposition, and not sn • opti))le of being abrogated or interfered with, b}^ mt-rely provinci&l or local legislati'u, and that such provincial legislation has neither been reciuired or asked for by the said Presbyterian Church of Canada in connection with the Church of Scotland, nor by its ministers and members who have not .separated or seceded therefrom. That the said provincial Acts are obnoxious, and subject to di.salluwaiice under the provision in that respect of " The British North America Act, 1867." Wherefore, your petitioners pray, that it may please your Excelhmcy to disallow the hereinbefore mentioned statutes passed by the legislatures of (.Quebec and Ontario, respectively, purporting to unite the Presbyterian Church of Canada in connection with the Church of Scotland with certain other religious bodies, under the title of " The 9* ;ll Mi 1 13G ONTARIO LK(ilSLATION Presbyterian Church in Canada," ind that it may please your Excellency to declare the said Acts, and each of them, illegal and unconstitutional, and to disallow the same. And your petitioners, as in duty bound, will ever pray. Robert Dobie, Minister, T. Miller, Elder, Charles Downie, George R. Anderson, Lucy McJanet, Margaret Noble, Elizabeth MacTntyre, Jessie J. MacI > yre, and others. 2'he Governor General to the Earl of Carnarvon. Ottawa, 13th March, 1876. My Lord,— I have the honour of transmitting herewith a memorial which I have received from the Presbytery of Glengarry in connection with the Church of Scotland, forwarding a petition addressed to j-our Lordship, praying that two certain Acts, chaps. 75 and 78, of the province of Ontario, passed in the 38th year of Her Majesty's reign, may not receive the royal assent. On the receipt of these documents I caused them to be referred to tiie Minister of Justice, for such observations as he might think fit to make thereon for your Lord- ship's information, and I inclose a copy of a, report of a Committee of the Privy Council expressing their concurrence in the views contained in the memorial annexed, from the Honourable Mr. Blake. I also transmit copies of the several documents to which allusion is made in the memorial addresed to your Lordship. I have, ttc. DUFFERIN. Rev. Neil Brodie to Governor General. To the Right Honourable Sir Frederick Temple, Earl of Dufferin and Clandeboye and Governor General of Canada. May it please Your Excellency : — The Presbytery of Glengarry, in connection with the Church of Scotland, in accordance ,yith their request that you would be good enough to allow petition, paoers and decisions m matters submitted to your Excellency regarding certain acts of 'he legislature of the province of Ontario, passed in the 38th year of Her Majesty Queen Victoria, to remain in statu quo, until such time as this court had made arrangements to have the grievances complained of laid at the foot of the Throne ; ° I have to request your Excellency to be go.^d enough to order your secretary to forward the same to the Right Honoifrable the Earl of Carnarvon, Her Majesty's Chief Secretary of State for Colonial Affairs, along with this our explanatory petition, so that the same may come in due course of business before Her Majesty's Council in London. We have forwarded to the parties -whom we expect to appear for us, the decisions of your Minister of Justice as conveyed to us, and letters received by us, so that the whole may be adjudicated on as at early a date as may bp convenient. I have, &c., NEIL BRODIE, Minister of LochielfOnf., Presbytery Clerk. i fe . ..^.a . Excellency to declare to disallow the same. fET, "OBLE, IacIntyre, .cIn I YKE, and others. th March, 1876. jrnorial which I have Church of Scotland, t two certain Acts, ear of Her Majesty's 3rred to the Minister reon for your Lord- niittee of the Privy e memorial annexed, several documents to DUFFERIN. itid Clandeboye a nd rch of Scotland, in How petition, papers certain acts of '.he Her Majesty Queen ade arrangements to r your secretary to Her Majesty's Chief ory petition, so that Council in London. [)r us, the decisions by us, so that the it. BRODIE, resbytery Clerk, ?.'S VICTORIA, 1874. 137 Petition of Presbytery of Glenijarry to Colonial Secretary. To the Right Honourable the Earl of Carnarvon, Her Majesty's Principal Secretary of State for Colonial Affairs. . We, the Presbytery of Olengarry, province of Ontario, Dominion of Canada, in connection with the Church of Scotland, would humbly submit the following explana- tory statements to your Lordship, on the matter of the Presbytery above designated, as petitioners to his Excellency the Governor General of Canada in Council, and carried by formal appeal, with his sanction, to Her Majesty the Queen in Council. Which explanations humbly showeth, that by lettei-, dated r2th February, 1S75, from the Department of State, and marked a petition from the majority of the ministers of the above designated Presbytery, was duly presented before his Excellency the the Governor General of Canada in Council, by one of his principal secretaries of state for the postal department, and acknowledged, as by letter dated as above, praying for the disallowanee of certain Acts passed by the legislature of Ontario, in the thirty-eighth year of Her Majesty Queen Victoria, being chapter seventy-five (75) and chapter seventy-six (76) of said Acts of the legislature, as our petition more fully shows ; and as the persecutions complained of have been greatly intensified since said Acts were said to have gone into operation. Our petition to his Excellency the Governor General in Council was detained, unattended to, at Ottawa, for some ten (10) months, as dates of letters show, and when adjudicated on by the present Minister of Justice we were not allowed to be heard in explanation thereof, as date of reference to him, and date of decision show ; and yet, the time thus lost is brought forward as the reason for refusing us anj' redress in the premises, and the injustice thereof seems the harder, if your Lord- ship causes your secretary to read the original petition before you. We do feel that such action, even in colonial affairs, is at variance to all the precedents of the empire, in so dealing with any matters brought, respectfully, and constitutionally, before those representing British law and order ; and that any instructions, as to being regulated by the " well understood wishes of the people," could have been carried out without over- throwing rights, titles, possessions and Ijenefits, legally and constitutionally held by us and others, now, for many and many a year. We do feel very sorry to trouble Her Majesty's Council with our affairs, after she had been graciously pleased to do so much for the Church in Scotland ; but we are very ■sorely pressed in our position, and we do feel causing this trouble the more, as the Queen in Council has been called so often to repress, resist Ecclesiasticism in the province of Quebec, and now importuned by us to grant relief from the same spirit in the province of Ontario, as in both provinces the respective local governments are equally subservient to the clericalism of its dominant party, as these Bills show. We seek relief from the afflictions we suffer under these Acts, for the following and other reasons : — Firstly. — The Acts complained of were passed without any notice being served on congregations or on ministers, though so seriously affected by said Acts ; nor was such, seemingly, demanded by the legislature from the promoters of said Bills, but passed at their request, who, though ofiice bearers in our church, formerly, were only so in matters of faith and doctrine, and had no power of a temporal nature over us or over the brethren, and they knew well that, without the secular power, no injury could be done to us in our bodies, in our e. ■^ate, or amongst our people. We do not point out any of the deviations from rules of their own making, on the part of the legislature of Ontario, although we might do so in this case, as the properties of order should be within the breasts of each, both by training as well as by nature ; only we state that in less than an hour, these Acts in Toronto, which is very distant from our respective homes, passed. Then all who had withdrawn thirty years ago, joined with other denominations, joined by some of our own people, rushed at the properties held by us as before the cry, ' Moab to the spoils," and under colour of said Acts we have suffered in our estates, as i , I s 138 ONTAKIO LE(iI8LAT10N I ii !i well as in our religious interests, and we claim that said Acts should be disallowed, and the spiritual power of authority or of church courts alone allowed to rule. Secondly.- — The province of Ontario, as also the other provinces, has an Act or Acts on religious w(»rship, permitting any persons so minded to constitute themselves a religious denomination under any name they please, and when the numbers are so many as the law states, they can then continue tiieir existence, can hold property and have acknowledged rights under that name, and can carry on the religious corporation they so originate, whilst we are excluded from said liberties, although our numbers, even now, are far in excess of the limits the said law ever conteuiplated or expressed, as a minimum number to be so acknowledged under the Religious Worship Acts of this province ; and we claim that the colonial legislature has no power to legislate us out of existence, which said Acts do, and so ought to be di.sallowed, or so altered as to have all left to the freedom of choice in continuing with the Church of Scotland, or withdrawing peact fully therefrom, and the more so, as one of the sections of chapter seventy-tive (75) prevents our continued existence; and prepares the way to carry over all oui properties without a sale or purcluise, or payment ; but it does not afford us the same privilege as against the largei' botly, making thus a regular net out of which there is no escape. So that the toleration Acts of the empire are violated by said Acts, to our hurt, and we claim pro- tection tiierefrom. We might explain that, in party government in these provinces, the more of all the ordinaiy sat'eguai'ds of state that are violated to please a religious denomination, the more that party gains in control over such in a land so political as this, and this right is often thus trampled under foot. Thirdly. — By an Act of the Imperial Parliament, passed in the year 1853, Ontario lands called clergy reserves, a foinier gift from the crown of Great Britain for the " support of a Protestant clergy," were placed at the disposal of the legislature of Upper and Lower Canada, subject to a reservation in favour of the Churclies of England and Scotland, " to whom the faith of the crown was pledged."' Now these churches had left with them manses or parsonages, glebes, churches, church- yards, which were then in the peaceable possession of said churches, under the " faith of the crown," as the emoluments were, that came from the provincial treasury, until the Act of 185.'3, withdrawing the same. Now, without being even heard in the matter, the remaining property aforesaid is conveyed by the dictum of the legislature over to another body, contrary to all precedents of former days, and a religious body, separate from us in name, and doctrine, and practice, are put into pos- session of those churches and heritages. We claim the said Acts should be disallowed, until an imperial Act were passed withdrawing the " faith of the crown " from all heritages as have remained with this church, and we feel quite satisfied to abide such legislation as imperial justice will enact. No part or portion of property legislated on was ever gi\eu over to us by the province, but was a concession from the crown of Great Britain increased by gifts from the living and the dead, so that a church, identical in name and doctrine with the Church of Scotland, should continue, and be perpetuated in Her Majesty's provinces. Yet we are legislated out of our name and i-ights at the request of parties who did not own said properties, nor were givers thereto, and without such Acts we could not be molested in any way, as the deeds were absolute, and had a clause in them declaring that such lands " were inalienably connected with the Church of Scotland " in all time coming. Fourthly. — All our chuiches, repaired in whole or in part, have been assisted by the parent Church of Scotland, on application from parties here, voluntarily submitting themselves to the requirements of the church, and that w;is placing upon the property a lien or hypotheca that said property was to remain " inalienably attached to the Church of Scotland in all times coming," and a certified copy of said deed was deposited with the department of the church, called "Colonial Committee," having their rooms at No. 22 Queen Street, Edinburgh ; one of the .said copies will be forwarded to the ' Colonial Office," London, in confirmation of the same ; and no written notice of relief i^UbBeUOBOia tiiSBmmMUiSS^; 38 VICTORIA, 1874. 139 be disallowed, mid rule. , has an Act or Acts titute tlieinselves a unhers are so many property and have corporation they so imbers, even now, ssed, as a niiniuiuni this province ; and s out of existence, » have all left to the drawing peact fully -live (75) prevents )roperties without a ilege as against the ape. So that the and we claim pro- the more of all the denomination, the is, and this right ■ear 1853, Ontario it Britain for the ii the legislatui'e t the Churches of pledged." Now churches, church- rches, under the m the provincial thout being even by the dictum of )rmer days, and a ire put into pos- Act were passed mained with this justice will enact, ver to us by the ncreased by gifts doctrine with the ijesty's provinces, •ties who did not ve could not be I them declaring and " in all time been assisted by ;arily submitting on the property r attached to the ed was deposited g their rooms at orwarded to the 1 notice of relief of said lien or hypotheca was produced from the Church of Scotland to permit the legis- lature of Ontario to set aside said deeds duly registered ; nor were any of the deeds of the church here asked for, or looked at by the House, whibt for a few minutes the clerk called out the Bills ; nor have the lands so hypothecate.! a clause for redemption in equity, as said condition was to abide •' in all time coming," so that the ordinary laws of trade and commerce are set aside by the legislature, to benefit other friends at the expense of the property of the church unrepresented here ; all which is wholly con- trary to British law, and to our rights as Uritish subjects of the British crown ; seeing %ve are resolved to remain connected with one of the churches of the emi)ire all our days, and we claim that said connection is not a crime cognizable by any law passed as yet in these parts ; and we claim that the said Acts should be disallowed, in as far as they affect the Presbyterian Church of Canada in connection with the Church of Scotland. In the case of Queen's College, Kingston, Ontario, chapter seventy-six (76), the Act first constituting said university was local, which Act was disallowed in order that the permanency of its connection and position would have every guarantee of con- tinuance, as long as colonial connection would exist ; so a royal charter was granted to said college, dated at Windsor, in the fifth year of Her Majesty, Queen Victoria ; and thus royal letters patent passed the great seal, dated 16th October, 1841, granting certain privileges to said college, and also perpetual connection with the Church of Scotland, yet said royal charter or letters patent have been set aside by the legis- lature of Ontario, in chapter seventy-six (76), in the thirty-eighth (38) year of Her Majesty Queen Victoria, and said Acts passed that year, and the royal charter treated as no protection to the church in its control over the institution. One of the banks doing business in this Dominion and province, is also under a royal charter, terminable at a certain time, and if not confiscated, a clear gain of over two million dollars could be made to the Dominion ; and it has no better guarantee than we had, under royal charter. We, therefore, humbly pray inquiry may be made as to facts stated, and if found true in every respect ; as wejinow tiiay must, we do pray that the Acts complained of be disallowed, notwithstanding the ten (10) months that our petition has laid in the Department of State at Ottawa. And as the law of changes in church properties begun here in the year 1855, extended itself to Ireland in the year 1870, so we feel sure that the principle now complained of, will be sure to meet some British government in its application to glebes, churches, church-yards, and other propei-ties left with the disestablished church of Ireland before very long. And we do pray that such a decision may be come at, as will reflect lustre on the spirit of order and justice, which has marked the past of the government of Britain. Without these Acts we do not fear any of the courts of this province to test our title before them, and our people are in all places prepared to pay all local obligations due against the properties, whether nmnicipal or provincial, as the same may be imposed by law. We have applied to His Excellency the Governor General of Canada to be good enough to forward, in order of business, this explanatory petition, along with the original petition, as received thereon, the 12th February, 1875, along with such other originals as have passed before him, and also the decision of the council there anent. We have requested the colonial committee of the Church of Scotland to forward one of the duly certified deeds from the bonds of this presbytery, in their office, and we have also forwarded the papers received from Ottawa by us, to be humbly submitted to your honourable council in due form, and your petitioners, as in duty bound, shall ever pray. Signed, in the name, and by aut'iority of the Presbytery of Glengarry. THOMAS McPHEHSON, -- " Modarator. NEIL BRODIE, Minister, Lochiel, On(., Presbytery Clerk. At Lancaster, Ontario, this 24th duy oi February, 1876. 140 ONTARIO I,EOlSLATION Report of the. Honourable the, Minister of Juntice, apjyroved hy His E.rcelhncy the Governor General in Council on the I'dh March, 1876. Depahtment of Justice, Ottawa, 29th February, 187G. The undersigned, to whom has been forwarded the accompanying memorial of the Presbytery of GLugarry to his Excellency, enclosing a so-called explanatory statement from the same Presbytery, addressed to the Secretary of State for the Colonies, with an expression of his Excellency's wish, that the undersigned should peruse the same and make such obstirvations as he thinks fit, for the information of the Secretary of State for the Colonies, begs to report that the action with reference to the local statutes referred to in these papers, is the action of the Queen's Privy Council for Canada, and that it appears to him tliat any observation to be made on the papei-s for the information of the Secretary of State, should be approved in council. The undersigned ob-ierves, that it is alleged by tlie presbytery that that body was not allowed to be heard, in explanation of its petition to the (lovernor in Council. This statement is, so far as the undersigned is aware, entirely unfounded. The undersigned is aware of no application on the part of the presbytery to be heard. Had such an application been made, it would have been necessaty for those respon- sible foi' the proper management of the matter, to have considered the propriety of granting a hearing, which if granted, would probably involve the necessity of citing those who might be opposed to the prayer of the petition, and giving them a hearing. The undersigned is not aware of any case in which these matters have been dealt with, after the fashion suggested in their memorial by the presbytery. The undersigned observes that it is alleged that the time said to be lost was brought forward as the reason for refusing the presbytery any redress in the premises. This the undersigned is obliged to deny. The law accords twelve months for the disposition of the question, whether a provincial statute shall be disallowed, or left to its operation. Within that period it was necessary for the government to act, if it should act at all, and this is all that was alleged by the government in that connection. Passing to the objections taken to the statutes, the undersigned does not feel called upon to :nake any further observations, than those contained in his report to the council upon the subject of the petition and the Acts in question ; but, with reference to the proposal of the presliytery, that the imperial authorities should interfere, he would ob- serve that by "The British North Am^^rica Act, 1867," the power of disallowance does not reside in the imperial authorities, that it can be exercised only within twelve months ; that that time has elapsed, that there is consequently no power to interfere with the operation of the Acts in question, so far as they are within the powers of the local legislature, a question which can be raised in the courts alone. EDWARD BLAKE, Minister of Justice. The Earl of Carnarvon to the Governor General. Downing Street, 14th April, 1876. My Lord, — I have received your Lordship's despatch No. 70 of the l.Jth ultimo, for- warding a memorial from the Presbytery of Glengarry, in the pi-ovince of Ontario, pray- ing foi- the disallowance of certain Acts of the legislature of that province affecting the various Presbyterian churches in Canada. r I request that you will inform the memoralists that the Acts of which they com- plain, being Acts of the ] provincial legislature, their confirmation or disallowance rests, not with the imperial authorities, but with those of the Dominion of Canada, by whom they appear to have been confirmed after due consideration of the objections of the liL bruary, 1876. 5 memorial of the iinatory statement Colonics, with an ise the same and retary of State for 1 statutes referred nada, and that it ihe information of at that body was ' in Council, unfounded. The ^tery to be heard, for those respon- the propriety of ecessity of citing them a hearing, have been dealt lost was brought emises. e months for the llowed, or left to it should act at on. )es not feel called ort to the council reference to the [•e, he would ob- lisallowance does Y within twelve iwei- to interfere he powers of the r of Justice. ^pril, 1876. 1 3th ultimo, for- f Ontario, pray- ce affecting the vhich they com- allowance rests, nada, by whom jections of the 38 VICTORIA, 1874. 141 memorialists. The Acts in question appear, therefore, to be in full operation, and no appeal against them can now be brought, unless it should appear that any of their pro- visions were beyond the power of the provincial legislature to pass. If the p"titioners should be of opinion that such is the case, it would be open to them to try the question in a court of law. I have, etc., CARNARVON. » The Earl of Carnarvon to the Governor General. Downing Strkkt, Ist June, 1876. My Lord, — I have the honour to transmit to you a copy of a letter from the Rev. John Moffat, minister of the Scotch Church, of Bayfield, Huron County, respecting the injury done to the Scotch Church Ijy legislation in Canada. I have, etc.. CARNARVON. The Rev. John Moffat to the Earl of Carnarvon. Scotch Church, BAVFiELn, Huron County, Canada West, 9th May, 1876. M\' Lord, — A great wrong has been perpetrated upon Her Majesty's loyal subjects in Canada who belong to the Church of Scotland, in consequence of the passing of certain Acts by the provincial legislatures here, to strip that church of her property, and to transfer it to a new and hostile sect, and thus destroy her completely, if possible. For a long time past we have had a tremendous struggle to preserve our rights — these were finallj' taken from us about a year ago, and great has been our suffering and pcr.secution since the obnoxious Acts came into force. The cause of the movement is evidently an insane desire with the party in power here, (vulgarily called grits) to obliterate British national feelings and institutions. A ccmsiderable number of our ministers joined the movement, and with the view of first pulling down the loyal Church of Scotland, formed a sort of union with Canadians and other Presbyterians, hostile to our Church of Scotland. Against such union proceedings, we protested at every stage of them. Nevertheless the fatal Bills were rushed through the different legit:latures in defiance of every right which tranferred our property to a disloyal, rebellious sect 1 Thus was our loyal Church of Scotland robbed and plundered of property, under the deceptive name of union. Your lordship will at once see the injustice of this, the law being universally laid down, that those seceding from any body, forfeit all right to i'us property. Those, therefore, who thought proper to leave us and join others, hml no right whatever to cari-y with them our property. All the property of the Scotch Church in Canada has been raised by the laudable exertions of her own members in Scotland or in Canada, or granted partly by the British Government in recognition of her services in America, and to deprive her of such property, and transfer it to aliens, is a violation of every principle of right and justice. Every tie which connects us with the mother country should be maintained, and the Scotch Church here was a very powerful one. I have endeavoured, in the ac- companying pamphlet to point out some of our sufferings and hardships, for we are now oppressed with Chancery and law auits, of which we cannot tell the issue, and our last resort is to appeal, if possible, to the Privy Council in England, for redress. Earnestly entreating your Lordship to interest that augus'- body in our present troubles and trials. I have, ifec, JOHN MOFFAT, Minister of the Scotch Church, Bayfield, Huron County. Canada West. 142 ONTAKIO LEUISLATION ! I Report of the Honourable the Miniitter of Justice, approved tnj /fin E.ri'ellency the, Goveruor (Jeneral in Council on the 2drd Novemher, IHTfi, Depautmknt or Jiistice, Ottaiva, IGth November, 1875. With reference to the five following private Acts pftssod in the year 1874, by the legislature of the province of (Ontario, the untlersigntnl has the honour to report as follows : — Chapter 78, entitled : "An Act resppctin>{ the Metl\o(li8t Church of Canada." By the Ist section the real or other property held in other provinces by certain churcli bodii's belonging to those provinces is, in effect, declared to have become vested, along with property in Ontario of certain church bodies of tiiat province, in a new church body. As to this clause the undersigned refers to his report upon chapter 7;) of the same statutes, upon the reasoning of which it would appear to him tliat as to property outside of Ontario the clause is ultra riren, and inoperative; yet the undeisigned does not advise that tlui Act should be disallowed. Chapter 44, entitled : " An Act to enable the Corporation of the city of Iving.ston to close up a part of Union Street, with the water slip in front of the same, in the said city, and for other purposes." This Act, besides making certain provisions within the competence of the local legislature, proposes to give power to close up a })art of the public harbour of Kingston. It is true that all the powers given by the Act are expressed to be so far as the legisla- ture has jurisdiction in that behalf ; but the undersigned is obliged to recommend that unless the Act be amended, by eliminating the provisions to which h(! refers, it should be disallowed. Chapter 67, entitled : " An Act to incorporate the Canada Fire and Marine Insu- rance Company." The powers professed to be conferred by this Act appear to the undersigned too wide. It authorizes the company to effect jiolicies of fire insurance with any persons or Ixidies corporate, and to make contracts of marine insurance with any persons, in respect to losses of vessels navigating any waters from or to any ports. It is not pro- vided that the chief place of business shall be in the province. Power is given to comply with the laws of other provinces or states wherein the company may carry on business, and the word " Canada " introduced into the name is, of itself indicating of more than provincial powers. On the 31st March, 1875, chapter 82, of the Statutes of Nova Scotia for 1874, was disallowed upon grounds applicable to this Act. The under- signad recommends that unless the objectionable provisions are obviated by amendment, this Act should be disallowed. Chapter 68, entitled : " An Act to incorporate the Industrial and Commercial Life Assurance Company of Canada." This Act is open to the objections suggested, with reference to chapter 67, besides containing a provision with reference to the insolvency of the company. The undersigned recommends that un'.ess the objectionable provisions are obviated by amendment, this Act should be disallowed. Chapter 66, entitled : " An Act to incorporate the Alliance Insurance Company." By this Act, power is given to the company to borrow money on security of its debentures, to an amount not exceeding the amount of its paid-up capital stock. This provisions seems open to serious objection, as a matter of policy ; but having regard to the course which has been pursued in reference to other Acts, giving objectional: '■, powers, the undersigned does not feel that he ought to recommend the disallowance of this Act on that ground. He may remark that by the 17th section of chapter 67 and by the 23rd section of chapter 68, powers of the same character,, though not so extensive, are given to the companies by these Acts incorporated. EDWARD BLAKE. Minister of Justice. I Excellency th« >veniber, 1875. ) yeur 1874, by the onour to report as li of Canada." By by ctsrtain church jcoiiie vested, along e, in a new cliurch I chapter 7") of the tliat a.s to property e undersigned does 3 city of King.ston if the same, in the letence of the local rhour of King.ston. [) far as the Icgisla- to recommend that ho refers, it should 1 and Marine Insu- le undersigned too B with any persons ith any persons, in rts. It is not pro- Power is given to lany may carry on itself indicating of of the Statutes of Act. The under- ed by amendment, and Commercial ihapter 67, besides sions are obviated uranee Company." on security of its ipital stock. This i having regard to ectional: ; powers, wance of this Act ter 67 and by the b so extensive, are 5LAKE. !er oj Justice. 38 VICTOHIA, 1874. 148 Repoii of thr I/onoKnildi' t/f Mimxlrr of JiihIIcc, appri)Vidlii/ llln Flvcilli'iicij tin' fiorernor General in Council on the ,.',lnl Anrrnihi'i; /S7o. Dkpahtmknt of Juhtiok, Ottaava, lOth November, 1875. Witli I'cference to the undermentiijned four puldic Acts passed by the h^gislature of Ontario in tlie year 1874, the undersigned begs leave to report: Chapter 4, intituled: "An Act respecting tlie operation of the Statutes of Ontario." Section 6. — -The language is lather vague and is open to the construction tliat it a[)plies to the statutes of tlie Dominion and statutes of former legislatures upon sul>ject» within tlie legislative coinpetence of the Dominion. Section 12 enacts tiiat several statutes sliould bo repealed so far an tliey relate to Ontario — .some of these statutes relating in part to criminal law and pnutedure are still in f(trco, and tlie language with reference to their repeal is objectionably wide. It would be better to limit it to so much of the Acts, as affect matters within the legisla- tive authority of Ontario. Chapter 12, intituled : " An Act to amend tlie Act respecting Division Courts." The provision in this Act, making it the duty of a county court judge to hold a division court in any county in tlie province, on being ordered to do so by the Lieutenant- Governor in Council, itc, appears to be objectionable as assuming, though to a limited extent, the power of appointment vested in the Government of Cmiada. It would not be objectionable to impose the 'in(>,-r, IS75. Dei'artmknt ok JuHTirE, OiTAWA, 23rcl December, 1875. With reforenco to the (i') ()r.l..rs in Council, ,'islature of Ontario, ()assed in the session thereof, \w]d in the year l87r)-6 (3yth Victoi'ia), the undersij,'ne(l l)cf,'s to report as follows ; — Chapters I to 7, 10 to 22, 24 to 31, 33 to 70, 78, 80 to 91, and 97 to lU, inclusive, do not appear to call for special observation, or for the exercise of the power of disallowane. Chapter 8. — " An Act respecting,' certain administrative matters herein mentioned." The first section of this Act is as follows : — "The Lieutenant-Governor may, with the advice and consent of the executive coun- cil, from time to time, appoint any person or persons, jointly and severally, to be his dejjuty or deputies, within any part or parts of the province, in respect of matters which are within the legislative authority of the province in this behalf ; and such deputy or deputies may exercise, during the pleasure of the Lieutenant-Covernor, such powers, authorities and functions of the Lieutenant-(jovernor as, being within the legislative authority of this province, the Lieutenant-CJovernor deems necessary expedient to assign to such deputy or deputies ; but the appointment of such deputy or deputies shall not affect the exercise by the Lieutenant-Governor of any power, authority or function." The sections of the British North America Act bearing upon this subject appear to be as follows : — Section 58.— "For each province there shall be an officer, styled the Lieutenant- Governor, appointed by the Governor General in Council, by instrument, under the great seal of Canada." Section 59.—" A Lieutenant-Governor shall hold office during the pleasure of the Governor General ; but any Lieu tenant-Go vei-nor appointed after the commencement of the first session of the Parliament of Canada shall not be removable wiihin five years from his appointnxent, except for cause assigned, which shall be communicated to him in writing within one month after the order for his removal is made, and shall be com- municated by message to the Senate and to the House of Commons within one week thereafter, if the Parliament is then sitting, and if not, then within one week after the commencement of the next session of Parliament." Section 62. — " The provisions of this Act, referring to the Lieutenant-Governor, extend and apply to the Lieutenant-Governor, for the time being, of each province, or other (iliii'f executive officer or , idministrator, for the time being, carrying on the govern- ment of the province, by whatever title he is designated." Section 65. — " All powers, authorities and functions which under any Act of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ii-eland, or of the legislature of Upper Canada, Lower Canada or Canada, were or are, before or at the union, vested in or exercisable by the respective Governors or Lieutenant-Governors of those provinces, with the advice, or with the advice and con- sent, of the respective executive councils thereof, or in conjunction with those councils, or with any number of members thereof, or by the Governors or Lieutenant-Governors individually, shall, as far as the same are capable of being exercised after the union, in 146 ONTARIO LEGISLATION relation to the governments of Ontario and Quebec respectively, be vested in, and shall or may be exercised by the Lieutenant-Governor of Ontario and Quebec respectively, with the advice, or with the advice and consent of, or in conjunction with the respective execu- tive councils, or any members thereof, or by the Lieutenant-Governor, individually as the case retjuires, subject, nevertheless (except with respect to such as exist under Acts of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland), to be abolished or altered by the respective legislatures of Ontario and Quebec." Section 67. — "The Governor General in Council may, from time to time, appoint an administrator to execute the office and functions of the Lieutenant-Governor during his absence, illness, or other inability." In connection with section 65 of " The British North America .Vet, 1867," it may be convenient *o refer to .section 40 of the Union Act, ^ and 4 Vic, chap. 35. This section preserves lie prerogative to Her Majesty, notwithstanding anything contained in the Act to authorize a Governor (ieneral to appoint deputies ; but the Governor of Canada does not appear to have been invested under the Act with the power to appoint a deputy. This power, might, however, be communicated to him by the direct exercise of the ])rerogative in each case. Tlie 92nd section of the British North America Actgives power to the provin -ial legislatures to make laws in relaticm to the amendment, from time to time, notwithstanding anything in this Act, of the constitution of the province, except as regards the office of the Lieutenant-Governor. Having regard to this limitation, and having regard also to the 67th section, which authorizes the Governor in Council to appoint an administrator to execute tlie office and functions of Lieutenant-Governor duiing his absence, illness or other inability, and looking to the power expressly conferred upon Her Majesty by the ] 4th section, to authorize the Governor General, from time to time, to appoint his own deputies, and, conti'asting this extension with the more limited provisions made by the 67th section, for the case of Lieutenant-Governors, the undersigned takes it to be clear, that it would not be within the competency of the provincial legislature to empower the Lieutenant- Governor in Council to appoint a deputy for the execution of any of those offices or functions, which properly pertain to him in his capacity as Lieutenant-Governor. The clause in question purports, however, to restrict the action of the deputy to matters which are within t^e legislative authority of the province in that behalf ; but that restriction leaves entirely unsettled t'do question how far the deputy may act. If the local legislature invests the person who, from time to time, fills the office of Lieutenant-Governor with certain powers which are not properly or necessarily attri- butes of his office, and with which it was competent to the legislature to invest any other person, it is obvious that the legislature which might divest the Lieutenant-Governor of these powers altogether, might give him tlie right to exercise them by deputy ; and it is highly probable that there are transactions of a description, the performance of which, by deputy, it might be coiivenient to authorize ; but it appears to the undersigned that it would be advisable so to alter the phraseology of the clause, as to render cleai'er the extent of the power, by excepting from its operation all powers and functions which "ve attributes of the office of Lieutenant-Governo', and limiting it,s operation to such powers and functions as may, from time to time, be lawfully conferred upon the person filling the office of Lieutenant-Governor by the pr jvincial legislature. The undersigned feels that there is iruch difficulty in framing a clau.se, and he re- commends that the attention of the Lieutenant-Governor be called to these observations with a view to their consideration by his government. Chapter 9. — " An Act respecting the Legislative Assembly." This Act contains various clauses conferring privileges upon the assemMy and its members. The exact range of the powers of local legislatures in this pa/ticular has been the subject of discussion in more than one case. Besides other clauses open to question, the 11th section provides that the assembly sha.ll have all the rights and privileges of a court of record, for the purpose ofc sum- marily incjuiring into and punishing, as breaches of privilege, or as contempt of court i. I ■'J9 vicTOKiA, 1875-76. 147 ba vested in, and shall uebec respectively, with ith the respective execu- rnor, individually as the 1 exist under Acts of the iigdom of Great Britain ilatures of Ontario and time to time, appoint an nt-Governor during his I Act, 18G7," it maybe chap. 35. This section thing contained in the le Governor of Canada he power to appoint a y the direct exercise of jrth America Actgives the amendment, from tution of the province, ■■he 67th section, which execute the olKce and r other inability, and Y the ] 4tli section, to is own deputies, and, ! by the 67th section, be clear, that it would jower the Lieutenant- ly of those offices or nant-Governor. tion of the deputy to e in that behalf ; but deputy may act. time, fills the office of y or necessarily attri- ire to invest any other ieutenant-Governor of by deputy ; and it is )erforniance of which, the undersigned that to render clearer the 1 functions which n.e ration to such powers ion the person filling g a clause, and he re- to these observations h,^ assem' ly and its ticular has been the es that the assembly the purpose ofc sum- is contempt of court (without prejudice to the liability of the offimders to prosecution and punishment, criminally or otherwise, according to law, independently of the Act), .several acts, matters and things. Amongst them are a.ssaults on m(^mbers of the assembly, not merely during the session, but also for twenty days before and after the same ; giving false evidence before the assembly or a connnittee thereof ; presenting to the assembly forged or falsified documents, with an intent to deceiv e ; forging, falsifying ov unlaw- fully altering papers, and certain other matters, which appear to be clearly within the criminal law. The section decbires that the assejnbly possess the power and jurisdiction to provide by statute, as may be necessary or expedient, for inquiring into, judging and pronouncing upon the commissio-- or doing of any such acts, mattei's oi' things, and awarding and carrying into execution the punishment ther-cof, provifled by the At.:. The 12th .section provides that any pei-son guilty, shall be liable, in addition to any other penalty or punishment to which he is by law subject, to imprisonment for such time during the se.ss'.on of the Legislative Assembly tlien being held, as may be dfjtermined by the Legislative Assembly. The 13th section provides, that if any person is declared to be gui^iy of contempt for any of the acts, matters and things in section 11 set forth, is directed to be taken into custody or to be imprisoned, the Speaker shall issue his warrant to the Serjeant-at- Arms attending the House, or to the keeper or governor of the connnon jail in the county of Yo.-k, to take such person into custody, and to keep and detain him in cusUxly in accordance with the order of the assemibly. The 14th section declares, that tlie determination of the assembly upon any pro- ceeding under the Act, within the authority of the province, shall be final and ccnclusive. It appears to the undersigned that several of these provisions are open to very serious question, as being «///•« virci of a local legislature, but almost all of them ai'e containtd in an Act of the legislature of Quebec upon the same subject, which was left to its operation. There are, indeed, some new provisions, but it would not be advisable, upon the principle upon which the Quebec Act was allowed, to advise the disaUowance of this Act, by reason of the insertifin of these provisions, and the undersigned feels bound to recommend that, following the precedent referred to, the Act sliould be left to its operation, it being quite possible for those who may object to its constitutionality to raise their objections in the courts. Chaptf r 14. — " An .Act respecting County Court Judges." The main yjrovisions t)f this Act appear, by reason of the arrangements for the meeting and action of the judges concerned, not to be open to objections taken to Lgislationof this character, which has occurred in other provinces, and the ninth section, which imposes upon a county court judge tin duty, without arrangement made between the judges, of holding courts elsewhere than in his own county, is conditional on the order of the Governor General in Council, and is, in this view, unobjectionable. ^I^The undersigned recommends that the Act, the provisions of which appear to be highly useful, should be left to its operation. Chapter 23.—" An Act respecting Insurance Companies." The undersigned proposes to defer for the present his report upon this Act. Chapter 24. — " An Act to secure uniform conditions in Policies of Fire Insurance." Some question has been made a.s to the competency of the local legislature to pass this law, more particularly with regard to contracts made out of the province, but the undersigned recommends that tlie Act should br left tt» its operation, the questioii being conveniently susceptible of determination in the courts. Chapter 26. — "An Act to amend the Law respecting the sals of fermented or spirituous liquors." Some of the provisions of this Act raise ,i question as to licenses which is .titb judu-e ; but, as in other similar cases, the undersigned recommends that the Act fhould 1 le left to its operation. Chapter 32. — " An Act to make further provision respecting Permanent Building Societies." t\ 148 ONTARIO LEGISLATION This Aac deals with the general management of permanent building societies in the spirit of legislation, which recinitly took place on the subject in the Canadian Parliament. Having regard to the doubts which exist, as to which legislature is competent to deal with this question, the undersigned cannot recommend that this Act should be disallowed. Chapter 77. — " An Act to amend the Acts relating to the London, Huron and Bruce Railway Company." This Act provides (section 2) that it should l)e lawful for the London, Huron and Bruce Railway Company and the Great Western Railway Company to unite together as one company, or for one of the companies to purchase and acquire the property and rights of the other. The 3rd section provides that it should be lawful for the directors of each of the companies to agree with those of the cjther, that the companies should be united, and that one company should urchase the property, ifec, and take upon itself the liabilities •fee, of the united company. The 4th section provides that when such an agreement shall have been made, the directors of each company shall call a special general meeting of the shareholders of the company for tl»e purpose of considering it, and that it may be ratified. The 5th section provides that, from the time when any such ratified agreement shall take efiFect, the company shall become one company by the corporate name assigned in the agreement, and it provides that certain enactments in the Act to incorporate the London, Huron and Bruce Railway Company shall extend to any portion of railway which the new company shall use for the purpose of connecting the southern terminus of the London, Huron and Bruce Railway Company with the city of London. The 6th section provides that after such ratified agreement takes effect the railway property shall become vested in the company purchasing the same, and such last men- tioned company shall be responsible for all the liabilities of the company whose railway property and right shall have been transferred to them. The 7th section provides for the capital of the union company, and gives power to the purchasing company to increase its capital, by loan, or the issue of debentures bear- ing any interest not exceeding seven per cent. The 8th section continues the privileges, powers, rights and franchises proposed by either company, provided that in the case of other provisions in the charters of the two companie.s, the agreement between the two companies shall define which shall continue to, and be possessed by, the united or purchasing company. All these sections, in so far as they purport to confer rights upon the Great West- ern Railway Company, a corporation under the legislative control of the Parliament of Canada, appear to the undersigned to be ultra vires. The powers required in order to make the Great Western Railway Company tc act in the matter provided for by the statute, must be derived from the Parliament of Canada, and it would seem proper, in this connection, to point to the condition which is properly attached to the 14th clause, the language of which is that the Great Western Railway Company, "if so lawfully empowered," may hold shares, etc. The undersigned recommends that the attention of the Lieutenant-Governor be called to this Act, with a view to its amendment before the expiration of the time within which it can bo disallowed. Chapter 79. — " An Act to incorporate the Niagara Falls and Lake Erie Railway Company." The 33rd section enacts as follows : — " It shall be lawful for the said company to enter into any agreement with any other Railway Company in the province of Ontario for leasing the said lailroad or any part thereof, or for the use thereof at any time or times, or for any period to such other company, or for the leasing and hiring any locomotives, tenders or movable property, or for the leasing by the said company of any such other railway company's roadway, or any part thereof, or for the use thereof at any time or times, or for any period to the said company, or for the leasing or hiring any locomotive, tenders or other movable property of such other railway company as they may deem expedient, and, generally, to make any agreement or agreements with any such other company, touching the use » »i n »» m ii»i MW l p i :ng societies iu ohe adian Parliament. competent to deal 3uld be dinallowed. Huron and Bruce ndon, Huron and to unite toifether the property and Drs of each of the Id be united, and self the liabilities '6 been made, the lareholders of the utified agreement ite name assigned o incorporate the ortion of railway Duthern terminus iOndon. effect the railway d such last men- ly whose railway id gives power to debentures bear- lises proposed by arters of the two eh shall continue the Great West- he Parliament of uired in order to ided for by the seem proper, in the 14th clause, , " if so lawfully ant-Governor be tion of the time ke Erie Railway ement with any i railroad or any od to such other jvable property, pany's roadway, .ny period to the other movable , and, generally, Hjuching the use 3!) vicTOKiA, 1875-7G. U9 by one or the other, or by both companies, of the railway or movable property of either on both, or any part thereof, or touching any service to bo rendered by the one compap.y to tlie other, and the compensation tlierefor ; or sucii other railway comjiany as well as any other corporation may agree upon any terms as tliey mutuaily consent to, for the loan of its credit to, or may subscribe to or become the owner of the stock of the rail- way company hereby ci'eated in like manner, and witii like riglits as individuals, but, in so far only as the powers hereby conferral may be construed to have reference to any act, deed, nuiLter or thing to bo done, executed, fulfilled or pei-formed witliin the limits of the province of Ontario to tlie other, and tlie compensation tlierefor, ami any such agreement sliall he valid and binding, and sliall be enforced by courts of law accord- ing to the terms and tenor thereof, and any company or individual accepting or executing such lease, shall be, and is empowered to exercise all the I'ights and privileges in the charter conferred : Provided, however, that any lease or agreement autlioriziid by this section shall be subject to the approval of a majority of the shareholders obtained at a special general meeting convened, according to the by-laws of the company, for con- sidering the same." The 34th section is as follows : — "The said company shall have power, and it shall be lawful for them to enter into arrangements with any other lailway comjjany for the utilizing of the whole or any part of such railway comjiany's roadway lying between the aforesaid points, as the said company may see tit, and such part so utilized shall be deemed, for the time, to be a porticm of the railway so to he constructed as aforesaid, but such utilization shall not prevent said company from carrying out the original design of building an entire indepimdent roadway." These sections purport to authorize action by other railway companies, not limit- ing them to railways under the authority of the provincial legislature, and with reference to these the undersigned would refer to his remarks upon chapter 77. Chapter 92. — "An Act to incorporate the Home Fire Insurance Company." The 19th .section provitles that the Lieutenant-Govermji- in Council may appoint qualitied per.sons to examine irto the affairs of the company, and to cause their books to be opened for the inspection of the person or persons so appointed, and otherwise to facilitate such examinations, and to have power to examine such officers and agents under oath, and when it shall appear that the assets and financial position of the company are sucli as not to justify the continuance in business of the company, the Attorney General may apply in a summary manner, on motion, to one of tlie superior courts of law or equity, for an order requiring the said company to show cause why the business of the company should not be closed, and in case it sliall appear to the satisfaction of the court, upon hearing the allegations and proofs of the res{)ective parties, that the assets and funds of the company are not sufficient, or that the interests of the public so i-equire, the said court shall decree a dissolution of the said company's affairs, and may appoint a receiver, and take jwssession of, collect and get in the assets and effects of the company, and otherwise to wind up the affairs thereof. The 20th .section gives powers t<.) the receiver, and the 21st section to the court. These provisions seems to trench on the law of insolvency ; and the undersigned recommends that the attention of the Lieutenant-Governor be called to this objection, with a view to the amendment of the Act before the expiration of the time within which it can be disallowed. Chapter 93. — " An Act to incorporate the Union Fire Insurance Company." This Act in no wise limits the fire insurance business to be done by the company ; a limitation, though har-dly satisfactory, is made in the preceding Act. The undersigned suggests that it would be proper to amend this Act by such a limitation of the range of business as may bring the company within the powers of the local legislature. The IGtli, 17th and 18tl> sections contain provisions with reference to the winding up of the company similar to those contained in chapter 92, and with reference to them the undersigned repeats the recommendation already made as to that Act. Chapter 94. — "An Act to confirm a By-law of the Canada Permanent Building and Saving Society, changing its name to the Canada Permanent Loan and Havings Company, and for other purposes therein mentioned." 10 I n *it*«Ei'iSii:il-«w^j:- v^iv 'tt^eiaxrJt^-- ' y.'« vjw I I . a.nnn in u< i »mjnn;iM i 150 ONTARIO LEGISLATION, 39 VICTORIA, 1875-76. Chapter 95. — " An Act to change the name of the Huron and Pjrie Savings and Loan Society to that of the Hui'on and Erie Loan and Savings Company.'' Chapter 90. — " An Act to confirm a By-law changing the name of the Western Canada Permanent Building and Savings Society to that of the We.stern Canada Loan and Savings Company." Having regard to the doubt already referred to, on the subject of the jurisdiction as to building societies, the undersigned cannot recommend the disallowance of these Acts. EDWARD BLAKE ^ Minister of Justice,. Report of the flono-iirahle the MiniMer of Justice, apjyroved hy His Excellennj the Governor General in Couui-il o i. the 20th March, 1877. Department of Justice, Ottawa, 23rd March, 1877. Upon certain Statutes of the legislature of Ontario passed in the session thereof held in the year 1875-70, (39th Victoria,) and reported upon by me on the 13th October, 1876, I liave to report further, that with reference to the objections raised to chapters 77, 79, 92 and 93 of these statutes, provision has been made, as appears by the letter of the Provincial Secretary of Ontario tf) the Secretary of State, of the 20th March, instant, so far obviating the objections, tiiat it is fit that these statutes should be left to their operation, and J recommend accordingly. Upon chapter 23 of same statutes, intituled : "An Act respecting Insurance Companies," on which I have not as yet reported, I beg to report that tliis act seems open to the objection which was taken to the Acts above mentioned incorporating insurance companies, but that, as appears by the despatch already referred to, this objection has been so far obviated that it is fit that the Act should be left to its opera- tion, and I recommend accordingly. EDWARD BLAKE, Minister of Justice. V ¥ Erie Savings and liiny.'' e of the Western stern Canada Loan of the jurisdiction allowance of these BLAKE Assendjly, shall be hohl to be the original thereof. The second section provides for the incorporation into the roll, of such Acts passed during the then present session, as may be thought advisable; and the fifth section pro- vides that the Lieutenant-Governor may, by luodamation, declai'e the day on, from and after which the same shall come into foi'ce and have effect as law, by the designation of the Revised Statutes of Ontario ; and the sixth section provides that on, from and after such day, the same shall accordingly come into force and effect. 'J'he seventh section provides that the repeal of certain enactments mentioned in the sclu'dide annexed to the roll shall not be construed as intended to extend to such of the provisions as relate to subjects in regard to which the Parliament of Canada has exclusive powers of legislation. As the recital refers to the ]{evised Statutes as a classification and consolidation of the Public (ieneral Statutes, which apply to the province, and are within the legislative authority of the legislature of Ontario, and as the repeal of any enact- .ments is limited as abov" mentioned, and as the original roll which by proclamation is to come into force, is deposited in the otKce of the clerk of the legislative assem- bly, and therefore not readily accessible, I do not think it necessary to examine critically such roll. I therefore recommend that this Act be left to its operation. Caj). 7. — " An Act to provide for certain amendments and additions to the statutes of the province, as consolidated by the Commissioners appointed for that purpose." This Act appears unobjectionable, and I recommend that it be left to its operation. Cap. 8. — " An Act to provide for certain amendments of tlie Law." Section 72 is as follows : — " Notwithstanding anything contained in section eight of the Temperance Act of 1864, every such prohibitory by-law as therein mentioned, whether heretofore or here- after passed, shall come into force from the first day of May next after the final passing thereof, but tiiis provision shall not affect any question as to the validity of anj' by-law heretofore passed, c the time at which any by-law which may be voted on the first day of May next, shall go into effect." Sections 7G, 77 and 78 place certain restrictions as to the issue of licenses for tb-j sale of liquor. As mentioned in previous report;!, the question as to how far the authority of the local legislature in respect of restrictions upon the sale of liquor extends, is now before the courts. I therefore merely call attenMon to these provisions, but recommend that the Act be left to its operation. Chapters 9 to 13, inclusive, appear unobjectionable, and I recommend that they be left to their operation." Cap. 14. — " An Act respecting Aid to certain Railways and the creation of a Rail- way Land Subsidy Fund." Among other railway companies aided by this Act, is the Montreal and city of Ottawa Junction Railway Company, which, from the boundary line between Ontario and Quebec, to or near the city of Ottawa, a distance of about sixty-six miles, i-! to be aided at a certain rate per mile. The eighth subsection of section 3 provides, that in order to secure the continuous running of the railways aided by this Act, the iron or steel rai laid from time to time by any of the said railways are not to be removed by the company, or by the authority of the Company, without the consent of the Lieutenant-Governor in Council, obtained on the recommendation of the Commissioner of Public Works. This enactment appears wide enough to include the iron and steel rails which may have been laid by the Montreal and city of Ottawa Junction Railway Company on that part of the line outside of the province of Ontario, over which the local legislature has no control. It is doubtful also whether that company would be bound by the enact- ment just mentioned. Inasmuch, however, as a complianc^e with such enactment may be considered necessary to entitle the company to the aid mentioned, the Act may, I think, be left to its operation. Cap. 15. — " An Act respecting ' The Free Grants and Homestead Act of 1868.' " 40 vicwHiA, 1877. 153 posited in the otKce iginal tliereof. of such Acts passed tlie fifth section pro- he day on, from and y the designation of it on, from and after nients inentioned in to extend to such of nent of Canada lias I and consolidation md are witliin the ■peal of any enact- ich hy proclamation e legislative assem- :essary to examine its operation. tion.s to the statutes that purpose." !eft to its operation, iw." remperance Act of heretofore or here- er the final passing dity of an}' by-law ;ed on the lirst day of licenses for thy w far the authority or extends, is now ns, but recommend mend that they be creation of a Rail- itreal and city of between Ontario ix miles, is to be re the continuous From time to time by the autliority Council, obtained 1 rails which may Company on that !al legislature has nd by the enact- 1 enactment may the Act may, I 1 Act of 1868.' " Cap. 16. — « An Act to amend the several Acts respecting the Education Dejiart- ment, Public and High Schools, and Univei-sity of Tf/ronto." These Acts appear unobjectionable, and I recommend that they be left to their operation. Cap. 17. "An Act for the encouragement of Agriculture, Horticulture, Arts and Manufactures." Section 15, amongst other things, provides tliat if any person wilfully injures or destroys any property within the exhibition grounds of the Agricultural and Arts Association, or of any' agricultural or horticultural society, he shall be liable to a tine, which is to be paid over to the association, or society, for its use and benefit. This provision seems to entrench upcm the criminal law respecting malicious injuries to property. 1 recommend tliat the attention of the Lieutenant-Governor be called to this section. Cap. 18.— "An Act to amend the Acts respecting the sale of Fermented or Spirituous Li(|Uors." The remarks above made as to the power of the local legislature to deal with the subject, apply to this Act. I beg to call attention to the use of the word "offence" in the IGth, 18th, 19th, 20tli, •21st, 22nd and 2.'5id sections. The objections to the use of this word in describing a violation of a provincial law were pointed out on previous occasions. I recommend that the attention of the Lieutenant-Governor be again called to the matter. Chapters 10 to 23 inclusive, appear unobjectionalile, and I recommend that they be left to their operation. Cap. 24.—" An Act respecting the territorial and temporary judicial districts of the province, and provisional county of Haliburton." The 9th and 10th sections of tliis Act appeal- to be the only ones r&iuiring special mention, and as an important constitutional (juestion is involved, I feel called upon to make some remarks upon them. The 9th section repeals certain pi'ovisions of the respective Acts regarding the territorial district of Muskoka and Parry Sound and Thunder Bay, relating to the jurisdiction and powers os the stipendiary magistrate, as judge of the district or division court, and substitutes in each of such Acts the following : — •' The stipendiary magistrate shall act as division court Judge of the district, and shall have the like jurisdiction and powers as are possessed by the county court judges in division courts in counties, and shall perform the like duties ; and the provisions of law, from time to time, in force in Ontario, relating to division courts in counties, and the officers thereof, including the rules or forms made, or to be made by the board of county judges, and the fees payable to the clerks and bailifTs shall apply to the division courts of the said distiict, except where inconsistent with this Act." Were this the f.r.st enactment of a similar nature passed by a provincial legisla- ture, I would hesitate long before recommending that it should be left to its operation, as it appears to entrench upon the powers conferred upon the Governor General of Canada, by the 9()th section of the British North America Act, 1867, which section is as follows : — i ■ i "The Governor General shall appoint the judges of the supeJor, district and county courts in each province, except those of the Court of Probate of Nova Scotia and New Brunswick." inr.smuch, however, as provincial legislation has been previously left to its operal ion, whereby certain judicial powers in civil matters have been conferred upon stipealiary magistrates, and whereby courts presided over by stipendiary magis- tral's, and having, in effect, the powers of the division courts of Ontario, have been constituted, 1 do not feel at liberty to object to the provision of the present .\ct, pro- vided the jurisdiction conferred by the former legislation upon the subject which has been left to its operation, has iiotin effect been substantially extended. il :': 164 ONTARIO I.EaiSLATION In a report dated 29th September last, upon the Acts of last session of the legis- lature of British Columbia, 1 Imd occasion to i-emark at somc^ length upon legislation of a nature similar to that now under consideration, and I then pointed out the danger which might ensue from this class of legislation. I refer to that report. The Act 31st Vic, 18G8, Ontario, cap. .'55, which was passed to provide for the organization of the territorial district of Aluskoka, and under which the stipendiary magistrate of that district was appointed, declared that certJiin provisions of cap. \'2,S of the Consolidated Statutes of Upper Canada, intituted : " An Act respecting the ad- ministration of justice in unorganized tracts," should extend and apply to said district of Muskokn. Similar provisions are contained in the Act .33 Vict. (1869), Ontario, cap. 24, which provides for the organization of the territorial district of Parry Sound, and in the Act 'M Vict. (1871), Ontario, cap. t, which provides for the organization of the tenitorial district of Thunder liny. The provisions of the Act of the consolidated statutes, thus made a)i[)licable to these territorial districts, in effect provided for the holding of a court of ivil jurisdiction in each district, under the name and style of the first (or other, ns the case may be), division court for the district of, etc., over which the stipendiary magistrate should pre- side, and be the solo judge in all actions brought in such division court, and determine all questions, as well of fact as of law, in relation thereto, in a summary manner, with power, should he think tit, to summon a jury of five pcnsons, to try the fact controverted in a case. For every such court, provision is made for an appointment of a clerk and one or more bailiffs. The jurisdiction of the court is declared to bi' over all personal actitms, save certain excepted ones, where the debt or damages claimed is not more than $100. Each court is to have a seal, with which all summonses and other processes shall be sealed or stamped. Suits are to be commenced by summons to the defendant, issued by the clerk, con- taining the particulars of the plaintiff's demand. Provision is made for the subpivnaing of witnesses. That the judgment of the court, with certain exceptions, to be final and conclusive. Provisions are made for the enforcement of the judgments by execution. Proceedings and suits against absconding debtors are provided for. The magistrate is given jurisdiction on the consent of the parties, to try and deter- mino cases up to $800 in amount. In addition to the Act in the consolidated statutes, above referred to, which has been made aj)plicable to the three districts mentioned, certain provisions of the Act re.specting Division Courts, being cap. 19 of the Consolidated Statutes of Upper Canada and of the Act to .amend the Acts n-specting the Division Courts, l)eing cap. 23 of 32 Vic. (1868-9) Ontario, are made applicable to the districts of Parry Sound and Thunder Bay. The provi^^ions of the Act I'cspecting Division Courts referred to, relate to examin- ation of judgment debtors, chums of landlords to goods seized in execution. The provisions of the Act 32 Vic. (1868-69), Ontario, amending the Acts respect- ing Division Courts, provide that all judgments in the division courts shall have, and continue to have the same force and effect as judgments of courts of record. Provisions are made for the entry of final judgment by the clerk when the claim is not disputed, and proceedings for the gari.ishment of debts are provided for. It will be thus seen that the jurisdiction of the courts presided over by the stipendiary magistrates of the three districts above mentioned, was before the passing of the Act now under consideration, practically as extensive as the jurisdiction of the various div- ision courts in the province, and in some cases was more extensive. The present Act does not, therefore, seem to extend, to any substantial extent, the jurisdiction previously possessed by those courts. The section now under consideration, however, not only declares that the stipendi- magistrate as division court judge shall have the like jurisdiction and powers as are now lion of the legis- )oii logislation of i out the danger provide for the the stipendiary ions of cap. 128 specting tliead- ! to said district •ntario, cap. 24, ■ Hound, and in -nization of the de applicable to ivil jurisdiction le case may be), rate should pre- and determine •y manner, with ict controverted ilerk and one or )ns, save certain 0. Each court II be sealed or the clerk, con- dgment of the ■e made for the nst absconding I try and det(;r- to, which has ins of the Act Upper Canada f caj). 23 of 32 d and Thunder late to examin- n. e Acts respect- hall have, and •d. vhen the claim vided for. It be stipendiary ig of the Act :ie various div- ial extent, the I the stipendi- ers as are now 40 virTouiA, 1H77. 155 possessed i>y the county court ,ju(lf,'e in- division courts in counties, but goes on to pro- vide that the provisions of law, from time to time in force in Ontario, relating to the division courts in counties and otVicers thereof, etc., shall apply to the division courts of these districts. This provision is, 1 think, objectionalde, imismucli, although it n)ay be quite within the powers of the Icgislaturi; of Ontario to increase the jurisdieticm of the pointed by the Dominion, yet their jurisdiction might bf; increased to an extent that might be olijec- tionable in tlie case of these district division courts, the judges of which are ajipointed by Ontario. Were the section limited in its ojierations to the jurisdiction and [lower, etc., of the county ctiurt judges in division courts and counties as now existing, I should not, for the reasons above mentioned, reconnnend any interference with the Act. I recommend, however, thiit the attention of the Lieuteiiant-(!overnor b(( called to the objectioi\ referred to, with a re(|uest that his government may promote, at the next •session, and before tlie time expires for determining as to the disallowance of the Act, amendatory legislation. Among the provisions of the Act relating to division courts, which by the .s( ction under consideration are made applicable to the courts of the districts rciferred to, are certain provisions which appear to be beyond the legislative authority of the local legis- lature, inasmuch as they seem to form })art of the ctiniinal law. I refer to section 4f^, which declaies that any person wrongfully holding or g<'tting possession of accounts, money, books, etc., in the possession of the clerk, shall bo guilty of a misfiemeanour. To section 105, which provides for that, in case any person in any examination wilfully or corruptly gives evidence, or wilfully swears or allirms falsely, he shall be liable to the jjcnalties of wilful and corrupt perjury. To section If^l, which declares that every person who forges the seal or any process of the court or who serves or enforces any such forged proci'^s knowing the same to be forged, etc., shall be guilty of felony. To section 184, which provides that, if any oflicer or bailill' be assaulted while in the execution of his duty ; or if any rescue be made or attempted, or any prop- erty seized, etc., the person .so olfending shall be liable to a certain fine. I recommend that the attention of tlu; Lieutenant-Governor be calh d to these matters Section 10 repeals certain pr«)visions of cap. 128 of the Consolidated Statutes of Upper Canada, intituled : "An Act respecting the administration of justice in unorgan- ized tracts," and substitutes the following : — The stipendiary magistrate of every temporary judicial district shall act as divi- sion court judge of the district, and shall have the like jurisdiction and powers as are po.s.?essed by county court judges in division courts in counties, and shall perform the like duties, and the pi'ovisions of law from time to time in force in Ontario, relating to division courts in counties, and the officers thereof, including the rules or forms made or to be made by the board of county judges, and the fees payable to the clerks and bailiffs, shall extend to the division courts of temporary judicial districts, except where inconsistent with this Act; |)rovided that the provisions of law authorizing the signing of judgment by default for want of a notice disputing the plaintiffs claim, or authorizing the garnishment of debts or money demands, shall not apply to the said division courts. The remark I have made upon section 9 applies equally to this section. I recom- mend that a similar course be pursued with reference to it. By some of the sections which are so repealed, provisions are made which appear to form part of the criminal law, and, as such, are beyond the legislative authority of the local legislature. The .sections I refer to are 17, which declares that certain persons unlawfully holding or getting possession of certain books, papers, etc., shall be guilty of a misdemeanour. Section 29 relating to the forging of the seal or process of the court, etc. Section 80, relating to assault of an officer or bailiff of the court while in the ex- ecution of his duty or rescuing the goods seized, etc. ,. I recommend that the attention of the Lieutenant-Governor be called to these matters. v«aESall»«M@^i!WS»^«<*e«»*n«> mia i LU i ...fti.w.u » tti>^ KUl l L D.^ t jut. il-MUM i m^^ ^ff ■ »■« LU1 - Wt - ir>G ONTAIUO LKUIHI.ATION. bo L-aunhHr't-S. '"'""'• '^"'"^'' """^'-'-"'^1'''^. -"' 1 -commend that they AKhn.if.!. tl,„ f.r-t soctiMM UH...rp.,mt,.s M.is cnnpuMy for fi,. purpos.-'of c^ rryinc on J .. .„.s,n,.ss ot n-o ...suran... and .lui... all things a ppe/tainin,. tlln!,.,, i , , ^ ^^.00 of ()„tar.n. ,1... l,Sth soctum e.npuwe.rs Mm- ,M,n.pa,.y to ..llo.-t o,^.t,a.:ts . f ir.^urt , \l th ;;;;;iz;::;i;::ix:S.- "- "" ■■»"■■" "-'i- ---'•■»" '•=-'"- It n.ay In, that thy limitation to the provinrc of Onlaiio, .nntain...] in tho first soction.'"""""""' "'"' "'" "''"'''"" "^ '''^' I^icutenant-Uovornor ho called to this he leEt'Kdt'ir^.S.n"'"^''''' '^''^'^'"- "-^i-<--'"*'. -^^ I —n.nd that thoy , Z. A. LASH, , R. LAFLAMME. ' ^'^P-^.'^ ^rf^n.^'^r o/JnsHce. Minister 0/ Justice, • Mr. Assistant Secretary Eckart to Secretary 0/ State. Provincial Seckktary's Office, Toronto, 7th December, 1877. ,-n„ /J'"'7y''''*'"'-tl'f Inference to tlie correspondence that has taken place respect- "Sy" 1^^!T; ^' *''V'*'«r'f"- ^'f .his province at the recent sL^ul^i^ Exceil nVv tl,'( »"7/'"-«''"'l to transmit herewith, for the inforn.ation of his • H, ,1 T ^:"''*''""7; ^'•^"*^'''^'' '^ «"Py of at, Order in Conncil, approved hy his Honour the Ljeu enant-Governor, the Ihd instant, together with a copy'of a rep rt o I liave, &c., I. 11. ECKART, Assistant Secretary, Report of the Hon. Attorney General Mon-at, approved by Hi. Honour the Lieutenant- Governor in Council on the Srd December, 1877. desmSo?t1rir''l,''T''''l""^ "7^'^' """* ''^ '^^^ ^^'^'l ""^•^'' consideration the despatch of the Hon. the &eereta.y of State of Canada, dated 12th November inclosinir a copy of an order of his Excellency in Council, dated 26th October, r877 re peS f the Acts passed by the legislature of this province at the last session, and LsoTcopv of I foClel "*"■ "' ''"^'"'' '*^'^^ ''■'^ ^^*«^^^ >^«^' «"'i -^ -^-h the saiZ^er /^x J?,'' ''*'?T*' '".-gests that the attention of your Honour should l>-> directed to five (5) of the eighty-eight (88) Acts passed at the iLt session of the leg>,^latuir With respect to three of these, namely, chapter four (4) seventeen i\n\ nnrl twenty-four (24), some provisions therein are S.jectil to, as nS>t1,e ngtntine 1 ir not being expressly and clearly confined, to matters within the jurisdiction^of t"ie p m'luial legislature. The way in which the provisions referred to are dealt with tCev 4d statutes, appears to be free from the objections suggested in the report and aT th« revised statutes repeal the Acts in which the objectionable clauses Scu! "d w 11 g^ 40 virxoitiA, 1877. l.'i? Timend that they •iitpniiy." se of carrying on I, ill till' ]ir()viii(!o >f iiiMiijiiii'd with y houHc, store or r personal eistate • oonnt'ctpcl with ihm] ill tiio first •aiiiiot, however, called to this triond that they ASH, '• oj" Justice. liber, 1877. *n place re.spcct- t session thereof orniation of hi.-s [ijirovcd by his of a report of aviiig re;.;ard to iecretary, the Lieutenant- isideration the mljer, inclosing 877, respecting I also a copy of the said order irected to five no. iteen (17) and on fined, or not ' the provincial in the revised rt, and as the ir, and will go into force in a few weeks, the iiii(li'rsigiied dtwH iidt tlifiik it nece.ssary to dineii.s.s at present any of the ohjectiuiis referred to. The eighteenth (18) chaptei- iieing the "Act to amend the Act nwpecting the sale of fA-riiieiilcd and SpiritlioiiH Mqiiors," is ohjeeled to, heeause of tlu! use of the word " otl'eiice " ill certain sections of the Act, and the report «)l)sei\eH that the olijectiolis to the use of tlu; word in (lesi;ril)ing a violation of the provincial law, had limi pointed out on previous occasions. The undersigned does not recolhsct that this objection has been made in any report upon the legislation of tlie ()ntario legislaturi', since the report of the Minister of .) ustice, coiiiinuiiicatei' by tlu! Hon. the Heciclary of .State, in a des|(alcli dal<'d !)th Septeiiiliei 1873, inclnsing ji copy of the order of his i''xcelleiicv in Coiiiicil, duted ;!i-d August, b'^TS. 'l"he rtiport of the undersigned, in answer, dated 8tli hcceniber, [iM'.\, and approved by the Lieutenant-CJovernor in Council, on the 8th January, 1871, and comniunicated to tiie Honourable the Secretary of State on the 14th of the sniiie month, is not referred to in tii"' report of tlu" niinislcr now under consideration, and the undersigned presumes tlmt his report of the 8th !)ccciiiber, I87.i, has ijeeii overlooked, though tiie argiiiiH-nt contained in it, on , lie point in (pitjstion, was supposed to have been ac The Liverpool and London and Gloue Insurance Company, Montreal, 30th June, 1879. renPrnMTn^''^*'^^ \°''''T, ^"^ *''^"«'"ifc herewith, for presentation to the Governor General in Council, the humble petition of The Liverpool and London and (Jlobe Insur- o? OntZTit T '" ^i-"7-- of an Act passed V the legislature of the rroXce IS^SeMut S~9;"^''"P- ''^' ^"' ''^^"'^ "^ '""'' "^''y^' Toronto^^onsoli- I have, &c., G. F. a SMITH, Kecording Secretary. :f r--»7..^=n»:ys.^.:,.,..-L. ^.^i,.,.^ — ... « Excellency the ruary, 1879. Hidoiatioii of the first year (if Ffor I'fuid rt'CDininend Llieir opemtidn. r of Jusfice. >ANY, rune, 1879. to the Governor nd Globe Insur- of the province ^oronto Consoli- t, Secretary. 42 vioTOKiA, 1879. 1.^9 /'I'fitlitii <>/ " I'hr /Arei'pxit and Loinhm and (Ihilm Iiixiirnvci'. Compmiy " In (loverunr General, in rr-Vlia/itfr 7<'). Ti> /fin Exrelleni'y the Governor General of Canada in Cmniril ; 'r\w Inimhle potition of " The LivtTpool iitid r-niiddii uiiil Gloht! Tnsuninco Com- pany'' nhowetli ais follows : — 1. Tlmt the corporation of the city of Toronto, some time since, put upon tli(^ Lon- don nioni^y niarkof, .stcilin;,' (hrlientun's, called watorwoi-ks dehtMitures, to /i larj^e amount, and youi' ix^tilioner.s, who arc an Kn^Huh foiporation, beiwinio tlu! purchaserH, and are now thi^ holders of such di^lM-nturoH, to tlic amount of ii.")0,000 stcrlin^f. 'J. That the statutes and bylaw authori/inj{ the issue of the said dcbcnlureH provided for the levy by taxation, in each year duiinj^ the currency of the; said delien- tures, of a special rate of one mill aiul eitjht-tenths of a mill in the dollar, in addition to all othei- rates upon all the ratabU; property in the city ; anil tor the investuunit of all money arising from the said rate beyond the amount recjuired to |)ay the interest on the said debentures, for tlu; purpose of creating a sinking fund exclusivi-ly for the redemp- tion of the said delientures at maturity. That the said special rate pi'oduced on the then assessment of the city, eighty four thousand dollars a year, leaving, after paynuMit of tlie interest, thirty thousand dollars a year and interest thereon, applicabhi to the sinking fund, irrespective of the increase in the assessed vi.lue of the city, wliich has largely atlvaiu:ed, and will further advance, and whereby the sinking fund would be prop( irtionately i nct'eased . 3. That it was on the basis of the security thus afforded, tliat your petitioners became such )iurchasers. 4. That your petitioners learn that at the last session of the legislature of Ontario a private Act was passed at the instance of the corporation of the city of Toronto intituled : " An Act resi)ecting the Debentur'e Debt and other property of tlu^ city of Toronto," whereby, amongst other things, the accunmlated sinking funds, (including that levied in respect of your petitioners' said bonds), were authorized to be diverted and applied in payment of othei- debts, not including your petitioners said bonds, and whereby also, instead of the sinking funds previously provided, a rat(! of thrc('-(piarters of one per centum on all the city debentures, was authorized to be levied, in addition to a rate for interest, and whereby the moneys arising from the substituted sinking fund rate were authorized to be ajiplied from time to time, in redemption of any of the city debentures. By the operation of this Act your petitioneis will bo deprived of their existing accumulated sinking fund, and of the adeciuate sinking fund rate already ])rescribed, and in lieu thereof a rate producing only .$6,150 a year in respect of the issue of deben- tures, of which your petitioners form part, will be levied, and the proceeds of this wholly inadequate rate, instead. of being specially devoted to the redemption of your petitioners' bonds, may be and will be, diverted to ot:her purposes. 5. That no notice was given of the intention to propose such legislation ; and your petitioners had no knowledge thereof, nor any opportunity to oppose the same. 6. That the said Act deprives your petitioners of the security on the faith whereby they became purchasers of the said fund.s, and thus operates most injuriously against your petitioners. 7. That such legislation should not have been passed, save subject to the assent of the bondholders interested. 8. That to pass such legislation without the assent, and against the will of the bondholders, is a violent interference with their just rights, a great injustice to them, and calculated to shake the confidence of English and foreign investors in all securities issued under the authority of Canadian Provincial Legislation ; since no dependence can hereafter be placed on the conditions under which a loan has been contracted remaining obligatory, longer than suits the interests or convenience of the debtor. ■.4[ I 160 ONTARIO T.EGISLATION 9. That the injustice to your petitioners and other Enj^l.sh investor.i is so flagrant, ami the general consequence of such legislation must he so injurious, that the Aut should be disallowed. 10. Your petitioners, therefore humbly pr.iy that the said Act may be disallowed. HENRY STARNES, Chnirman. THOMAS CRAMP, Deputy Chairman. A. T. GALT, DiriHot: GEORGE STEPHEN, Director. G. F. C. Smith, Recording Sucrcr-iry. Montreal, 30th June, 1879. Rejmrt of (hp Honourable the Minister oj Justice, approved by His Excellency the Governor General in Council o,i the 11th A'ovembei; 1870. DEPARTMENT OB' JUSTICE, OTTAWA, 7th November, 1879. I have the honour to report that, at the last session of the Ontario legislature, an Act (chap. 13^ was passed reducing the number of grand jurors fi-om twenty-four to fifteen, but as the legislative authority, with respect to grand jurors in criminal matterSj possessed by provincial legislatures, is doubtful, the Act contains a clause suspending its opei'ation t'l brought into force by proclamaL.ju. The Attf)rney Genera) of Ontario has communicat'^d with this department on the subject, with a view to having the question, as to the authority of the Parlinnient of Canaila and the local legislatures respectively, in connection m ith grand jurors, subiriitted to the SujDreme (/ourt of Canada . T recommend that this department be authorized to agree with the Ontaiio Govern- ment upon the (piestions to be submitted ; the acti'^n "vhich may be taken, to be reported to Council for further orcier. JAMES McDonald, Minister of Justice. Seporf of the Honourable flic Minister cf Justice, approreil by His Excellency the Governor General in Council on the l.ith March, 1S80. DEPJ^HTMU^■T OF JUSTICE, OTTAWA, 1 2ta January, 1880. With respect to the statutes passed by the legislature of the province of Ontario, in the iuonth of March, 1879, 1 have the honour to report as fellows : — riie Act?, chai)ters 1 to I-, inclusive, do not seem to call for the exercise of the power of disalkiwance. 1 recommend that they be loft to their operation. Cap. 13. — " An Act respecting Grand Jurits." This Act is not to come into force until a day to l)e named by the Lif uenant- Goveriior by hi.? proclamation. It reduces the nvunber of grand jurors required to make a panel, from twenty four to fifteen. The operation of the Act was suspended, owing to the doui)t which exists as to the legislative authority of the provincial legislature ovv»- the constitution of tlie grand jury in criminal matters. It has been agreed between the governments of the Douiinion anfl of the province, to sul)mit the question to the Supreme Court for decision. If the Supreme Court decides against the right of the; provincial legislature to pass this Act, it will douVttiess be repealed ; and, in the meantime, as it is not in operation, I recom- mend that if the Ontario Govei'nment \\\\\ agree not to put it in operation, and to repeal it, if it be • lira vires, the power of disallowance be not exercised ; otherwise, that it be disallowed, and that the Lieutenant-Governor be .so informed. ivestors, is so flagrant, IS, that the Act should :t may be disallowed. Chniniiaii. '>i'puty Cltairmnn. , Director. xcellency the Goveriior 9. November, 1879. )ntario legislature, an from twenty-four to s in criminal matters, s a clause suspending is department on the of the Parlinmeiit of and jurors, submitted 1 the Ontario Gc'vern- taken, to be reported DONALD, nisier of Jiudice, 'ceUency the Governor January, 1880. province of Ontario, 's : — r the exercise of the ii-ation. 1 by the Lif i.onant- ■(irs requirefi to make hich exists .as to the itution of the grand Bnts of the Dominion for decision. If the ire to pass this Act, I operation, I recom- ;ration, and to repeal otherwise, thot it be 42 VICTORIA, 1879. 161 Chapters U to 18, 20 to ;50, 32 to 49, 'A to 74, 7G to 83, 8.") to 9.5, ail inclusive, do not seem to call for the exercise of the power of disallowance. I recommend that tlipy V)e left to their operation. Cap. 19. " An Act respecting the Administration of Justice in the northerly and westerly parts of (Jntario.'' This Act will ' "eported upon separat(!ly. Cap. 31. — "An Act to amend the Municipal Law." Some of the pr)visions of this Act I'elate to the vexed (luestion of licenses, some relating to the sale of meat, others to transient traders occupying pnnnises in cities, trwns, &c., for tempo ury periods, whose names are not on the a.ssessmont roil. It may be argued that the provisions interfere with the power of the Dominion Parliament over tiie regulation of trade and commerce, but as the matter is by no means clear, and as any person thinking himself aggrieved, will be enabled to contest the validity of the Aa before the courts, 1 recommend that the power of disallowance he, not exercised. Cap. 50. " An Act respecting ceitain dams on Eeaver Creek and other stiaams in. the counties of Hastings and Addington."' This Act will V>e reported upon separately. Cap. 75. "An Act respecting the Debenture Debt and certain property of the city of Toronto." A petition from The Liverpool, London and Globe Insurance Company, praying for the disallowance of this Act, was rece:\r:l, but subsequently the opposition was with- draw... I recommend that this Act b« '.eft to its ojjeration. Cap. 84. " An Act to incorporate the Prudential Life Assurance Company of Ontario." Doubts have been raised by the Superintendent of Insurance as to the power of a provincial legislature to incorporate a life insurance company. (Questions as to the legi.s- lative control over tire insurance generally, are now before the Supremo Court for deci- sion, in two cases brought by appeal from the Cout t of Appeal. It is possible that the judgment in these two cases may throw some light upon legislative authority respecting life insurance. The inclination of my opinion is, that a provincial legislature has power to pass such an Act as the one now referred to. Similar legislation has already been left to its operation. And I recommend that the power of disallowance be not exercised with respect to this Act. Z. A. LASH, Deputy Minister of Justice. I concur. J AS. MCDONALD, Minister of Justice. Report of the Ji nourahle fJie. Minister of Justice, approved by His Excellency tlie Governor General in Conwil on the Lith February, ISSO. Department OP Justice, Ottawa, 20th January, 1880, I have the honour to report that an Act was passed by the legislature of the pio- vince of Ontai .o at its last session, intituled : Cap. 19. " An Act respecting the Administration of Justice in the northerly and westerly parts of Ontario." This Act is apparently based upon the assumption that the conclusion come to by the Ri<»ht Hon. Sir Edward Thornton, the Hon. Sir Francis Hincks, and the late Chief Justice" Harrison, respecting the northerly and westerly boundaries of Ontario, settles such boundaries. I would cail attention, however, to the fact that, as the Parliament of Canada ha\ e not yet legislated upon the subject, the question of the boundaries still remains, as a matter of law, unsettled. If the Parliament of Canada think proper to 1G2 ONTARIO LEGISLATION pass tlie necessary Act declaring the bounclai'ies to bo those decided upon by the gentle- men referred to, the Act under consideration would noc, in this point of view, be ob- jectionable. I append a memorandum (marked "A") prepared by the Deputy of the Minister of the Interior, respecting the provisional boundaries agreed upon by the governments of Canada and Ontario in the j'ears 1874, together with a plan showing the territory included in the deh';riptions in sections 1, H, 3 and 8 of the Act now under consider- ation. I .submit, for the consideration of Council, the (juestion whether, pending action by the Parliament of Canada with respect to the boundaries of Ontario, tliis Act should be left to its operation. It was received by this (rovornment on the 2Gth day of March, 1879, .so tiiat the year within which the power of disallowance must be exercised, will expire on the 25tli jNIaich, 1880. Assuming tliat it is concluded not to disallow the Act in ccyi.nection with the boundary question, tliere are questions arising upon it, which require serious consideration. The 9*)th section of " the British North America Act, 18G7," provides that the Governor General shall appoint the judges of the superior, district and county courts in each province, except those of the courts of probate in Nova Scotia and New Bruns- wick, and by the 100th section, the salaries, allowances and pensions of the judges of the supreme, district and county courts, &c., arj to be tixed and provideil by the Parliament ot Canada. I>y the 92nd section the provincial legislatures are empowered to make laws for the constitution, maintenance and organization of the provincial courts, both of civil and criminal jurisdiction, and including procedure in civil matters in those courts. Several ni the province.s of Canada have, since confederation, provided for the appointment of otlicers called magistrates, stipendiary magistrates, commissioners, ikc, and have giveii to those officers certain judicial functions. Till lately, their powers have been confined to matters, in which small amounts only have been in dispute, ranging from 8100 and less. In 1877 the legislature of British Columbia passed a Bill respecting the Gold Commissioners Court in that province. This Bill gave to the Gold Coniu'issioner, who wa.c a local officer, appointed by the Lieutenant-Governor, very extended juris- diction in civil matters. It was reserved for the .signification of the pleasure of his Ex'y judicial districts of the province, aud the provisional county of Haliburton. This Act gave to stipendiary magistrates referred to therein, and to the Division Court of the district of Algoma crt* n extended jurisdiction. The Act was left to its operation, but not without the attention of council being called to its provisions. I append an extract (marked " C ") from the approved report of thi» department to council respecting the same. The Act now under consideration goes a «tep further, and practically provides for the whole administration of civil justice for some time to com*-, within the territory referred to in the Act, by a court, the judge of '.vliich IS appoint»^l by the Lieutenant-Governor, and the Sdlary iind allowance of whom are fixed by the pro incial legislature. The 6th section gives to this court in the district of Algoma the following jurisdic- tion :- (1 .) In all personal actions where the amount claimed does not exceed four hundred dollars. (2.) In all actions a d suits relating to debt, covenant and contract, wherti the amount or Imiancc claimed dtjes not exceed eight hundred doHars. Provided always, as to the additional ;urisdicti:in so hereby conferred, that the contract was made within Algoma, or the cause of uition arose therein, or the defendant resides therein. (3.) For the recovery of the possession of real estate in the said district. on by the gentle- t of view, be ob- ' of the Minister ;he governments ing the territory under consirler- ending action by is Act should be .h day of March, le exercised, will b to disallow the g upon it, which ■ovides that the 1 county courts md New Bruns- jf the judges of provided by the lake la\\ s for the lotli of civil and courts. I'ovided for the iniissioners, (fee, leir powers have lispute, ranging ecting the Gold Commissioner, extended juris- pleasure of his pend an extract It upon the Bill. An Act resoect- the provisional to the Division f council being ipproved report r consideration 1 of civil justice ;ourt, the judge d allowance of lowing jurisdic- d four Jiundred act, when; the ided always, as s made within erein. rict. (4.) In replevin, where the value of the goods or other property or effects dis- trained, taken or detained, does exceed the sum of four hundred dollars, and the goods, property or effects to be replevied, are in the said district. Previous to the Act, its jurisdiction was confined to personal action, where the debt or damages claimed did not exceed SlOO (see Revised Statutes of Ontario, cap. 90, sec, 16), except by consent of the parties, when the stipendiary magistrate could, on then- written consent, try cases to the extent of !?S00. Section 8 gives to the stipendiary magistrate holding courts in cftaui remote dis- tricts therein mentioned, the following jurisdiction ;— (1.) In all personal actions, where the amount claimed does not exceed one hundred dollars (except as in the next section excepted). (2.) In all causes and suits relating to debt, contract and covenant, where the amount or balance claimed does not exceed two hundred dollars, or if the amount is as- certained by the signature of the defendant, to tlie sum of four hundred dollars. Provided always, that the contract or covenant was made within the said portion of the district of Thunder Bay or Nipissing in which the court is held, or the cause of action arose therein, or the defendant resides therein, (3.) In certain action for recovery of the possession of lands or other corporeal hereditaments situated in the said portion of the district aforesaid, in which the court I- held, and the yearly value of which lands or hereditaments, or the rent payable ni respect whereof does not exceed one hundred dollars, that is to say : {a) Where the term and interest of the tenant of any such corporeal hereditament hM expired, or has been determined by the landlord or the tenant, by a legal notice to quit ; . • 1 • 1 (h) Where the rent of any such corporeal hereditament is sixty days m arrear, ana the landlord has the right, by law, to re-enter for non-payment thereof ; An(i in respect to such "actions the said courts shall have and exercise the same powers, as belong to, and as may be exercised by the .superior courts of common law in, and ia respect to actions of ejectment. ( t.) In replevin, where it is mfwle to appear that the value of the goods or other property or eifects distraine.L taken or detained, does not exceed the sum of one hundred dollars, and the goods, property or effects to be replevied, are in the said portion of the district in which the court is held. Section 10 provides for the appointment of an officer for the district of Algoma, to be called the deputy clerk for Thunder Bay, and power is given to him to issue writs for the commencement in the district of Thunder Bay, of actions in the district court. Provision is made for a seal for the court, with which all the writs and process are to be sealed. An appeal is given from the stipendiary magistrate's order or decision, to the judge at Sault Ste. Marie. The 14th section is ,,^ follows : — • " 14. Where the amount claimed in any action in the said district court, or where, in the case of ejectment or replevin, the subject matter of the action, as appearing in the writ in ejectment, or in the affidavit filed to obtain the writ in replevin, is l)eyond the jurisdiction of the county courts in other parts of Ontario, costs to a successful defend- ant shall be taxed upon the Superior Court scale. "(2.) In like manner, where the plaintiff recovers in respect to a cause of action beyond the jurisdiction of the said county courts, costs shall be taxed to him on the Superior Court scale, subject, however, to his obtaining the certificate or order of the judge where, under the Common Law Procedure Act, such certificate or order is required in the superior courts. "(3.) In respect to any action within the jurisdiction of the first part ot tins sec- tion the attorney of a successful plaintiff shall be entitled to charge his client county court cos'.s only, unless he was instructed in writing by such client to sue in respect to a matter beyond the jurisdiction of the said county courts, in which case the said attorney shall be entitled to charge costs upon the Superior Court scale. * k 161 ONTARIO tEGISLATION "(4.) Either party may, as of right, uix.n jrivin- twenty days' uotii-e to the „im„ ^part^. have the taxation of costs by the deputy clerk, ri;^ b; STci^k 1" S Rnv nnW If ^,,^^''*^^°'^ provides for the appointment of a sheriff of the district of Thun.ler whprffL^^*'^ section empowers the stipendiary magistrate, upon the trial of any cause w e.e the amount churned ,s over $i>00, or where the matters in dispute relate toX 'k^frn'^'^'^on'' " '^''''"'^ ""^ *'^"- '^'' ••1'^'^^°'^ «f <^1- Court of ^Cea t Ontar o The 18th and 19th sections are as follow :_- ^^ '--'niario. " 18 Every judgment of the said division courts may be enforced bv writs or othpr process, tra.ned in accordance with the rec,uiren,ents of the case, and s mih n form to writs or other process for like purposes issued out of the Superior Courts U. Every stipendiary magistrate of the district of Thunder Bav or Ninissin,. may exercise the authority conferred upon county court judges by the Vvised '^^U^te respecting overholding tenants." .< h "y uie ie\isea statute The legislature unquestionably has authority to constitute a court possessing the jurisdiction ot the courts referred to in this Act, but I submit to cou cil whS this Act 'vhich seems to encroach upon the powers of the Dominion t^vernment w th ' spect to the appomtment of judges, and which goes far beyond any previous let o ' L milar character, should be d sallowed, notwithstanding that the otlfe Actr uma ly objecSon able on principle but less objectionable in degree, have been left to thei oration In foJ^Sb^ate^"' ^'""^' '^ '^^'^'°"'^'' ""'•^^^ ''-' ^^™^ b^ -pealed';;itirin 'Sr tim^ JAMES McDonald, Ministef of Justice, Department of the Interior, Ott;>wa, 21st January, 1880. Memorandiiin. The undersigned has the honour to submit, for the information of the Honourable the M.mster of Justice, that on the 8th July, 1874, an Order in CouncU v^rsZsed fortiAips^ or r^zs le Scf j^e iir^isir^^t^s^wSt^j slVh uiSr-t me'et'Th'^ '''T"' r'^ ^^ '"^""^ ^"'"^ «^ Hunters iXuid ruinng souwi until It meets the boundary line between the TTnftP.l ^f-i+^o „„^ n j f of l'^.?^?; ; '- 1 l;-;;!;^^ of the province of Ontario on tlJnorth -. mat all patents for lands m the disputed territory to the east and south of <-h« saic conventional boundanes, until the true boundaries L be adju teX half L i su d by the Governmen of Ontario ; and all patents for lands on the west o- north of these conventKmal boundaries, shall be issued by the Do.iinion Government .1. Ihat when the true west and north boundaries; "f Ontario shall have been definitely adjusted, each of the respective governments shall coS m an 1 ratUV such Jote nments .hal^^^^^^ government which granted them, *nd each of the respective SLTf ■ r '^'^"f^countforthe proceed, of such lands as the true boundaries when determined, may show to belong of right to the other u'waries, nrnvin;: ^f n ! Government of the Dominion shall transfer to the Government of the province of Ontario all applications for lands lying to the east and south of the conveu- •12 vicToniA, 1879. 16.7 bico to the oppo- he clerk at Sault strict of Thunder ut of the district rial of any Ciause ute relate to the ppeal in Ontario. •y writs or other niilar in form to s. fiy or Nipissing, revised statute tional houndaries, and also all deposits paid on the same ; and th(! Ontario Government shall transfer to the iJominiou (Government all applications for lands lying to the west and north of tlie said boundaries, and likewise all dejwsits paid thereon ; and each of the said applications as are hoiia Jiii" imd in proper form shall he dealt witii finally, according to the priority of the original tiling ; and where applications for the same lands have been tiled in the departments of both governments, the priority shall be reckoned as if it had l)een filed in one and the same otlice. The undersigned has further the honour to submit, for the information of the Minister of Justice, a map showing the teri'itory included in the several descriptions in sections 1, 2, 3 and 8 of the Act of the (Jntario legislature, passed at the last session thereof, chapter I'J. Respectfully submitted. J. H. DENNIS, Deputy of fne Minisfer of the Infi.rlor. , possessing the icil whether this lent with respect Act of a similar jually objection- r opi ration. In vithin tiie time • of Justice. lary, 1880. ;he Honourable icil was passed ntario and the be pu'-po.jes set on the west of [sland, running d Canada, and ty-first parallel J on the north. I south of the shall be issued north of these all have been lid ratify such ried not to be the respective ue boundaries, •nment of the of the conven- B. " In addition to the above Acts of the legislature of Britisli Columbia, a liill ^yas passed intituled : 'An ^Vct to amend the Gold Mining Amendment Act, 1872,' which Bill was reserved by his Honour the Lieutenant-Governor, for significa,tion of the pleasure of his Excellency the Governor General thereon. The Act is as follows : — " Every mining court in this province shall, in addition to its present jurisdiction, have jurisdiction in all personal actions arising within the limits of its district, and the gold commissioner presiding in any such court, shall have the like powers to enforce any judgment, decree, rule or order of such court, as are conferred by section 12 of the Gold Mining Amendment Act, 1872. The provisions of this Act shall only have eHect in the electoral district of Kootenay, and in that part of the province known^ as Cassiar." The Attorney General for the province reported on this Act to the Lieutenant- Governor as follows : — " This Act gives jurisdictioix in all personal actions to the gold commissioners in Kootenay and Cassiar, and appears to trench upon the provisions of the 96th section of the British North America Act, which vests the appointment of the supreme and county court judges in the Governor General alone, inasmuch as it provides that the paid employees of the local government in the district aforesaid, shall have and exercise almost as much power as a supreme or county court judge. As I think this legislature has noi the power, in effect, to make these appointments, I would suggest that the Act be reserved for the consideration of his Excellency the Governor General." I refer to the remarks made upon tii'i Mining Court in connection with the 11th section of Act No. 14. This bill is an illustration of ihe danger I have above alluded to, as, if it became law, the jurisdiction of the Mining Court m tlie districts referred to, will be greater than the jurisdictior. of che County Court, and equal to that of the Supreme'Court. It might bo convenieit that a somewhat extended jurisdiction should be given to a district court or magistrate in the districts of Kootenay and Cassiar, thereby avoiding the expense and delay attendant upon a judge of the Supreme Court travelling to these distant parts of the province, for the purpose of holding assize, and it is probible that this bill was passed with that object in view. I would mention, however, that even were this bill assented to, it would be necessary for a supreme court judge to proceed to the district mentioned for the trial of criminal cases. 'Tpon the whole, I recommend that the assent of the Governor General be not given to this bill, which in fact should have been disposou of by the local authorities themselves. The following are the remarks above alluded to : — "The section of the Act now under consideration further extends the po\vers of the gold commissioner as judge of the mining court. The 96th section of "The British North America Act, 1867J" empowers the Governor General to appoint the judges of the 11 Jm. 166 ONTARIO LE(JI8LATI0N superior, district iiiicl county courts in each province, except those of the court of probate ia Novn Scotia and New JJrunswiek. " By the 92nd section tlie provincial legislatures have power to make laws in relation to the administration of justice, including the constitution, maintenance and organization of provincial courts both of civil and criminal jurisdiction, They have also power to legislate respecting the eatablinhment and tenure of provincial offices, and the ajjpointment and payment of provincial ofiicers." " If there be power in the legislature of Jiritish Columbia to establish this so- called mining court, and appoint and pay the judges thereof, it must be found in the section I have just (juoted. I think, however, that this court, which is declared to have original jurisdiction, to be a court of law and equity, and a court of record with a s])('('ific seal, and for the purposes of enforciiig its judgments orders and decrees, to have (with certain exceptions) the same powers and authority, legally and equitabl}, as are exercised in the supreme court of civil justice of British Columbia, by any judge theieof, which has power also to summons a jury to assess damages, may be considered a court, within the meaning of the 96th section of the Confederation Act." " It is not, in my opinion, necessary to bi'ing a provincial court within the provi- sions of this section, that it should be called by the particular luime of superior, dis- trict or (ounty court." "The exception tu that section itself indicates, that the courts of probate in Nova Scotia and New Brunswick would unless .specially excepted, have couie within the defi- nition of superior, district or county courts." " It will be readily seen how easy it would be for the local legislature, by gradually extending the jurisdiction of those niicing courts, and by curtailing the jurisdiction of the county courts, or supreme courts as now established, to bring within tiieii' own reach, not O'lly the administration of ju.stice in the pi'ovince, but also practically the appointment of the judges of the courts in which justice is administered." Inasmuch, however, as legislation of a similar nature to that contained in the sec- tion now under consideraticm, ha,s been left to its operation in previous years, and as the provisions of the section appear to be convenient, I do not recommend a disallowance of the Act. " Were this the first enact»e.\t of a similar nattire passed by a irovincial legisla- ture, [ would hesitate long befiore recommending that it should be left to its operation, as it appears to entrencli open fchep»«»ers conferred upon the (Jovernor (ieneral of Canada, by the 96th section of "Tlae British ?*orth America Act, 1 867, " which section is as follows : " The Governor (ieneral shall app<»int the judges of the supeiior, district and county courts in each province, except those of the courts of probate in Nova Scotia and New Brunswick." Inasmuch, however, as provincial legislation has been previously left to its (opera- tion, whereby oertain judicial powers in civil matters have been conferred upon stipen- diai'y magistrate.s, and whereby <'ourts presided over by the stipendiary magistrates, and, having in ett'ect the powers 'd the division courts of Ontario, have beeen consti- tuted, I do not feel at liberty to object to the provisions of the present Act, provided the jurisdiction possessed oy the former legislation upon the subject, which has been left to its operation, luis not in effect been substantially extended. In a report, dated 29th September last, upon the acts of last session of the legisla- ture of Britis;i Coliimbia, I had occasion to remark at some length upon legislation of a nature similar to that now under i;onsideration, and I then pointed out the danger which might ensue from this class ot legislation. I refer to that report. The Act 31st A'^ic, 1868, Ontario, c»*£i. ;>a. which was pas- sed to provide for the organization of the territorial district of Muskoka, and under which th.i stipendia.rr magistrate of that district was appointed, decW"*! that certain provisiof -of cap. 12^ of tic Consolidated Statutes of Upper Canada, intituled: "An Act respecttug the administration of justice in unorgani^d traicts,' should extend and apply of the court of J make laws in lainienance and ion. They have ncial offices, and jta})lisli this so- be found in the I is declared to b of record with and decrees, to nd equitably, as a, by any judge ly be considered LCt." fithin the provi- of superior, dis- prtibate in Nova within the defi- re, by gradually the jurisdiction thin theii' own practically the i" iined in the sec- us years, and as d a disallowance ovincial legisla- to its operation, leral of Canada, ion is as follows : 3r, district and in Nova Scotia ift to its opera- ed upon stipen- iry magistrates, e beeen consti- t Act, provided whu'li has been I of the legisla- legislation of a le danger which which was paa- aka, and under "•' "^ '"^^ ^^^^ exTr^ti^inriHto - with respect to which the minister states tliat a separate report will be made llie committee submit the above recommendation for your Excellency's "approval. J. O. COTE, Clerk Privy Council. Beport of the Honourable the Minister of Justice, approved by His Exeellency the Governor General m Council on the Sj^th March, 1S81. Depautment of Justice, Ottawa, 11th March, 1881. .V. / YW^A ^°"0"/,*? '•«?"'•* "Pon chapter 10 of the Statutes of Ontario, passed in the forty-third year of Her Majesty's reign, A.D. 1880, intituled : " An Act to abolish priority of and amongst creditors." Taking this Act section by section, much can be said in favour of the view that its provisions are wit un the legislative authority of the provincial legislature, but, takin- Its effect as a whole much can be said in support of the contention that it entrenches upon the subject of bankruptcy and insolvency, over which the Parliament of Canada has exclusive legislative authority. f„.t I'x^ 7l7 "* *'r '^''"''^' ^^''f ^""'^^ ""'^^ ^'^'P^^* *° *h« »"^"er ; in view, also, of the tact that the insolvency laws of the Dominion have been repealed ; in view, also, of the provisions of section 28 of the Act which provides that it is not intended to interfere with the insolvency laws, which may, from time to time, be in force, but is intended to be subject to such laws and subject, as aforesaid, to apply to all debtors whether solvent or not ; in view al.o, of the fact that if the power of disallowance be not exercised, any person wishing to test the constitutionality of the Act in any of the courts, will be at liberty to do so, I recommend that the power of disallowance be not exercised with respect to the said Act, JAS. McDonald, Minister of Justice. ONTARIO LK.UISLATION— 44 VICTOHIA, 1881. 171 ONTARIO, 44th VICTORIA, 1881. 2Nn Session — 4tu LKfiiBLATURE. m'oved by His IfiSl. e Minister of ntiirio, in the tion, with the ion credito s," ule. .''s approval. Council, / the Governor ±, 1881. ■io, passed in ct to abolish view tliat its s, but, taking it entrenches t of Canada , also, of the ', also, of the to interfere intended to ether solvent Kercised, any , will be at ercised with Justice. CoRRESPONDENCK, Totitions, Papers, Reports and Orders iu Council, relat- ing to :in Act of the Legislature of thc^ Piovincti of Ontario (Chapter 11), intituled: " An Act for protecting the Public Interests in Rivers and Streams and Creeks," disallowed by His Excellency in Council. Petition of Mr. Peter McLaren to G'avemor General. To His Excellency the Right Honourable the Marquis of Lohnk, K.T., G.C.M.G., P.C., Governor General of Canada. In Coi' licit Asuemhled. The humble i)etition of Peter McLaren of the town of Perth, in tiie county of Lanark, pi'ovince of Ontario, lumber manufacturer, showeth : — (1.) Your petitioner is the owner of a large steam sawmill and lumber yard situated at the village of Carleton Place, in the county of Lanark, near the banks of the Mississippi River, which flows through the said village, and down which the logs requii-ed at such mill are driven during the season of navigation. Along this streain and its tril)utaries, youf petitioner is now, and has for many years past, been engaged m extensive lumbering and timber opei-ations. in connecLion with which he usually has several hundred men constantly engaged during the whole year, and in which business he has embarked a great portion of his capital. (2.) A few miles up the river from Carleton Place the first great natural obstruction, known as " High Falls," is met with. The bed of the stream at this point, and both above and below, and on each side thereof, is V3sted in ft^e simple, absolute in your petitioner, who has expended a large sum of money in the purchase thereof from the former owners who had spent sums in clearing out the bed of the stream, and who had erected valuable improvements in the stream itself, consisting of dams and slides, and so rendered the stream at this point passable for timber and saw-logs during freshets. Since your petitioner accjuired the same, he made considerable expenditure thereon in maintaining and repairing the said constructions erected, and in erecting others of a similar kind. (3.) From High Falls to the head waters of the Mississippi, which head waters are known as " Louise Creek," and are situated in the township of Denbigh, in the county of Lennox and Addington, a distance of about fifty miles on said stream, on the South Branch of the Mississippi, and on Swamp Creek and Buckshot Creek, which are streams tributary to the Mississippi, which extend over a distance of more than TOO miles, your petitioner has, by his own private expenditure, established a vast and complete system of water communication, by means of which he is enabled each year to float his logs down to the mil) at Carleton Place and his timber to the Ottawa River. (4.) The work of improving the said streams, so as to establish such system of water communication, was commenced above the High Falls nearly thirty years ago, and has been going on from time to time up to the present. (5.) Your petitioner has at various times purchased, along the streams, upwards of 50 separate tracts of land, which were, and are of little or no use whatever, except for the construction of improvements thereon, for the purpose of rendering the 17J ONTAHIO LRfJISIiATlON Htroiuii'- im\i!,'iilik', mucIi triictH of liiiid ('ovofini; tlic hod, ami both Hides of llic sliciim iit partieuliir jmiiits. Tlic work of iiii|>i'ovin;{ consists goncrully of rl(■ul'irl^ out stones, decponitijj (•liannt'lH, l)lasting rocks, wideiiiiij; niirrow places, ercclin;? jiicrs, side diiins, I'cserN inu diims, slides mid eiiimis ; hut tl>e ^{iciitost portion of tlie expenditure was in- curred in tin' ereetion of dams and slides, lo overcome the natural ohsli'uctions of rapids and falls. ((i.) Your petitioner has expended in the purchase of land on which to ct)nstruct Huch improvements, in the purehasn of improvements already nuule, and in tlioso which ]\(> has himself constructed, u[i\vards of a <|uarter of a million of dollars. (7.) .\itiinu;,'h it is tine tliat, alonj; the said stream juul its trihutarios, there are stretches of water which, without improvements, were capable of tloatin;; lo;,'s and timber, yet alon^' almost the whole courso of the nuiin strttam, and tho aforesaid tribu- taries, the falls and rapids art! so numerous and obstructive, as to render such streams Useless for floating,' purposes, without the means ;drordcd by such system of improvements. (8.) I'^or a ^reat many vi'ars your pttitioner has had com])lete and sole control of the said system of imjirovements, and his ri;j;ht to such control was, on all hands, con- ceeded by settlers and lumbermen, in the section of tlie province throuj{h which strt^ams flow, llavinj; such complete and sole control, your petitioner was enabled .so to u.se the said .system, as to float down annually from the head waters of all tlu; said stream.s, immenst! (|uantiiies of timber and saw-lo^^s, which could not have bi^en bi'ou;^ht down tho same, without the aid of tlie ai-tilicial means above referred to. (9.) The ;;reat bulk of the timbin' alonj; those streams is now to be found near tho head waters, and the usual time oecui>ied in drivinf,' loj^s from those points down to your petitioner's mill at Ciii-leton Phu-e, even with the aid of tlu! said improvements, is nbout thiee months, alt lioiigh the oidinary spring; freshets do not last one half of that time. Your petitioner is enabled, by means of the j^i'cat number of rc^servinif dani.s, erected by him alonj.; the said streams, to retain the water therein, and to utilize it according to his jutlj;ment as the Iocs are comiii;; down, and in this way to create artificial freshets which accompany the logs do.vn, long after the tiatural freshets have subsided ; in fact, by reaso!! of the improvements the whole of the said stream and the above mentioned tributaries from the " High Falls '' to theii' head waters, now consist of a .s(!i'ies of locks and artilicial reservoirs which, being operated by one controlling power, are rendei'ed ellective for the work intended, but which, if not operated by one controlling power, would be ineffective and useless. Unle.ss your petitionei- had the sole control of this system of water power on the said streams, it would be impossible to work it, so as to carry on his operations with any profit. (10.) J^nring the period of time anterioi' to the construction of the said improve- ments, almost all the timber and saw-logs cut along the upper [)arts of the Mississipj)i and its tributaries, were drawn by horses to the rivers adjacent to the Mississippi, and were brought to market by means of such rivers, it having b(!en generally concedcul by the lumbermen in those district-i that the natural obstructions in the Mississippi and its tributaiies were so formidable! as to render it impracticable to improve them, so as to render them navigable or floatable for timber or log.s. In the purcha.ses aforesaid, and in the course of the work of improving the said streams, and in the general lumbering operations of your petitioner, with the; consequent expenditure thereabout, he has con- ferred gi-eat benefits upon the settlers, and has opened up for settlement large tracts of country which would otherwise have remained wilderness land. (11.) None of the patents from the crown to your petitioner, and to those under whom he claims the lands through which the said streams and the tributaries flow, and upon which he has erected such improvements, contain any reservation of right to the crown or the public to the use of such streams in common with the patentee's, respec- tively, and your petitioner when lit; expended his money as aforesaid, was advised by counsel, and believed, and still believes, that such streams where they passed through lands owned by him, became his ])rivate property, and that he would be entitled to the free, uninterrupted and exclusive use and control of the same, and more particularly of the improvements erected by him thereon, and by those from whom he had purchased ; and if he had believed that the general public would be entitled to the use of the sauio \ \ r ^IMK IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I Ki 22 2.0 1.8 HiotDgraphic Sciences Corporation 1.25 1.4 1 1.6 ^ 6" ► 4^\^ e'u (716) 873-4503 H' '%"■ CIHM/ICSVIH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadian Instituto for historical iVIicroreproductions / Institut Canadian de microreproductions historiques iw i ^ l MV-lm ' i[tM-Vii^\^"r- ' -.i'\- ' 44 vicTouiA, 1881. 173 in common with himself, he would not have expended liis cai)ital thereon, and tlie said streams would probably to this day have been closed to the public, because of the natui'al obstacles therein and their consequent usele.ssness for navigatinj,' purposes. (12.) The conveyances and patents under which your petitioner claims title to the lands aforesaid, comprise all the great natural obstructions on the said streams and its tributaries, and every obstacle therein which it was dilKcult to overcome. (13.) Your petitioner in his own right, as riparian proprietor and as the locatee, patentee and grantee tif the fee simple of the bed thereof, is the owner of such streams wliere they pass and flow through tlie lands owned by him, and has, by the common law in force in this province, full, free and unrestricted control of the same, with the right to use the same for his own private use and benefit, inasmuch as the said streams are private streams and do not come within the denomination of navigable waters. (14.) In the year 1847, by the Act of the late province of Canada, 12 V^ic, chap. 87, sec. 5, which was re-enacted in 1859, when the statutes of the late province of Upper Canada were revised, and which then became chap. 48, sec. 15 of the Consolidated Statutes of Upper Canada, and which was again re-enacted in 1877, when the statutes of the province of Ontario were revised, and which then became sec. 1 of chap. 115 of the Revised Statutes of Ontario, the right was given to the general public 'to float saw- logs and timber down the streams of this province during the spring, summer and autumn freshets. (15.) It is generally conceded that, in the absence of the legislation just referred to, all streams within this pnjvince, which do not come under the denomination " navi- gable rivers," and being therefore piivate property, are not open to the public for the purpose of driving timber and saw-logs, but that the right to the use of private property for such purposes, is a right which can only be exercised by the consent of the owner. (16.) In 1863, the Hrst judicial construction was placed upon the Act, then being sec. 15 of chap. 48, of the Consolidated Statutes of Upper Canada. In the case of l^oale vs. Dickson, decided in that year, and reported in the 13th volume of the Upper Canada common i)leas reports, at page 337, it was decided that the right given by the Act to the use of private streams extended only to such streams as in tlieir natural state, with- out improvements, would, during freshets, permit saw-logs, timber, etc., to be floated down the same. This decision was followed in the case of Wlielan vtt. McLachlan, re- ported in the 16th volume of the said conunon pleas reports, and in the case of McLai-en vn. Buck, reported in the 26th volume of the same reports. The legislature of Ontario, having by sec. 1, chap. 115, Revised Statutes of Ontario, re-enacted sec. 15, chap. 48, Consolidated Statutes of Upper Canada in the same words, and after all these decisions it was assumed that the legislature had adopted the construction placed upon the original Act by the courts of the province. (17.) Your petitioner has always contended that the Mississippi and its branches above metitioned, were not aflf'ected by the said Acts, because they were not, when in a state of nature, capable of being used for floating timber or saw-logs, even during the fresliets, ha^•ing been i-endered available for that purpose solely by reason of your peti- tioner's improvements thereon, and your petitioner, until a short time ago, felt secure in his right to the full, free, uninterrupted and unrestricted use of his said improvements, reiving, as he did, upon liis rights thereto, and he continued annually to increase the improvements, to purchase more land along the said streams, and to spend considerable sums of money in maintaining the same, and in extending his operations in the woods contiguous thereto. (18.) In the autumn and winter of the years 1879 and 1380 the lumbering firm of " Boyd, Caldwell & Son " commenced getting out timber and saw-logs on a timber limit near the head waters of the Mississippi and Buckshot Creek, such limit being properly a Madawaska limit, and although they drew the .square timbei' from said limit to the Madawaska River, yet, as their s,iw-mill is at Carleton Place, they drew logs to the Louise Creek and Buckshot Creek, intending to float the same down the said creeks, and down the Mississippi to their mill, .and, in so doing, to use the said improvements, and also to interfere with your petitioner's own operations on the said streams. Y''our petitioner promptly notified the said firm that he would not allow improvements on 1 r^f-^»Trj(^27*T^'^T*"'^ --— f.-r •J^^-frrt.-^ 174 ONTARIO LEGISLATION Louise and Buckshot Creeks, your petitioner, on the -Ith chiy of May, 1880, filed a bill in the Court of Chancery of Ontario, praying, among other things, that his right in the said streams should be declared, and that the said parties should be restrained from using his sai 1 improvements, and from driving logs through his said lands. ( lO.) Before proceeding to a hearing and determination of the said chancery suit, your petitioners offered to allow the logs of the said firm to pass down the said streams and over his improvements, if the said parties would acknowledge his proprietory right in such improvements, and would pa}' a fair and reasonable compensation for the use of the same, and the costs of the filing of the said bill of complaint ; but the said parties refused your petitioner's said offer, and announced their determination to resist your pf i.itioner's rights to the utmost, and to establish that the said streams were open streams, and that your petitioner had no right to interfere with the free use by the public of the same. (20.) The examination of witnesses in the same cause, took place at the town of Brockville on the 27th, 28th and 29th days of October last, and at the town of Perth on the 7th, 8th, 9th, 10th 11th, l.'Jth, 14th, 15th and 16th days of December last, before his Lordship Vice-Chancellor Proudfoot, who after hearing the evidence of over 100 witnesses and the arguments of counsel for both parties, i)ronounced a decree on the said last-mentioned day, declaring that those portions of the Mississippi, Loui.se and Buck- shot Creeks, which passed through your petitioner's lands, were not, when in a state of nature, either navigable or floatable for saw-logs or other timber, rafts and crafts down the same, and that your petitioner is entitled to the use of such portions of .said streams freed from the interrui)tion, molestation or interference of the defendants in the .said suit, and that the latttr had no right to the use of any part of the said streams, where they passed through your petitioner's lands for the purpose of driving timber and saw- logs, and a perpetual injunction was awarded to your petitioner, restraining the defendants therein named from interfering with your petitioner's use of the .said streams, and from using your petitioner's improvements therein for the purpose of driving their timber and saw-logs. (21.) Your petitioner has expended upwards of .^7,000 in obtaining the aboye de- claration of his rights in the said streams. (22.) The defendants in the said chancery suit gave prompt notice of their intention to appeal to the Court of Appeal for Ontario, against the said decree, and the said appeal is now pending in the said Court of Appeal. (23.) After the filing of the said bill of complaint, and during the progress of the 'laid chancery suit, youi- petitioner was repeatedly threatened by the Honouraljle the Conmiissioner of Crown Lands for the province of Ontario, that unless he abandoned his rights in the said streams, the Government of Ontario would cancel the licenses which your petitioner held for getting out timber on the limits tributary to the said streams, and the said commissioner endeavoured, by such threats, to force your petitioner to dis- continue his said proceedings, which your petitioner refused to do, as he felt that the Government of Ontario had no right to interfere between him and a private firm, when he was simply asserting his legal rights. (24.) "The said firm of " Boyd, Caldwell & Son," having been defeated by the Court of Chancery, in their attempt to invade the rights of your petitioner, and as your petitioner believes, being advised that the said decree was in accordance with the laws of this province, applied to the Government of Ontario to introduce into the legislature of Ontario, a bill for the purpose of depriving your petitioner of the benefit of the said decree, and of enabling them to participate in the enjoyment of the rights in the said streams, for the acquisition of which your petitioner has paid so large a sum of money. Tn compliance, your petitioner believes, with such application, the Honourable the Com- missioner of Crown Lands of Ontario did, during the last session of the parliament of that province, intfoduce the bill which, with a few important amendments, was finally passed by the said legislature, and received the assent of the Lieutenant-Governor under the title of "An Act for protecting the Public Interests in River.s, Streams and Creeks." (Chap. 11.) -TT' 44 VICTORIA, 1881. 175 1880, filed a bill his right in th© 'ained from using lid chancery suit, the said streams proprietory right on for the use of the said parties ion to resist your ere open streams, the public of the at the town of town of Perth on liber last, before nee of over 100 lecree on the said ouise and Buck- hen in a state of and crafts down is of said streams [ints in the said 1 streams, where timber and saw- ig the defendants treams, and frciin their timber and ing the aboye de- of their intention i the said appeal le progress of the HonouraVjle the he abandoned his he licenses which bhe said streams,, petitioner to dis- s he felt that the 'ivate firm, when ted by the Court ner, and as your 2e with the laws to the legislature enefit of the said I'ights in the said a sum of money, ourable the Com- he parliament of lents, was finally t-Governor under lams and Creeks." (25.) Your petitioner most respectfully begs leave to submit to your Excellency the pamphlet annexed to this petition, and as forming part thereof containing : — (a.) A printed copy of the said bill, as originally introduced into the legislature of Ontario. (b.) A protest issued by your petitioner against the passage of the saiid bill, and which protest was in the hands of members of the Government of Ontario and of mem- bers of the legislature of Ontario, before the second reading of the said bill was moved. (f;.) A record of the proceedings in the legislative assembly of Ontario, at the various stages of the bill in that legislature, together with the addresses of the members of the legislature upon the bill. (d.) The said bill as finally passed. ((?.) A few extracts from leading newspapers within the province, containing ex- pressions of public opinion in regard to the laerits of the said bill. (26.) Your petitioner most respectfully and humbly submits : Firstly. That the said Act is n/trn vires of the legislature of Ontario, inasmuch as the questions assumed to be effected thereby, relate exclusively to the trade and connnerce of the Dominion of Canada, and therefore can only be dealt with by the Parliament of (Canada. Secondly. That the streams in question, although not navigable or floatable, when in a state of nature, and unimproved, yet by reason of the expenditure of your petitioner in improving the .same, have become navigable for certain jiurposes, and therefore the said streams are now under the exclusive control of the Dominion of Canada, and the legislature of Ontario cannot legislate in respect thereto. Thirdly. That the said Act is unconstitutional, in this, that it assumes to deprive your petitioner of extensive and important private rights, without providing adequate compensation therefor. Fourthly. That the legislation embodied in the said Act is contrary to sound prin- ciples of legislal,ion, because it is ex poKt facto in it o{)eration ; Ijecause it represents interference on the part of the government, at the instance of one private individual, of his rights ; because it declares that to be the law in the past, which the courts of the province of Ontario have declared not to be the law, the decisions of such courts having been ratified and approved of by the legislature of Ontario, upon the revision of the statutes of Ontario, in the year 1877. Besides the legislature of Ontario has, without any demand in the public interest, assumed to interfere with private parties engaged in litigation, and while such litigation is still 8nh jndice. Because it is in detriment of vested rights, and because it is at variance with the legislation of the Dominion of Canada, in respect to the public use for timber and log-driving purposes, of improvements on private streams. Your petitioner most respectfully and humbly submits; That an Order should be made by your Excellency for the disallowance of the said Act. And your petitioner will ever pray. PETER McLAREN. Fiirther Petition from Mr. McLaren. To His Excellency the Right Honourable the Marquis of Lorn", K.T., G.C.M.G., P.C.y Governor General of the .Dominion of Canada. The petition of Peter McLaren, of the town of Perth, in the county of Lanark, lumberman, Hundily showeth : That since your petitioner had the honour of presenting his petition to your Excel- lency, praying that the Act passed by the legislature of the province of Ontario at its last session of the House of Assembly of that province, intituled : " An Act for Protect- ing the Public Interests in Rivers, Streams and Creeks," be disallowed by your Excel- . 176 ONTARIO LE(JISLATION lency, your petitioner Ijegs to state thut Messrs. Boy 1, Caldwell & Son have cut away tli® dam constructed by, and belonging to, your petitioner, at the foot of Long Lake, in the township of Clarendon, one of the improvements referi'ed to in the said petition. 2. Such dam was erected by your petitioner for the purpo.se of retaining the water coming down the stream known as the Mi.ssissippi, and reserving it until the timber and logs which your petitioner cuts on the lands and timbei- limits in the neighbourhood of that stream and its tributaries belonging to him, are fh'iven down to this part of said river, and without which it would be impossible for your petitioner to drive his timber or saw-logs from the head-waters of the said stream down tlie same in one season. 3. The said dam was an expensive structure, costing a largo sum of money, to wit, in or about the sum of three thousand dollars. 4. Tln! said Messrs. Boyd, Caldwell&Soii havelikewisetakenforciblepossessionof adam erected by your petitioner at the outlet of Buckshot Lake, and being at the heal of Buck- ,shot Creek, and have ])re vented and are preventing your petitioner's men who come and are engaged in driving his logs down the Buckshot Ci'eek from permitting the water rei. lined in and by the ilani to flow, as required by your petitioner to flush the said ortek, so im to give a suthcient d"pth of water in the same, to enable your petitioner to float his logs down to the Mississi[)pi. 5. The said Messrs. B.)yd, Caldwell & Son on tlie 14th day of the present month of April, demanded of your petitioner that he should tix the tolls at which he woukl per- mit their logs to pass through your petitioner's improvements on the said Mississippi stream and Buckshot Creek, threatening that, in default of your petitioner allowing them to pass their logs through the said improvements, they would cut his dams, men- tioning, especially, the dams at the foot of Long Lake and at the High Falls. (). Your petitioner, refusing to recognize the validity of the said Act, for which he has petitioned the disallowance, for the reasons set forth in the former petition to your Excellency, declined to permit the passage of the logs of the said Messrs. Boyd, Cald- well it. Son through his improvements, or to fix any toll for the pa.'ssage thereof, but he renewed his former offer of permitting their passage if the said Messrs. Boyd, Caldwell it Son would acknowledge 5'our petitioner's proprietory rights, and pay the costs of the litigation caused by the unjust attempt to force a passage through his improvements. 7. The reply of Messrs. Boyd, Caldwell it Son is the destruction of your petitioner's dam at the foot of Long Lake, and the taking possession by force of his dam at or near the outlet from Buckshot Lake. 8. Your petitioner is advised that .so long as the said Act remains in force, and un- less and until it is disallowed by your Excellency, as your petitioner humbly prays it may be, your petitioner lias no redress in the courts for the destruction of his pro- perty or to prevent the dsstruction of other dams and improvements made by him on the sai-' l.di North America Act, of the same powers of disallowance, which had always theretofore belonged to the Imperial Government, with respect to Acts passed by the province of Canada. 7. The memorandum states that of late years the Imperial Government has not as a general rule, interfered with the legislation of colonies having representative institu- tions and responsible government, except in the cases specially mentioned in the instructions to the governors, or in matters of imperial, and not merely k»cal interest ; that under the present constitution of Canada, the general government would be called upon to consider the propriety of allowance or disallowance of provincial Acts much more frequently than Her Majesty's Government had been with respect to colonial enact- ments; that in deciding that any Act of the provincial legislature should be disallowed or sanctioned, the government must not only consider whether it affects the interests of the whole Dominion or not, but also whether it would be unconstitutional, in exceeding iilons; thn himkn. K, I lit* nvsults of lIlC fusts of till! fosts, if tho Act Uto tlmt it is MoLiron (ij,'(iitist \ct: s(^ of tho strcuin, •xpiopriuted the 1^ of coriipeiisat- ijfi'tioimhic iti its ■v.iy tiie UHiiof tho I' practically to nuatioii foi- being u take away the t, is excee(iiii;r|y c it (levolvfs upon liatioa of private >n to interfering )n of a court of vays was and is " To amend tiie overnor (General, he thinlfs the IS ct)nsidered and this appears to een tlie impi-rial, •ation respecting tlie disallowance 1 and Dominion itains the corres- al Governments, 10, 1868, approv- idonald), of the to consideration estions, and the 5 object of this •vernor General in the exercise, mce, which iiad to Acts passed lent has not as a intative institu- ntioned in the '/ local interest ; vould be called ial Acts much 1 colonial enact- i lie disallowed the interests of tl, in exceeding 44 VICTORIA, 1881. 181 the jurisdiction coii.'erred on local legislatures, and in coses where the jurisdiction is concurrent, whether it clashes with the legislation of tlio Dominion Parliament ; that it was of importance that the course of local legislation should be ititerfered with as little as possible, and the {)owt'r of disallowance exercised with great caution, and only in cases where th(! law and gentTal interests of tlu! Dominion iniperalively demanded, and the Minister of Justice thereupon recommended that the following course should be pursued : — • " That on the receipt, by your Kxcelhsncy, <»f the Acts passed in any province, they be referred to the Minister of Justice for re[)()rt, and that he, with all convenient speed, do report as to those Acts which he considers free from ol)j('ction of any kind, and if such report be approved of b)' your Kxciellency in Council, that such approval be forthwith communicatcid to the provincial government. "That he makes a separate report, or reports, on those Acts which he may consider,- — " 1. As being altogether illegal or unconstitutional ; " 2. As illegal or unconstitutional in [tart ; " 3. In cases of concurrent jurisdiction, as clashing with the legislation of the general Parliament ; "4. As affecting .the interests of the Dominion generally. " And that in such report or reports, he gives his reasons for his opinions : — "That wh(3n a measure is considered only partially defective, or when objectionable as being prejudicial to the general interests of the Dominion, or as clashing with its legislation, communication should be had with the jirovincial government with respect to such measure, and that in such cis(; the Act should not be disallowed, if the general interests permit of such a course, until the local government has an opportunity of considering and discussing the objections taken, and the local legislature has also an opportunity of remedying the defects found to exist." 8. The order of the Governor (reneral in Council and a copj' of this memorandum were ofScially coinnmnicated to the Lieutenant-Governors of Ontario, Quebec, Nova Scotia and New Brunswick, for the information and guidance of their governments ; and also by the Governor General, in his despatch of the 1 Uli March, 18G9, to the Imperial Government, showing that, as an Act of state, the Dominion Government held itself to be bound by the principles and courses of procedure so laid down and settled upon, in the exercise of this jiower f»f disallowance under the Confederation Act. 9. Until the disallowance of the present Act, these principles and procedure had been universally observed by the Governor General in Council, in regard to all Acts pas.sed by any of the provincial legislatures, in which any question of disallowance was raised, and the different ministers of Justice hitherto have, in their reports, pre- scribed by the Order in Council of the 9th June, 1868, strictly kept within such principles and have followed the specified procedure. 10. It will be seen that it was definitely settled that the several objections to any Act which the Minister of Justice was authorized to report upon, were confined to cases : — (1.) Where the Act was altogether or in part constitutional, i. «., not within the subjects of provincial legislation authorized by the Act of confederation ; (2.) Which might be within the subject of both Dominion and provincial legisla- tion so authorized, when the latter clashes with the former ; and (3.) Affecting the rights or interests of the Dominion generally, as distinguished from provincial or local. • And the Minister of Justice was also required to set forth his reasons for reporting against any provincial Act on any of these grounds, and in every such case the provin- cial government was to have an opportunity of considering and discussing the objections taken, and of remedying any defect. 11. It is, therefore, manifest that the Minister of Justice, in reporting against the Act, in the present case, has disregarded the plain duty imposed upon him by the terms, under which the Dominion Government bound itself to the different provinces to exer- cise this power. 12 -_.,-.-, 182 OifTARIO LEOI8LATI0N 12. Tim ^ToiindM taken liy him arc tli(> roiiewal of tlio Hiinio icaHonH on wliicli im nmcridnietit was jirojjoscd in tlio Lcj,'isliitivo Assonibly, on tlio third reading (»f the hill, when Mr. Meredith moved, Heoonded hy Mr. Morris, "That while the House is willing to pass Hucli enactnientH as may 1)<> necessary for protection of the pul)lic interests in rivers, streams and creeks, it is of opinion that the hill is cdculated to interfere with imjiortant private interests, withcjut makin;j; ad(U|iiate coniprMisation for such interfer- ence, and i.s, therefore, oppo.sed to .scmnd principles of lefjislation, and calculated to form a dangerous precedent, and ought not, as now framed, to become law. " The motion was lost on a division, by a vote of 2'.^ to 50. 1 3. The Minister of Justice also argues that if this Act had absolutely appropriated the whole ownership of the streams Tor the public us(!, and provided compensation, it would Im^ le.ss objectionable in its fciatures. The mi lister has not ventured to (U'liy the legislative authority of the provinces to so enact, if thought expedient in the public interest. Tin* fxiint of his objection is — '• That the Act seems to take away the use of his (the owner's) property from one person, and give it to another, forcing the owner, practically, to become a toll-keeper against his will, if he wishes to get any compen.sa- don, for being thus deprived of his rights." The mode of compensation, which would be just to all parties, is certainly a matter to be considered and determined by the n^prcsentatives of the people in provincial Par- liament assembled, and not by the Mini-ter of .Justice or the Dominion (iovernment, on the private i;.r jxirtf, statement of a private individual. 14. If the Minister of Justice had considered the language of the first section of the Act, it would have informed him in distinct terms that the legislature had, in the exercise of one of its most valued attributes, declared and settled the conmion law of the province on the subject of its rivers and streams, and corrected the erroneous interpre- tation of certain statutes relating thereto. 15. Until the decision of the vice-chancellor, in the suit of McLaren ?',y. Caldwell, gave colour to the exclusive pretensions of Mr. McLaren that he could absolutely debar any proprietor farther up the river, from enjoying the facilitie.s .supplied by its waters, on the ground that he (McLaren) owned its bed, and had made improvements on his own land, the province did not become awire that so injurious a conclusion was po.ssible ; and that the imperative duty was at once imposed on the provincial legislature, to settle beyond further question, that the use of all rivers and streams within pr ivincial jurisdiction, for floating down saw-logs and timber, whether their beds were patented or not, were of common and public right, and that the owner of such lands could not law- fully control such stream, to the exclusion of other person desirous of using the same for such ]iurpose. 16. The public revenue of the province and the interests of all other persons would otherwise be practically at the mercy of every proprietor who had the advantageous position of Mr. McLaren, and the activity and impetus which, from the first settlement of the province, have prevailed in the manufacture of lumber, would have become para- lyzed, to the great injury of provincial interests ; it being not only the undoubted right but the pressing duty of the Ontario legislature to correct .".ny construction of the pro- ■vincial law which was contrary to the long usage and course of practical enjoyment of such easements, and would cause such great loss and injury, the legislature could further impose such regulations as it thought reasonable, without being subjected to any such reflection as the Minister of Justice thought fit to employ, when he reported that the provincial legislature had exercised its power, in " flagrant violation of private rights and natural justice." 17. In giving effect to the report of the Minister of Justice, the Dominion Govern- ment has disregarded provincial rights of legislation, clearly and solemnly defined and settled by the Order in Council of the 9th June, 1868. The attempt of the Dominion Government to review the provisions of an Act, passed by the provincial legislature on a subject within its competency under the British North America Act, was a wrongful interference with the constitutional rights of self-government possessed by each province. • 44 vicTontA, 1881. 183 Dns on wliicli nn itiH i)f the hill, llousfi is willing t)li(' intorests in :> intorforo with )!• such iiitorfor- Iculiitcd to form . " The motion \y u|)[)ropriate(l M>in})(>iisation, it ircd to (l(^ny tlie in tho publio iiway thu uso of ing the owner, t any coinpiinsa- tainly a matter provincial Par- (fovernment, on first section of Uiro had, in the mion law of the oneous intorpre- ■en vs. Caldwell, dmulutely tlehar 1 l)y its waters, )venienta on his in was possible ; 1 legislature, to ithin pr ivincial 'ere patented or 3 could not law- using the same r persons would e advantageous first settlements vn become jiara- jndouhted I'ight tion of the pro- al enjoyment of igislature could ng subjected to lien he reported it violation of minion Govern- dy defined and the Dominion I legislature on was a wrongful lessed by each 18. The British North America Act shows that, while the dill'ennt pidvinces were federally united in one dominion, with constitutions similar in piinciplc to the itritish, the respective executive legislative powc^rs and authorities of the provincial and Dominion governments were also di^fined and dealt with, as alike sovereign in their nature, within the limits of the sul)jects assigned to each respectively. The Confederation Act was intended to give practical ell'eit to the exercise of the fullest freedom in the adminintration and control in local matters within each [)ro\ ince, which was the main object of Quebec and Ontario, esj)ecialiy, in seeking such utuon. This fundamental pi-inciple of local self-government runs through the whole of this con- stitutional Act, and in ordtM' that it may be preserved intact, the utmost vigilance on the part of every province should be constantly alive to every attempt of the central government to transfer thsponsibility to the p(!0|)le of the province, to a govcM'iimcnt which necessarily lias the least knowle* this, which has emanated from any source. The contrary view has been taken and uniformly acted upon by the Dominion Government since confederation till now, and numerous examples exist to show that the present premier of the Dominion, when Minister of Justice, proceeded upon a directly opposite conclusion, and unequivocally recognized the supreme legislative authority of the provincial legislature, in all subjects within its jurisdiction, notwithstanding its Acts had declared the law to be other than was decided by a court, or interfered with pending litigation, or had been retroactive. For instance in the first four years of confederation (not to refer to subsequent years also) there are to be found the Ontario Acts " Concerning Sheriff's sales of taxes," respecting the estate of Sir Henry Smith, "The Goodhue Will," and the numerous acts legalizing invalid municipal by-laws, all of which were left to their operation, notwithstanding the objections thereto. A notable example is the Act passed in 1871, and introduced by Mr. Sanfield Macdonald's government, for the express purpose of relieving the same Peter McLaren (the claimant here) and others from the decision of the Court of Common Pleas in Ettster Term, 1870, in the suit of the Corporation of the Township of Barrie against John Gills and Peter McLaren, defendants, for cutting timber as the licen-sees of the crown on the government road allowances, which the court held the licensees had no right to do, against the possession and control of the municipality, contrary to the express decision of the court that the timber or road allowances could not be taken as timber or ungranted lands of the crown. Nevei'theless, the first section of this Act declared and enacted that, " Every government road allowance included in any crown timber license heretofore granted, or which may hereafter be granted, &c., shall be deejiied and taken to be and to have been ungranted lands of the crown, and liable, as such, to be included in such license." The second .section declared the licensees have had all the right of cutting timber which the court had decided he had not in the case referred to. 28. Upon this review of the reasons which t le Minister of Justice has been pleased to give for tiie disallowance of the Act in questioii, the undersigned respectfully submits that they fail to support his conclusion, in the particulars' for whi^h he has advanced them ; but the constitutional objections to any recommendation for disallowance being open to the Minister of Justice, in any case within the provincial jurisdiction, are so decisive that it was scarcely necessary for the undersigned to have discussed such reasons except to show how unwarranted they were. -^ ^ 44 VICTORIA, 1881. 185 jectionable and forming a, and on the advice of his lister of Jurtice (Sir John " but as it is within the it it should be left to its the Minister of Justice in 3wer, but that it devolved incial legislature was not ., different to that decided hat it is one of the duties ;hem, to enact laws which roactive, as well as future gives origin to such reme- srmining the extent of its ire numerous examples of and other legislatures, as a judicial decision to the at the power of a provin- ," lie has assumed a grave on such a proposition, and inion which, if there was lutonomy. The minister, the first official expression view has been taken and ifederation till now, and Dominion, when Minister equivocally recognized the in all subjects within its be other than was decided ■etroactive. For instance uent years also) there are xes," respecting the estate us acts legalizing invalid ithstanding the objections itroduced by Mr. Sanfield the same Peter McLaren lurt of Common Pleas in wnship of Barrie against er as the licensees of the the licensees had no right , contrary to the express not be taken as timber or . of this Act declared and any crown timber license hall be dee^iied and taken tie, as such, to be included have had all the right of case refei-red to. f Justice has been pleased igned respectfully submits or whi^h he has Jidvanced an for disallowance being 'incial jui'isdiction, are so ive discussed such reasons 29. The undersigned considers that the harmony of the relations between the central and provincial governments, so essential to the beneficial working of the federal svstem, can only be preserved by confining the exercise of the power of disallowance by the Governor General in Council, to Acto objectionable as to their constitutional validity, or obnoxious to the laws or general interests of the Dominion, and that the Governor General in Council should noc assume to review any of the provisions of a provincial Act within its competency, and thus wrongfully interfere with the responsi- bility of the provincial government and legislature to the people of the province, to whom alone they are subject, and not to the Dominion Government. 30. The undersigned therefore recommends that this government should respect- fully assert and continue to assert, the responsibility and sovereign authority of the provincial legislature in considering, making and framing all such laws respecting pro- perty and civil rights within the province, and the other subjects exclusively assigned to it by the Confederation Act, as t-.hat legislature may think best for the welfare and good go\ernment of the province, subject to the British principle of constitutional res- ponsibility to the people of the province, and free from any such revision or control by the Dominion Government, as has been improperly exercised by the disallowance of this Act for protecting the public interests, streams and creeks, within the jurisdiction of Ontario, and that this report be approved of, and forwarded by your Honour to the Secretary of State, for tlie information of the Government of the Dominion. Respectfully submitted, ADAM CROOKS, Attorney-General, 2)ro tempore. Attorney-General's Department, Toronto, 12th July, 1881. Report of the Honourable the Minister of Justice, approved by His Excellency the Governor General in Council on Srd April, 1S82. Department of Justice, Ottawa, 30th January, 1882. To His Excellency the Governor Geiieral in Council : The undersigned has the honour to report, with respect to the Acts passed by the legislature of the province of Ontario, in the year 1881, as follows: — The undersigned recommends that the power of disallowance be not exercised with respect to chapters 1 to 4, 6 to 10, 12 to 2G, 28 to 37, 39 to 56, 58 to 96, all inclusive. Chap. 5. An Act to consolidate the Superior Courts, establish a uniform system of Pleading and Practice, and make further provision for the due Administration of Justice. While recommending that the power of disallowance be not exercised ^yith respect to this Act, the undersigned desires to point out tliat that there are provisions in it which appear to him rdtra vires of the provincial legislature. Among others, the following mav be mentioned : — . • u 1. The Act in effect assumes not only to constitute courts, but to appoint the judges of the courts, the appointment of whom, by the British North America Act, is vested in your Excellency. The Act unites and consolidates together, under the name of the Supreme Court of Judicature for Ontario, the previously existing Courts of Appeal, Queen .Bench, Chancery, and Common Pleas, and it divides the Supreme Court into two pennr.nent divisions, one to be called the Court of Appeal for Ontario, the other the High Court of Justice for Ontario. The Act then declares in effect that the judges of the previously existing courts shall be judges in the new courts. As the undersigned was of opinion that the legislature, in assuming to declare who should be jud.^'es in the courts, exceeded its legislative authority, he advises your Excellency to i^^sue to the respective judges, the necessary conmiissions under the great seal of Canada. The.^e commissions have been issued and the authority of the judges thereby been placed beyond qucGtion. jl '"j"*—^"'mmi i'*' ^i * 'i r i 'i i. ^ *jw > ijftii »» 186 ONTARIO LEfilSLATIOV 2. Section 43 provides as follows : — " No appeal shall lie to the Supreme Court of Canada without the special leave of such court or of the Court of Appeal, unless the title to real estate or some interest therein, or the validity of a patent is aifected ; or unless the matter in controversy on the appeal exceeds the sum or value of $1,000, exclusive of costs ; or unless the matter in question relates to the taking of an annual or other rent, customary or other duty or fee, or a like demand of a general or a public nature affecting future rights." The undersigned thinks the power of a provincial legislature to pass such an enactment is very doubtful. It is to be observed however, that any person aggrieved thereby has an easy mode of testing the question. 3. Section 63 provides that the judges of the county courts shall be official referees for tlu) trial of such (juestions as shall be directed to be tried, and section 64 provides that when there is no local master of the court at the commencement of the Act, or when a vacancy occurs in the office of local master, the judge of the county court for the county shall be the local master, until and unless another person be appointed. As referees or as local masters, the county judges may receive fees. The undersigned thinks it doubtful whether the provincial legislature can con- stitutionally in this manner appoint judges, who hold office by commission from your Excellency, to other offices under the provincial government. The expediency of allowing county judges to act as leferees and local masters is questionable, and the same may at some future time require the consideration of Parliament. Should Pailia- ment think proper to legislate upon the subject, it is evident that the provisions last referred to of the Act now under consideration, would become inoperative. 4. The Act vests in the judges of the county courts certain jurisdiction in actions in the high court, and section 76 provides that the judges of the several county courts shall be judges of the high court for the purposes of their jurisdiction in actions in the high court, and the exercises of such jurisdiction may be styled local judges of the high court. The power of the legislature to appoint the county court judges to be local judges of the high court, even for the limited puqwse mentioned in the Act, is doubtful. Some of the county court judgea have refused to act unless appointed by commission from your Excellency. The undersigned has already advised your Excellency to isbue commissions to the several county court judges, appointing them to be local judges of the high court for the purposes of the Act. These commis.sions will, it is thought, remove any doubts as to their right to act. 5. Section 79 empowers the Lieutenant-Governor in Council, with the consent of any county court or surrogate judge, to commute the fees payable to him under the Suri-ogate Courts Act, for a fixed annual sum, and authorizes the Lieutenant-Governor in Council, in certain events, to pay to the junior judge of the county, a sum not exceeding .f666 per annum. " The British Nortli America Act," section 96, empowers the Governor General to appoint the judges of the superior, district and county courts in each province, except those of the Courts of Probate in Nova Scotia and New Brunswick. ' The exception made by this section indicates that the Courts of Probate in Nova bcotia and New Brunswick would come within the meaning of the worrls "Superior District and County Courts " in the province, and there seems no reason why those words should not include the Surrogate Courts of the Province of Ontario. The 100th section of the British North America Act provides that" the salaries, allowances and pensions of the judges of the Superior, District and County Courts, except the Courts of Probate in Nova Scotia and New Brunswick, shall be fixed and providexl by the Pa.liament of Canada. The right of the provincial legislature to make the provision contained in the 79th section of the Act now under consideration IS doubtful, but inasmuch as enactments relating to fee^ of the surrogate judges have been allowed to go into operation in Ontario, and have been in operation for some years, the undersigned does not think it necessary to do more than call atten- tion to the doubt which exists as to the power of the legislature to pass the enactments -*! 44 VICTORIA, 1881. 187 he special leave or some interest controversy on nless the matter y or other duty rights." pass such an erson aggrieved fiall be official , and section 64 mcement of the B of the county )ther person be ve fees. lature can con- sion from your ! expediency of onable, and the Should Pailia- provisions last ve. Action in actions several county jurisdiction in ' be styled local he county couit pose mentioned id to act unless nissions to the the high court ove any doubts the consent of him under the enant-Governor ity, a sum not nor General to each province, ick. robate in Nova irds "Superior, son why those •io. at the salaries, County Courts, ill be fixed and legislature to r consideration rrogate judges 1 operation for ;han call attcn- he enactments. The undersigned recommends that the attention of the Lieutenant Governor be called to these remarks. Ghap. 11. An Act for protecting the public interest in Rivers, Streams and Creeks. This Act has already been disallowed by order of your Excellency in Council, dated 21st May, 1881. {See pp. 177 and 178 ante.) Chap. 27. An Act to give increased efficiency to the Laws against Illicit Selling. The undersigned recommends that power of disallowance be not exercised with respect to this Act, but in doing so he desires to observe that some of the provisions of the Act may be held to be ultra vires, as an interference with the regulation of trade and commerce. Inasmuch, however, as the precise powers of the Parliament of Canada and provincial legislatures, respectively, over the subject-matter, has not yet been defined, and as similar legislation has on previous occasions been allowed to pass into o{)eration, the undersigned does not think it necessary to reconnnend any interference with the Act. Chap. 28. An Act to prevent the spread of Yellows among Peach, Nectariue and other Trees. Chap. 29. An Act to amend the Act for the protection of Insectivorous and other Birds lieneficial to Agriculture. Chap. 30. An Act for further improving the School Law. Chap. 31. An Act respecting the University and Colleges at Toronto. Chap. 38. An Act to close part of a certain Road Allowance between the Town- ship of Kingston and the Village of Portsmouth. The municipal council of the village of Portsmouth and the county council of the county of Frontenac have petitioned for tlie disallowance of this Act, on the ground, in effect, that the road to be opened by the Ontario Government, in lieu of the road which the Act authorizes to be closed, will not be so convenient for the inhabitants of the village as the present road. Objection is also taken to the power of the provincial legislature to provide for thv) closing up of the road. The undersigned thinks that the legislature has power to pass the enactment, and he sees no reason to recommend the exercise of the power of disallowance on the ground mentioned in the petition. He therefore recommends that the power of disallowance be not exercised with respect to this Act. Chap, 57. An act to aniend the Acts incorporating the Toronto (Jravel Road and Concrete Company. This Act forms the subject of a separate report. A. CAMPBELL, Minister of Justice. Report of tlie Honourable the Minister of Justice, approved htj His Excellency the Governor in Council on the 6th March, 1S82. Department op Justice, Ottawa, 2nd March, 1882. To His lUxcellency tlie Governor General in Council : The undersigned has the honour to report respecting an Act passed by the legis- lature of Ontario in the year 1881 (chap. 57), intituled : "An Act to amend the Acts incorporating the Toronto Gravel Road and Concrete Company." Application for the disallowance of this Act was made by the company and by certain property holders, who claim that their interests were prejudicially affected by the provisions of the Act. The undersigned was attended by counsel for those petitioning for the disallowance, as well as for those opposed to the disallowance, and the various questions involved were fully argueil before him. After a full consideration of the matter, the undersigned is of opinion that the power of disallowance .should not be exercised vith respect to the Act, and he therefore recommends that it be left to its operation. A. CAMPBELL, Minister of Justice. A-;«K 188 ONTARIO LEOISLATION ONTARIO, 4r)TH VICTORIA, 1882. 3rd Session — 4th Legislature. Report of a CoinmiUee of the Honourable the Privy Council, ajyproved by His Excellency the Governor General in Council on the 20th September, 1882. On a report dated 28th April, 1882, from the Minister of Justice, with respect to an Act passed by the legislature of the province of Ontario, at its last session (chapter 14), intituled : " An Act for Protecting the Public Interest in Rivers, Streams and Creeks ; " The minister states that in the session of the same legislature held in the year 1381 an Act similar in every respect was passed, and on the 19th day of May, 1881, such Act was disallowed by order of your Excellency in Council. The minister recommends, that inasmuch as the Act passed at the last session of the legislature is in every respect the same as that of the previous session, it be dis- allowed. The committee advise that the Act be disallowed accordingly. JOHN J. McGEE, Clerk Privy Council, Note.— The leport of the Minister of Juntice uixin which the above Order in Council was based, has been mislaid, and cannot be found. The substance of it has, however, been embodied in the above Order in Council. [^Proclamation disallowing the Act above mentioned, published in the Canada Gazette on the 20th day of September, 1882. Vol. XVI., No. 9, p. 374.] Report of the Honourable the Minister of Justice, approved by His Excellency the Governor General in Cotmcil on the 8th March, 188S. Depaktment of Justice, Ottawa, 12th February, 1883. To His E.r:cellency the Governor General in Council : Having had under consideration the Acts pa,ssed by the legislature of Ontario in the session of 1882, the undersigned observes : 1. That by section 4, chapter 10, "An Act for the removal of certain defects in the Law of Evidence," it is provided that parties to any proceeding instituted in conse- quence of adultery, and the husbands and wives of such parties, shall be competent to give evidence in such proceeding. This provision should be limited to civil proceedings instituted in consequence of adultery. 2. By chapter 12, " An Act respecting the Restitution of Stolen Goods," it is pro- vided that in case the counsel for the crown intimates that the crown does not intend to proceed upon any charge in resjjcct of the property -m fou«d in the prisoner's posses- sion, the judge before whom the prisoner was convicted, may, upon the application of the prosecutor or of any other person claiming the property, summarily try, at the same sitting of the court or at any subsequent time, the right of the prisoner and of the claimant to the said property, Ac. As the judge would probably, in most cases, have to 45 virroRiA, 1882. 189 His Excellency with respect to session (chapter rs, Streams and n the year 1881 1881, such Act e last session of ssion, it be dis- vy Council. Qcil was based, has in the above Order nada Gazette on ] icy the Governor jary, 1883. e of Ontario in I'tain defects in ituted in conse- e competent to consequence of 3cds," it is pro- does not intend I'isoner's posses- 3 application of ry, at the same ler and of the t cases, have to find the prisoner guilty of a crime, before ordering restitution, the authority of the legislature to pass this Act is not free from doubt. 3 By the seventh subsection of the second section of chapter 17, ' An Act to confer additional powers upon Joint Stock Companies," it is provided that where no special arrangement is made in regard to the rate of interest to be allowed on deposits, the rate shall be 3 per cent. . Provisions relating to interest are found in several other Acts ot the session, ^y chapters 39 (s. 4), 41 (s. 4), 48 (s. 4) and 53 (s. 3), the several corporations to which the Acts relate, are authorized to issue debentures to bear interest at a rate not exceeding 6 per cent. ^ » • i. i. By chapters 50 (s. 17) and 74 (s. 2), authority is given to pay any rate of interest deemed advisable. The legislature having authority to authorize the issue of deben- tures, it would follow probably, that the corporations could issue them bearing any law- ful rate of interest the corporations deemed advisable. ^ It might well be that the legislature would not authorize the issue of aebentures unless a limitation was placed upon the rate of interest, and that it has authority to declare this limitation within lawful rates. But it is submitted that it has no power either to fix a rate where no contract exists, or to fix a rate in excess of the lawtul rate. To test the respective powers of Parliament and the legislature in this resi)ect, regard must be had to what Parliament may do, as well as to what it has done. Par- liament could, if it thought best so to do, declare that no greater rate of interest than 5 per cent could be taken or given. If that were done all the Acts referred to would be objectionable. • , ^ xu i • i Before leaving chapter 17 it is proper to observe that the propriety of the legisla- ture enacting, as is done in the 13th section, that an offender, " besides being subject to such criminal punishments as is authorized for his ofi-ence," shall be civilly liable, is at least doubtful. ,, 4 Chapter 13, " An Act to amend the Municipal Act. By section 12 authority is given to the councils of cities, towns and incorporated villa<^es, to pass by-laws for appointing inspectors and providing for the inspection ot milk^meat, poultry, fish and other natural products offered for sale for human food or drink, whether on the streets, or in public places, or in shops. Those provisions to some extent conflict with the powers of Parliament to legislate in regard to the regulation of trade and commerce. Parliament has already legislated in regard to the inspection of certain articles mentioned in this section (sec. 37 Vic, ^ '"'^5 By sec 15, chap. 50, " An Act to incorporate the '^:alt Junction Railway Com- pany," it is provided that aliens as well as British subjects and whether resident in this province or elsewhere may be shareholders in this company. The same provision is found in the following Acts now under consideration, viz.:— Chaps. 52 (sec. lo), o7 (sec. 12), 58 (sec. 12), 60 (sec. 21) 67 (sec. 10) and 69 (sec. 13). .,.,,■. This provision is not objectionable in itself, but only in respect of the fact that it is legislation in regard to aliens. It purports to affect their status and to remove a dis- ability. For similar legislation by Parliament, see 44 Vic, chap. 13, not yet brought ii 'orce. It should be observed, however, that Acts containing provisions similar to those found in sec. 15 of chap. 50 referred to, have been allowed to go into operation without comment. Neither is there, in the opinion of the undersigned, any objection to leaving the-n, as well as the other Acts referred to, to be dealt with by tiic courts It is therefore recommended that in case these observations are approved ot, they be communicated to the Lieutenant-Governor of Ontario for the information of his gov- ernment, and for such action as they shall think proper. A. CAMPBELL, Minister of Justice. % 190 ONTAHIO LEGISLATION Rejwrt of the HonournhU (he Minister of Justice, approved by If is Excellency the Governor Genn-al in Coiinril on the Oth March, l88o. Department of Justice, Ottawa, 13th February, 1883. To His Excellency the Governor General in Council : The undersigned having had under consideration the Acts of the legislaturo of Ontario, panned in the session of 1882, begs leave to report thereon. Cliap 14. An Act for protecting the Public Interest in llivc-rs, Streams and Creeks was disallowed by Order in Council, passed on the 20th day of September last. Chrt^. 87. An Act respecting St. Paul's Church in the Town of Woodstock, is re- served for a separate report. It is recommended that tho remaining Acts, chapters 1 to 13, 15 to 86, 88 and 89, be left to their operation ; but in making this recommendation the undersigned has the honour to submit for consideration, a separate report in regard to several of the said Acts. A. CAMPBELL, Minister of Justice. Report of the Honourable the Minister of Justice, approved by His Excellency the Governor General in Council on the (Jth March, 188S. Department op Justice, Ottawa, 13th February, 1883. To His Excellency the Governor General, in Council : The undersigned, having had under consideration the petition of the churchwarden* of St. Paul's Church, Woodstock, Ontario, praying that an Act of the Ontario legislature, passed in the session of 1882, respecting the church, be disallowed, begs to report as follows : — The Act in question is chapter 87, intituled : " An Act respecting St. Paul's Church in the town of Woodstock." The grounds of objection taken by the churchwardens are as follows, viz. : 1. "Because the said Act is ultra vires the legislature of Ontario, inasmuch as the Dominion Parliament has control of all endowments on property granted under such patents. 2. " The recital or preamble of the said Act is incorrectly set forth in describing the patent dated 16th January, 1836. 3. " The said Act recites : ' And when ,is there has been commenced an action in the Chancery division of the High Court of Justice against the incorporated Synod of the Diocese of Huron, in which the boundaries of the said rectory are called in question,' thereupon the said Act interfered with parties engaged in litigation, and while such liti- gation was .still mbjndice, as the following extracts from the said Act show : " ' The limits of the said parish or rectory created by the said ' patent are hereby defined to have always been,' &c., and shall be so held to be, and have been in the said Act," is contrary to sound principles of legislation, because it is ex post facto in operation. The undersigned has no doubt that the Act is within the legislative authority, and it is only necessary for him to consider the grounds of expediency raised by the petitioners, and while he is of opinion the Act is objectionable in two points, namely : That it was passed while the matter was under the consideration of the court, and (2) because it is ex post facto in its operation. In the preamble of the Act there is the following recital : — " Whereas the matter of the said petition came on to be heard before a committee of the said assembly, duly constituted in that behalf, when all parties interested in the V 1 in describing (d an action in ;ed Synod of the ed ill question,' .vhile such liti- ww : tent are hereby )een in the said do in operation, authority, and tlie petitioners, the court, and ct there is the )re a committee iterested in the 45 VICTORIA, 1882. 191 icj/ the Governor uary, 1883. e legislaturo of 3, Streams and September last, i'^oodstock, is re- 5 to 86, 88 and he undersigned [jard to several ' of Justice. cellency the lary, 1883, ! churchwardens, lario legislature, gs to report as ;. Paul's Church 1, viz. : — xasmuch as the bed under such said matter were heard before the said committee, and it was then agreed before the said c.mmittee by all the said parties, that on the consent of the Lord Bishop of Huron being given to such petition, all opposition should be withdrawn to any subsecpent legis- lation necessary to effect that purpose ; and whereas there lias been commenced an action in the chancery division of the High Court of Justice against the incorporated Synod of of the Diocese of Huron, in which the boundaries of the said rectory are called in (juestion ; and whereas the Lord Bishop of Huron has, in writing, assented to the said limits being so defined, and the said rector, vestry and churchwardens have again petitioned to have the said boundaries so defined, and that the Act so to be passed shall apply to the said suit, and it is expedient to grant the prayer of such petition." As against that recital, it is alleged in the petition to the legislative assemljly of Ontario, attached to the petition now under Consideration, that — " Contrary to the spirit of the agreement come to before the Private Bills Com- mittee, the promoters of the bill procured his Lordship's assent to the procuring of legis- lation defining the limits of the said rectory, without properly representing the matters in dispute to his Lordship, prior to his assenting to the proposed legislation." There is nothing from the Lord Bishop of Huron corroborating this, or showing that he consented to the limits as established by this Act, in ignorance of the real rights of all the parties. In view of these facts, the undersigned recommends that the Act be left to its operation, but that a copy of the papers be transmitted to the Lieutenant-Governor of the province of Ontario for the consideration of his government. In addition to the papers referred from council in this matter, duplicates of the same papers have been transmitted to the undersigned direct, and he sends herewith these duplicates, as well as those referred to council, so that, if this report be approved, one set of the papers may be forwarded to the Lieutenant-Governor. A. CAMPBELL, Alinlster of Justice. I 192 ONTARIO LEniSLATION ONTARIO, 46th VICTORIA, 1882-83. 4th Session— 4th Legislature. Meport of the Uonoarahle the Minister of Justice, approved by His Excellency the Governor General in Council on the 16th March, 18S3. Department op Justice, Ottawa, 13th March, 1883. To Ilia Excellency the Governor General in Council : The Minister of Justice has th., honour to report to your ExcelVncy in Council, that amongst the Acts of the legislature of the province of Ontario, passed at its last session, there i.s one (chap. 10) entitled : "An Act to protect the public interests in Kivers, Htreanis and Creeks." The Act is a transcript of one passed under the same title in the session of 1882, and of another passed in the preceding session of 1881, both ot wJuch have been disallowed by order of your Excellency in Council. The undersigned has the honour to recommend that inasmuch as the Act herein- it^bTdisIlLwed'"'' ^ ''' ''' ^''^''^ ''^'^''*'*' *'"^ "'""'' ''^ ^^"^^ °^ *'"•'' P''^^^^"^ sessions, All of which is respectfully submitted. A. CAMPBELL, Minister of Justice. [Proclamatim disallotving the Act above mentioned published in Canada Gazette on the 16th day of March, ISSit. Vol. XVI., No. 37, p. i53„'.] Beport of the Honvt^raUe the Minister of Justice approved by His Excellency the Govern^' General in Council on the 2nd June, 188 J,. Department op Justice, Ottawa, 13th March, 1884. To His Excellency the Governor Genend in Council : The undersigned begs leave to submit his report on the Acts passed by the legis- lature of the province of Ontario in the session held in the year 1882-83 Chap. 10. An Act for protecting the Public Interests in Rivers, Streams and Creeks was disallowed by Order in Council of the 16th March, 1883. Chap. 17. An Act to amend the Act respecting Market Fees. A letter was received from Mr. I. A. Knapp, Prescott, complaining that the provisions of this Act dec.aring that municipalities shall have the power to sell, assign or lease its market fees, were declared to have been operative from the 1st day of April, 1882, and that by reas^on of this an action to quash a by-law of the town of Prescott had been interfered In the opinion of the undersigned the Act is clearly within the legislative authority, and he recommends that it be left to its operation. 46 VICTORIA, 1882-83. 19$ ncy the Governor arch, 1883. icy in Council, 3sed at its last ilic interests in inder the same )n of 1881, both he Act herein- Bvious sessions. Chap. 18. An Act to consolidate the Acts respecting Municipal Institutions. This Act is, for the most part, a consolidation of tho existing law. In it, iiowever, as in other Acts of tlie same class, are some provisions relating to the jK.wers of councils to pass by-laws as to which it is at least doubtful whether the legislature has not exceeded its powers. Some of the provisions relating to harbours (s. 482) and to public morals (s. 490) afford instances of the class of provisions referred to. The Acts containing these pro- visions have, however, in the past been left to their operation, and the undersigned recommends that the power of disallowance be not exercised with respect to this Act. Having carefully considered the remaining Acts, chapters 1 to 9, 11 to 16, IJ to. 72 all inclusive, the undersigned recommends that they be left to their operation. A. ca:vipbell, . ,' Minister of Justice, -;^i LL, of Justice. %da Gazette on cy the Governor Tch, 1884. i by the legis- , Streams and A letter was is of this Act its market fees, , and that by een interfered the legislative --^'i*^-s5?iTi.'4*»taw*r^s ■ . «ef9!i»^&*K«3*Sl*V-«;T(s«te«-'.*=» r/ 194 ONTAHIO LE(iI8LATI0V • ONTARIO, 47th VICTORIA, 1884. 1st Session — Stii LEnisLATurjE. Report of the Honoumhle the Minister of Justice, approved hy His Excellency the . Governor Gewral in Council on the ,l(Hh April, ISS4. Depahtmbjnt of Juhtice, O'H'awa, 29th April, 1884. To His Exrellenry the Governor General in Council ; The utulersi;;iiefl lias tho honour to report that he has had under consideration an Act passed at the last session of tho legislature of Ontario, chaptered 35, intituled : " An Act resjiecting License Duties." In tho preamble, after reciting the j)assing of the "Litjuor License Act, 188;?," of Canada, with special reference to the 2nd subsections of the 7th, and of tlie 40th sections thereof, the contention of Ontario is stated to be, tiiat tlie legislature of the province has exclusive authurity to legislate with respect to lii|Uor licenses and the sale of spirituous and fermented ]i(iuors, and to regulate the sale thereof, and the houses in which the same shall be sold. It is then further recited, that apart from '-The Li(|uor License Act, 1883," the authority to impose duties upon shop, saloon, tavern and other licenses, in order to the raising of a revenue for provincial, local or municipal pur- poses, is vested in the legislatures of the provinces by " The British North America Act," and that should "The Liquor License Act, 1883," notwith.standing "the contention of the province of Ontario, be held to be valid, it becomes necessary, in order to the raising of a revenue for provincial, local or municipal purposes, that a duty be imposed upon the ' licenses ' which may be issued under the last mentioned Act." The first section of the Act prescribes the duties to be paid in respect of the several classes of licen.ses mentioned in " The Liquor License Act, 1883"; the second section provides for the payment of these duties to license inspectors appointed under the Ontario Liquor License Act, or where there is no inspector, into a chartered bank ; the third section for the application of the revenue to be derived from the duties imposed' upon the licenses ; and the fourth for municipalities increasing the duties to be levied upon such licenses. By the tifth section it is then enacted that " the duties upon, or in respect of licenses by this Act made payable, are not, nor is any part thereof the same, or identical with the duties payable upon or in respect of licen.ses under the Liquor License Act of Ontario, or in any amendment thereunto." The sixth and seventh sections make very stringent provisions for the collection of the duty, in case the license issues without payment thereof. The eighth, ninth and tenth sections define certain terms used in the Act, and the eleventh is a declaration that nothing in the Act is to be taken as an admission of the validity of " The Liquor License Act, 1883," or an adoption or enactment thereof under section 94 of " The British North America Act." If the undersigned could come to the conclusion that the Act under consideration was passed with the single object of raising a revenue from licenses issued under the provisions of "The Liquor Licensa Act, 1883," he would see no reason for its dis- allowance. It is to be observed, however, that by the Revised Stattites of Ontario, chapter 181, as amended by 44th Victoria, chapter 28, and 47th Victoria, chapter 34, provision is made for raising a revenue from liquor licenses. The tariff by the.se Acts established, may fairly be taken as, in the opinion of the legislature of Ontario, sufficient for revenue purposes. ^^■' 47 virToiiiA, 1884. 195 Excellency thi ril, 1884. [isideration an tituled : "An \ct, 188;}," of 1 of the 40th sluture of tlio and the sale bhe houses in '■ TJie Li(juor irn and other lunicipal pur- Vnieriea Act," ic contention order to the by be imposed respect of the '; the second ointed under rtered bank ; uties imposed to be levied in respect of the same, or iquor License I collection of Act, and the ssion of the -hereof under consideration ed under the for its dis- ario, chapter 34, provision 3 established, sufficient for Tlie Dominion fiiijuor Iji<'en>-/lh>' llononrahle fh>i MiniHtn- ofJuHtic«,a}yprov>'dbylIiHE.ecelleii,-ytheO(mrno'' (ti-neral in Council on the 2(nh April, JSS/J. Dkpaiitmknt or JusTioK, Ori'AWA, iHth April, 1885. 7'o II iH Evielli'tuy the (invernor (Je.yiercU in Couni-il : Tho un(lerMiKi»'(l has tlio honour to report upon the Acta passed by the loifislature of tho province of Ontario (hirinK ft>«' session of 1HH|. MayinK iiircfully considered the A-., - MX I' ./t ' - m f, ^^, ^ j,,i _ im m m mi^ <. . m'f* , 9»m i ^ , i i ij^ j i^i i| i|ii lu y . ^ fr^^- 198 ONTARIO LEGISLATION Lieutenant Governor to Secretary of State. Government House, Toronto, 1st June, 188i5. Sir, — Adverting to your despatch of 16th ultimo, frirwardinj; a copy of a communi- cation addressed to the Honourable the Minister of Justice by Messrs. Walker &: Scott, of the City of Hamilton, barristers-at-law, on the subject of an Act recently passed by the Legislative Assembly (jf this province entitled ; "An Act in reapect of certain sums of money ordered b}' the Legislative Assemblj' to be impounded in the hands of the Speaker." 1 have now the honour to inf">rm you that in the view of my gipvei'iimcnt, the Act referred to was and is a just measure, passed in the exercise of the undoubted legislative jurisdictior possessed by the province, and with full knowledge and after full consideration by the 'egislatuve of all the facts. I have, itc, - ^ J. B. ROBINSON, I , Lieutenant-Governor of Otitario. ■■.■.■■ ,/'■-■ Report of the Honourable the Minister of Justice, approved by His Excellency the Governor Gener ' in Council on the (Jth March., 1880. Department of Justice, Ottawa, 24th February, 1886. l^o His Excellency the Governor General in Council : The undersigned having carefully c./nsidered the Acts mentioned in the schedule hereto (chapters 1 to 8, 10 to 12, 14 to 25, 27, 28, and 30 to 101 inclusive), has the honour respectfully to recommend that the\' be left to their operation. By chapter 5, intituled : "An Act in respect of certain sums of money ordered by the Legislative Assembly to be impounded in the hands of the Speaker," the sums of $1,000 and .§800 in the preamble of the Act stated to have been delivered by a certain person to two members of the Legislative Assembly for the purpose and under the hope of thereby influencing their votes as members of the Legislative Assembly of Ontario were declared to be forfeited to Her INlajesty for the public use of the province of Ontario, and to have been so forfeited from the time such sums of money were, by the members mentioned, delivered to the speakei of the assembly, and the Act was declared to be a bar and discharge of any action which had been taken or might thereafter be brought against the speaker by any person in respect of the said moneys or any part thereof. It appears fron: a letter under date of the 14th April, 1885, from Messrs. Wnlker it Scott, of Hamilton, that, prior to the passing of the said Act they had for their clients, Messrs. Stuart and Macpherson, attached this money in the hands of the speakei" of the assembly under the garnishee clauses of the Common Law Procedure Act. On the ground that the Act is a direct interference with the I'ights of their clients, Messrs. AValker & Scott ask that it be disallowed. A copy of their communication beinj; trans- mitted to the Lieutenant-Covernor of the province of Ontario, he, in a despatch under date 1st June, 1885, states, that in the view of his government, the Act referriMi to is a just measure, passed in the exercise of the undoubted legislative jurisdiction jjossossed by the province, and with full knowledge and after full consideration by the legislature of all the facts. Without expressing any opinion as to whether the Act is a just measure or not, the undersigned is of opinion that it is within the i.iidoubted legislative authority ot the legislature of that province, and, therefore, respectfully recommends that it be left to its opei'ation. By chapter 9, '■ An Act to regulate the fisheries of this Province," provision is made foi' the administration of fishing rights vested in the crown in the right of the province of Ontario. 48 VICTORIA, 1885. 190 NTO, 1st June, 1885. in<^ ii copy of a eoiniiiuni- iVJessrs. Walker it Scott, I Act recently passerl by I rei5pect of certain Hums ed in the hands of the view of my government, xercise of tlie undoubted knowledge and after full J. B. ROBINSON, lant-Governor of Ontario, y His Excellency the I, ISSO. • 4th February, 1886. ntioned in the schedule 101 inclusive), has the 3 ration. inns of money ordered by lie Speaker,'' the sums of in delivered by a certain purpose and under the e^ Legislative Assembly for the public use of the time sucli sums of ;ei' of the assembly, and rtdiich liad been taken or on in respect t)f the said ?5, from Messrs. Wplker they had fur their clients, ids of the speaker of the Procedure Act. On the I of their clients, Messrs. iimunicatiou bciii}; trans- , he, in a desjiatch under t, the Act referreci to is ive jurisdiction possessed !ration by the legislature 1 just measure or not, the ^islative authority ot the mends that it be left to is Province," provision is own in the right of the Bv the 2nd section it is provided that the Act and its rcsjiective provisions apjily to fisheries and rights of fishing in respect of which the legislature of (. iitario has the right to legislate. Some amendments were, at the reijuest of the Minister of Justice, made in the Act during its passage through the legislative asscml)ly, find while it is possible thii*^ the administration of the Act may possibly lead to sonu? conUict with tlie administration of the Fi.sheries Act of the Dominion, the undersigned is of opinion that the ])ower of disallowance should not be e.xercised in respect of it, and, therefore, reconnnends that it be left to its opera f.ion. |!y the 13th section of cliapter 1:5, intituled : "An An for further improving the administration of the Law," it is provided that the clerk of the crown of tli(! court (.f Queen's Bench sitting at chambei's, and the master in cliambers, or any referee sitting ior him, shall be held to iuive heretofore had, and in all matters of practice to Iwue now, authoi-ity to do al' such things, transact all such business and exercise all such authority and jurisdii'tion in r(>spect of the same, as by virtue of any statute of custom, or by the I'ules and practice of any of the superior courts, were, at or before the time of the i)ass- ing of the Ontario Judicature Act, 1881, or are now done, transacted or exercised by any judge of the High Court sitting at Chamljers, with certain exemptions therein mentioned. "By the 21st section it is provided that the judge of the County Court, other than the county of York, and the local master of the Suiireme Court of Ontario shall, in all actions brought to their county, have concurro.r jurisdiction with, and the s;inie p()wer and authority, as, the master in chambers in •^Jl proceedings which are now determined at chambers in Toronto. The undersigned appreciates the advantage of having matters of practice, so far as possible, disposed of by officers of the court without devolving this addit.onal labour upon the judges. It is quite clear, however, that no one can be appointed judge of the High Court of Justice, except by commission from your Excellency, and it is not possible to constitute any one a judge of either a superior or a county court by a pro- vincial statute. It follows from this, the undersigned thinks, that the legislature^ cannot confer upon any person the powers of a judge. The difficulty, however, arises in determining how far the authorit,;, or jurisdiction pi'ofessed to be given l)y these sections of the statute, and by other similar provisions of law, are such as belong to the judicial oliicc. The undersigned does not desire to do more than call attention to the provision, and respectfully reconnnends that the Act t)e left to its operation. By chapter 26. Int^ituled : " An Act respecting assignments for the benefit of Creditors," it is, amongst other things, provided that every gift, conveyance, assignn.ent or transfer, delivery over, o," payment of any property, real or personal, made by any person a^ a time wlun he is in insolvent circumstances, or is unable to [)ay his debts in full, or knows tl.Mt lie is on the eve of insolvency, with intent to defeat, delay or jireju- dico his credito/s. ov i:/.. give to any one or more of them a preference ovvr his other creditors, or over any one or more of them, or which has such eliect, shall as against them, be utterly void. It is then provided that nothing in the provision mentioned shall apply to any assignmeat for the p\irpcse of paying ratably and proportiimately, and without prefer- ence or priority, all the (^'editors of the debtor. Provision is also made for the appointment of assignees and for the adoiinistratiou of the estate where an assignment, for the general l>enefit of creditors, is made. The Act, in substance, is an Act respecting the administration of the estates of insolvent persons, and it is, the undersigned tliinks, more than doubtful whether it is within the legislative authority of the provincial legislature. That question, the undersigiM'd understands, is now pending in the courts, and can, he thinks, be more con\fniently settled in that way than in any other. He, therefore, rospoctfull}' reconnnends that the power of disallowance be not exercised in respect of this Act. Cha >ter 29, "An Act respecting Wages," makes provision, among other thing.s, for giving priority to persons ir. the cm[)loy of one who makes an assignment for the \/< I'i'i.i. I, iiiijKHPlPWjii 200 ONTARIO LEGISLATION, 48 VICTORIA, 1885. general benefit of creditors or of an execution debtor under " The Creditor's Relief Act, 1880." The validity of this provision, so 'ir as it relates to assignments by a person in insolvent circumstances, probably depends upon the validity of the Act respecting assignments for the benefit of creditors, 48th Victoria, chapter 26, before referred to. By the 5th section of 48th Victoria, chapter 29, it is provided that the Act shall not apply to assignments made under the provisions of any Act of the Parliament of Canada relating to, or respecting bankruptcy or insolvency. For the reasons given in respect of chapter this Act be left to its operation. All of which is respectfully submitted. the undersigned recommends that JOHN S. D. THOMPSON, Minister of Justice. "WJ. ' O.lj!:" t,'":i- J'"^- " ONTARIO LEOISLATION, 49 VICTORIA, 1886. 201 ior's Relief Act, i by a person in Act respecting re referred to. it the Act shall 5 Parliament of ONTARIO, 49TH VICTORIA, 1886. icoinniends that 3rd Session— 5th Legislature. 'SON, of Justice. Under Seoretanj of State to Lieutenant-Governor. Depautmest of the Secretary of State, Ottawa, 8th April, 1886. Sir —I have the honour to transmit to you, herewith, for the information of your jrovernment, copy of a communication received fn.m Mr. Warren Tottenot the town of Woodstock, calling? attention to section .59, subsection b ot liill >o Uiu, intituieci : " An Act for further improving the law," introduced by the Honourable the Attorney General, and passed at the recent session of the Ontario legislature. I have, t^c, G. POWELL, Under Secretary of State. Mr. Warren Tolten to Minister of Justice. Woodstock, 25th March, 1886. Hon Sir,—! beg to call your attention to section 59, subsection l> of Bill No. 13.5 intituled: " An Act for further improving the law," introduced by the Attorney (Jen'eral, and passed bv the recent sitting of the Ontario legislature, wb.cii ..ssumes to .'ive power to the" High Court to relieve against all p.Mialties. There are pro- ceedings being had in this county against a police niagistrate tor not returning -U convictions, the penalty for each of which is .^80. Out ot this 20, U ot thonj are fm breaches which come within the provisions of the criminal law as enacte.l by the Dominion Parliament, the half of the penalty of which is payable to the Receiver General. Tt has occurred to me that the Bill No. 135, above referred to, has been enacted so as to found an argument before the High Court that the .sa.d Act gives the court power to relieve against penalties to which the Dominion (,overninent are entitled to one-half. If such be the case, the Ontario legislature is seeking to legislate the Dominion Government out of a source of its revenue. It occurs to me that this is ultra vires of the local House, and I call your attention to the fact, with tbe view of your considering the question as to whether the provision should not be disallowed by your government. I have, &c., W^ARREN TOTTEN. Lieutenant-Governor of Ontario to the Uononrahh; the Svn-etary of State. Government House, Toronto, 7th May, 1886. SiK,_Adverting to your despatch of the 8th ultimo inclosing a copy of a communication received from Mr. Warren Totten, of the town of Woodstock, calling attention to section 59, subsection /. of Bill 135, intnxluced by the Honourable the Attorney General, and passed at the recent session of the Ontario legislature, 1 202 ONTARIO LEP.ISLATION liave the honour to state tliat I have been advised that the enactment to which Mr. Totten objects is section 6 of chapter 10 of 49 Victoria "for fuitlier improving tlie law "' as passed ; tliat like all other provincial enactments this provision necessarily applies only to matters within tlic jurisdiction of a provincial legislature and govern- ment, nor was it intended to hav(' any operation in regard to any others; that tie conniiissioners now engaged in revising the statutes of this province, seven of whom ai-e judges, have, in consolidating, decided on striking these words out wherever they occur, the same being unnecessary and, therefore, in their opinion, not projier to be retained. I have, &c , J. B. R0BIN80N, Lieutenant- G'overtior (if Ontario. Jieport oj the Hononrable the Minister of Jtistii-e apjmwed by His Excellency the Governor Genfml in Coiniril on the 15th March, 1887. Depahtme.vt of Justice, Ottawa, 10th Jlarch, 1887. To His Excellency the Governor General in C(nincil : — The undersigned has the honour to report that he has had under consideration the Acts (chapters 1 to 9") inclusive) 1880. No objection has been taken to any of the Acts referred to, except in one pro- vision of chapter 16, intituled ; " An Act for further improving the law," this objec- tion is made by Mr. Totten, of Woodstock, in a connnunication dated the 25th of March, 1880, of which the following is a copy : — "I beg to call your attention to section 59, subsection b, of Bill No. 135, intituled : ' An Act for further amending the law,' introduced by the Attorney Gen- eral and passed by the recent sittings of the Ontario legislature, which assumes to give power to the High Court to relieve against all penalties. There are firoceedings being had in this county against a police magistrate for not returning twenty convictions, the iienalty for each of which is .$80. Out of this twenty, fifteen of them are for breaches which come within the provisions of the criminal law as enacted by the Dominion Parliament, the half of the penalty of which is i)ayable to the Receiver General. It has occurred to me that the Bill No. i:\'), above referred to, has been enacted so as to found an argument before the High Court that the said Act gives the court power to relieve against penalties of which the i>ominion Government are entitled to one-half. If such be the ca.se, the Ontario legislature is seeking to legislate the I)ominion Government out of a source of its revenue. It occurs to me that this is ultra vires of the local House, and I call your attention to the fact with the view of your considering the question as to whether the provision should not be disallowed by your government." This connnunication having been transmitted to the Lieutenant-Governor of Ontario, he, by despatch dated 7th May, 188G, communicated to the Secretary of State the views of his advisers in the terras following ; — " Adverting to your despatch of tiie 8th ultimo, inclosing a copy of a communica- tion received from Mr. Warren Totten, of the town of W\)odstock, calling attention to section 59, subsection b, of Bill No. 135, introduced by the Honourable the Attorney (General, and passed at the recent session of the Ontario legislature, I have the honour to state that I have been advised that the enactment to which Mr. Totten objects is section 6 of chapter 10, oi 49 Victoria, "for further improving the law," as pas.sed ; that like all other provincial enactments tliis provision necessarily applies only to matters within the jurisdictien of a provincial legi.slature and govern- ment, nor was it intended to have any operation in regard to any others; that the commissioners now engaged in revising the statutes of this province, seven of whom improving tiie on necessarily e find goveui- lers ; that tl e 3ven of whom wherever they projjer to be iON, f Ontario. •y the Governor ■ch, 1887. isideration the t in one pro- '," this objec- 25th of Marcii, 49 VICTORIA, 188G. 203 are iud^es, have, in consolidating, decided on striking these words out wherever they occur, tlie same being unnecessary, and therefore, in their opinion, not proper to be "^^ '''The undersigned, not without some doubt as to the provision referred to believes it to be paragraph {h) of sections 38 of 49 Victoria, chapter 10 which is as follows :- " .Subject to appeal as in oth.^r cases) the High Court shall have power to relieve against all penalties, forfeitures and agreements for li.,ui(lated damages, and in granting such relief to impose such terms as to costs, expenses, damages, compensation a.ul a other matters as the court thinks fit. The county courts and division courts shall have like power (subject to appeal) in regard to causes of action withm their jurisdic- ■'"""Theundersicrned concurs in the view that this provision applies only to matters within the jurisdiction of the provincial legislature, and for that reason sees no ob.iect- tion to the Act being left to its operation. i • i • „* Having carefully considered the other Acts referred to, the undersigned is of opinion that they should be left to their operation, and respectfully recommends that the Lieutenant-Governor of Ontario be informed that it is not your Excellency 3 intention to exercise the power of disallowance in respect ot any of the Acts passed by the legislature of the province of Ontario in the session held in the year 188b. JNO. S. D. THOMPSON, Minister of Justice. Bill No. 135, ^ttorne}' Gen- isunies to give eedings beinif y convictions, them are for lacted by the the Receiver d to, has been lid Act gives vernment are iig to legislate 3 that this is the view of ilisallowed by -Governor of tary of State a communica- ; attention to the Attorney ure, I have which Mr. iiproving the )n necessarily and govern- ors ; that the veil of whom '"'-^.«1»>'WsnK»"4>»w>-s«! 204 ONTAUIO LEGISLATION ONTARIO, 50th VICTORIA, 1887. 1st Session — Bth Legislature. Report of the Honourable the Minister of Justice, apjyroved by Bis Excellency the Governor General in Council on the 7th June, 1SS8. Depautment of Justice, Ottawa, 1st June, 1888. To His Excellency the Administrator in Council : The undersigned has the honour to recommend that all of the Acts (chapters 1 to 99 inchisive,) passed by the legislature of the province of Ontario in the year 1887 be left to tlieir operation. ' The under-igned thinks it to be his duty, however, to call attention to, and to make certain observations upon, the provisions of the following cliapters. namelv • " 8 19, 36, 45, 76, 79 and 81. a t- , y . , , Chap. 2. An Act respecting the Revised Statutes of Ontario. This chapter gives effect to tiie last edition of the Revised Statutes of Ontario, and it IS under its provisions that volume has the force of law. In advising your Excellency to allow this chapter to go into operation, the under- signed wislies to state that he is not to be understood as expressing an opinion that all of the provisions of the Revised Statutes of Ontario are within the legislative authority of the legislature of that province, but inasmuch as the provisions of the Revised Statutes are in the main within such jurisdiction, and it is in the public interest that the Revised Statutes as a whole should have the force of law, and inasmuch also as the question of Jegislative competency may be brought up at any time, notwithstanding the tact that the right of disallowance has not been exercised, the undersigned does not consider that sucii power should be exercised, even if some of the Acts or portions of the Acts may be considered as itltra vires on the part of the legislature of O.itario. Chap. 8. An Act to give early effect to certain amendments of the law recom- mended by the Statute Commissioners. The undersigned desires to call attention to the provisions of this chapter, so far as It amends section 33 of chapter 90, of the Revised Statutes of Ontario (1st series) chapter 91, section 52 (present series). This legislation assumes that, although the ai>pointment of Superior, District and County Court judges in each province is, Ijy "The British North America Act," vested in the Governor General, and that the only limitation imposed by that Act in the choice of your Excellency is, that judges of provincial courts in the 'original provinces ot Canada must be selected from their respective bars ; a provincial legislature has power to hmit the choice of Your Excellency by such provisions and qualifications as it may seem proper. The undersigned is of opinion that a provincial legislature has no such authority and that the power of appointment to the Bench is absolute in your Excellency, subject only to the limitations prescribed by " The British North America Act." The undersigned, however, does not deem this objection to chapter 8 to be a suffi- ont reason for advising your Excellency to exercise your po4er of disallowance in re- "ct toit. Chap. 19. An Act to make further provisions re.specting assignments for the benefit of creditors. 60 VICTORIA, 18S7. 205 Excellency the June, 1888. ts (chapters 1 to e year 1887, be ition to, and to a, namely : 2, 8, of Ontario, and tion, tlie under- un oj)inion that the legislative rovisions of the le public interest nasniuch also as lotwithstanding •signed does not • pf course, as you say, we have no power to declare the meanini; of t!ie British North America Act, and our Act had no int(>ntion of so declarinj^. The .'5rd section shows this, as it enacts that nothintf in the Act containeri is to he consti'iied as inijilyin;^ that the LiiHitenant-dovernor had not had "heretofore the j)owers, authorities juid functions in the preceding two sections mentioned.'' You think it clear that thy provincial enact- ivincial enactiiient. ion, that if a pro- such |)o\v('rs (as to Oiir confederation workahh' otherwise. •- now laws are from ';^v.s beh)ny to tlie his powers. Surely ■should he given to vhich the Dominion lere will be no oon- •tion over penal tie.s its own jurisdiction, tee, hut I do not at )ronounced, or from ■nts. ial legislature may Inject to removal by ■ilature may in the 9 Indian Title, Mr. the " British North II were co-extensive, lot controvert that in Ontario (and I sutenant-Governor, by any Minister of 8 I may here name Vict., cap. 13, sec. ^ct re.specting the t wa.s unnecessary ; LCt on the su))ject, rivate litigation, I >ress enactment to vent any pos.sible itioned is enacted •ed to be " subject T liiipe that on further eonsideration the ov(!rnors could not be increased at the expense of the federal executive, in so fur as related to the stt)re of powers then flivided. So far, it .seems to me, the inevitable construction of your Act is, that it either declares or amends "The British North America Act," and, in eitlier case, would bo beyond provincial competence. I thought it right to make this explanation of my former letter, a part of which you seem to have misunderstood, owing to the fault of its expression. For the present, T will only add, your Act does seem to give the Lieutenant-Governor authority over more than tho penalties and punishments prescribed by your own legislature, i)ecause it professes to give him power (in effect) over penalties and punishments which might be prescribed by your legislature, even though for the present they result from the common law, or from the criminal law of Canada. Yours very sincerely, , JNO. S. D. THOMPSON. [Te!e(/rarn.] Depaktment op Justice, Ottawa, 16th May, 1889. To tho Honourable O. Mowat, Toronto. Will you con-sent to state a case to test validity and effect of your chapter 5 of 88, raising the questions appearing on the face f/f the Act and those suggested in our cor- respondence 1 J. S. D. THOMPSON. Department op Justice, Ottawa, 17th May, 1889. [Telegratn.^ Hon. 0. Mo WAT, - Toronto. My intention was to leave question open to appeal to Privy Council, but think it better to begin in Canadian courts. Will confer with you shortly as to method of reference. J. S. D. THOMPSON. ■ y^ .' ____;, ^.i„. !10 ONTAHIO LK/ Jimfire in //onournfile Allnrxfi/ O'fn'viJ Mtmal. J>ei'ai(t.mi;nt ok .Iumtick, Ottawa, lili.luiu", iHHy. My 1>kau Sik, — Ah to the Aet rpH|)fetiii(^ oxocutivo authority in th«i province, I tliiiik it would h(> ;;f('utiy ]>rotVriilili« tJuit wo isiiould stiito ii case for tho opinion of tlif liinh court of juMlicH^ in your pro\ini'c, imiIchm w« can yet it in tlic Court, of Appeal in tii« first instimci!. My olijcct in prcscntin;; tliat viow, is to have llie matter ar^'ued in our courts iiefore it ;;(,cs to lOliifland. 'I'hi're is a lienctit to hotii sides from liavin-,' tlic case twico discussed, hut; hesideH this, I wouhl not care to |>aMS over the C'anacHan courts entirely, and ^'odire(!t to Knglaml. My ii^asou for suf^^^estiny the lliyh Court of J ustici>, or Court of Appeal, is that we cannot ;;et the matter hefore tlm Supreme ('ourt of (Janada, or even Iiefore the I'rivy Couiunl, on a cas(f >tale(l. We should have to make a reference hy the (Jovernor (len- «'ral in Council t(t the Supreme Couil of t'anada, or. in the case of the I'rivy ('ouiicil, ask ll(!r Majesty's (lovernnient to make the referenci'. The result would he (hat no reasons would he ;,'iven and the decision would lie, tlnM'efore, less satisfactory and >;ivo less con- liiieiice than it) ordinary cases. 15y adopting; the other course, we have the advanla;;' of two iiri,'umeiits. and what is more important, we ha\'e the lient^tit of a tliorouu'h ' - cu8.sion and exposition hy the Meni'h. Yours very truly, JNO. S. I). THOMPSOX, Report of the Hononrnhh' thf Minl^li-r of JuKlm-, appmi-i-il Ay I fix Excellfiicy the Oov- ernor (,'i'ni-riil in Counrl./, on thf SOtli Min/, ISSO. Dkpahtmknt ok Jt:sT!c;E, Canada, Ottawa, May 18th, 1889. Til Ifix E.fCi'lh.ni'y th" Govi'rnur (Ifiu'val in Conncil. The undersi^'ned lias the honour to suhmit for consideration his report on the follow- ing Acts passed hy the lejifislature of the province of ( )ntaino in the "ssion of 1888, authentic (.-opies of which were received Ijy the Secretary of 8tato on the 11th day of June, 1888. Chapter 2. An Act respecting the l{e\ ised Statutes of Ontario, 1887. The undersigned in recommending that this Act he left to its operation has the honour to observe that all of the provisions therein expressly made ai'e within the com- petence of a provincial legislature, provided that the llevi.sed Statutes of Ontario, to which these provisions refei' are likewise within such com[)etence. The following observations which the undersigned has made in reference to a himilar Act jiassed at the session of the legislatui'e of Ontario for 1887 are e(ju!illy ap- plicalile to this .Vet : "This ch:i)iter gives elfect to the last edition of th > H vi.sed Statutes of Ontario, and it is under its provisioiis that tliose volumes have thi' ioi-jc of law. " In ailvising your Kxcellency to alhjw this chapter cv go into operation, the under- ".•■".,, 'ned wishes to state that he is not to he underst-jid ,is expressing an ojiinion tliat " all of the |irovisions of the Revised Statutes of Ontario are wiliiin the legislative " authorityof thelegislature of that province, hut inasmuch as the provisionsof t\w Revised "Statutes are in the main within sucii jurisdiction and it is in the pulilic interest that " the llevi.sed Statutes as a whole shouid have the force of law, and inasmuch also as " the (|Uestion of legislative competency may he brought up at any time, notwithstanding " the fact that the right of disali,'in'c| ill rci'oiiiinciKlin;; ilwit this Act l)n left to its ii|ii>rali()ii (Icsircs lo call attoiiliiiii to the pnivisiDiis of .Hisi'tioii o wliicli ^'ivt-s tlic ciniiniiMioiit'is of tiio t^um'ii Victoria Niiijjara FalLs Park power to cxpnipriate the interests of all or uny persoMM in any land lyin;; hctwccn the river and the road liuilt on the clmin rcservatinn, and t(i state that tlie land tlicrcin lefcr'rcd to may not hi) land over which tin; ie^dsla- ture of ()iitariohas any lcf,'islative cimtrol, inasnnicii as it is contended that t lie same* is either the piihlic property of (Ireat Ih-itain or the j)ul>lio j)ro|teity of Canada. Chapter 11. An Act respecting Manitoulin. By 'roclaination, issued under the provisions of chapter Ul of ^he Mevised St/itiites of ( )ntario, nanieiy ; '• The l'norj;ani/eil TeiriloiT Act." the provisioni ! judicial di:;- trict of .Mj,'oina was createil, and it is understood a siijiendiiuy ni(ii{i«trate vns appointed under that Act for such provisional district. Tile object of the Act now under consideration is to net apart from that district the temporai'v Judicial district of .Manitoiiiin and to make provision for tlie >,'overn- ineiit of such newly created district; and it is piii\ideil that all of the iirovisions of the law relatin>{ to temporary judicial districts in the Unorj^aru/ed Territory Act shall apply thereto. The orij^inal .\ct authorizes the Lieutena!it-(.tovernor in Council to u{ipoint a stipendiary inaf;istrate for each district, each niatjistrate to have all the powers of a justice of the jieace. This oliicei' it is provided, may (sec. JO) act as division court iud;,'e of the district for which he is a[)pointed, and, l)eside.s any additional jurisdiction fjiven to him hy the Act shall liave the like jurisdiction and powers as are jiossessed by the county court judj^es in division courts in counties, and shall perform the like duties. The Division Court, section '2i, in addition to the jurisdiction ^'iven to the Division Coui'ts undiM' "The i)i\isi(m Courts Acts" shall have jurisdiction in all |)ersonal actions ■where the anrount claimed does not e.Kceed si 00, and the stipendiary magistrate shall hear and determine such actions and matters I'elating thereto in a summary way, and make such oi'ders and judj,'ments as appear to him just, and agi'ceable to eijuity and <;ood conscised amalgamation, amend the disallowance of icial legislation, r affecting in any way the operation of such an Act ioyour Excellency, id North Phore Railway other things to purchase 3vators, wharfs, piers, &c. irty in question it is un- thorize, apart from com- i of any structure, even a leral authority. ;ho company all necessary nion Statutes, the section ). i an infringement upon the respect to aliens, lissory notes, may likewise o make laws in I'espect to attention of his Honour t mentioned sections. ^r and Renfrew Railway. •chasf, scl' dnd dispose of nt on the power of the ivigation, and on the pro- ivhieh define the mode ia pp. R. 221. llailwiiy Company. Section 2 or this Act purports to authorize the company to enter into arrange- ,s with certain railway companies, which are under the jurisdiction of the Parlia- ; of Canada, and to connect with one of the railways under that jurisdiction. This which ships are to be owned, held and disposed of. The section would seem, therefore, to be without validity, except, perhaps, as to classes of vessels to \'hich liie law of ship- ping and navigation do not apply. Section 20 of this Ac'i reliting to aliens, and section 47 relating to negotiable instruments, are open to the remarks made in reference to coi responding sections in chapter 70, aud the recommendation which the uni'ersigned has made with ?-espect to chapter 70, he has the honour to make in resjjcct to this Act. Chapter "'). An Act to amend the Act incorporating the Parry Sound Coloniza- tion Railway Company. Secti ments „ . ment of Canada, and to connect with one of the railways under that jurisdiction. This can only be considered valid as conferring competency on this company to enter into such ari-aiigements and to make such connection, when the same have been authorized by the Parliament of Canada. Chapter 74. An Act to incorporate the Peterboro' and Chemong Lake Railway Com})any. Section 11 of this Act in relation to the purchase and erection of wharfs, piers, docks on navigable waters, and section 16, regarding negotiable instruments, are suljject to the same objections as are pointed out in respect of the other Railway Acts referred to in this report, and the same recommendation i.s, therefore, made in regard to this chapter. Chapter 79. An Act to incorporate the Central Canadian Exhibition Association. This Act incorporates an association for the purpose, principally, of holding agri- cultural and other exhibitions at liie city of Ottawa. It bears internal evidence that it is not a provincial or local association only. It is incorporated for the purpose of promoting industry, arts and science generally. The corporation, while having its principal place of business in Ottawa, may open such office or offices as may be found necessary for the purpose of its business anywhere. The association is governed by representatives of different societies and institutions in central Canada, both in the province of Ontario and in the province of Quebec, the governing body having among others two members each from the agricultural societies in the province of Quebec, west of the Island of Montreal, namely, the chairman and one member. It would appear, therefore, that the association is not one rt^hich a pro- vincial legislature has power to incorporate. In view of the beneficial objects for which the association is incorporated, and of the fact that no public interest appears to require its disallowance, the undersigned recommends that no further action be taken with regard to it than to call the attention of his Honour the Lieutenant Governor to the doubt which seems to attach to this enactment. Respectfully submitted, J NO. S. D. THOMPSON, Minister of Justice. The Lieutenant Governor of Ontario to the Honourable the Secretary oj State. Government House, Toronto, 23rd September, 1889. Sir,— Refer.-ing to the letter of the Under Secretary of State, of 7th June, 1889, inclosing for the information of my advisers, a copy of an approved Order in Council, and cl a .• :'no-''-, of the Kmourable the Minister of Justice, therein referred to, upon ("• n Acts" of the legislatare of this province for the year 1888. I have the honour to ui-ansmit hen'«'ith, a c >py of a I'eport by my Attorney General respecting obser- vations contained in the said report of the Minister of Justice. I have, itc, A. CAMPBELL, Lieut. Governor of Ontario. U 214 ONTARIO LEGISLATION, 51 VICTORIA, 1888. Report of the Honourable Attorney General Mowat, approved by His Honour the Lieutenant Governor in Council on t/ie l^th September, 1889. Attorney General's Department, Toronto, 13th September, 1889. The undersigned has had under consideration the report of the Honourable the Minister of Justice, dated May 18th, 1889, with respect to certain statutes passed by the legislature of this province in the session of 1888. These Acts are to lie allowed to go into operation, but it seems proper to stauo the view entertained by the province on the questions suggested. The report calls attention to the enactments which are contained in sections 12 and 23 of chapter 70 of the Acts of 1888, "An Act to incorporate the Manitoulin and North Shore Railway Company" and in sections 20 and 47 of chapter 71 of the same year, "An Act to incorporate the Ottawa, Arnprior, and Renfrew Railway Company," and are alleged to fall within the exclusive jurisdiction of the federal Parliament with respect to naturalization and aliens, and to bills of exchange and promissory notes. Enactments of precisely the same character have been contained in the various Railway Acts passed in this province from time to time since confederation and with- out any question being raisecl as to their propriety, 31 Victoria, chapter 41, section 24, and cliapter 42, section 10, etc. The undersigned apprehends that the provisions contained in " The British North America Act," section 91, subsection 25, conferring on the Dominion Parliament legis- lative jurisdiction over '"Naturalization and Aliens " was not intended to give, and does not give to that Parliament jurisdiction in respect to such a matter as the present, viz., the right of holding stock in or by a director who is an alien, which it is submitted relates not to naturalization and aliens within the meaning of the British North America Act, but to property and civil rights. This view is in accordance with the observation of Mr. Todd's Parliamentary (Jovernment in the British Colonies, p. 218," while l)y the ninety firs' <=ectionof "The British North America Act, 1867," the Dominion Parliament is exclusively empowered to legislate upon naturalization and aliens, it has been assumed that by the ninety-second section of that Act, which empowers provincial legislatures exclusively to make laws concerning property and civil rights in the pro- vince, these legislatures are competent to authorize aliens to hold and transmit real estate. The undersigned further apprehends that the legislative jurisdiction of the Dom- inion over bills of exchange ancl promissory notes is not incompatible with the right of the provincial legislature to confer authority on a corporation to become a party to instruments of this nature, as a matter incidental to such incorpoiation. The object of the legislation is not to alter or intei-fere with the general law in respect to those sub- jects, i)ut to invest the company with the powers necessary for its due working. If the matter were otherwise doubtful, the fact that legishition of this nature for a period of twenty years passed unchallenged is entitled to weight, as showing that the provincial legislature has the right claimed. Se'3 the judgment of the Court of Queen's Bench for Ontario in Regina vs. Bush, 15 O. R. 398. The undersigiied respectfully recommends that the despatch of the 7th June be answered by a despa.tch embodying these observations. O. MOWAT, Attorney Generai. , \ mi L. .i'^wt-j ONTARIO LEQISLATION, 52 VICTORIA, 1889. 215 4 His Honour the '889. tember, 1889. e Honourable the itatute.s passed by iroper to stai^o the port calls attention ;er 70 of the Acts ailway Company " bo incorporate the to fall within the laturalization and ined in the various oration and with- )ter 41, section 24, rhe British North Parliament legis- d to give, and doos IS the present, viz., h it is submitted he British North 3ordance with the Colonies, p. 218," i67," the Dominion and aliens, it has ipowers provincial rights in the pro- and transmit real ition of the Dom- ile with the right »ecome a party to on. The object of )ect t<) those sub- 8 working. )f this nature for a showing that the e Court of Queen's the 7th June be >WAT, orney Gmieral. ^ ONTARIO— 52nd VICTORIA, lb89. 3bd Session — 6th Legislature. Eeport of the Honourable the Minister of Justice, approved hy His E.rcellenry the Governor General iv Council on the 28th Jitne, 1890. Department op Justice, Oitawa, 31st May, 1890. To His Excellency the Governor General in Council : The undersigned has the honour to recommend that che Acts, chapters 1 to 9, 11 to 14, 16 to 77, 79 to 81, 83, 8.5 to 101 passed by the legislature of the province of Ontario during the session thereof held in the months of January, February and March, 1889, a certified copy of which was received by the Department of the Secretary of State on the 5th day of April, 1889, be left to their operation. Humbly submitted. JNO, S. D. THOMPSON, Minister of Justice, Report of the Honourable the Minister of Justice, approved by I.Hs Excellency the Governor General in Council on the 5th July, 1890. Department of Justice, Ottawa, Slst, May 1890. To His Excellency the Governor General in Council : ' The undersigned has the honour to submit for consideration his report on the fol- lowing Acts passed by the legislature of the province of Ontario, in the session of 1889. Ch. 10. An Act respecting the Administration of Justice in certain cases. Section 8 of this Act purports to give the Lieutenant Governor in Council the powor t.> appoint a i.olice magistrate. The undersigned in this connection would refer t;' !;h", observations made by him in a report bearing even date herewith, upon the 'egis- l:tui ) ' the province of New Brunswick for the year 1889. The undersigned recom- » i t is tbiit the Act ha left to its operation. 01 . 15. An Act respecting Appeals on prosecutions to enforce Penalties and punish otToir^s uii'hr Provincial Acts. r-- V : ,,ri 4 of this Act provides as folio vs : — • E-.ery objection to a prosecution for an ott'ence under the statute of this province, f ror the recovery of a penalty under a statute of this province, on the ground of the constitutional invalidity of such statute, shall be takenby demurrer before the defendant has pleaded, and not otherwise ; and the court shall determine the validity of the objection raised by the demurrer and give judgment thereon ; and no motion in arrest of judgment shall be allowed for any question in respect of such indictment on the ground aforesaid, where the objection might have been taken advantage of by demurrer." The sectioa proceeds to make provisions for appeals from any decision respecting t'le invalidity of the provincial statute. To the undersigned this section appears to be open to serious objection. A.Uhough doubtless intended to apply tx) ofi'ences punishable by indictment where alo'ie a demurrer is possible, it is wide enough in terms to cover proceeding by summary •216 ONTARIO LEOISLATION, 52 VICTORIA, 1889. conviction, where there is no demurrer. Apart, however, from this, the provision would appear to be ultra vires of a provincial legislature, because of the Provincial Act crea- ting an offence and a penalty. Therefore if void, any enactment like this, to give effect to it, if the objection to its validity is not taken at a certain stage, would be ineffectual. This provision is also open to the objection that it is an attempt to limit tlie power of the courts to adjudicate upon the constitutionalty of provincial legislation. These objections may, howevei", be removed either by the repeal or amendment of the section in question, or by an adjudication, when these points are raised by persons concerned. The undersigned recommends that it be left to its operation. « Chapter 78. An Act to incorporate the Amherf.tburg, Lake Shoie and Blenheim Railway Company, section 4. Chapter 82. An Act to incorporate the Toronto Belt Line Railway Company, secti-n IG. tvhaptor 84. An Act to incorporate the Waterloo Junction Railway Company, section 40. The foregoing Acts in the sections mentioned, <- ,atain provisions in regard to piomissory notes and bills of exchange which may be Invalid. The undersigned, however, re' oinmends that such Acts be left to their operation, in view of the provisions made by i V-f of the Parliament of Canada, passed in the session of 1890, relating to bills of d e and promissory notes, which permits notes and bills to be made by certain corpot; ; under certain restrictions. Respectfully submitted, JOHN S. D. THOMPSON, Minister of Justice. ONTARIO LEGISLATION, 53 VICTOUIA, 1890. 317 le provision would ivincial Act crea- this, to give effect luld be ineffectual, mit the power of ogislation. These aent of the section rsons concerned. ore and Blenheim Lailway Company, lailway Company, ions in regard to to their operation, ida, passed in the hich permits notes 3. MPSON, iter of Justice. ONTARIO, SBrd VICTORIA, 1890. 4th Session— Gtii Legislature. Report of the Honourable the Minwter of Justice approved hy Hw Excellency the Governor General in Council on the 13th April, 1S91. Department of Justice, Ottawa, 14th March, 1891. To His Excellency the Governor General in Council : The undersigned having considered the Acts passed by the legislature of the pro- vince of Ontario in the session held in the year 1890, received by the ^ec^etary of State on the 23rd April, 1890 (chapters 1 to 68, 70 to 150 inclusive) be left to their operation and that the Lieutenant Governor be informed thereof. Respectfully submitted, JOHN S. D. THOMPSON, Minititer of Justice. ■ The Honourable the Minister of Justice to Hoiwnrable Attorney General Moivat. Department of Justice, Ottawa, 17th March, 1891. My Dear Attorney General,-! have been considering the Ontario legislation of 1890. The only Act to which I wish to call your attention \«/hapter 69, being "An Act to an.end the Ditches and Watercourses Act as applied to '■^'^'^^iLvu^t as appears by its first section, purports to extend to all railways, no matter uncle. what'Tegislatfve jurisdiction. My\iew is that the province canno W^^^^^J^^, mode hy which, or the occasions on which, any Dominion railway shall be changed oi otberwiJe affect;d, or in other words that the construction of these works and the mau. tennnce and alteration of them from time to tune is a matter within the exclusive authority of the Dominion legislature. You have, no doubt, noticed that section 14 of our Railway Act provides for drainage, the laying °*.,^f f ''P^PSilf JThrBaU streets &c along, across or under any Dominion railway, if it be decided by the Kail- wry C^mmittee^'hat it is in the interLt of the municipality t^-t such work shoudb^^ done This seems to give the machinery which is necessary to carry out what your Act Tafming a t, and it would be most confusing to have two separate t"bun..ls, one provin- cial and^the other Dominion, making orders in respect to the -^ -il^ and peihaps the same piece of work. Now I do not ask you to agree with me but as it is not a on^rinf tTme to raise the main question, I would suggest that without prepcl^^^^^^^^^ should consent to amend the Act in question so as to make it apply only to lailways under the legislative jurisdiction of the province of Ontario. /I";y ^ 'jf y""'^;;*:^ .f" standing your very onerous duties at the present time, to favour me with any eaily reply. Yours very truly, JOHN S. D. THOMPSON, Minister of Jtistice. 218 ONTARIO LEGISLATION, 53 VICTORIA, 1890. The Honourable Attorney General Mowat to the Ilononrahle tlie Minister of Justice. Toronto, 20th March, 1891. My DEAR Minister OP Justice,— I have your letter of the 17th, and agreeably thereto shall have the Act to which you refer amended, so as expressly to apply only to railways under the legislative jurisdiction of the province as you suggest, and without prejudice to any question. I suppose that the legislation by the three parties in the matter of the arbitration had better be as nearly as possibly in the same terms, and therefore, I am introducing into our legislature a l)ill following closely the Qr ^«.- * "t and without considering whether if I had had to do with the drawing of the Aci, i shouiu have expressed it in the same way or not. Yours very truly, O. MOWAT. T/ie Honourable Attorney General Mowat to the Honourable the Minister of Justice. Toronto, 6th May, 1891, My dear Minister of Justice,— The Act which you suggested with reference to the Ditches and Watercourses Act as applied to Railways (53 Vict., chap. 69) has been pa«.sed. It is of great public importance, however, that there should be some provision with respect to Dominion railways, in case we have not the jurisdiction which the Act referred to appeared to assume. I earnestly beg your consideration of a measure for Parliament on the subject. Yours very truly, O. MOWAT. Jieport of the Honourable the Minister of Justice, approved by His Excellency the Governor General in Cr'mcil on the ISth April, 1891. Department op Justice, Ottawa, 21st March, 1891. To His Excellency the Governor General in Council : The undersigned has the honour to report upon chapter 69, intituled ; "An Act to amend the Ditches and Watercourses Act as applied to railways" passed by the kgislature of the province of Ontario, in the session of 1890, as follows : This Act IS intended to make provision for the construction of ditches, drains, cul- verts, etc., through or under railways. Section 1 makes the Act apply to every railway company owning or operating a railv ay in the province of Ontario. ^ The undersigned having been of opinion that, in so far as the Act purports to apply to railways within the legislative jurisdiction of the Pariiament of Canada, it is of no effect, has obtained an assurance from the Ontario government that the Act will K« amended so as to expressly apply only to railways under the 1-gislative jurisdiction of the province He therefore recommends that the Act be left to its operation. Respectfully submitted, ' JNO. S. D. THOMPSON, , Minister o/Jtistice. ONTARIO LEGISLATION, 54 VICT., 1891.— 55 V!CT., 1892. 219 lister of Justice. March, 1891. th, and agreeably y to apply only to ?gest, and without ree parties in the e aame terms, and y the Q ^<"~ * "t, »f the Act X siiouiti MOWAT. .ister of Justice. h May, 1891, with reference to ihap. 69) has been be some provision on which the Act I of a measure for ONTARIO— 54th VICTORIA, 1891. IsT Session— 7th Legislature. Report of the lIono^crable the Minister oj Justice, approved by His Excellency the Governor ' •' General in Council on the 14th May, 1892. Department of Justice, Ottawa, 13th May, 1892. To His Excellency the Governor General in Council : The undersigned having had under consideration the Acts (chapters 1 to 113 inclu- sive) of the legislature of the province of Ont.u-io, passed in the year ISOl'^-f f c ies o* which were received by the Secretary of State onthe Uth day of May, 1891, rt-peotfuUy recommends that the same be left to their operation. JNO. 8. D. THOMPSON, Minister of Justice, X MOWAT. ia Excellency the March, 1891. led: ied to railways," 1890, as follows : tches, drains, cul- ' to every railway purports to apply a, it is of no effect, will \yy amended n of the province. SON, er of Justice. ONTARIO— 55th VICTORIA, 1892. 2nd Session— Ttii Legislajjure. Report of the Hon^uraUe the Minister of Justice -VWO^fhy His Excellency the ' '' Governor General on the 30th May, 189-3. Department of Justice, Ottawa, 18th May, 1893. To His Excellency the Governor General in Council : The u.de™gaed h» the honour to "P.°» *;', J' XeTr'rZ^t;:,?;?^ She is&ut IsS, '.nd he i, of 'opinio., thit they .re unobjection.ble and may be left to their operation. Respectfully submitted, J. A. OUIMET, Acting Minister of Justice. 220 ONTAHIO LKOISLATION Ffoin SoHritor» Canada Soulhcni, Railwuy Company to the I/onoiirahle th« Secretary «/ State. Toronto, 28tli Marcli, 1893. SiH, — We bt'jj; to inclosp a petition, iicconipaiiicd by ii stnteinent of facts connected with it, of the Canaila Southeiii Jiailwny ('onij)any, to liis Excoiieiiuy tlie (Jovenior (teiieral, pfayiiifj; fui- the (iisailowanee of oo Victoria, chapter H of the province of ()ntario, and bey that you will lose no time in l)rin.i{ing tlie matter to the attention of his Excellency. Tliis petition, accompanied by the statement oi facts, was deposited on the 2nd Mai-ch last, in the ofHce of the Minister of Justice, as we were notified that that was the proper departnl(^nt with which to leave it, but we are now sending this to your dejiartment, so thai there may l)e no informality in the matter. The time for tiie disallowance of the Act will expire upon the 14th of April, so we beg tiiat there will be no delaj* in bringing the matter before his Excellency. We have, kc, ^ KINCiSMILL, SYMONS, SAUNDERS TORRANCE Solicitors for the Canada Southern Railway Company. Petition of Canada So>ithern Railirny Caiiipany to IHh E, well envy the Governor General of the Dominion of Canada. The petition of the Canada Southern Railway Company : — Humbly showeth. 1. Your petitioner is duly incorporated under the laws of Canada as a railway company, and owns and operates a line of railway adjacent to the west bank of the Niagara river from the town of Niagara to Fort Erie, passing through the town of Niagara Falls, in the township of Stamford, in the county of Welland, and so owned and operated the same prior to the happening of the events hereinafter mentioned. 2. Y'^ourpetitionei . \ thecourseof its business, acquired for its purposes, certain lands, parts of lots, numbers oi hundred and sixty and one hundred and seventy -four, broken front in the township of Stamford. 3. Under an Act of the lejjjslature of Ontario, passed in 1885, being 48 Victoria, chapter 21, known as tho "Park Act," commissioners were appointed, as therein provided, to select such lands in the vicinity of the Falls of Niagara within Ontario, as were, in their opinion, proper to be ^et apart for the purpose of restori g to some extent the scenery around the Falls of Niagara to its natural condition, a id to preserve the same from further deterioration as well as to affoid to travellers and others, facilities for observing the points of interest in the vicinity. 4. The commissioners thus appointed selected lands for the purposes aforesaid, and prepared a plan thereof, including therein some of the said lands of your petitioner, which was subsequentlj' approved by his Honour the^ Lieutenant Governor in Council and adopted. Following such approval, and under the Park Act, proceedings were taken as there- in provided, to ascertain the value of the lands so selected, with the view to thair being ultimately taken for the purposes mentione i and, in the result, the same were .so taken and vested in the commissioners, as trustees for the province, they having been duly incorporated as a board under the Act of the legislature, passed in 1887, bein;^ 50 Victoria, chapter 13, by which Act the park was called "The Queen Victoria Niagara Falls Park." f1 55 vicTOKiA, 189:;. 221 tumble ths lurcli, 1893. facts connected cy the Governoi- the province of tlin attention t)f tited on the 2nd d that that was ing tliis to your of April, so we ency. NCE y Company. he Governor Y 8H0WETH. ia as a railway !st bank of the 'Ugh the town of id so owned and tioned. 3S, certain lands, nty-four, broken ng 48 Victoria, ted, as therein within Ontario, istori g to some a id to preserve others, facilities s aforesaid, and your petitioner, nor in Council taken as there- ' to thair being were so taken ing been duly ni; 50 Victoria, Niagara Falls 6. Part of the lands of your petitioner wliich were included in tlie said plan, was conveyed to Her Majesty and sul>se(|UHntly became vested in the commissioners upon the condition and understanding am(»ngst utiiers, that the same should be us(>d only for the said ol)jects jind purposes, and they were so used until the session of the legislature held in the year 1892. 7. At the point in (piestion is situated the station of " Falls View " on your j)eti- tioner's railway, and it was made an express term of the conveyance of the said lands, " that the view from I''alls View Stiilion shall be kept open along the wh the northern boundary of range five, and that on the east of the "railway only an open fence, which will not in any way obstruct the view, shall be "constructed." 8. Hy an Act, being 55 Victoria, chapter 8 (assented to 14th of April, 1892), the legislature assumed to confirm a ci-rtain agreement m.ide between the said connnissioners, acting therein on their . Shaw, i'^-ancis Lynde Stitson and William B. Kankine, of the second part, which purports to give to tlie persons named the right to take water from the Niagara Hiver at a certain point or points, and to occupy certain lands within the park in order that the company may tJu^reby genei'ate ami develop electricity and pneunuitic power for transmfssion beyond the park, and for that purpose to erect buildings, power houses and works thereon and in and by the said Act the persons named, with others, are incorporated as a companj^ under the name of the "Canadian Niagara I'ower Company" with the r.' trt of that Act was to enable the Minister of Public Works of Canada, if he saw fit, t< equire and take possession of any land or real estate, A'c, which might Ije expeiiient N ^ taken for the purposes mentioned in the Act, and powers were conferred upon him lable him to carry out the objects. 2. NoLi. ig was done under that Act, and in 1885 it was repealed by the legislature and another Act (which we will call the " Park Act ") was passed, being 48 Victoria, chapter 21, entitled " An Act fur the preservation of the natural scenery about Niagara Falls," and the preamble follows that of the previous Act, as to tlie objects for which it was passed. The Act provides for the appointment of the commissioners for the purpose of car- rying out its intent, and, by section 5, they were required to select such lands in the vicinity of the Falls of Niagara, within Ontario, as were, in their opinion, proper to be set apart for the purposes, set out in the preamble of the Act, and, for that purpose, should have power to enter upon, examine, measure and survey such lands, etc, as they may deem necessary. By section 6, they were to report as to the phin which, in their opinion, ought to be adopted for securing the permanent appropriation of the lands for the objects thereinbefore mentioned, and for the improvement and preservation of the property, and as to the mode in which the sanie should be managed, in order to secure its enjoyment as a puHic park. On the plan being approved, the commissioners were then to proceed to ascertain the value of the lands selected with the view of their being purchased, under the authority of the Act, " for the objects and uses thereinbefore mentioned." 66 VICTORIA, 1892. 223 i>f tlio Ipj^islature cl in the fifty-fifth M VOHMILI,, Secretary, iiy to His Excel- Act of the Legis- herein. 43 Vic, cap. 13, rritory," the pre- Canada and the enery around the further deteriora- the points of in- t and Parliament in the neighbour- I the manner as rks of Canada, if , which might be rs were conferred »y the legislature ng 48 Victoria, "y about Niagara ects for which it 5 purpose of car- ich lands in the on, proper to be or that purpose, ids, eto., as the/ lion, ought to be :ts thereinbefore 1 as to the mode IS a puHic park, to ascertain the 3r the authority For this purpose by section 10, the provisions of the Public Works Act (Ont.) (11. >S. C)., 1877, cap. 30) are to apply. That Aot provides for t ho appointment of otlitial arbitrators nnd machinery for determining the value by arbitration, if no settlement is made with the owners, which arbitrators are appointe ! ho paid for tile iilmolutc piirciiasc of tlif fett siin|ii»i in p(>HNi>HMion, free from i-ncuniliraiu-fs of tin- land particularly ni<ti(Ml, and di'scnixMl in the Huid Mciicduli* h(M'ciind(>r written, but Huhjt'i't to the drainage anti si-wa^o in the said schedule set forth. * * * And wo furthi^r decide, find, direct and determine that, in tho ovnnt (jf the same land heintj takiMufor the said park, the said the Canada Southern Hailway Company shall he entitled to he paid hy the tieasurer of ()ntari<), such costs as may he taxed hy the proper ollicer, on the usual scale InjlAveen party and par'ty. " T). An award, similar in terms and expres-ions, was also mado in resjiect of tho land taken hy the commisHionerN, and held in tho names of McssrH. Vaiidori)ilt and KingM- mill for' I he company, fixing the value at !?Hr)(). and making it suhject to certain i'ii{iit8, as to (liiiiiia>;e iiinl water pijies, whit'h had hccn jireviously resc-rvcd hy deed in favour of the " >istei's of our Lady of I^oretto," holh of whii-h nwards, as to amounts, were ultiuiately uci'epled as a Imsis of settlement, althou;;h such amounts wore totally iii'ifLi- quato, from the conipa:;reat dithculty in ti'yin;^ to reconcile their evidence, hut wo hclieve that w«' were not obliged to ho i{o\eine(l entirely by those opinions, and that, havin;L( carefully examined and viewed tiie properties in question, we have a right under all the circuniHtances to exercise our own discretion and judgment, aidoil by the evidence of those witnesses." And furtlioi" : "And tinally wo may say that we ha\<' in each case that has come beforo us endeavoured, while rejecting inere speculative values, to award to the owner or owners of the prop«'rty j)rofK)aed to be taken in full, just and liberal compensation therefor, assessed upon the basis of the principles and in ai'c(»rdance with tho statute before referre value of tho iands taken, tli(! arbi- trators ha'i Sefore them and considored the objects for which the land was required, and tho purp ^es to which it was to be devoted, which was a jioint specially pressed upon them liy t tunsel for the connnissioners, aiid it was in view of such objects and pur- poses 1 lily theavards were irade. 8. Th'e company's station at Falls View, which would be a .serious detriment at a point of great attraction on their line, tlio arbitrators must then have taken into consideration this further object and its effects upon the ccmipany's business and purposes. W vtcTORiA, 1802. 939 lili tlif iritviHioiiH jl '»() hIi,. ! ln) piiid ftlllll)tUtl('('.S llf tli<> liidtT written, hut I* ifc If: jot" thn Kiiino liirul |iy Coiiipiuiy sliiill 1)«' tHxi'd I))' the loHjH'ct of tJio limd |tM'i)ilt 1111(1 Kiii^H- to CtTtllill liniitH, |»_v (Iced ill fiivour III aiiKiiinls, were .t'li' tut ally inul,!- U he used fill' iiiiy ed tiicir" reiisuns, siitiun should he iWii l(';;al V. ritei'S. )ii as to the value lulty in tryiii),' to tjoM-rned entiieiy tiie propel ties in own distietion fi conu! hefore us owner or owners )ensution thervfor, the statute iiefore ature and ciicum- (Is tahen, tin; aihi- and was reijuired, t specially pressed h ohjects and pur- Canada .Southern lands were taken, sly : y the value of the ration the henefit 1 estahlishnient of claimants. ( Vide Is ; the inf'rences n without regard r a park to he not )urpose ; liad included the 1 station at Falls on on their line, iv ohject and its 9. A suit was lirougiit hy the company hefore the arhit ration was procci'ded with to restrain the arhitrators, on the ground that the lands having heeii acipiiri'd i)y the company for railway jiurposes, unfier the authority of the i'arlianieiit of ('aiiada, they had no iuri.'.diciion liy reason of the Park Act, which was proviiii'ial only, to deal with them, and an interim injunction was askcil for, hut iIk^ court, in the t^\cl•l•isl^ of its discri'tion, refused at that stage to interfere, con-iirving leave to apply again. 10. 'I'lie arhitnitors accordingly went on and made their awards as stated ; tho piece taken under the award against the company heiiig a strip (JO feet \>ide l_>ing contiguous to tiie south houndary of range one, running fi'om the east Ijouiidary of the uniform strip of land retiiined hy the company to a jioint one chain fi-oin the liveu- con- taining I !•• loo of an acre ; and that under the awai'd against the trustees V'anderhilt and Kiimsmill, comprising I'M) acres, h(>ing Ixiunded on the north hy the (!() foot strip already mentioned (extending easterly to the river, on the west hy the tJanada Sc'thera grounds and the monastery, on the east hy the river, and on the south l>y the road to the river leading from Street's mill road. The laruls in (piestion heing indicated upon the plan herewith suhmitted. 11. The result was not satisfa(!tory to the company, and tlie suit was prostniutf^d, but the dispute eiuled (Hth Fehruary, lHS7)in an agreement, with the coininissioners under which the <'oiupany and Messrs. Vanderhilt and Kingsniill, as such trustees, con- voyed the said pieces of land to Her Majesty, the conveyances reciting the acts and proceedings as we have indicated, and lieing made suhject to the following expri'ss terms, viz. : — " And suhject also to tlio following stipulations and provisions, winch it is mutually agreed hy the parties to the within deed shall he observed and ])erfornied by them respectively, and hy their respective succ^es.sors and essigns, and hy any hoard of com- missioners or those who may have the charge, conduct nid management thereof, under any Act of the 'egislature ; that convenient access ai i (fgress to and from the park he permitted to foot passengers and employees of the company suhject to tlu! following conditions : 1. That the park authorities shall build the means of access over their part of the hind and the company theirs, 2. That the access shall be under the control of the park authorities. And it is further stipulated and provided by and l)etween the parties as aforesaid : That tho Canada Southern Railway Company shall not erect on the land between a certain proposed roadway -o be built on their lands and the Niagara Falls Park boundary any building, or use or appropriate such building to the use of any business known as Niagara Falls business, among such Ixung booths for the sale of curiosities, photograph cars or places for the sale of fruit, cakes, or drinks of any kind. That the view from Falls View Station shall he kept open along tlie whole line from the monastery to the northern boundary of range o, and that on the east of the railway only an open fence which will not in any way obstruct tho view shall be constructed. The inducement to this settlement being the fact of the preservation of the land for all time for park purposes. 12. This disposition of the dispute was only reached after much negotiation and correspondence. Our suit was entered for a trial and was ripe for a hearing when the terms in tho preceding paragraph mentioned were reached — the consent heing embodied into the form of a judgment in the action and it has the force and effect of a decree of the court, which the commissioners have sought to overcome hy the legislation of 1892, hereinbefore mentioned. 13. The proceedings of the commissioners were followed by the Act of 1887, under which the acquisition of the land was authorized — gave the title " The Queen Victoria Niagara Falls Park," and declared the commissIvMiers to be a corporation under the name of " The Commissioners Queen Victoria Niagara Falls Park." By sec. 3 the lands so selected were thereby, on payment of the awards, vested' in the commissioners, as trustees for the province, and the lands are now so held. ". -t j l . . I ' l ,- M' ONTARIO LEGISLATION <§ i! 14. Until the session of 1892, the cor. pany had no reason to complain of any Act of the ccmniissioners or legislature, but at tliat session legislation took nl»':o which has materially affected the situation of the parties, and calls for consideration, and in doing BO, it is proper to remember that up to this time no authority was given to the commis- sioners, aov hful they the power to confer any privileges over the lands upon any person or corporation ; their duties were only those necessarily incident to the office as custo- dians in the public interest, with such powers as were esaenvial to control and manage, and for the improvement of the property within the objects stated. 15. There can be no doubt tiie policy of the Ontario Government, since the park scheme was formulated, has undergone a change, and it has been found the revenues from special attractions in the park are not sufficient to meet expenses, or the interest on debentures, which were issued under the authority of the Park Act to pay for the lands ; and rather than that the deficit should form a charge upon the general revenue of the province, the government have deemed it expedient to take advantage of their position and create a revenue out of the property itself, and for this reason authorized the agreement hereinafter mentioned. It is well recognized and understood that the commissioners act only under government direction. 16. By an Act of the session of 181*2 (of which the Canada Southern complain and seek to have disallowed), (assented to the 14th April), being chapter 8, entitled " An Act to confirm a certain agreement made between the Commissioners of Queen Victoria Nigara Falls Park and the Canadian Niagara Power Company, and to enable the said company to carry the agreen.'mt into practical effect" an infringement was made upon the park project. The agreement mentioned is dated the 7th April, 1892, i. c. only seven days before the Act received the royal assent. There is no preau.ole in the Act, and it is not eve.u stated to be for the benefit of the park. The agreement recites : — "The company have applied to the commissioner for the right to take vater from the Niagara river at a certain point or points in the park, in order that the c.nnpaay may thereby generate and develop electricity and pneumatic power for transm'ssion beyond the park, and desire to secure the right to construct their works in the park, and 'A\e commissioners have agreed to permit such construction upon the terms and considera- tions thereinafter expressed." It then provides : — "(1.) For the purpose of generating electricity and pneamatic power to be trans- mitted to places beyond the >,ark, the commissioners hereby grant to the con»pany a license irrevocabl*^, save as hereinafter limited, to take water from the Niagara river, between the head of Cedar Island and the main land, south, .h'^reof, and load such water by means of the natural channel between Cedar Island and the main land and the further extension of the channel, to supply works to be er^^ 3ted and constructed by the coinpany in buildings and power houses on the main land within the park, on a location near the foot of the high bluff between the Carmelite Monastery and the i-ear of the table rock house, whicl location shall occupy a tract of land of not more tlian 1,200 feet ir length by not more than 100 feet in width, such location r,i buildin^Ljs and power houses, from time to time to be erected, as shall be hereafter settled within the aforesaid limits by the commissioppr,. "(2.) The company shall have the furth'ir right to excavate tunnels, to discharge the wat'TS led from the Niagara River to the said buildings and power houses so that suoh waters by means of such tunnels shall emerge below the Horse Shoe Fall at or near the water's edge of the Niagara River." "(4.) The license heretofore granted is for the tevai of twenty years, commencing with the first day of May, 1892, the company paying therefor at the clear yearly ••eutil of $25,000 during the first ten years (the rent to be computed from the first ay of November, 1892), the rental for tin period from the first 'day of May, 1892, to the first day of November, 1894, which is fixed at $50,000 having been paid to and accepted by the oonnnissioners in two payments of the sum of $15,000, and the further sum of $35,000 paid by the company at or prior to tho execution and delivery of this instrument ; the rent for the remainder of the iirst ten years of the term to be payable 55 VICTORIA, 1892. 227 1 to complain of any Act ion took pl"-:^ which has isidemtion, and in doing was given to the conimis- le hinds upon any person _nt to the office as custo- to control and nianan and delivery of this he term to be payable in half yearly payments, and at the end of each six months, to wit, on the first days of May and November of each and every year, the first of such semi-annual payments to be made on the first day of May, 1895." The rental for the next ten years scales up to $35,000 per annum in the twentieth year. Sub.sei!tion (5) then provides for the renewal in periods of twenty years rach, mak- ing in all 100 years, at a rental of §535,000 per annum. "(7.) For the transmission of electricity and pneumatic power to points beyond the park, the company .^hall have thi> rij^ht to convey the same by wires, cables or other appliances in conduits beneath the sui'face of the park : — And the (.oinj>any may pass a conduit under the electric railway within the park to enable electricity or pneumatic power to be conveyed between the railway and the edge of tlie clifl' as far as the Niagara Falls and Clifton Suspension Bvicige. "(8.) For the purposes of construction the coi.ipany shall have the power to con- struct coffer-dams across both upper and lower ends of the natural channel between Cedar Island and the main 1 md, and to erect a temporary incline from the Falls View sta*ion to the Canada Southern Railway to receive supplies and machinery delivered by the said railway, and sh:'' deposit excavated malerial in such [laces as the commis- sioners may direct, and at all times to erect and maintain a submerged dam for the pur- pose of dire.;ting water from the river to the aforesaid natural channel. "(9.) The commissioner-; shall not grant or confer upon any other company or per- son any right to take or us'3 the waters of the Niagara River within the limits of the park so long as this agreement is in force, nor will the commissioners thenisel' es engage in making use of the water to generate electric or pneumatic power except for the purposes of the park, saving always in so far as regards the exceptions contained in paragraph 12 of this agreement. "(10.) The company undertake to liegin the works hereby licen.sed to l)e con- structed by them on or before the first of May, 1897 ; and to have proceeded so far with the said works on or before the first of November, 1898, that they will have completed water connections for the development of 25,000 horse power and have actually ready for use, supply and transmission 10,000 developed horse power by the said last mentioned ci«y." Subsection (41) relates to the prices to be charged for the use of electricity in Canada. •'(12.) The company may agree with the electric railway company for the supply of electricity to work the said railway and also supply electricity for any other purpose within the park." "(14.) All works to be done and executed by the company in order to carry out the fights hei'eby granted to them and the manner in which the same may from time to time be proposed to be performed or varied, as well as tlie exercise of powers within the park, shall, before Vjeing commenced, be suljmitted by tlie conpany to the commis- sioners for approval, accompanied by suitable plans, profiles, specifications and eleva- tifms as the case may require, the intention being that the buildings and works shall not detract from the park design and not in any way disfigure the park of which disfigur- ing or njt the commissioners are to be sole judg.s, and shall not be adopted or pro- ceeded with before the approval thereof in writing shall have been given by the com- missioners." And for greater certainty but not so as to restric- the generality of the foregoing terms of this paragraph it is hereby declared that sikU approval shall be required in the matters following : — "(fl.) The excavation of the channgls to lead the waters of the Niagara from the point or points of intake to the h)cation of the power houses, including the precautions necessary in relation to making openings under the railway for the admission of the waters of the river, and including the wheel-pits, tunnels and poitals to discharge tlie same, and the points of such discharge lielow the falls." " (/i.) The selection of the site on which buildings and power houses are to be located in accordance with the limits fixed by paragraph 1, and the general design and form of 228 ONTARIO LEOISLATION ^ IJ. suoh buildiiif^s as suitable to the surroundiiif^s of the site selected. (See paragraphs 1 and 3.) " (c ) The construction of the conduits whereby the cables, wires and pipes to con- vey the electricity or pneumatic power to points without the paik." (See paragraph 7.) " {d.) The construction and position of cofl'erdanis, incline plane, buildings for tem- porary use during construction and position of tramways for use during construction and for the removal of excavated or refuse material." (See paragra[)h 8.) "(f.) The change oi the rising main of the town of Niagara Fails water supplj'and also the operations of the company are no. to interfere with the regular working of tiie railway or its safety." The expression " the railway " in this paiagraph we understand to mean " the elec- tric railway," and not the "Canada Southern Hallway." 17. By the Act the agreement is appioved, lutifted, confirmetl and declared to be valid and binding on the parties thereto, and each of the parties are thei-eby authorized and empowered to do whatever is necessary to give ilfech to the substance and intention of the provisions of the agreement, and are thereby declared to hisve, and to have had, power to do all acts neces.sary to give etlect to the same. The company' is tiien incor- porated, with power to maintain and operate works for the prcxluction, sale and distri- bution of electricity and pneumatic power for the purpo.ses of light, iieat, and power ; to construct, maintain and operate intakes, tunnels, conduits, and other works in, through and under the lands and watercourses constituting the park, but only in the manner and extent to bo approved by the commissioners, and as required for the corporate pur- pose of the company, as provided in tiie agreement ; they are to have power with such pneumatic, electric or other conductors or devices as shall have been permitted and approved by the commissioners to conduct, convey and furnish, or to receive such elec- tricity or piiwer to or from any ))erson or corporation, at any places, by any means, through, under and along any [)roperty in .'espect of which they may have acquired the right, and through, under and along the streets and public places of any municipality, or across, or along any of the waters within the province by the erection of fixtures, in- cluding post^, piers or abutments for sust lining the wharves or conduits, provided the same are so constructed as not to incommodi^ the public use of such street or public places, or impede the access to any house or building erected in the vicinity of the same, or in- terrupt the navigation of such waters. The powers to be exercised in the streets and public places are to be exercised subject to any agreement made with any municipality respecting them ; power is given to the company to hold stuck in any corporation created for the purpose of supplying water of the river, or any corporation created for or engaged in tlie use of power or light derived from such water, or in any corporation which shall contract to purchase, lease or use any power or property of the company, and its stock may also be owned, held and voted on by any such corporation or person ; the company shall have power, upon receiving proper authority, to take its lines or conduc- tors over any bridge over the liver, suV)ject to any agreement that may be Jiade with respect thereto with the owners of the bridge. Tt is alt.o to ha\'e power to acquire the agreement already mentioned (which was entered into with the persons who subsequently obtained the coi-poration), and al' rights granted thereunder by the commissioners, and the benefit of any work that shall have been done, and any moneys that shall have been expended in connection with the works prior to the organization of the company. There is a capital stock authorized of $.3,000,000, the proceeds of which to be applied, firsf, to the payment of all fees, &c., in connection with the Act, making survey.s, itc, and the remainder towards making, completing and maintaining the works, and to the other purposes of the Act. With power to issue paid up stock for services, or in acquiring the agreement. A bonding power of $0,000,000 to be a charge upon the works, franchises and plant of the company. 18. The extraordinary powers given by this agreement, and confirmed by the Act, will be seen at a glance, and while the Act does not assume to give any right of expro- priation, the rights of others are very materially concerned, apart from any other con- sideration, when the .scope and extent of the agreement is understoofl to give a monopoly to the power company for the period of one hundred years, subject to no other approval 55 VICTORIA, 1892. 229 ^ee paragraphs 1 ind pipes to con- ('Seo paragrapli 7.) buildings for tem- •ing construction 8.) water supplj- and f working of tlie ) mean " the elec- d declared to be ierol)\' autiiorized luc and intention and to have had, iiy is then incor- n, sale and distri- it, and power ; to works in, through ly in the manner the corporate pur- power with such en permitted and receive such elec- s, bj' any means, lave acquired the any nmnicipality, on of fixtures, in- uits, provided the 3t or public places, f the same, or in- in the streets and any municipality imy corporation ution created for any corporation she company, and m or person ; the s lines or oonduc- ay be jiade with 'v to acquire the ivho subsequently mniissioners, imd t shall have been company, of which to be he Act, making maintaining the )aid up stock for to be a charge med by the Act, ' right of expro- i any other con- give a monopoly > other approval than tliat of the commissioners, a monopoly which could not have been acquired, had not the lands been taken comj)ulsorily l)y, and placed under the cont roluf, tlu; govei'nnu'nt. Thi' land (Mnl)raced in the first j)aragraph of tiie agr(!ement includes a large portion of that which was obtained from the Canada Southern, and Messrs. N'anderbilt atul Kingsinill, practically for nothing, and is directly in front tif Falls View Station, tiio existence of wliicli position is fully recognized by section 8 ui the agreement. li). While the measure is, in a sense, public, it nevertheless affected private rights, and it is fair to say it should have been treated iis a privat*; bill, so as to require notice to bo given, and that this was evidently the view which the parties themselves t(iok, appears from tlie fa;;t that ^)n the 5tii of March, 1892, notice was inserted in the otficial (r'dzi'tl'' of an application to incorporate the company, as required by the rules pertaining to such measures, l)ut the House was sitting, and the time for receiving petitions had expired. We took steps ter committee that it would be opposed, but the notice was withdrawn, and w(^, therefore, concluded the matter had dropped, as no private bill could then be introduced, according to the rules of the House. No notice of the agreement reached us, and the Canada Southern, although directly affected, was not invited to (sxpress its views upon it. 20. On the day of the date of the igreement, viz., Thursday, the 7th of April, the Attorney General gave notice of motion in the House for leave to introduce a bill to confirm the agreement and to enable the company to carry it into practical effect. There w.. i no [)ublic notice given, and it consequently did not reach our attention until the following day, and, upon our application for a copy of the bill, we wen; advised it had not been printed, and we could not have it. On that day (the 8th), however, the Attorney General introduced it, and it was passed through all its subsequent stages on Saturday, the 9th, and received assent on the 14th. 21. It has been generally understood, and is doubtless the fact, that this power company is identical with the cataract company, which is conducting operations on the New York side of the river, the intention of the licensees being to secure control of the power in this neighbourhood on both sides of the river, and place it in the hands of one concern, foreign at that. This ia borne out by reference to section 3 of the Act, which purports to enable any company, incorporated for similar purposes, to own, hold and vote upon the Canadian Niagara Power Company's stock (ante paragraph 17). 22. The particular place in question is what is known as " Falls View Station " of the Canada Southern and, in order to secure the location and make it an objective point for traffic and to give the public travelling over the company's line an opportunity of viewing the falls, the river, the rapids and river'- bank, free from obstruction, the company expended a large amount of money in a( ling the position, besides in the way of outlay for improvements, cutting down bank.s, pr<'ser\ ing sloi)fs, etc. 23. It was an express condition of the settlement and judgment, as will be seen by reference to paragraphs 11 and 12, that the view should be kept upen along the whole line from the monastery to the northern boundary of range five, which is the petiti iier's point of vantiige, and the agreement with the power company is a distinct brta ii of this condition, as the effect of the construction of the works authorized by it nmst be to interfere with the view and frustrate the object which the conmi.ssioners and company had when the terms of settlement were reached. What the loss will he to tli" Canada Southern, if the Act is allowed to remain, cannot be estimated. It will, in any aspect, bo most seriou.s, and it should be disallowed so as to prevent any disturbance of the company's position, or any interference with the conditions of settlement and judgment. 24. There is an entire absence of any provision in the act or agreement for i he protection of the interests of the Canada Southern, or, in view of the change of licy, any proposal to restxjre the company to its original position by placing its lands again under its control and the company is therefore driven to seek a remedy' to overcome the wrong which has been occasioned to it by this legislation. 25. Attention is directed to the wording of the Act, which declares the commission- ers " to have had " the power to enter into the agreement — from which it is evident the It) 230 ONTARIO LEGISLATION legislature recognized that they had no such right previously ; that the agreement relates to matters not within the contemplation of the Park Act ; and, by this means, the legis- lature has placed in the hands of the commissioners, an answer to any legal proceedings which might otherwise be taken by persons intended adversely. 26. In this aspect of the legislation there appears to he no remedy short of disallow- ance — had it not been for the declaration of power, no doubt an injunction could have been obtained, the agreement going into eflect as against the Canada Southern, especially as the lands are not vested in the crown but in the commissioners, as a coi , 'ration, (section 3, Act of 187'^), but such a possibility has, as we have pointed out, been taken away. , 27. Even apart from the conditions of settlement, it is too much to say that what has been done here amounts to a confiscation of the rights and remedies of the railway company, without providing some protection or compensation ; rights and remedies, which we say would have existed in its favour, as against the commissioners, but for the legis- lative interference. It is nothing short of an attempt to make up the loss in maintain- ing the park at the company's expense — as well as at the expense of the other original proprietors from whom lands wore taken — for it must be conceded that where lands have been acquired for a particular purpose with the sanction of the legislature, there is a resulting trust in favour of the original proprietor where such lands are afterwards diverted to other purposes, and that resulting trust has, in this instance, been legislated away without regard to the private interests. We submit, therefore, that the Act should be disallowed on the grounds, amongst others : — 1. Because the land, so conveyed as aforesaid, is being diverted from the purpose for which it was ol)tained. 2. Because the award and conveyance were marie in view of the said land, and the land within the park boundaries being retained under public control for park pur- poses only. 3. Because it assumes to supersede a judgment of the High Court of Justice. 4. Because, by authorizing the erection of buildings at Falls View, the commis- sioners sanction a breach of the conditions under which the petitioner conveyed its said lands. • 5. And that, for the reasons stated, the Act was passed contrary to the well recog- nized principles of right and justice and is subversive of the public interest, being an improper exercise of the legislative powers. It is also submitted as a matter of consideration, whether an Act, in authorizing the diversion of the waters of the Niagara River, an international stream ( ection 1 of agreement, ante, p. 10), and also in assuming to grant a monopoly in favour of the power company, as to the waters contiguous to the park (section 9 of agreement, ante, p. 11), is not ultra r . "es of the legislature. The petitioner will verify the facts hereinbefore stated, as may be desired, KINGSMILL, SYMONS, SAUNDERS & TORRANCE, Solicitm'8 for the petitioner, the Canada Smil/ieru Railway Cotnjmny^ Toronto, January 27th, 1893. The Deputy Minister of Justice to Honourable Attorney General Mowat. Department of Justice, Oitawa, 30th March, 1893. Sir, — I beg to inclose, for your remarks, the petition of the Canada Southern Railway Company for the disallowance of 55 Victoria, chapter 8, (Ontario), also a statement of facts which accompanied the petition. As the time for reporting upon this Act is drawing tp a close, will you kindly favour me with a reply as soon as possible, and also return the petition and statement of facts. I am, &.Z., E. L. NEWCOMBE, Deputy MinisOr of Justice. 55 vicTOHiA, 1892. 8^ he agreement relates his means, the legis- ny legal proceedings dy short of disallow- ijunction could have Southern, especially as a CGI, iration, ted out, bet'ii taken h to say that what ledies of the railway and remedies, which Ts, but for the legis- le loss in maintain- the other original d that where lands legislature, there is mds are afterwards mce, been legislated le grounds, amongst i from the purpose the said land, and ontrol for park pur- urt of Justice. View, the commis- er conveyed its said ry to the well recog- ! interest, being an Act, in authorizing tream (-ection 1 of y in favour of the ai agreement, ante, be desired, RRANCE, way Coinpany, ral Mowat. March, 1893. Canada .Southern , (Ontario), also a II you kindly favour statement of facts. E, Her of Justice. Tlte Honourable Attorney General Mowat to Deputy Minister of Justice. Toronto, 12th April, 1893. Dear Sir, — T have your letter of the 30th u'timo inclosing petition of the Canada Southern Railway Company for the disallowance of the Ontario Act, 55 Victoria, chapter 8, entitled " An Act to confirm a certain agreement between the commissioners of the Queen Victoria Niagara Falls Park and the Canadian Niagara Power Company, and to enable the said company ti) carry the agreement into practical effect, ' also a statement of alleged facts which have accompanied the petition. Your letter requests my reply as soon as possible, as tiie tin)e for reporting on the Act is drawing to a close. From the pressure of business in the preparation for, and in connection with, the session of the legislature hei'e, it has been impossible for me to prepare a reply before to-day. I repudiate the notion of the petitioners that it is the office of Duminion Govern- ment to sit in judgment on the right and justice of " An Act of the Ontario Legislature relating to Property and Civil Rights," that is a question for the exclusive judgment of the provincial legislature ; and on this account it is with hesitation that I proceed to remark on the assertions and arguments contained in the two documents, and if I do remark on them, it is from unwillingness that from my silence, any one should be left to suppose or assert that the charges made are true. What the petitioners say, is in substance, that the Act is inconsistent with right and justice, that it is a direct contravention of an express agreement with the Canada Southern Railway Company, to the eifect that the view from tlie Falls View Station should be kept open along the whole line from the noithern boundary of range 5, and that on the east of the railway only an open fence which will not in any way obstruct the view shall be constructed : that in carrying the Act into eflFect will interfere with this view : that the motive of the commissioners in procuring the Act was to " over? ., come " the agreement they had entered into with the petitioners, as well as a judgment of the High Court : and that the Act is on the part of the government nothing short of an attempt to make up the loss in maintaining the park at the company's expense, as well as at the expense of the other original proprietors from wlioni lands were taken. It is stated to be well recognized and understood that the commissioners act only under government direction. I read with astonishment these and some other statements in the documents men- tioned. But for the statements being there, it would not have occurred to me as possible for any one to make them. Whatever, as a matter of constitutional right, the legislature in the common interest might be entitled to do without interference by the Dominion Go%'ernment, the fact is that the Act does not take away any legal right whatever which, but for the Act, the Canada Southern Railway Company, under their agreement with the commissioners, would now have. So far from such a result being the motive and object of the Act, it was not contemplated for a single instant as even desirable if it were i)racticable. In the interests of tourists and the pu])lic, the commissioners and the government are desirous of the vijw from the company's station being unobstructed as the company can be. The electric works contemplated will not be an obstruction to that view, and will be an additional object of interest to intelligent visitors, besides affording a revenue for park purposes. The legal meaning of the Act and the object of it are alike absolutel3' the reverse of what the petitioners allege. Its purpose was, and its effect is, to deal with the rigtits of the crown as representing the province, and not the private rights of others. The Act does not mention the petitioners, nor refer to the view to which by agree- ment they are entitled, and the sole foundation for the petitioner's assertion is, that the agreement between the commissioners and the power company authorizes the power company, for purposes specified, to erect buildings and power house on such part of a specified locality as the commissioners should approve ; while ther(! is no pretense for 232 ONTAKIO LE(iISLATIO>f I i 'I h saying that any buildings so erected must necessarily obstruct the view from the station. The station is on a hill 100 feet above the level of the park, and buildings of the required extent and height would not affect the view for which the company stipulated, and to which thoy are entitled. The power company does not claim the right of erecting buildings which would obstruct the view, and if they did, no such claim could be sustained in law or equity. I may observe here, though the fact is not material to the j resent (jnestion, that the map attached to the petitioner's statement is misleading as regards both the extent of terri- tory which was conveyed by the railway company and their trustees to the Commis- sioners, and the extent of territory on which the power company are to erect their buildings. The land so conveyed to the commissioners does not go to the water's edge as the map indicates. Between the railway company's land and the water's edge there is a strip of land 66 feet in width which the railway company or their grantors did not own, and the commissioners' title to wliich is not derived from the company or their trustees. The land conveyed to the commissioners is a little over an acre and a half. It consists of two parcels, one comprising an acre and ^*^jf of an acre and the other .jljfl^. of an acre, making toijether one acre and -f^'^ of an acre. The map and the statement give these quantities correctly, ; nd the quantity .so embraced iu the two parcels is the quantity, not to the water's edge, but only to tJiis strip, and is exclusive of the strip. The description in the award is expressly not to the river, but at a distance of one chain from the river. So the land marked on the map for the Canadian Niagara Power Company extends far beyond the locality to which the buildings are confined by the agreement between the company and the commissioners. That there is no thought of diverting the park lands to other purposes appears from the very agreement which the petitioners assail. The paragraph thereof marked (14) contains the following provision. The intention being that the buildings and works shall not detract from the park design, and not in any way disfiguring the park, of which disfiguring or not the commissioners are to be the sole judges. The power company have to accept as final the judgment of the commissioners on this matter, as well as to the elevation of the buildings and other matters specified in the agreement. Now, to unnecessarily construe a provision in an Act of Parliament of this kind, that the power company may erect buildings so to be approved, as being an authority to the company to erect buildings, which by reason of their height or otherwise would interfere with the rights of persons who arc not named in the Act, and which the com- missioners could not sanction without violating their own agreement with the Canada Southern Railway Company. This is misconstruing the Act, and is asserting or claim- ing for it an effect and an intention not warranted by the language, and opposed to long settled and well known principles of statutory interpretation. As a learned Eng- lish judge has said in regard to such contention, it is unnecessary to refer to any cases on the point. They might be cited without end. The Court of Appeal took occasion however in the case of re Goodhue, 19 Grr. 366, to refer to some of the principal cases. The present Act confirms an agreement between the commissioners, a corporation of the one part, and the individuals named in the Act, and thereby ahso incorporated, of the other part. Such an Act is of course in the nature of a private Act. The petitioners themselves correctly claim that to be its character. Now the first head note re Goodhue is that the rule in respect to private Acts of Parliament is, that the interests of persons not expressly named in them are not affected by the provisions thereof. To give the Act the operation which the petitioners assert, it would have to be shown (to use the language of decided cases) that the Act clearly and inevitably comprehends the estates and rights of strangers. Here I have pointed out tiuit, so far from the Act clearly and inevitably comprehending the railway com- pany's right to the view from Falls River Station, the pov/er company's right to build does not require the recognition of a right to build to a height which would interfere with the petitioner's view, and by the agreement the commissioners reserve a discretion to themselves to approve of the plans, profiles, specifications and elevations, etc., before the work is commenced. The commissioners could not approve of any plans which would ;.:| I jroni the station. t's of tli(» rfqiiiiTcl Ipulated, aii'l to ,'■< wliicli would iiw or ecjuitj'. I |>ii, that the map extent of teni- to the Coininis- le to erect tlioir ilie waters edge liter's edge there iir grantors did :oinpuny or their fiere and a lialf. and the other le i-ia]) and tlic iced in the two md is exclusive distance of one I Niagara Power confined by the )ses appears from ;of marked (14) lings and works ng the park, of e power company er, as well as to ent. nt of this kind, og an authority otherwise would ■which the com- ith the Canada erting or claim- and opposed to a learned Eng- er to any cases d took occasion principal cases. I. corporation of incorporated, of The petitioners private Acts of are not affected ititioners assert, -he Act clearly I have pointed he railway com- s right to build would interfere rve a discretion ons, etc., before .ns which would 55 VICTORIA, 1892. 338 interfere with the view which, by the agreement with the Canada Southern Railway Couipiny was to be kept open. Beyond all doubt the Act does not " inevitably com- prehend " this right of the railway company, as a right of whicli the Act vas to deprive tliem. For such a purpose the intent would need to have been (to use a'^ain the judicial language) " plainly and unequivocally stated in language so express, as to admit of no possible misconstrue' !on, and ao shadow of a doubt.'' There must be an express and ex- plicit enactment to that effect. Who can possibly say that tiiis is the character of the language to which the petitioners ascribe the meaning they conii>lain of? Again it is laid down that, where a construction is claimed for an Act of Parliament wiiicli " inter- feres with private rights and private interests, it ought to receive a most strict construc- tion in so far as those rights and interests are concerned," and there are numerous other cases to the same effect. The cases in which the .sentences I have quoteil occur, are cited with others to the same effect in the judgments in the Goodhue ca.se. It is not worth while referring to other ca.ses, the point being so plain. The elementary rule they eotablish has evidently been overlooked on the part of the petitioners. Even without reference to the judicial decisions, the Interpretation Act R.S.O., c. 1, s. 8, par. 47, is sufficient to f(»rbid the misconstruction on which the petitioner's claim to disallowance proc(ieds. The Interpretation Act provides that " no provision or enactment in any Act shall affect in any manner or way whatsoever the rights of Her Majesty, hei- heirs or successors, unless it is expressly stated therein that Her Majesty shall be bound therel)y, nor if the Act be in the nature of a private Act, shall it afiect the rights of any person or body politic, corporate or collegiate, such only excepted as are therein mentioned or referred to." The Act pas.sed the house unanimously. It could not have passed through the Hou.se as it did, if a single member had objected. I have remarked on the principal allegations o the petitioners. The ♦^ wo documents contain other allegations which also I dispute, but they are not important enough for further reference to them. Their mention of the company which the Act incorporates being identical with the cataract company, and of the concern being foreign at that, is amusing, .seeing that the petitioner's company is chiefly owned by and controlled by foreigners of the same nation as the cataract company. What I have said is sufficient to show how clear it is that, if the petitioner's real ob- jections to the Ontario Act are those set forth in the petition and statement, they arise from a misconception of the efiect of the Act, and error as to its motives and pur{)oses. But I submit further that the objections, even as stated by the petitioner, are not such as it is the office of the Dominion Government to deal with. I return the petition and statement as you request. Yours truly, O. MOW AT. Deputy Minister of Justice to Honourable Attorney General Motvat. Department of Justice, Ottawa, 5th May, 1893. Deau Sir, — I beg to acknowledge the receipt of your letter of the 12th ult., containing your observations as to the petition of the Canada Southern Railway Com- pany fo" disallowance of the Ontario Act, 55 Victoria, chapter 8, and I beg to thank you for furnishing me with your views so promptly. I observe that you repudiate the claim of the petitioners that the Governor '^eneral in Council should consider, for the purpose of disallowance, an Act of •' j provincial legislature dealing with the subject of property and civil rights ; aki, .ry and Consti- have no right subject within ;heir notions of justice goes on Jcond chamber >try), and that Jn of labour, it iterposition of 1 act of legis- rable, says the erned, that as H those whose careful exatni- «'i«' holding of Jidvantage at and further, objectionable «sible interest ration of the ^'ith authority to reason or originate in a single chamber, and can only be openly discussed there, and once adopted there cannot be revised or amended by any other authority ; it does not become law until the Lieutenant Governor announces his assent, after which it is subject to disallowance by the Governor General." We respectfully submit his Excellency the Governor General should act in this iriatter on the spirit of this passage. The Act complained of, as we have heretofore set forth, was introduced as a private bill, and our clients being on the alert, notified the proper committee that it would be opposed, upon which the notice was withdrawn. The Act was then introduced by the government and hurried through all its stages without any notice to our clients, who, by their notice to the proper committee, were known to be objecting. The Act complained of confirmed an agreement entered into only seven days before the Act received the royal assent, and such agreement is declared to be valid and binding on the parties thereunto, and each of the parties thereunto were thereby authorized and empowered to do whatever was necessary to give effect to the substance and intention of the provisions of the agreement. The Act does not stop there, bub proceeds to enact that they are thereby declared to have, and to have had, power to do all acts necessary to give effect to the same. Notice was given by the Attorney Gene- ral on the 7th April, the day the agreement between the commissioners and the power company was dated ; the bill was not even printed then, and, on application by us, no co{)y could be obtained, and, on the next day, it was passed through all its stages, and received the royal assent on the 14th. The facts clearly show that it was one of those cases that come within the class referred to by Chief Justice Draper, and, under all the facts, it cannot be treated other than as a public Act, and there is no guarantee that the courts would otherwise consider it, or that our clients' claims would be recognized in an appeal to the courts, and we submit that they should be placed in that position. The Act empowers the commissioners to contract with the power company for privileges that are not within the purposes for which the government allowed the com- missioners to expropriate our clients' lands, and gives the commissioners leave to con- tract with the power company for the erection of buildings that obviously would inter- fere with the rights that were retained by the Canttda Southern Railway Company, and detract from the view stipulated for. We do not think our clients should be placed in a position of having to test in courts the question of whether, when the objectionable law becomes operative, the commissioners would continue to have sufficient control over the power company to prevent the latter from erecting such structures as will obstruct our view. The Canada Southern Rail- way Company might possibly have the right to sue the' commissioners for the recovery of lands which were sold to them for park purposes, and for which they were trustees for the public ; or might sue for damages caused their property by the obstruction of the view, but it is not the return of the lands nor the recovery of damages that our clients want ; what they desire is simply that their view will always be kept open, and that nothing unsightly will be erected between them and the falis. The Attorney General says that the electric works contemplated will not be an ob- struction to their view ; all of which may be quite true, uul our clients wish to be assured that this statement will be equally true at all times in the future, and that, notwith- standing the passage of the power company's Act, they would still be in a position to compel the commissioners to carry out their contract with them, and that they shall not at all be estopped by the supremacy of the Act of parliament. Prom what our clients have heard from the officers of the power compjiny and their counsel, we are advised that the power company themselves hold the view that, after the Act becomes operative, the park commissioners would be deprised of the ability to prevent their erecting works of any character that may be necct-sar}' to the proper carrying v.n of their business; they consider that the right given them is to carry on business in an adequate manner in the park, and that the sole limit upo.i \ he erecting of buildings would be the necessities of business from time to time. Our clients cannot but regard as anything but humorous the Attorney General's statement that the uns ghtly roof which the power company proposes to construct, and 23fi ONTAniO I.K(1I8I.ATI0N u[>()i) which the eyos of all thoir pasHtMigcrs at tlio fallH would lest, will he an luhlitiDua) oiijcctof intorost to intelligent visitors ; tin; machinery thus eatahlislied within the luiild- ings will perhaps lie an ohjoet of interest to those of a scientifii^ turn of mind, l)ut brick walls cannot but be an eyesore to those wlio are obliged to Jook across it to view the falls. We are further advised that the Attorney General is entirely mistaken when he says that the power company do»!s not claim the ri^^ht of erectinjj; buildinj;s which wouM obstruct the view ; on the contrary, our clients have dei'ived the impression from the otlicers of the company that they do claim such a right., and that they consich;!' t\w projjosition to erect buildings for the present below the line of sight fi'om the Canada (Southern llailway st it ion, a [)urely gratuituous and charitable act on their part. The oHicei's of the power company do not, we are informed, concur with the Attirney Oeneral in thinking that their assumed right to ei'ect any buildings that may b(! necessary to the pro{ier conduct of their business could not be sustained in law or ecjuity. We may further add that in order to effect an amicable setthMnont of this matter and being desirous not to unnecessarily interfere with the commissionors in their en- deavour to raise a revenue for j)ark purposes, notwithstanding the object is foreign to the purposes iov which the lanfls of private parties were ac,'uiii(i<'v of the undersigned all these provisions are infringements upon th exclusive power of the Federal Parliament to legislate on the subject of sea coast an( inland fisheries. An arrangement has, however, been reached between. the undersignei and the Attorney General of the province of Ontario by which the constitutionality o these provisions, as well as all other contentions respecting the fishery laws generally, ar to be referred to the courts for adjudication, and as it does not appear that any publi inconvenience will otherwise accrue, he respectfully recommends that the Act in questioi be left to its operation. Chap. 42. An Act to consolidate uhe Act respecting Municipal Institutions. In recommending that thid Act be left to its operation, the undersigned must no be understood as indicating that all the powers and authority which by it are conferrec upon municipal institutions in respect to their power of passing bv-laws, are within tin legislative competency of the provincial legisla<,ure. Respectfully submitted. J. ALDRIC OUIMET, Acting Minister of Justice. 892. ONTARIO LEOlSLATIOy, 56 VJOTORIA, 1893. 2-tl kill, or restrain, or carry length. fish for trout, pickerel, or igling by hook and line in or any other explosive, or , take or kill any kind of itions of Canada, and im- re infringements upon the subject of sea coast and 1 between. the undersigned cL the constitutionality of ; fishery laws generally, are not appear that any public ids that the Act in question nicipal Institutions, the undersigned must not y which by it are conferred ing by-laws, are within the OUIMET, ng Minister of Justice. ONTARIO, 56th VICIORIA, 1803. 3rd Session, Tth Lkgislaturk. Et'port of' the Ilonourablr^ the Minister ofJvstu-e, approved by Hit Excellency the Governor General in Council on the /Sth May, 189J,. Department of Justice, Ottawa, 6th March, 1894. To His Excellency the Governor General in Council. The undersigned has the honour to report that ho has examined the Acts pa.ssed by the legislature of the province of Ontario in the fifty -sixth year of Her Majesty's rei'm (1893)— the chapters of which are contained in the annexed schedule— received by "the Secretary of State for Canada on the 1st day of June, 1893, and he is of opinion that they are unobjectionable and may be left to their operation. The remaining Acts, chapters 33, 45, 48, 49 and 93, have been reserved for a separate report. The unde'-signed also recommends that, if this report ha approved, a copy ot the same, with a copy of the schedule of the titles of the Acts, be sent to the Lieutenant Governor of the Province for his information. Respectfully submitted, JNO. S. r THOMPSON, MinistfT of Justice. Schedule. ■V Chapters 1 to 32, 34 to 44, 46, 47, 50 to 92, 94 to 117. Report of the Honourable tlie Minister of Justice, approved by His Excellency the Governor General in Council on the 28th May, jS'J^. Department op Justice, Ottawa, 6th March, 1891. To His Excellency the Governor General in Council : — \ The undersigned has the honour to report upon the followii g Acts passed by the legislature of the province of Ontario in the fifty-sixth year of Her Majesty s reign (1893) received by the Secretary of State for Canada on the 1st day of June, 1893, as follows : „ ^ 1 , . ri-. i. 1. I Chapter 33. " An Act for the better prevention of Fraudulent c^at^ments by Companies and others." ^ This statute provides that any corporation, association, company, ofiieer ager. or employee who publishes or circulates any advertisement, letter-head, postal card, account, or document which represents the capital of the c(^mpany as of any larger sum than the amount of the subscribed capital actually subscribed in good faith or which contains any untrue or false statement as to the incorporation, control, supervision, management or financial standing of such corporation, association, or company, and winch statement is intended or calculated or likely to mislead or deceive any person dealing or having any 242 ONTARIO LEGISLATION business or transaction with the company shall upon summary conviction be liable to a penalty not exceeding $200 and costs, and not less than $50 and costs, and that in default of payment, the defendant being an officer, agent or employee as above men- tioned shall be imprisoned with or without hard labour for a term not exceeding six months and not less than one month, and that on a second or any subsequent conviction he may be imprisoned with hard labour for a term not exceeding twelve months and not less than three months. Chapter 45. '' An Act for the Prevention of Ci-uelty to, and better Protection of, Children." This statute creates a nun ler of offences with regard to children, among others, that any person over sixteen years of age who, having the care, custody, control or charge of any child, wilfully illtreats, neglects or abandons, or exposes such child, or causes or procures such child to be illtreated, neglected, abandoned or exposed in a manner likely to cause such child unnecessary suffering or serious injury to its health, shall be guilty of an offence and liable upon summary conviction, to a fine not exceeding $100, or alternatively or in default of payment uf such fine, or in addition thereto, to imprisonment, with or without hard labour, for any term not exceeding three months ; that if, upon the ti'ial of any person charged with any such offence it be proved that such person wsis interested in any sum of money accruable or payable in the event of the death of the child and had knowledge that such sum of money was accruing or becom- ing payable, the court may, in its discretion, increase the amount of the said fine so that the fine shall not exceed $250, or increase the imprisonment with or without hard labour, to any term not exceeding nine months ; — also, that any person who causes or procures any child to be in any street for the purpose of begging or receiving alms shall be liable upon summary conviction to fine and imprisonment. Chapter 48. "An Act to prevent Fraud in the Sale of Milk." This Act provides that any person who knowingly and fraudulently sells or sup- plies to any person any milk diluted with water, or in any way adulterated, or milk from which any cream has been taken, or milk commonly known as '' skimmed milk," or who knowingly or fraudulently sells or supplies to any person, milk that is tainted or partly sour, shall for every ofiFence forfeit and pay a sum not less than $1, or more than $50 and costs ; and it provides further that such penalty may be recovered by distress, and for imprisonment in default of payment. It appears to the undersigned that provisions such as those referred to may be held to relate to the subject of criminal law, and, therefore, not to be within the legislative authority of provincial legislatures. The undersigned considers, however, that the Acts should bo left to their operation, leaving it to those persons who may desire to question their validity to assert their remedy in the courts. Chapter 49. " An Act to amend and consolidate the Laws for the Protection of Game and Fur-bearing Animals." By section 6, the exportation of game from the province of Ontario is forbidden. The undersigned calls attention to this provision as relating to trade and com- merce. He does not, however, consider the objection so arising, as of such a serious nature as to call for the exercise of the power of disallowance. Chapter 93. " An Act to incorporate the Lake Superior and Algoma Co'onization Rr.ilway." Section 5 enacts that it shall be lawful for the company at any point where its railway approache^ within two miles of any navigable waters to purchase and hold as its own absolute property and for the use of the company, wharfs, piers, docks, water lots, water frontages and lands, and upon such water lots, water frontages and lands, and in and over the waters adjoining the same, to build and erect elevators, store- houses, warehouses, engine-houses, sheds, wharfs, docks/' piers and other erections for the use of the company, also to erect and maintain all moles, piers, wharfs and docks which may be necessary, and to dredge, deepen and enlarge such works. The undersigned observes that these provisions can only have effect as regards rivers and harbours, and the foreshores thereof subject to the legislation of Parliament 56 VICTORIA, 1893.— 57 victoria, 1894. 243 ction be liable to a costs, and that in yee as above men- not exceeding six baequent conviction ilve months and not etter Protection of, ren, among others, custody, control or ises such child, or d or exposed in a jury to its health, a fine not exceeding ddition theieto, to ing three months ; be proved that such I the event of the xccruing or becom- the said fine so that without hard labour, causes or procures alms shall be liable ilently sells or sup- lulterated, or milk is '' skimmed milk," k that is tainted or n $1, or more than jovered by distress, rred to may be held ithin the legislative t to their operation, lity to assert their ■ the Protection of ario is forbidden, to trade and com- s of such a serious Llgoma Co'onization any point where its archase and hold as piers, docks, water ontages and lands, 5ct elevators, store- other erections for wharfs and docks rks. e effect as regards ition of Parliament regarding such waters and foreshores. The powers so granted may, however, be law- fully exercised upon complying with the requirements of the Dominion statutes, and the Act should, therefore, in the opinion of the undersigned, be left to its operation. The undersicned, therefore, recommends that the several Acts mentioned in this report be left to their operation, and that a copy of this report, if approved, be sent to the Lieutenant Governor of the province for his information. Respectfully submitted, JNO. S. D. THOMPSON, Minister of Justice. ONTARIO, 57th VICTORIA, 1894. 4th Session, 7th Legislature. Eeport of the Honourable the Alinister oj Justice, approved by His Excellency the Governor General in Council on the 10th January, 1895. Department of Justice, Ottawa, 31st October, 1894. To His Excellency the Governor General in Council : The undersigned has the honour to report that he has examined the Acts passed by the legislature of the province of Ontario in the fifty-seventh year of Her Majesty's reign (1894), the chapters 1 to 96 and 99 to 107, received by the Secretary of State for Canada on the 12th day of May, 1894, and he is of opinion that they are unobjectionable, and may be left to their operation. The remaining Acts, viz., chapters 97 and 98, have been reserved for a separate report. The undersigned also recommends that, if this report be approved, a copy of the same, with a copy of the schedule of the titles of the Acts, be sent to the Lieutenant Governor of the province for the information of his government. Humbly submitted, JNO. S. D. THOMPSON, Minister of Justice. Report of the Honourable tfte Minister of Justice, approved by His Excellency t/ie Governor General in Council, on the 10th day of January, 1895. Department of Justice, Ottawa, 24th December, 1894. To His Excellency the Governor General in Council. The undersigned has the honour to submit his report upon the statutes of the province of Ontano, passed in the fifty-seventh year of Her Majesty's reign (1894), received by the Secretary of State for Canada, on the 12th day of May, 1894, as follows : T, c.i • /-I I 1 n Chapter 97 : " An Act to incorporate the Georgian Bay Ship Canal and Power Aqueduct Company." Section 11, amongst other things, purports to give the company power to divert and appropriate any stream, spring, river, lake or other source of water supply as it shall judge suitable and proper. ■mwinMinia'.gsag 244 ONTAHIO LEGISLATION, 57 VICTORIA, 1894. The undersigned ohserves that it would not be competent for a provincial legisla- ture to authorize a company to divert or appropriate rivers which, under the " British North America Act " became part of the public property of Canada. It may not be intended, hi/wever, tliat tlio company shall divert or appropriate any such rivers, and it' it should do so, the courts would have jurisdiction to determine the application and validity of the section in question. Chapter 98 : An Act to incorporate the Ontario Bucglary Insurance Company (Limited)." This statute incorporates a company for the purpose of insu''ing property against damage by reason of burglary or house-breaking. Theauthority to carry on business which it professes to confer upon the company, is general and not expressly limited to provincial purposes. The power conferred upon provincial legislatures with regard to the incorporation of companies is, by the "liritish North America Act," limited to the incorporation of companies with provincial objects, and it appears to the undersigned questionable whether the powers of this company, ac stated in the statute, are not so broad as to exceed that limitation. The undersigned recognizing the authority of the courts to confine the business of the company within its legitimate scope, would not consider the case one for the exercise of the power of disallowance but recommends that it be called to the attention of the provincial government in order that the powers of the company may be so restricted, by amendment, as to confine them within proper limits. The undersigned, therefore, recommends that the two statutes mentioned in this report be left to their operation, and that a copy of the report, if approve d, ba trans- mitted to the Lieutenant Governor of the province of Ontario, for the information of his government. Respectfully submitted. CHARLES HIBBERT TUPPER, Minister of Justice. ONTARIO LEGISLATION — 58 VICTORIA, 1895. 2 Ha ' a provincial legisla- , under the " British iiada. It may not be ny such rivers, and it : the application and Insurance Company eof insu'-ing property ty to carry on business expressly limited to itures with re<;ard to a Act," limited to the s to the undersigned e statute, are not so ; the authority of the ate scope, would not but recommends that !r that the powers of them within proper ites mentioned in this '■ approved, ba trana- jr the information of ' TUPPER, Miis^er of Justice, ONTARIO— 58th VICTORIA, 1895. 1st Session, 8th Leoislatoee. Report of the Honourable the Minister of Justice, approved by His Excellency .the Governor General in Council, on the 11th November, 1895. Department of Justice, Ottawa, 31st October, 1895. To His Excellency the Governor General in Council ; The undersigned has the honour to report that he has examined the Acts passed by the legislature of the province of Ontario in the fifty-eighth year of Her Majesty's reign (1895), chapters 1 to 11, 14 to 31, 32 to 37, 39 to 47, 49 to 6G, 68 to 96, 98 to 114, 117 119, 120 to 127 ; received by the Secretary of State for Canada on the 27th day of April, 1895, and he is of opinion that they are unobjectionable and may be left to their operation. The remaining Acts, chapters 12, 13, 32, 38, 48, 67, 97, 115, 116 and 118, are the subject of a separate report. The undersigned recomTnends that if this report be approved, a copy of the same, with a copy of the schedule of the titles of the Acts, be sent to the Lieutenant-Governor of the province, for the consideration of his government. Respectfully submitted, CHARLES HIBBERT TUPPER, Minister of Justice. Report of the Honourable the Minister of Justice, approved by His Excellency the Governor General in Council on the 18th November, 1895. Department op Justice, Ottawa, 2nd November, 1895. To His Excellency the Governor General in Council : The undersigned has the honour to submit his report upon certain statutes of the legislature of the province of Ontaria, passed in the fifty-eighth year of Her Majesty's reign (1895), assented to on the 16th day of April, 1895, and received by the Secretary of State for Canada on the 27th day of April, 1895. As to chapters 12 and 13, intituled respectively : — Chapter 12. An Act to consolidate the Acts governing the Supreme Court of Judicature of Ontario," and Chapter 13. " An Act diminishing Appeals and otherwise improving the procedure of the courts." The undersigned would call attention to sections 131, 139, 153, 180, 182, 183, 184 of the former and section 40 of the latter Act. These sections provide for the payment of fees by litigants, by means of law stamps and otherwise, which are to go to the consolidated revenue fund of the province and are apparently intended to be applied in payment of oflicers' salaries and otherwise, in aid of the administration of justice within the province. It has been established that such is not a direct method of taxation, and therefore not within the authority of a provincial legislature under the power conferred, to raise revenue for provincial purposes by direct taxation within the province, and it may be doubtful whether a province has the power to raise a special fund in this manner, for the maintenance of the administra- tion of justice in the provincial courts. The question is doubtless one of considerable i5J 2446 ONTARIO LEGISLATION consequence to the provinces. Similar enactments have been allowed to go into opera- tion in the province of Ontario as well as some of the other provinces. The undersigned does not consider that the doubt which may exist as to the validity of these provisions is such as to call for the exercise of the authority vested in your Excellency in regard thereto. The attention of the undersigned has been directed to section 8 of chapter 12, which purports to fix the precedence among themselves, of the chief justices and justices of the Court of Appeal and the High Court of Justice. The provision is not new, it being a re-enactment of section 7 of chapter 44 of tlie Revised Statutes of Ontario, 1887, and the latter section being a consolidation of the then existing statutory law on the subject. A section to the same effect appeared in the Ontario Statutes of 1874, and at that time the Minister of Justi(je called attention in a report, dated 18th November, 1874, to the question of the constitutionality of the provision, claiming that the question of rank and precedence of functionaries appointed by the Crown was a matter which could be dealt with solely by the Crown, as icpF-esented by the federal government. This report was forwarded to the Ontario government, and a reply was received from the Provincial Secretary, dated 6th October, 1875, transmitting an Order in Council approving a report of the Attorney General of Ontario dealing with this and other matters referred to in the report of the Minister of Justice, in which it is stated that the precedence of judges among themselves is a matter to be regulated by provincial legislation in respect of " the constitution of the courts." The undersigned observes that the right of prece- dence among the judges is not necessarily a part of the constitution of the courts, nor does it appear to him that such right is so incidentally connected therewith, as to confer jurisdiction under that head upon a provincial legislature, and the undersigned therefore considers that the autliority of the province to enact the provisions in question is not by any means free froti doubt. The question, however, is not, in the opinion of the undersigned, of such p.-actical importance as to warrant him in advising that the power of disallowance should be exercised. It is also enacted by section 1 85 of chapter 3 2 that, except in the county of York, the judges of the several county courts shall be judges of the high court for the purposes of their jurisdiction in actions in the high court, and they may be styled " local judges of the high court." The appointment of judges for superior, district and county courts in each province being vested in your Excellency, it is not competent for a provincial legislature to make such appointments. The practice has hitherto been, where a provincial legislature has con stituted the office of local judge of a superior court, and declared that the county court judges ehaii exercise the jui-isdiction conferred upon such local judges, for your Excel- lency to issue commissions to such county court judges, appointing them to the office which, under the provincial statute, they are qualified to fill. The section in question appears to be merely a re-enactment of a previous one, and if the practice formerly existing be continued, there could be no doubt as to the authority of judges so appointed to exercise the jurisdiction which is intended to be conferred. Chapter 38 : " An Act respecting Electric Railways." Chapter 67 : " An Act respecting By-laws Nos. 680 an^ 772, of the City of Hamilton." Chapter 97 : " An Act to incorporate the Grand Valley Railway Company." Chapter 115 : " An Act to incorporate the Windsor, Amherstburg and Lake Erie Railway Company." Chapter 118: "An Act to incorporate the Sault Ste. Marie Pulp and Paper Company." These are chapters providing for the incorporation of companies, or enacting provi- sions applicable to certain companies, and each chapter contains a section declaring in eSFect that aliens may be shareholders and office holders in such companies, with the same rights as British subjects. Exclusive legislative authority with regard to aliens having been committed to Parliament, it would appear to the undersigned that it is be- yond the authority of a provincial legislature to legislate so as to affect their rights. Any wed to go into opera- ices. exist as to the validity hority vested in your 8 of chapter 1 2, which ces and justices of the is not new, it being a 3ntario, 1887, and the ' law on the subject. 1874, and at that time ovember, 1874, to the e question of rank and • which could be dealt jnt. This report was i from the Provincial ncil approving a report ttters referred to in the precedence of judges jislation in respect of at the right of prece- ion of the courts, nor therewith, as to confer I undersigned therefore lions in question is not n the opinion of the ivising that the power n the county of York, I court for the purposes 3 styled " local judges courts in each province ;ial legislature to make cial legislature has con I that the county court idges, for your Excel- iting them to the office of a previous one, and oubt as to the authority ied to be conferred. . 772, of the City of ilway Company." ■stburg and Lake Erie [arie Pulp and Paper nies, or enacting provi- a section declaring in ih companies, with the with regard to aliens dersigried that it is be- affect their rights. Any 58 vicTOUiA, 1895. 244c question which might arise with regard to these sections may, however, be conveniently determiiu'd by the courts, and the undersigned does not couHider tluit at present they call for anytliing further tlian the foregoing ironnneiit. Chapter 38 also contains the following sections : — "Sec. 128. If the railway, when not passing along the public higliway, is earrifid across a navigable riv(>r or caiia', the company shall leave open a .swing-bridge or draw- bridge, between the abutmei\ts or i)iers of their bridge or viaduct over the same, and shall make tlie same of such clear height above the surface of the water, or sliail construct such draw-bridge or swing-bri'.lge over the cliannel of the river, or over the whole width of the canal, and shall be subject to such regulations as to the opening of such swing- bridge or draw-bridge as the Lieutenant-(Jovernor in Council from time to time may determine. "Sec. 129. It shall not be lawful for any such company to construct any whart, bridge, pier or other work, upon or over a navigable river, lake or canal, or upon the beach or bed, or lands covered with the water thereof, until they have first submitted the vlan and proposed site of such work to the Lieutenant-(ii)vernor in Council, and the same has been by him approved ; and no deviation from sucli approved site and plan shall be made without his consent." Those sections may be construed as intended to vest in tlie companies to which they apply, so far as the provincial legislature has power to do, corporate powers to exe- cute works of the character and in the manner therein mentioned, and they may pro- perly have eflfect to that extent, but the undersigned observes that the powers mentioned could not be lawfully exercised, with )ut the proceedings which have been required by Parliament in respect to the construction of works in navigable waters, and it could only be upon obtaining the approval of your Excellency in Council for tiie works con- templated, that the companies could competently construct such works. As the construction suggested would leave room for the operation of these sections without conflicting with any existing Dominion legislation, tlie undersigned is of the opinion that they may be properly left to their operation. „ „ . „ Chapter 48. " An Act for the prevention of Fraud in the sale of 1' ruit. The main object of this chapter is to constitute offences and establish penalties in respect to fraud in the packing and sale of fruit, and it appears to relate rather to the subject of criminal law, than to any matter of legislation which has been committed to the province. The provisions of the statute in themselves however, appear just, and intended, if upheld, to have a beneficial effect. The undersigned considers, therefore, that the question as to the validity of the Act may i)roperly be left to be raised in the courts, by any individual who may be in a position to do so. Chapter 116. " An Act to incorporate the Algoma Dry Dock Company." Section 2 provides that the company shall have power, among other things, to con- struct, utilize and operate on the property of the company, dry docks and inaiine rail- ways connected therewith, elevators, warehouses, pier.«, wharfs and slips, and to dredge or deepen harbours or basins. , . , , .-100.1 This provision is subject to observations made with regard to sections 128 and l''9of chapter 38. It is subject, to the further remark, so far as harbours or basins are concerned, that public harbours are, by the British North America Act, a part of the public property of Canada, and therefore not subject to piovincial legislation. For the reasons stated with regard to the former sections, however, ami al.so in view of the fact that a question of right raised by the province as to the projierty of the Dominion m public harbours, is nov, awaiting determinition in the courts, the undersigned considers that this is not a case for the exercise of tiie jiower of disallowance. , ■ , • The under.' igned recommends therefore that the several Acts mentioned in tins report be left to their operation, and that a cojiy of this report, if approved, be trans- mitted to the Lif utenant-Governor of the pro^ ince for the information of his government. Respectfully sulimitted. CHARLES HIBBERT TUPPER, Minister of Justice. i li ' 244(2 ONTARIO LEOISLATION Report of the Jlononrahlf the Mialster of Jiistlc approval hy J/in Exct'lli'iiry thr Gov- ernor in Comirif ou the Jiid Deeemher, JSHo. Dkpautmknt of Justiok, Ottawa, Gth November, ISUf). To His Ereellency the Governor General in C'oitne!/ : The undersigned hiis tlio honour to report tliat chapter 32 of the stiitntes of tlie legishiture of the j>rovince of Ontario passed in t\w 58tli year of Her Majesty's reign (1895) assented to on the 16th April, 18!)"), and received by the Secretary of State; for Canada on the 27th April, 1895, intituled : Chapter 32. " An Act respecting Chartering of Trust Companies " has been made the subject of an application for disallowance. The Act provides that " no company shall hereafter be incorporated, or otherwise authorized, liy letters patent to executti the office of executor, adniii.,.itrator, trustee, receiver, assignee, guardian of a minor's estate, or of connnittee of a lunatic's estate, and no letters patent shall be granted to any com})any heretofore incorporated conferring any such powers upon such company, without in either case such company having com- plied with the provisions of this Act, in addition tuebec, 49-50 Victoria, chapter .19, intituled "An Act to authorize certain corporations and individuals to loan and invest moneys in the province " would appear to have appli- cation. The following is an extract fi'om the report of the late minister upon the latter Act, dated 16th July, 1887 :— " The undersigned would recommend the disallowance of the statute, were it not for one view which has not been pi'esented in the dispatch of his honour the Lieutenant- Governor. While it gives authority to the provincial secretary to issue the license to the companies referred to, and professes to convey authority to any such company to do business after obtaining such a lice^nse, it does not contain any negative provision for- bidding any such company to do business v/ithout obtaining such license, nor does it f'stablish any penalties to be enforced against the companies so incorporated and engag- ing in business without obtaining the license. " The Act therefore seems incapable of doing harm, or of obstructing the operations of companies duly authorized and doing business within the scope of their lawful authority, excepting in so far as it may raise doubts as to the nece.ssity for such a license. "The companies affected may therefore be left to test, as they may think proper, the \alidity of the Act, before the courts, and no such inconvenience is likely to arise as would call for the exercise of the power of disallowance." The practical difhcnlties which applicants, who come under the operation of the Act would have to overcome, in satisfying the several preliminary conditions, are such as B — -_ t^Ji w 244^ ONTARIO LEQISLATION, 68 VICTORIA, 1895. the provincial legiHlatiire in its wisdom has within its imd..ul)to(I authority soe., tit to impuHo. Ih.. provisions ..stal.lishiMK -"ch ro.|uir..,„,.„ts hav,. no retroactiv.- ..H,.et, nor tliat they pn.per y c-all tor ....nnnont h.-r., If the conditi.ms ure un.iuly onerous the remedy iM with t lie le;,Mslatu Hi. ^ iiti.ii«i,no Kor the reasons nientioiuHi, the undersigned recommends that th(^ A(rt l)e l.-ft to its operation, and that a copy of this report, if approved, I.e transmitted to the Lieutenant- Governor of the province for the information of his Government. Ilespectfidly suhmii.ted. CHAHLES HIIMJEIIT TUI'IMCH, Minixter of Justice, IH! MWk authoiitv so»!n fit, to I tetiddclivc cHi-ft, nor ore, (lot's not eonsidor ■0 unduly onerous the t th(^ A(rt l)c left to its ted to the Jjieutennnt- r TUl'l'EIJ, 'in infer of Justice, QUKBEC, 31.ST VICTORIA, 1868. IsT Session — Ist Parliament. Report of t/ie Honourable the Minwler of Juxfio', approved hi/ I/ia EM-ellenry the Governor General in Council on the J^th July, 1808, Depaiitment op Justice, Ottawa, "idth June, 18(58, To Hi» Excellency tfie Governoi' General in. Council, : Witli reference to the Imperial "British North America Act, 1867," and also to the Order in Council of the i>th instant on the memorandum of the undersigned, relative to the course to be pursued wit ii respect to the Acts passed by the provincial legisla- tures, the undersigned has the honour to report : That he considers the Acts mentioned in the annexed schedule passed by the legis- lature of the province of Quebec, in the first session thereof to be free from objection of any kind. He therefore recommends that the same be respectfully left \u : leir operation. JOHN A. MACDONALD. Schedule. Chapters 1 to 13, 15 to 23, 26 to 36, 38 to 45, 48 to 59. Report of the Honourable the Minister of Justice, approved by His E.r.cellency^tlie Governor General in Council on the 4th July, 1868, Department of Justice, Ottawa, 1st July, 1878, To His E.roellency the Governor General in Council : In reference to the following Acts passed by the legislature of the province of Quebec at its late session, the undersigned has the honour to report as ff>lIows : — The second section of chapter 14 legislates or the subject of bankruptcy, by extend- ing the several Acts of the late province of Canada on the subject, for a further period. This, in the opinion of the undersigned, is beyond the jurisdiction of thejocal legislature of Quebec, and he recommends that the attention of the provincial government be called to it. 16 I ■I lu 246 gURBKC LKOISLATIOK The undtTsigiind would suj,';;<'st that this Act Nhnuld ho an)ond(Ml, nxpn^HHly limiting tiie )Mjwer.s of tlie cumpunieH to Ik.' uHtublisliud uiuiur it, tu the limitH of tlio |iioviiieo of Queh»^c. The 8th sulwectioii of the second chiUHe legislivteH on the suhjfct of tiHiicrioH, which set'uis liy the ITtiioii Act to Itclong to the Piiriiiiinient of tlie l>oniinioti. That portion of the sulwection whioli authori/es tlie iiicocponition of conipnnii's foi- the jmr- po80 of currying on l)unine8n in the waters adjacntt to the province, and tlierefore not in the province, would especially appear ii/tra rlrea. The same remarks that are made on chapter 2i are applicable to the second section of this Act. The undersigned would also suggest that the attention of the government of (.Que- bec be called to the expediency of expressly limiting the 14th clause of chapter .'{7 to procedure in Ilecorders' Courts, relating to municipal matters ; all legislation relating to proceedings in criminal matters a|>pi'rtains to the general Parliament. All of which is respectfully submitted. JOHN A. MAODONALD. Clncf Enijineer I'liliflr Works to Secretary Department of Public Works. Ottawa, 7th December, 1868. Sir, — T have the honour to acknowledge the receipt of your letter drawing attention to (pertain in([uiries miwle by the Honourable the Minister of Justice, relative to the probable effects of the work proi)o,sed to be constructed by a company, at or near the Lachine Rapids, in the River St. Lawrence. With a view of placing the matter fully before the department, it is deemed proper, first, to give a brief statement of the leading points contained in the documents, which have been -ubmitted both for and against the scheme, together with reference to other papers bearing t)n the subject. It appears that a number of gentlemen, residents of Montreal and other parts of the province of Quebec, are desirous of being incorporated under the name of " St. Louis Hydraulic Company, for the purpose of carrying on the business of creating water power for driving of mills and machinery, by the construction of dams, sluices and other mechanical appliances, and of leasing or .selling the same." The place where they propose engaging in this busines-i, is at or near that part of the River St. Lawrence known as the Lachine Rapids, and in the vicinity of Montreal. They represent, having made an arrangement for " the undivided half or moiety of that certain lief, in the district of Montreal, know as I'Tsle au Heron, in the River St. Lawrence, near the St. Louis or Lachine Rapids," itc, &c. In confirmation of this, a copy of a notarial document, dated 4th December, 1866, is submitted, from which it appears that the transfer of the " undivided half of I'lale au Heron" has been made con- ditional — that is to say, in case the company be not incorporated and chartered, or of its failing to carry out the terms of the arrangement, then a reassignment of the property is to be made to the original owner, or person who made the transfer. On a memorial setting forth che objects proposed to be effected by the company, an. Act of incorporation was passed at the last session of the legislature of the province of Quebec, authorizing a joint stock company to be formed, with power to take possession of part of the bed and beach of the St. Lawrence, to purchase, acquire and hold lands for canals, roads, ditches, Ac, and construct a dam between the Isle au H^ron and the north shore of the river. " The several clauses of chapter 66 of the Consolidated Statutes of Canada, under the several heads of Potvern, Plans and Survey, Lands and their valuation, and Fences, shall be incorporated with this Act," tfec, &c., &c. 31 vicTouiA, 1868. 947 iiloil, exproMly limiting mits of th() |iiijvinco of subjoot of tiMhcrieH, tlio Dominion. That •Jornpanii's for tho pur- ■e, mid tliorofori! not in to the necond section 10 Kovornnient of Que- clau.se of chiiptor Wl to legishitioa roliitin;; to neat. MACDONALD. I'uldic Works. y December, 1868. your letter drawing ter of Justice, relative by a company, at or it, it is deemed proper, the documents, which tier with reference to 3al and other parts of der the name of " St. 8 business of creating iction of dams, sluices le." at or near that part of » vicinity of Montreal, •ided half or moiety of eron, in the Hiver St. confirmation of this, mitted, from which it I " has l)een made con- 1 and chartered, or of imcnt of the property "er. d by the company, an lie of the province of er to take possession iquire and hold lands sle au Hdron and the ites of Canada, under 'aluaiion, and Fences, The company to have a capital Htockof two millions of dollars, with power to increnne that amount if deemeil pro|)€ir. The (charter to \m forfeited if the company do not ){o into actual operation within three yeai's. The construction of the works not to be coin- menced until one million dollars of the i'a]>ital stock is subscribed, nor until one hundred thousimd dollars shall havtt been paid up. This Ai't or bill was, however, rcsiM-ved for the royal a^-sent. Since the bill was passed by the legislature of (.Quebec, several memorials have l)een pi(!sented U) his Excellency the Oovernor (ieneral, praying, for various reasons therein stilted, that it be di.sallowed, viz. : — 1st. From \V. J. Knox and Robert Knox (IHtli March, 1808), owners of mills at the [iacliii\e Kapids, representing, that by the bill, the "St. Louis Hydraulic Company" would have the power of constructing works, which would destroy the water-j)ower owned by them, the memorialists. That the company would have the right of acfjuiring a large amount of property that would prevent the carrying out of a scheme, which had been in contemplation for the last thirty years, for the further development of the wat r-power, itc, itc. 2nd. From V. B. Mathews ('Jlst March, 1868), owner of the undivided half of Lsle au Ht'ron, praying that his property may not be taken possession of against his will, for the benefit of a private company, ke. 3rd. From Hugh Fraser, and eighteen others, proprietors of land lying on the north shore of the Hiver St. Lawrence, between Montreal and Lachine (2;}rd March, 1868), praying that assent to the bill be withheld, inasmuch as the passage of a law, giving private individuals and speculators the right to take property of their neighbours, at their own valuation, would tend to destroy the .security hitherto enjoyed by the in- habitants of the country in their titles to lands, ifec, Ac. The petitioners also state, that they believe the bill, "in its present shape, to be unconstitutional, for various reasons, and amongst others those recapitulated in the e.vpom' or /artum hereunto annexed, and respectfully submitted," A'C, i^rc. The document thus referred to is headed, "Statement of the grounds on which it is contended that the bill to incorporate the St. Louis Hydraulic (Company, passed by the parliament of the province of Quebec, but reserved for the royal assent, should not bo passed." In this paper the principal features of the bill are discussed, and reasons assigned why it should be disallowed. This document seems to have been ably and carefully prepared ; and, as a whole, is well worthy of consideration. There is also a memorial (dated 17th March, 1868), signed by 231 persons, chiefly residents of Montreal, to his Excellency the Governor General, praying that the bill may be assented to, inasmuch as the carrying out of the proposed undertaking would secure to Montreal an unfailing supply of pure water, and create an immense amount of invaluable water-power for general use, itc, Ac. In this connection it may be stated that an Act was passed in 1861 (24 Vic, cap. 56), intituled : "An Act to incorporate the Montreal Hydraulic and Dock Company." By the 3rd section of this Act, the company are empowered to make a canal and conduct water from some point on the River St. Lawrence, within seven miles from the city of Montreal, for the use and supply of the said docks, or for hydraulic or manufacturing purposes. By the 5th section, the company has the power to lease or sell water-power for mills, manufactures, Ac, Ac, but none " of the provisions in this Act mentioned as to taking possession of, and entering upon lands, shall apply to lands to be purchased along the canal supplying the said water-power, which lands shall only Vje acquired by voluntary contract and agreement." By the 45th section, the powers of the company are to cease if their works are not commenced within three years, or are not finished, or put in operation, within ten years from the passing of this Act. The Act shows that the scheme w.i,8 looked upon as con.sisting of two (distinct) parts, the principal one, or that connected with navigation, being considered as essentially a 16i ■3 1 248 QUEBEC LEGISLATION public woi'k, wliilsfc that relating to water-power was viewed and treated as a priva undertaking. It is believed that the proposed canal was to have been supplied with water from point above the Lachine Rapida, where the river is naturally of a height suited to tl purposes contemplated. It appears from tbe Acts passed previous to 1859. that the Public Works Depai ment had no power to acquire lane- as a .sito for water-power or other hydraulic purpose except in the usual manner of voluntary agreement with the owner, although invests with full power to take possession c*' all o jcii lanls as were necessary for works essential of a public nature, But, in 1859, an Act was passed (22nd Vic, cap. 3), intituled : " An Act to amen and consolidate the several Acts respectiiig the Public Works." By the 31st sectio the commissioner may at all times "acquire and take possession of all lands, or real «>°tat streams, waters and watercourses, the appropriation of which for the use, constri. tie and maintenance of hydraulic privileges, made or created by, from, or at such publ works, is in his judgment necessary, &c." In " An Ac' respecting the Public Works ( Canada," passed in 1867 (31st Vic, cap. 12), the powers relating to the acquirement ( land are similai to those described in the Act of 1859. It, therefore, appears that previous to 1859, the Department of Public Works v not invested with the power of taking possession of lands for the water-powers, whif even the consti i; ction of the provincial canals had created. The exception then made in favour of the department, was not, however, in 186 extended to the " Montreal Hydraulic and Dock Company," in so far as i elated to thi portion of their project which had for its object the formation of mill privileges. Notv.ithstanding the magnitude of the scheme now under consideration, and i great public importance, if it should be ^uccessfully carried out, its chief aim is simil to that part of the "Montreal Hydraulic and Dool: C>,inpany's" project, fioni which tl power of ei^p'opnation was withheld. It may, therefore, fairlj' be questioned, whether such powers could judiciously conceded to the "St. Louis Hydraulic Company." The (231) memorialists in favour of the projected undertaking, gave, as the: principal reason for supporting it, that it would have the effect of " permanently securinj for the city of Montreal an unfading supply of pure and wholesome water." On examining the plan submitted by the company, it appears that the watc above the proposed dam is intended to be raised eighteen feet, and kept at a heigi of about thii'ty feet over ordinovy low water mark in the harboui of Montreal, and i this w-iy it is alleged the desired object will be effected. A memorandum, explanatory of the design, shows that " during a portion of las winter (1867) a natural dam of ice ^'as actually formed across tlie lower end of th channel, and raised the water above it to about the level which will be attained whe the permanent dam is constructed, &c., ('•"." A record of the water-levels, kept by the superintendent of the Montreal wate works, shows that during the period above alluded to, viz., the 16th, 17th and i8th ( January, 1867, the water at the site of the proposed dam rr.ood at a height of 30-37 fe( above datum, or fully foui' inches above the level to which it is intended to raise tl water above the dam. During the remaining portion of the month of January, it varied from 29'74 1 29'97, and averaged 28'76 feet above datum, giving for this time a mean fall of 1-24 fei at the site of the dam, when the level above is maintained at 30 feet as proposed. In the month of February it ranged from 28'97 to 24'63 feet, averaging 26*58 fe( over datum, and giving for this period a mtan fall o* 3*42 feet r.t the dam. From tl:! Lst to the 2l8t March the average lev/l was 25'61 feet over datum, givir a mean fan at the dam of 4-39 feet. The general average of the daily levels from the 19th January to the 2ist Marcl 1867, gives a mean fall of 331 feet. I '.fe ..i'. 31 VICTORIA, 1868. 349 'ed and treated as a private supplied with water from a lly of a height suited to the b the Public Works Depart- or other hydraulic purposes, e owner, although invested cessary for works essentially ituled : " An Act to amend ;8." By the 31st section, )n of all lands, or real '"^tate, 1 for the use, constri, iiion i\', from, or at such public ecting the Public Works of iting to the acquirement of ment of Public Works vms 'or the water-powers, which was not, however, in 1861, ' in so far as lelated to that r. of mill privileges, under consideration, and its out, its chief aim is similar y'a " project, from which the owers could judiciously be indertaking, gave, as their t of " permanently securing, jlesome water." it appears that the water a feet, and kept at a height irbcuj of Montreal, and" in / " during a portion of last jross the lower end of this Inch will be attained when nt of the Montreal water- the 16th, 17th and 18th of lod at a height of 30-37 feet 1 it is intended to raise the ry, it varied from 2974 to ime a mean fall of 1 -24 feet i 30 feet as proposed, 3 feet, averaging 26-58 feet it r.t the dam. )'61 feet over datum, giving January to the 21st March, Although the water was backed up, in 1867, to a greater height on this point on the St. Lawrence, than is usually the case, tlie phenomenon is more or less of annual occurrence; so that, in ordinal^ "isons, during the greater parts of the months of Jan- uary, February and March, there is not a fall of more than from 4 to 6 feet, under the assumed level at the place where the dam is proposed to be built. Any opinion given as to the orobable effect which the construction of a permanent dam would hi've on the ice-jam b tlow, must, of necessity, be mere conjecture ; it being quite as likely that the height of back water, hitherto experienced, might be augmented, as that it would be dimini.shed ; in fact, the result is something which cannot be fore- seen or calculated upon, with the slightest degree of certainty. From the facts above stated, it appears, ti.at for a considerable pcjrtion of every winter (ice-jams and back- water continuing as heretofore), ther'^ would practically be no available pumping power to eifect the object, for which tiie memorialists mainly recommend the scheme ; nor, in- deed, a sufficient head of water to drive machinery suitable for manufacturing or milling purposes. In the memorandum submitted by the company it is stated, " That the erection of this dam will be followed by the packing back of the water on the lake above, itc, &c." and the probable rising of the lake level with its .ibutary streams. This view of the matter is doubtleos correct. By closing up the iio'tIj branch of the river, all the water would be forced into the south channel, where it would have to pass in a space of nmch less width than that at present occupied by the river, which would, of course, cause an elevation of tl;e surface level above. This increased height of the surface would, doubtless, bear some proportionate relation to the .-ection of the river closed, and would be such as to give the water a fall sufficient to produce a velocity which would carry off the whole natural flow of the river. The height, or distance up stream to which the rise would be experienced, it would be all but impossible, under any circuii;stances, to determine correctly in advance. But, from the class of information submitted on the part of the company, no " data " what- ever is afibrded on which to base any opinion relating to these important points. Indeed, when the magnitude of the river, the set of the rapids, and the irregularity of the channel at this: place is considered, it seems doubtful whether such details and formidd' as are applicable to ordinary streams, would be anything like a safe guide in attempting to form an opinion of the results likely to ensue from the construction of the proposed works. The banks of the river below Lachine, on the north side, and below Caughnawaga, on the .south side, are understood to be so high, ^hat they are unlikely to be flooded to any great extent. '''here is reason, however, to apprehend that a permanent rise in Lake St. Louis would, during periods of high water, result in considerable damage to several low islands in the lake, and to tracts •» low lands along its shore. The streams whicii nuv drain the surrounding country might also form channels for conveying wat-^r I'.to ihe interior. Thus the property of a Urge number of persona in no way connec • d with the enterprise would, in all probability, be injuriouslj' affected; and po.ssibly to an extent which, when fully ascertained, might prove to be a serious, if not unexpected, drain on the means of the company. There is no doubt that, could the proposed undertaking be successfully accomplished, it would greatly advance the maiufacturing interests of Montreal, and prnve to be a source of immensa benefit- to the whole community. Nevertheless, a project where so many individual interests are at .stake, and which is open to such serious objections, should not be entertained, unless it can be clearly shown that it is the best, if not the only way, of effecting tht? object. An enterprise of this kind, to lie really successful, should be so situated that the power is as little as possible liable to variation, or interruption. This, it has been shown, is unlikely to be the case, with water powers foi-med in the vicinity of Isle au Heron. It is, however, quite evident that the River St. La /rence, between Montreal and Lachine, can supply a very large amount of " unfailing ' water-power ; but iii order to secure this, the water must be drawn from the river ut a point considerably higher than a 250 QUEBEC LEGISLATION the place selected hy the St. Louis Hydraulic Company. That is to say : If, from some point within a few miles of Lachine, a canal of large dimensions were constructed, at such a distance from the margin of the river as circumstances required, an almost un- limited number of " unfailirg " water-powers might be formed. In this way the probable extent of damages could be foreseen and provided for, the risk of flooding of lands a\'oided, and the hazardous experiment of blocking up a large section of a river of such magnitude as the St. Lawrence rendered unnecessary. I have, (kc, JOHN PAGE, Chief Engineer, Fub/ic Works. Report of file Honourable the Minister of Justice, appi-ovedby Ilif Exrellency the Governor General in Council on the 13th January, 1869. Depautment of Justice, Ottawa, 11th January, 1869. The undersigned, to whom was referred the despatch of the Lieutenant Governor of the province of Quebec, of the 28th February last, [inclosing a bill, which he had re- served for the assent of the Governor General, intituled : " An Act to incorporate the St. Louis Hydraulic Company," has the honour to report : — That this company is proposed to be incorporated for the purpose of creating a water powor, bj' the erection of a dam across the River St. Lawrence, running between Isle au Heron and the northern l)ank of the river. The bill was reserved for your Excellency's assent, on the report of the Attorney General for Quebec, that, in his opinion, the second clause of the Act, which authorizes the construction of this dam, appeared to fall within the powers of tho Parliament of Canada, under the 10th paragraph of the 91st section of ths Union Act. As it is a matter of national importance to preserve the navigation of the great- est river in th Dominion from being obstructed, and, as it was the opinion of some professional men, thai the erection of the proposed dam would not only mjuriously affect the na\ igation ot the river, but cause great injury to property on or near its banks, thr undervtj(ned thoufs*" it expedient that a report should be obtained from the Chief Zngine*-i- of clie Department of Public Works on the subject. That report, a copy of which is hereunto a.mexed. was received by the undersigned on the 24th ultimo. The whole tenor of this repor^. aiiows that Mr. Page apprehends that the projected work would cause serious changes of a prejudicial character in the navigation of the river, and might be the means of injuiinp; pi'ivate property to an extent which cannot now \jf calculated. After such a rep'jrt, and without reference to the constitutionality of the Act, the uiidersigned is of opinion that it would not be sale, in the public interests, to allow this bill to l>ecome law He therefore recommends that your Excellency's sanction be not given to it, .ind that your decision, together with a copy of Mr. Page's report, be transmitted to the Lieut<'fiant-^Jo^'ernor of Quebec for his information. AU which is respectful!/ submitted. JOHN A. MACDONaLD. Memorandum submitted 'y the Secretary of the Provincp of Quebec respecting t/te Statutes of the Province of Quebec of 1868. On the Act 31st Vic, cap. 14, it is suggested that clause 2 "legislates on the subject of bankruptcy," inasmuch as it continues in force several Acts of the province of Canada on that subject for a further time. .'i' ? 31 VICTORIA, 1868. 251 say : If, from some i^ere constructed, at luired, an almost un- |ind provided for, the blocking up a large innecessary. PAGE, I, Public Works. c.Uency the Governor January, 1869. Lieutenant Governor )ill, which he liad re- 'j to incorporate the )urpose of creating a ice, running between )ort of the Attorney Vet, which authorizes )f tlie Parliament of I Act. ligation of the great- tlie opinion of somt not only mjuriously )erty on or near its uld be obtained from ibject. That report, 'signed on the 24th Is that tlie projected e navigation of the ixtent which cannot ality of the Act, the iterests, to allow this ot given to it, ,ind transmitted to the IACDOKaLD. eapecting tlve Statutes " legislates on the Lcts of the province At the time this Act was passed, the continuing Act of the Parliament of the Dominion was still unpassed, and, as the temporary Acts in question applied only to procedure in any possible cases still pending, wherein commission of bankruptcy had issued before the 30th May, 1849, it was not clear, but ihat the question was rather of '' procedure in civil matters," than of bankruptcy within the purview of the Constitutional Act. In the doubt as to which view might prevail in Ottawa, .'t seemed prudent to save the Acts, in so far, at least, as they might be held regulative nf civil procedure, by enactment here. Parliament has since confirmed them by the Act 31st Vic, cap. 20, in so far as they may be held regulative of bankruptcy proper ; .tr.d their continued validity cannot, from any point of view, be questioned. Perhaps it might be better to let them formally expire, enacted only, once for all, that such expiration shall not affect procedure in any wise, in any case pending under commission issued before the 30th May, 1849, as to which only they should remain in full force. Whether thi,s be done, or the Acts kept in the continuing Act, there is probably no need for concurrent action of the legislature with Parliament, and it is, therefore, : ot proposed here to legislate further in reference to them, unless at the instance of the Government of the Dominion, for the avoidance of the doubt above sugge.sted. On the 31st Vic. cap. 24, three suggestions are made : — 1. That it "be amended, expre.ssly limiting the powers of the companies to be established under it, to the limits of the province of Quebec." This Act is not one under which c.jmpanies are to be established, but merely a General Clauses Act, applying to companies to be established under special Acts. Taking the suggestion to mean, that another general clause to the above effect should be added to those contained in the .\ct ; the answer seems obvious, that such proposed limitative declaration either is law already, and, therefore, need not be enacted, or is not law, and, in that case, ought not to be ; whether it is law or not, may be said to depend on the sense given to the words used. Companies incorporated under a pro- vincial Act can have no right to recognition out of their province, as there capable of acting, unless in so far as the court under the laws there, may freeiy accord it ; nor even in their province, as capable of acting out of it, in contravention of any power prohibi- tive, or restrictive law, or public policy there subsisting, and in that sense their powers may be said to be limited to their province. But for a province to go further, and assume to set a limit in express words which may mean that thoy are absolutely incapable of contracting, or at all operating out of the province, could not well be tliought. Under such a restriction, the power to incorporate, would hardly subsist for any practical end. 2. That subsection 8 of clause 2, legislates on the subject of fisheries, which seem, by the Union Act, to belong to the Parliament of the Dominion. All it does is to make the gv^neral clauses apply to all cimipanies to be created by future Special Act, for carrying ou fisheries. But this is not legislating on the subject of fisheries. If, indeed, any of the general clauses interfered with any possible fishery legislation of Parliament, or fishery law of any kind, the case may be different ; although then the objection would be to such clauses, not to this subsection, but in fact they do not. Incorporating companies to carry on fisheries is no more legislating on fisheries than incorporating companies to hold and navigate ships is legislating on navigation and shipping ; or than incorporating companies for either of the-.e, or for trading purposes, is legislating on trade. Ihe objection, if good at all, would hardly leave the provinces power to incorporate companies at all. 3. That so much of this sub.section as authorized the incorporation of companies for the purpose of carrying on business in the waters adjacent to the province, and, there- fore, not in the province, would specially appear to be ultra vivg. As already remarked, there is nothing in this Act authorizing incorporation of companies at all. It merely affects such companies as the legislature may otherwise create. Till it shall have exceeded its powers, the fair presumption is that it will not. At the same time, the words qualifying the phrase, a " fishery or fisheries," to the end of the second line of this subsection, are of no value, and were, in fact, retained, by mere inarlvertence, from the Act of Canada on which this Act was framed. 252 QUEBKC LEGISLATION It would be well to amend the Act by striking them out. The appearance of laying down one special rule as to the local powers of this particular class of companies, would thereby be avoided. On the Act 31st Vict., cap. 25, which is for incorporation of companies by letters patent, the same three suggestions are made : 1. To the suggestion of an express limitation of the powers of the companies so to be incorporated, a sufficient answer (it is submitted) has been given. 2. To the objeccion on the ground of fishery legislation also, the answer above made, seems sufficient. 3. As to the words after " fishery or fisheries," in the first and second lines of sub- section 8 of clause 2 in this Act, it is admitted that they purport to authorize incorpora- tion of companies within the geographical limits indicated, and which limits extend beyond those of the province. As already stated, they were retained from mere inad- vertence, and might be well struck out in this Act, as well as in chapter 24. On the Act 31st Vic, cap. 37, it is suggested that clause 14 should be limited " to procedure in Recorders' Courts relating to municipal matters, as all legislation relating to procedure in general matters to the general Parliament." Tbi" Ac!t does not relate to Recorders' Courts generally, but only to that for tlie city of Montreal. And the limitation propo-sed " to municipal matters " would not answer, as the jurisdiction of the court, in matters not properly criminal, extends to other than merely municipal matters. The Act was passed under some pressure for time, at the instance of ihe corpora- tion of the city of Montreal. It is thought that the corporation were right in their view as to the expediency of the .simplification of procedure in this court, provided for by this clause. But it was, no doubt, in error, that the simplification purports to be thereby enacted, in respect of so much of that procedure, as is properly criminal. The proper course would seem to be for the corporation, or the provincial govern- ment, to obtain at the hands of Parliament the requisite legislation in this behalf. Should this be refused, it will become a question whether the clause, as a whole, may not have to be repealed, to avoid the inconvenience likely to arise from the concurrent subsistence of two procedures, and the doubts and mistakes likely to result from it. PIERRE J. 0. CHAUVEAU, Secretary of the Province of Quebec. Repor! ofth". Honourahle tlie Minister of Justice approved by His Excellency the Gover) or Genera! in Council on the 5th February, 1869. Department op Ju-stice, Ottawa, 2nd February, 1869. The undersigned has the honour to make the following report on the memorandum transmitted by the Secrjtary of the province of Quebec to the Secretary of State for Canada, on the 20th ultimo ; .such memorandum being on the subject of certain Acts passed in the last session of the legislature of the province of Quebec, respecting which a correspondence has been going on. 31st Vic, cap. 14. — The suggestion made in the memorandum, that the Act in question shall be allowed to expire at the end of the next session, so far as it aflfects the law of bankruptcy, is, in the opinion of the undersigned, the best mode of getting out of the difficulty. 3l8t Vic, cap. 24 ; 31st Vic, cap. 25. — The su^^gestion also made, as to the pro- priety of amending these Acts, is also satisfactory. 31st Vic, cap. 37. — The course proposed to be adopted with reference to this Act is also satisfactory, and the provincial government is requested to see that the Act in question be amended in accordance therewith. JOHN A. MACDONALD. ^ ^a*^p^la■t%!art^.»«*aw^!^*iiK■ i 31 VICTORIA, 1868. 2n^ learance of laying companies, would ipanies by letters 3 companies so to he answer above ond lines of sub- thorize incorpora- ich limits extend , from mere inad- er 24. d be limited " to !gislation relating iy to that for tlie ;ters " would not ninal, extends to le of the corpura- ;he expediency of use. But it was, ted, in respect of rovincial govern- n in this behalf, as a whole, may m the concurrent esult from it. SAU, ce q/' Quebec. Jieport of the Honourable tlie Minister of Jus/ice, apjrroved by His Excellency the Governor General in Council on the 22nd Feb'-nary, 1S(J9. Department of Justick, Ottawa, 19th February, 1869. In reference to the following Acts passed by the legislature of the province of Quebec, in the first session thereof, the undersigned has the honour to report as follows : — 31st Vic, cap. 46. — This Act seems objectionable on two grounds. — First, That it authorizes the obstruction of the River Richelieu ; and as, by the " British North America Act, 1867," rivers seem to be the property of the Dominion, it would appear, from a constitutional point of view, that the Act should be passed by the P«.rliament of Canada. Secondly, That the dam authorized by the Act is to be erected in the vicinity of the government canal, and that the backwater will interfere with the navigation of those canals. The attention of the government of Quebec is invited to the propriety of having this Act repealed. 31st Vic, Cap. 47. — This Act incorporates the Canada Marine Insurance Com- pany, and the second clause gives it power and authority, within the limits of the province of Quebec, to make insurances, among other things, against loss by the perils of navigation to any vessel, either sea-going, or navigating the lakes or rivers. Now, although it is provided that the ]iolicy is to be granted within the limits of the province, the risks, by the express language of the clause, may be taken on vessels going far beyond those limits. As the Union Act only gives power to the local legislatures to incorporate com- panies with provincial objects, it would seem that the Act is invalid in that respect. The attention of the goveriunent of Quebec is invited to the expediency of repeal- ing this Act. A similar one can readily be obtained from the Parliament of Canada. JOHN A. MACDONALD. incy the Goveri or iruary, 1869. the memorandum itary of State for t of certain Acts respecting which that the Act in i.r as it aflfects the of getting out of e, as to the pro- rence to this Act that the Act in :donald. 254 QUEBEC LEGISLATION QUEBEC— 32nd VICTORIA, 18(19. 2nd Session — Ist Legislature. Report of the Honourable the Ministei- of Justice, approved by His Excellency the Governor General in Council on the. ^th Koveinber, 1S69. Department of Justice, Ottawa, 3rd November, 1869. With reference to the Imperial "British North America Act, 1867," and also to the Order in Council of the 9th of June, 1868, on the memorandum of the undersigney the provincial legislatures, the undersigned has the honour to report : — That he considers the Acts mentioned in the annexed schedule, passed by tl e legislature of the province of Quebec, in the second session thereof (32nd Vic), to be fr«e from objection of any kind. He, therefore, recommends that the same be respec- tively left to their operation. JOHN A. MACDONALD. SCHEDULE. 32nd Victoria, chapters 1 to 3, 5 to 22, 2i, 25 to 62, 64 to 96. Eeport of the Ifononrabh- fhf Minist'-r of Justice, approved by His Excellency the Gox>ernor Gencmd in €inm»cU on the iHh November, 1869. Depahtment (» .TusTiCE, Ottawa, 3rd November, 1869. With reference to the ^following Act, passed by the legislature of the province of Quebec at its second session '(32nd Victoria), the undersigned has the honour to report as follows : — . . Thnt chapter 4, intituled : " An Act to define the Privileges, Immunities and Powers of the Legislative Council and Legislative Assembly of Quebec, and to give summary protection to persons employwi in the publication of Parliamentiiry Papers," is objectionable. By the 18th clause of the "British North America Act, 1867," it is enacted that the privileges, immunities and powers to be held, enjoyed and exercised by the Senate and by the House of GommonB of the Dominion of Canada shall be such as shall be, from time to time, detined by Act of the Parliament of Canada, but so that the same shall never exceed 'hose held, enjoyed and exercised at the passing of such Act, by the House of CommonK of the United Kingdom. It is to lie assumed that the power to pass an Act defining ttKiee privileges was conferred uprm the Parliaiment of Canada, on the ground that, without such a provision, the Parlianx tit of Canada cwild not have passed any such Act. It is clear, from the current of judicial decision in England, that neither of the branches of a colonial legislature has any inherent right to the privileges of the t .-« ' 32 VICTORIA, 1869. 265 Excellency the mber, 1869. and also to the undersignt\l, the provincial e, passed by tie 2nd Vic), to be same be respec- :!DONALD. 8 Excellency flie h smber, 1869. i the province of lonour to report Immunities and bee, and to give nentary Papers," is enacted that 1 by the tSenate such as shall be, so that the same 5uch Act, by tlie se privileges was sucn a provision, kt neither of the rivileges of the Imperial Parliament. Perhaps, however, under the legislative powers given to the Parliament of the Dominion, by the 91st section of the Union Act, to make laws " for tlie peace, order and good government of Canada/' it might liave passed an Act, without any enabling power from the paramount authority, establishing and defining the privileges of its two chambers. However this may be with respect to the general Parliament, it is to be observed that there is no clause in the Union Act, similar to the 18th, giving to the provincial legislatures power to define or establish their privileges, and that no general powers of legislation for the good government of the provinces, are given to their legislatures. Their lowers are strictly limited to those conferred by the 92nd, 93rd, 94th and 95th clauses of the Union Act. By the Act in question it will be seen that the legislature of Quebec has declared that the members of the legislative council and legislative assembly of that province, shall enjoy the same privileges as those exercised by the Senate and House of Commons of Canada respectively. It would seem, therefore, that this Act is in excess of the power of the provincial legislature. If it has any power to legislate in the matter at all, it seems to follow tliat, while the general Parliament can, under the 18th clause, confer no greater privileges, than those enjoyed by the Imperial House of Commons, the provincial legislature, being bound by no such limitation, might, if it were so disposed, confer upon itself and its members, privileges in excess of those belonging to the House of Commons of England. The legislature of Ontario having, at its last session, passed a similar A'-t to the one in question, the undersigned, on the 20th February last, made a report th treon to your Excellency, which you were pleased to transmit to the Secretary of State for the Colonies, i'or the purpose of being referred to tlie law officers of the crown in Ingland, and the Attorney and Solicitor General have given their opinion that it was not com- petent for the legislature of Ontario to pass such an Act. The undersigned recommends that the attention of the Government of Quebec be called to this Act, suggesting that the same should be repealed at the next session of their legislature. He also recommends that the copy of Lord Granville's despatch and of the opinion of the law officers of the crown, hereunto annexed, be transmitted with any Order in Council that miiy be adopted on this report, to the government of Quebec, and that their attention be particularly called to that portion of such opinion, which refers to the Act of the legislature of Ontario herein mentioned. JOHN A. MACDONALD. Report of tli/e Hononrable the Minister o/Junfice, approved by Iii)i Excellency the Governor General in Council on the 26th Xoveniber, 1869. Department of Justice, Ottawa, 24th November, 1869. With reference to the report of undersigned of the ;ird instant, relative to the Act passed by the legislature of the province of '.Quebec, at its last session, being 32 Vic, chap. 4, intituled ; " An Act to define the privileges, immunities and powers of the Legislative (Jouncil and Legislative Assembly of Quebec, and to give summary pro- tection to persons employed in the publication of Parlianienta-y Papers ; " And al.so to the correspondence with the government of Quebec on the subject, the imdersigned has now the honour to report, that in his opinion, it was not competent for the legislature of the province of Queb»»o to pass such Act, and he therefore recom- mends that the same .should not receive the confirmation of your Excellency. All of which is respectfully submittetl. JOHN A. MACDONALD. \_Proclamntioii dimllounng the Act above mentioned. puJ- 'ithed in thf " Canada Gazette" on the 4th day of December, 186'J. Vol. III. So. JJ, iMge -iSB?^ 266 QUEBEC LE(iISLATION, 33 VICTORIA, 1869-70. QUEJ3EC, 33rd VICTORIA, 1869-70. 3rd yEssioN — 1st Legislature. Report of the Honourable the Minister of Justice, approved by I/is Excellency the Governor General in Council on the 21st December, 1869. Department op Justice, Ottawa, 20th December, 1869. With reference to the Imperial " British North America Act, 1867," and also to the Order in Council of the 9th of June, 1868, on the memorandum of the undei-signed, relative to the course to be pursued with respect to the Acts passed by the provincial legislatures, the undersigned has the honour to report : — That he considers the Act passed during the present session of the legislature of the province of Quebec (33rd Victoria), entitled : " An Act to amend the law respect- ing the constitution of the Superior Court," to be free from objection of any kind. He therefore begs leave to recommend that the same be left to its operation. All of which, Ac. JOHN A. MACDONALD. Report oj the Honourable the Minister of Justice, approved by His Excellency the Governor General in Council on the 24th October, 1870. Department of Justice, Ottawa, 19th October, 1870. With reference to the Imperial "British North America Act, 1867," and also to the Order in Council of the 9th of June, 1868, on the memorandum of the undersigned, relative to the course to be pursued with respect to the Acts passed by the prodncial legislatures, the undersigned has the honour to report : That in his opinion all the Acts passed by the legislature of the province of Que- bec in the third session thereof, 33rd Vic. (excepting chap. 5, and including chap. 10, the latter having been already reported upon) are free from objection of any kind. He therefore recommends that the same be left to their operation. With respect to chap. 5, entitled : " An Act to uphold the authority and dignity of the Houses of the Quebec legislature, and the independence of the Members thereof, and to protect persons publishing Parliamentary Papers," the undersigned has great doubts whether the legislature had jurisdiction, for reasons analogous to those contained in his report on the disallowance of the Act of the previous session, entitled : " An Act to define the privileges, immunities and powers of the legislative council and legisla- tive assembly of Quebec, and to give summary protection to persons employed in the publication of Parliamentary Papers " to enact the said measure. As, however, the Act in question contains provisions necessary to uphold the Authority and dignity of the provinjial legislature, the undersigned deems it inexpe- dient to interfere with the operation of the Act. He, therefore, recommends that it, also, should be left to its operation, it being, of course, open t6 any parties affected by it to dispute, before the legal tribunals, the constitutionality of the Act. All which, ttc. JOHN A, MACDONALD. '. ' I,'.. ' ,"l I W. ■ ' ' - < ' ■IJIIIW I' „' I A QUEBEC LEGISLATION, 3-1 VICTOUIA, 1870. 257 QUEBEC, 34th VICTORIA, 1870. 4th Session — 1st Legislature. ;y the Governor ber, 1869. 7," and al: le undersigned, the provincial 3 legislature of le law respect- my kind. He »ONALD. ;j' the Governor ber, 1870. 7," and also to e undersigned, the prodncial ovince of Que- iding chap. 10, my kind. ty and dignity mbers thereof, (ned has great hose contained led : " An Act ;il and legisla- iployed in the to uphold the ms it inexpe- imends that it, s affected by it »ONALD. Report of the Hononrahle the Ministn- of Justice, approved liy If is Excellency the Governor General in Council on the 22nd September, 1871. Department op Justice, Ottawa, 16th September, 1871. With reference to the Imperial " British North America Act, 1867," and also to the Order in Council of the 9th June, 1868, on the memorandum of the undersigned, relative to the course to be pursued with respect to the Acts passed by the provincial legislatures, the undersigned has the honour to report : — That, after a careful consideration of the Acts passed in the fourth session of the legislature of the province of Quebec, held in the 34th year of Her Majesty's reign, he is of opinion that the same should be left to their operation, and he respectfully recom- mends accordingly. The undersigned, however, at the same time, begs leave further to report, that he entertains considerable doubt whether the Act 34th Vic, chap. 2, intituled : "An Act to consolidate and amend the law respecting licenses, and the duties and obligations of persons bound to hold the same," is not, in some respects, uHra vires. The Act imposes licenses and license fees on taverns, shops, pedlars, etc., in ac- cordance with the power given by the 92nd section of the Union Act, which gives to the provincial legislatures the exclusive power of making laws in relation to shop, saloon, tavern, auctioneer and other licenses, in order to the raising of revenue for provincial, local or municipal purposes. The Act. in question goes further, however, in several of its provisions, than to provide for ihe raising of revenue by charging license fees. It contains a number of clauses providing for the regulation of taverns, stores and shops, which have no connec- tion with any revenue purposes. Now, by the Union Act, the duty of all legislation relating to regulation of trade and commerce, is thrown upon the general legislature, and, in the opinion of the under- signed, several of the provisions of the Quebec Act referred to, are in regulation of trade and do not concern the raising of revenue. The undersigned, therefore, thinks it his duty to recommend that the attention of the provincial government be called to this matter, as worthy of their consideration. The Act is a beneficial one in itself, and is mainly a consolidation of the previously ex- isting law. . , 1 • 1 u It will be for any persons feeling themselves aggrieved by any action under the statute, to test the question of its validity in the courts. The Act, chapter 38, intituled : "The Municipal Code of the Province of Quebec, is, in the opinion of the undersigned, liable to the same objection as the one mentioned, and the same remarks are applicable to it. ^. . , " , ^■, . Chapter 36, intituled : "An Act to amend the i^ct 20th Victona, chapter 125, in- tituled : ' An Act to divide the Quebec Turnpike Roads into two separate trusts, and to make other provisions relative thereto." , » xi> • In the opinion of the undersigned, this is a private and local Act, affecting one of the assets belonging to the provinces of Quebec and Ontario jointly, and, as such, Jue notice should have been given of it in the Quebec Gazette, according to the rules of par- liamentary practice, which obtain in that province. _ , . The provision of the Act is, in itself, unobjectionable. It merely increases the number of trustees from five to seven persons. All which is respectfully submitted. All wnici p y j^^^ ^ MACDONALD. W 258 QUEBEC I.EOISLATION, 35 VICTOUIA, 1871. ^ QUEBEC, 35th VICTORIA, 1871. IsT Session — 2nd Leoislature. Memorandum of the Honourable the Minister of Justice, Department of Justice, Ottawa, 9th July, 1873. With respect to the Acts passed in the first session of the second legislature of the province of Quebec, held in the thirty-fifth year of Her Majesty's reign, no report was made by the Minister of Justice to his Excellency the Governor General. After careful consideration of those Acts, it was seen that they were all unobjec- tionable, and it was thought unnecessary therefore to make any special report, but to allow them to go into operation under the provisions of " The British North America Act, 1867." JOHN A. MACDONALD. ■. t5;'*n^*'>5!?"-'^-™r>i'-#w 'i'*«»t«i*»-t-'3-K'«»^»' !rr-*'-«if^i„"i ■HMfe (JUEUKC LK018LATI0N, 30 VUTOIUA, 1872. 259 QUEBEC, a6TH VICTORIA, 1872. 2nd SK8810N— 2nd Leoislature. uly, 1873. Tislature of the no report was re all unobjec- repprt, but to S^orth America )ONALD. Report of the Honourable th. Minuter o/Juxfu;-, approrrd hylli. Exeellemy the Governor ^ •' General in Couucil on the Uth JhUj, IS, S. . Depautmknt OP Justice, Ottawa, 9th July, 1873. With reference to the Acts passed by the legislature of the province of Quebec^ at the second session of the second legislature in the 36th year of Her Majesty s rei-^n 1872, the undersigned has the honour to report •— c e .\ " Thatv^ith the exception of chapters 13 and 16, which he reserves for further report ; and with the further exception of chapters 52, 53, and o9, he consulers a the Acts of that session unobjectionable, and recommends that they be left to their "'^"■w^t^h regard to chapter 52, he is of opinion that the 54th section of that Act deals witli the criminal law, inasmuch as it provides for the summary conviction before a mayoJ, or justice of the peace, of parties guilty of an assault on a constable, or police officen^^^^^ recommends that the attention of the government r^ Quebec be called to the expediency of repealing this clause at the next session of the leg^^ jt»re The same remarks will apply to the 46th section of chapter 53 ; and to the 33rd "'^'"The^'iSgned recommends, however, that these ^hree last mentioned Acts should be left to their operation, leaving it to any parties affected by the clauses objected to in this report, to dispute their constitutionality before the legal tribunals. All which is respectfully submitted. JOHN A. MACDONALD. Repor-t of tU Honourable the Minister of Justice, approved by His Exeelleney the Governor ' •' General on the 7th May, 187 4. Department of Justice, Ottawa, 7th May, 1874. To His Excellenct; tlie Governor General in Council : The undersigned has the honour to report that he has had under consideration A. A. DORION, Minister of Justice. 2fi0 guKHKc i.RfJiHLATioy, 37 vicToniA, 1873-74. > QUEBEC, 37th VICTORIA, lb73-74. Skd Session — 2m) Lecjislatube. Report of till' Iliminirahlf the. Minixtir of JuHtid', apprm^nl % //w Excellency the Governor (I'oni'rnl In Con tied on tin' JJfth Jnw, 1875. Depaktmknt of Justice, Ottawa, 3rd Juno, 1875. With rcfercnco to the (59) Acts passed by the legishiture of the province of Quebi'c, at the third session of the second legislature, in the .'J7th year of Her Majesty's reign, 1873-74, the undersigned has the honour to report : — That witli the exception of chapters 8 and r)5, he considers all the Acts of that session unobjectionahlo, and recommends that they bo left to their operation. With reference to chapter 8 " An Act to amend the Acts respecting District Magistrates and Magistrates' Courts in this Province,' the undersigned has grave doubts as to the constitutionality of this Act, which is already questioned before some courts of justice, but he is of ojiinion that, inasmuch as chapter 23, of 32 Viutorin, " An Act respecting District Magistrates in this Province," was allowed to go into operation, this Act should also be left to its operation. With reference to chapter 55, the undersigned is of opinion : That the powers given to the Ottawa Iron and Steel Manufacturing Company by the fourth section, to con- struct, maintain and use all necessary wharfs, piers and booms required for the purpose of the said company, are such as might interfere with navigation, and that section would seem therefore ultra viren ; and the undersigned, not deeming it necessary to interfere with the operation of the Act, recommends that it should be left to its operation, and that the attention of the Provincial Government of Quebec be invited to the expediency of repealing this section. All which is respectfully submitted. T. FOURNIER, Acting Minister of Justice, IMu. "ii4iiSi, 1 IMAGE EVALUATION TEST TARGET (MT-3) 1.0 ^1^ ^ 1^ !■■ IIIII22 I.I IK ■a lio 2.0 1.8 1.25 1.4 1 1.6 ^ 6" ► Photographic Sdences Corporation lied to these lake improvements in Te of lumbering on the safe and secure booms avigable waters of the oners of Public Works ; ect, and empowers Mr. subjoins (Appendix 3) • s of the legislature of tentionof the Minister such information as is as received the folio w- its mouth, above which or vessels ; consequently will in any way operate the power of disallow- Lieutenant-Governor of ^islation. [) BLAKE, Minister of Justice. ',, puhlhhed in the Canada . 18, page 5(j3.^ ptemher, 187G, Statutes of 38 VICTORIA, 1871-75. 265 bers of the Legislative iions." The same phrase th section, which provides mentaiy electors for the i^ned refers to the report , of 31st Victoria, of the th reference to the samo I the laws of the several e time of the union, shall vides." o elections for the legis- "To avoid confusion, the T^nion Act confines the name of Parlianmnt to the jroncral legislatuic, tho pro\inciaI Icgislatixi^ bodies are styled uniformly as legislatures." "'i'iio undfrsinned recoinmnntls that the attention of the (Joveriimeiit of ( Ontario 1)0 called to tliis section, and sugg(-sts that the same should be amended, so as to limit it, oxpressly to elections foi' the legislature of (Ontario." The unitoba should be called to the use of this phrase, with a suggestion that it should be amended, so as to limit it e.xpressly to electors for the legislative assembly of Manitoba. APPENDIX 2. E.ftract from Report of Minister of Justice of 16th September, on the Acts oj the Leyia- lature of Nova Scotia, 38 Victoria, 1S75. With reference to the Acts, the undersigned would refer to his appi'oved report of L'7tli October, 1875, upon the Prince P]dward Islanl Act, to incorporate the Merchant .Marine Insurance Company of Prince Hdward Island, which contains the following liiniiuage ; — " It appears to the undersigned that, under the express language of this clause, it i-; attempted to give the company power to do an insurance business with persons not residents of the jjrovince, in resjject of risks on vess(!ls not touching provincial jwrts ; in a word, to do a uni\ersal insurance Inisiness. The pqwer of pi-ovincial legislatures to incorporate iiisui'ance companies is to be found, if at all, in the 1 Ith subsection of the- !)L'nd section of the " Biitish North America Act, 18C7," which gives to the lo<;al legislature authority to make laws for th<> incorporation of companies for provincial objects. It ajjpears to the undersigaed that the powers attempted to be conferred on this (•oiui)any, are beyond any fair construction of these words." The undersigned would also refer to the a})proved refwrt of 1 6th November, 1875, which refers to the Ontario Act to incorporate the Canada Fire and Marine Insurance Company, which contains the following language : — "The powers proposed to be conferred by this Act appear, to the undersigned, too wide. It authorizes the company to effect policies of fii'e insurance with any persons or bodies corporate, and to make contracts of marine insurance with any persons in respect to losses to vessels navigating any waters, from or to any ports. It is not provided that the chief place of business shall be in the province. Power is given to comply with the laws of other provinces or states, wherein the company may carry on business, and the ' Canada ' introduced into the name, is, of itself, indicative of more than provincial ]iower. On the .31st March, 1875, chapter 32, of the statutes of Nova Scotia, for 1874, was disallowed, upon the grounds applicaljle to this Act." The language quoted appears to apply to all tho Acts now under consideration. Chapter 76 indeed does not expressly authorize the doing of a universal insurance business, tiiough its language is wide enough for such an interpretation, but the corporations treated or perpetuated liy the remaining Acts, swe expressly authorized to do universal marine insurance business. The undersigned recommends that the attention of the Lieutenant Governor of Nova Scotia should be called to the suggested difficulties, with an intimation that, subject to such observations as he may make, it would seem that these Acts cannot bo left to their operation. APPENDIX 3. Extract from Rej^ort of Minister of Justice of 15th September, 1S7(j, on the Statutes of Nova Scotia, 38th Victoria, 1875. Chapter 89. '' An Act to incorporate the Colchester Driving and Manufacturing Company." This Act authorizes the company to build dams, sluices and breakwaters, and otherwise improve Little River, in Brookfield, in the county of Colchester and its S W 266 QUEBEC LKGIShATION trilmtariea, so as to niakc! the samp, navigahic for lo<,'s, timber and liimlier, and to levy tolls for conveying logs, timber and luml)Pr down sucli I'iver and its tributaries : and it pi'ovides for a lien on all logs, itc, passin'^ tlirou^nl! the dams, Ac, and for the enforce- ment of such lien. The (ith section pro\ ides tiiat nothing in the Act contained shall be construed to authori/e the company to interrupt, hinder or prevent the navigation of any navigable ri\er or other navigable watei'. Chapter 90. " An Act to incorporate the St. Margaret's Bay Lumber and Timber Driving Com])any." This Act gi\es substantially the same powers with reference to the Ingi'aham and Indian Mivers, and their tributaries. Chapter 91. "An Act to incorpoi'ate tiie Cumberland Driving Company." This Act gives substantially the same powers with reference to the Moose River, Apple lliver. Half- Way River and River Hei)ert, save that the power to levy tftlls is i;onfined to levying tolls fur conveying logs, itc, down such of the livers as the company shall have so im])ro\ed, as to make navigalile for logs, timber' and lumber. Chapter 92. "An Act to incorporate the Liscomb River Driving Company." This Act gives substantially like powers as are given by chapters 89 and 90, with reference to the east and west l)rancties of the Li.scomb River and their trilmtaries, but it does not contain the restrictive clause, providing the company l)e not authorized or empowered to interrupt the navigation of any nasigable waters. The undcM'signed is not aware whether any of the rivers referred to in these Acts are to any extent at present navigable. If so, none of them can be said to be wholly un- objectionable, as ti.ey appear to authorize the companies to levy tolls, not merely for the conveyance of the logs through the improvements, but also for their passage down those parts of the rivers wliich are navigable. It is further to bo observed, that it might become an irapoi-tant <|uestion, whether works of this kind should be constructed under local authority in important navigable rivers, the navigation of which might, by a small expenditure, be improved. Chapter 92 is open to the additional objection that the restrictive clause is not inserted. It is presumed that none of these rivers are of great importance, and that no serious embai'rassment will result from the operation of the companies. Of course they do not in law, by these local Acts, acquire any power to interfere with the free navigation of such partfj of the river as are navigable, and upon the whole the under.signed submits that, notwithstanding the ditticulties to which he has referred, they may be left to their operation, the attention of the Lieutenant Governor being called to the difficulty. PAPERS RE RYLAND. • Mr. Ryland to Mr. Secretary De Bouchertnlle. Montreal, 8th February, 1875. Sir, — Although I have already written to Mr. Attorney-General Church on the subject of the bill introduced by him for the subdivision of the registry office for the registration division of Montreal, as the measure, if it passed, materially and injuriously affects the arrangement between the Imperial Government and myself, under which J hold office, I deem it right ollicifiUy, to bring the matter under the notice of his Excel- lency the Lieutenant Governor in Council, in order to guard against a possible plea of want of knowledge on the part of the Quebec Government in regard to my vested right. And that there may be no mistake in any quarter on the sul)ject, I have, by this day's mail, brought the whole matter under the notice of his Excellency the Governor Gei\ez'al, representing tlie Imperial Government. I have, (fee, G. H. RYLAND. « I- 38 VICTORIA, 1874-75. •2G7 and liimlier, and to levy id its tributaries : and it tc, and for the enforce 16 Act contained sliail tic ;nt the navigation of any- Bay Lumber and Timber era with reference to the riving Company." This nose River, Apple River, levy tf)lls i.s i;onfined to the company shall have 'riving Comjiany." This 9 and 90, witii reference ributaries, l)utit does not .uthori/.ed or empowered sri'ed to in tliese Acts are be paid to be wholly un- 7 tolls, not merely for the their passage down those observed, that it might jld be constructed under 1 of which might, by a 1 restrictive clause is not impoi'tance, and that no (ipanies. Of course they I with the free navigation the undersigned submits they mpy be left to their id to the difficulty. ille. iih February, 1875. -General Church on the he registry office for the laterially and injuriously id myself, under which 1 tlie notice of his Excel- igainst a possible plea of egard to my vested right, subject, I have, by this Excellency the Governor Mr. liyland to His K.tri'll.fvri/ the (•'orcnior d'l nera/. MoNTUK.\r., 8th February, 1875. My Louu,— Mr. Attorney-Ueneral'Church having introduced a bill in tlu^ logisla- tive assembly of Quebec to subdivide the registry office for registration division of Montreal into three divisions, I take the liberty of inclosing a copy of a comnninication 1 have made to him on the subject. In the year 1856 the then Attorney-General, nov.' i»Ir. ^nstice Drummond, brought in a bill for the division of counties for registration purposes. It included a clause (lividuig M(jntreal into two offices. This, his E.xcellency 8ir Edmund Head, insisted on being struck out, on the ground that it would interfere with the arrangement between the Imperial Government and myself, under which I held office, and might lead to unpleasant correspondence between the two governments. The present bill is of a much more objectionable nature, and lias been introduced, as I am credibly informed, for the s.ole purpose of rewarding certain members for their votes and support of the Tanneries scandal investigation. The late .season of the session at which it has been introduced may perhaps prevent the determined opposition by the landed proprietors, and the legal profession in Mont- real, which would otherwise have been offered to its passage through the House. Rut, as the measure will materially interfere with the guarantee under which I hold office, I respectfully submit that it is precisely one of those cases in which you would be justified in taking steps to protect vested rights, involving the honour of the crown you represent. T have, Ac, i G. H. RYLAND. Mevwrial of Mr. Rylami to the Governor General. To His Excellency the Right Honourable the Earl of Dufferin, Governor General, etc., etc., etc., and the Honourable the Privy Council of the Dominion of Canada : The petition of George H. Ryland, Esquire, respectfully showeth :— That your petiitioner, in 1841, held the imperial and patent appointment of regis- trar and clerk of the executive council of Canada; That on public grounds, and at the request of Her Majesty's Lord High Commis- sioner* your petitioner, though not compellable to do so, consented to surrender this office, and to receive in lieu thereof the registrarship of Quebec, subsequently transferred to Montreal, with the guarantee of the representative of the crown ; That this arrangement was afterwards adopted and confirmed by the legislature ot Canada in a joint address by both branches thereof to Her Majesty, dated 17th April, That it was further adopted and confirmed by the House of Lords, on resolutions proposed and carried by His Grace the Duke of Argyle, on the 10th May, 1850 ; That the bill lately passed by the legislature of Quebec, to divide the registration division of Montreal into three, virtually does away with the office conferred on your petitioner, as aforesaid, and will have the effect of depriving him of the income and ad- vantages guaranteed by the arrangement between the representatives of Her Majesty and himself ; 1 ' ' G. H. RYLAND. ♦See Lord John Rusaeirs despatch, No. 62, dated 20th July, 1855. ■Kl 268 QUEBEC LEOI8LATION Wherefore, your petitioner prays that your Excellency in Privy Council will take such steps, as in your wisdom may he thought proper, to protect him in his vested rights and to arrest a measure at once injurious to the public, and involving the faith and honour of tiie crown. And your petitioner, etc. ^ Montreal, 27ih February, 1875. (J, H. RYLAND. Petition from Memhern of tfie Legal Pro/ension, d, ivh <,'()iioiHely ivs possililc, to point out tlio injiiriouH nuinner in which tho Act in cjucstion, if allowed to go into operation, will affect my olficiiil incoiiu^ and position. " Under my eonunission as registrar of the registration division of Montreal, my jurisdiction extends not only ov(^r the city of Montreal, hut all the luiighhouring jxirislies, inciluding the counties of Hocholaga, Jaccjues (Jartier, Isle Jli/.ard, and, in fact, the whole island of Montieal, the < hole extending over a length f)f upwards of forty miles ; whereas, by tho pitiscnt Act, I shoidd bo restricted to an area of about five miles, flanked on both sides hy the growing portions of the city. " The Act of the local higislature over-riding the whole of the arrangement between the crown and myself, anil without the slightest provision to compensate nie, divides the present registration division into three. "The first is to comprise the I'kst Ward, the St. Mary's, the St. Jacques, the Huint Louis and the Saint Lawrencci Wards, in all of which transaction.s, requiring registration, are daily passed. " In fact, I may add that about one-half of th'3 receipts of my office are derived from those (juarters, including tho growing village of St. Jean Btt|)tiste, which is also taken away from me. " Tho second division is to comprise the Centre, Western, St. Antoine and Ste. Anne's Ward, within tho city limits. "The accompanying map will show you what this is. It contains the old part of the town, comprising the public buildings, courthouse, large stores, churches, banks, squares, colleges, seminary, and V)eing with the exception of a narrow, unbuilt strip, mostly property which never changes hand, and, indeed, where there is seldom a tran' action pushed requiring registration, and I think I nni perfectly safe in saying that the receipts therefrom would not pay the current expen.sea of the office. " This portion, however, of my present office I am genewnsly allowed to retain. " The third division, comprising the counties of Hochelaga and Jacques Cartier, including all the parishes fron the east end of Dorchester street to Bout de L'Isle, is about the most important, ant as regards registration, the moat improving portion of my division, destined hereaftiir to provide a remunerating income to the registrar, because the whole French-working portion of the population, as well as the shipping interests and traffic, are moving that way." 6. With reference to the petition of Mr. Ryland, the undersigned has examined into the facts relative to his appointment, and they appear to him to bo correctly detailed in the address to Her Majesty of the legislative assembly of the late province of Canada, passed in the year 1846, founded upon the report of a select committee made after a careful consideration of the documents and correspondence, which address is in the following words : — "We, your Majesty's most dutiful and loyal subjects, the legislative Jissembly of Canada, in provincial parliament assembled, humbly beg leave to approach your Majesty with our renewed expression of devoted attachment to your Majesty's royal person and government. " We humbly beg leave to lay before your Majesty t^e particulars of a case which has resulted in serious injury to the circumstances of a faithful subject of your Majesty, and we beg permission to submit for your Majesty's gracious consideration : " Previous to the union of the provinces of Upper and Lower Canada in 1841, the office of clerk of the executive council of the latter province was held by George H. Ryland, Esquire, he having been appointed thereto in October, 1838, and having suc- ceey the clerk, to the president of the council, and in elVect- ini; this iiriangeinerit liis ijordsliip ])r(>pose(i to Mr. Hyland to surreiuier tlu! appoiiit- iijint, mid to accept in its stead the ollice of rcgi.strar of deeds in the then judicial district of (Quebec, at the same time guaranteeing to him an annual income, from the enmluments thereof, (>(|ual to tli(! sum of .£!')ir) currency, to which \w would be entitleid lis a retiring allowance under tlie imperial .statute, I and "> NVin. IV'., chap. 21. " Mr. K.yland, on being thus guaranteed, and having reason to expect that the eiiiolumonts of the ollice oti'ered to him would amount in tlie first year to a large sum. ;illiirding him ample compen.sation for vacating his original one, acceded to their pniposal, and placed tiio latter at his Exc(dlency s disposal. " Hut he exprt!S8ly stipulated in his acceptanci; of his new appointment, as well as in answer to the circular of his Kxcellency, Sir II. .Jackson, Administrator of the Gov- ernment, dated IHth I)ecend)er, 1841, that in the event of the registrarshipof the said district of Quebec not proving etjual in value to his apjiointment as clerk of the executive I'ouncil, the sum guaranteed was not to be considtsred as compen.sation in full, either f(ir relinquishing that ollice, or for his claim u\ j > he goveriunent. " The Registry Ordinance of Lower Canadi .1 ,! not come into operation until the .'ilst December, 1841, and the time within whicb n'l existing deeds were to have been enregistsred, and from which the groat amr"">i, of remuneration would have resulted, was extended, until, eventually, a mater ' ;ilteraiion wii.^ made in the registration 1 "w, establishing county instead of district registry offivca, and causing Mr. Ryland to come registrar of the county, instead of the di;)i '-ict of tiuebec, notwithstanding his reinonstranc:^ ; and this alteration had the efl'e pot oid} of depriving Mr. Ryland of a 1,'ioat proportion of the remuneration resulting fmrn these arrears, but also of essentially reducing the annual income of the office. " It is true, that at a subscqm^nt period, namely, on the 8th July. 1845, Mr. Ryland was transferred to the more important offii^i of registrar of tin; county of Montreal, whi( h he now holds, but the reports of the commissioners appointed to examine into the ref,'istry offices, establish that both ofHces have been sources of labour and expense, rather than of profit. " From the circunstances hereinbefore detailed, the legislative assembly feel that tiie case of Mr. Ryland is one of great hardship; that liis claims, the justice of which have been officially recognized by the late Governor General, Lord Metcalfe, ought not to be avoided nor overlooked, and that he has a right to expect that the contract between the Governor General and him, of which he has performed his part, should be carried out by the imperial government according to its teniiS, or as that may now be impossible, that he should be fully compensated for the non-fulfilment thereof. " We, therefore, in reviewing these circumstances, humbly beg permission to call Mr. Ryland's claims, as herein set forth, to your Majesty's gracious notice, and we humbly pray that your Majesty will be pleased to take them into your most favourable consideration, and direct such measures to be adopted therein, as your Majesty, in your wisdom, may find them to deserve." 7. Mr. Ryland, at the date of this address, held his present office of registrar of Montreal and he claimed amongst other things the performance of Lord Sydenham's ;'Uiirantee of 23rd August, 1841, referred to in the address, and which was in the folliiwing words : * * * * " But as it is possible that the emoluments of the registrar- shijj of Quebec may fall very far below those of your present office, his Excellency is willing to guarantee to you an 'ncome etjual to the sum to which you would be entitled as a retiring allowance, were your employment in the public .service altogether discon- tinued. " Assuming your income on an average 3f the last three ysars to be £1,030, cur- lency, and your length of service as a public officer to be 24 years, you would be entitled under the scale established by the 4 and 5 William IV., chap. 24, to a retirement equal to one-half of your emolument, or £51.5 currency. m 979 QUEBEC LEGISLATION. " TV '.t amount, therefore, his Excellency is willing to guarantee to you by maki up your emoluments from the employment in the pul)lic service which may hei cat'iei' assigned to you, to that extent, should they be insuHieient of themselves to do so — shoi they exceed it, you will of course be entitled to the excess." 8. It seems admitted on all liands that Mr. Ilyland's transfer to the registrarsli did not ail'ect his position, and that for all material purposes he stood and stands on t same ground, with reference to the registrarship of Montreal, which he occupied \vi refei'ence to that of Quebec. 9. For some time, while both the imperial and colonial governments admitted tl: Mr. Ilylaml's claim had a just foundation, each government submitted that the respoii Vjility of settling these claims rested with the other. 10. In tlie cour.se of these discussions, on the 10th of May, 1850, the House Lords passed resolutions upon the subject, expressive of the opinion that Mr. llylani claims ought not to be avoided or overlooked, and that he had a right to expect tl the agreement entered into between him and the Governor General, of "hichheh performed his part, should be carried into effect according to its terms ; or, as that miji then be impossible, that he should be compensated for the non-fulfilment thereof. 11. On the 20th July, ISoo, Lord John Russell, then Colonial Secretary, add re.sf the then governor, a despatch in the following words : — " The attention of Her Majesty's Government has again been called to the case Mr. G. H. Ryland, formerly clerk and registrar of the executive council of the unit province of Canada. " This case has been repeatedly brought under the consideration both of the Imper and of the colonial governments, but no decision has been arrived at which can be C( sidered satisfactory, because, whilst both governments have admitted that the claims Mr. Ryland have in themselves a just foundation, each o!! those governments hfi contended that the obligation of satisfying those claims, rests with the other. " In 1846 the case was very carefully investigated by a committee of the ''olon legislature appointed for that purpose. " The report of the committee was : — " 'That Mr. Ryland's claims, the justice of which has been recognized by the Governor General, Lord Metcalfe, ought not to be avoided or overlooked, and that he a right to expect that the contract entered into between him and the government, of w he has performed his part, should be carried out according to its terms, or, as that now be impossible, that he should be fully compensated for the non-fulfilment the " ' In the same year Lord Grey, then Secretary of State for the Colonies, replier an address founded on this report, that neither he nor his predecessor disputed Ryland's claim to compensation for whatever loss he may have sustained by the render of his office as clerk of the executive council ; and Lord Grey directed ] Cathcart, then Governor General, 'strongly to urge on the House of Assembly necessity of their providing for the reasonable compensation of the claimant.' " It appears, therefore, from these, as well as from other facts connected with case, that Mr. Ryland has failed hitherto in securing the satisfaction of his chiim.s, from any dispute as to their justice, but from difficulties in adjusting the manne which compensation should be found. " Considering the peculiar circumstances under which Lord Sydenham was sen Governor General to Canada, and the large powers with which, for special purposes was invested, Her Majesty's Government arc prepared to admit that the promise w' he made, he had sut.icient authority to make. They admit, further, that that autho came from the imperial government, and belonged to his position as representativ the crown. On the other hand, it will not be disputed that the arrangement whic proposed to Mr. Ryland, and which that gentleman was induced to accept, svas exclusively connected with colonial afTair.s, and that whatever advantages attendee were expected to attend it, wore derivable by the colony alone. " The peculiarity of Mr. Ryland's case does not depend only on the specific wri promise given by Lord Sydenham. 38 vrcTOBiA, 1874-75. 273 ,'U!irantee to you by makiiiL; 'ice wliicli may heicat'Lei' ii" themselves to do so — should •ansfer to the rej^istrarship ? lie stood and stands on tlie 'eal, which he occupied witli governments admitted that suhmitted that tlie responsi- if May, 1850, the House of ?, opinion that Mr. Rylaiuls had a right to expect that )r General, of which he had o its terms ; or, as that might ion-fulfilment thei'eof. Colonial Secretary, addressed in been called to the case of lutive council of the united deration both of the Imperial arrived at which can be coii- ! admitted that the claims of 0? those governments have ists with the other, a committee of the '-olonial ; been recognized by the late 3r overlooked, and that he hiis and the government, of which r to its terms, or, as that may r the non-fulfilment thereof. ,te for the Colonies, replied to his predecessor disputed Mr. lay have sustained by the sur- ,nd Lord Grey directed Lord the House of Assembly the )n of the claimant.' •ther facts connected with the satisfaction of his claims, not in adjusting the manner in h Lord Sydenham was sent as 'hich, for special purposes, he admit that the promise which t, further, that that authority position as representative of hat the arrangement which he ks induced to accept, was one tever advantages attended, of ilone. nd only on the specific written " It is further distinguished by the circumstance that that promise was given in order to induce Mr. Ryland to take a step which, (m the faith of that promise, he did take and which otherwise he would not have taken. He was induced to resign an office, of which he was in actual possession at the time. " Thus the loss to which he has been since exposed, has arisen not merely from dis- appointed expectations, but from the sacrifice, voluntarily made, of advantages which he had actually enjoyed, and of which he might have retained possession. " It cannot be satisfactory either to the imperial or to the colonial government, that an individual should be placed in such a position from such a cause, and Her Majesty'? Government hope that tho colonial government will readily co-operate with them in finding a solution of the dithcu'ty, which has hitherto impeded a satisfactory fiettlement of the case. " It appears to Her Majesty's Government that this object would be best attained hy the appointment of a commissiou to examine and report upon the fair amount of compensation which would be due i^o Mr. Ryland under the terms of Lord Sydenham's guarantee. " Should it appear from their repo''t, that a certain amount of compensation is still due to Mr. Ryland, Her Majesty's Government would be prepared to propose to Parliament to share equally with Canada the burden of providing for the payment of that amount to Mr. Ryland." 12. The Canadian Government acceded to the proposal that a commission should be appointed, but with the understanding that it should not be thereby pledged to pay any part of the compensation. 13. Mr. Carter, Chief Justice of New Brunswick, was appointed commissioner. The basis of that gentleman's award, which by no means met the expectations of Mr. Ryland, was the guarantee of Lord Sydenham, already quoted. The Chief Justice in his award makes the following observations, viz. ; — * * 5fS-S|t* * * Ms " The construction of this guarantee is perfectly clear, and free from any doubt. It guarantees Mr. Ryland an annual income of £515 currency, to be derived from the emoluments of some public office, or to be made up from some other source, in the event of these emoluments njt being ecjual to that amount, and in furtherance of such guarantee, the registrarship of Quebec is offered to Mr. Ryland," 4 ***** *** " I proceed to state the principle on which it appears to me the amount due to Mr. Ryland, under Lord Sydenham's guarantee, should be ascertained, and tho result of the application of that principle. I have already stated what appears to me the plain and obvious construction of that guarantee, viz., to secure Mr. Ryland a clear annual income of of £515 currency. It was, therefore, necessary to ascertain in each year, since the giving of tho guarantee, whether the profits of his office have been equal to the amount, and, if not so, how much has been the deficiency, wherever there has been such defficiency. I think Mr. Ryland should be allowed such an amount as would have made u{) his income for the year to £515, and interest on such amount from the eml of each year. Mr. Ryland has received, since his relinquishment of the office of clerk of the executive council, the annual sum of £111 from the Canadian Pension Fund, which, I think, ought, pro tanto, to ,be taken as fulfilment of the guarantee. Tho payment; did not commence till 184:i, when three years' arrears were paid, and, I tl. Ilk, Mr. Ryland should be allowed interest on £111 for the.se years. This allowance .sfonis to have been suspended from the end of 1845 till the commencement of 18.Jl, when the arrears were paid, and I think interest should be allowed for that period. In as 'ertaining the amounts of annual receipts and expenditure in the offices of Mr. Ryland, at Quebec and Montreal, I have been, of necessity, obliged to rely on the returns made to the Canadian Government, and the books of the officers, nor liave I the least reason to doubt the correcui^ss of the statements derived from these sources." 274 QUEHEC LEGISLATION "I annex to this report a sheet marked (K), sliowing the manner in which I 'lave ascertained the amount of i>7,735 r2s. 6d. ourrency, which amount I beg to report as what appears to me th« fair amount of compensation due to Mr. Ryland. under the terms of Lord Sydenham's guarantee, up to the end of the present year (1856). I am not at all sure tliat my instructions re(|uire rae to go any further than this, but inasmuch as Mr. Ryland may have further claims, under Ijord Sydenham's guarantee, should his ofKce, in future years, not yield him an income of £515 currency, I venture to make one or two suggestions for the immediate .settlement of future claims. One mode which might be adopted, with the sanction of the Canadian Government, would be to increase Mr. llyland's allowance of £111 per annum to £515 from the Pension Fund of Canada, on Mr. Ryland resigning his present office. Should this not bo practicable, as I find the average amount for the la»st seven years, chargeable under Lord Sydenham's guarantee, would be about .£140 per annum, I should say that if a sum of £1,2G4 7s. Gd. were added to what I have already reported as due in the past, making in all the gross sum of £9,000 currenc}', that would be a fair and proper amount to be p lid to Mr. Ryland as a final settlement of all his claims under the guarantee of Lord Sydenham, the annual allowance of £111 from the Pension Fund being of course, continued." 14. It win be observed that Chief Justice Carter took the view (which appears to be clearly correct) that the compensation tft be given Mr. Ryland under Lord Syden- ham's arrangement was as follows : — 1. That he should become the registrar of Quebec, for which office the registrarship of Montreal was afterwards substituted. 2. That in case the emoluments of the office should in any year not yield him £515 currency, being the amount of the retiring allowance to which Mr. Ryland was, at the time of the arrangement, entitled, the amount should be made up to him. 3. That the Canadian pension of £111 leceived by Mr. Ryland should betaken, pro tanto, as a fulfilment of this guarantee. Chief Justice Carter, upon this basis, calculates the amount due up to the end of 1P56 at £7,735 12s. 6d. currency, and being the calculation of the emoluments of the registi'arship of Montreal for the future, upon the average of the preceding seven years, he estimates a gross sum of £1,264 7s. 6d. as be'ng the capitalized value of the future claims of Mr. Ryland, by reason of future deficiencies in these emoluments. 15. The Imperial Government declined to accept, in ihe terms of Lord John Russell's despatch, the award of Chief Justice Carter. 16. The Canadian Government at first declined to bear any portion of the expense, but ultimately, on the 27th October, 1858, they advised that Parliament should be recommended to pay Mr. Ryland one half of the award. This recommendation was made and acted upon. 1 7. It seems to them, that the compensation of Mr. Ryland consisted in part of the office to which he was appointed, and, in addition, of a money payment to meet the amount by which the annual emoluments of the office might be less than his retiring allowance ; that the money payment was finally .settled by the award of Chief Justice Carter, and that to deprive Mr. Ryland of his office would be to disturb the arrange- ment. IS. It is quite plain that the private or vested interests of an individual are not to be suffered to over-ride the interests of the public, and that governments and 1< gis latures are entitled, notwithstanding the existence of such private or vested interests, to alter the compensation of public officers in whatsoever way the public good may demand ; but, even when the public officer has received his appointment in the ordinary way, and not as a matter of contract, it seems to be the general rule that he should receive reason.salile compensation for individual lo.ss inflicted on him by the change. 1 9. This rule is, however, subject to modificatior^, when it i.s considered that salaries have become excessive, or that the fees of an office have incnwised beyond reasonable limits, in which cases reductions have occasionally been made without compensation. Resides, a violation of this general rule, in matters purely local, would not, by itself, furnish ground for disallowance. 38 VICTORIA, 1874-75. the manner in which I 'hich amount I beg to ,tion due to Mr. Ryland. end of the present year 3 to go any further than under Ijord Sydenham's ncome of £n\5 currency, tlement of future claims, e Canadian Government, anum to £515 from the oitice. Should this not years, chargeable under m, I should say that if a [•ted as due in the past, a fair and proper amount under the guarantee of m Fund being of course. view (which appears to yland under Lord Sj'den , office the registrarship of year not yield him £515 Mr. Ryland was, at the up to him. tlyland should ^)e taken, mt due up to the end of t the emoluments of the he preceding seven years, ilized value of the future emoluments. he terms of Lord John y portion of the expense, b Parliament should be 'his recommendation was 'land consisted in part of aey payment to meet the be less than his retiring le award of Chief Justice le to disturb the arrange- of an individual are not governments and l.gis- ivate or vested interests, ■ay the public good may Dointmcnt in the ordinary ^ral rule that he should n him by the change, is considered that salaries reased beyond reasonable le without compensation, oal, would not, by itself. 20. Mr. Ryland, however, puts his case on .somewhat a higher ground, pointing out that he was absolutely entitled to a retiring allowance of a considerable amount, and that it was, in part, compensation for this allowance, that he received his office. Interference with his emoluments, under such circumstances, may fairly be said to be open to objections more serious than those which might applj' were he an ordinary office holder ; and certainly, in case the public good requires such interference, it should be accomplished in such a manner as to do the individual the least possible injury. 20^. By the statements which the undersigned has quoted it would appear that, under the Act in question, Mr. Ryland's registration district is to be divided into three parts. That the more valuable and remunerative divisions are to be taken away, and that he is, without compen.sation for the loss of the others, to remain registrar of the least valu.ible, and, as he alleges, an absolutely unremunerative division. 21. Thus, both the general rule to which the undersigned has adverted and the special circumstances of Mr. Ryland's case, appear to have been ignored. No provision is made to compensate him for the loss he must sustain by the with- drawal of any part of his district. Circumstances may be conceived which might justify the absence of such a pro- vision ; but he is not even retained as the registrar of the most valuable of the new districts, and the undersigned is unable to reconcile with a just appreciation of Mr. Ryland's position, the abstraction from him, in order to confer it on another, of all that makes his office valuable. 22. Upon the petition of the landed proprietors, capitalists arcl other citizens of .Montreal, the undersigned would observe : That the signatures to the petition are of the most respectable and weighty character, and that its representations do certainly deserve the greatest consideration at the hands of those entrusted with legislative power in the matters to which they relate. These matters, however important, are nevertheless essentially of a local character. The representations should be addressed to the government and legislature of the province of Quebec, and had they stood alone, the undersigned could only have recom- mended the reference of the petitioners to the local government and legislature. 23. But under the peculiar circumstances which attend the case of Mr. Ryland, involving, as the discussions show, the unsettlement of arrangements of long standing, in which the imperial as well as the colonial governments were concerned, raising also plausible claims for consideration, and, as Mr. Ryland insists, strong claims for com- pensation at the hands of the Imperial Government, of the Canadian Government, which is bound to meet the pecuniary liabilities of the late province, and of the govern- ments of Ontario and Quebec, which are bound practically to indemnify the Canadian Government in respect of any such pecuniary liabilities, the undersigned, who is dis- posed to belinve that the considerations to which he has adverted cannot have been b"ought to the attention of the local authorities, would recommend that they should be afforded the opportunity of reconsidering the legislation in question, with the light thrown upon it by the petitions and representations before him. 24. .Such a course will have the incidental advantage of giving an opportunity to consider also the representations of the general petitioners against the legislation. 25. The Act, although passed on the 23rd February, 1875, has not yet been put in force. It would, therefore appear that there is no urgent necessity for its being acted upon, and the local legislature is summoned for despatch of business on the 10th day of November no.Kt, so that it will be possible before the period arrives for determining as to its disallowance, to take the .sense of the legislature on the question of its amend- ment or repeal. The undersigned is not to be under-stood as having come to a fimil conclusion on tli(- question whether Mr. Ryland would, on the passing of .such an Act, have pecuniary claims capable of being forced against the Government referred to, or whether such an Act, if passed with full knowledge and after full consideration of the facts, should be persistently disallowed. m i f9 w 276 QUEBEC LEGISLATION These are questions which, he venturetl to hope, would not arise, and the authoritiv- tive determination of which it would, he submits, be better to postpone. 26. The undersigned recommends that a copj of the petition of the inhabitants of Montreal, to which he has referred, and of this report, should be transmitted to the Lieutenant-Governor of Quebec, for the information of his government, with the request that the subject should be considered, and that his Excellency should be informed before the expiration of the time for determining as to whether the Act should be disallowed, of the views of the local government, and whether it is prepared to invite local legislation to repeal the Act, or to amend it in any, and what particulars. EDWARD BLAKE, Minister of Justice. His Honour the Lieufenant-Governor oj" Quebec to the Secretary nf State of Carada. Government House, Quebec, 6th November, 1876. SiK, — I hastened to submit to my government the Order of the Honourable tlip Privy Council, bearing date the 25fch October ultimo, as well as the report of the Honourable the Minister of Justice, and the petition of the citizens of Montreal, respecting the Act of the legislature of Quebec, 38 Vict., chap. 17: "To divide the registration division of Montreal into three Registration Divisions," — and upon the dvice of my ministers, the honourable members of the executive council of the pro- vince, I have the honour to submit for the gracious consideration of his Excellency the Governor General, the following remarks : — My government has always endeavoured, with respect to the measures which it submitted to the legislature of the province of Quebec, to confine itself within the limits assigned to it by "The British North America Act, 1867"; and the statute respecting the registration division of Montreal, assented to on the iSrd December last, is, especially, wholly within the classes of subjects for legislation, which are exclu- sively assigned to it by the imperial Act aforesaid ; — Before submitting to the legislature the measure in question, my government knew perfectly the position of the former registrar of Monti-eal ; but, in order to become acquainted with that position in a more full and satisfactory manner, in order clearly to ascertain whether the public interest demanded changes in the state of aflairs then existing in the registration division, and in order to avoid committing an injustice towards the registrar, as well as to ascertain the manner in which the latter carried out the duties of his office, an inquiry was ordered by an Order in Council of the 21st December, 1874, and that inquiry closed on the 7th January, 1873, during the very session in which the measure was introduced. From the evidence adduced in this inquiry, as well as from the information already in the possession of the government, the measure was considered necessary, and in con- sequence it was submitted to the legislature and passed by it on the 17th February, 1876. Mr. Ryland, who now complains of this measure, had all the time necessary tr present to the Quebec legislature the objections which he nlleges he has to raise against that legislation, and the allegation made by Mr. Ryland, and by the signers of the petition submitted to his Excellency that this legislation was carried through " in a precipitate manner, and without regard for the desires and interests of the public," i entirely gratuitous. My government maintain that the registration division, of which Mr. Ryland is to remain titulary, far from being unreraunerative, yields and will hereafter continue to yield an income, more than sufficient to repre.sent the pecuniary equivalent established by the award of Chief Justice Carter, on the guarantee of Lord Sydenham. And if Mr. Ryland had asked in the ordinary way in such cases, the redress of an alleged grievance of which he complains, he would have been allowed to furnish evidence to the 38 VICTORIA, 1874-75. 377 arise, and the authoritii- lostpone. 311 of the inhabitants of be transmitted to the government, with the s Excellency should be 3 whether the Act should lether it is prepared to and what particulars. ,D BLAKE, Minister of Justice. ry of State of Carada. th November, 1876. of the Honourable the 3II as the report of the be citizens of Montreal, ap. 17 : "To divide tlie visions," — and upon the utive council of the pro- ion of his Excellency the to the measures which it confine itself within the 1867"; and the statute on the 23rd December ;islation, which are exclu- 3n, my government knew but, in order to become lanner, in order clearly to . the state of aflairs then committing an injustice I which the latter carried er in Council of the 2 1st y, 1875, during the very 1 the information already red necessary, and in con- it on the 17 th February, all the time necessary tr ;es he has to raise against nd by the signers of the ras carried through " in a nterests of the public," is of which Mr. Ryland is will hereafter continue to ary equivalent established Lord Sydenham. And if bhe redress of an alleged to furnish evidence to the contrary, and to show that his office, as reduced by the new legislation, would no longer represent that pecuniary equivalent. Last Session (37 Vic), with a new representation, resulting from the general elec- tions of 1875, also went by, without Mr. Ryland thinking proper to enter any protest, 01- make any complaint. 1 sliall take the liberty in this connection of askin'.; his Excellency'!! special atten- tion to the strange course pursued by Mr. Ryland, who refuses or neglects to submit jiis grievances to the the legisl.ative tribunal accessible to every citizen, and then comes forward and a.sks for the disallowance of a law, whicli he did not tl\ink proper to oppose. If .Mr. Ryland is suffering a wrong, which he maintains to have been caused by an Act of the legislature, should he not, in the first place, claim compensation from the power which indicted it on him ? Wiiile affirming the principle that the government and the legislature possess the absolute right to determine the compensation to be awarded to the subject whose personal interests are injured by a legislative Act, the government of Quebec maintain that, in this case, it was not their intention, and that they did not, in fact, deprive Mr. Ryland of the pecuniary compensation which he might claim in virtue of Lord Sydenham's promise, and of the award of the commissioner. Chief Justice Carter. Far from it, my government have, up to this moment refrained from acting on their undeniable right, which they misjht have exercised in view of the facts brought to their knowledge, of entirely cancelling Mr. Ilyland's commission as a public officer. My government are desirous of faithfully respecting the engagements entered into by those who preceded them in power ; but, on the other hand, they must jealously guard the immunities of the provincial legislature, when that body acts within the constitutional limits assigned to it ; and I respectfully submit to his Excellency that, in this case, the legislature of Quebec has not over-stepped those limits. The essentially local character of the measure not being contested, and the facts represented by Mr. Ryland in support of his petition being incorrect, in their most important part, I would respectfully represent to his Excellency, that my government could not, with a due regard to its own dignity, and to the respect it owes to the legis- lature, propose the repeal of the law in question. I desire, in conclusion, to assure his Excellency, that the government of the pro- vince of Quebec is quite disposed to do full and entire justice to Mr. Ryland, and that the share of obligations to which the province is in honour bound by the , engagements mentioned by the Honourable Minister of Justice in the report transmitted to me, has hitherto been, and will hereafter be, honourablj' snd scrupulously fulfilled. I have, ifec, ED. CARON, Lieutenant-Governor. Report of the Honourable the Minister of Justice, approved hy His Excellency the Oovernor General in Council on tlie 16th November, 1876. Department of Justice, Ottawa, 10th November, 1876. To His Excellency the Governor General in Council : Upon the despatch of the Lieutenant-Governor of Quebec of the 6th November, 1876, referring to the Order in Council of the 25th October, 1876, with reference to the Act for the purpose of dividing the registration division of Montreal into three divisions, the undersigned begs to report as follows : — Without entering into a minute analysis of the representations, and not desiring to be understood as concurring in all the views put forward, the undersigned submits that these representations give a different complexion to the case from that given by Mr. Ryland. 18 V. ;/, All a % 278 QUEJJKC LEfilSLATION His Excellency has no satisfactory means for investigatinj,' further into the accuracy of that gentleman's statements, and under the circumstances, as between the assertions of a provincial government, and an interested individual, faith and credit must be given to the representations of the f(jrmer. The undersigned is not without apprehension that difficulties may arise from the measure, and he would have felt greater embarrassment as to the course to be recom- mended, but for the assurances contained in the Lieutenant-G.overnor's despatch, that his government i-t desirous of respecting faithfully the engagements made by the powers which preceded it, and from which it sprin.,'s ; and is altogether disposed to accord full and entire justice to Mr. Ryland, and that the share of the obligations to which the province is in honour bound by the engagements of which the undersigned speaks in his report, has been, and will for the future be, honourably and scrupulously fulfilled. The undersigned foresees the probability of a divergence of opinion as to the nature and e.\tent of the engagements, and of the action of the provincial government and legislature on the question, but he submits that it must, after these assurances, be assumed that right will be done. The undersigned has, throughout, fully recognized the local character of the Act in question, and the view that its policy is for the consideration of the local legislature, he submits that the representations and assurances contained in the Lieutenant-Governors despatch so far mitigate, even though they may not altogetner remove, the special diffi- culties adverted to in his former report, as to render it proper not to interfere with the operation of the Act, and he recommends accordingly. He recommends further, that Mr. llyland should be informed that his Excellency has not thought fit to exercise the power of disallowance in reference to this Act. EDWARD BLAKE, Minister of Justice, I Report of the Uonourahle the Minister of Justice, approved hy His Excelle7icy the Gover- nor General in Council on the tdth Xovember, 1876. Department of Justice, Ottawa, 19th October, 1876. To His Excellency the Governor General in Council : With reference to the statutes of Quebec, passed in the fourth session of the seconc legislature (38th Vic), 1875, the undersigned begs to report as follows : — Chapter 28. " An Act to amend the Act concerning the erection and division of parishes and the building and repairing of churches, parsonage houses and church yards and fabrique meetings (C.S.L.C., cap. 18) and to detach a certain territory from the mission of the Lake of the Two Mountains, and to annex the same to the parish of the patronage of St. Joseph, for civil purposes." This Act alters some provisions of the Consolidated Statutes for Lower Canada, chapter 18, regulating the procedure for the erection and division of parishes, and the building and repairing of churches, Ac, by permitting the revocation, on the demand of the majority of the inhabitants, of the decree, allowed by the commissioners in such mat- ters, and by making some minor amendments. The 4th section provides that a part of the territory should bo detached from the mission of the Lake of Two Mountains and attached to the parish of the patronage of St. Joseph for all civil purposes, as described in the canonical decree of the Bishop of Montreal Ijearing date the 26th August, 1874. This section appears in efl'ect to accomplish a change which could have been made under certain regulations by the existing law. Somewhat similar legislation has already taken place, as appears by the Consolidated Statutes already referred to ; the undersigned refers to his observations to be made with reference to chapter 29, and does not recom- mend any interference with the operation of the statute. Chapter 29. " j* n Act to amend chapter 18 of the Consolidated Statutes of Lower Canada." 38 viCTOiiiA, 1874-75. Further into the accuracy s between the assertions nd credit must be given Ities may arise from the the course to be reconi- r.overnor'8 despatch, that jnts made by the powers c disposed to accord full obligations to which the e undersigned speaks in id scrupulously fulfilled. ' opinion as to the nature ivincial government and tter these assurances, be cal character of the Act 1 of the local legislature, ;he Lieutenant-Governor's - remove, the special diffi- not to interfere with the med that his Excellency Eerence to this Act. RD BLAKE, Miniiter of Justice. Bis Excellency the Gover- r, 1876. , 19th October, 1876. )urth session of the second 8 follows : — erection and division of e houses and church yards iertain territory from the same to the parish of the itutes for Lower Canada, vision of parishes, and the vocation, on the demand of :ommissioiier8 in such mat- ion provides that a part of ,ke of Two Mountains and civil purposes, as described ite the 26th August, 1874. juld have been made under igislation has already taken irred to ; the undersigned ,er 29, and does not reconi- jlidated Statutes of Lower m This Act, after reciting that the civil erection under the chapter referred to, of certain parisiies situated partly in the county of Hochelaga, would have the ertect of establishing new municipalities in a territory already organized for municipal purposes, and that it is not advisable that the civil erection of such parishes should produce such' effect, declares these parishes to be and recognizes them as Catholic parishes, to the same effect as if they had been recognized, erected and ratified for all civil puriioses, under the statute referred to, save that nothing in the Act is to have the effect of modifying in any manner, the limits of the city of Montreal and of the several other municipalities in which such parishes are situated, and that such municipalities are to continue to exist with their limits and extent, as if the Act had not been passed. The 3rd section provides that each parish thus recognized, is so recognized subject to the provisions contained in the decree of erection relating to it, as amended by the Holy See and published in 1874 in such parish. This provision, applying as it does to a decree already known and published in its amended form, appears to be founded sub- stantially on precedents to be found in the Consolidated Statutes of Lower Canada. The legislature must be presumed to have confirmed these instruments after due consideration of their effect. Some misapprehension has been created as to the meaning of this clause, fron. the inaccurate description of the clause used in the breviate, which, however, of course does not alter its true operation. The 4th section provides that the meetings for the election of churchwardens, for the rendering of accounts, and for all purposes requiring general parish meeting in these parishes, shall consist of the old and the new churchwardens, and of the persons elected in compliance with the ordinance of the bishop, to form the board or body of the fabrique. This section appears to provide for these particular parishes, a different system from that which, under the Consolidated Statutes, is applicable to Roman Catholic parishes generally, throughout Quebec, though the exact nature and extent of the divergence is not disclosed. The attention of the undersigned has been called to a probable inconvenience which would ari.se from a departure, in particular cases, from the general well-known and satis- factory system provided by the statute, but, however grave this inconvenience may be, the undersigned presumes that this enactment (made, as it was, with reference to a certain specified ordinance) was framed after due investigation and after due opportu- nity given to the parties affected, to present their views, and upon particular ascer- tained circumstances differing these from the other parishes, and the undersigned does not recommend any interference with the operation of the statute. EDWARD BLAKE, Minister of Justice. Report of the Honourahte the Minister of Justice, approved by His Excellency the Governor General in Council on the 21st of November, 1870. Department of Justice, Ottawa, 20th November, 1876. With reference to the minute of council of 25th October, 1876, upon the subject of certain of the Quebec Statutes, 38 Victoria, 1875, the undersigned begs to report that no communication beyond a formal acknowledgment having been received from the Lieutenant-Governor of Quebec, with reference to the observations made in the report of the undersigned approved by the said minute, a telegram was, on the LStli instant, despatched by the Secretary of State to the Administrator of Quebec, as follows :— " Please inform me, for the information of his Excellency, whether it is proposed, with reference to the order in council of 25th October, 1876, relative to the provincial Acts of 1875, to promote amendatory legislation with respect to the Acts objected to, particularly chafters 79 and 81. Please reply by telegraph." "^o which was received, on the next day, the following reply : — 18J .3 4 i'j 280 QUEBEC LE11I8LATI0N, 38 VICTOUIA, 1874-75. " In answer to your telegram of yesterday, I beg to ftate, for tlie information o* his Excellency, that a reply to the order in council of the 2r)th of October last, relating to Acts of the province of C^uebec, passed in 1876, is in course of preparation, and will shortly l)e forwarded. " Amendments to chapters 79 and 81 will be proposed and passed during the present session." Thereupon the following telegram was despatched by tiie Secretary of State to the Achninistrator : — " Reply referred to in your telegram to-day should be forwarded at earliest moment so that his Excellency may consider it before the time for dealing with the Act expires. Hit; Excellency trusts reply will be mailed to-morrow." And this day has been received a despatch from the administrator, repeating the information contained in the telegram, that it was the intention of the government of the province of Quebec to submit to the legislature bills, with a view to amending chapters 71) and 81 of the Acts referred to. No communication has been made as to tlie intention of the government with re- ference to some other Acts objected to, and the time within which disallowance can take place expires so shortly, that it is necessary to deal at once with the matter. It would ha-.e been more satisfactory had fuller information been conveyed to his Excellency as to the intentions of the provincial government with reference to the sev- eral Acts objected to, but having regard to the communications which have been received and to the nature of his objections, the undersigned recommends, in reliance upon the assurances contained in these communications, that the several Acts should be left to their operation. , It is proper to add that, although in the telegraph communication to the adminis- trator, special attention was called to two of the statutes, in consequence of the character of the objections taken to them, these are not the only Acts objected to, and it is hoped that the attention of the government will be also directed to the other Acts objected to. The undersigned recommends that the result of this report be communicated to the Lieutenant-Governor of Quebec. EDWARD BLAKE, Minister of Justice. M^ QL'EHEC LEHIHIiATION, 39 VICTOKIA, 1875. 281 or the information of. )ctober last, relating jreparation, and will 1 passed during the etary of State to the 3(1 at earliest moment with the Act expires. strator, repeating the :)f the government of a view to amending government with ro- disallowanee can take le matter. )een conveyed to his 1 reference to the sev- ich have been received in reliance upon the \cts should be left to :ation to the adminis- uence of the character ted to, and it is hoped ther Acts objected to. s communicated to the ,D BLAKE, Unister of Justice. QUEBEC, 39th VICTORIA, 1875. IsT Session — 3rd Lkgislatuke, Report of the IlonouriOtle the Minister of Justice, approved hy Jlix Excel/ency thr Governor Getifiva/ in Coiinri! on the 2'tth Ortohi'r, 1^76. Department op Justice, Ottawa, L'2nd September, 1876. With reference to the statutes of the legislature of Quebec, passed i'\ the 38th Victoria, 1875, the undersigned begs to report as follows ; — The following Acts do not appear to call for remark, or for the exercise of the power of disallowance -.—Chapters 1, 3, 4, 8 to 18, 21 to 32, 34, 37 to 40, 44, 46 to 49, 51 to 55, 57 to 59, 61, 65 to 75, and 77 to 88 inclusive. Chapter 2. " An Act respecting the construction of the Quebec, Montreal and Occidental Railway." This Act provides fov the construction, as a public work of the province of Quebec, of a railway from the port of Quebec to such point in the county of Pontiae as may be most suitable for connecting hereafter the said railway with the subsidized portion of the Canada Central Railway, and with any other railway, as the Lieutenant-Governor in Council may hereafter decide. ' The 22nd section authorizes the commissioners to make arrangements with the Can- ada Central Railway Company, for the extension of the Canada Central Railway from the eastern terminus of the subsidized portion thereof as may be selected, to the Ottawa river, opposite the western terminus of the railway thereby authorized to be constructed, or for the construction of a bridge over the said river, or to make arrangements for the transit of rolling stock, etc., over the Canada Central and Canada Pacific Railways. The Act does not purport to, nor could the local legislature, give power to the Canada Cential Railway Company, to enter into the contemplated arrangements, and though it may perhaps be questionable whether the authority given to the Commis- sionei-s is not more extensive, than can properly be given by the provincial legislature, yet having regard to the 23rd section, which expressly contemplates the authorization by the Parliament of Canada of any construction outside of the province of Quebec by the commissioners, the undersigned does not recommend the disallowance of the Act. The 43rd section invests the railway to be constructed under the Act, so far as the legislature can do so, with all the rights, franchises, &c., granted by the Parliament of Canada, to the Montreal, Ottawa and Western Railway Company. It would seem that the local legislature cannot affect the transfer of the franchises, and some, at any rate, of the rights granted by the Parliament of Canada to the Mon- treal, Ottawa and Western Railway Company, and therefore this clause, althrough guarded in its language, is not free from objection. Chapter 5. "An Act to amend the Act 38 Victoria, chap. 4, respecting the Manu- facture of Sugar from Beet Root." This Act increases to $7,000 from $5,000 the annual subsidy for this purpose. The undersigned refers to his report upon the original Act, {See ante page 261), but does not recommend disallowance. Chapter 6. " An Act to further amend the Quebec License Act (34 Vic, chap. 2), and the several Acts amending the same, and to extend the application thereof." :| I Si ^■"BW ^m 282 (jUEUKC LEtilHLATION This Act contains some provisions open to the same (luestions as has l)een already stated in several reports to he i^iifi jiidiri; as to the competency of the local legisla- tures to attoct trade and commerce by such legislation. The under ounty of Champlain, )ose8 of Parliamentary itutes of the preceding he word " parliament- or be called to the sec- ntyof Lotbiniere and Registration purposes, ct the Parish of St. gafisted with reference same course. i purposes by a decree recognized in as full id been erected under in his reports on the i, and recommends that y of Bellechasse and to f, Registration, Muni- e language used in the jf chapter 41, and the in a separate nmnici- lay impose upon nier- ;rade there, such duties ;o pay for their license kind might take place, b the attention of the view to its repeal or )een left to their oper- ies : Under these circumstances, it seems better not to int<f Lauzon." This Act provides that the association shall have tlx! right to ordain that any musician, whose conduct shall be irregular, shall leave the band, and return, within u delay of eight days, into the hands of tin; liandmaster, the instiument which he has received from the society, under the penalty of a fine of not more than two, or l«!ss than one dollar for each day during which he shall so refuse and neglect to return the said instr- .iient, after the expiring of the said delay, or of imprisonment for thirty day.s, or of both at once, in the discretion of the judge, the said fine recoverable t(j the bcnetitof the said musical band in the ordinary manner. It seems extremely inconvenient to confer upon such a corporation as this the power of passing a by law under which the subject may be imprisoned for a period of thirty days ; such a power, if delegated at all, should, it would seem, be delegated (mly to municipal bodies. The undersigned submits that the attention of the Lieutenant-Governor should be called to this Act, with a view to its amendment before the time arrives within which it can be disallowed. Upon chapters 7 and 19, the undersigned proposes to report separately. EDWARD BLAKE, Minister of Justice, Memorial of Insurance Agnnts, (tc, to Secretary of State. Montreal, 20th April, 1876. Sir, — We beg leave respectfully to refer you to a petition to his Excellf ncy the Governor General, presented by the several insurance companies therein mentioned, doing business within the province of Quebec, and complaining of the enactment by the legislature of the province of Quebec, of an Act, intitutled : " An Act to compel assurers to take out a license," and further to solicit his Excellency's attention to the prayer of the said petition. That at the time the sai'^ petition was presented to his Excellency, the statutes of the last session of the legislature of the province of Quebec had not been communicated to him or to his advisers. And we understood that it was therefore impossible to take the prayer of the said petition into consideration at the time. But that, as since that period, the Acts of the said legislature, during the said last session thereof, have lieen otiicially promulgated and circulated, under the authority of the government of the province of Quebec, we presume that the difficulty in the consideration of the question which then existed is now removed. I 280 QtlEREC LEniSLATIOJf We have the honour respectfully to remark, that a further examination of the said Act and of its effects have fully convinced the signers of the said petition that the repre- sentations contained in it were rather under than over stated, as to the injurious and arbitrary character of the said legislation, and as an instance of the extent to which trade will be affected by the operation of that Act, your petitioners beg leave to mention that five of the companies whoso names are appended to the said petition will be taxed under its provisions to the extent of about $3,000 each per annum ; an amount which, we venture to say, is unparall' led in the history of similar legislation. We therefore most respectfully beg that his Excellency will be most graciously pleased to take the said Act, and the prayer of the said petition into consideration, and will disallow the said Act as unconstitutional. We have, etc., GILLESPIE, MOFFATT & CO., Agents " rhainvr,." Memorial of Bepresentatives of Insurance Companies. To the Right Honourable Sir Frederick Temple, Earl of Dufferin, Viscount and Baron Clandeboye, etc.. Knight Commander of the Most Honourable Order of the Bath, Governor General of Canada and Vice- Admiral of the same : The petition of *.he undersigned representatives of insurance companies transacting business in Canada, respectfully :ihoweth : — That your petitioners are the chief agents and accredited managers of the under- mentioned insurance companies, having their principal office or place of business at the cities of Montreal, Quebec or Toronto, and carrying on their business throughout the Dominion of Canada ; That the said insurance companies have been heretofore established and incorporated under existing Acts of the Parliament of Canada, or the legislature of Canada, or under the United Kingdom of (jfreat Britain and Ireland, or of foreign countries, for the business of life, fire and inland marine insurance, which they have carried on in Canada under the powers granted to them by their respective charter incorporations, and under the authority and sanction of the laws of the Dominion ; That, undsr the policy of the Dominion, laws for insurance con.panies generally, and specially under the Dominion Acts 31 and 34 Vic, respecting life insurance, and of the 38th Vic, to amend and consolidate the several Acts as regards fire and inland marine insurance, the above mentioned insurance companies have been, and still are, expressly licensed by the Dominion Government, under the authority of the said genei-al Acts of the Parliament of Canada and of the provinces thereof, without limitation or restriction, and are still acting under general insurance business licenses, throughout the Dominion aroresaid ; That the exclusive legislative powers of the ParHament of Canada, under the " British North America Act" of 1867, expressly embrace the general subjects of trade and c immerce in Canada to their fullest extent, necessarily including various .special matters covered by those special terms — among others insurance, in general, which is confessedly an important business of trade, and a subject of a commercial nature, anc as such, exclusively treated by the policy and legislative authority of the Dominion as represented by it , insurance Acts above named and referred to, which direct the issue by the Dominion authorities, of licenses for carrying on insurance business every part of its Dominion, under the privilege and protection of its own license therefor, wheresoever the head office or chief agency of the assurers may be placed, foi the convenience of their jiencral hu.iiness ; That the Dominion license, iii t,l i-j respect, is necessarily paramount and exclusive ir its general privilege of insurance busii'ess in every part of the Dominion, over all merely ,1 39 VICTORIA, 1875. 287 • examination of the sai(J i petition that the repre- as to the injurious and the extent to which trade leg leave to mention tliat ition will be taxed under I ; an amount which, we ion. will be most graciously a into consideration, and FFATT & CO., Agents '^ P/uerd npames. erin, Viscount and Baron rable Order of the Bath, ae : ;e companies transacting I managers of the under- ) or place of business at their business throughout tablished and incorporated lire of Canada, or under the iountries, for the business rried on in Canada under rporations, and under the e con.paniea generally, and ; life insurance, and of the ds fire and inland marine 3n, and still are, expressly )f the said general Acts of lit limitation or restriction, throughout the Dominion nt of Canada, under the e general subjects of trade including various special ranee, in general, which is a commercial nature, and, lUthority of the Dominion, ferred to, which direct the on insurance business in tection of its own license assurers may be placed, for paramount and exclusive in 3 Dominion, over all merely provincial legislation, or assumption of legislative powers b; the provinces of the Dominion, obstructive of, or interfering with, the uncontrolled effect of the Dominion license, which is not susceptible of being brought into conflict by provincial legislation ; That by a recent Act of the legislature of the province of Quebec, intituled : " An Act to compel Assurers to take out a License ; ' its provisions are obligatory upon all persons or companies, incorporated or unincorporated, or carrying on the business of assurance on life, or against fire, &c., and every other assurance business whatsoever, other than marine insurance exclusively, to take out from the provincial government an annual license on the 1st May for the transaction of their assurance business, and to pay a price for such provincial license as regulated by the said Act, and in contravention wiiereof the insurance policies, &c., issued and given by the assurers, are made to have no. effect either in law or equity, with the addition for each omission of the payment of the price regulated in the manner directed by the Act, of a penalty against the assurer not complying with such regulation, of fifty dollars in money, or its equivalent, imprisonment for three months, and for the enforcement and application of the provincial Act ; sub- jecting the assurers to the provisions of the Quebec License Act of 1870, respecting local licenses, and the duties and obligations of the persons locally bound to hold such provin- cial licenses ; That the provincial legislature of Quebec has, in its said recent Act, intituled as aforesaid, exceeded the legislative aiTrliority conferred upon it by the " British North America Act, 186 T," from which akne it derives its legislative powers, and by which its legislation is restricted exclusively to matters of a provincial or local nature ; and among others in that Act expressly named, to the making of provincial kws for shop, saloon, tavern, auctioneer and other licenses, to wit : " of a kindred local occupation or charac- ter, in order to tlie raising of a revenue for provincial, local or municipal purposes," as evidenced by the said Quebec License Act of 1870, which is strictly within the legisla- tive attributes of the said province ; That the said recent Act of the legislature of Quel vc, iu its inclusion within the geaerality of its subjects, of the above mentioned insurance companies in carrying on their business under the paramount authority and protection of the Dominion license throughout the Dominion, has gratuitously assumed to conflict its provincial legislation with the exclusive power and authority of the Parliament of Canada, and has, without right, interfered with the general power of the said Dominion licensed companies to transact their insurance business thoughout the Dominion, freely and unrestrictedly in the province of Qubbec, without being subjected to the assumption of license power therefor, by that provincial legislature; \Vhekef >re, your petitioners pray that, in consideration of the premises, the Act above i(, titiued, recently passed by the legislature of the province of Quebec, to wit : "An Ace to couipel Assurers to take out a Licenst," may be forthwith disallowed under theauthrrity therefor of the "British North America Act, 1867," and that it be declared unconstitutional. And your petitioners will ever pray. Report of the Honourable the Minister of Justice, approved by His Excellency the Gover- nor General in Council, on the 27th October, 1876. Department of Justice, Ottawa, 16th October, 1876. _}Vith reference to chapter 7 of the Acts of the legislature of Quebec, 39th Victoria, (I87o) intituled : "An Act to compel Assurers to take out a License," the undersigned has tiie honour to report, that a petition has been presented to his Excellency from the thief agents ami accredited managers of a very large number of insurance Cdmpanies, lurying on business throughout Canada, including the province of Quebec, representing -nat their respective companies have been and are carrying on such business under the powers granted to them by law, and with the authority and sanction of the statutes of 288 QUEBEC LEGISLATION Canada ; pointing out that their companies have been and are expressly licensed by the Canadian Government to contract business throughout Canada ; alleging that the exclu- sive legislative powers of the Parliament of Canada, expressly embrace the general sub- jects of trade and commerce ; which in the view of the petitioners, include insurance in general as an important business of trade, and a subject of a commercial nature ; alleg- ing that the license of Canada is necessarily paramount over and exclusive of all nicroly provincial legislation obstructive of or interfering with its effect ; referring to the pro- visions of the Act now under consideration, and alleging that by its enactment the pro- vincial government has exceeded its legislative authority and, without right, interfered with the general power of the licensed insurance companies to transact their business, without being subject to license by a provincial legislature, and praying for the dis- allowance of the Act. That subsequently, a letter was addressed by the representatives of the insurance companies to the Secretary of State, referring him to this petition, and pointing out that a further examination of the Act, and its effects, have fully convinced the signei-s of the petition that the representations contained in it were raiher under, than over stated, as to the injurious and arbitrary character of the legislation, and adding, as an instance of the extent to which trade will be affected by the operation of the Act, that five of the companies whose names are appended to the petition, will bo taxed under its provisions to the extent of about three thousand dollars ($3,000) each per annum, an amount which, in the view of the signers, is unparalleled in the history of similar legis- lation. That subsequently to the receipt of this letter, a delegation on behalf of the peti- tioners visited the seat of government with the view of pressing upon the government the propriety of disallowing the Act. That the government was then informed that steps would probably be taken for the purpose of testing in the courts the validity of the measure. That from the ordinary source of public information, it appears that it was arranged between the companies that one or more of them should take the necessary steps for such a test, and that proceedings have actually been taken and are now pending before the courts with that view. The Act requires every assurer, carrying on in the province any business of assur- ance, other than that of marine assurance exclusively, to take out a licen.se annually, and to remain continually under license. The price of the license is to consist in the payment to tlie crown for the use of the province, at the time of the issue or delivery of any policy of assurance, except of marine assurance, and at the time of the making or delivery of each preciium, receipt or re- newal, respecting any policy issued before or after the coming into force of the Act, of a sum computed at the rate of three per cent as to t he assurances against fire, and of one per cent as to the other assurances of the amount received as premiuni or renewal of assuiance. The payment is to be made by stamps to be affixed to each policy or receipt. Persons contravening the Act are made liable to a pecuniary penalty, and indefauli of payment to imprisonment. tlnstamped policies, itc, are io have no effect in the courts of the province. It is provided that the Act shall not affect any policy, premium receipt or renewal in relation to assurances wherein the interests assured, are beyond the limits of the pro vince. It will be observed that much light may be thrown upon the question of th constitutionality of the Act by the decision shortly expected in the pending case a to Brewers' licenses, and in view of this and of the other legal proceedings to whic allusion has been made, the undersigned recommends that any determination upon tin question shall V)e deferred for the present. With reference to the alleged interference by the law with Canadian legislatini *nd to the objections to the policy of the measure, it is to be observed that the reipiiii nient of a license is merely the form of levying the tax. 39 VICTORIA, 1875. expressly licensed by the , ; alleging that the exclu- enibrace the general sub- ners, include insurance in commercial nature ; alleg- nd exclusive of all merely Feet ; referring to the pio- by its enactment the pio- without right, interfered to transact their business, !, and praying for the dis- ntatives of the insurance etition, and pointing out ully convinced the signers e rather under, than over siation, and adding, as an operation of the Act, that on, will bo taxed under its J,000) each per annum, an the history of similar le-^is- ion on behalf of the peti- ing upon the government t was then informed that 1 the courts the validity of ppears that it was ai ranged ke the necessary steps for ,nd are now pending before ince any business of assur- ike out a license annually, Ise crown for the use of the assurance, except of marine ;h preriium, receipt or re- g into force of the Act, of lUrances against fire, and of red as premiuiri or renewal ach policy or receipt, liary penalty, and in default irts of the province. )remium receipt or renewal, eyond the limits of the pro- upon the question of the ;ed in the pending case as legal proceedings to which iiy determination upon this ' with Canadian legislation, 16 observed that the reDrtunity given to object, gislature can delegate its establishes for the pre- ? to municipal bodies, on the subject of muni- America Act " to the local days, invested with large ds. ) delegate these powers any rate, representative ite in this instance, the incorporating the Statute al Committee of the Privy , either under the Conso- 1 the rights of the inhal)- ppeared to the legislature authorized by the statute, f&s in a position to judge, ■ing, and with the consent dvance, without the safe- lich may be made for the uestion to which he has ciples of legislation, that se, and he suggests that > his observations on this '^ardens, for the rendering ig of a parochial meeting, iwardens, and of persons istitute the board or body rdens so elected, or the I the parishioners to the payment of debts contracted by the said church warden.s or the said fahrupies, without the previous consent of the said parishioners, declared at a general meeting of the parish duly conveyed after eight day.s' notice. This section alters the mode of dealing with the temporalities of the church in these parishes, creating a variation from the general system throughout (.Quebec. To the difficulties which may arise from such legislation the undersigned has referred in his report, upon chapter 29 of the Acts of the preceding session, to which he suggests the attention of the Lieutenant Governor should be called, as applicable to this provision. The inconvenience may be aggravated here by the fact that the special provision is applied, not merely to known and existing parishes, but to new parishes which may thereafter be created under a canonical decree, and tliat the mode of procedure, &c., is not known or ascertained, but is to be such as the ordinance, made in each case,' may provide. Chapter 35. " An Act to amend an Act of this Province, 38 Victoria, chapter 29." This Act recites a certain provision of the Act which it ameflds, relating to meet- ings of churchwardens, &c., and the desirability of applying such provisions to all other j)arishes detached from, or which may hereafter be detached from, the old parish of Notre Dame de Sfontreal, which are or may hereafter be formed, either in whole or in part, out of the Uirritory of the said parish of Notre Dame de Montreal, so that tlie mode of holding the said meetings be uniform throughout such parishes ; and enacts that these provisions shall apply to all parishes, which are or may hereafter be formed out of the territory of the old parish of Notre Dame de Montreal, and are recognized as being lawfully binding therein, provided that in any case the churchwardens so elected, or the fabriquen so constituted, shall not oblige or bind the parishioners to pay debts contracted by the said churchwardens, or the said fabrique, without the previous consent of the parishioners, declared at a general parish meeting duly called by a notice of at least eight days. With reference to these provisions the undersigned refers to the observations made itt his report upon the Act, amended by that in question, and to those made in his report herewith upon the Act, chapter 36 of the statutes of the same session, and he recom- •mends that the attention of the Lieutenant-Governor should be directed to the observa- tions and suggestions made in the reports, in so far they are applicable to this Act. EDWARD BLAKE, Minister of Justice. Report of the Honourable the Minister of Justice, approved by Ilia Excellency the Governor General on the 21st November, lS7(i. Department of Justice, Ottawa, 17th November, 1876. With reference to chapter 60 of the Acts passed by the legislature of the province of Quebec, 39 Victoria, 1875, the undersigned begs to observe that in his report, dated 22nd September, 1876, in which this Act, among others, was reported upon, ho inadver- tently omitted to call attention to the use of the word " Canada " in the name of the company incorporated, namely, "The Patriotic Insurance Company of Canada." In a report of the undersigned, dated 16th November, 1875, upon the several Acts of the legislature of the province of Ontario, the undersigned commented upon the use of the word "Canada " in the name of " The Canada Fire and Marine Insurance Company," incorporated by chapter 67 of the Statutes of Ontario, 1874, pointing out that this was of itself indicative of more than provincial powers, and it appears to him that the word should be applied only to companies incorporated by the Dominion ; and by a report of the undersigned, dated 23rd December, 1875, with reference, among others, to an Act amending the Act, chapter 67, above referred to, the undersigned mentioned that the Attorney General of Ontario was prepared to promote further legislation, with a view to substitute some other word for the word " Canada " in the title of the company incor- i '1 292 QUE13EC LEOISLATIO;^ porated, iiad by the Act, chapter 91, of the Statutes of Ontario, 39 Victoria, 1876, the name of tlie company was changed from " Tlie Canadian Fire and Marine Insurancje Company," to the " Hamilton Fire and Marine Insurance Company." The undersigned recommends tiiat the attention of tlie Lieutenant-Governor of the province of Quebec be called to the ise of the word " Canada " in the name of the com- pany incorporated by chapter GO, above mentioned, in order that his government many consider the propriety of proposing the nece.-sary amendments, with a view to substitu- ting somci other woid therefor, before the period arrives for determining as to whether or not the Act should be disallowed. EDWARD BLAKE, Minister of Justice. 77te Administrator 'oj tlie Government of Quebec to the Secretary of State for Canada. Government House, Quebec, 27th November, 1876. Sir, — The government of the province of Quebec is prepared to submit to the legislature, a bill to amend the provincial Act. 39 Vic, chap. 60, referred to in the Older of the Honourable the Privy Council, of the 21st Novemlier instant. Nevertheless, inasmuch as the Act in question relates to a company who obtained their incorporation by means of a private bill, and who might suffer serious incon- venience through the change of name, I would respectfully represeht to his Excellency, that it would be only right that the provincial government should advise this company of the proposed amendment, in order that the directors may suggest another name -greeable to them, or themselves petition the Honourable the Privy Council, for the retention of the title of their company. The desired amendment will be brought forward during this session of the Quebec legislature, unless an order to the contrary, issues from the Honourable the Privy Council. I have, &c., A. A. DORION, Administrator. Report of the Hononrahle the Minister of Justice, approved by His Excellency the Governor General in Council on the 1st December, 1876. Department of Justice, Ottawa, 30th November, 1876. Upon the despatch of the administrator of the province of Quebec of the 27th November instant, referring to the Order in Council of the 21st November, 1876, passed upon the report of the undersigned, with reference to the use of the word " Canada " in the name of the " Patriotic Insurance Company of Canada," incorporated by chap. 60 of the Quebec Acts, 39 Vic, 1875, the undersigned observes that the administrator states that the government of Quebec is disposed to submit a bill to amend this Act, but adds that, having regard to the fact that the question relates to a company, whose incorporation has been obtained by means of a private bill, and that the provincial government should warn the company of the proposed amendment, in order to permit the directors to suggest another name which might suit them, or to petition the Privy Council to he allowed to retain their present title. The administrator adds that the desired amendment will be proposed during the present session of the legislature, unless there be an opposite order of the Privy Council. The course proposed by the administrator with reference to the provincial action appears to be reasonable, but the undersigned thinks it right to point out for his 39 vicTOHiA, 1875. 293 ) Victoria, 1876, the d Marine Insurance , It lant-Govprnor of the he name of the coin- is {government many h a view to substitu- nining as to whethei- > BLAKE, .ister of Justice. f State for Canada. 'November, 1876. ■d to submit to the I, referred to in the instant. npany who obtained sufi'er serious incon- it to his ExceUency, advise this company uggest another name ivy Council, for the ession of the Quebec onourable the Privy information that the Pnvy Council having, in the case of a company incorporated in another province, taken such steps as resulted in the alteration by provincial legis- lation, of a similar title, it would seem impossible for the council to take a dilTerent course upon this occasion. The natural anxiety entertained by the undersigned to render as littli^ incon- venient as possible the operation of the decisions of council on these subjects, leads him to refer, for the information of the administrator, to the course taken in an analogous case. The legislature of Ontario, by 38 Vic, chap. 67, 1874, incorporated the "Canada Fire and Marine Insurance Company." The powers given to the company were con- sidered too extensive, and the Act was, on that ground, objected to by council. The name was also objected to on the ground taken in the p'-esent case. In con- sequence of this objection, the provincial legislature, by 39th Vic, cliap. 91, 1875, provided, that on and after the 31st .luly, 1876, if the Company should continue to do business under the authority of the local legislature, its name should be changed to tiie " Hamilton Fire and Marino Insurance Company." Meantime, those interested in the eon^pany applied in the usual wiiy to the Parliament of Canada for relief, and by 39tli Vic, chap. 51, 1876 (that of Canada), the shareholders in that company were incorporated as a new company, with extended powers, and under the original name. It will be for the shareholders of the Patriotic Company to consider whether they will follow the course pursued by the company just referred to. The undersigned recommends that a copy of this minute, if approved, be trans- mitted for the information of the administratt)r of the province of Quebec. EDWARD BLAKE, Minister of Justice. I )ORION, Administrator. < His Excellency the 1876. November, 1876. Quebec of the 27th 1st November, 1876, the use of the word Canada," incorporated aed observes that the to submit a bill to le question relates to private bill, and that posed amendment, in ght suit them, or to lie. proposed during the 9 order of the Privy the provincial action to point out for his 19 294 QUEBKC LEGISLATION, 40 VICTORi.i, 1876 — 41 VICTOKIA, 1878. QUEBEC— 40th VICTORIA, 1876. 2nd Session — 3bd Lkoislatuhe. Report of the Hononrahlo the Minister . of Justice, approved bij His Eiri'llency the Governor iuneral in Cou7iril. on the 0th November, JS77. Department of Justice, Ottawa, 5th November, 1877, With reference to the Acta piissed by .^he legislature of the province of Quebec in the session held in the fortieth year of Her Majesty's reign, being the second session of the third parliament of that province, I beg to report that, after a careful examination, I am of opinion that they are all unobjectional)le. R. LAFLAMME, Minister of Justice. QUEBEC— 41st VICTORIA, 1878. 3bd Session — 3rd Legislature. Report of the Honourable tlie Minister of Jttstice, approved by His Excellency the Governor General in Council on the 23rd Ma/rch, 1979. Department of Justice, Ottawa, 1.3th March, 1879. I have the honour to report upon the following Acts passed by the legislature hel( in the 41st year (1878) of Her Majesty's reip;n, namely : — Cap. 1. " An Act respecting the Consolidated Railway Fund of the Province" (40 Vic, cap. 2). Cap. 2. — " An Act to further amend the law respecting Subsidies in Money made to certain Railway Companies." These two Acts appear to be within the competence of the local legislature to pass. Cap. 3. " An Act to amend and consolidate the Quebec License Act and its Amendments." ... This Act makes very extensive provisions respecting licenses, and may in some respects entrench upon the exclusive legislative authority of the Parliament of Canada, most of the provisions, however, are clearly within the powers of a provincial legis- lature, and it is by no means clear that all the provisions are not within those powers, UA, 1878. le. bij His Excdlency tin' ■r, 1877. h November, 1877, e province of Quebec in ig the second session of r a careful examination, lFLAMME, Minister of Junticc. m. I by His Excellency the •ch, 1979. A, 13th March, 1879. ed by the legislature held Fund of the Province" (40 Subsidies in Money made be within the competence ebec License Act and its licenses, and may in some ihe Parliament of Canada, )wers of a provincial legis- not within those powers, QUEBEC LEOI8LATION, 41 VirTOniA, 1878 — 41-42 VICTORIA, 1878. J95 111) interference with the Dominion interests will be likely to take place by the Act being left to its operation, and as those who are taxed or attempted to be taxed under any of its clauses which may be considered ultra vires, will have the privilege of disputing licforo the courts, the constitutionality of the provisions, I recommended that the Act l)e left to its operation. I reconunend, however, that the Quebec government be informed, that in leaving the Act in operation, no admission is made on the part of this government, that all its prov' ions are in the {)owors of the provincial legislature. Cap. 26. — "An Act to define and regulate the limits of certain municipalities and piuislies in the counties of Nicolet, Arthabaska and Drummond, and to include in the county of Nicolet, the portions of these municipalities and parishes which are now in- cluded therein." The objects of this Act sufficiently appear from the title, and, with the exception of .section 11, tlie Act requires no .special mention. I think it proper to i-efer to that .sec- tion, not for the purpose of recommending any change therein, as the section is harm- less, but because I think it objectionable to attempt to deal in provincial legislation, with the rights of voters at federal elections. The section is as follows : — " If, at the time of any federal or local election, the said nmnicipality or portions of municipalities shall vote for such election at the places where they would have had the right to vote if this Act had not been passed." From the way in which the secticjn is worded, no inconvenience is likely to arise by reason of the reference to federal elec- tions, but it would, I think, be better that in future no reference to federal elections should be made in any Act which deals with provincial electoral districts or the rights, of voters at local or provincial elections. Such legislation would have no effect upon federal elections, except in so far as the Dominion Statutes might provide, yet it might cause misunderstanding and trouble. I recommend that the attention of the Quebec government be called to these remarks. The remaining Acts (chapters 4 to 25, and 27 to 61, inclusive) should be left to their operation. Z. A. LASH, I concur, Deputy Minister of Justice. JAS. McDonald. Minister of Justice. QUEBEC, 41-42 VICTORIA, 1878. 1st Session — 4th Legislatuue. Report of the Honourable the Minister of Justice, approved by His Excellency the Gover- nor General in Council on the 22nd July, 1879. Department of Justice, Ottawa, 18th July, 1879. I have the honour to i-eport that, having examined the fifteen Acts passed by the legislature of the province of Quebec, in the year 41-42 Victoria (first session of the fourth legislature) and chaptered 1 to 15, inclusive, T see no reason why the power of disallowance should be exercised in respect of any such Acts : I therefore recommend that they be left to their operation. Z. A. LASH, I concur, Deputy Minister of Justice. G. BABY, Acting Minister of Justice. 19J 296 (jt'KllEC LEdlHLATION, 42-43 VICTOHIA, 1871). QUEBEC; 42-43 VICTORIA, 1879. 2nd Skssion — 4tu Lkoislature. Report of the Ilononrahh the Mininli'V of JiiHtice, approved hy Ills /''xrelfency the Gover- nor (t'enerdl in Council on the lUth Nnvnnher, ISSO. Depahtmf.nt of Justice, Ottawa, 13th November, 1880. I hftve tlio honour to report upon the Acts passed by the legislature of the province of t^uebec, in tlie second session of the Fourth Parliament (1871)) as follows : — Cap. 58. — " An Act to consolidate and amend the Act incorporating the town of St. Henri." I recommend that the power of disallowance bo not exerci.sed with respect to this Act, but it seems proper to remark that .'• ine of the provisions of section \ij, especially subsections 7 and 8 appear to entrench upon the regulation of trade and comineruc, legislative authority over which is vested in the Dominion Parliament. Inasmuch, how- ever, as it will be competent for any person objecting to a tax imposed under authoiity of this statute, to raise the question in some court of law, and as the general subject is now before the Supreme Court for decision in the case of Jonas vs. Gilbert, (Sup. Court Jieportu, Vol. V, p. 356), it would not be proper to recommend the disallowance of the Act. I recommend that the attention of the Lieutenant-Governor be called to these remarks. Cap. 60. — " An Act to amend the Act incorporating the city of Sherbrooke, .'ii» Vic, cap. 50." 1 recommend that the power of disallov/ance be not exercised with respect to this Act, but that the attention of the Lieutentnt-Governor be called to the provisions of section 9, which seems to entrench upon the subject of interest, which by the " British North America Act," 1867, is placed within the exclusive legislative control of the Par- liament of Canada. I recommend that the power of disallowance be not exercised with respect to the remaining Acts. (Chapters 1 to 57, 59, and 61 to 87, inclusive.) JAS. McDonald, Minister of Justice. QUKiiEC LEf!i8f,A'riON, 4;i-44 virroriiA, 18S0- 144") vkthui a, \Xf<\. 297 D. QUEBEC; 43-44 VR^TOllTA, 1880. 3rd Session --4tii LicriiHiiATURE. fis K.fcellency fhe Govfr- J,S.StK ,h November, 1880. tlio legislature of the Parliament (1879) as icorporating the town nf ised with respect to this of section ]'), especially of trade and connnercc, ament. Inasmuch, liow- imposed under authority lis the general subject is I vx. Gilbert, (^up. Coin-l the disallowance of tli'- srnor be called to these e city of Sherbrooke, .'59 ised with respect to this lied to the provisions of ;, which by the " British dative control of the Pai'- nsed with respect to the e.) DONALD, Minister of Justice. Rxport of the Ifotxnirnhli' the Mimslo}' „/ Justice, npprorerl hi/ f/is Exeelleiipj/ the tlorer- lior (tenenti in ('oiiiiri/ on the .Ird Si'plenil/er, ISSJ. DkI'AUTMKNT OK JUMTICK, OTTAWA, "J-'ith .VugUSt, 1881. T(i 11 in E.ecelleney the d'ovenior General in Council : The uudersignetl has the honour to report ; — With respect to the Acts passed by tiie legislature of tlic province of Quebec in the year 1880, being chapters one to one iiumh-ed and five inclusivi!, the undersigned lias the honour to recommend that the power of disallowance be not exercised witii regard tu any of such Acts. Humbly submitted, A. CAMPi?ELL, Minister of Justice, QUEBEC, 44-45 VICTORIA, 1881. ;* .V B § 4th Sessio.v — 4th Leuislatuhk. C'EiiTiFiED Copy of a Report of a Committee of the Honourable the Privy Council, approved by His Excellency the Governor General in Council on the ^2nd July, 1882. On a report dated 11th .July, 1882, from the Minister of Justice, recommending, with respect to the Acts passed by the legislature of the pro\ince of Quebec in the year 1881, being chapters 1 to 9.3, inclusive, that the power of disallowance be not ex- ercised with regard to any of the said Acts, but as regards chapters 46, 69 and 72 tlie Jliiiister has deemed it expedient to make a separate report. JOHN J. McGEE. Clerk, Privy Council. 298 qaWUO LKQIHLATION /'ftition of Montreal Si'houl of Mi'dii'inr and Snrgprif to fhc Oovriior Omernf, To llin E.rolh.nrif the. /{i;//,f //luionro'lr thf .\fi oj Loni<\ h'.T., (i.C.M.d., I'.C, (t'orrriior (irwru/ iiiniiiloii of CniKula, in (JiynncU anxfmlili'd : 'I'he huinhlo p»rcy, and \arious other |)ublic establishinent id dispensaries. It lius instructed over 700 physicians, who have been duly lice' ., and who practi.se or have j)ractised inediciiK' in tin; ditt'erent provinces of Canada, and in the; United States. Your petitioners possess a largo building, with a libiary and anatonncal museum, and their lectures are followed e\('ry year by 120 to 150 students. The said school has been alKliated, sinio ISt)!), to the Victoria University of Cobourg. Their pupils receive their degrees. Their diplomas have always entitled the bearer thereof to a license from the General Board of Physicians of the province of Quebec to j)ractise medicine in the said province. (2.) The Laval l^niver.-ity has bticn created by a royal charter of Her Majesty Queen Victoiia, dated Hth December, 16 V^ictoria (1H22), which authorized LoScminaire do Quebec, to wit : a classical seminary, established and existing in the city of Quebec, for the education and instruction of youth, to confer degrees and grant to sairl corpora- tions all the other jii'ivileges usually gt'anted to and enjoyed by univei'sities, in addition to the powers and i)rivileges hitherto possessed uid enjoyed by said seminary. It also enacts that in each and every act or deed tlono and performed under and by virtue of said chapter, the said Si'tninaire de. Quebec shall be named, called and known as tin- Uiiivi'Vtiiti! Lnvid (Laval University). The said royal charter further ordains, declares and grants that the rector (to wit, the superior of the said seminary) and the professors of said university, and all persons who shall be duly matriculated into and admitted as members of said uni- versity, and their successors forever, shall be one distinct and separate body politic, in deed and in name, by the name and style of "The Hector and Members of I'Unirersih' Laval (Laval University), at Quebec, in the province of Canada ;" and further, that the council of taid university shall consist and be composed of the rector, of the directors of said ,'.'di inairedi' Qnehec, and of the three senior professors of the several faculties, Divinitj) Law, Medicine and Arts, in said university ; that said Universitt' Laval shaH \, ' <;, possess and enjoy all such and the like privileges as were then enjoyed by tin* universities of the United Kingdom of Great Britain and Ireland, so far as the .same are capable of being had, possessed or enjoyed under and by virtue of said royal charter ; and further, that the university council, ar, constituted by said royal charter, shall, for the purposes of said royal charter, have, possess and enjoy the right and power to affiliate to and connect with said university, any one or more college or colleges, seminary or seminaries, public institution or institutions of education, within the said province of Canada, »s to the said council may seem fit. (3.) The said SemiTiaire de Quebec has existed oyer two hundred years in the city of Quebec as a classical college and a seminary for Roman Catholic students in theology ; and since its erection into a university, under the name of University Laval, as aforesaid up to the present time, it has also confined its sphere of action as a teach- ing institution, and as a university, to the city of Quebec, where sai ' seminary and 41-45 VICTORIA, 1881. 299 (iDrflrnor Gennral K.T., (i.C.M.U., I'.C, liHi'iiihlfd : Surgery, n ImkI} politic- lulii, liaving its ni-uI in ;])(^ctfully showoth : IT), liy tho Ipgisliituic nt f giving public Icctuifs citK^ I' .. surgery; iind 1 11(1 iiu'diciil HciiiMil .13 lyiiig-in-lioHpitai iti All ciiHpensiirieH. It hits i:d by tho University Couiieii, aixl may tliemselves lx!coiiie meinliers of said University Council by order tif seniority, as those of tho saiiio faculties teacliing in (.^U(>bec. (5.) Tho said branch of tho faculties of Law and Medicine being so ostalilished in the city of Montreal, tho rector of said Uiiiversiti' Lav il and tho se('retaries of siiid branch I'lcultios did, every year since 1^79, up to the present time, advertise the open- ing of courses of lectures in Law and Medicine to bo given in tho city of Montn^il by Laval University, and said Laval University did, in fact, every year since 1H7!>, give lectures in, a,id teach law and iiiodicino in tiio city of Montreal to a large number of students, and did deliver certiticates and diplomas and confer university titles and degrees to the students following the lectures so given by it in the said city of Montreal, although it hiul no power to do so by law, or its charter, thereby assuming and exercis- ing powers, franchises and privileges in excess, and in direct violation of law, and of its charter. (().) Tho avowed purpose of this illegal teaching in the city of Moo, by law the visitor of said university, and the bishops of the said province, to be pleased to add to the poweis already defined in the royal charter of 18.'32, such clause as Her Majesty might think fit, to dispel all uDubts r.iised, as to the legality of said branch faculties in Montreal. (12.) In a letter from the Under Secretary of State for the Colonies, written by order of the Earl of Kimberley, dated 20th January, 1881, and addressed to Mes.srs. Bircham & Co., petitioners' agents in London, after stating that his Lordship had received from the Govei-nor General of Canada said petition to the Queen by the lloman Catholic Archbishop and bishops of the province of Quebec, with regard to the powers of the university, and also a draft of a proposed new charter for that institution ; and, further, a letter from the officers of the School of Medicine and Surgery at Montreal, to the effect that they had, by their notary, summoned the Laval University to cease giving university instructions at Montreal, and to abolish the branch house and the professorships which it has therein established, and have warned the university that in defiult of its not conforming itself to the summonses within thirty days from the 4th October last, they would appeal to competent tribunals to obtain justice; the Under Secretary adds that the Secretary of State has informed the Govei-nor General of Canada, that it does not appear to him necessary to decide the question at present, as he does not think it right to invite Her Majesty to interpose, while theqaestionas to the powers of Laval University, is about to be decided in a court of law. The meaning of these last words is made clearer by a communication from T. Bircham, Esq., petitioners' agent in London, to Dr. D. d'Orsonnens, president of the said MontreJ School of Medicine :ind Surgery, dated 2nd May, 1881, in which he commuiTicated to the said president an information which he had just received from the Colonial Ottice, to the effect that the Secretary of State, before tendering any advice to Her Majesty or, the subject, proposes to await the result of the legal proceedings which, he was informed, have been instituted in the provincial courts of Quebec, on the (jues- tion in dispute between the School of Medicine and the Laval University. Under such circumstances, liOrd Kimberley considered that, at that stage, no advantage would be gained by complying with Mr. Bircham's request for a copy of the new charter. (13.) Aftiir a .second notarial protest made on the 23rd March last past (1881) your petitioners did, in the lieginning of April last past (1881), petition the Honourable the Attorney General of the province of Quebec, for leave to use his name in proceedings, in the nature of a prohibition, to be instituted against the said L'Universite Laval, on account of the Eaid illegal teaching in the said city of Montreal, as provided by article 997 of the Code of Civil Procedure of Lower Canada, and its amendments. After hearing your petitioners, and L'Universite Laval, Vjy their counsel, the Attorney General granted the prayer of the said petition, on certain conditions of secu- rity, for costs, which have been complied with. (14.) On the 14th day of April last past, a petition was presented to a judge of the superior court, sitting in chambers in Montreal, under articles 997 and 998 of said Code of Procedure, in the name of the Honourable L. Onesime Loranger, Attorney General for the province of Quebec, pro Regina, praying for the issuing of a writ of summons to order I'Universite Laval to appear and answer said petition, and show under Avhat authority it lias established said branch faculties of Law and Medicine in the city of Montreal, given lectures therein and confeired certificates, diplomas and university degrees and titles to the students of said branch faculties, and on default _'f cause being shown to the satisfaction of the court or judge thereof, that it be declared by said court or judge, that by reason of the facts above set forth, I'Universite Laval (Laval University) at Q' bee, in the province of C"..iada, have illegally and unlawfully assumed and exercised powers, privileges and f'' .■v.chises, unauthorized by law and h) their said charter, that an order do issue to the defendants to abolish said liranch facul- ties, and to discontinue said teaching in Montreal, and to cease issuing diplomas, certi- ficates and conferring university degrees and titles to the students in the said branch faculties. 4445 VICTORIA, 1881. mi jesty, thrcugh his Lord- 'isitor of said university, le powers already defined ht think fit, to dispel all itreal. the Colonies, written by ,nd addressed to Messrs. ; that his Lordship had 1 the Queen by the Roman ith ref,'ard to the powers 'or that institution ; and, nd Surgery at Montreal, aval University to cease le branch ho\ise and the led the university that in thirty days from the 4th stain justice; the Under vernor General of Canada, Lion at present, as he does e qaestion as to the powers communication from T. rsonnens, president of the I May, 1881, in which he liad just received from the e tendering any advice to le legal proceedings which, s of Quebec, on the (jues- University. Under such no advantage would be the new charter. iirch last past (1881) your ition the Honouiable the his name in proceedings, d L'Universite Laval, on il, as provided by article amendments. val, by their counsel, the sertain conditions of secu- presented to a judge of articles 997 and 998 of esime Loranger, Attorney the issuing of a writ of said petition, and show IS of Law and Medicine in certificates, diplomas and acuities, and on default -'f hereof, that it be declared forth, rUniversito Laval I illegally and unlawfully luthorized by law and h) abolish said branch facul- tse issuing diplomas, certi- adents in the said branch (15.) The said petition and writ were duly returned v to court on the day fixed for that purpose ; the defendants have appeared and filed a preliminary plea by way of de- clinatory exception, by which it is alleged that the defendants, being located and having their principai establishment and seat in the city of Quebec, they could not be impleaded ill the; district of Montreal, but in the district of Quebec only. This preliminary plea has not been disposed of as yet, on account of the steps which were immediately taken by the authorities of the Laval University to obtain from the Quebec legislature the bill hereafter mentioned, by which it was expected to enlarge the; jjowers conferred on it, by its royal charter and to legalize said branch faculties so questioned in courts of law. (16.) Notices were then immediately given on behalf of said university, in the Que- l)ec Offii'iaf (Jazette and in two newspapers, one French and one English, published in tlie city of Quebec, but nowhere else, that there would be presented to the legislature of the province of Quebec, at its next session, a Bill concerning the Laval University and tiie multiplication of its chairs of instruction in the Arts and other faculties. (17.) It was on such notices that the Bill No. 15, intitutled : "An Act respecting Laval University, and for the purpose of increasing the number of its chairs of Arts and other faculties within the limits of the province of Quebec," was presented, which, in its original form reads as follows : — " Whereas certain persons have raised doubts with reference to the right of Laval University to give a university course elsewhere than in Quebec ; and whoreas it is expedient to remove such doubts : "Therefore Her Majesty, by and with the advice and consent of the legislature of the province of Quebec, enacts as follows : — "(1.) Laval University is empowered to increase the number of its chairs of Arts and other faculties within the limits of the province of Quebec. " (2.) The present Act shall come into force on the day of its sanction." (18.) Your petitioners and an immense number of citi/.en.s, opposed said Bill before both houses of the legislature, and over .'340 petitions of clergymen and laymen of all classes, mostly from that section of the province of Queliec, included south of the diocese of Quebec, were presented to both 1; yases of parliament and to his honour the Lieuten- ant-Governor of the said province, while only four petitions were presented in its favour which were chiefly from persons connected with said university. (19.) But said bill was adopted by both houses of parliament, with amendments tiiat made it yet more objectionable than in its original form, to wit : by providing in a new section (2) that said bill would not apply to pending cases as to damages and costs only. It received the a.ssent of the Lieutenant-Governor under the above title. 20. It passed through both houses in direct violation of their rules namely : — {a) No notice of said bill was given in the district of Montreal, which, in fact is tiie one mostly affecteil by it. {h.) The bill goes further than the notices, in this, that it includes the words "Hiihui the limit'; of the pi'ovince of Quebec," which words change the nature and ex- tout of the bill altogether. (c.) It -v'as presented, and passed the first and second read!i.|[; in the legislative council without any petition having ever been presented in support of it. {d.^ It was iTiver reported by the committee of the stanriing orders of said council tliat the notices had or had not been given. (e.) The rules of the legislative council were never suspended, so as to dispense with the notices of the report of the standing orders committee about the notices. {/.) The three readings of said bill in the legislative council were altogether irre- K'ili >r, and only passed after a formal protest was regularly entered into journal." of the cour.cil against the violation by the majority of the council, of the rules made for the protection of the minority thereof, and of private rights. (21.) The total disregard of these safeguards of public and private interests, and the passing of .said bill, were only had through a considerable pressure unduly exercised upon the consciences of the Catholic members of both houses of parliament, namely, by i te tm 302 QUEBEC LEGISLATION private and public letters of hia lonlship the Roman Catholic Archbishop of Quebec, ami some of the bishops of said province, who invoked the authority and the name of tlie Catholic dignitaries at Rome in favour of the said bill, whilst your petitioners have reason to believe that the said di}j;nitaries had carefully refrained to interfere in a question then, and yet, pending V)efore the courts, and out of respect to Her Majestj', who, by her mini8ters,has peremptorily decliner J to entertain, pending said iit,jgaliv,'a, the demand of new i)owers which the local legislature of Quebec had presumed to gi'ant to Laval University in excess of her royal charter. (22.) Your petitioners most respectfully beg leave to submit to your Excellency the following documents annexed to this petition as forming part thereof: — (n.) A printed copy of ^^ Consfitufion rt n^gliments dr /' Univn-dfil Laval, .'/ih Editimi, 1S7',>," containing the text of the said royal charter, of a Bull of His Holi- ness Pope Pius IX,, granting the canonical erection of Laval as a Catholic University, and the rules and regulations of said university. (A.) A printed pamphlet intituled : "(JufHt'touA sur hi siiccnraaf)'. de I'Uniwjvile Lava/, I8SJ," containing a pamphlet in favour of the bill, divers letters from Rome authorities, from the Anihbishop of (Quebec, of Marianopolis, &c., etc. Petitions to the Queen and to Quebec legislature by the Archbisiiop of Quebec and a number of bishops, in reference to said question of the branch faculties in Montreal. {('.) Printed return to an address of the Senate of Canada for copif'S of correspon- dence, petitions, etc., relating to Laval University of Quebec, 18^1, ^n^^J•ri.u^, among other documents, the letters of Hoi». J. Bramston, Under-.Secretai y ii' 3t<.i the Col- onies above referred to. (d.) A pamphlet printed by order of the Quebec legislature contaiiung Aid proceed- ings of the Private Bills Committee on said Bill No. 15, and the documents filed before it, 1881. (e.) A printed copy of said Bill No. 15 as originally presented. (/.) A l'Ven(!li printed copy of the Bill No. L'), as amended and finally adopted. (g ) A printed pan.phlet issued by your petitioners, and containing information about it, and the rules and regulations of the Montre.il School of Medicine and Surgery, 1880. (A.) Copy of the opinion of Mr. F. Herschell. (i.) Copy of a notarial protest by your petitioners to Laval University, dated Itli Octijber, 1880. (_/.) Copy of a second notarial protest dated 23rd March, 1881. (k.) A series of the votes and proceeding of the legislative assembly of Quebec, 1881, mentioning petitions for and against said Bill No. 15 ; those cf the 8th and 13v(i June, 1881, containing the proceeding of the House on said Bill No. 15. (/.) A series of the votes and proceedings of the legislative council men ing petitions against and for said Bill No. 15 ; that of the 15th June showing, ^'u-..!!ft• that said bill was brouglit with a message from the legislative asseniljly, a; 1 ' :i said bill was read on that day for the first time, and the second reading was ui'Mei- for Friday tlie 17th June ; that of the 17th June showing that the said bill was r^. for the second time on that day, and referred to the Private Jiills Committee ; that the petition by "the rector and members of the Laval University," in support of siiii bill, was only presented on that day; that of the 21st June containing a report of ..in Standing Orders and Private Bills Committee on said last petition, recom'""n'J-..ig that said petition be reported, notwithstanding that it was not pre;5ented within the tinit> limited for the reception of petitions for Private Bills, which report wa.s adoptetl on :•■ i''(Si said Laval University, in the superior court, sitting at Montreal, together a • Hon. L. Ijoranger's fiat and Judge Rainville's order. d I 44-45 VICTORIA, 1881. 30J rchbisbop of Quebec, and y and the name of the t your petitioners hav(' ained to interfere in a respoct to Her Majesty, nding said litigation, i\u' id presumed to granc to it to your Excellency tlie lereof : — rUnivr^ild Laval, .'/ih of a Bull of His Holi- ,s a Catholic University, ucciirsah de VUniversih' livers letters from Ro'iic c, kc. Petitions to tlic !ind a number of bishoiis, 1. a for copio? of correspoii- 1881, ■M-r\jf'm.u^, iiniong staiy o'' r-in.v •(he Col- e contaiii.iw ,,i;e procei'd- .he documents filed betmi; nted. d and finally adopted, d containing informatiim of Medicine and .Surg»iy, ival University, dated Itii 1881. ative assembly of Queli r, those cf the 8th and l.;;n !ill No. 15. islative council mem - th June showing, fUJ":' lative assembly, a; 1 " a' ;ond reading was c Ufii ■! lat the said bill was r^u ,te Jiills Committee : that Brsity," in support of said containing a report of '..'.lo itition. reconi'""'i'_V..ig thiit presented within the time 1 report was adopted on a !, that it reported said bill e proceedings of the legis- Bill No. ir),and. protest iiand of prohibit. o: :> '^Sn'iX, ontreal, together ^r i: i'-,e (n.) Copy of the preliminary plea of Laval University to said petition, and your petitioners' answer thereto, and certificate. (o.) A letter from S. Birchani to Dr. d'Or.sonnen.s, datt;d 2nd May, 1881. (]>.) A list of petitions against said Bill No. 1.5. Your petitioners most respectfully and humbly submit : — Flrstli/. That the said Act is ultra vires of the Quebec legislature and unconstitu- tional, inasmuch as it purports to extend the powers, privileges and franchises granted to L aval University by said royal charter in a manner which relates to the royal prero- ijative of conferring lionorary degrees and titles, namely, in assuming to extend the t<'aching power of Laval University to every city .md town in the province of Quebec, whilst Her Majesty only intended to confer, and only did ccmfer the powers, franchises and |irivileges of a university to a seminary, located and teaching in the city of Quel)ec, and to " Laval University at Quebec, in the province of Canada. " Sicondly. That the passing of said Act by the Q-.ebec legislature, for the purposes of settling a pending lawsuit, by legislation, is immoral and desi.uctive of the respect due to the law courts, and to the legislature of the country. T/iirfUi/. That the passing of said Act by the Quebec legislature, for the purpose of granting to Laval L^niversity the power of teaching elsewhere than in the city of Qufi)ec, to which place it is i-estricted by its royal charter, while a demand of the same nature has been made by the said Laval University directly to, and is yi-t pending bi'fore. Her Majesty, who has only declined to interpo.se and entertain said demand, so long as the question of the powers of said university are submitted to the decision of the courts of law, but graciously keeping said demands in abeyance for future consid- eration, after a final adjudicjition by the courts upon said question, is most disrespectful to Her Most (Jracious Majesty and to Htr Government, and tends to discredit and abuse the dignity of Her royal power and authority. Foiirf/ily. That your petitioners have been unfairly treated by said Laval Univei'- sity, who, in its desire to supplant and destroy the medical school kept by them in Montreal since 1845, has made to it a most unfair competition, and caused a most dis- loyal war against it in every way and form. Fifthly. That the Quebec legislature has disregarded all principles of justice in passing said bill, and violated all its rules and regulations to such an extent, that unless such course of proceedings be checked at once, there will be no })rotectioii either to private rights, or to public interest. Sixthly. Tiiat the object of the said bill is to create a monopoly of high classical and university teaching in the province of Quebec for the French Catholic population, thereby preventing all emulation, both among professors and students, to the great detii'nentof progress, of sciences, and giving to a single corj)oi'ation such a powerful and omnipotent influence over the educated portion of the populal^ion of this province, as to be detrimental to the well being of said province. Seventhly. That the French Catholic population of that section of the province, extending south of the archdiocese of Quebec, to wit : of three-fourths, at least, of the wliolc province, including the rural clergy, is opposed, almost unanimously, to the grant- ing; of such extended powers to Laval University, as evidenced by the 340 petitions, and one presented to the three branches of the Quebec legislature against the passing of said Bill. Eighthly. That the legislation embodied in the said Act is contrary to sound prin- ciples of legislation, inasmuch as it is declaratory of the powers contained in the said royal charter, while the ([uestion of such powers is siili jiidic; and it declares to have been the law, that which was not the law, and legislates c' y>o.s/''y«c/o, is retroactive, affects pending cases and interferes with private rights ; and inasmuch as said local legislature ha.s, without aiiy demand, assumed to interfen^ with private parties engaged in litigation, and to disregard the well-being and wishes of all the j)opulant>n to be affected by such legislation, in order to satisfy the ambition of an already overpowerful corporation ; Your petitioners most respectfully and humbly submit — ■I 304 QUEHEC LEGISLATION Act. That an order should he made by your Excellency for the disallowance of the said And your petitioners will ever pray. THS. E. D'ODET D'ORSONNENS, M.D., CM., LL.p., I'7'esidenf. Montreal, 8th August, 1881. J. EMERY CODERRE, Secretary. Report of the Honourable the Minister of Jnsfice, approved by His Excellency the Governor General in Council on the 24th July, ISS,.'. Department of Justice, Ottawa, 18th July, 1882. To Hift Excellency the Governor C.neral in Cou7icil : — The undersigned has the honour to make the following additional report upon tlie Acts pass- ' ; y the legislature of Quebec in the year 1881. Chape ' " ' n Act respecting Laval University, and for the purpose of increas- ing the nun> 'ts Chairs of Arts and other Faculties within the limits of the Pro- vince of Quebe The Montreal School of Medicine and Surgery have, by their petition to your Excellency, prayed that this Act be disallowed, and have stated a number of grounds in support of their petition. The undersigned is of opinion that the Act is within the powers expressly conferred upon the legislature by " The British North America Act," and therefore recommends that it be not disallowed. Chapter 69. An Act to incorporate the Canadian Electric Light Company. By section 20 of this Act inter alia a penalty is imposed on "anyone who wilfully or maliciously breaks up, pulls down or damages, injures, puts out of order, or destroys any wire, injures pipe or plug used for an electric circuit, or any instrument, meter, lamp post, abutment^ pier, or the materials connected therewith, or any other works or apparatus, appurtenances or dependencies thereof, or any matter or thing made and provided for the purposes aforesaid, or any of the materials used and provided for the same, or ordered to be erected, laid down or belonging to the company. By 32 and 33 Vict., chap. 22, sections 59 and GU (Acts of Parliament of Canada), the offence created by the part of the section recited is a misdemeanour, if the damage exceed $20, or an offence punishable by fine, and in case the fine is not paid, by imprisonment. Chapter 72. An Act to incorporate the Quebec and Levis Telephone Company. The same conflict of ij.w is created by the 9th section of this Act. The undersigned reconnuends that the attention of the Lieutenant-Covernor of Quebec be called to those sections, with a view to their amendments at the next session of the Quebec legislature. A. CAMPBELL, Minister of Justice. Confidential Memorandum of the Honov,rable the Minister of Justice. Memorandum in regard to " An Act respecting Laval University, and for the purpose of^ increasing the nvmher of its Chairs of Arts and other Faculties within the limits oj the Province of Quebec^'' passed by the Legislature of the Provifice of Quebec in the year 1881, stating reasons for recommending tlmt the Act be not disalloxved. The Montreal School of Medicine and Surgery have petitioned his Excellency, and prayed that the Act be disallowed. The grounds put forward are, briefly : lat. That it is ultra vires, as extending the royal charter by which Laval University is incorporated. 44-45 VICTORIA, 1881, 305 lisallowance of the said D., CM., LL.D., President. lY CODERRE, Secretary. : Excellency the Governor > A, 18th July, 1882. ditional report upon tlio the purpose of increas- in the limits of the Pro- ' their petition to your ;ed a number of grounds at the Act is within the h North America Act," Light Company, n " any one who wilfully out of order, or destroys r any instrument, meter, h, or any other works or tter or thing made and id and provided for the ampany. Parliament of Canada), ^meanour, if the damage ;he fine is not paid, by Telephone Company, lis Act. Lieutenant-Covernor of ments at the next session 2nd. That it is passed while the powers of Laval University are under considei- ation in the courts, and for the purpose of settling an existing suit. That the legis- lation is therefore improper, and tends to destroy public respect for the courts. 3rd. That it was passed without due compliance with the rules of the legislature of Quebec, and in violation of those rules. 4th. That the legislation is e,x'/)o.t<_/rtr^;. 5th. That there were only four petitions before the legislature in favour of it, and a large number against it, showing that the French Catholics are opjjo.sed to the Act. 6th. That Laval University has for years warred against the " Montreal School of Medicine and Surgery," and that, if the Act is not disallowed, the competition of the former will not only be unfair, but fatal to the latter. That at the time it was passed, the Montreal School of Medicine and Surgery had an application before Her Majesty for a charter giving similar powers. As to the first ground, the undersigned is of opinion that the Act is within the powers expressly conferred upon the legislature by "The British North America Act," and is not ultra vires, even if it does extend the powers conferred upon Laval University by the royal charter. As to the second ground, the undersigned is of opinion that it does not in this case afford a sufficient reason for recommending the disallowance of the Act, and in this connection would observe that, although the Act may extend the powers of the Laval University, it takes away none of the rights or powers of the Montreal School of Medicine and Surgery, or of any other person or body politic. It differs materially from the case of an Act aflecting an ordinary suit, or matters of dispute between individuals, where what is taken from one litigant is given to the other. As to the third ground, the undei-signed is of opinion that, as the Act comes properly certified, it must be assumed that it w.as properly enacted — the legislature must judge for itself as to what is a sufficient compliance with the rules which it has ordained for the orderly conduct of its business. As to the fourth objection, the undersigned would observe that it is by no means clear that the Act is retroactive in its effect, and whether it is or not, he is of opinion that this of itself does not afford sufficient reason for its disallowance. There is nothing in the fifth, sixth or seventh grounds to justify the disallowance of this Act. The objections were proper matters for the consideration of the legislature, but can- not, in the opinion of the undersigned, be taken into account in this case, in deciding the question as to whether the Act should be disallowed or not. CAMPBELL, Minister of Justice. MPBELI, Minisitir of Justice. lister of Justice. ty, and for the purpose of ulties ivithin the limits oj Frovifice of Quebec in the e not disalloived. ititioned his Excellency, 'ard are, briefly : larter by which Laval ^-1 ^?' 306 QUEBEC LEfJISLATlON QUEBEC— 45th VICTORIA, 18«2. IsT Session — 5th Leoilj.v Report of the Honourable the Minister of Justice, approved by His Excellency the Governor General in Council, on the 7th June, 188S. Department of Justice, Ottawa, 5th June, 1883. To His Excellency the Governor General in Council : The undei'signed has had under consideration the Acts passed by the legislature of the province of Quebec in the session of 1882. While respectfully recommending that the said Acts (chapters 1 to 108 inclusive) be left to their operation, the undersigned desires to observe : (1.) That in Acts authorizing municipal and other corporatioi to borrow money, it is convenient for local legislatures to give power to pay interest, ;uid also to limit the rate of interest which the corporation may pay, probably no objection exists to a local legislature enacting that a corporation may pay any rate that may be legally agreed upon, or that it may pay a fixed rate within the maximum rate at the time lawfully established. In a number of Acts of this session there are provisions of this kind where the power of Parliament to legislate on the subject of interest is in this way indirectly recognized. In other cases it is not. It is desirable in all lature should be so drawn as to recognize the fact legislative authority over the subject of interest. (2.) By the 1st section of chapter 4, intituled : vention of the crown in civil cases, in which the constitutionality of Federal or Pro- vincial Acts is in question," it is provided as follows : — " No question as to constitutionality of any Act of the province or of the federal parliament shall be raised before the courts of original jurisdiction or of appeal, unless the party raising the same shows to the court that he has, at leahfc, eight days before the day fixed for the hearing, given notice to the Attorney Gene al of the question which he intends to raise, with sufficient information to enable him to understand the nature of his pretensions ; upon such notice the Attorney General may intervene in the case on Ijehalf of the crown, and take issue in writing on such questions, and the judgment of the court, whether it grant or refuse his conclusions, shall mention such intervention, and such conclusions on which it shall render judgment, as if the Attorney General were party to the suit, and a copy of such judgment shall be for- warded without delay to the Attorney General. So far as this section deals with Acts of Parliament, it is, in the opinion of the undersigned, objectionable, to say nothing n^ore, and ought to be amended by striking out the words, "or of the federal parliament." (3.) Chapter 9. An Act to amend the Quebec License Law of 1878 (41 Vic, chap. 3), is, in the opinion of the undersigned, ultra vires of the local legislature. Attention has been frequently called to Acts of this class, but hitherto they have been left to their operation. Now that parliament has legislated upon the subject, it will become necessary to consider the quL's*:ion of disallowing legislation by the local legislature on the subject in excess of their powers. cases that Acts of the local legis- that Parliament has the exclusive An Act to facilitate the intei'- ,t Acts of the local legis- iament has the exclusive jt to facilitate the inter- lality of Federal or Pro- L'ovince or of the federal ition or of appeal, unless ; least, eight days before Gene al of the question tiable him to understand Y General may intervene y on such questions, and onclusions, shall mention rndei" judgment, as if the ;h judgment shall be for- is, in the opinion of the be amended by striking e Law of 1878 (41 Vic, e local legislature. is, but hitherto they have lated upon the subject, it y legislation by the local 45 VICTORIA, 1882. 307 •82. by His Excellency the ; 1888. i WA, 5th June, 1883. )assed by the legislature ipters 1 to 1 08 inclusive) itioi to borrow money, st, iiud also to limit the jection exists to a local at may be legally agreed ate at the time lawfully provisions of this kind )f interest is in this way However, as the Act under consideration was passed before the decision in Russell ft). Tlie Queen, it may, it is thought, together with tiie Act of which it is an amend- ment, be left to fall by tiie decisions of the courts, and it is not necessary to disallow it. (4.) A petition has been received from certain insurance companies doing business at Montreal, praying for the disallowance of ciiap. 22, intituled : "An Act to impose ceitain Direct Taxes on certain Commercial Corporations." As the question of the validity of this Act is now before the courts, it is unnecessary to consider the grounds upon wliich the petitioners urge that it is outside the legislative authority of the legislature, or to express any opinion in regard thereto. It ought, in the opinion of the undersigned, for the present, to be left to its opera- tion, and for judicial decision. (.").) With respect to the 2nd section of chap. 35, intituled: "An Act to further amend the Municipal Code of the Province of Quebec," the undersigned is of opinion that to apply the provisions of the law therein cjuoted to federal government railways, is beyond the power of the provincial legislature. The section should be amended as to exclude government railways, tiie property of the Dominion. (6.) By the 12th subsection of the 23rd section of chapter 103, intituled : "An Act to incorporate the Town of llichTnond," the town council is given power to make hy-laws to restrain, regulate or prohibit the sale of any spirituous, alcoholic or intoxi- cating liquors within the limits of the town. The observations in regard to chapter 9 apply to this provision. If these obser- vations are approved of, the undersigned recommends that tlie substance of them be communicated to the Lieutenant-Governoi' of Quebec, for the consideration of his government, to the end that they may invite such legislation at the next session of the Quel)ec legislature, as will meet the amendiaaents suggested. CAMPBELL, Minister of Justice, \\ i \i 'i, I'. 308 QUEBEC LEGISLATION, 46 VICTORIA, 1883. QUEBEC— 46th VICTORIA, 1883. 2nd Session — utii Leoislature. Report of tfie Honourable the MiniMer of Justice, approved by Ilia Excellency the Governor General in Council, on the 29th June, 188^. Depautment of Justice, Ottawa, 23rd June, 1884. To His Excellency the Governor Qnneral in Council : The undersigned has the honour to suV)mit hia report on the Acts of the legis- hiture of Quebec, passed in the session lield in tlie year 1883. Chapter 13, intituled: "An Act to amend the law respecting the constitution of the Superior Court," assigns an additional judge to the district of Quebec, and provides that the judge to whom it is assigned in the county of Gaspe, shall also exercise his functions in the county of Bonaventure. Resolutions were passed by twelve munici- palities of the county of Gaspe asking that this Act be disallowed, and were transmitted to this department by Dr. Fortin. To these resolutions the undersigned replied that, after careful consideration of the subject, he could not see his way to advising his Excellency to disallow the Act, that the subject of the Act was one particularly and exclusively assigned to the provincial legislature by the constitution, and the Act was within the competency of that legis- lature. Parliament has made provision for the payment of judges in accordance with this Act, which in the opinion of thf> undersigned, should be left to its operation. Chapter 55, intituled : " An Act to confirm the Act of the Federal Parliament, 4o Vic, chap. 101, intituled : ' An Act to amend and extend the Act to empower the Stadacona Fire and Life Insurance Company to relinquish their charter and to provide for the winding up of their affairs,' and to render valid the provisions of the said Act and to give effect thereto." This Act is passed apparently because doubts have arisen as to the authority of Pai-liament to make provision that, in the winding up of the companies mentioned, pro- ceedings for the recovery of claims muai be taken within one year. Parliament having the authority to legislate in regard to the winding up of the company, on account of its insolvency would, it is thought, have power to enact the provisions mentioned. At most, however, the Act is only an unnecessary one, and, as it affects no general interests, and was passed for the quieting of d.ubts, the undersigned, while stating that he does not share those doubts, recommends that it be left to its operation. Chapter 76, intituled : " An Act to incorporate the Citizens Gas Company of Mon- treal." By section 25 a penalty is imposed for the offence of obtaining or using the company's gas without their consent by connecting with their pipes. This has been held to be larceny. Regina m. Firth — L.R. 1, C.C.R. 172. By sections 26 and 29, penalties are imposed for wilful and malicious injuries to the property of the company for which provision is made by the Act of Parliament 32 and 33 Vic, chap. 22, intituled : An Act respecting malicious injuries to property. The undersigned recommends that this Act be left to its operation, and that the attention of the Lieutenant-Governor of Quebec be called to the provisions of sections 25, 26 and 29, with a view to their being amended in the direction indicated. After careful consideration the undersigned recommends that the remaining Acts of the session (chapters 1 to 12, 14 to 54, 56 to 75, 77 to 101, inclusive) be left to their operation. A. CAMPBELL, ^ Minister of Justice. ^^ QUEBEC LEOIRLATION, 47 VICTOHIA, 1884. 309 83. QUEBEC, 47th VICTORIA, 1884 by His EMellencij tlif ', 1884. K, 23rd June, 1884. 1 the Acts of the legis- cting the constitution of , of Quebec, and provides i, shall also exercise his issed by twelve uiunici- ed, and were transmitted •eful consideration of the 5 disallow the Act, that dgned to the provincial lompetency of that legis- in accordance with this its operation. ) Federal Parliament, 4o he Act to empower the ir charter and to provitle :ovisions of the said Act en as to the authority of >mpanies mentioned, pro- year. Parliament having impany, on account of its ions mentioned, d, as it affects no general ligned, while stating that ts operation. ns Gas Company of Mon- obtaining or using the sir pipes. This has been ad malicious injuries to le Act of Parliament 32 injuries to property. operation, and that the the provisions of sections tion indicated, that the remaining Acts nclusive) be left to their MPBELL, Minister of Justice. 3rd Sesbion — 5th Pakliament. Rij>ort of the Honourable the Minister of Justice, nppi'oved by His Excellency the Governor General in Council on the Sth J%dy, 1885. Department op Justice, Ottawa, 10th June, 1885. To His Excellency the Governor General in Council : The undersigned having had under consideration the Acts passed by the legislature of the province of Quebec, in the session held in the year 1884, has the honour to recom- mend that the Acts (chapters 1 to 76, 78 to 86, 88, 89, and 91 to 97 inclusive) be left to their operation. Chapter 77. An Act to authorize the Government of Quebec to take possession of a certain toll-bridge over the River Richelieu. A petition was presented on the 1st of August last by the Hon. R. Laflamme, Q.C., acting on behalf of the representatives of the late Hon. R. Jones, to whom the privilege of building the bridge and taking tolls thereon was granted by an Act of the legisla- ture of Lower Canada, 6 Geo. IV., chap. 29, praying for the disallowance of this Act, on the ground that it is an invasion of the right and a dispossession of the property secured to Mr. Jones by a solemn contract of the legislature of Lower Canada, for the purpose of transferring the same to a municipal or private corporation, without any benefit or advantage tv> the public at large, and also that it deprives the petitioners of their pro- perty without providing that payment of the value thereof shall be first made, and takes away their recourse to the regular tribunals of the country. The petition was communicated to the Lieutenant-Governor of Quebec for such observations as his government might see fit to make thereon, and on the 23rd Febru- ary last his Honour transmitted a report of his Attorney General on the subject, approved by order of his executive council. In reply to the objections urged on behalf of the petitionee i, the Attorney General of Quebec refers to the sections 3 and 8, of 6 Geo. IV., chap. 2j, which provide for the assumption of the bridge by the crown, after the expiration of fifty years, on payment of the value thereof, whereupon the bridge shall vest in the crown, and points out that such right of the crown is made subject to no other conditions. With respect to the contemplated transfer by the Quebec government of the bridge to a municipal or private corporation, it is contended that the parties have no interest in objecting to such a course, which, as a matter of fact, is in the public interest, and is adopted with a view to reducing the tolls. As regards the question of compens^.-.tion, it is denied on behalf of the Quebec government that the Act provides for the taking possession of the bridge by the government, upon paying the value thereof to the owners, and it is alleged that the matter was referred to arbitration, under the law of the province governing arbitrations. The undersigned, upon consideration of the whole matter, can see no reason for advising the disallowance of the Act. Its subject matter is one peculiarly and exclu- sively within the competence of the provincial legislature, and the grievance disclosed by the petition is, in the opinion of the undersigned, sufiiciently met by the answer of the government of Quebec. 20 t P 310 gUEUEC LRtilHI.ATION t \ The Quebec government appear to have acted in the exercise of an undouhtfcl right and in the pul)lic inter.st, atcd proueedings have been commenced for tiie purpose of establishing the value of the petitioner's rights, in which they have apparently acquiescetl, by naming one of the arbitrators. The undersigned humbly advises that the power of disallowance l»e not exercised with respect to this Act. Chapter 87. " An Act to further amend the Act 27 Vict, chap. 23, and the Act 3!» " Vict., chap. 47, in order to modify and better define the general powers of the corfxjra- *' tion of the town of Joliette, and for other purposes. Section 15, subsections 4, 5, 6 and 7, and sections Ifi and 17, are as follows : — 4. It shall be lawful for any constable, when on duty, to arrest all idle and dis- orderly persons whom he may find disturbing the public peace, or whom he may have good reasons to suspect of any evil design, and any person whom he may find lying in any field, road, street, yard or other places, or loitering therein, and not giving a satis- factory account of himself, to deliver such persons so arrested into the custody of the officer or constable appointed under this Act, and who shall be on duty, or in charge of the police station or guard house established for that purpose by the said council, in order that such person be kept in safe custody until he can be brought l»efore the mayor, pro-mayor, one of the councillors of the said town, or before a Justice of the peace, to be dealt with according to law. 5. In addition to the powers and authority conferred by the preceding subsections upon the said constabulary force, it shall and may be lawful for any ofKcer or constable of the said force, by day or by night, to arrest on view any person infringing any of the by-laws of the said town of Joliette, or of the council thereof, the infringement of which is punishable, and it may and shall be lawful also for each such officer or constable to arrest every such person infringing any such by-lav/s, immediately, or after the offence has been committed, upon sufficient information being given to him as to the nature of the offence, and to the persons who have committed it. 6. All persons so summarily arrested may be at once conveyed to the court house of the district of Joliette, or to any other place which the council may be pleased tf indicate by by-law, to stand their trial before the said mayor, pro-mayor, or justice oi the peace who may be present, or in order that they may give bail or recognizanc( before the said mayor, pro-mayor or justice of the peace, to appear on the day fixed b) the said mayor, pro-mayor or justice of the peace to answer to the charge or complain brought against them, and for which they may have been arrested as aforesaid. 7. In every such recognizance so taken, the parties thereto shall bind themselv equally for the same amount, and it shall be subject to the same procedure as to the for feiture thereof, before the said mayor, pro-mayor or justice of the peace, as a recogni zance taken before a justice of the peace and forfeited before the Court of Genei Sessions of the Peace for the district of Joliette ; provided that nothing herein cor tained shall prevent the persons so summarily arrested from being examined and trie at once when they are brought to the court-house, or othei' place fixed by the said counc as aforesaid, before the said mayor, pro-mayor or justice of the peace, if the offence ft which such persons have been arrested, can bt legally brought before such mayor, pn mayor or justice of the peace. 16. And if the party does not appear but applies, by any person in his name, postpone the hearing of the charges against him, and if the mayor, pro-mayor or justic of the peace think proper to consent thereto, the said mayor, pro-mayor or justice of t peace shall be at liberty to continue such recognizance until a later period which shall specify, and when the affair is heard and '"cided, either by the charge being c missed, or the party being called upon to answer to the said charge later on, the recogi zance for the appearance of the said party before the mayor, pro-mayor or justice of t peace, shall be cancelled. 17. If any person assaults or resists, or aids or incites another person to assault resist an officer or constable, appointed in virtue of this Act in the execution of duty, such delinquent shall, upon conviction before the mayor, pro-mayor or justice 47 VICTORIA, 1884. 311 ixercise of an undoubted ininencod for th« purpose h they liavc iipparontly owanco be not exercised , chap. 2.3, and the Act :i',i iral powers of the curptjru- 17, are as follows : — a arrest all idle and dis- ce, or whom he may have hom he may find lying in in, and not giving a satis- )d into the custody of the le on duty, or in charge of Qse by the said council, in brought before the mayor, justice of the peace, to he the preceding subsections for any officer or constable arson infringing any of the , the infringement of which mch officer or constable to liately, or after the offence to him as to the nature of iveyed to the courthouse council may be pleased to or, pro-mayor, or justice of ' give bail or recognizance ippear on the day fixed by to the charge or complaint ested as aforesaid, re to shall bind themselves ime procedure as to the for- of the peace, as a recogni- Bfore the Court of General i that nothing herein con- Q being examined and tried ace fixed by the said council the peace, if the offence for ight before such mayor, pro- ■ any person in his name, to mayor, pro-mayor or justice •, pro-mayor or justice of the itil a later period which he her by the charge being dis- charge later on, the recogni- •, pro-mayor or justice of the another person to assault or i Act in the execution of his ayor, pro-mayor or justice of the peace, incur and pay for each such ofTence, a Kim not exceeding tweniy dollars, or be liable to an imprisonment of not more than thirty days. Similar provisions are made by section 50, sulwection 4 and sections G') and 66 of Clip. 90, intituled : " An Act to incorporat(! the town of Sainte (.'unt'-gonde." These provisions, in the opinion of the undersigned, trench upon the power of Piiriiiiment; to legislate with respect to criminal law, and while reconunentling that the power of di.sallowancH be not exercised in respect of these Acts, lie recommends that the attention of the Lieutenant-Governor of the province be called thereto. A. CAMPBELL, Mi n inter of Justice. k « 20} (jUKBBO LKUIHLATION, 48 VltrrORIA, 1885. QUEBEC, 4{>th VI( ;T()R[A, 1885. 4tii Hkhhion — Brn Leoihi.atlkr. Report of the Honotirable the Mininttr of Juttire, npproved hy IHh E.fCellency lite Governor General in Council on the loth A/arch, 1886, Depaktmknt op .Fuhtick, Ottavm, 25th Kobruary, 1886. To His Excellency the Governor General in Conned : The undnrsigned ha.s tho honour to report upon the Acts passed by the legiHlatuic of the province of Queliec, in the Heawion held in the year 188.'). The undersigned having carefully considered the Acts (chapters 1 to 86 inclusive), rebpectfnUy recommends that tiny be left to their operation. chapter 10, intituled : "An Act respecting Escheats and Property confiscated to t'lo crown," it is provided that property that has devolvetl or shall devolve upon the by escheat, and property conKscuted for any cause whatever, except for criinc, are under the control of the Commissioner of Crown Ijiinds ; that such property may lie sold or transferred by the Lieutenant-Governor in council, upon such conditions as lie may impose, or that he may dispose of the property gratuitously in favour of any persnn having moral claims thereto. It will be observed that the word "property " is large enough to include personal property. But whether the crown, in the right of the Dominion of C nadn, or of a pro- vince, is entitled to personal property escheating for want of kin, - uestion not yet decided. For the determination of this question, a case is now pent the exche<|uer court between the unders.gned, for the Dominion cf Canada, and t»,. .^orney General of Ont-xrio {See Atty. Genl. Ont., v». Atty. Gen. Canada. Sup. Ct. Rep. vol. xiv, p. 730.) The undersigned recommends that the attention of the Lieutenant-Governor of Quebec be. called to this matter, and that he be invited to move the legislature, pending the decision of the legal question involved, so to amend this Act, as to limit its applica- tion to property which escheats to the crown in the right of the province, and that he be informed, however, that it is not the intention of your Excellency's Government, pend- ing the decision of that question, to interfere in the administration of the personal prop- erty of persons dying in the province of Quebec, leaving no next of kin or other per.son entitled to succeed, other than Her Majesty. By chapter 22, intituled ; " An Act to amend the Code of Civil Procedure, in so far as it concerns abandonment of Property," provision is made for tho administration of the estates of insolvent persons, substantially in the same way as it was done by tlii^ Act of the legislature of the province of Ontario, 48th Vic, chap. 26, to which the un- dersigned has referred in his report upon the Acts passed by tlie legislature of that pro- vince in the year 1885. For the reasons given in that report the undersigned recom- mends that the power of disallowance be not exercised in respect of this Act. {See ante, page 199.) Chapter 32, intituled : " An Act to protect the life and health of Persons employed in Factories," makes similar provision on this subject to those made by the Act of the legislature of the province of Ontario, 47th Vic, chap. 39, intitutled : "An Act for tin protection of persons employed in Factories." {See ante, pae 195.) Referring to the approved report of the Minister of Justice, dated 20th January 1885, in respect of the Act last mentioned, the undersigned recommends, that this M'\ of the legislature of the province of Quebec, 48th Vic, chap. 32, be left to its operatidii Respectfully submitted, JNO. S. D. THOMPSON, Ministsr of Justice. t^UKilKC LKOIHLATION, 49-50 VICTOIUA, 1880. 313 ^5. QUEHF^C, 40 50 VICTORrA, IHSC. % Hin E.toeUi'nvij /In- "h, 188(1. 15th February, 1886. passed by the legisliiturc liapters 1 to 86 inclusive), ,nd Property confiscated to )r shall devolve upon the latever, except for criiiif, hat such property may he )on such conditions as he ly in favour of any person ough to include persfiniil ion of C • nada, or of a pro- ' kin, ■ uestion not yet r pen( the exche(|uer find t... wuorney General I. Ct. Rep. vol. xiv, p. 730.) le Lieutenant-Governor of ve the legislature, pending Vet, as to limit its applica- le province, and that he be lency's Government, pend- ation of the personal prop- lext of kin or other person )f Civil Procedure, in so far for the administration of ^ay as it was done by the ihap. 26, to which the un- the legislature of that pro- rt the undersigned recom- pect of this Act. (See ante, health of Persons employed ise made by the Act of the titutled : "An Act for the e 195.) ustice, dated 20th January, recommends, that this Act 32, be left to its operation. D. THOMPSON, Minifttsr of Justice. 5tii Hehhion— 5tii I.koihlature. K^jmrt oj the llnnonrable the MiniHti'r <>f JuHtin; apjrrovi-d hy //in E.irel/pnry thr Governor Gcwral m CoiiucU, on the 2nd April, 1SS7. Dhpautmknt of Justick, Ottawa, 22nd March, 1887. 'I'll lli» Ercellency the Governor General in Council : The undersigned begs leave to submit his report on the Acts passed by the legis- lature of the province of (,)uebee, in the session of 1886, authentic copies of wliich were received by the Secretary oi State on the 20th of July last. Chapter 34. By the 1 6th section of chapter 34, intituled : " An Act lespecting the Bar of the Province of Quebec," the baU)nnier of the province is given precedence o.er the other members of the bar. A similar provision was containeii in the 16th section of the Act of the same legislature, 44-15 Vi-tuiia, chapter 27, which was left to its operation without conunent. {Sf'. ante page 297.) T is to be observed, however, that in Lenoir vs. Ritchie (3 Can., Sup. Ct. Uej.., 575,) Henry, Tasciiereau and Gwynne, JJ., constituting a majority of the court, held that a provincial legislature has no power to autliori/.e the Lieutenant-Governor to appoint Queen's Coun.sel, or to grant to any member of the bar, a patent of precedence in the courts of the province, as the prerogative of raising practitioners in the courts of justice to a superior emijienco, by constituting them sergeants, Ac, or by granting letters of precedence to such barristers as Her Majesty thought proper to honour with that mark of distinction, whereby they were entitled to such rank and pie-audience as were assigned to their respective patents, belonged in Canada, to your Excellency, as the representative of the crown, and not to the Lieutenant-Governors. In coming to this conclusion, it will be seen by reference to the report of the case, that the learned judges did not overlook, but took into consider- ation and discussed, the fact that in his despatch of 1st February, 1872, to Lord Lisgar, the Earl of Kimberley stated that he was advised that the legislature of a province, could confer by statute on its Lieutenant-Governor, the power of appointing t^ueen's Counsel, and with respect to precedence or pre-audience in the courts of the province, the legislature of the province had power to decide as between Queen's Counsel appointed by the Governor General and the Lieutenant-Governor. Since 1879, Lenoir rx. Ritchie has continued to be, and until reversed, should be accepted and respected as the authoritative enunciation of the law on the subject. It is clear, the undersigned thinks, that a legislature cannot, in this respect, exercise directly a power which it cannot enable the Lieutenant-Governor to exercise. For these reasons the undersigned is of opinion that the section refeHed to should be repealed, or at least should be so amended as to show clearly that the legislature intended the enactment to be, as Sir John Macdonald, then Minister of Justice, in his report of 3rd January, 1872, states ir to be, " subject to the exercise, by your Excel- lency, of the royal prerogative, which is paramount and in no way diminished by the terms of the Act >f Confederation." Chapter 39.— The undersigned will make chapter 39, intituled: "An Act to authorize certain Corporations and Institutions to lend and invest Monejs in this Province," the subject of a separcce report. J' 314 QUEBEC LEGISLATION Chapter 49. — By the Ist section of chapt<^r 10, intituled : " An Act to amend t Act of this province, 45 Victoria, chapter 103, respecting the t^own of Richmond," t town council is given the power, not only to restrain and regulate the sale of spirituo liquors, but albo to rohibit such sales. Probably under the decisions, this is in exc( of the powers of the legislature. Chapter 98. — The Ist section of chapter 98, intituled : " An Act respecting t Executive Power," declares that " The Lieutenant-Governor, or person administeri the government of the province is a corporation sole." This section is taken from t Consolidated Statutes of Canada, chapter 10, section 1, which may possibly by virtue the 65th section of the "British North America Act, 1867," be in force in Quebec respect to the office of Lieutenant-Governor. The provision, ho .. ever, is clearly o that relates to the office of Lieutenant-Governor, and as such is withdrawn from t legislative authority of the legislature of Quebec by the 92nd section of the Act Is referred 4o. In January last an Act passed by the legislature of the province of Manitol: intituled : "An Act respecting the Lieutenant-Governor and his E'eputies," which ct tained a similar provision, and albo a provision authorizing the Lieutenant-Governor appoint deputies, was disallowed, on the ground that the Act was not within the leg lative zuthority of the legislat'.ire of the province of Manitoba. In the opinion of the undersigned this section should be repealed The unuersigned respectfully recommends that the substance of this report, approved, be communicated to the Lieutenant-Governor of the province of Queb( a.id that in the meantime action be deferred in respect to chapters 34 and 98. The undersigned having considered the other Acts passed by the legislature of t province of Quebec, in the session held in the year 1866 (chapters 1 to 33, .'^5 to i and 99 to 101 inclusive), I'ecomniends that they be left to their operation, and that t Lieutenant-Governor be so informed. JNO. S. D. THOMPSON, Miniitter of Justice. Report of the Honourable the Min '.ster of Justice on Chapter 39, apjrroved by His Ex( lovcy the Governor General in Council on thf &nd April, 1Sfi7. Department of Justice, Ottawa, 28th March, 1887. To His Excellency the Governor General in Council : By the Act of the legislature oi" the province of Quebec, 49-50 Victoria (ISt chapter 39, after reciting that it woula greatly assist the progress of public works a o* her improvements then going on in the province, if facilities were offered to corporatic and institutions, or loan and investment societies, incorporated outside the limits ther for the purpose of lending moneys, to lend and invest their moneys within the provn and thct it is expedient to confer on such institutions and corporations or societies : tain p3wers to contract, and also to hold immovables within the province, it is by 1 first section enacted as follows :— "1. Any institution or corporation, or loan and investment society, duly incor rated under the laws of the Parliament of Great Britain and Ireland, or of the Domin of Canada, for the pupose of lending or investing moneys, and authorized by statii charter or instrument of incorporation, to lend money in this province, may, on receiv: a license from the provincial secretary authorizing it ,o carry ou business within province of Quebec ; ^ " 1. Transact any loaning and investment business of any description whate within the province, in its corporate name, except the business of banking ; " 2. Take and hold any mortgages on any real estate, and any railway, munJci} or other bonds of any kind whatsoever, on the se-ority of which it may lend its uion whether the said bonds form a charge on real estate within the province or not ; 49-50 VICTORIA, 1886. 315 d : " An Act to amend tlie ;he tter of Justice. ir S9, apjrroved hy His Excel- imt April, JSfi7. 4WA, 28th March, 1887. ebec, 49-50 Victoria (1886) )rogiess of public ivorks and s were offered to corporations jed outside the limits thereof moneys within the provi nee, corporations or societies :er- in the province, it is by the itment society, duly incorpo- 1 Ireland, or of the Dominion ), and authorized by statute, s province, may, on receiving irry or. business within the f any description whate\p; less of banking ; md any railway, municipal, rhich it ma}^ lend its money, the province or not ; " 3. Hold such mortgages in its corporate name, a^id sell and transfer the same, at its pleasure ; and, " 4. In all respects have and enjoy the same powers and privileges with regard to lending its moneys and transacting its businesLi as a private individual might have and enjoy; " Provided every such corporation, institution or society, shall sell or dispose of any real estate which it may so acijuire, by sale enji.^tice, or by deed from the borrower or subsequent holder, in satisfaction of the loan, or under any agreement with the borrower or subsequent holder, within ten years from the date of acquisition. "Saving pending cases, any such corporation, institution or society, which has hitherto done such loaning and investment business in this province, and which shall, within one year from cho passing of this Act, obtain the license aforesaid, is hereby declared to have always had and to have lawfully exercised all the powers and privileges aforesaid." In 1876, the legislature of Ontario passed a similar Act, (39 Victoria, chapter 27) which was left to its operation without comment. {Sen an( j, page 145.) A similar Act of the legislature of Manitoba (40 Victoria, chapter 15) was sub- sequently left lo its operation, with the observation that the right of a provincial legis- lature to provide for the granting of a license by a province to a company incorporated by the Parliament of Canada, and which, by its Act of incorporation could be given the light to do business in the various provinces, is at least doubtful ; but that inasmuch as similar legislation had been allowed to go into operation in tlie province of Ontario, no interference was recommended. By the 11th item of the 92nd section of the " Briti.sh North America Act, 1867," the legislature in each province mrts were made to obtain slature ; but tliough the ed themselves as favour- ,ies, and th** Protestant jing the necessity of ini- )f the session, and other gain meet we shall have oubt experience serious inder the jurisdiction of lext, we beg respectfully nt, we beg leave to enter we feel it our duty to educational institutions neantime, should the ob- the willingness of the a apply to it in the next iate protection necessary session, that immediate relief be any evidence or docu- ourably entertained by ,t nd petitions referring to T. FERRIER, Chnncellor, Protestant Universities and Superior Schools in relation to the Professions and Projessional Examinations. E.M'KACT of Minutes of Meeting of Protestant Committee, Council of Public InstriiC' tion, held on Wednesday, SOth March, 1887. " Resolved, — That the report of the sub-committee named to consider the relation of Protestant universities and Protestant superior schools to the professions and profes- sional examinations be adopted, with the exception of that portion which may be sup- posed to raise the question of the constitutionality of section 49 of the Act 49-50 Vic, caj). 34, being an "Act respecting the Bar of the Province of Quebec," which in the opinion of this committee requires further consideration. "And with the aforesaid reserve, that the said report be pL.ced in the hands of the Premier of this province. " And, in addition thereto, that the secretary of the committee be requested to draw up a statement setting forth the extent to which the course of study now followed in the Protestant schools In this province is aiFected by the provisions of said section." ELSON I. REXFORD, Secretary. Protestant Committee of the Council of Public Instruction. Report of sub-Conunittee on the relation of the Protestant universities and Protestant Superior Schools to the professions and professional examinations : — Complaint is made that the Bar Act of the last session has infringed on the rights ,.nd privileges of the Protestant minority in this province, as regards education. By that Act, both the general system of education, regulated by the Protestant committeo of the Council of Public Instruction, and the general cour.se of study followed in the Protestant universities (McGill College and Bishojj's College), as well as the special law course of these institutions, have been interfered with and are now endangered. In order to attain to a dear understanding of the question raised, it will be as well tfj consider : — 1. What are the rights and privilej; secured to the Protestant minority by the Confederation Act (The British North Amcric.a A^ t, 1867")? 2. In what respects have these rights and privileges ln-en infringed upon or set aside 1 The following extract from the Confederation Act ^'i\es in full the lauses referring to education ; — "Section 93. In and for each province the legislature may exclusively make laws in rel.ition to education, subject and according to the following pm visions : ~ ' ' 1. Nothing in any such law shall prejudicially aifect any riirht or privilege with respect to denominational schools, which any class of pei-sons have, Uy law, in the pro- vince at the union. " ' 2. All the powers, privileges and duties of the union, by law conferred and imposed in Upper Canada on the separate schools and school trustees of the Queen's Roman Catholic subjec s, shall be and the same are hereby extended to tlic dissentient schools of the Queen's Protestant and Roman Catholic subjects in Quebec " '3. Where in any province a system of dissentient or separate iliools exists by law at the union, or is thereafter established by the legislature of the province, an appeal shall lie to the Governor General in Council from any act or decision of any pro- vincial authority, affecting any right or privilege of the Protestant or Roman Catholic minority of the Queen's subjects, in relation to educatin. After confederation defining the meaning of ' of the law shall include ttres, rhetoric and philos- y taught in incorporated ; to change the status of as made under this Act. In 1881 the Bar Acts were consolidated, and changes of importance were then made. Under section .33 of this Act the general council of the bar is substituted for the council of a section, in the control of the exan-ination and qualifications of candidates for admis- sion to the study of law, and by section 43 it is provided that, in addition to the liberal education hitherto deemed sufficient, the candidate " must pass a written and oral examination " on the subjects indicated in a programme printed and published under their (the examiner's) supervision or that of the council. These changes seem to your sub-committee a direct infringement of the rights and privileges of the Protestant minority, as will be explained below. Lastly, we come to the Bar Act of 1886 — the Act of last session— 49-50 Vic, chap. 34. By this Act further aggressive action is taken in favour of the general council. Vide section 41, and following. We finl that under section 49 the general council is substituted for the Lieutenant- Governor, in the powers before that time given to the latter to inquire into, and when needed, to prescribe the law course of the universities. The general council may from time to time determine the subjects which shall be studied, and the number of lectures which shall be followed in each subject to constitute a regular law course. And further, the curriculum so established shall not be altered except by a two- thirds vote of the members of the general council, and the degree in law, as well as the law course, shall avail only in so far as the prescribed curriculum has been eflFectually followed by the university or college. There is also a lengthening of the period of clerkship even to the holder of a degree under the above conditions, instead of a three years' course he is made to serve four years with a practising advocate. Thus far your sub-committee have dealt with the ca.se of the bar, but they regret to say that they u.re led to believe, on what they deem high authority, that the medical profession is also about to seek legislative powers so as to introduce changes into the medical list which tend in the same direction as those complained of in the Bar Act of last Sf-ssion. The cases of the two professions are not absolutely identical, for on the governing body of the medical profession the universities are represented, (tnde 40 Vic, cap. 26, sec. 4, and 43-43 Vic, cap. 37, sec. 4,) which is not the case with the bar. As however, no medical bill has yet — so far as your sub-committee is aware —been pre- pared, it is of course inipussiblu to knuw the exact nature and extent of the powers to be asked for, but your sub-committee have reason to believe that the present system of examination for the degree in medicine and surgery which take place in the presenc«i of assessors, and qualify candidates for the license to practice as well as for the degree of C. M. M. D. (vide 42-43 Vic, cap. 32, sec. 13), is to be changed, and the University degrees are to be henceforth treated as purely honorary, the license to practice being given only after a separate and purely professional examination. Your sub-committee would see no objection to this, if there were a general Medical Examination Board for the whole Dominion, on which the universities could be repre- sented, MO that the university degrees in medic ne and surgery, as well as ihe license to practice would follow the results of this examination. In this way the tone and status of the profession would be raised, and the C M. M. D. of Canada would rank with any like degree in *^lie world. But failing this broacj'r view of the question, your sub committee see no advantage in the change from the present system. As to the examination for admission to study, it is purely a general educational question, not a technical one, and your sub-committee deprecate any interference on the part of piofessional bodies in the matter of general education, as followed in Protestant schools under the control of the Protestant com- mittee. All that any professional body is entitled to claim is that candidates for study should be proved to have had a liberal education. It must be clear to every thinking^ mind that privileges conferred upon members of a profession in their corporate capacity, are so conferred in the interests of the public. They are not for the private benefit of the members of such profession. The legal, the medical and other professions are no doubt very important bodies to whom are committed the fortunes and lives of the 320 QUEBEC LEGISLATION citizens generally, and special obligations, ua well as great privileges, are imposed and conferred on them for the public benefit. It is, therefore, a matter in which the general public are concerned that due care should be exercised as to the admission of candidates, both to the study and practice of these professions. But that these professional bodies should become close corporations with power to bar the doors against all but persons whose liberal education has been carried on only after the programme of each profession, is a monstrous evil which needs only to be inentioned to be condemned. So long as the Lieutenant-Oovernor in Council — the head of the State— exercised a power on behalf of the citizens at large, all was well, more especially as it was under- stood that there would be no interference, except in case of some acknowledged abuse, but to transfer this power to a professional body which, by its very nature and con- stitution, must be corisidered one-sided and partial, is, on the face of it, open to very serious objections. The danger lies in the fact that the proportion of Protestants to Roman Catholics in this province is only as one to six, and by the constitution of the general coun- cil of the bar, that body will have a large number of its members, perhaps all, Roman Catholics. There was a certain amount of danger when the control lay with the councils of sections, but as in Protestant districts there was a tolerable certainty of Protestant representation in the council, there was nothing .serious in this danger. But the programme of the general council ignores Protestant education altogether by the introduction of subjects extraneous to the system. They put aside the well-known fact that so diverse are the systems of Roman Catholics and Protestants, that two committees of the Council of Public Instijuction exist. The provisions — quoted above — made at the time of confederation recognize this divergence, and guard the rights of minorities, whether Roman Catholic or Protestant. Your sub-committee can come to no other conclusion than the following : — 1. That the attention of the government be formally called to the serious disad- vantages from which the Protestant population of this province are now suffering, through the operation of the Bar Act of last session, which in many of its clauses infringes on their rights and privileges. 2. That a demand be made for the abrogation of the objectionable clauses of the said Act. 3. That in order to guard against a recurrence of the evil complained of, the legis- lature be requested to make provision for the appointment of two examining boards for the examination of candidates seeking to enter on the study of all or any of the professions. 4. That one of such examining boards be Roman Catholic, the other Protestant, and that each board be appointed by its own proper committee of the Council of Public Instruction. 5. That the Arts degrees of the universities be recognized, as entitling the holders of such degrees to enter on the study of any profession without preliminary examination, on the ground that these degrees constitute in themselves the best possible evidence of a liberal education. 6. That no interference in the curriculum of study of any faculty of any university by any professional body be allowed, but that the principle of tl.e law, giving power to the Lieutenant-Governor to inquire into, and if needs be, prescribe the course of study, be restored, it being taken for granted that due care would always be shown in instituting .such inquiry. That no privilege lie granted to any university not shared by the others now existing in this province, or which may tend to the disadvantage of any one of such institutions. All which is respectfully submitted. 49-50 vicTOHiA, 1886. 321 ileges, are imposed and ter in which the genenil idmission of candidates, lese professional bodies against all but persons kmme of each profession, emned. jf the State— exercised ecially as it was under- lie acknowledged abuse, ;s very nature and con- face of it, open to very ts to Roman Catholics in of the general coun- members, perhaps all, ay with the councils of certainty of Protestant langer. it education altogether the systems of Roman 1 of Public Instjjuction ederation recognize this Catholic or Protestant. ;he following : — id to the serious disad- nce are now suffering, in many of its clauses tionable clauses of the omplained of, the legis- two examining boards dy of all or any of the !, the other Protestant, ittee of the Council of as entitling the holders ireliminary examination, it possible evidence of a acuity of any university he law, giving power to ibe the course of study, i always be shown in red by the others now age of any one of such Statkment concerning the relation of Protestant Superior Schools to the Professions and Professional Examinations, prepared in accordance with the resolution of the Committee. The legislature of the province has provided two separate systems of superior education to meet the requirements of our mixed population, which it maintains by large annual subsidies. Under legislative sanction the Protestant committee has put into operation a complete course of study, which leads by regular steps from the lowest class in the primary school, through the Protestant superior schools to the last year of the imiversity course. This is a thorough course, similar in its extent and require- ments to that followed in the sister provinces of the Dominion, in the United States and in England. In the superior schools where this course is followed, the young men from the Protestant section of the population receive their education, and they have a right to expect that, after they have completed a course sanctioned and subsidized by the legislature of the province, their course of study will be recognized in any provi- sions which the legislature may make for literary examinations. Protestant young men find, however, on presenting themselves for the examination for admission to study pre- scribed by the Council of the Bar, that the examination is based upon the course of study followed in the Roman Catholic superior schools, and that their own course of study has not been considered. These disadvantages and difficultios under which candidates from Protestant super- ior schools are thus placed, arise from three prominent differences in the course of study fallowed in the Roman Catholic and Protestant institutions. First. — There is a difference in the subjects included in the two courses. For example. — The subject of " philosophy," which forms a prominent feature in Roman Catholic superior schools, is entirely unknown as a school subject among Pro- testants. Second. — The order in which the several subjects of the course are presented to the student is quite different in the two courses. Elementary mathematics, which comes in at very early stage in Protestant schools, is postponed to a much later point in Roman Catholic institutions. Third. — There is a marked difference in the two courses as to the relative impor- tance attached to the different subjects, as indicated by the marks given for the several subjects and by vho percentage required to pass accoruing to tlie bar exuiuiaaliou. For philosophy, two hundred and fifty marks are given and half marks are required to pass, whereas for the five subjects — arithmetic, algebra, geometry, chemistry and physics only two hundred and fifty marks are given, and one quarter of total marks and one- seventh marks in each subject are required for passing. Such a system of marking bears very heavily upon candidates from Protestant superior schools which give prominence to the last five subjects and omit " philosophy." It is evident from these references, which could be multiplied, that the action of the council of the bar and all similar actions, is a serious interference with our Protes- tant superior schools. Under the circumstances, it seems only right and reasonable to demand, on the part of these institutions, that these difficalties be removed, either first by providing two separate examinations based upon the courses of study followed in the Roman Catholic and Protestant institutions respectively, or, second, by having one ex- amination so far as the courses of study are in common, and allowing options wh"n the two courses diverge. f) .DIVERS ''^..ES AND THE PROFESSIONS. (From " Moni^i .„ Gazette " oj ISth and 15th April, 1887.) To the Editor of tlie Gazette : Sir, — I venture to ask for space in your paper to remark on the " educational " clauses, if I may so call them, of the Bar Act of the last session of the provincial Par- liament. 322 QUEBEC LEGISLATION I am glad to find that public interest is aroused on this suliject. It is a hopeful sign, and the discussion cannot but be productive of good results, if " temper " can he kept within bounds. In stating my view of the case I shall endeavour to be as brief as possible. The Bar Act of last session provides : — " 1. That the examination of candidates, both for study and practice, shall be under the control of the 'general council.' " 2. That three examiners — members of the bar— are to be appointed by each sec- tion of the bar. But it is in the power of the ' general council ' to change this number and the period of their service. These examiners are to be divided into two boards, one for admission to study, the other for admission to practice. " 3. In addition to these examiners, the ' general council ' may appoint persons selected from outside the profession to assist the examiners in the written and oral examination of candidates for study. " 4. Every candidate for study must prove to the satisfaction of the examiners that he has received a ' liberal and classical education,' and undergo to their satisfaction a ' written and oral examination in the subjects indicated in the programme of the gen- eral council.' " 5. The proceedings and decisions of the examiners cannot be attacked, and all their decisions are final and without appeal." Such is a short rhum^ of the regulations as to candidates for study. The questions which arise in the mind in considering these regulations are as follows : — 1. What is the constitution of this "general council" to whom such powers are entrusted ? 2. What is meant by that "liberal and classical education " of which the candidate is to make proof ; and what is likely to be the nature of the " programme " which the general council has power to prescribe 1 Let us discuss these questions in oixler : — 1. The general council is composed of the batonnier and a delegate from each of the sections of Montreal, Quebec, Three Rivers and St. Francis, and of the baton- nier of Arthabaska and Bedford, and of each of the sections which may hereafter be established. To this representative body is added the secretary-treasurer of the general council — who is elected by the council. Thus the present body consists of eleven mem- bers, the majority of whom form a quurum, and the presiueut — who is balouiilbr of the province — has a casting vote in addition to his ordinary vote. Now, if it be borne in mind that the Protestant population of the province is as one to six, as compared with the Roman Catholic population, it cannot be considered as an unlikely conclusion that the majority of the general council will always be Roman Catholic, and the council may be entirely composed of Roman Catholic members. The present council consists of seven Roman Catholics and four Protestants, the representative batonnier from Sher- brooke being a Protestant. A Roman Catholic has more than once filled this office in Sherbrooke, and a Roman Catholic will undoubtedly be again elected, for I believe, in our happy community, but very little, if any, race or religious jealousy exists amongst the members of the legal profession. 2. But it is well known that the Roman Catholic and Protestant theories of edu- cation in this province differ widely, and have so diflFered for many years before, as well as since confederation. It is only necessary, in proof of this assertion, to point to the two committees of the Council of Public Instruction entrusted with the oversight of pub- lic education in this province. Applying this recognized fact to the case in point, of the powers given to the general council of the bar to prescribe a programme of study, and it will be seen that this programme may be, and most likely will be, based on the Roman ( atholic theory of education alone. A mere enumeration of subjects taught in the schools and colleges might lead a superficial observer to believe that the same system is in force in the schools of each class of the population, but the practical educationist knows that, even in the study of Latin, lUijject. It is u hopeful ilts, if " temper " can he leavour to be as brief us practice, shall be under appointed by each set- ' to change this number led into two boards, one ' may appoint persons in the written and oral 3n of the examiners that ) to their satisfaction a programme of the gen- ot be attacked, and all jr study. hese regulations are as ) whom such powers are ' of which the candidate ' programme " which the a delegate from each of ncis, and of the baton- which may hereafter be treasurer of the general consists of eleven mem- wliu 18 balouiiiur of the Now, if it be borne in ;o six, as compared with unlikely conclusion that lie, and the council may ent council consists of ve batonnier from Sher- once filled this office in lected, for I believe, in jealousy exists amongst estant theories of edu- ny years before, as well ssertion, to point to the ath the oversight of pub- to the case in point, of e a programme of study, y will be, based on the d colleges might lead a the schools of each class n in the study of Latin, 49-50 VICTORIA, 1886. 323 (Jreek and mathematics, different systems and different text books prevail, and that in liistory, philosophy and some other subjects, fundamental difforenct's exist. It is not, therefore, unreasonable to conclude that the liar Act of last session, by the provisions alwve referred to, unintentionally no doubt, but not the less really, did strike a blow at the system of education in vogue amongst the Protestant minority, and infringed on the rights and liberties of Protestants as guaranteed, or supposed to be guaranteed, at confederation. It may be claimed that the Roman Catholic meml)ers of the general council have never infringed or intended to infringe, on Protestants' rights or privileges, and have invariably treated their Protestant fon/mvw with courtesy and liljerality. I believe thi"* to be true so far as intention goes, and I am the last man in the world to raise a religious or sectional cry amongst a population so mixed as is that of this province. But I hold that such grave matters should not be left to good-will or good intentions. All that is claimed by Protestants is to have equal rights with their liomun Catholic fellow-citizens, and the best way to secure good-will is to have the terms of this agree- ment strictly defined. What is needed, therefore, is that there shall be two separate boards of examiners for the examination of candidates seeking to enter on the study of any or all of the professions — one of these boards to be representative oi the Roman Catholic system of education, the other of the Protestant system. In this way, candidates will be examined under the system of the schools in which they have been educated, and the rivalry will be without jar, leading to no feeling of injustice or want of harmony. The object of combining the examination for all the professions, instead of dele- gating to each body the power to have its own special preliminary examination is that, for admission to study, all that is really needed is proof of a " liberal education," and it would be impossible in any academy or high school to prepare students for half a dozen different professions, if each professional body demanded a special programme of study. The unfortunate principal of an academy has already quite enough to do to comply with the regulations already in force, demanding the careful teaching of the English language and literature, of Latin (Greek is optional, but the teacher must be prepared to teach it on the demand of the student), of French, of Euclid, algebra, arithmetic, history, geography and drawing. Surely, a student who has passed in these subjects, and is thereby enabled to matriculate in a university, must be pronounced qualified to enter into any of the several technical auu special subjects required for profession"' training. Apart from the different method of teaching, and the diffierence in text- books in Roman Catholic and Protestant school.?, Roman Catholics give a certain amount of training in their colleges in " philosophy." I am not aware to what extent this is carried, but I am informed that it differs ms.tenally from the treatment of the same subject in the Protestant universities, where it rorms, with logic and rhetoric, a part of the B. A. course. It is however, not tau^'ht in Protestant academies or high schools. It is treated as an advanced subject; end forms, as above stated, part of the university course. But if the professional bodies insist on a higher training than is given in the Protestant academies, th"n let them encourage university training. If students of matured minds are alone to be admitted to the study of a pi-ofession, the acceptance of the university degree of P>. A. should be acknowledged as a sufficient qualification. The men who have devoted three or four years to aV)stract studies and passed the B. A. ex- amination have given the best possible proof of their fitness for entering on technical studies. The bar declines to acknowledge this, and the medical profession (if the meet- ing recently held in Quebec be taken as the exponent of the opinions of tlie whole medical profession) follows suit. It is said that objection s taken to the teaching in some of the French incorporated colleges, and the graduates of the Protestan' univer- sities must suffer because of the defects of those institutions. The statement may lie true or not, but Protestants have nothing to do with it; it lies out of theiv control. If true, it supplies another strong argument for separation in examination by two ex- amining bof rds. The feeling among educated Protestants is thac if their universities cannot qualify men to enter on the study of the law, of medicine, of engineering, or the I I' II 324 QUBBEC LRnisLATION notarial profession, of tiieology, or of any technical subject, then university education is a mere delusion, and universities are useii'ss and costly absurdities. And if this be so, the universities of the ci\ilizf!d world, old and new, should Im abolished. The I'ni versity of London, and the new University of Victoria, in the manufacturing districts of England, the Scotch and Iiish universities, are all heavily subsidized by the State. All this is wrong, the money is wasted, if a university training yields no practical rcMilt. Instead of universities, each professional Innly must, for it.self, establish schools urul training institutions for the qualilication of candidates. Such a result would be, in my humble opinion, to cramp the mind, to reduce it to a mere machine. It would give educational sanction to the " division of labour," under which fourteen different opera- tives are reijuired to spend their lives in the fourteen different operations involved in the manufacture of a pin. Such seems to me to lie the logical conclusion of the demand, that to each separate professional Ixdy should be committed the power to control and regulate the nature and extent of the education of candidates desirous of entering on professional studies. I have carefully avoided any reference to the other question of the admission to prac- tice, which, as a professional question, only indirectly aflfects the public. The wish was to discuss each part of the subject on its own merits, and to avoid confounding them. The only remedy for the evils pointed out is by an amendment to the Bar Act, which shall abrogate the objectionable clauses, and substitute regulations, clearly and finally (I hope) settling the question in the manner T have indicated, so far as the legal pro- fession is concerned, or to make the requisjite rules and regulations a part of the educa- tional law of this province. Yours obediently, R. W. HENEKER. SiiKRBKOOKE, 12th April, 1887. PROFESSIONAL EDUCATION. To the Editor of the Gazette : SiH, — In my former letter, I limited my remarks to the question of the admission to study. I will now touch upon the other point, not less interesting, but more pro- fessional — the regulations as to the admission to practice. I propose, in the first place, to consider the reasons which must have weighed with the legislature in grantinjj charters of incorporation to persons engaged in pro- fessional pursuits. All civilized nations have, I believe, felt it to be wise to grant special powers t^> professional Ijodies, but such powers are granted, not for the private benefit of the grantees, but because the interests of the public are thereby served. No one will, I feel sure, gainsay for one moment that great advantages accrue to the public through the incorporation of professional bodies, to whom are committed, more or less, the lives, the health, the property and the liberty of the people. The responsibility thrown on professional men demands care on their part tliat fitness, and professional character, and honour are maintained. The principle is not new. Trades, as well as profe? ions, were governed by " guilds " in the middle ages ; and even to the present day, in some countries, no man can exercise a trade, without serving a long apprenticeship with a master mechanic. That large power should therefore be given the professions in this respect is, in my opinion, a correct principle, but such powers must be used in the public interest, and they nust not run counter to, but be in accordance with, u'. her established rights and privileges also granted for the public good. The question for consideration then may be classed un. ler three heads, viz. : — 1. Does the Bar Act give such powers as conflict with ihe public interest t 49-60 VICTORIA, 188G. len university education rditieH. And if this Iw e abolished. The I'lii manufacturing di.slricts Hulwidized by the State. ield.s no practical result. If, establish schools aiid I result would be, in riiy (laehine. It would j^ivo fourteen different opera t operations involved in id, that to each separate and regulate the nature on professional studies, f the admission to prac - * public. The wish was lid confounding them. nt to the Bar Act, which tions, clearly and finally 1, HO far as the legal pro- ms a part of the eduea- , W. HENEKEll. lestion of the admission iteresting, but more pro- must have weighed with jrsons engaged in pro- I grant special powers to le private benefit of the ■ved. sat advantages accrue to whom are committed, of the people. 3 care on their part that ions, were governed by 3ome countries, no man li a master mechanic, ions ill this respect is, in ;d in the public interest, o: her established rights ihree heads, viz. : — public interest t 2. Do the powers given in the Bar Act run counter to, or encroacii on other established rights and privileges'! ;5. If so, is this encroachment excusable in the public interest? It will be seen that I make the "public interest " the ultimate tost. In connection with the first of these (juestions, it will, I think, bti admitted tliafc it is desirable in the public interest, that none but trained minds should enter in the pnictice of the professions, and it is of importance that there should be training schools for the instruction of candidates in the theory, as well as in the piactice of the |)rof»'ssion8. The only training schwjls in this province where " tlu^ory " can be studied, are those founded and nuiintained by the universitiew, — familiarity with practice is (jb- tuiiied in law in the oHice of a practitioner ; in medicine, by attendance in the hospitals. Each part of the training is important, the one as important as the other — but both together a-ssist in educating the professional man. Now, if the effect of the Bar Act is to close the university schools by imposing a curriculum on them which they cannot follow, not the professions only, but the general public must suffer. And this, it is declared, will be the consequence of the committal to the general council of the bar, of the power of prescribing the course of study to be followed in the universities; a course of study be it remembered, which does not carry with it any privilege of practice, but simply gives the university graduate the privilege of one year's shortened service with a practiti(mer — and does not exempt him from the bar examination. The professors of the two Protestant universities unhesitatingly declare that the obligation to give 1,050 lectures in a three years' course is neither necessary, nor of advantage to a student, and yet involves such a sacrifice of time on the part of the professors themselves, that very few of the leading practitioners will give the time for the work of preparing and delivering the lectures. The student also, who has to follow such a course, must give his whole time to his lectures, and thereby lose to a great extent the benefit of his practical training in the courts, and in the office of his "patron." I am quite aware that it is a moot question, but there undoubtedly seems to be " point " in the argument, and it surely cannot be for the public interest that two out of the three university training schools should be closed to students, and that but one (that one a French university, demanding more or less intimate acquaintance with the French language,) should be left for the study of the theory of the law. Then, the universities maintain that the power committed to the general council of the bar directly interferes with their rights. They are willing to submit to guidance, in the public interests, from the Governor or Lieutenant-Governor, the head of the State, but they repudiate dictation from a professional body. They will rather close their schools than submit to sucii dictation. It must be borne in mind that, when mention is made of the universities in this argument, the real objectors are those professional men who form t'e^ particular faculty of the university, with others who value university training as someching higher and broader than mere professional training. If the result of closing these schools be brought about, then the study of law in the universities will be confined to those broad principles of law which every educated man should understand. Some may argue that this result would be really to the advantage of the public, but, if carried out, must necessarily involve a complete change of system. In such case, the professional bodies must themselves establish law schools, with a staff of pro- fessors for teaching the theory of the law, and this will not settle the never endin" dis- pute between these two systems — except by forcing on the minority the will of the majority. The answer to my third question is involved in the answer to the other two, and public discussion, not mere professional discussion, seema necessary on this subject 21 tjlIi:ilK(! r,K«llMI,ATION I am, myself, not prepared to give a definite answer to tlte principle involved, liut it seeniH to uu, tlmt duf care hIiouM Im) taken, even on the part ()t' an overpowering French nia'ority of the bar, not to precipitate matters. It is of vital interest to tlio country tliiit the two sections of the pef>ple should live in harmony, without any griev- ances, real or fanciful, to embitter the relations between the two. As regards the universities, I feel that in this new country we must, if we are to hold any position in the world, train our men, and train them highly, for the work we expvict of them. And this can only be done through the universities. ^ ^ : iisk any impartial man to look at the class of men who govern England today— whether known as Conservatives, Liberals or Radicals such men for instance as Mr. Gladstone, ^.ord Salisbury, Mr. Goschen, Mr. John Morley and the late Lord Iddcsleigli (Sir Stailord Northcote). Such men are the products of English universities. 4 T say then, avoid carefully the weakening of our university system. It is weak enough as it is, and rofjuires the support of men of a high class, as well as of money. In time the ball will gather as it rolls, and we may hope to .show a good result from institutions founded in faith and love, and carried on under adverse circumstances with self-denial and hope. . . Do not let us weaken its influence, or throw unnecessary impediments in its >.',vy. Your obe allow a good result from Ivorse circumstances with mpediments in its i\' >y. int, [I. W. HENEKER. relations of General and I connection with the Pru- o professional si. .^v 'e jducation is invited to tin; e sanction, and under tlie c Instruction and of the ding from the ehiinciitary igorous examinations are )vince can afford, and it ia \t exacted in any country, he certificates and degrees ow accepted for the ahove JO in the medical and law ions should content thein- ,dod under the educational tudy, and should allow the e two committees (Roman 1. Should the professional is can best be attained by of the province with this ing separate examinations, ys in accordance with each Such action consequently chers and pupils, to inconi- actual education, and to 4. Special injustice is inflicted on the Protestant population, when only one pre- liminary (>xamin:ition exists, and this based ))rin(;ipally on the eduoutional nietiiods of (lie majority, which are in many respects dissiniilai from those of the Protestant si^hools, oven when the namtis ne thousand and more, which the secretary of the council of the bar desires. It is also to be observed that law students are usually under apprenticeship, and are obliged to devote the greater part of their time to office work. The students are required to attend regularly and punctually, and examinations are held at the end of each term with a final examination for the degree, so that each student has to pass six examinations by written papers, in addition to the matriculation examination, and has also to prepare a thesis before graduation. That occasional in- terruptions should occur in some sessions in certain courses of lectures delivered bv pro- fessors in actual practice is inevitable, but such blanks have been supplied as far as possible by additional lecturers, and when pi-ofessors, by reason of legislative or judicial duties,have been unable to attend to their lectures, they have retired in favour of others, or have been placed on the list of emeritus professors. It is quite easy, however, fo" persons disposed to be critical, to magnify the omission of a few lectures in one course, owing to some accidental c«,ase, into an entire failure to deliver lectures. The names of Kerr, Trenholm, Archibald, Lareau, Hutchison, Robidoux and Davidson, who con- stitute the present faculty, are a sufficient guarantee for the character and good faith of the course. When the great importance of the legal profession is considei-ed, and the fact that the judicial bench as well as the halls of legislation and many important public offices demand a high legal training, it is evident that the continuance of such a course of study is of the greatest value to the community, and the public may entertain the utmost confidence that the univereity, for its own credit and in the interest of the higher education, which it is its special business to sustain, will ni ither permit students to enter without preparation, or graduate without a regular course of study and a searching examination, while it also oflfers a gold medal, honours and prizes, as rewards to stimulate special eSbrt. All this can and will be done quite independently of the council of the bar, and without any legal compulsion on the part of that body. I may add that, while I object on every principle of sound education and civil right to place the curricula and examinations of our Protestant education in the hands of the pro- fessional councils, I feel confident that their interference, in the manner indicated in the recent regulations of the Council of the Bar, will degrade and not elevate the legal profession. The results of the system which this university has pursued are apparent in its list of graduates. We have at present a little over 400 bachelors of civil law, of whom a few have been removed by death, and some have settled in other provinces of the Dominion or in the United States, but the greater number are actively and creditably pursuing their professioii in this province. In glancing over the n-^imcs on our list. I observe that at least forty represent men who are, or have rectmtly been, members of the Dominion, or local governments or legislatures, or who are occupying judicial or other important public positions, and several of these are graduates in arts as well as in law. This is an evidence that here, lus in the mother country, the university training tells in the higher walks of professional and public life, and that the particular form of such training represented by our Protestant educational system is highly efficient in 332 QUEBEC LEOISLATION this respect. The large number of French names on our list of graduates reminds me that we have been working in this department for both of our people, and that no dis- tinctions of creed are known in our professional classes. The university has a right to expect that in the present crisis all its graduates, of whatever race or creed, will remember the benefits they have received fram it, and will actively defend its educational rights. The above statements will, I hope, serve to show that it is the duty and interest of the public to sustain the general educational system of the country and the universities, againsu the encroachments of the professional councils, however well meant these may be, on the ground that systematic education of a high type and suited to the wants of the present age can be given by the higher schools and the universities alone, not l)y the professional boards, and that the interference of the latter, except under very strict limitations, is as bad in principle, as it would be to hand over the general elementary education of the country to the trades' unions, representing the several departments of industry. Any country taking such a course cannot keep pace with the progress of the age. In the peculiar position of the Protestant minority in this province, there are, of course, special reasons why such deviations from sound educational principles become unjust as well as inexpedient. I may add that this is not a matter of pecuniary interest to the university, which derives no revenue from the faculty of law. The faculty has had but one endowment, " The Gale Chair," founded by the liberality of the daughter of a late eminent judge. The university contributes only a small sum towards its annual expenses, and even this after some difficulty. Still the work is so important that we are willing to continue it, in hope that, like other departments, it may grow in its resources, unless driven from the field by hostile legislation. We feel also that if we submit tamely to such legislation, the time may soon come when our young men will be unable to enter into the practice of the higher professions, without conforming to the educational methods of the majority, in which case hey would fail to obtain that kind of training which we believe to be essential to their highest usefulness and success, and which has enabled Great Britain and the United States to take the high positions which they hold among the nations of the world. Nor need we limit this statement to ourselves. If our friends, who are so zealous to reform the Protestant schools and universities, would turn their attention to the educational system of France, and especially to the improvements which have been introduced within the last fifteen years, they might learn much to their advantage. Since writing the above, I have seen the letter of Mr. Pagnuelo in your i.'^sue of Monday. I do not propose to reply to this communication, which relates principally to the preliminary examinations, and to points sufficiently discubded by Mr. Rexford and Mr. Heneker. It may be useful, however, to point out some errors connected with the subjects referred to above. (1.) The degree of B'.A. is not given to pupils of high schools and academies by '"affiliation." They may mitriculate, but they must study for three or four years before graduating in arts. This is the reason why we wish to recognize the degree of li.A. and encourage young men to proceed to it; but in doing so we have no wish to act on the majority except by our own example. (2.) Mr. Rex- ford's position as to philosophy is entirely mistaken. He referred to the academies and high schools, and not to the universities. Wa attach little importance to the philosophy which can be taught to schoolboys, but we value greatly that which can be studied by men of more mature minds. Hence again we wish to have the degree of B. A. recognized, but without prejudice to those who, without such a degree, can pass a proper entrance ex'xmination, (3.) Our objection Uies not lie against an equal standard of examination for all, but against the testing of our men by a standard different from and, as we hold, inferior to our own in the more essential subjects, while attaching a high value toothers which we do not think necessary. (4.) It is further t(. be observed that the Engli.sh minority in the province of Quebec has not insisted'on separation, but has desired as far as possible a system of common schools. The existing separation, now fully recognized by our educational law, has been produced by the action of the majority, and as a consequence of the strictly denominational character of its system ; and this renders 49-50 VICTORIA, 1886. 333 if graduates reminds me people, and that no dis- university has a right to 3ver race or creed, will )ly defend its educational the duty and interest of try and the universities, er well meant these may id suited to the wants of miversities alone, not by except under very strict ■ the general elementary le several departments of with the prugress of the, is province, there are, of itional principles become to the university, which lad but one endowment, of a late eminent judge. expenses, and even this ,re willing to continue it, es, unless driven from the ly to such legislation, the enter into the practice of nethods of the majority, g which we believe to be as enabled Great Britain )ld among the nations of our friends, who are so Id turn their attention to i^ements which have been to their advantage. Pagnuelo in your issue of lich relates principally to ed by Mr. Rexford and rrors connected with the t given to pupils of high , but they must study for ) reason why we wish to oceed to it ; but in doing example. (2.) Mr. Rex- red to the academies and jortance to the philosophy b which can be studied by legree of B.A. recognized, !an pass a proper entrance 8tandai"d of examination ent from and, as we hold, ling a high value toothers served that the English tion, but has desired as ig separation, now fully iction of the majority, and i system ; and this renders it peculiarly unjust to deprive us of separate examinations, which are the necessary complement of a separate and distinct system of instruction. Those interested in the educational welfare of the English-speaking minority in tliis piovince should carefully read and ponder Mr. Pagnuelo's letter. The tone of that letter, the inability of the writer to comprehend the statements of the universities and of the Protestant committee, the dense and multiform ignorance of the nature and tendency of our Protestant educational system apparent throughout, constitute the strongest possible arguments in favour of the entire separation of the two systems, and siiould convince the English people of the danger of handing over our educational rights l<) the " generosity " of those whom Mr. Pagnuelo represents. I trust, however, that the moderate and reasonable claims of the Protestant minority, relating entirely u> their own rights, and not interfering with those of others, will meet with due consideration on the part of the professional councils and the legislature, and that the dangers which at present appear to threaten educational privileges which we highly value, not in our own interest merely, but in that of the province as a whole, and of the Dominion at large, may happily be averted. I beg to remain, yours truly, J. WM. DAWSON. Montreal, April 19th, 1887. To the Honourable the Legidatwe Assembly of the Province of Quebec, in Parliament assembled : The petition of the undersigned representing the McGill University, humbly showeth : That for many years this university has maintained in this province courses of study, based on the methods of the universities of Great Britain, not only in the Faculty of Arts, but in the Faculties of Law, Medicine and Applied Science, and that these courses of study are equal in value to those in other countries, and that their practical benefits are evidenced by the high positions taken by the graduates of the university in public and professional life. That at the time of confederation, this university, in common with other char- tered universities, possessed certain rights and privileges, the continuance of which was guaranteed to it by the Union Act, in its capacity of a Protestant university, constituted by royal charter, for the purpose of providing the higher education for Her Majesty's subjects, more especially of the Protestant minority in this province. That by several Acts of the provin' ial legislature these rights and privileges have been from time to time diminished or curtailed, and it is believed that in the present session, other measures are to be introduced having this tendency. Your petitioners would refer more especially to the following : — Under the Bar Act of last session of the legislature, the powers of the univer- sities, relating to matriculation or admission of students, relating to the course of study in law, and relating to the privileges possessed by graduates with reference to the term of apprenticeship, have been transferred to the council of the bar, a body of which a majority of the members are of the Roman Catholic faith, and which has already instituted regulations, not consistent with educational methods of the Protestant minority, which ba^■e been approved by long and beneficial experience in the mother country, and have been carefully adapted to the wants and circumstances of this province. Under the Medical Act several restrictions have been placed on the examinations of the univei-sity, and it is publicly stated that a bill is now bei«g prepared by the College of Physicians, the eflect of which will be to impose an examination for entrance «n the study of the pi-ofession, not suited to our system of instruction, and to suVjject; t)ur graduates to an examination before examiners, appointed by the College of Physicians, in p manner not in force before confederation. 334 QURBEC LB0I8LATI0N That your petitioners, believing that snch enactments are, and will be, hurtful to the professional and educational interests of the Protestant minority of this province, and are also in violation of the guarantees given at confederation, humbly pray tliat they nmy bo repealed, and that similar legislation be not entertained in future. Your petitioners would further represent that, since in the province of Quebec the system of Protestant education, administered by the Protestant committee of the Council of Public Instruction, is essentially distinct in its methods and aims, from that of the majority, since farther the primary education of the universities and normal school, and the secondary education of the academies and high schools, are entirely separate and distinct, and were so before confederation, these facts should be acknowledged as guaranteed to the Protestant minority, and that their rights in such respects should not be diminished, or alterations permitted, without the consent of the Protestant committee of the Council of Public Instruction. Your petitioners would therefore claim, That it is just and expedient, and necessary to the due maintenance of Protestant education us guaranteed by the Union Act, that in the case of Protestant candidates for examination for entrance into professional studies, the courses of study prescribed by the Protestant committee of the Council of Public Instruction, for the highest grade of the academies, and those of the Protestant universities for matriculation, should be fnlly recognized as valid and sufficient. That in the case of those who have taken the degree in Arts of the universities, this degree should be recognized as qualifying to enter on professional study without further examination. In all other countries possessing universities, this privilege is given, and it is obviously expedient, as inducing candidates to pursue a thorough and libeial education. It is also submitted in this connection that the course of study in Arts iu the Protestant universitie-i is in every respect adequate, and is equal to that given in oti.er countries, and to which such privileges are there granted. That with reference to the entrance on professional practice, the Protestant universities have a right to claim : (1.) That their royal charters shall be respected, as giving them the right to dete\"mine the courses of study adequate for professional, as well as other degrees. (2.) That under the Confedera-tion Act they can claim the con- tinuance of all educational " righ;s and privileges " possessed by them before Confedera- tion. (3.) That it is especially unjust that powers bearing on the educational rights of Protestants should be handed over to professional councils, of which a majority must be Romun Catliolics, and the whole may be so. Your petitioners would therefore humbly pray for such relief in the premises as to your honourable House may seem just and reasonable, and your petitioners, as in duty bound, will ever pray, «fec. Lieutenant-Governor to Secretary of State. (Translation.) PoiNTE i. Pic, 6th July, 1887. Sir, — In answer to your despatch of the 19th April, 1887, on the subject of the Acts passed by the legislature of the province ot Quebec at its session of 1886, and of the report of the Honourable the Minister of Justice, recommending that the atten- tion of the Lieutenant-Governor of Quebec be called to section 16 of chapter 34, intituled : " An Act respecting the Bar of the Province of Quebec," in which precedence over the other members of the bar in the province is given to the batonnier, and to section 1 of chap. 98 of the same statutes, which constitutes the Lieutenant-Uovernor a corporation sole, I have the honour to inform you that my government insist upon the power which the legislature of Quel>ec had, to htyve passed the said Acts. Previous to confederation the Queen's counsel were appointed from time to time in each of the provinces by the Governor General or the Lieutenant-Governor, on the advice of the Executive Council, and I ain informed that since the time of responsible government was given us, no appointments of Queen's counsel were made in any other 49-50 VICTORIA, 1886. .■J35 nd will be, hurtful to Drity of this province, un, humbly pray that ned in future, province of Quebec the tant committee of the ds and aims, from that niversities and noi'nial h schools, are entirely heae facts should be it their rights in such out the consent of the ntenance of Protestant Protestant candidates es of study prescribed n, for the highest grade matriculation, should be rts of the universities, 'essional study without -sities, this privilege is pursue a thorough and the course of study in and is equal to that granted. )ractice, the Protestant ters shall be respected, uate for professional, as they can claim the con- T them before Confedera- .he educational rights of rhich a majority must be ief in the premises as to ir petitioners, as in duty nte. >ic, 6th July, 1887. 87, on the subject of the . its session of 1886, and imending that the atten- ction 16 of chapter 34, bee," in which precedence to the batonnier, and to he Lieutenant-Governor J government insist upon the said Acts. )inted from time to time tenant-Goyernor, on the the time of responsible were made in any other manner. As late back as 1872, the legislature of the province of Quebec passed an Act respecting the Queen's Counsel and that Act was never disallowed. The only point decided by the Supreme Court, in the case of Ijenoir vs. Ritchie (to which the Minister of Justice refers) is that the provincial Acts do not affect the Queen's counsel appointed by the Governor General ; this cause does, therefore, decide the point at issue. My government share the view of the Ontario government, which, in its despatch of the 22nd January, 1886, claim vigorously the right of appointing Queen's coun.sel ; I take the liberty of referring you to that despatch. In a report to his Excellency the Governor General, dated the 3rd January, 1872, the now First Minister, Sir John A. Macdonald, who was then Minister of Justice, expressed himself as follows : — " I am of opinion that in virtue of section 92 of the British North America Act, 1867, the provincial legislatures, having the control of the administration of justice and the organization of courts, could, by statute, provide for the general conduct of affairs before the said courts, and pass such enactments with respect to the bar, to the management by solicitors of criminal cases, to the selection of such solicitors and to to the right of precedence, as the legislature may see fit to do." It is in consequence of this opinion that the Acts respecting the nomination of Queen's counsel were passed both by the provinces of Ontario and Quebec. My government is of opinion that if the provincial legislatures can authorize the Lieutenant Governors to give precedence before the courts, as admitted by the Minister of Justice in 1872, they can a fortiori give precedence themselves, and this is all the legislature of Quebec did when it passed the Act respecting the batonnier general. With reference to the objection made to the Act which constitutes the Lieutenant- Governor of the province a corporation sole, my government is of opinion that it is base I upon an erroneous appreciation of the object of this Act, which cannot in any way affect the office of Ijieutenant-Governor, in the sense meant by section 92 of British North America Act. The Act to which objection is taken has solely for its object to create a civil j}enonne in the province ; and no one doubts that the local legislatures 'can legally constitute into civil persons, such bodies, individuals or functionaries as they see tit. It is in that way, for example, that the legislature of Quebec constituted, on different occasions, and very recently. Catholic bishops into corporations. They did not con- sider this legislation as an encroachment on their office. I am informed that, on the contrary, they solicited it, perfectly understanding that the question was not to regulate their office, but to give civil rights to the bishops. For these reasons my government believes that the Acts in question should not be disallowed. I have, kc, L. R. MASSON, Lieutenant-Governor. (I'ranalation.) Lieutenant-Governor to Secretary of State. PoiNTE X Pic, 7th July, 1887. Sir, — In answer to your despatch of the 18th April, 1887, on the subject of the Act of the legislature of this province, 49-50 \'\c., chap. 39, intituled: "An Act to authorize certain Corporations and Institutions to lend and invest moneys in this Province," I have the honour to inform you that mj' law officers are of opinion that the Minister of Justice misapprehends the object of this Act, which he recommends should be disallowed, if it is not amended in the sense he indicates. It cannot have entered into the mind of the legislature, I am told by the law officers, to actually reduce to nothing the power of the Federal Government to create J 336 (jUBtiGO LBOI8LATION certain corporations, in compelling them to the necessity of taking out a license from the government of Quebec. If this law had such an effect, its disallowance would be perfectly useless, and iiny amendment could not render it efl'ective, for, naturally, a company legally incorponitt'd by the Federal Parliament could, by the law in question, be stopped in the exercise df the rights conferred on it constitutionally, and any attempt made with that view would be defeated in the courts. Far froiu wishing to diminish the powers of corporations constituted by the Fedeial Parliament, the legislature of the province of Quebec, on the contrary, wish to facilitate their operations. It is now established that the Federal Parliament cannot give to the corporations which it is authorized to create, any right affecting property and civil rights. This power can only be given them by the local legislatures, and such is, I am informed, the opinion expressed by the Privy Council in Enr^land in the following cases : — Gold Mine Company of the Chaudi^re vs. Desbarats, 5 L. R. C. 277; Citizens' Insurance Co. V8. Parsons, 7 L. R., Appeal Caaes 96 ; Colonial Building and Investment Association and Attorney General of Quebec, 9 L. R., Appeal Cases 166. Here are the words themselves in which the Privy Council expressed its opinion re Citizens' lusurance Company vs. Parsons : " But it by no means follows because tlie Dominion Parliament has alone the right to create a corporation to carry on business through the Dominion, that it alone has a right to regulate its contracts in each of the provinces." It is, moreover, I am informed, the decision rendered re Colonial Building and Investment Association and Attorney General of Quebec, which led to the passage of the Act of 1886, which Act has for its object to facilitate the operations of the corpor- ations in question. So much so, that, according to those decisions, these corporations could not, without this law, possess immovables in the province of Quebec, except by virtue of authority expressly given by an Act of the legislature, while with this .same law they only have to apply to the Lieutenant-Governor to obtain a license, which holds the place of a special Act. Armed with this license, the corporation can possess immovables', and carry on all the operations mentioned in the Act in question, even those which the Federal Parliament could not authorize. The Honourable Minister of Justice finds objection to this law only inasmuch as it affects the corporations created by the Federal Parliament. He does not mention any, with regard to those constituted by the Imperial Parliament, and my law officers And it strange that, what is not considered the usurpation of power with respect to the Imperial Parliament, is so considered with the Federal Parliament, the powers of the latter, certainly not being equal, even in the eyes of the most determined partisans of the federal jurisdiction, to the powers of the Imperial Government towards the legis- latures and the incorporation of companies. In closing I take the liberty of calling your attention to an observation made to me by my law officers, and which, although not bearing on the merit of the question, has for them a certain importance under the circumstances. The Minister of Justice admits that similar laws were passed, one in Ontario in 1876, and another in Manitoba in 1877, and were not, nevertheless, disallowed. Why, do they say, should the legis- lature of Quebec be to-day denied a right, which was not denied the Legislatures of Ontario and Manitoba 1 For all these reasons, my government regrets not to be able to comply to the wish of the Hon. the Minister of Justice in amending this law in the sense indicated, and hopes that it will be sustained. I have, &o., L. R. MASSON, Lieutenant-Governor. 49-50 vicTOHiA, 1886. 337 taking out a license from perfectly useless, and any pany legally incorporated stopped in the exercise of ide with that view would instituted by the Fedeial 1 the contrary, wish to t give to the corporations ty and civil rights. This d such is, I am informed, le following cases : — Gold ; Citizens' Insurance Co. i Investment Association il expressed its opinion iv neans follows because the ition to carry on business contracts in each of the re Colonial Building and •hich led to the passage of operations of the corpor- jisions, these corporations ice of Quebec, except by iure, while with this .same to obtain a license, which le corporation can possess the Act in question, even is law only ina.smuch as it He does not mention any, and my law officers find power with respect to the lament, the powers of the st determined partisans of rnment towards the legis- to an observation made to ;he merit of the question, The Minister of Justice , and another in Manitoba ;hey say, should the legis- denied the Legislatures of ble to comply to the wish in the sense indicated, and lASSON, Lieutenant-Governor. Report of the Honourable the Minister of Justice upon Chapter 3Jf, approved hy Hit Excellency the Governor General in Council on the >J,ird Angunf, JSS7. Depahtment of Justice, Ottawa, 16th July, 1887. T the Act, from which it appears that they insist upon the right of the legislature of tliat province to give the batonnier of the province precedence over the other members of the bar. In support of this view the opinion of Sir John A. Macdoiiald, expressed in his report of 3rd January, 1872, is cited, but his Honour's advisers omit to notice an important limitation contained therein, although the undersigned had called attention thereto in his report, a copy of which appears to have been transmitted to the Lieutenant-Governor, with despatch of 19th April, before referred to. The limitation referred to was that the authority of a legislature, in legislating respecting the administration of justice, to give the right of precedence to counsel, is subject to the exercise of the royal prerogative, which is paramount, and in no way diminished by the terms of the Act of Confederation. His Honour's advisers also assert that the only point decideprehene Parliament of Caiuula. lether a legislature by an es which, by virtue of his ation respecting his office, 'eport and the Oixler in 3nds that the Act referred )th day of July, 1886, be HOMPSON, Minister of Justice. Dublished in the Canada 'o. 5, page. 25.] JiejMirt (f fh ■ Ifonoinuihle the Jfinlxtfr of JuMflrr upon Chn/ili-r .39, (i/)/>r<>ri'd f>y /f!$ Exfdlfm'y thii (Joveriwf Giufral. in CfnineU on thi; Ulh Aiii/iist, ISS7, Depautmknt OK JusTin;, Ottawa, Ifith July, 1887. Ti> //'••< E.rcelli'iiry thf Governor (iewral in Council : .\dverting U> his former report dat«Ml in March, 1887, on the legislation of the provin"'' of Quebec for the session of 188(), and more particularly to the observations therein, on the Act of that legislature, 19-r)0 Vic, chap. .'J9, intituled; " An Act to iiuthorize certain corporations and individuals to loan and invest moneys in this Province," till- undersigned has now to call the att'iiticjti of your Kxcelleni:y to the despatch of his Monttur the Lieutenant-Governor of ^^uelnic datoil the 7th of July inst., in which his Honour states the views of his law advisers on that Vet. The unders i(ned is unable to acquiesce in the isons by which, in his Honour's despatch, it is sought to sustain the validity of (he Act in question. His Honour states: "It is now established that the Federal Parliament cannot "give the corporations which it is authorized to > leate, any right affecting propertj- and "civil rights. This {)owor can only be given them by the local legislatures, and such is, *' I am informed, the opinion expressed by the Privy Council in England in the following "cases : Gold Mine Company of the Chaudi.re vs. Desbarats, 5 L. H. P. C. 277 ; Citizens' " Insurance Co. v.i. Parsons, 7 L. 11., Appeal Cases 96 ; Colonial Building and Invest- " mem Association and Atto.ney General of Quebec, 9 L. R. Appeal Cases 166." The undersigned has to say in regard to this proposition, that the right of the Dominion Parliament to establish a corporation, having powers and civil rights in more than one province, has been most conclusively established. The power of the [)rovincial legislatures, in regard to the establishment of cor- porations, is liinite(i by section 92 of the British North America Act, to " the incor- poration of companies with provincial objects " (subsection 11) and matters of a merely local and private nature in the province," (subsecti i 16) while the powers of the Dominion Parliament extend (by sec. 91) to all maiit.s coming not within the chusses of subjects assigned exclusively to the legislatures," It follows, therefore, that a statute relating to the incorporation of a company, which would be beyond the competency of the provincial legislatu .■, is within the competency of Parliament. Among the numerous decisions of the Judicial Committee of the Privy Council, and of other tribunals sustaining this position, some of the judgments cited in his Honour's despatch put the point beyond a doubt. The right of a corporation, so created by the federal authority, to hold lands, or to make contracts in the several provinces in which it is established as a civil person, may be dependent on the general liiw of each province as to corporations, but cannot, in the opinion of the uridersigned, be restricted by any provincial legislation aimed at corporations established by the Federal Parliament. In the case of th»» Citizens' Insurance Company of Canada vs. Parson-j (L. R. 7. Appeal Cases 96) Sir Montague Smith, in giving the decision of the Judicial Committee of the Privy Council, refers, at page 116, to a passage in the judgment (not approved) of one of the learned judges of the Supreme Court of Canada, thus : — " The learned judge assumes that the power of the Dominion Parliament to incorporate companies to carry on business in the Dominion, is derived from one of the enumerated chisses of subje( t.s, viz., ' the regulation of trade and commerce,' and then argues that if the authority to incorporate companies is given by this clause, the exclusive power of regulating them must be 'given by it, so that the denial of the one power involves the denial of the other. But, in the first place, it is not necessary to rest the authority of the Dominion Parliament to incorporate companies on this specific and enumerated power. The authority would belong to it by its general power over all matters not coming within the classes of subjects, assigned exclusively to the legislatures of the M \ 1 1 1' l ii' pW j 4.I-*-- 840 gUEHKC I.KniSLATlD.V provinces, and the only subject on this head nssiKoed to the provincial lonisluturo IxtinK 'tl'o itK'orporation of foin|>iini«!s with pnivinfidl ohjfctM,' it foiiowH that thn iiK'()r|)oriition of conipiiiiies otht-r than provincial, falls within tho ;((niHral powct-H of tliii Parliament of Canada. Hut it hy no in»'ans follow:*, Iwcaus*^ tho Dominion Pailianwnt has alone tho right to croato a corporation to carry on busint'ss throughout tint J>oininion, that it alone has the right to regulate itH contriictH in each of the proviiu^s. " Huppo.se thn i)oniinion Parliament were to incorpoi-ate a conipany, with power, among other things to purchase and hold lands throughout ('anada in mortmain, it could scarcely he contended, if such a company were to carry on huHinosH in a province where a law against mortmain prevailed (each jirovince having exclusive legislative power over 'property and civil rights in the province') that it could hold land iti that proviiK-e in contravention (hout tlm Mach of the provitims, (•Dinpany, with powiw, a ill niortinairi, it cmild l)iisiii(!HH in a proviiitc ing oxclusivfi legislative could hold land in timt I, if a eoini)any wck^ ind in the Doniiiiion, ji, ir, by reason of all the m would still exist, and iiation vh. the Attorney inith, again giving tlii! s(page 1(14): "Their ight in refusing to hold he olinervations of this s<)MH, referred to by the >n oidy, and cannot be ips adhere to the view onnnion and Provincial Iwilow, and at this bar, the province of Quebec, k'ed that its objects wert; belonged exclusively to ssociation has hitherto cannot affect its status sociation was originally 8 business, consisting of corporation with those Ktensive with the grant, it the judgment prayed i. * * * •, whether thejudgment that the association Ims it operations within the n the province, can be Y General, that, on the rohibition was too wide, he province, but it was incial law, at the least, on of the Building Acts itions cannot acquire or to foreign corporations larats. It may also Ix; peal or modify this law ca Act, viz., 'property and civil rights within the province,' and l)elongs exclusively to the proviiu^ial legisla- ture ; so that tbo Dominion ( could not confer powers on the company to override it. Hut the powers found in the A' t of incorporation ar<5 not necessarily inconsistent with the provincial law of mortmain, which does net absolutely prohibit ('(ii'porations from ac<|uiring or holding lands, and otdy reijuircs, as a condition of their doing so, that tlniy should have the consent of the crown. '' rf that consent be obtaitied, a corporation does nut infringe tlm provincial law of mortmain, by accpiiring and holding lands. '• What the Act of incorporation has done is to create a legal and artificial pM-oti, with capacity tq,^ny any power and rights which it may please to convey, whether the po^' -^r of holding lands and the right of makingcontracts, or other- wise. His Honour's despatch states that similar statute.s were passed, one in Ontario in 1876, and another in Manitoba in 1877, and were not disallowed, and inquires why the right which was not denied those provinces should be denied the legislature of Quebec. The statute of Ontario was allowed to go into operation without comment. The statute of JIanitnba was commented on unfavourably, in the passage cited from the report of the then Deputy Minister of Justice, and the statute of Quebec might faiily have been aisallowed, notwithstanding that the power of disallowance had n- t been exerci-^ed with regard to such cases, iu view of the fact that, before the time of disallow- ance had expired, the attention of his Honour the Lieutenant-Governor of Quebec was called to the objections which existed to such enactments and his Honour's adviser., were invited in due time to obtain the repeal of the statute. JNO. S. D. THOMPSON, Minister qfJtosiice. 886. QUEBBC LEGISLATION, 50 VICTORIA, 1887—51-52 VICTORIA, 1888. 343 ated the 19th of February, 'he right of a " provincial 16 province to a company ' its Act of incorporation ^us provinces, is at least ^ed to go into operation in Ontario) I do not reconi- rer, that the attention of iw oflicers find it strange ;ard to the imperial parliji- (lent. Tho undersigned is ^■-tch based thereon, wliicli ijuestion was deemed to be ompa.nies incorporated by his report in March last, to Act, and the one which it 3, aj the guardian of the 3S incorporated under the idersigned may express his )n the question thus , A and engaged, under nnd ithin the province of Qne- 1 the provincial authorities Parliament of the United 3 which it may please to making contracts, or other- passed, one in Ontario in wed, and inquires whj^ the I the legislature of Quebec. 1 without comment. The le passage cited from the te of Quebec might faii-ly disallowance had n- t been before the time of disallow- it-Governor of Quebec was nd his Honour's adviser ). THOMPSON, Minister qfJtisiice. QUEBEC— 50th VICTORIA, 1887, 1st Session, 6th Legislature. Eiporf of the Hononrahle the Minister of Justice, approved by His Excellency the Governor General in Council on the 9th June, 18&8. Dsipaetment of Justice, Ottawa, 1st June, 1888. To His Excellency the Administr'it'.-r in Council : The undersigned has the honour to report upon the Acts of the legislature of the province of Quebec, passed in the session of 1887, ant to recommend that all of the A(-t,s (chapters 1 to 80, inclusive) be left to their operation. Respectfully submitted. JNO. S. D. THOMPSON, Minister of Justice. QUEBEC— 51-52 VICTORIA, 1888. 2nd Session, 6th Legislature. Attorney General of Quebec to the Minister of Jusace. Quebec, Uth July, 1888. le honour to transmit you a copy of a bill, passed by ohe legislature of sssion, (51-52 Victoria, chapter 20) and ititituled : "An Act to amend Siu, — 1 have the 1 Quebec at its last session, ^ the law respecting District Magistrates." Also a copy of the votes and proceedings of the legislative assembly of the 12th June last, containing a resolution in reference to the said Act, to which I beg to call your special attention I have, &c.. ARTHUR TURCOTTE, Attorney General. ina 344 QUEBEC LEGISLATION Extracts from Votes and Proceedings of Legislative Assembly of Quebec. Hon Mr Turcotte moved that the House do resolve itself into committee of the I 1 nn S X l'> ^respecting the appointmeat of two magistrates to deal with ;;aU:rs^o''ugL^lfo;;lh:T-it' court i'/the district of Montreal, which was ado,t. Thr^aid bill was then considered in committee and reported. And the question that the said bill be now read a third time being put Mr DSSe (Ulslet) mo-ed in amendment : That the following words be added ment." ^'Savt^ovS"?, a s„b.ame„dm»t that the following word, be added .„ tl. mation putting the act into force shall i.ot be issued. !^;^Z^-^ on th« ,„b..me„d,nent it wa, ca.ried on the followi, division :— Yeas, 29 ; nays, 15. , . , . , , The said bUl was then read a third tune and passseii. Certified. F. G. MARCHAND, Speaker. :ey General of Quebec to the Hon. the Minister of Justice. QoEBEC, 1st September, 1888. Sir -In reply to your telegram of yesterday, I beg to transmit herewith a copy of r Iptter of' the Uth July last, which was mailed on the same day. , . .^ , ''''^The Act therein' lefe^red to provides for the , abolition of the circuit c^^^^^^ Montreal, for the creation of a -l^.tvict magistrates' court instead thereof, and for t appointment of district magistrates to hold that court. ^^ The resolution adopted by the legislative assembly, on 12th J^'^^ !*«*' ^^ *" effect that the new district magistrates ^ere only to be appointed one month afte f!'tion of the above Act, in order t« allow the federal government to appoint 1 two additional judges whose appointment had bee... 'uthonzed. two ™,^ J J-* 1 t/,^ letter of the 14th July, the government of Quel has ye^tX onlered the'putting'int. force of the Act above alluded to, and appoin the two magistrates as provided by said Act. J have, &c., ARTHUR TURCOTTE, Attorney General. uam 1 51-52 VICTORIA, 1888. 346 AsHeiabJy of Quebec. feif into coinmifctee of tlie r) magistrates to deal with lontreal, which was adcjited Irted. time being put. le following words be julded liding, this House desires u, let of the federal authorities the expenses which the from the Dominion Govern- wing words be added to the ily be appointed one m .nth leral government to appoint on zed, and if such appoint- sanction then the procla- as carried on the followins,' d. G. MARCHAND, Speaker. iininier of Justice. \ Ist September, 1888. ansmit herewith a copy of my day. :ion of the circuit court at 'i instead thereof, and for the on 1 2th June last, is to tl.e >pointed one month after the government to appoint the ized. , the government of Quebec ve alluded to, and appointed rHUR TURCOTTE, Attorney General. Report of the Honourable the Minister of Justice, approved by I/is Excellency the Governor General in Council on the 7th September, ISSS. Department op Justice, Ottawa, 3rd boptember, 1888. To Nin E.rcellimry the Governor General in Council : The undersigned has the honor to report that the Lieutenant-Governor of the province of Quebec transmitted to the Secretary of Sta.te £or Canada, on the seventh day of August last, certified copies of the Acts of the legislature of the province of (^)uebec, wliich had been assented to by him on the twelfth day of July last. On the eighth day of August these copies were received by the Secretary of State and referred to the undersigned for report. Among these Acts is one to which it would seem that early consideration should be given, viz., that marked " Assembly Bill No. 12 " and intituled "An Act to amend the law respecting District Magistrates." The undersigned would call attention to section 96 of the Britisii North America ict, which provides that "the Governor General shall appoint the judges of the .,uperir,r, district and county courts in each province," and section 99 of the said Act, which provides that " the judgei-j of the superior courts shall hold ottice during good behaviour, but shall be remr vable by the Governor General on address of the Senate and the House of Commons," and to section 100 of the same Act, which enacts that " the salaries, allowances and pensions of the judges of the superior, district and county courts shall be fixed and provided by the Parliament of Canada." The Act of the legislature of the province before referred to, professes to enable tl.e Lieutenant-Governor of the province, by proclamation, to abolish the circuit court sitting in the district of Montreal (the circuit court being a court now presided over by the judges of the superior court of the province of Quebec) and to establish in that city, for the said district, a special court of record under the name of the dis- trict magistrates' court of Montreal. It provides (section 2) that the court shall be composed of two justices called district magistrates of Montreal who shall be advocates of ten years' practice, be chosen from among the members of the bar of the province, and be appointed under the great seal of the province by the Lieutenant-Governor in Council. It contains other provisions as to the qualifications of the judges newly ^o be created, and provides (section 4) that they shall hold otHce during good behaviour, but may be removed from office only upon the joint address of the legislative council and legislative assembly ; also, by section .5 it enacts that the .salaries of these judges are to be paid out of Mie Con.solidated Revenue Fund of the province, and, by sections 6 and 8, that "all the powers now possessed by the judges of the superior court and the duties imposed on them respecting the affairs, proceedings, matters and things with- in the jurisdiction of the circuit court sitting in the district of Montreal are hereby conferred and imposed upon the district magistrates of Montreal," and that " the jurisdiction of the said court is the same, mutatix mutandi.f, for hearing and deciding civil matters, as that exercised under the law of the said circuit court of the district of Montreal." The undersigned is of opinion that the piovisioos of the Act which profess to con- fer upon the Lieutenant-Governor in Council tlie power to appoint these judges, the provisions also which relate to their tenure of office, their qualifications for ofhce, and their mode of removal from office, are clearly in excess of the powers conferred on the provincial legislature by the British North America Act, and clear invasions of the powers conferred by the British North America Act on the Parliament of Canada, and on your Excellency, and as any delay in disallowing the statute of Quebec in question, may lead to confusion and private injury in the administration of justice, he recommends that the same be now disallowed. JNO. S. D. THOMPSON, Minister of Jusiice. 346 QUEBEC LEGISLATION Ills Honour the Lieutenant-Governor of Quebec to the Hon. the Secretary of Statu. Quebec, 2nd October, 1888. Sir. — I have the honour to inclose to you copy of an Order in Council passed this day, on the subject of the disallowance of the Act to amend the law respecting district magistrates, and with reference to the issuing of the proclamation required by sections 56 and 90 of the British North America Act, giving notice of such disallowance. I have, (fee, A. R. ANGERS, Lieutenant-Governor, Copy of Report approved by His Honour the Lieutenant-Governor of Quebec in Council on the 2nd October, 18S8. Report on the subject of the disallowance of the act to amend the law respecting district magistrates, and with reference to the issuing of the proclamations recjuired by sections 56 and 90 of the British North America Act, 1867, giving notice of such disallowance and the date thereof, and asking for the transmission of the whole to the Honourable the Secretary of State, Ottawa. The Honourable the Fii'st Minister, in a report dated 1st October instant, represents that oti the 12th September last his Honour the Lieutenant-Governor received from the Dominion authorities a despatch, worded as follows : — "Department of the Secretaky of State, Ottawa, 11th September, 1888. " Sir, — I have the honour to inform you for the information of your government, that the Governor General in Council has examined the Act passed by the legislature of the province of Quebec at its last session, marked 'Assembly Bill No. 12,' entitled ' An Act to amend the law respecting district magistrates,' and that his Excellency has been advised to disallow the said Act. " I inclose to you the order of the Governor General disallowing the above men- tioned Act, together with his Excellency's certificate as to the date of the said Act. " I aloo inclose copies of the Order in Council and of the report of the Honourable tlie Minister of Justic^ upon the subject. " I have, ifcc, G. POWELL, " Under Secretary of State. That the said despatch was accompanied by a copy of the report of the Honourable the Minister of Justice, giving reasons for such disallowance in the following terms : — " The undersigned is of opinion that the provisions of tlie Act which profess to confer upon the Lieutenant-Governor in Council the power to appoini these judges, the provisions also which relate to their term of office, their qualifications for office and their mode of removal from office, are clearly in excess of the powers conferred on tlie provincial legislatures by the British North America Act, and clear invasions of the powers conferred by the British Noi th America Act." That the re.isons for the disallowance are, theiefore, that the Quebec legislature has no power to authorize the Lieutenant-Govornor in Council to appoint district magistrates, or to enact that they will remain in office during good behaviour, and shall not be removed from office, except upon the joint address of the legislative council and the legislative assembly. That the Act disallowed is chapter 20, of 51-52 Victoria, which rwiifci as follows : — Act to amend the iaw respecting district magistrates. Whereas, in the judicial district of Montreal, the number of case^ in civil matters before the superior court and the circuit court is so great that, uotwithstand- 51-52 VICTORIA, 1888. 347 the Secretary of Stato. 2nd October, 1888. !r in Council passed this law respecting district )n required by sections 3uch disallowance. R. ANGERS, ieutenant-Governor. or of Quebec in Cvuncil mend the law respecting proclamations re(juiied ^ giving notice of such sion of the whole to tlie 1st October instant, le Lieutenant-Governor ollows : — ■ th September, 1888. on of your government, assed by the legislature ly Bill No. 12,' entitled nd that his Excellency allowing the above men- late of the said Act. eport of the Honourable L, - Secretary of State. eport of the Honourable 1 the following terms : — Jie Act which profess to jpoini these judges, tiie alitrcutions for office and powers conferred on the I clear invasions of the ; thr Quebec legislature ncil til appoint district lod behaviour, and shall legislative council and lich i-Mttk as follows : — aber of case^ in civil eat that, uotwithstand- district magistrates' court ing the permanence of the sittings of such courts, the judges presiding therein are unable to hear and decide them all, with ihe despatch that would be suitable to the parties interested. Whereas, to remedy this state of things, and in the interest of tho administration of justice, it has become necessary, so as to permit of the judges of the superior court attending exclusively to the aflFairs which are immediately connected with that court, to abolish the holding of the circuit court in tl o district of Montreal and ti> establish ther.' a district magistrates' court, before whvch all the cases, proceedings, matters and things which are now within the jurisdiction of such circuit court, may be brought. Therefore, Her Majosty, by and with the ad .ice and consent of the legislature of the province of Quebec, enacts as follows ; — 1. The Lieutenant-! lovernor in Council, may by proclamation abolish the circuit court sitting in the district or Montreal, and estal)lish ii: the city of Montreal, in tho said district, a special court oi record under the name of of Montreal.' 2. Such court shall be composed of two justices called 'district magistrates of Montreal,' who shall be advocates of ten years' practice, be chosen from among the members of the bar of the province, and be appointed under the great seal by the Lieutenant-Governor in Council. 3. It is not necessary to be appointed as magistrate to have property (jualitica- tion, but so long as he occupies such otHce, no magistrate can be a senator or mejuber of the House of Commons and of the executive council, legislative council or legislative assembly of the province, or fill any other office under the crown. 4-. Such magistrates shall hold office during good behaviour, but they cannot be removed from office except upon the joint address of the legislative council and the legislative assembly. 5. The salaries and emoluments of such two magistrates shall be three thousand dollars each, payable out of v''he Consolidated Revenue Fund. 6. All the powers now possessed by the judges of the superior court, and the duties imposed upon them respecting the affiiirs, proceedings, matters and things within the jurisdiction of the court sitting in the district of Montreal, are hereby conferred and imposed upon the district magistrates of Montreal. 7. One of these magistrates shall preside over the court alone, but they may both sit at the same time in different rooms and exercise all the powers of the court. 8. The jurisdiction of the said court is the sair.3, mutatis mutaiulix, for the hearing and deciding civil matters < s that exercised under the law, by the said circuit court of the di.strict of Montreal. 9. Until otherwise decided by the Lieutenant-Governor in Council,, the place of the sittings of the new court, the jffices of the officers and the rooms necessary for the deposit of the archives shall ren.ain t'.ie same as those now occupied for the same pur- poses by the circuit court of the judicial district of Montreal. 10. The pre.sent officers and employees of the circuit court shall, without new appointment, be the officers of the new court. 11. Upon the death or removal of such officers, their successors shall be called officers of the magistrates court of die district of Montreal. 12. The bailiffs of the superior court are at the same time bailiffs of the district court thereby established, and are subject to its orders. 13. At the time of the coming into force of this Act, any case or • proceedings commenced and pending before the circuit court of the district of Montreal, shall be continued, heard and decided by the judges of the superior court as if this Act had ncii been passed, but the exocutiim and all other proceedings ati.er the final judgment, til i within the jurisdiction of the new court and of the justices thereof. 14. The records,' archives, plumitifs, books and papers of the circuit court of the district of Montreal when abolished, shall, until otherwise decided by the Lieuten- 348 QUEBEC LEQIBIiATION anKjtOvernor in Council, remain in the places where they are now deposited and kept, as belonging to the district magistrates' court of Montreal, under the exclusive contiol of such court and of the ju3tices thereof. 15. All provision^' of the Code of Civil Procedure and other provisions respect- ing the circuit court of the said district are, mutatw mutandis, applicable to the magistrates court hereby established and to \\w justices presiding over such court. 16. The words 'circuit court of the district of Montreal,' 'circuit court of Montreal ' or simply ' court ' or ' circuit court ' whenever referring to the circuit court sitting in the district of Montreal, whenever found in the Code of Civil Procedure or in any other law, shall mean and include the ' district magistrates' court of Montreal' 2. The words 'judges of the superior court,' 'judge' or 'judges' whenever referring to their powers and duties rr-specting the afl'airs, matters and things connected with tha circuit court sitting in tlio district of Montreal, shall mean the district magistrates of Montreal. 3. The words 'clerk of the circuit court ' or 'clerk' and the words designating any other officer or employee whenever referring to the circuit court sitting in the dis- trict of Montreal, shall mean tlie clei'k or other otKcer or employee of the district magistrates' court of Montreal. 17. This Act shall l>e considered as forming part of the law respecting district magistrates, and the pro\'isions thereof shall apply to this action so far as compatible. That the law respvicting district magistrates in the province of Quebec in force before the 12tb July, 18S8, was the Act .S2 Vic. cliup. 23, intituled " An Act re.spect- ing district magistrates in this province.' assented to 5th April, 1H69, and amended by several other Acts of tlie legislature, and anK^ng others by the following; — 1. 33 Vic, cap. 11, assented to 1st February, 1870. " 35 Vic, cap. 9, a.ssented to 23rd December, 1871. 37 Vic, cap. 8, assented to 28th January, 1874. 2. 3. 4. 39 Vie., cap. 31, assented to 24th December, 1875. 5. 40 Vic, cap. 12. assented to 28th December, 1876. 6. 41-42 Vic, cap. 8, assented to 20th July, 1878. 7. 48 Vic. cap. 15, assented to 0th May, 1885. That the ipTut section of the Act of 1869, authorizing the appointment of districl magistrates ^ taiw province, reads as follows : — ■• The LiemuBnant-GoT^ernor in Council may from time to time appoint by corn- missioD under tsat great seal, one or more persons who shall be advocates of at least five years' stanuiing, and shall thereupon cease practising, as a district magistrate or district magistniteb. within any one or more districts in this province ; " and that other provisions of the same Act confer upon the said district magistrates a comparatively extensive criminal jurisdiction. That section 13 of the same Act reads as follows: — "The Liencenant-Cxovernor in Council, whenever he thinks proper, may, by pro- clamation, establish in and for any county \\\ this province, a court, to \x called the magistrates' court for the county of (naming the county), which couit shall be held by the district magistrates within whose jurisdiction such county is situate, and may altw) by proclamation fix or alter, from time to time, the days on which such courts shnil be held in anv county."' That seccum 16 of the same Act gives civil jurisdiction to the magistrates' court and empowers them to bear, try and determine : — " 1. All suits purely personal or relating to movable property, which arise from oontractH or quasi contracts, and wherein the sum >r value demanded does not exceed tMNBnty-five dollars, and all suits for the recover}' of rithes oi- arrears thereof. " 2. All suits for the recovery of school taxes. asseBsments or contributions, or of rates, taxes, assessments, penalties, damages or sums of money whatever, due or payable in virtue of the Tower Canada Municipal Act, or any Acta amenuihg the same, or under the Act respecting abuses prejudicial to agriculture or any Acts unending the san,e, or 51-52 VICTORIA, 1888. 349 low deposited and kcjil. ;r the exclusive contiol ther provisions respect- dis, applicable to tin; ig over such court, eal,' ' circuit court of g to the circuit court )f Civil Procedure cii' es court of Montreal.' or 'judges' whenevei' ■s and things connected lall mean the district the words designating ourt sitting in the dis- nployee of the district law respecting district n so far a.s compatible, nee of Quebec in force tuled " An Act respect- \>^()9, and amended by ollowinff:— appoiiitment of districl; jO time appoint by com- be advocates of at least a district niagistrate or vince ; " and that other strates a comparatively iks proper, may, by pro- court, to be called the; lich couit .shidl be held ntv iM situate, and Uiay whicii such courts shrtll o the magisti-ates' court perty, which arise from nanded does not exceed ■ears thereof, or contributioiLS, or of vhatever, due or payable luihg the same, or under ! mending the sair>e, or in virtue of any special Act incorporating any city or town municipality, or of any Act amending the same, or in virtue of any by-laws or regulations made under the authority of such Acts. " 3. All suits for the recovery of all penalties incurred, of sums due or payable to the trtiasury of the province, under either of the chapters six, seven or eight of the Con.solidated Statutes for Lower Canada, as amended by the Act of the present -session, intituled ' An Act i, No. 10, document No. 141, page 41 -.— (See ante, page 153J. " Weie this the first enactment of a similar nature passed by a provincial legis- lature I would hesitate long before recommending that it should be left to its operation, (IS it appears to entrench upon the powers conferred upon the Governor General of Canada by the 96th section of the British North America Act, 1867, which section is as follows ; — "96. The Governor General shall appoint the judges of the superior, district and county courts in each province, except those of the courts of probate in Nova Scotia and New Brunswi<;k." " Inasmuch, however, as provincial legislr.tion has been previously left to its opera- tion, whereby certain judicial powers in civil matters have been conferred upon stipendiary magistrates, and whereby courts presided over by stipendiary magistrates, and having in etl'ect the powers of the division courts of Ontario have been constituted, I do not feel at liberty to object to the provisions of the present Act, provided the jurisdiction pro- fessed by the former legislation upon the subject, which has been left to its operation, has not in effect been substantially extended." 3. Statute of British Columbia 49 Vic, chap. 6 (1886) enacts that stipendiary and police magistrates, appointed and paid by this province shall have, hereafter, civil juris- diction in oil actions for debts, where the amount claimed does not exceed one hundred dollars. That it is well to remember tliat in 1887 the legislature of this province, on the request of the judges, lawyers and people within the jurisdiction of Montreal, authorized the appointment of two additional judges for the reasons mentioned in the preamble of the said Act, which reads as follows : — "Whereas, under the authority of section 1, cap. 78, of the Consolidated Statutes for Lower Canada amended by the Act 49-50 Vic, cap. 7, the superior court is com- posed of twenty eight judges ; namely, one chief justice and twenty-seven puisne judges. " Whereas, the present number of judges now assigned to the district of Montreal is insufficient for the despatch of business in the district, and, whereas, in the interest of the administration of justice it is necessary to have two additional judges available for the business of the circuit court in the said district ; Therefore Her Majesty, ckc, >fec. ; and that, notwithstanding that law, those two additional judges had not yet been appointed on the 12th July last, date when the Act was assented to, nor on the 30th 362 (jUKIIKO LEdlHLATION 'I.;- August liiHt, at the time of the isauiiig of the proclumatioii, putting into force the dis- allowed Act, to the detriment and damage of those within tlie jurinlictiim of the district of M authorities, the wisli if credit is given to ■r of the iJomiiiioii, e lutnourable niemlRir ken, but, as has been decide when u wisli isregarded. The con- the prf)vincial legis- ustice, excepting tlie ent provinces, whoso nt. 80 that wlien a number of judges is eat responsibility for want them, you can id, tlierefore, we refuse )tion of the provincial ad must know that in ley are increasing the A.nd further : provincial legislature, ; to interfere with their ihough you declare cer- ticular court, we refuse 19.) passed the following J one month after this ant to appoint the two if such appointment is then the proclamation 3 mentioned resoluciou )f this province to the 1 passed by the legis nd the law respecting uigs of the legislative ice to the said Act, 1," and *^''at the above the Attorney General dated 14th July last, ,tes in Montreal." To 3r to in your telegram, ou be kind enough to s issued and that the st last. Minister of Justice, a pernor of the province, lisallowance. " On the eighth day of August these copi»fs weri received by the Secretary of State and rcferi'ed to the undersigned for report. Among these Acts is one to wliicli it would seem early consideration should be given, viz.— that marked "Assembly Bill Xo. lii" and intituled " An Act to amend the law respecting District Magistrates." That among the sessional papers of Caruula for 1S80, an Order of the (Governor (ienci-.il in Council is found, dated i)th June, 18(18, approving the m)>moraiulum of the minister, then Sir J. A. Macdonald, dat(;d Htli June, 1808, ('stablishing the course to he pursued in disallowing laws of provincial legislatures, of which memo, the following is an extract : — " That on the receipt by your Excellency of the Acts passed in any province, they bo leferied to the Minister of Justice for report, and that he, with ail convenient speed, do report as to those Acts which he considtu's free from objection of any kind, and if such report be approved of by your SIxcellency in Council, that such approval be forthwith communicated to the provincial government. " That he make a separate report, oi- separate reports, on those Acta which he may consider : — "1. As being altogether illegal or unconstitutional. "2. As illegal or unconstitutional in part. "3. In cases of concurrent jurisdiction as clashing with the legislation of the general pai-liament. " 4. As eflecting the interests of the Dominion generally. " And that in such report, or report.s, he give his reasons for his opinions. " That where a measure is considered only partially defective, or where objectionable, as being prejudicial to the general interests of the Dominion, or as clashing with its legislation, communication should be had with the provincial government with respect to such measure, and that in such case the Act should not be disallowed if the ireneral interests permit such a course, until the local government has had an opportunity of considering and discussing the objections taken, and the local legislature has also an opportunity of remedying the defects found to exist." That the above order of the Governor General in Council, and a copy of this memorandum were officially communicated to the Lieutenant-Governors of Ontario, Quebec, Nova Scotia and New Brunswick, for the information and instruction of their governments, and also to the imperial government by the Governor General in his despatch dated lltb March, 1869. That the undersigned believes he is justifiable, under the circumstances, to declare that in the present case of disallowance, the above rules have not been observed. That by section 92 of the British North America Act it is enacted that in each province the legislature may exclusively make laws respecting matters included in the undermentioned classes, namely : — "14. The administration of justice in the province including the constitu- tion, maintenance, organization of provincial courts, both of civil and criminal jurisdiction, and including procedure in those courts ; " and that the Act referred to is within the limits of the powers granted by the said section 92 to provincial legislatures. That it is allowed to repeat here the words used in the memorandum from the Attorney General for Ontario, dated 12th July, 1881, respecting the disallowance of the Act intituled "An Act for protecting the public interests in rivers, streams and creeks," which memorandum was approved by Order in Council, dated 14th October of the same year, the said words are as follows : — " The British North America Act shows, that, while the different provinces were federally united in one Dominion, with constitutions similar in principle to the British, the respective executive and legislative pov/ers and authorities of the provincial and Dominion governments were also defined and dealt with, as alike sovereign in their nature, within the limits of the subjects assigned to each respectively. " The Confederation Act was intended to give practical effect to the exercise of the fullest freedom in the administration and control in local matters in each province, which was the main object of Quebec and Ontario especially in seeking such union. 4 dS4 (jUEUKC LKUIHLATION This fundiunontiil principle nf Idcai self jjoverninent runs throii>?h ttiis wliolo of tlii.s ((m- stitutioniil Act, 1111(1 in order thiit it may he pinserved inUct, the utmost vij^ilanctMiii the part of t!very proviiue should he constantly alive to every attempt of tim eenlnil government to transfer the control of local atl'airs from the j^overnment h.iviiif^ the greatest interest in them, and possessinu; the fullest knowledge of them, and under ii direct responsibility to the people of the province, to a government which n.cesHarily liiis the least knowledge of, and t.h(t snudlest interest in, such niatters." That for the above reasuid endanger the peace and harmony which ought to exist between the different constituted authorities, and that, while specially reserving the right of the legislature of this province to enact laws whenever deemed proper on all subjects within its competence, and authorized by the constitution, the Honourable the Kirst Miinster lecomniends that the said disallowance be notified according to law, and that his Honour the Lieutenant-Governor be pleased to transmit copy of the present report to the Secretary of State. Certified. GUSTAVO GRENIER, Clerk of Exe.cittive Council, Report of the Honourable the Minister of Justice, approved by His Excellency the Governor General in Council on the rJ2nd January, 18S9. Department of Justice, Canada, Ottawa, 18th January, 1889. To His Excellency the Governor General in Council : The undersigned has had referred to hira a despatch from his Honour the Lieuten- ant-Governor of the province of Quebec, dated the 2nd day of October last, transmitting a copy of an Order in Council, passed on that day by his Honour's government, on the subject of the disallowance of the Act of the province of Quebec to amend the law respecting district magistrates, being chapter 20 of 51-52 Victoria. The undersigned has the honour to make the following observations on this Order in Council : — The disallowed Act recited that " In the judicial district of Montreal the number of cases in civil matters before the superior court " was " so great that notwithstanding the permanence of the sittings of such courts the judges presiding therein " were unable to hear and determine them all with the despatch that would be suitable to the parties interested." And that " To remedy this state of things, and in the interest of the administration of justice, it had become necessary, so as to permit of the judges of the superior court attending exclusively to the affairs more immediately connected with that court, to abolish the holding of the circuit court in the district of Montreal, and to establish there a district magistrates' court, before which all the cases, proceed- ings, matters and things" then "within the jurisdiction of such circuit court" might " be brought." m ^ a IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I I us. 112.0 1.8 Photographic Sdences Corporation 1.25 1.4 1.6 4 6" ► s v 23 VVtiTf'MNS'iREET WEBSTER, N.r. 14580 (716) 873-4503 CIHM/ICMH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadian Institute for Historical MIcroreproductlons / Instltut Canadian de microreproductlons historlques iS. . "fTPr 51-52 VICTORIA, 1888. 355 After these recitals the disallowed Act made the following, among other pro- visions : — 1 1- 1 1 1. That the Lieutenant-Governor in Ojuncil might "by proclamation abolish the circuit court sitting in the district, of Montreal, and establish in the city of Montreal, i!_ ii :,i ,]• i..:„t „ ..«„„; .1 ,.ner Itainsay J.) stated : " The case of Coote, decidwl in the Privy Council, directly recognizes the power of the local legislature to create new courts for the execution of criminal law, as, also, the power to nominate magistrates to sit in such court. We have, therefore, the highest authority for holding that generally the appointment of magistrates is within the power of the local executives. So much being established, almost all ditheulty disappears." Turning now to the case of Kegina w. Coote, which tlu) Qui'Ik'c court of Queen's liench had relied on as sob ^ng all difficulties, a.-i to the conilict of powers, it is matter of regret to find that it realiy has no l)earing on that subject whatever. The single p(v.ssage in that 'udgment which Ijears upon a..y constitutional (question is con- tained in the following abstract fnmi the judgment delivered by Hir Uoljert Collier : " The objection taken at the trial appears to have been that to constitute such a court as that of the 'fire marshal ' was beyond the power of the provincial legislature, and that consequently the depositions were illegally taken. Subsequently other objections were taken in arrest of judgment and the question of the admissibility of the depositions was reserved. It was held by the whole couit (in their Lordships' opinions rightly), that the constitution of the court of the ' fire marshal,' with the powers given to it, was within the competency of the provincial legislature." There was no contention at the argument, and no decision by the court, as was supposed by Mr. Justice Ramsay, that the " j^wwer to nominate magistrates to sit in such courts, is within the power of the local executive." No solution, therefore, of the difficulty noticed by the court of Queen's Bench in the case of Regina t'». Horner is to be found in the decision of the Priv)' Council in Regina vs. Coote. The fact is that the statute then under review created officers called " tire marshals " with the power of making investigations concerning fires, and their power, in so fai' as it came under the consideration of the judicial committee, was merely that of summoning witne8-;es, and of committing suspected persons for trial. How then could it have been supposed that this was a decision, even in favour of the principle that local legislatures could "create new courts for the execution of the criminal law," as stated by Mr. Justice Ramsay, much less a decision affirming the power of the local authorities to appoint the judges to sit in such courts? The power to " create new courts for the exe- cution of the criminal law," was expressly < nferred by the British North America Act, and, fortunately, does not rest on the case c. Regina vs. Coote. As to the snggestion that the local legislature had even attempted, by the Act then under consideration, to " create a new court for the execution of the crindnal law," it is not only apparent from the reference of the judicial committee that no such attempt had been matle, but the Court of Queen's Bench itself had decided, in 1872, {fi:r parte Dixon 2 Revue Critique, 231) that the statute in question had no connection with criminal procedure. The only remaining passages in the judgment of Regina vs. Horner are an attempt to work out the theory on which it was imagined that the case of Regina vs. Coote had been decided, and the case altogether may be considered as far from a conclusive author- ity, without disrespect for the eminent tribunal which pronounced the decision. The decision, whatever its value, only had in view the district magistrates court as it existed in 1876. Having put forwaixi these two cases as the only ones which could be relied as judicial confirmation of any Act of the character of that which has been disallowed, the Order in Council proceeds to set up the contention that similar laws are in force in all the provinces of the Dominion. If that contention were correct in point of fact it would hardly have much bearing on the question of constitutionality. But it is not correct. One instance given in the Order in Council is a statute of the province of New Brun8\vick which provides for the establishment of "parish courts " with civil jurisdiction up to 840. This New Bruns- wick statute, it must be admitted, is similar to a number of other provincial statutes, but it diflfers in all tlie points to which importance has been given in the previous parts of this report, from the disallowed statute. !•! 61-62 VICTORIA, 1888. ;{(15 's niiglit exist, "as ■IS pnictieiilly dis- •uurt (per i{a»nsay y recdgriizBH tlie if criininal Iiiw, hk, ive, therefore, tlie Htiiites is witliin Host all (lifHeulty c court (if of powers, it is wliatever. Tlie il (]ueation is con- r Koijert Collier: itut(> such a court 1 le^'islature. and othei' objections of the depositions opinions ri'jhtly), ■crs given to it, le court, as was Kistrates to sit in ion, therefore, of ina vs. Horner is " fire marshals " :)wer, in 80 far as lat of summoning f)uld it liave been local legislatures stated by Mr. il authorities to Durts for the exe- •th America Act, • the snggestion consideration, to pparent from the e, but the Court le Cridtpie, 231) r are an attempt nu vg. Coote had inclusive author- decision. The •urt as it existed Id be relied as disallowed, the e in force in all e much bearing »ce given in the provides for the Ws New Bruns- •incial statutes, ! previous parts Keferonce is made in the Order in Council under review, to a rlecision of the Supreme Court of New Brunswick in the caao of (ianong r.v. Hay ley (1 Pugsley and Hurbidge, 324) as sustaining the " Parish Courts " Act. Tiie undersigned desires not to bu understood as undertaking to discuss here the legality of statutes like the New Brunswick statute just referred to. The wide diflcr- ence which has already l>een jKiintetl out between those statutes ami the dis- allowed Act, as to erimitial jurisdiction, as to the extent of the civil jurisdiction, and as to the attempt to transfer cartJiin of the powers of the Sujierior Court judges to pro- vincially apjKiinted judgew, makes it unnecessary to enter upon such a discussion, but it may be proper that he should notice the New Hrunswick decision just mentioned, because it may be supposed tliat although the statutes were difforent, the principles atlirmod liy the court may have lieen sutKciently wide to cover tiie di.sallowed statute, as well as the statutt; of New lirunswick which was then bein'j; considered. The question before the court wivs whether the New lirunswick Act (39 Vic, chap. 5), intituled " An Act to establish Parish Courts," was ultra viren of the local legislature, as to the .section which provided that the commissioners (who are the judges in tho.se courts), should be appointed by the Lieutenant-Governor in Council. As already stated, tl.j parish court was a court fc the recovery of debts undei 840. Two of the judges of the Supreme Court of ' Brunswick, out of five, denied the validity of the enactment. Two of the judges wh . Irmed the validity of the enact- ment, did so on the ground that all the power of the provincial legislature and executive which existed before tlie union of the provinces ren.ctined to the provincial legislature and executive after the union, except in so f-^i as altered by tiie provisions of the Union Act. " lis principle, without which there would not have been a majority of the court to uphold the provision of the lAirish Court Act, W' aid not now be artirmed since the judicial committee of the Privy Council (as weh as otlier tribunals), has so clearly established that no powers are possessed by th ) provincial legislatures, except such as are conferred by section 92 of the British North America Act and that all other powers are vested in the Parliament of Canada It may be that sucli stM ntes as that regard- ing the parish courts are iiilra vires the provincial legislature without »,atj disallowed statute being so, but if they are intra virex, it can hardly be from the weight of the Xow Brunswick decision just quoted, or from the reasoning rjiven by the majority of the court. Another of the statutes referred to in the Order in L( uncil as lieing similar to the disallowed Act is one ptissed by the legislature of Ontario, and which conferred jurisdiction on stipendiary magistmtes in territorial and temporary judicial districts. The undersigned has, however, already shown that the provisions of this Act were distinctly excepted to in the report of the Honouroble Mr. Laflamme, and that a request was made that it should be repealed before the time for disallowance should expire, that that request was unheeded, and that a subsequent enactment of a like character, but going a little farther in conferring jurisdiction, was disallowed. Legisla- tion of that kind has not been continued in Ontario, but the legislature has in recent years avoided doubtful ground by establishing the court, merely, and leaving tlie ■appointment of the judge to the Dominion executive. The Order in Council now under consideration, after presenting the reasoning which has been herein reviewed, with regard to the constitutionality of the disallowed Act, proceeds to give a statement of facts which seems to the undersigned to have no bearing upon that question and no relevancy to the question of disallowance. It refers to the fact that in 1887 the legislature of Quebec authorized the appointment of two additional judges of the superior court, and calls your Excellency's attention to the fact, according to a principle acknowledged by the Dominion authorities, and especially by the Right Honourable the First -linister, in a speech in Parliament in 1880, that the wish of the provincial legislature on such a subject should be respected. On this pioint there need be no controversy. A representation <^ttde by a provincial legislature as to the necessity for an increase in the number of judges, or on any other subject, is entitled to JL 366 QUEBEC LEGISLATION very great respect, and it was not necessary, in order to obtain this admission, that tlie speech of the first minister, made under widely different circumstances from those presented in the province of Quebec, and in relation to a state of affairs in British Columbia on which, the opinion of the provincial legislature was peculiarly important as then; was but little question as to the facts, (the controversy turning largely on a matter of opinion as to the best policy to be pursued in organizing the judicial stafl' of that province) should be referred to. Without digressing into a consideration of the weight which the representations of the provincial legislature should have, under various sets of circumstances that may arise, the undersigned would suggest that, inasmuch as the authority for the appoint- ment of judges of the rank provided for in the Quebec Act of 1887 is vested in your Excellency, and the provision for the salaries, allowances and pensions for such judges can alone be made by Parliament, the responsibility of recommending the necessary provision to Parliament is not wholly removed from your Excellency's advisers by the action of the provincial legislature. It would seem proper that your Excellency's advisers should be informed of the facts which make the appointment of additioncal judges necessary, so tliat they may present to Parliament sound reasons if any exist, for the increased expenditure asked for. This has not been done by the executive of Quebec since the passage of the Act of 1887, but nevertheless in the session of Parlia- ment of 1888, provision was made, at the request of your Excellency's .advisers, for one of the two additional judges, and the appointment of that one had alrefidy been made when the Order in Council under review v as passed. It may be that a careful examination of the facts and statistics connected with the administration of justice in the province of Quebec, will make it proper that Parliament should provide before long the salary of the other judge for whom a place was made by the Quebec Act of 1887. If so, the undersigned will esteem it an agreeable duty to re- commend compliance with the wish implied in the passage of that Act, and he does not desire to be regarded as wanting in respect for the representations of the Quebec legis- lature because he has deemed it his duty to advise that a statute which he believes to be in excess of the powers of that legislature should not be allowed to go into operation. It seems unnecessaiy to say, however, that the fact of a provincial legislature having done its part towards enlarging the number of judges, and the circumstance, if such exists, of additional judges being needed, cannot justify the attempt on the part of the provincial legislature to seize the appointing power. Yet such seems to be one of the reasons put forward in justification of the disallowed Act. The Order in Council of the Quebec Government then proceeds to show that the legislative assembly of Quebec in passing the disallowed Act, adopted a resolution " that the new district magistrates should only be appointed one month after that Act "' should have been "assented to," in order to allow the federal government to "appoint the two additional judges whose appointment had been authorized," and should not be appointed if the increase in the number of superior court judges should be made. The Order in Council then goes to show that on the 1 4th of July last, copies of the disallowed Act and of the resolution just x-ef erred to, were transmitted to the Minis- ter of Justice by the Attorney General of Quebec, that the proclamation putting the Act into force was made on the 30th August only, and the appointment of the district magistrates was made only on the 30th August last. The object of these statements seems to be to present a complaint, that the action of your Excellency's advisers in deciding to recommend the disallowance of the Act of 1888, was unduly delayed and that the Quobec executive were in consequence allowed to proceed to the appointment o ' the magistrates on the assumption that the additional superior court judges would not be appointed, and that the provincial Act would be left to its operation. This complaint, if the undersigned is right in assuming that such a complaint is intended, appears to be foundeil on a misappreheni-:ion of the facts. The Act was as- sented to by the Lieutenant-Governor of Quebec on the 12th July, 1888. It contained no provision as to the date when it should come into force. Chapter 4, of the Quebec V ft. h arimission, that tlie pmstances from those of affairs in British peculiarly important turning largely ou a Ig the judicial staff of the representations of Icumstances that may lority for the appoint- 887 is vested in your |sions for such judges ending the necessary lency's advisers by the *t your Excellency's ntment of additional lasons if any exist, for '. by the executive of the session of Parlia- ncy's advisers, for one id alrefwly been made !s connected with the •roper that Parliament a place was made by agreeable duty to re- b Act, and he does not is of the Quebec legis- which he believes to ;d to go into operation. nal legislature having 5 circumstance, if such upt on the part of the leems to be one of the Beds to show that the adopted a resolution month after that Act "' 'ernment to " appoint d," and should not be dgos should be made. ly last, copies of the mitted to the Minis- lamation putting the tment of the district jlaint, that the action owance of the Act of consequence allowed )n that the additional .incial Act would be at such a complaint is is. The Act was as- , 1888. It contained ter 4, of the Quebec statutes of 1871, provides (and it is re-enacted by Revised Statutes, 1888, art. 5), that a statute of that province " whenever its commencement is not otherwise therein pro- vided for shall, if it be not reserved, come into and be in force, on and from the sixtieth day after the day on which it was assented to." The disallowed Act, therefore, even without any interference by the federal executive, could not come into effect until the 10th day of September, 1888, and the executive of Quebec would not have power, until that date, to issue the proclamation abolishing the circuit court, or to appoint the dis- trict magistrates or to do any other of the matters provided for by the disallowed Act. Notwithstanding this, the proclamation was issued and the magistrates were appointed eleven days before that date. Your Excellency's advisers could hardly have assumed that the executive of Que- bec would desire to do, before the 30th ^N.ugust, acts which they were only empowered to do on the 10th of September at the er^rliest. That your Excellency's advisers did not unduly delay their action in respect to the disallowed Act, is further apparent from the following circumsrances : the authentic copy of the disallowed Act, on which authen'^ic copy alone action has to be taken, if taken at all, in respect of disallowance, was only rec(?ived by the Secretary of State, and referred to the undersigned on the 8th day of August last. Although the time for dis- allowance would not expire for twelve months from the latter date, the report of the undersigned was made on the .3rd day of September, and your Excellency was pleased to approve thereof, and to order the disallowance of the Act, on the 7 th day of Septem- ber, Immediately afterwards, the undersigned sent, by telegraph, an intimation to the First Minister of Quebec, that this had been done, in consequence of that gentleman having requested the undersigned to give him the earliest possible information as to the action which would be taken in reference to the statute. The Quebec Order in Council next proceeds to state a grievance which seems to differ materially from the one just noticed, inasmuch as it is a complaint that in dealing with the disallowed Act, your Excellency's advisers acted with too much expedition. Reference is therein made to a memorandum of the Minister of Justice, dated on the 9th day of June, 1868, recommending the course which should be pursued in reference to a revu .V of the provincial statutes, and the government of Quebec declares that in the present case of disallowance those rules have not been observed. The only rule to which this complaint can refer, by any possibility, is the follow- ing :— " That where a measure is considered only partially defective, or where objection- able as being prejudicial to the general interests of the Dominion, or as clashing with its legislation, communication should be had with the provincial government with re- spect to such measure, and that is such case the Act should not be disallowed if the general interests permit such a course, until the local government ,has had an oppor- tunity of considering and discussing the objections taken and the local legislature has also an opportunity of remedying the defects found to exist." The undersigned does not understand that the adoption of these general rules in 1868 in any way limited or controlled the exercise of your Excellency's power of dis- allowance. They were suggestions for the guidance of the Minister of Justice of that time, and for his successors in office, and in so far as provincial governments were con- cerned, they were merely indications of a line of action which your Excellency's advisers at that period thought suitable to be adopted. They were not in any sense an agreement with provincial governments, and at any time when they may be departed from t would seem that the provincial executives have no reason to complain of the exercise of your Excellency's powers by any other method. In the present instance, it seems apparent that the complaint or departure from these rules is hardly well founded. It can hardly be contented that in dealing with the objectionable statute, the provincial executive wis nt liberty to proceed with the utmost expedition, but that the federal executive wns bound to pursue a course of remonstrance and delay which would have led to gr-^at confusion and public inquiry if the view held by the federal executive was right. It can hardiy be contended that if your Excellency's advisers thought the im- mitmji- [ji^U 368 QUEBEC LEGISLATION porcant provisions of the disallowed Act to be unconstitutional, and in excess of the powers of the legislature, they should have allowea the Aot to be proclaimed, the judges to be appointed by the Lieutenant-Governor, the circuit court to be abolished by proclamation, the new tribunal to exercise its large powers in a great section of the province of Quebec without authority, suitors to be involved in expense, judgments to be rendered and enforced seizures made, property sold, personal liberty restricted, while your Excellency's advisers would be remonstrating with the provincial executive and waiting for the legislative session of 18(59, in order to give that legislature " an oppor- tunity of remedying the defects found to exist." It seems to the undersigned that, quoting the language of the rule which, it is claimed, was violated, " the general interests " did not "permit such a course." Under the circumstances which the undersigned has presented in this report, he ventures to submit that the government of Quebec was under an erroneous impression in supposing that in disallowing the District Magistrates' Act of 1888, your Excel- lency's government was actuated by any disposition whatever to limit the actual rjght of that province "to adopt any law deemed necessary for the good government and prosperity of the province, within the limits of its powers and attributes." . v J NO. S. D. THOMPSON, Miiiistei' of Justice. His Honour the Lieutenant-Governor of Quebec to the Secretary of State : Government House, Quebec, 1st March, 1889. Sir, — I have the honour to transmit you herewith, for the consideration of his Excellency the Governor General, a report of the Attorney General of the province of Quetec, approved by my executive council respecting the disallowance of the Act establishin'^ the magistrates' courts for the city of Montreal. I have, (fee, A. R. ANGERS, Lieuteiumt-Governor. Report of the Hon. the President of the Executive Council of Quebec, approved by His Honour the Lieutenant-Governor in Council, on the 1st March, 1889. The undersigned has the honour to report : ' That he has had under consideration, a report of the Minister of Justice of Canada, approved by his Excellency in Council on the 22nd of January last, in reply to a despatch of his Honour the Lieutenant-Governor of Quebec, of the 2nd October last. The undersigned does not propose to enter into a discussion of the .several pre- cedents quoted in the above report concerning the disallowance of the Act creating magistrates' courts for the city of Montreal : he will simply confine himself to remark, that as long as judgments of the court of appeal, which is the highest court in this province, have not been set aside by a. higher tribunal, he considers them as the law of the country, and believes they should receive due consideration from the ISIinister of Justice. The undersigned takes issue with the said report, principally on the following points : — ■ The said report assumes that a local legislature has no right to determine the qualifications of the judges of the courts which it may create. That opinion is based on Sec. 98 of the British North America Act of 1867. The argument is this : .^ 51-52 VICTORIA, 1888. 369 nd in excess of the 36 proclaimed, the to be abolished b}' ;reat section of the nse, judgments to ■y restricted, while cial executive and ilature " an oppor- 16 rule which, it is course." in this report, he ■oneous impression '888, your Excel- it the actual rjght 1 government and •utes." ite7- of Justice. •y of State : March, 1889. nsideration of his of the province of vance of the Act tint-Gove7'ncn'. ebec, a])proved by irck, 1889. ter of Justice of lary last, in reply the 2nd October the several pre- the Act creating limself to remark, liest court in this icm as the law of I the ^Minister of on the following o determine the ct of 1867. The By that section it is enacted that the judges of the courts of Quebec shall be selected from the bar of that province. The undersigned is of opinion that that section has no bearing on the question, because of the circumstances under which this section was enacted. By the law which was in force at the time of Confederation, the legislature of the then province of Canada had the right to constitute, maintain and abolisii courts of justice having civil and criminal jurisdiction, and the executive of Canada had the power to appoint the judges of the said courts, and to remove them under the limitations prescribed by the constitution then in existence. By the British North America Act of 1867, the several powers heretofore belonging exclusively to the legislature of Canada and to the executive power of Canada, was distributed between the new legislative bodies and the executive authorities created by the Act of 1867. The Act gave the power to create, maintain and abolish courts of justice of civil and criminal jurisdiction to the provincial legislatures. By giving them such power, the xVct impliedly, gave them the power to determine the qualifications of the judges to be appointed to hold these courts. If they had not that power, their power to constitute the courts would be perfectly nugatory ; it would amount simply to a request to the Federal Government to appoint judges for certain purposes. Section 98 is not opposed to this opinion. It is true, that it enacts that the judges of the courts of Quebec shall be selected from the bar of the province, but this was a temporar)' provision rendered necessary by the appointing power conferred on the federal executive. There is no opposition between section 92, subsection 14 and section 98. By section 92, subsection 14, the local legislature are empowered to constitute, maintain and organize courts of civil and criminal jurisdiction, and to determine the qualifications of the judges who shall sit in those courts. As soon as they have made a provision for creating a court and have determined the qualifications of the judges to sit therein, the federal executive is bound by their enactments : but as long as the local legislature has not determined otherwise, the only qualifications of the judges that are to be appointed by the federal executive, provided for by section 98, are, that they must be taken from the bar of that province. Therefore, section 98 is not intended to limit the general power of the local legislatures to determine the qualifications of the judges to sit in the courts by them created, but is only intended to determine the qualifications of the judges appointed to sit in those courts, when these qualifications have not been expressly determined by the legislatures creating such courts. The undersigned also joins issue with the contention of the report of the Minister of Justice referred to, which says that the local legislature of the province has not the power to take from a court, presided over by justices appointed by the federal author- ities, a portion of its jurisdiction and to give it to an inferior court, presided over by magistrate appointed by the provincial authorities. The undersigned does not see clearly from the report of the Minister of Justice, whether he maintains the opinion that the local legislatures have no power to create courts of however small jurisdiction, whose judges should be appointed by the local executive. The undersigned humbly submits that it can hardly be denied that the local legislatures have such power. They have the general power, as stated above, of creating courts of justice with any jurisdiction that they may choose. If there was nothing else in the British North America Act, the power to appoint the judges of those courts, would, according to general principles, belong to the local executives, because it is a rule that wherever the legislative branch of a subject belongs to a particular legislature, the execution of the same belongs to the executive branch of the same legis- lature. Therefore, if there was nothing as to the appointment of judges in the British North America Act the power to appoint them would certainly belong to the provincial executives, therefore, also that power -till I'elongs to the said local executives, as to all judges or magistrates to sit in courts c. -jated by the local legislatures, whose appoint- ment has not been expressly transferred to the Federal Government. Now, let us see who are the judges whose appointment is removed from the local authority and given 1 I ■! \ 1 -< M 8f0 QUEBEC LEGISLATION to the federal executive. If we look to section 96 of the British North America Act, we find that it confines the appointing power of the Governor General in Council to the judges of the superior, district, and county courts in each province. It might be contended that that provision merely applies to the judges of the superior, district and county courts then in existence, and not to those courts ^o be hei-eafter established, and there would be strong ground to support that contention. But it is unnecessary to discuss that point for the purpose of the present argument. Even admitting that section 96 exclusively reserves to the Governor General even the appointment of the judges of such courts if constituted hereafter, it cannot be contended that the Governor General has the power to appoint the judges of any other courts to be created by local legislatures. Therefore, the power to appoint such judges or magistrates exclusively belongs to the local executives. It is, therefore, evident that the local executives can appoint the judges of any other court but those of the court in question. Now it is important to remark, that before confederation and since there has been, in the province of Quebec, courts of a different kind than those mentioned in the section 96, for instance there have been commissioner's courts, the establishment of which in a parish is left to the Lieutenant Governor. There have been recoi-ders and justices of the peace authorized to sit as judges in several civil matters, for instance, for the collection of municipal taxes, wages, i^-c. There can be no doubt in the mind of the undersigned that to the local executives alone, be.jngs the power to appoint judges of courts of that kind, and that power has never been denied to them, until the discussion brought by the passing of the Act creating magistrates' court at Montreal. There can be no question than that the local legislature can create courts, the judges of which may be appointed by the local executives. Now, is there any provision in the British North America Act, preventing the legislature of Quebec, which has the power to create courts of both kinds, that is to say, both of the kind whose judges are appointed by the Federal Executive, and of the kind whose judges are appointed by the 'ocal executive, from giving to a court of one kind a portion of the jurisdiction which, up to that moment, had belonged to the court of the other kind. For instance, for more than fifty years there has been in the prov- ince of Quebec, commissioners' courts having jurisdiction in personal matters up to §25. The circuit court has always had concurrent jurisdiction with those courts. Can it be seriously contended that the local legislature of Quebec cannot ti'ansfer to those com- missioners' courts, which were in existence in 1867, and have been left .since under the control of the provincial executive, another portion of the jurisdiction of the circuit court, by giving jurisdiction and even exclusive jurisdiction, to the commisioners' court up to fifty or one hundred dollars 1 Evidently if it can appoint judges for that court when it has jurisdiction for $25, there is nothing which can prevent it from appointing the same judges if the jurisdiction of the court was raised to fifty or one hundred dollars. The undersigned regrets to say that he does not see the force in the argument used in the said report, which might be called argument ab inconvenienti. The report states in substance that if it is permitted to the local legislature to take from the circuit court, whose judges are appointed by the federal authority, a portion of its jurisdiction, and to transfer it to another court, whose judges are appointed by the local authority, it might go the extent of making nugatory the appointing power of the federal executive. The undersigned humbly submits that such an argument is not conclusive, under a constitution like ours. The inconvenience which may result from the exercise of a constitutional power does not destroy that power. Moreover, if every power given under that constitution was to be stretched to its utmost limit, it could hardly be worked. For instance the powers of the sovereign are theoretically so large that wrere he to exercise them to their fullest extent, h'e might ruin the country and render perfectly useless all the powers of the representatives of the people, and the country instead of being governed by the people, would be governed by a despot. But it has always been supposed that the powers conferred hy our constitution would be exercised with proper discretion and good judgment, and it is also the way in which 51-52 VICTORIA, 188c<. 371 forth America Act, al in Council to the the judges of the those courts m be rt that contention. present argument. f General even the annot be contended £ any other courts int such judges or •efore, evident that lose of the court in ince there has been, ioned in the section ment of which in a s and justices of the :e, for the collection the local executives and that power has massing of the Act than that the local )inted by the local ica Act, preventing )th kinds, that is to ecutive, and of the g to a court of one ilonged to the court i,s been in the prov- matters up to $25. courts. Can it be nsfer to those com- eft since under the tion of the circuit nmisioners' court up :or that court when om appointing the me hundred dollars, ce in the argument lienti. The report » to take from the }y, a portion of its 3 appointed by the inting power of the n argument is not ch may result from Moreover, if every most limit, it could [leoretically so large n the country and le people, and the by a despot. But nstitution would be \ the way in which 11 • 1 oirl tViBi-pfore I reoeat, an argument founded on the they have been genera ly exercised, and h^je^^^^^^^^ ;; .^ ^^ j.^^,^ ^.,^,^.^ supposition of the stretching t«^tf "^"^"^^J ^'^^^:^^^^ .^.^^ ^he report now referred to, has t^^^Si^^:^^, f-" =;o^«ke p.oof «..t th». .ct, .ere intra vires. , , j j^ that an Act may be left undisallowed The undersigned is quite ready to ^'^""\; , j £^^^,,^1 authorities are power- without admitting that it ^ ^^^^^^^^ J^^^ unconstitutional laws.' He less, the court being the f^l^^'J^^Z^ opinion the best course would be, as a would go «ven further and stae that m^^^ ^^.^ ^^^^^ ^^^ decision of rule, to leave aAl lo^^^-l fff 2! "^otiZavZ: B^ the contention of the undersigned Z CSm^^tT: ^ -r^ ^n^ A- of tj.t ^^ havebeen left . th^ =S^.jt t:^:^ ;:S^iof Xt\hey were'... .res. The whole respectfully submitted. Quebec, 28th February, 1889. . HONORE MERCIER, President of Council, n.r>ort of the Uononrohle the Minister of Justice approved by Ilis Excellency the Report OS g^^^^^or General in Council, on the 2oth July, 1S89. Department OF Justice, Ottawa, July 15, 1889. To His Excellency the Governor General in Council : 1 • ,1 i.aa fbe honour to report as follows on the despatch of the The undersigned has the honour to rep transmitting for the con- Lieutenant Governor o Q;^f J^l^^^^^^^^^^^^^ the President of the Executive ^^7\lZ^^^St^^ last concerning the disallowance of the ir>f Quebec, f888 (XXV eap-) -Ming to c^^^^^^^^^^^ ^^_.^ ^,^^ ^^ He concurs with the suggestion of the ^^^^^^^f ^n^et aside by a higher tribunal, l^e? ZeTo S:^Zf:'rCli'ZtX%^^^ shomd receivJdue consideration ^-™^t;: SSSg^^^Stains no 1^ r^e.t ^^^^^^^^X^^^^ Council for the 3-^8--^^ ^ iteTetdupmC - sSSg the'constitu'tionality of the January last, to t^^ve no «uch effect^ ^.^^^ .^ ^f ^^^^ ^^t . One of the decisions of that court, wn^^^ discussion, or to any question of a gained - reference .W'er to ^^^^^^^ ^^^^, ^^ ^,^, ^^,,r review, was similar nature, in tact tne consw . -^ j ^ ^o in the argument or decision. involved in the suit nor was '^"y/^j^^ P^* '^f j-^ect bearing upon the subject, but . ^rtolhflS. St wfrSed^L t:lded byl jSdgm-^ of the Privy Sf:^:^Xrr undersigned point^^uj ^^^^^ZT^^-^,. Brunswick, The only f/r^l^";,^ f.^rn^^^^ the "easoning which it con- ;;td.Ttirgfthe^to^^^^^^^^^ s^eral case, been shown to be fallacious, by Sments of fhe Judicial Committee of the^^ ^^^^^.^^^ ^, ^,^ PresiSt^fth^tt^^^^^^^^^^^^ America Act gives to provin- 1 '1 - !■•! '|i' "'! 372 QUEBEC LEGISLATION cial legislatures power to determine the qualification of the judges to be appointed by your Excellency. That Act undoubtedly gives the legislatures power to constitute the courts of the various provinces and to define their jurisdiction, and the undersigned finds it difficult to understand, and impossible to concur in the contention of the Presi- dent of the Executive Council that that power would be nugatory unless it included the power to determine the qualifications of the persons to bo appointed to the bench. The British North America Act seems to have covered the wiiole ground when it gave the organization and constitution of the courts to the provincial legislatures and the power to appoint the judges to your Excellency subject only to one restriction on the powers of your Excellency, namely, that the judges should be appointed from the bars of their respective provinces. The view of the undersigned, as stated fully in his previous reports on this subject, as well as that entertained by his predecessors in office, as expressed in their reports, from time to time, on provincial legislation, is that the power and discretion which were left to your Excellency unconditionally (save in the particular just mentioned) cannot be in any way lessened by provincial legislation. In the document now under review, the President of the Executive Council states that he does not clearly see, from the report of the undersigned, approved 22nd January last, whether the undersigned maintains the opinion that the local legislatures have no power to create courts, of, no matter how small jurisdiction, whose judges shall be appointed by the local executives. In the previous report of the undersigned no ques- tion was raised as to the provincial power to create such courts, and as to whether the power might not be validly conferred on the local executive to appoint magistrates or judges for courts of small jurisdiction, and different from thecourfcs mentioned in the clause of the British North America Act, which confers the appointing power on the Governor General, the undersigned distinctly declared in that report that that was not a matter involved in the discussion, as the legislature of Quebec, in enacting the District Magis- trates Act and the Quebec Government in making the appointments, had clearly invaded the powers of Parliament and of your Excellency, even though the power to appoint some classes of officers with judicial functions might be with the local authority, ' The contention which is made in the document under review with regard to the effect of the provision of the British North America Act as to " superior, district and county court judges," does not, in the opinion of the undersigned, refute the view set forth iu his previous report, (and indeed in that particular does not seem to undertake a refutation.) That view has been taken by nearly all the Ministers of Justice since the union of the provinces, viz., that the words cf the British North America Act, referring to " judges of the superior, district and county courts," include all classes of judges like those desig- nated, and not merely the judges of the particular courts which at the time of the pas- sage of the British North \A nerica Act, happened to bear those names. As to the contention of the President of the Executive Council that the power of the local executive to appoint judges of inferior courts was never questioned until the dis- cussion brought about by the passage of the Act creating magistrates courts at Mon- treal, the undersigned has only to refer to his previous report, where numerous instances were given, extending over a long term of years, in which that power was denied or questioned by Ministers of Justice, in reports which have lieen approved from time to time by your Excellency's predecessors. As to the further contention that the provincial legislature can take away the jurisdiction of courts, prerfided over by judges appointed by federal authority, and transfer that jurisdiction to judges appointed by the provincial executive, although that contention seems to be carried so far in the document under review, as that thereby the provincial legislature can convert its inferior court, presided over by magistrates of provincial appointment, into a court of the highest class, and thereby secure the appointing power, the undersigned has so fully dealt with that subject in a previous report that he does not ^eem it necessary to repeat here the observations which have been made there, and to which no answer has been offered in the document under review. |Jje appointed by [to constitute the [the undersigned tion of the Presi- «s it included the I the bench, ground when it legislatures and be restriction on [pointed from the on this subject, in their reports, |etion which were entioned) cannot *'e Council states d 22nd January slatures have no judges shall be fsigned no ques- to whether the t magistrates or med in ihe clause on the Governor I'as not a matter 5 District Magis- d clearly invaded 30wer to appoint authority, ' The I to the effect of Mid county court '• set forth in his ke a refutation.) the union of the rring to "judges like those desig- bime of the pas- the power of the i until the dis- courts at Mon- lerous instances ' was denied or !d from time to take away the eral authority, cial executive, nder review, as "esided over by Js, and thereby t subject in a e observations the document The Prosidont of tlio Execufivp Council lias obviously niisundorstnod tlui previous report of thu uiid('i'siij;iie(i, in wiiat ho ciilis tlic; iiri^uiiKMit a iuconv'iiiftili : no such arguiiicnt wus used for tlic purpnse .of siiowin;^ lliiit. proviiicinl powers, wliicli ;iro ciij)iil)!(! of abuse OJiniiot be iidinitted to exist, l)ut it was rct'ei'i'eil lo as pi'()l)ably justifying, as the reports of ])redecessors of the undersigned had indieated, that the power of disallowance may have to be exercised when tliere is danger tiiat the provin- cial power will be so abused as to depris'e your ExiclUnicy of tlit; appointing power eon- ferreil on you liy the lirtisii Xorth Ann'riea Act, and as to thereby suiivert one of the most important ju-iticiplcs of the constitution. The President of the Executive Council has also misunderstood tlie previous report of the undersigned as atti'ibuting to liini the argument that the disallowance of Acts "is an incontrovertible proof that those .\cts were liilni I'ires." The ai'gumeut whii'li the undcrsif^ned understood to l)e |ires(Mite(l by the pr-evious minute of the (.Quebec (TO\ernment was, that the allowance of pi-ovincial .Vets was an admission of the validity of such legislation, and indexed the argument of the President of the Executive Council almost goes that far, in tli(> document under r(>view, when he intimates that a great many Acts of the kind disallowed having been left to their operation, it is veiy strong [)resumjition that they were Infra riri'.i. There was lu) inti- mation in the undersigned's previous report, that the e.xecutive council of (Quebec had contended that such allowance was incontrovertible proof of the Acts being intra vires, but it was thou^jlit proper to show, as was shown in portions of the report which the president of the council has not I'eferred to in the document under review, that the allowance of the Acts, from which a presumption of validity has been argued in support of the disallowed District Magistrates' Act, was accompanied by cai'eful and distinct repudiation of any recognition of their validity. It seems necessary to state, in connection with the observation in the document undei' review, "that strong pre- sumption arises from the fact that a great many Acts have been left t(j their operation, and have not been attacked through the courts, or if attacked have been sustained," that the Acts referred to do not seem to the undersigned, as he stated in his previous report, so objectionable as the disallowed District Magistrates' Act, or so clearly to transgress the bounds between pro\incial and federal authority. It nmst be repeated also that such a presumption can hardly bo drawn against tin; exi)ress warnings con- tained in the reports by Ministers of Justice on those Acts, which have afforded, in the view of the Quebec Government precedents for the " District Magistrates' .\ct," and that in the absence of any judicial decision to sustain their validity, the allusion, above quoted, to the action of the courts, has not the cogency which it otherwise might possess. The other points which are mentioned in the report of the President of the Executive Council have already been dealt with in the previous report of the undersigned, cand the undersigned has not changed the opinions which are therv'-in expressed, and as the report of the president of the executive council does not present any new ai'iruments in relation to these mattei's, further action by your Excellency on the recent tiespatch of his Honour the Lieutenant Governor seems unnecessary, but it is recommended that a copy ot this report, if approved, be transmitted to his Hcmour. JNO. S. D. THOMPSON, Minister of Justice. i/'! A i ^^ ^M:i ■rff 24 374 QUEBEC LEGISLATION Hon. Mr. Justice Wilrtele to the Secretary of State. Judge's Chambers, Aylmer, 28tli August, 1888. Sir, — I have the lionour to transmit to you lierewith a memoriiil from the executors of the hite Charles E. Levey, of Cataratiui, near Quebec, respecting the Act recently passed by the legislature of the province t)f (Quebec, authorizing a forced conversion of the funcied debt of tlio province, and praying his Excellency the Governor General in Council to disallow the same as being an unconstitutional abuse of posver on the part of the legislature, and to beg that you will submit it to his Excellency for consideration. r I have, etc., J. WiJRTELE. Petition to Ilia Excellency the Governor General in Council from Executors of the will of late Charles E. Levey. To His Excellency the Governor General oj Canada in Council : The memorial of the undersigned executors of the will of the late Charles E. Levey, in liis lifetime of Cataracjui, near Quebec, and administrators and trustees of his estate, respectfully represents : That they subscribed for three hundred thousand dollars of the issue of bonds made by the government of the province of Quebec in the year 1882, and paid par therefor, and tliat they are now the registered holders thereof. That at the same time time the trustees for the marriage settlement of Charles Ernest Levey, the son of the above mentioned Charles L. Levey, also subscribed for and acquired at par fifty thousand dollars of bonds of the same issue, and that they are now the registered holders of tlie same. That the said issue was made under the authority of a statute of the legislature of province of Qu.bec sanctioned on the 27th May, 1882, 45 Vic, ch. 18, which enacted that "the bonds or debentures shall bear date the first of July, one thousand eight hundred and eighty-two, and after the expiration of thirty years from that date shall be redeemaljle at all times, at the option of the government of the province." That the bonds or debentures issued in the year 1882 under the said statute are each for a sum of five hundred dollars, and that the government of the province ex- pressly stipulate and agree in such bonds or debentures to pay interest at the rate of five per centum per annum on the principal thereof half yearly for the term of thirty years from their date, and after that period until they are redeemed. That the undersigned and the trustees of the said Charles Ernest Levey subscribed for and acquired tiie said bonds or debentures not as a speculation, but because they wanted a long investment, for the trusts created by the said late Charles E. I^evey. That in the Last session of the legislature of the province of Quebec, a statute in- tituled : " An Act respecting the redemption of provincial debentures and the conver- sion of the debt," 51-52 Victoria, chapter 9 (1888), was passed, and was sanctioned on the r2th July last ; and that the fifth section thereof confers upon the Lieutenant Gov- ernor in Council the power to reduce the rate of interest payable to the holders of the present bonds or debentures from five per centum per annum to four per centum per annum should they refuse to exchange their bonds or debentures for new ones bearing such reduced rate of interest, or to accept the payment thereof before their maturity. That the said section reads as follows ; " It shall be lawful for the Lieutenan'j Governor in Council to determine the delay within which the holders of the present debentures may exchange them for the new debentures or claim the redemption in cash, and to order that, after such delay, interest shall accrue upon all classes of debentures at the rate specified for the new debentures." \ugust, 1888. from the executors ,' tlie Act recently reed conversion of )vernor General in wer on tlie part of for consideration. WiJRTELE. zcutors of the will le late Charles E. and trustees of his isue of bonds made paid par therefor, ement of Charles subscribed for and that they are now I the legislature of 18, which enacted 16 thousand eight »m that date shall avince." le said statute are )f the province ex- rest at the rate of the term of thirty ; Levey subscribed , but because they rles E. ijevey. lebec, a statute in- is and the conver- >vas sanctioned on e Lieutenant Gov- the holt ^'^'; ''"*,^' "• , ... t„ redeem its b government to do so was unnecessary. tZZi t Z r feill'l Melnl, reportU i„ vol. 3 M„„t.«l L.w Ko^rt,, •^"■rL the provision, of the statute tor the coavcrsioi. of the fu„,le,l debt of the pro- Ihat tne proviaio . .,,t„,.„l i„t„ Ixjtwocn tl.o government of the pro- :;-:: r.hV» t l .:':rrr,t:;gnVi ,>„.. t,. ..^^ ... .i.e « o^ ^.-.-t ■ll,,,t while the statute n ue,tK^^^^^^^ .p,|i„ti„„, it also ha, a p^:sr\le'nef r'„;.';; r'tS pIo -f^Mz: '"" "' '"" """'" '•"■"Zt',iru';r ,;".'.':> ct. ;::f Eisi: tv^ro f ;r '-• ^ W lereforl hey humbly pr.iy ihat your Kxcellenoy wi I 1» please,!, in the exero.se of the .^™1 p.e"gative, to 'disallow the said Act of the legislature of the prov.nce of Quebec. And your memorialists will ever pray. JEMIMA LEVEY. «-.! A f 1888 J. WiJHTELE. Quebec, 2oth August, 18o». Hon. Mr. Justice WUrtele to the Secretary of State. QUEUEC, 30th August, 1888. Sir -Since I had the honour of forwarding to you the memorial of the trustees of £LSrr?&'!:;jr;fr^^^^^^^ T\'LtSlre''iirr.Ll*:.':r;r^ which he asked the Uouse to ^^^^ ^^^ ,edeemed for thirty years and with the memorial of the Levey Estate. ^ ^^^^^^ ^^^ - 'j. WURTELE. ExTRACT/rom the Budget Speech of the 1st May, 1882, ofth. Provincial Treasurer of Quebec. Th« bonds or debentures will be for 8500 each, and will bear interest at 5 per cent, The bonds or cteoen. government shall have the right to redeem EetoSsTdSerr': it^lny'tUe after tfie expiration of thirty years from the 1st of July next. * * * * * * * * 24i m m\ 376 QUF.IIEC LEniHI.ATlON This loan of three millions will, in fact, be the pstal)li.Hhin(!nt of a coiiHtituti'd rent. 'I'ho loan is pssontially lodccniahlo l>y the fiovenunent just as a (•onstitutt'd lent is redeeniahlo. at. the option of the dol)tor, under article 17^'.* of the Civil Code; hut, in accordance with the prin isions of article .'(90, it will he stipulated that the ^'overiunent shall not have the I'ij^ht to I'xercist; ihi^ powei' until after the expiration of thirty years. By these conditions, on the one hand, the aubscrihers to the bond,'* or (h)bentures will he sure of ii saf(; investment foi- thirty years, i,nd, on the other hand, the ^'overnment may, after the expiration of this deiiiy, take ad\antaf;e of a jteriod of [)i-nspei'ity oi' of a timi^ when the rate of intei'est is low, to ri'deem its obli- gations, without bein,'{ obliged to paj' its debts at the price of uny sacritice, if it be found inopportune. Copy of Bond. The government of the province of Quebec, under the authority of the Act 45 Victoria, chapter 18, and in consideration of five hundred dollars paid to it, promises to ))ay interest at the rate of five per centum per annum, on that sum to the registered liolder of this debenture, from the 1st day of July, IHS'J, until the day fixed for its re- demption, [)ayable half yi,al.ly •'""<^ betw,' ':, til„ province ,™i the I .-, ..< «"''''tr'::::[Z^::cz- ; ;:. ™*' ^^''"''"'"'"^' JOHN S. D. THOMPSON, JJiniKtcr of Justice. (Trandatlmi.) ' His Honour the Lieutenant Governor of Quebec to the Secretary of State. Quebec, 6th February, 1889. S,n T have tho honour to acknowledge the receipt of your letter dated 3l8t Jan^l^'iJt, tLmluing a copy ^ ^ ^^^^^^^^ ;::^,Z:^ 1 Jo h^^S I have, itc, A. R. ANGERS, Lieuf.-Governor. Reportofthe HonouraUe the Minister of Justice approved hy His Excellency the Governor Itepoi oj ^^^^^^^ ^^ Council, on the 19th day of January, 1S89. Department of Justice, Ottawa, 16th January, 1889. To His Excellency the Governor General in Council. The undersigned having had underconsideration the following Act. of the leg.sla- ture o the province of Quebec, passed in the session held m the year IHH.s the tit e ot recommends that they be left to their operation. JNO. S. D. THOMPSON, Minister of Justice. •NoTK.— Chap. 13. An Act respecting the settlement of the Jesuits' EsUte*. See po.t, p. 386. V 378 QUEBEC LKni8LATI0N Report of ihf, llonourahln thf Miniiiler of Junfin npprovrd liy II in E-irvUenry the O'owrnor d'eneral in CowncAl, on tliL k'iitk January, JUSt). Uei'Aktmknt OK JuHTiCK, OiTAWA, 18th January, 1889. To His Excellency the Governor General in Council : Thn undorHijjricd liii.s tlio lioiiour to Huhmit for consideration his report on the follow- ing ActH paH.sed liy the lejj;isliiture of the province of <.^uel)ee in the session of 1H88, authentic copies of which wttro received hy the Secretary ol Htate on the 8th August, 1888. Chap. 2. — An Act respecting tiio Revised Statutes of the province of Quelxsc. The un(UM'signod hiis the lion( :ur to riiport thiit inasnnich art ho has now had an opportunity of examining the Revised Htatutes of the province* of t^uehec, issued under the authority of chai)ter 5 of nOth Victoria, he, does not consider it at present advisable to report specially upon this Act, reserving the same for further report, Chap. 17. — An Act to amend and consolidate the laws relating to tishtries. This statute autliori/(!s the Provincial Commissioner of Crown Lands to lease such rivers as arcs the property of the province, defining tlu* rights of the lessee, and imposing penalties upon persons fishing otlxu" than in tiie manner described by the Act. It also provides (sec. I'J) that the Lieutenant (Jovernor in Council may, in his discretion make such regulations as ho nuiy deem necessary in the interest of the good management of fishing in the province : and further provides (sec. 15) that any person not having his domicile in the province of Quebec, who desires to fi therein must before beginning to fish, procure a license to that effect from the Comnii mer of Crown Lands or from any person by him auihori/ed. The British North America Act gives to the Parliament of Canada exclusive powers of legislation in respe(^t to sea-coast and inland fisheries. It also vests in the Dominion the rivers of Caiuida. This Act would appear therefore to be an infringement upon the property and jiowers of the federal govei'nment. This position, therefore, is strongly contested by the provincial authorities and decisions of superior courts are cited as in favour of such contention. Under these circumstances, and it being probable that the point in dispute will he authoritatively settled by courts of ultimate resort at an early dny it does not seem to the undii signed that the power of disallowance should be exercised in regard to this Act, and he recom- mends accordingly. Chap. 30. — An Act to amend the Municipal Coe amended, and lie recomnivMids that n Act 4,-, Vic,,,,., o,,.,..,- 82, moo,- with a '■I««';'' "'"'■'" ".;,,,„ j,i„i,t,,. .,( Justic, st.t» tlutt ,.11 tl,o»6 Act., wl,icl, eithc- ^"^Chapter 101, intituled " An Act to incorporate the Portage du Fort and Bristol ^^'^"^il^^rJr^'inSS' " An Act to incorporate the Philipsburg Junction Railway "^ Tl^'Ho.'roSe'AIinister of Justice objects to section 17 of chapter 99 to section mmmmmmm L does not deem it advisable to recommend its disallo\ ance. of jS:«ce 'to' th, lot, in question, witK my replies to, »nd re™.,k, upon, such objectiom. t„nvord the special objections which uffect certain I „,„ of °P r " ''^"?JYJ°h. °t least fo,- tl^ moment, merely contenting myself 3T:g™;'inrthi:r™Satic"and''uncalled for interference by the federal autho,,t,es with the legislation of this province. The whole respectfully submitted, HONORE MERCIER, _ :--^. Premier^ It '\ M! I ,' t . 1* m QUEBEC LEGISLATION COBKESPONDENCE, PETITIONS, REPORTS, &C., RESPECTING THE JeSUIT EsTATES AcT, 51-52 Victoria, Chapter 16. . His Honour the LieutenantrGovertmr of Quebec to the Secretary of State. GovEBNMiSNT HousE, QuEBEc, 15th October, 1888. Sir, — Among the Acts of the last session of the legislatui-e of this province, of which copies were transmitted to you the 8th of August last, according to law, is found the one intituled 'An Act relating to the question of the settlement of the Jesuits' Estates," chapter 13, of 51-52 Victoria. My government for urgent reasons desire to know without delay, the intention of the advisers of his Excellency the Governor General, as to the exercise of the right of disallowance with reference to this Act. Under these circumstances, I request you to inform me of their intention as soon as possible. I have, liL'al)!i, 4-i-) And whereas the government of the province of Quebec, in the negotations with the representative of tlie present order of the Jesuits in tiie province of tjuebec forming the basis of the Jesuits' Estates Act of 18S8, expressly declared " it did not recognize any civil obligation, but merely a moral obligation, in this respect," and proceeded to treat on the amount and teinis of compensation in money on condition of receiving a full renunciation of all further claims on th(! said estates ; (Ibid., p. 4'>-) And whereas by the said Jesuits' Estates Act of 18><8, the Lieutenant Governor in Council is authorized to pay the sum of four hundred thousand flollars " out of any public money at his disposal " for the purpose of such compensation, "to remain as a special deposit until the Pope has ratified the said settlement and made known his wishes respecting the distribution of such amount in this country ; (Ibid., p. fiU.) And whereas the said Jesuits' Estate Act recognizes powers i:i the Holy See that are perilous to the supremacy of the (^ueen, in thus requiring its consent to legisla- tion within her dominions, and the application of puV)lic funds, and in accepting such terms as " the Pope allows the government to retain the proceeds of the sale of the Jesuits' Estates as a special deposit to be disposed of with the sanction of the Holy See ;" (Ibid., p. 47.) And whereas your petitioners contend that not even a " moral obligation " exists to make " compensation " for property duly and lawfully taken by tlie Crown, to the extinction of all " civil obhgation ; " And whereas, from the whole tenor of the negotiations on this matter, it is to be surely expected that the Holy See will apportion at least a large share of the afore- mentioned $+00,000 to the order of the Jesuits which does not represent the Roman Catholic Church or population of Quebec as a whole but itself alone, and is confined by law to two archdioceses and one iliocese ; (Quebec Statutes, 1SS7, p. 66.) And whereas no stipulation is made that the said $400,000 shall be devoted to public education or any account be rendered to the government of the use made of such public money ; And whereas any further proceeds of the sale of the Jesuits' Estates are not secured for the purposes of education, but pass into the general revenue of the province ; Aid whereas, finally, the appropriation in the said Jesuits' Estates Act of the sum of sixty thousand dollars to be invested by the Protestant Committee of the Council of Public Instruction for the benefit of Protestant institutions of superior education, though urgently needed and justly due, though unlike the $400,000 available for the entire population of one class alike, and though, by contrast again to be admin- istered under public accountability, is liable nevertheless to be interpreted as making the Protestant community consenting and approving parties to that appropriation of the ),000 to which the grave objections above recited have to be made : Therefore, that your petitioners, being duly authorized on this behalf by the aforesaid Evangelical Alliance, do enter their solenm protest against the Act in question being carried into effect. And humbly pray that it may be disallowed by your Excellency in Council as provided by the British North America Act of 1867. JNO. MACDONALD, President. WM. JACKSON, Secretary. Montreal, 10th January, 1889. 51-62 vicToniA, 1888. 389 rthcr, " tlwit the IS invi()l)il)ly and fj, clieerfully and tor tilt' jiurposps foiisi' dJ' Assitn/i/i/. I to time iinpedod Ciitholie Church, H 4-i.) the noj^otatioiis )vitice of Quebec iirt'd " it did not his respect," and ley on condition (/hid., p. J,U.) tcMiiint Governor liars " out of any " to remain as a made known his id., p. do.) i:i the Holy See consent to lej^isla- in accepting such the sale of the jf the Holy See ;" JS obligation " exists le Crown, to the iiatter, it is to be are of the afore- resont the Roman md is confined by •) ill! be devoted to the use made of Estates are not e of the province ; itates Act of the Committee of the itions of superior '400,000 available gain to be admin- preted as making propriation of the is behalf by the e Act in question cy in Council as D, President, icretary. Jieport of the Ilnnonrable tlip Afininter of' Jit.Hflrr uppromd hi/ His E.v.cellency the Governor General in Council on the J.'nd January, ISSit. Dkpahtmknt of Juhtick, Ottawa, IGth January, 188!). Ti) I/in E.rcellenn/ the Governor Gene-al in Council : The undersigned, to whom has been referred a petition to your Kxcelleni-y from the Dominion Evangelical Alliance, and also a petition from the Presbytery of Montreal in connectidn with the Presbyterian Ciiurch in Montreal, ])raying for the disallowance of an Act pa'l)ly showeth : Tliat by the Hritisli North America Act of 1867, section 93, subsection 3, it is provided that " an appeal shall lie to the Uovernor (Senor il in Council from any Act or decision of any provincial author ity affecting any right or privilege of tiie Protestant minority of the Queen's subjects in relation to education." That a case for such an appeal has arisen in tiie passing by the legislature of the province of Quebec in 1888, of an Act respecting the settlement of the "Jesuits Estates,"' whireby a largo and valuable property pledged by the " Crown " inviolably and exclusively to public education, is diverted from that object and made over to the general public iuiuh of the province. That as the Jesuits' Estates were given over by the Grown to be held in perpetuity for the education of the youth of Ijower Canada, y<'iir ;;etitioners protest alike against their sale and the distribution of the proceeds among sectarian institutions. Wherefore your petitioners earnestly pray you' Excellency to intervene in such manner as may to your wisdom seem best, in order that justice may be done in the premises. And your petititioners, as in duty bound, will ever pray, In name and by order of the petitioners. ANDREW McCALLUM, Chairman. JAMES WATSON, Secretary. Given at Huntingdon, Quebec, 27th February, 1889. Petition from L. 0. District Lodge No. Jf, Ottawa, to I/is Excellency the Governor General. To His Excellency the Bight Honourable Sir Frederick Arthur Stanley, Baron Stanley of Preston, Governor General of Canada. May it Please Your Excellency, — By the authority and acting on behalf of the members of Loyal Orange District Lodge No. 4, Ottawa, loyal subjects of Her Most Gracious Majesty, the petition of the undersigned humbly showeth : That whereas your petitioners have heard with surprise and alarm that on the twelfth day of July, 188><, an Act entitled: "The Act respecting the Jesuits' Estates," which had been passed at its last session by the legislature of the province of Quel)ec, received the assent of his Honour the LieutenanKJovernor. Tiiat the Act authorizes the Lieutenant-Governor of that province to pay out of any public money at his disposal the sum of |400,000 for the purpose of compensating the present Society of Jesus for certain estates which had formerly been given in trust by the Kings of France, for the education of the inhabitants of Canada, to the former Society of Jesus, but which, in consequence of the dissolution of the said society in 1774, had been contided to the provincial legislature, by command of His late Majesty King William IV., in the year 1831, for the purpose of edufcabion, and that the revenue resultinLt from the estates might be recorded as inviolably and exclusively devoted to that object. Tliat the said Act furthermore provides " that the said sum of $100,000 shall remain as a special deposit until the Pope has ratified the Said settlement and made 61-62 vicrroniA, 1888. 391 I vicinity, to Hia Slnnleij o/' /'reiiton, ., in Council. irul its vicinity in sul)spcti(in 3, it is 'il from any Act or of the Protestant legislature of the of tho " Jesuits Crown " inviolably I made over to the hold in perpetuity •otest alike against Litions. intervene in such ly be done in the M, Chairman, irefary. e Governor General, ey, Baron Stanley al Orange District the petition of the ilarin that on the jcting the Jesuits' ure of the province lor. That the Act any public money ihe present Society st by the Kings of former .Society of iety in 1774, had vte Majesty King that the revenue lusively devoted to of $100,000 shall lenient and made >aown his wishes respecting the distribution of such amount in this country," thereby recogni/.itig the authority of a foreign bisnop in the disposal of public funds derived from the taxation of the whole population (»f the prcivince of Qu(ibec, Protestant as well as Roman C itholic, in contempt of the supremacy of the Crown, as well as of the rights of the rising generation of Cjueliec. That the present Society of Jesus, lately incorporated in (.Quebec, can in neither a legal or a moral sense be considered as the representative of the former society of tlie same name, which was dissolved by a bull of Pope Clement X IV'. many years before the oldest mi'mbcr of the present society was born. That the interference of the Jesuits in political affairs and thcsir evil influence on public and private morality, luis within the last liOO years been found so unsupportable wherever established, as to compel the enactment of laws repelling them from almost ev(Ty European country, Roman Catholic as well as Protestant; aiid that in Quebec itself the Act for their incorporation passed by the provincial legislature in 18H7, was most strenuously opposed by the highest Roman ecclesiastic in Canada, and by many of the most learned, devoted and loyal clergymen and laymen of the Roman faith in Quebec. That we protest most repectfuUy, but most earnestly, against tu\y grant of the public money of Canadians to men who maintain in their authorized text books that no obfdience is due by Christians to the laws of so-called heretical sovereigns, meaning by that term, Protestant monarchs like our present Gracious Majesty. That, apart from these weighty ccmsiderations, no grant of public money has for many years been made to any denominational associations, and the initiation of a contrary policy in our mixed community vould logically and inevitably lead to constant disputes and struggles for the endowment from the public treasury of every kind of religious institutions. We, therefore, respectfully request your Excellency that, taking these and other weighty reasons into your serious consideration, you may be pleased to refuse your aasent to the Act of the legislature of Quebec respecting the Jesuits' Estates. And we, your petitioners, as in duty bound, will ev^r pray. WILLIAM CHERRY, District Master. T. H. WHITE, District Secretm-y. Petition/mm the Guelph Ministerial Association to His Excellency the Governor General, To His Excellency the Governor General in Council, The petition of the Guelph Ministerial Association, humbly showeth : — 1. That the said association is composed of the clergymen of the different Protes- tant denominations in the city of Guelph, and the adjacent neighbourhood with the exception of those of the Episcopal Church. 2. That they thus represent a large and influential portion of the inhabitants in their immediate locality. 3. That from their official character and work as ministers of the Gospel and from their position as members of civil society they are bound to take an interest in every- thing, whether spiritual or temporal, affecting the welfare of the community, and to exert their influence in support of that which is favourable to these, and against that which is unfavourable. 4. That in their deliberate judgment the recent passing by the provincial legis- lature of Quebec of what is known as the Jesuits' Estates Bill is ominous of danger to the welfare not only of that province but of the Dominion at large, (1) as it must be supposed that the different branches of that order throughout the land will be encou- raged and strengthened by it : (2) the past history of the order and the fact that they have been condemned by popes, and expelled from their^territories by kings and civil rulers, proves that they have been found hurtful to society : (3) the Bill is an invasion 25^ 392 qnnnHf! r.EfllHT.ATIOK of tlie prir<);^iitiv(!H()f onrbolovfd Qiieon, whoMe reproHoiitativo you iiro ; (4) it. >{ivn8 ii Mtiiti' recognition to on« of tin- (trdcrs of a ifli-^ioiis Ixxly, contrary •<> :<• wf'll unWcistood urliclf of our cohHtitutioii tlmt tlicrc is no Stnto ('liurcli in ('luiiulii : ('») it, divcrtH ii liu>re Minn of Htdto money from the iinmcdnit*^ direction imd control of state authority and plmivs it at iUo. (li.s|)o.Hal ot a l'or»Mgn sov»!reign, tlio I'opo, who chiinis to be a temporal j)riiut as well aH an ecclesiastical ruler. Your petitionees woultl, tlierefoie, launbly pray your Excellency to ttvko these premises into consideration and exercise your prerogative in disallowing the aforesaid Itill. And your p<>titioiiers us in duty bound shall ever pray. Signet! in name, and by authority of the Ouelph Ministerial AsHociation. WM. C. WHIR, I'nxidnif. ROHEIIT TOIIHANCE, Secret- j. Gi'Ei.PH, 16t.h March, 1889. Petition from Executive Committee of Evanijeliccd Alliance for ominion of Canada : To His E.vct'lhncy the Jii(//it llonourahlf Freikriek A. Stanli'i), Baron Stanlfij of I'reittoti, (l.C.li.^ Governor (ieneral of thf Dominion nj Canada, ttr., . ■*-\t jt.l» S94 QUEBEC LEGISLATION Lord Stanley of Preston to Lord Knutsford. Ottawa, 2l8t May, 1889. My Lord. — I have the honour to transmit to your Lordship a petition from the Evangelical Alliance for the Dominion, together with a copy of an approved minute of the Privy Council ihereon. I have, ikc, STANLEY OF PRESTON. Certified Qopy of a Report of a Committee of the Honourable the Privy Council, approved by His Excellency the Governor General in Council on the 16th May, 1889. The Committee of the Privy Council, upon the report of the Minister of Justice, to whom was referred a memoranduni from your Excellency's Secretary, trans^niitting to Council a petition which your Excellency had recived from the Evangelical Alliance of the Dominion of Canada, and which your Excellency had been requested to transmit to Her Majesty's government, recommend that the petition in question be duly forwarded to Her Majesty, through her Secretary of State for the Colonies, with the in- timation from your Excellency that should Her Majesty's government desire it, your Excellency's advisers will be prepared at any timo to state the position which they have taken with regard to the statute of Quebec to which the petition relates, and to justify the advice which t\\bj gave to your Excellency to leave that statute to its operation, in accordance with which nn intimation was given in January last to his Honour the Lieutenant-Governor of Quebec that the Act would be so left to its operation. All which is respectfully submitted for your Excellency's approval. JOHN J. McGEE, Clerk Privy Council, Petition from, the Evangelical Alliance for Canada. To the Queen's Most Excellent Majesty. Most Gracious Sovereign, — The petition of the undersigned, duly representing the Evangelical Alliance for the Dominion of Canada, humbly showeth — That your petitioners approach your Majesty on behalf of those ministers and members of various Protestant churches who united to form the said Alliance in October, 1888, with tiie intent — 1. To manifest and strengthen Christian unity. 2. To vindicate religious liberty, and 3. To promote co-operation in Christian work, without interference with the internal affairs of the different denominations. That your petitioners and those whom they represent are, and ever have been, loyal subjects of your Majesty, who seek to perpetuate for themselves and their children, in this part of the empire, the laws and liberties secured at so great a cost by their forefathers in the British isles. That the rights of your petit ners have recently been ".ivaded iu a manner that leaves them no redress s'lve in this appeal which thev 'ow brine, to the foot of the Imperial Throne. That at the same time, and by the same means, such an interference has taken place with your Majesty's royal prerogative, such unfounded reproach cast upon public acts of preceding sovereigns, and such dangerous precedents set for the future, to the mother country as well as to the colonies, as, your petitioners humbly reprt-sent, demand the vigilant attention of your Majesty's government. in 51-52 VICTORIA, 1888. 885 |a, 21st May, 1889. jip a petition from the jan approved minute of OF PRESTON. \f>le the Privy Council, ■I the 16th May, 1889. Minister of Justice, to ;retar/, transmitting to e Evangelical Alliance n requested to transmit in question be duly e Colonies, with the in- rnment desire it, your osition which they have 1 relates, and to justify ■tute to its operation, in ist to hia Honour the its operation, proval. cGEE, erk Privy Council. .ada. 3, duly representing the th — )f those ministers and the said Alliance in interference with the , and ever have been, themselves and their \ at so great a cost by ed in a manner that nt to the foot of the titerferenoe has taken Jach cast upon public for the future, to the Jly represent, demaiid That the greivance of your petitioners is .as follows : — The order of the Jesuits in Canada, while the country m. is a French possession, became possessed by royal grant, private donation, anfl purchase or exchange, of large and valuable estates. At the conquest in IT-'jO, the order petitioned to be allowed to retain its property. The petition was reserved until the King of KiUgland's pleasure was known. The petition was never gninted. In the Treaty of C-ssion in \HV.\, the King of France made no stipulation in favour of the order, which in 17G1, he had banished from his European (lominions. The law ofiicers of His Majesty King George III, reported the Jesuit's title to continual possession fundamentally bad, inasmuch as the General of the order, in whom all its powers were vested, was a foi'eigner residing in Rome, the order itself was prohibited by the laws of England, and the estates being thus without a legal owner, fell to the Crown. By the Crown the estates were devoted "inviolably and exclusively to the education of the people." In 1773 the "Society of Jesus " was entirely suppressed and abolished every^vhero by the reignitig Pope. The King, however, with indulgent generosity, allowed the Jesuit Fathers, left in Canada, to reside in their former buildings and draw a maintenance from the pioperty as long as they lived. In liSOO full and actual possession was taken by the Crown, and the estates have remained public property until now, having been transferred by the Im- perial government to that of Canada, and by the Dominion to the province of t^uebec, but tliroughout devoted to purposes of public education. These J<^suits' estates, by an Act of the legislature of Quebec (•'31-52 Victoria, chapter 13) have now been taken iiway from the Educational Fund. The Act of His MaJRsty George III, is stigmatized as " spoliation." A claim for " compensation " has been made and allowed as a "moral obligation." The sum of four hundred thousnnd dollars of public money of your Majesty is placed at the di'^posal of the Pope for distribution in the province of Quebec as he miiy see tit. His con.sent was made necessary to legislation in a province of your Majesty. His Secret;iry of .State writes : "The Pope allows the government to retain the proceeds of the sale of the .lesuits' estates as a special deposit, to be disposed of with the sanction of the Holy See." With the exception of sixtv thousand dollars offerpd for Protestant education, the whole of the remainder of the Jesuits' estates proceeds are made part of the ordinary funds of the province, and thus the inhabitants of the province are deprived, for all time, of the benefit of a fund set apart for public instruction t>y an Act of Royal Bounty. That your petitioners, under a deep sense of this grevious injustice and lasting injury, petitioned the Governor General in Council to disallow the Quebec Jesuits' Estates Act of 1888, but without avail ; liis Excellency's advisers alleging that " the subject matter of the Act is a provincial concern only, having relation to a fiscal matter entirely within the control of the legislature of Quebec. Thai your petitioners con'^end that these reasons are ill-founded and insufficient, and are now conMtra'ned to appeal to your Majesty. Tliey plead that his Excellency should have been advised : 1. 'I':at thit was a " matter of imperial concern," dealing with a grant of the Crown, *jn which its faith was pledged, that faith on which implicit reliance is always placed, and •■.hirh is held most sacred by all British sovereigns and their advisers. 2. That the fu'iolionb conceded in the said Act to the Holy See are utterly inc:>m- patit)le with the uiainteuance of your Majesty's sole and supreme authority within the Bri^is^. dominions, and, under the claims of super-eminent control as.serted by the Pope over pll nations and all rulers, cannot fail to be enlarged in future legislation in the province of Quel)ec, where the Roman Catholic Church is already the dominant power c."! the State. 3. That tlie Act in quc'^tion, while dealing with " a fiscal matter," had much graver Con.:cquences in relation to public educBtion, as to which a special right of apf eal to his Excellency in Council is reserved in the British North America Act of 18G7 (section 93, subsections 3 and V), and therefore demanded the fullest attention of the Council after the hearing of the parties ; and- - 4. That in a matter thus in- olving the honour of the Crown, as well as the rights of the people, the Act should be reserved for your Majesty's pleasure. 396 OUEHEC LEfilSLATION That the power of disallowance has been exercised by his Excellency in Council with rcniu-fl to " fiscal matters of provincial concern " in casts of inferior importance to this. That by the withdrawal of the large capital sum derivable from the Jesuits' estates, estimated at fully two millions of dollars, from the permanent educational funtl of the province, a great wrong has been done to the whole people, French and English, Roman Catholics and Protestants alike, whose schools and colleges are suflering for want of more liberal support. That your petitioners would entreat your Majesty's gravest attention to the danger of the precedent set by this "compensation " for estates lawfully taken in possession by the Crown over a hundred years ago ; that legislation in regard to ecclesiastical endow- ments in Canada has already served as a warrant and a model for similar legislation in the Impetial Parliament ; that claims are still asserted, as they have been witliout ceasing, in favour of various orders in the Church of Rome, to church and college and other properties once in their possession, but long since taken by the Crown for other uses ; and that the Jesuits' Estates Act of Quebec will assuredly be urged as ar .xrgu- ment for like "compensation " in (Jreat Britain itsolf. That in all the claims asserted to the Jesuits' estates, from the suppression of the order until now, such claims have been founded upon the doctrine of the Roman canon law, that the Holy See is heir to the property of any extinct society in the R ii. >.n Catholic Church, which doctrine is utterly at variance with the laws of Great I'-'t i- which, from the conquest of Canada, were proclaimed as defining the libert" ' i Yr Catholic religion, and that the admission of said doctrine and the consequent recng... , ioi'. of the canon law as in force within your Majesty's dominions, are public acts done iii your Majesty's name, which are fraught with vital and far-reaching perils to the very constitution of the empire. That your petitioners, while dwelling in general concord and amity witl; our fellow- subjects of the Roman Catholic faith, are nevertheless made to feel, from time to time, that the f '1 liberty of self-governmfnt, enjoyed ::; the province of Quebec, is used, under the influence of a church claiming universal control over human affairs, to the injury of the Protestant minority, but that there is the greatest danger of this, v. ith the least hope of redress, when such a body as the Order of Jesuits is incorporated and endowed — a body whose individual members are bound by their most solemn vows to a " blind obedience " to a superior in Rome : which has been expelled froni one Catholic country after another throughout all Europe : which for forty years was suppresseil by the popes themselves : which has been long under the V>an of the British law : which is obnoxious to many of the Roman Catholic authorities here : and the increase of whose powers is full of danger to public liberty and the stability of your Majesty's throne. That your petitioners therefore lay the case here presented before your Majesty, not only as a matter of private or local wrong, but as one involving the honour and welfare of the empire, and humbly invoke your Majesty's interposition therein in such a manner as may vindicate the good faith and authority of the Crown and the rights of your Majesty's loyal subjects in Canada. And your petitioners, jis in duty bound, will ever pray. W. H. ROWLAND, President. ALEX. CAMPBELL, Secretai-y, Lord Knutsford to Lord Stanley of Pmston. Downing SI'heet, Sth June, 1889. My Loud, — I have the honour to acknowledge the receipt of your despatch. No. 110, of the 2l8t May, forwarding a petition to Her Majesty from the Evangelical Alli- ance respecting the Quebec Jesuits' Estate Act. m^tM 51-52 VICTORIA, 1888. 397 ellency in Council rior importance to he Jesuits' estates, tionai fund of the d Enghah, Roman Bring for want of tion to the danger n in possession by ;lesiastic.il endow- lilar legislation in five heen without h and college and ; Crown for other urged as ar .xrgu- uppression of the the Roman canon y in the R.irv.n of Great E->t .' lie liberty i i' he quent recng.. .-'oi. ibiic acts done lu perils to the very y with our fellow- om time to time, Quebec, is used, an affairs, to the • of this, v.ith the incorporated and solemn vows to a roni one Catholic 'fis suppressed by sh law : which is ncrease of whose ;sty's throne, re your Majesty, the honour and n therein in such and the rights of ', President. -J, Secretary. June, 1889. ir despatch. No. Evangelical Alli- I request that you will inform the petitioners that I duly laid their memorial at the foot of the Throne, and that the Queen was pleased to receive it very graciously, but that I was unable to advise Her Majesty to interfere in the matter, which is one within the discretion of the government of the Dominion. I have, cfec. KNUTSFORD. Lord Stanfey of Preston to Lord Knuts/ord. 22nd July, 1889. Can you inform me at early date whether law officers regard Jesuits' Estates Act to be within competence of provincial legislature I If they are clearly of that opinion, might T. allow the fact to be known publicly '{ * * Lord Knutsjord to Lord Stanley of Preston. Referring to your telegram of 23rd July, uftt >• full consideration of memorandum of Minister of Justice, law officers of the Crown report that, in their opinion, decision ar'i.ved at by you not to interfere with operation of Act was correct course and con- stitutional ; no objection to giving publicity to law officers' opinion. 25th July, 1889. Lord Knutsford to Lord Stanley of Preston. Referring to mv telegram of the 25th July, law officers of the Crown further ad- vised that Act clearly within power of provincial legislature, and no grounds for reference to Judicial Committee of Privy Council. T)espa,tch follows by mail. 2nd August, 1889. Lard Knutxford to Lord Stanley of Preston. Downing Stheet, 6th August, 1889. You will have learned from my telegrams of the 25th July and the 2nd of August that I consulted the law officers upon this question, and I inclose for your own information and guidance copies of the reports which I have received from them. I have, &c , KNUTSFORD. Latv Officers to Colonial Office. RovAL CouuTS OF JUSTICE, 9th July, 1889. My Loud,— We were honoured with your Lordship's commands signified in Mr. Edward Wing'tieltl's letter of the ;Jrd instant, stating that he was directed by your Lordship to transmit to us a memorandum by Sir John Thompson, the Minister ot Justice in Canada, on the statute of Quebec (chapter 13 of 1888,) entitled : " An Act respectin-' the settlement of the Jesuits' Estates," and that he w.as to intorm us that the government of the Dominion were desirous of knowing whether, in our opinion, the decision arrived at not to interfere with the operation of that provincial Act, was rigl't and constitutional. We have taken the m.^tter into our consideration and, in obedience to your Lordship's commands, have the honour to report that in our opinion, the decision ar"ived at by the Governor (}eneral not to interfere with the operation of the provincial Ait in question, was right and constitutional. We have, etc., RICHARD E. WEBSTER, EDWARD CLARKE. 398 QUEBEC LEGISLATION Law Officers of the Crotvn to Lord Knntsford. Royal Courts op Justice, 31st July, 1889. My Lord, — We were honoured with your Ijordship's commands signified in Sir Robert Herbert's letter of the 29ih instant, stating that the purport of our opinion, on the subject of the Act of the province of Quebec " respecting the settlement of the Jesuit's Estates," as expressed in our report of th'' 9th July, was communicated to the government of Canada, and that your Lordship has now been informed that that government would be glad to be favoured with our further opinion on two points, not specially brought before us in the letter from the Colonial Office of the 3rd instant. That j'our Lordship accordingly desires to be informed whether, in our opinion, the legislation in question was clearly wit^--> the competence of the provincial legislature. That your Lordship had inferred from our opinion that the action of the Governor General in not interfering with the operation of the Act was right and constitutional, that we concurred in • "> opinion of the Minister of Justice of the Dominion that the Act was intra, vires o: vincial legislature, but that as the question had been directly asked, your Loru. ould be obliged by our answer to it. That Sir Robert Hfci t was further to acquaint us that the " Evangelical Alliance of the Dominion of Canada " had petitioned the Queen against the Act in question, and that your Lordship had declined to tender any advice to Her Majesty in regard to that petition. That your Lordship would be obliged by our informing you whether, in our opinion, the competence of the provincial legislature of Quebec to pass the Act was so clear that there was no ground for a reference to the Judicial Committee of the Pi'ivy Council. * '"^ That Sir Robert Herbert was to return, for our convenience, the Memorandum by Sir John Thompson previously forwarded to us, and to reijuest that we would, at our earliest convenience, report on the two questions submitted. In obedience to your Lordship's commands, we ha\ e the honour to report : That we are of opinion that the Act was clearly within the powers of the provincial legislature, and that there is no ground for a reference to the Judicial Committee of the Privy Council. We have, ttc, RICHARD E. WEBSTER, EDWARD CLARKE. Lord Stanley of Preston to Lord Knutiwn that I need not refer to it in detail. Large amounts of prope v had lain virt- ually idle, l)ecause when the provincial government had endeavouieJ to sell, protests had been made by the claimants, and, in fact, no one would accept so doubtful a title. "I cannot agree with the view expressed in the second paragraph of one of the petitions, that the Act in question recognizes a right on the part of the Pope to inter- fere in the civil affairs of Canada. " There were two sets of claimants, at least, to the Jesuits' estates. It was neces- sary to arrange to whom compensation should be paid, and to ensui'e a division which would be accepted by all. It is true that the Pope, as an authority recognized by both sets of claimants, was to be called upon to approve or disapprove the proposed division, so far as Roman Catholic claimants were concerned, but this appears to me to relate not to the action of the legislature of the province, but to the division of the funds after they had been paid over. It is arguable that as a matter of tact there is no refer- ence to the Pope's authority at all in the executive portion of the Act. It is undoubt- edly the case that the preamble to the Act (an unusually long one, by the way) contains a recital of events which led to the introduction of the Bill, and that in the correspond- ence so set out, authority had been claimed on behalf of the Holy See, to which, how- ever, the First Minister did not assent. The introduction of the name of the Pope may be unusual, and very likely unpalatable to some, as Protestants, but as it appears in the course of a recital of facts which had pre\ iously occurred (and which, of course, legisla- tion could not obliterate or annul), and there being nioreo\er (as I have before stated) no such reference in the body of the Act, I did not consider that Her ^Majesty's author- ity was in any degree weakened or assailed, not that I was com))elled, in the exercise of ray duty as Her representative, to disallow the Act on that account. " Now with regard to the third paragraph of your petition, as to the question of policy — that is not one on which I feel at liberty to pronounce an opinion. I believe, and am confirmed in my belief by the best authorities whom I can consult, that the Act was intra vires. There my power of interference is lli/iited. For the Act does not appear to do m<>re than to seek to restore to a certain society, not in kind but in money, a portion of the property of which that society was in years gone by depriveut as a matter of fact, I do not find any evidence that in this JJominion, and in this IDtli century, the Society of Jesus have been less law-abiding or less loyal citizens than others. With regard to paragraph 6, it appearij to me that the legal status of the society was settled by the Act of 1«87 (to which little or no objection was taken). I cannot see anything unconstitutional in that respect, in the payment of the money in question to a society duly incorporated by law. " The Governor General, both by the written law, and by the spirit of the consti- tution, is to be guided by the advice of his responsible ministers. If he disagrees with them on ([uestion of high policy, as being contrary to the interests of Her Majesty's empire, or if he believes that they do not represent the feeling of Parlia- ment, it is constitutionally his duty to summon other advi.sers, if he is satisfied that those so summoned can carry on the Queen's Government and the affairs of the Dominion. As to the first, I cannot say that I disagree with the course which, nder the ciicumstances, ministers have recommended, believing it, from the best authorities to which I have access, to be constitutional. The Parliament of the Dominion by 188 to 13 has expressed the same view. And with reference to what has been said to the effect that the vote of Parliament does not represent the opinion of the Dominion, I .iecline entirely to go behind recorded votes. Membei-s of Parliament are elected, not as the delegates, but as the representatives of the people, and it is their duty to guide themselves according to that which they believe to be the best interests of the high function which they have to discharge. Again, I would ask, do the dissen- tients represent the majority ? I find that the 188 represent 916,717 voters, whereas the 13 members represent 77,297, and moreover the body of the constitutional Oppo- sition appears to have voted tor tlie approval of the allowance of the Bill. I have been asked, though not by you, to disallow the Act, though otherwise advised by ministers, and though contrary to the sense of Parliament. Would it be constitutional for a moment that the Governor General should do so, if it were a question of commerce or of finance, or of reforming the constitution? It is by the constitution we have to be governed, and I cannot conceal for a moment the doubt which I feel that however careful the Governor General may be in receiving such a deputation as this, there may be some risk of his being held up as a court of appeal on questions of constitutional goverrmient, and against the parliament with which it is his duty to work in concert. Then it has been said : Why not facilitate a reference to the Privy Council. I believe that my advisers have a perfectly good answer, that having no doubt of the correctness of their view, they have gooil reason for not doing so. I have been asked to dissolve the House of Commons in one of the petitions to which I am replying. A dissolution of Parliament, in the first instance, except under the gravest circumstances, and perhaps with great reservation even then, should not he pronounced except upon the advice of responsible ministers. It causes the disturbance of the vari.jus businesses of the country. The expense, both to the country and to all concerned, is such that it is a remedy which should be exercised only as a last resort ; and I must say, though I do so with great deference to those present, that excepting in the province of Ontario and Quebec, there does not appear to have been any general feeling in this matter, such as would warrant the (Jovernor General to use this remedy. I recognize the influence of the two pro- vinces, but I cannot leave the rest of the Dominion out of -ught, and I may express the personal hope that this Parliament may exercise for some time to come a wise consti- tutional influence over the affairs of this country. 51-52 VICTORIA, 1888. 401 oral claim, and (ten or twelve , escheats and nitted, and re- own was luuiis- cedentH to the dcu upon their '•■ -^ijied o not find any of Jesus have to paragraph he Act of 1«87 niconstitutional \y incorporated it of the consti- f he disagrees iteiests of Her 'ling of Parlia- satisfied that affairs of the which, nder )est autliorities the Dominion vhat has been opinion of the Parliament are and it is their e best interests , do the dissen- voters, whereas titutional Oppo- 1. I have been id by ministers, titutional for a of commerce or we have to be that however ihis, tiiere may f constitutional )rk in concert, icil. I believe e correctness of o dissolve the dissolution of 1, and perhaps the advice of of the country, remedy which so with great Quebec, there vould warrant the two pro- ay express the a wise consti- "I think my answer has been made substantially to the other petitions which have been presented to me. For the reason which I havo given, I am unable to hold out to you any hope that I shall disallow the Act. You cannot suppose the course taken by my ailvisois and approved by me was taken without due consideration. Nothing has taken place to alter the views then entertained. Nor could the government recommend the reversal of an allowaTice already intimated. " Gentlemen, I cannot conceal from you the personal regret with which I feel myself addressing a deputation and returning such an answer as it has Ijeen my duty to doto the petitions which have been presented to me ; but I have endeavoured to n)ake my statement colourless, I have endeavoured to avoid argument, and I can only hope that I have done .something to dissipate alarm. I will only close by making an earnest appeal — an appeal which by anticipation has already, I am certain, found sveight with you, and that is, that in this question we should, as far as possible, act up to that which we find to be for the welfare of the Dominion. During late years we have hoped that the animosities which unfortunately jirevailed in former years had disappeared, and that the Dominion, as a united country, was on the path of prosperity and peace. I earnestly call upon all the best friends of the Dominion, as far as po.ssible, while holding their own o[)inions, to be tolerant of those of others, and like our great neigh- bour, to live and let live, that we may in time to come feel that we have the one object of promoting the prosperity and welfare of the Dominion, and the maintenance of loyalty and devotion to the Sovereign." Petitions (3) from Electors entitled to vote for Members of the House of Commons and from certain of tlie Protestant Minority of the Province of Qnehec. (1.) To His Excellency the Right Honourable Sir Frederick Arthur Stanley, Baron Stanley of Preston, G.C.B., Governor General of Canada, The petition of the undersigned electors entitled to vote for members of the House of Commons, humbly showeth : 1. That an Act was lately passed by the legislature of the province of Quebec, entitled : " An Act respecting the settlement of the Jesuits' Estates." 2. That the .said Act recognizes a right on the pt'ore tlie .ludii'ial Coininittee of the I'i'ivv (Jotincil. llis Kxcellency has not been advised ten religious denominations. 2nd. Because it is said to recugni/e a right in the Pope to claim that his con.sent was neces.sary to empower the provincial legislatui'O to dispose of a part of the public domain. Tliis is -said to be oven subvei'sive of Her .Majesty's supremacy. 3rd. The Act diverts, it is said, the "estates" to which it refers from the; educa- tional purpose.s, to which by law they had been devoted. 4th. The assent of Ontario is said U) have been necessary to the disposition made by the statute of the " estate " in question. A brief narrative of the facts relating to the Jesuits' estates in Quebec may serve to elucidate the subject. While the country was under the dominion of France the members of the Society of Jesus were the most active missionaries anions; the savages, and were the princijial teachers and ministers of religion, both among the settlers and aborigines. The sacrifices which they underwent, in every part of the country, in their contact with the Indians, involving not only extreme [)rivations and great hardships, but in many cases mutilation and loss of life, excited the devotion and ardour of many jiersons of their faith in France. As a result of this the society in Canada was endowed with donations of property, goods and money from persons in Pranc :.i. n property hoUlers in New France, and from the King of France. The purchase^i 1 \ r'le Jesuits them.seives formed the only other class of titles to these estates. In some cases the properties were expressly charged with trusts in favour of religion and education, and in other cases no trusts were expres.sed. The Jesuit community in Canada had been erected into a corporation by tiie King of France, and the Jesuits were in full enjoyment of their estates at the time of the con- quest of Canada in 1759. In reference to the value of these estates. Father Turgeon, S.J., in a letter to the Premier of Quebec, dated "JOth May, 1888, contained in the preamble to the statute under review, says : " According to the otHcial report which you were kind enough to cora- 26 4or> qUEUfiC LEQISLATION iiuiiiicato to ino. T fmd Unit tho Jesuits' ostatea are valued at tho sum of ?!, 200,000. Tliis is (iiily aiipioxiitwitc, iiiid I think it is greatly less than the real value. {J<)iu|)(!tcnb iiK'ii wliuiii 1 have consulled at (i)uelM!e, Montreal and Three Rivers, ilo not hositnte to say that the Jesuits' estaU s are worth at least 1*2,000,000." The following articles from the capitulations may be supposed to have some bearing on the matter ; — Capitulation of Qukhec, 18tii Seffemueu, 17r)9. ^ " AiiT. 1 T. That the inhabitants shall be preserved in the possession of tlieir houses, goods, effects and privileges." Answer— " <;rant(!d, upon their laying down theirarms." "AiiT. VI. That tho exerdse of the Catholic Apostolic and liimian religion shall be maintained ; and tliat safeguards shall be granted to the hou.ses of the clergy, and to the monasteries, ])arti';ularly to His Lordship the Jlishop of (Quebec, who, animated with zeal for religion and charity for the people of his diocese, desires to reside in it constantly, to exercise freely and with that decency which his character and the sacred ollices of tho Roman religion recpiire, his ei)iscopal authority in tho town of Quebec, whenever he shall think projier, until the pos- .session of Carula shall bo decided by a treaty between their Most Chiistian and Uritannic Mi.jesties." yl;«N/rer—" The free exercise of the Roman religion is granted, likewise safeguards to all religious persons, as well as to the IJishop, who shall be at lil)erty to come and exercise, freely and with decency, tho functions of his otKce, whenever he shall think jiropor, until the possession of Canada shall have been decided between their Jiritannic and Most Christian Majesties." Capitulation of Montheal and of the whole Province, 8tii SEPTEMnEn, 1700. "Art. XXVIT. The free exercise of the Catholic Ajwstolic and Roman m shall subsist entire, itc, &c." AmDivr — "Granted as to the free exercise r religion. The obligation of paying tithes to the priest will depend on the King's pleasure." " Art. XXXII. The communities of nuns shall be preserved in their constitution and privileges. They shall be exempt from lodging any military, and it shall be forbid t>. trouble them in their religious exercises, or to enter their monasteries ; safeguards sh. 11 even be given them if they desire them." Anmner — " Granted." "Art. XXX IT 1. The preceding article shall likewise be executed with regard to the communities of Jesuits and Recollets, and to the liouse of the priests of St. Sulpice at Montreal. This last, and tho Jesuits, shall preserve their right to nominate to cer- tain curacies and missions, as heretofore." Anstver—" Refused till the King's pleasure be known." " Art. XXXIV. All the communities and all the priests shall preserve their movables, the property and revenues of the seignories and other estates which they priest the Foreign Missions, and of St. Sulpice, as well as the Jesuits and Recollets, choose to "o to" France passage shall be granted them in His Britannic Majesty's ships, and they shall have leave to sell, in whole or in part, the estates and movables which they possess in 'jhe colonies, either to the French or to the English, without the leasti hindrance or obstacle from the British government. They may take with them, or semi to p-rance, the produce of what nature soever it be, of the said goods, sold, paying the freight as mentioned in the XXVIth Article ; and such of the said priests who choose to go this year shall be vitualled during the passage at the expense of His Britannic Majesty ; and they shall take with them their baggage." Ansn'-r—" They shall be masters to dispose of their estates, and to send the produce ^^^^ereof, as well as their persons, and all that belongs to them to France." _-^ t 01-52 vicTOKiA, 1888. 407 in ..f !? 1, 200,000. Inc. (/'()lll|)ct0llt lint hositiite t(i ii\ e some buariiig II oftlicir houses, l(j\vii llieiraniis." lifimun rolij^ioii llOUSf'H of tlio isli()|) of (^uelusc, of liis (lioC(!HO, Rcoricy wliioh his his ej)i.seoi)al uiilii the jKW- st Cliri.stian and ij,'ion is j,'i'antt'(l, ), who sliall 1m! at oils of liis ottice, ave bieii decided Septkmiiem, 1700. id IliDiian in exorcise r id oil tiie King's their constitution \ it shall he forhid teries ; safeguards ed witli regard to Bsts of St. Hulpice nominate to cer- lie King's pleasure 11 preserve their istates which they ates shall be pi-e- -" t,4ranted." jf the Seminary of 1 Kecollets, choose ajesty's ships, and ables which they without the least ake with tliem, or Is, sold, paying the riests who choose 3 of His Britannic — " They shall be af, as well as their Tt is contended that Article X.XXTV, of the Cajiitulation of M(/ntreaI ; appliere no longer able to continue. At various times when the provincial government endeas oured to make side of portions of these estates this claim was jiut forward, in the shape of protests and remonstrances against the property being dis- posed of, and the provincial government was, in some instances, thereby deterred from the j)roject»d sale. Under these? circumstances, the Act of 1888, which i.s low beirg objected to, was passed, as the result of negotiations which tiie first minister of the province had entered into and concluded with the authorities of the Konian Catholic Church, and with the representative of the Jesuits, and for the purpose of giving effect to the agreement which these negotiations h-iu reached. First. — As to the first objection — that the Quebec statute under revit^w endows from the public funds of the province a rel'gious organization, and creates inequality between religious denominations, the opposite contention is that the Act is not ultra vires even if that were a correct statement of its effect. There is no provision in the British North America Act compelling the separation of Cliurch and State, and it hardly seems open to o. lubt that under more than one of the enumerited j)owers of a provincial lejjislature, it would be within the competence of such a legislature to make enactments inconsistent with the separation of Chui'ch and State. A glance at the enumeration will probably be suflicient to make that view clear. There is no restriction against the endowment of religion, or against the une(|ual endowment of religious bodies, in the constitution of any .jf the provinces, and, if there were, it must be observed that each province has power to amend its constitution within the limits of the Briti h North America Act, which has no such restriction. Again, it is evident that the endowment of a religious denomiiiation does not necessarily establish inequality between religious denominations. Tiie endowment may be necessary to redress an existing inequality, or, if it causes inequality, that ineciuality may be redressed ; it is subject to review tVom time to time and, even though it might be said to be impolitic and unjust to other denominations than tha. endowed, and even though the endowment for t!ie time being might be KJiid to result in an inequality, it would be impossible to est the validity of the Act by ascertaining whether it has caused an e(jual, or unequal, distribution of the public funds to be ma(^e as between religious bodies. Thii would be to a large extent a matter of opinion. It woul(i dapend i)artly on population, purtly on extent of other endowments, partly on the ([uestion of necessity, partly on the expendi- ture which the denomination endowed might 1 e called on to nii'.ke in carrying on its work, partly on the extent of territory covered by the operadons of the endowed denominatic a, and on various other conditions which it would be impossible to measure in considering the validity of the Act. It seems obvious that this would be no stan- dard of validity and that the discretion and sense of justice of the legislature, elected by the people of i\\u province, must be trusted to guard against an unfair use of the legislative powers in this regard. The power to change the constitution of the province, the jiower to raise a revenue and to borrow (implying, as it neces.sarily does, the power to expend the money so raised), the power to deal with civil rights, and to control all matters of a merely local nature within tlie p'ovince, seem to incluvlo the power to endow a church or religious body, leavi^jg out of consideration the propriety of such a measure, with which the present memorandum does not prolV s to deal ; — and with regard to this particular measure, the power to dispose of the public lands (of which the Jesuits' Estates were a part), seems neces.sarily fo include the power to appro- priate the proceeds as the legislature might see fit. Hut it seems impossible to regaid tins Act as affecting, in the slightest degree, the separation of Church and State, or as the endowment J a religious denomination. It professes to restore to a certain society a portion of the property, not in kind, but M' *■■« 51-52 VICTORIA, 1888. 409 Iv and tlioif flocks had ly Pope Clenioiit XIV., ly tlieiii for tlip purposo and Ijecause thoy liad, la Jind education wliicli wlien the provincial lates tliis claim was put |lie property \)vu\>r dis- therel)y deteri-ed from \^^, which i.s low hoirji,' first minister of tlie the l^oman Catholic |jur])ose of giving effect under leview endows and creates inequality it the Act is not u/tra is no provision in the rch and State, and it numerated powers of a h n. legislature to make tate. A glance at the Thei'e is no restriction ndowment of religious there were, it must be ion within the limits of 1. Again, it is evident rily establish inecjuality lecessaiy to redi-ess an uay be redressed ; it is S be said to be impolitic though the endowment would be impossible to m1 an ecjual, or unequal, bodies. Thi;, v^^ould be in population, pnrtly on , i)artly on the expendi- ni'lce in carrying on its II ions of the endowed i impossible to nieasure this would be no stan- the legislature, elected it an unfair use of the the power to raise a power to expend the ntrol all matters of a he power to endow a propriety of such a s to deal ; — and with public lands (of which ? the power to appro- the slightest degi'ee, sligious denomination. Jrty, not in kind, but in money, of which that society was, in years gone by. deprived, without compen- sation, and it professes to give a compensation therefor in the money of that pro\ince which Lad become possessed of the forfeited property, and was profiting by it. It seems not to enter into a consideration of the validity of the Act, tliat that society was formed of persons of the same icligious belief, or that the object of the society was to sprf;ad the tenets of its members. To admit such a proposition would be to establish the very principle which those who n 'se this objection contend ag.-anst, because it would atlirm the idea that vne religious belief — the belief of the members of the society in question — is ur.der tlie ban of the law, and that it could not, on account of that belief, receive compansation for a claim which the legislature of a province, by a unanimous vote, decla'.'od to be worthy of compensation. This would certainly result in inequality as between religious denominations, unless the principle were adopted that no society could be paid public money if its members possessed any definite belief on religious subjects. That principle would perhaps estaljlish ecpuility as between religio is denominations, by declaring that none of them could recover for any claim, but it would do far worse. It would establis' ineiiuality as between societies whose members professed religious belief, jind those whose niember-i had no religion — to the great advantage of the latter. Even if the grant of muney — really made as the discharge of an obligation — had been made for the purposes of endow- ment, it would have had no relation to the question of Church and State. It might have been as well urged that the endowment of Maynooth College was the endowment of the Roman Catholic Church in Ireland. Second. — ^It has been objected that the Act recognizes a right in the Pope to claim that his consent was necessary to empower the provincial legislature to dispose of part of the public domain. T'lis lias been said to be derogatory to Her Majesty's supremacy. This obje(ttion involves a mis-statement of what has taken place and as to the effect of the references in the preamble to the authorities at Home. As has been stated in the narrative of facts which the present review contains, there were two stt^s of claimants to the Jesuits' estates, or rather, two sets of claimants for what the legislature was pleased to recognize as a moral right to compensation in regard to tliosti estates : the Jesuits on the one hanii, and the Hierarchy of the Roman Catholic Church in the province of Quebec on the other. While the legal title to the property, without any iloubt or (juestion, was vested in the province, and while the provincial govei'nment had a el(>ar and undoubted right to make sale of the estates, this claim for compensation had been put forward from time to time in the sha[)e of protest, remonstrance and jjetition by botli the claimants. "When the legislature of the province arrived at the conclusion that compensation should be paid, in settlement or extinguishment of that claim, it was an ordinary business precaution that all the persons who participated on the claim, or who had set it up, should withdraw their claim and accept the settlement, before the comj)ensation should be paid ov(>r, or when it should be paid over, and it was plainly necessary, even b(>fore negotiations for such a settlement could be carried on, that come one with authority, competent to represent both sets of claimants, should be treated with ; otherwise two sets of negotiations would be necessary and a conclusion would be almost impossible. The authority who, naturally by his positi >n, and by the choice and consent of the two sets of claimants, could negotiate for thei, and mediate between them, was the Pope, as being the Head of the Church t«) \j'\i both sets of claimants belonged. He had authority, by consent of both, to co idi'ct the negotiations for both, and to cause both to be satisfied with any settlement wluch might be arrived at. In 188'i, in pursuaiuie of this theory, the Ai'clibishi>pof Quebec obtained permission to represent the Holy See in treating witli the government of the province on this subject. Or.< tlie 2nd Januarj', 1885, as appears by one of the preamples of the Act, the Archbishop wrote a. letter to the Premier of the province, informing him of liis authority, and on the 25th April of the same year the Premier informed his Grace that, if J: rrm,'^ 3S!lm^ mt li fU'J^ ^ iMaWii.'u.wV; . :.-^i-[ '.. -i; i /. ct ^ww*}',.: ' . ' -r mV ' A" ' . m QUEBEC LEGISLATION the provincial government consented to reopen and reconsider this question lie would consult His Urace and the Jesuit Fathers, so that he might, if expedient, " be able to submit to the legislature a measure which " would " settle this question in a definite and satisfactory manner." The government of Quebec did not seem satisfied tluit the authority which the Archbishop possessed included the authority to conduct the claims set up by the Jesuits themselves, because the reply of the Premier intimated that it would be necessary to consult and treat with the Jesuits as well as with HisGi'ace. On the 7tli May, 1887, Cardinal Simeoni, Prefect of the Sacred College of the Propaganda, informed the Archbishop of Quebec (then Cardinal Taschereau), that the authority conferred on him had been withdrawn. This was done by intimating to the latter tliat the " Holy Father reserved to himself the right of settling the (juestion of the Jesuits' Estates in Janada." The most critical view which can bo taken of the language quoted can hardly construe it as evidence of an intention, on the pait of the authorities at Rome, to interfere with the rights or property of the province. Tiie rights of the province in these lands, as before stated, were so plainly established by statutes of the province, as well as by the concessions of the Imperial government, that the legal title was not in (|uestion, and could not be. "The right" which Cardinal Simeoni declared that the Holy Father "reserved to himself" was not the right to control, in any way whatever, the property, but to conduct and conclude the demands of the claimants who had put forward recjuests for com- pensation from the province, and the right to decide, even as against them, that their objections to the sale of the property by the province ought to be withdrawn, for com- pensation or without compensation, and at whatever rate of compensation he should decide on. It was only in respect to those points that the Holy Sec had conferred authority on the Archbishop of Quebec, in 1884, and it could only be that authority which was withdrawn and reserved, by the despatch in which the Pope reserved to himself the right to settle this question. The letter of the First Minister of Quebec, dated the 17th February, 1888, to Cardinal Simeoni, set forth in the preamble of the Act, recites this despatch of the 7th May, 1887, withdrawing the authority of the Archbishop of Quebec. It states that, in 1876, a part of the estates in the city of Quebec had been divided into building lots with a view to their sale, but that the sale hafl not taken place, "owing to certain representa- tions from exalted personages at the time." It states, also, that the matter had been allowed to lie, and that the property had become so neglected as to be be " a grazing ground and a receptacle for hlth," so much so, that the matter had " become a public scandal." The first minister proceeded then to ask Cardinal Simeoni if he saw "any objection to tlie government's .selling the property, pending a final settlement of the questicm of the Jesuits Estates." This part of his letter has exeiteil nmch criticism, as inviting the^ interference of a foreign power. There can be no doubt that the first minister had in view the petitions, protest and remonstrances whieii had been put forward against the sale of the property, and was soliciting Cardinal Simeoni to interfere to prevent the obstructions which had frustrated the sale, and was asking him to agree, on the behalf of the Pope, that these objections might not be repeated, but that a sale might be made, whatever the final result miuht be of the claims which had been put forward, for compensation. In the next paragraph of his letter, the first minister states that the government was willing to " look on the proceeds of the sale as a special deposit to be disposed of " thereafter " in accordance with the agree- ments to be entered into between the parties interested, with the sanction of the Holy See." If v/e are to read this proposal in the ligiit of the history of these estates, and of the claims made upon the Quebec government in regard to them, it would serm that this passage admits of no other construction, than that it was a proposal on the part of the first minister that all the protests against the sale should be withdiawn and that, in order to assuie the protesting parties that the province would not, in ■f! 51-52 VICTORIA, 1888. 411 (juestion he would edient, " be able to istion in a flefinite satisliecl tli.-it the Iconduft the claims tr intimated that it Hth His Gi'ace. jcred College of the jschereau), tluit the intimating to the ing the (luostion of n bo taken of the on the pait of the \he province. The Illy e'-tablished by 1 ^'ovei-nment, that ather "reserved to rty, but to conduct •equests for corn- ist them, that their ithdiawn, for com- ensation he should onferred authority ithority which was •ed to himself the February, 1888, to ■tch of the 7th May, tates that, in 1876, juilding lots with a certain I'eprescnta- le matter h;id been o be be " a grazing " become a public if he saw "any settlement of the iiuich criticism, as ouht that the first lich had been put dinal Simeoni to ', and was asking Jt be repeated, but the claims which of his letter, the a pr(jceeds of the with the agree- 3 sanction of the these estates, and 11, it would sepm a proposal on the con- cluding portion of the letter, the first minister intimates that " it will pctrhaps bo necess.iry to consult tlu^ legislature of the province." This expression can only have reference to the possible .settlement of the claims. It would have been ((uite unnecessary to consult the legislatun; as to the sale of the property, l)ecause the government already posses-sed ample authofity fori hat purpose. The reply of (Jai'dinid Simeoni, dated 1st March, IS'-^S, was that the Pope had so far acceded to tiie pro[)osals made as to cf)nsent to the sale, sale of the land which was th(! subject of the negotiatircier"s f)riginal j)ro])osition. Immediately afterwarris the Hcv. A. l\. Turgeon, S. J., received authoi'ity from the Sacred College at Rome to treat with the government in this matter. This authority seems to have superseded that which had been previously conferred upon the Archbishop of Quebec. The authority was conveyed by Cardinal Simeoni to Father Turgeon in a letter ilated 27th March, 1888, in which the Cardinal intimated that the authority to treat with the provincial government would be given to the Jesuit Fathers, but they were to treat in such a manner "as to leave full liberty to the Holy See to flispose of the property as it" should deem advisable, and they were directed that " the official deed of the concession of such property " should contain " no clause or con- dition which could in any manner affect the liberty of the Holy Sec;." Those pi'ovisions, as to the disposal of the pnjperty finally by the Holy See were doubtless in view of the contingency, then deemed possible, that the estates tliemselves, or a portion of them, would be restored to the Jesuits. The Cardinal made the further stipulation that if a sum of money shruld be paid by the government, the Jesuit Fathers should deposit \o in a place to be determined by the Sacred College. In a letter dated 1st oi May, 1888, the First Minister of Quebec put forward the bases on which he proposed that a settlement of the claims should be made. He ro'inired that the documents, conferring authority on the Jesuit Fathers to negotiate, should be duly authenticated and def ited, that it sliould be understood that the government did not recognize "any < il nbliLration, but merely a moral obligation," and that there could be no restitution of the proper' y itself, but otdy compensation in money. He stipulated further, that "the amouiu tixed as compensation'' should " be expended exclusively in the province," and, in order, evident Iv, to ])reclude all claims which could possibly be set up, either by the two sets of ■ the same reason, proposed that the amount of compensation should remain in the hand (jf the provincial government as a special deposit, until the ratification of Father Turgeon's prnicipal, the Pope, had been obtained, and until the Pope had made known his decisicm regard- ing tlie distribution, between the claimants, of the conipensation money wliich night be agreed on. Mr. Mercier agreed that the Jesuit corporation should receive interest at four per cent from the date of the signification to the provincial secretary of the confirmation of the arrangement by the Pope, down to the time of paying the capital. He stipulated further that the statute latifying such agreement should contain a clause enacting that when such settlement should be arrived at, the Protestant minority in the province should "receive a grant in proportion to its population in favour of its educationii! wiirk." On the ,^th May, 1888, Father Turgeon replied to the first minister's letter accepting the bases of settlement. 8ome further cot respondence ensued, in which Father Turgeon suggested the amount of compensation which the provincial government should allow, and, on the 4th June, 1888, the first minister, replying to this, declared that he could not exceed $400,000, and a grant of the Common of Laprairie, which was a part of the estates in question. On the 8th the same month Father Turgeon accepted these ofl'ers. The First Minister of Quel)ec, in defending the bill in the legislature, made the following explanation of the recognition of the Pope, which the correspondence seemed to contain : — " Any serious objection to it, however slight, may disappear, for it is we, the ministers who insisted on it, in order not to give effect to the transaction unless it was sanctioned by the religious authority in the person of the Pope. And it is easy to understand wliy. In all important treaties made ijy mandatories, ratification must be made by the mandator. Thus, for example, take what concerns me personally, what concerns ministers, what is it usual to state in resolutions, in letters ? That the trans- action shall not avail unless sanctioned by the legislature. Well, the Rev. Father Turgeon, who was charged by the Holy See to settle this question with us, is only an agent, a mandatory, an attorney. And so that there may be no misunderstanding, so that the +-ansaction may be final, so that the settlement may no longer be open to dis- cussion by the religious authorities, we insist that the Pope shall ratify the arrange- ment. There is no question of having the law sanctioned by the Pope. Let ua not play upon words. The law will be sanctioned by the Lieutenant-Governor, and it will take effect in the terms of the agreement. That is to say, sir, that if the Pope does not ratify the arrangement there will Ije neither interest nor principal paid, but we shall then say to the religious authorities : 'You appointed an agent to settle this question, we came to an understanding, anive interest at secretary of the ying the caj.ital. contain a clause )testant minority m in favour of its minister's letter >n suggested the How, and, on the ■ould not exceed of the estates in lature, made the pondence seemed 'or it is we, the nsaction unless it And it is easy to tificatioii must be personjUly, what That the trans- the Rev. Father th us, is only an nderstanding, so ir be open to dis- ;ify the arrange- ope. Let us not 'rnor, and it will f the Pope does iiid, but we shall le this question, mand: tory, it is irough the con- am pleased to iderstood. But ' to come to an ivalent. What ransaction shall inally. We did ■etary of State. )f the church in e cause of the hat his consent 51-52 VICTORIA, 1888. 413 was necessary to enable the legislature to dispose of a part of the public domain." Having stated what is believed to l)e the true intei'pretation of the corrcspondcnco, and its phrases, in view of tiie surrounding circumstances, and basing stated wiiat is believed to be their legal and actual clKct and nn'aning, the question rc^mains to be considered how this corresjiondence, and its phrases and expressions, which have excited hostile criticism outside the province of Quebec, can be considered as affecting the validity of the statute under review. It may b(^ properiv said that the expressions which are said to ^recognize a right in the Pope in regard to the public domain do not form any necessary part of the statute and do not in any way affect its validity or justify its disallowance. Turning to the enacting parts of the statute we find that this preliminary correspondence is only referred to in tht^ first section, which reads thus ; — " 1. The aforesaid arrangements entered into between the premier and the Very Rev. Fatlier Turgeon are hereby ratified, and the Lieutenant-Governor in Council is authorixed to carry them out according to their form and tenor." It will be seen, therefore that the only portions of the many inatters which are set out in the preamble to this statute, which are ratified, and which, therefore, form any material part of the statute, are the arrangements enti^red into l)etween the Premier and the Very Rev. Father Turgeon. These arrangements are contained in the letter of the First Minister of Quebec, dated 1st May, LS8.S, the letter of Father Tur- geon dated the 8th of the same nKmth, the letter of the first minister dated Ith June, 1888, the letter of Fatlier Turgeon dated 8th of the same month, and the lettei- of the first minister dated the same day, and the legal documents which followed in order to give effect to the settlement. All other matters which are referred to in the preand)le to this statute are extraneous and irrelevant. They are in no way confirmed by the Act in question, and all that can be said of the Act iit relation to them is that it recites that such correspondence took place. Among the documents which maj' be enumerated, as containing nothing affecting the validity of. or affected by the Act, are the documents which contain the expressions which have excited the greatest criticism and opposition— as, for instance, the letter of the first minister to Cardinal Simeoni, dated 17th February, 18SS, in which the minister mentioned that Cardinal ISimeoni in a despatch to Cardinal Taschereau had informed the latter "ttiat the Holy Father reserved to himself the right of settling the question of tlie Jesuits' Estates." The same document is that in which the first minister asked Cardinal iSinieoiii whether he saw "any serious ol)jection to the govern- ment selling the property pending a final settlement of the ([uestion of the .lesuits' Estates." It was in that document that the first minister intimated that " thn government would look on ttie proceeds of the sale as a sjiecial deposit, to be dispused of in accordance with the agreements to be entered into between the parties interested, v/ith the sanction of the Holy See." Another such instance is, likewise, Cardinal Simeoni's desj)atch to th;; Fii'st Minister of Quebec, stating that the Holy Father "was pleiised to grant permission to sell the property which belonged to the Jesuit Fathers before they were suppressed," jjrovided " that the sum to bo received should be deposited and left at the free disposal of the Holy See." Another such instance is the message of Cardinal Simeoni, dated 24th March, 1888, in which the Cardinal usetl the expression, "the Pope allows the government to retain the i)roceeds of the sale of the Jesuits' Estates as a specie.!, deposit," itc. It may, therefore, with propriety, be stated that even if these expressions, to which grave exception has been taken, bear the meaning wiiicli is attributed to them, as being a recognition by Mr. Mercier of the right of the Pope to claim that the consent of his Holiness was necessary " to empower the provincial legislature to disjiose of a part of the public domain," it would have been impossible to have disallowed the statute on the ground that such correspondence had taken place, and that such expressions had been used, when the Act merely recited the facts which had occurred, and contained no express ratification of what is so objected to. t ',; ■ ? ^... 414 QUE3EC LEGISLATION To have disallowed it on any such ground would have been to have disallowed a statute, within the jiowers of a province, on the ground that the Act was iiltrn virts by reason of its having merely recited the existence of certain facts which did undoubtedly occur. In amplification of the objection which is here being answered, it is stated that the recognition of a right in the Pope to claim that his consent was necessary involved a recognition of the Pope's supremacy, and involved a denial of the supremacy of Her Majesty, anil also involveii an admission that the legislature of one of Her Majesty's provinc^es could only proceed by ha\ ing its legislation sanctioned by the Pope ; but, at the risk of repeating the argument which has already been advanced, as to the fair con- struction of the correspondence set out in the preamble, it may be replied that no such consequences are involved. The Fiist Minister of Quebec was dealing with objections and protestations which had hindered the sale of portions of the public domain. He was negotiating for the con.sent and approval of one who, by the choice of all the rival claimants, had power to arbitrate and decide between them, and to induce them to withdraw their claims or to moderate them ; the ininif>ter was negotiating with a view to the extinguishment, not of rights, but of claims, for restoration or compensation, and this extinguishment his government and legislature thought it desirable should be made, in order that an advan- tageous sale of these estates might take place. There is certainly no subversion of Her Majesty's suj)remacy, as head of her church. There is, surely, no subversion whatever of Her Majesty's rights and supremacy as sovereign over the province. It is not a con- travention of that supremacy, that compensation should be given to extinguish, what the legislature regarded as a moral claim, in relation to estates which had become forfeited to Her Majesty's predecessors, and with which Her Majesty's predecessors had endowed the province. The assertion might as well be made that it is a disloyal proceeding, and one sub- versive of the sovereign's supremacy, to entertain a doubt as to the validity of the title of a part of the public domain which a colony acquires from the Imperial government. The Quebec negotiations, however, do not go so far as that. They distinctly state that the tide is not in question, and that none but moral obligations were being considered. It seems needless to say that governments of British countries, and indeed Her Majesty's government, do not treat moral obHgations, in relation to the public domain, or in relation to escheated property, as in any way conflicting with Her Majesty's sovereign rights and supremacy. In so far as it is supposed to be objectionable tliat the Pope should have been considered entitled to make any distribution of the compensation awarded, it would seem to be impossible to regard that feature as in any way derogatory to Her Majesty's authority, dignity or supremacy. It was a matter of absolute indiffer- ence to the government and legislature of the province, and surely entirely irrelevant to any consideration of Her Majesty's rights and supremacy what should be done with the amount of compensation to be paid over. The one thing which it was necessary for the government, in the interest of the province, to guard, was, that when it should be paid over the claims which it was intended to extinguish should exist no longer, and those who were acting in the interest of the province doubtless thought that this could be best accomplished by dealing with one who, by the consent of the parties interested, had their authority for the extinguishment of the claims and for settling an'- question as to the division of the compensation. It will be observed that the objection being here discussed applies rather to the policy of the statute than to its validity. Indeed it is difficult to understand the objection now under consideration as being an objection in any way affecting the validity of the Act. When the very extensive powers which the British North America Act confers (some of which have already been enumerated) are considered, it will be seen that what- ever objections some m.ay have to the Act, even on the second ground on which its invalidity is claimed, that ground would hardly be available for an attack on the Act as being ultra vires. Jiave disallowed a was ultra viris by » did undoubtedly is stated that the coHsary involved a supremacy of Her iiF Her Majesty's tlic Pope ; but, at as to the fair con- [)lied that no such rotestations which i^otiating for the ts, had [)ower to their claims or to ctingui.shment, not xtin<,'uishment his er that an ad van- subversion of Her bversion whatever It is not a con- extinguish, what ihich had become s predecessors had bng, and one sub- ilidity of the title )erial government, stinctly state that being considered. i, and indeed Her ihe public domain, th Her Majesty's actionable that the ! the compensation ly way derogatory f absolute indiifer- ;irely irrelevant to 1 be done with the i necessary for the it should Vje paid longer, and those that this could be jarties interested, fling an'- question ies rather to the understand the ivay affecting the lerica Act confers lie seen that what- lund on which its ack on the Act as 51-52 VICTORIA, 1888. 415 It may not be unimportant, in considering how extensivii the rights and powers of provincial legislatures are, to refer to some of the autlioi'iti(!s A'hich have pronounced on the powers conferred on the colonies by the British North America Act and otln>r similar er .ctments. For example, in the case of Harris vn. Da vies (10 App. Cases 279) it was held Ijy the Judicial Coiimiittee of tiie Privy Council, under a statute not very dissimilar fi-om the Pritish North America Act that: " The legislature of New South Wales has j)Ower to re[)eal the statute of .lames I., and had implieflly done so by 11 Vic, No. 13, which, according to its true conslructicm, placed an action for slander for words spoken upon the same footing, as regards costs and other matters, as an action for written slander.' The statute (jf James 1. had made pi'ovision as to the amount of costs which the litigant could recover when he only obtained a verdict for a certain amount for slander ; the Act ap|)lied to the colony ; the legislature passed an Act changing that provision. Tlie judgtnent of their Lordships was delivered by Sir Barnes Peacock, who said : "Their Lordships are of opinion that there are no sutlicient grounds ff)r reve^rsing the judgment of the court below. Their Lordships are of opinion that the colonial legislature had the power to repeal the statute of James I. if they saw tit, and they are also of opinion that, looking at the first section of 11 Vic, No. 13, it was the intention of the legislature to place an action for words spoken upon the same footing, as regards costs and other matters, as an action for written slander. Another important decision was Hodges r.v. the (^ueen (9 App. Cases 117) which is thus referred to in the case of Powell vs. Apollo Candle Company, Limited (10 App. Cases -82), also an important decision as to the powers of a colonial legislature. " Two cases have come before this boai'd in which the jjowers of colonial legisla- tures have been a good deal considered, but these two oases are of too late a date to have been known to the Supreme Court when their judgment was delivered. The first was the case of Regina v.s. Burah (;i App. Cas., 889) in which the (juestion was whether a section of an Indian Act, conferring upon the Lieutenant-Oovernor of Bengal the power to determine whether the Act, or any part of it, should be applied to a certain district, was or was not nitra vires. In the judgment of this board, given by the Lord Chancellor, the legislation is declared to be intra vir^K, and the Lord Chancellor lays down the general law in these terms: 'The Indian legislature has power expressly limited by the Act of the Imperial Parliament which created it, and it can of course do nothing beyond the limits which circumscribe thc^se powers. But when acting within those limits it is not in any seiise an ageiit or delegate of the Imperial Pni'liament. but has, and was intended to have, plenary powers of legislation as large, and of the same nature, as those of Parliament itself.' The same doctrine has been laid down in a later case of Hodge vs. The Queen (9 App. Cases, 117), where the cpiestion arose whether the legislature of Ontario had or had not the power ef entrusting to a local authority — a board of commissioners — the power of enacting regulations with i-espect to their Li(]r,or License Act of 1877, the power of creating offences for the breach of those regulations, and annexing penalties thereto. Their Lordships held that they iiad that power. It was argued then, as it has been argued to-day, that the local legislature is in the nature of an agent or delegate, and, on the principle deleyntus nou potoKl drlngdre, the local legislature must exercise all its functions itself, and Ci}n delegate or entrust none of them to other persons or parties. But the judgment, after reciting that such had been the contention, goes on to say ; ' It appears to their Lordships, however, that the objec- tion thus raised by the appellants is f(junded on an entire misconception of the true character and position of the prov-.ncial legislatures. They are in no sense delegates of, or acting under any mani!ate from, -ae Imperial Parliament. When the British North America Act enacted that ther" .aould be a legislature for Ontario, and that its legis- Ictive assembly should have exclusive authority to make laws for the province and for Tjrovincial purposes in relation to the matters enumerated in section 92, it nferred powers, not in any sense to be exorcised by delegation from, or as agents of, the Imperial Parliament, but authority as plenary ara as ample within the limits prescribed by section 92 as the Imperial Parliament, in the plenitude of its powers, possessed or could bestow. I f n 416 QUEllEC LE0I8LATI0N Within tiiese limits of subjects aiul areas the local legislature is supreme and has the same authority as the Imperial Parliament.'" Reference may also be made to the case of lliel vs. tlie Queen (10 App. Cases, G7f)), in which tln^ power of the Dominion Pailiament to alter the provisions of Imperial statutes re<,'ar(iini,' trials for o/1'ences in the North-west Territories was established. Ihird. It nas been contended that the statute diverts tiie (^states to which it refers from the educational purposes to which by law they had been devoted. In the first place it is to be remembered that the Act does not, in express terms, or by necessary implication, make such a diversion. It ratifies an a;,'reement for the payment of ii? 100,000 and for the transfer of La- prairie Common. It provides for the payment of !?00,000 to the educational authority representing; the Protestant minority in the province — and this latter sum was declared by the First Minister of Quebec, during the negotiations, to bo the jjroportion to which the minority was entitled out of these estates — and it provides that tlie remainder of the proceeds of the estates are to be applied for any purposes which may be approved by the legislature. The payment of $400,000 in satisfaction of the Jesuits' claims and the $60,000 to the Proti'stant Committee of the Council of Public Instruction do not necessarily come out of tlie proceeds of the Jesuits' estates. They are t) be paid out of any public money at the disposal of the Lieutenant-Governor in Council. It is not to be assumed that, if these estates are to be considered as charged with a trust in favour of education, the legislature will approve of any diversion of the proceeds of that trust, and the proceeds can only be applied in such a way as the legislature shall hereafter approve. As already stated, if the proportion of the public money which the Protestant minority is to receive under this Act is an inadequate proportion, that is a matter which is capable of redress by the legislature chosen by the people of the whole province, and it may not be unimportant to ob.serve, in this connection, that the Act received the unanimous approval of both Houses of the legislature of Quebec, in which the Pro- testant minority is ably represented by distinguished men in both political parties. Even if the charge of diversion from the original trusts had more foundation than it has, it is obviously impossible for the federal government, in the exercise of the power of disallowance, to undertiike to guard against misappropriations of the public funds, or of the public property, without assuming the power and responsibilities of regulating the public revenues and public domain of the provinces. To undertake the task of watching over the public appropriations of the provinces would be to nicur the risk of almost inevitable injustice, for want of the means of correctly understanding the conditions which ought to guide the legislatures in such appropriations. The British North America Act must be held to have placed these matters within the power of the legislatures, which represent the people directly in regard to these questions, which the federal executive cannot be said to do. Even if the Act directly sanctioned a breach of trust, it would not be beyond the powers of the provincial legislature, however much its passage might be deplored. It cannot I)e supposed, however, for reasons which have already been suggested, that the legislature of Quebec intends to commit, by this statute, for all future time, a breach of trust in I'egard to the^e estates. First, because it has every year made far more ample provisions for education, both for the majority and for the minority, than these estates, or any other part of the public domain charged with trusts could afford. Second, because the approval of the legislature to any final distribution of the proceeds of tiie estates is stipulated for on the t'ace of the Act itself. Fourth. A further objection has been that the sanction of Ontario is necessary to the disposition made by tliis statute of part of the estates in (juestion. This objection can hardly be sustained from any legal point of view, even if it be regarded as one which could affect the validity of the statute. It' is only put forward under the view that some power, regarding the subject, may remain in the province of Ontario, because these estates were devoted to educational purposes 'ay a statute (prior to the union of the provinces), of a province of which, what is now the province of Ontario, 51-52 VICTORIA, 1888. 417 renie and has the IVpp. CaseH, 07;")), joiis of Iiii|)eri(il Bstalilisliod. |(t whifli it refers |i) express terms, transfer of La- rtional authority |uni was declared )ortion to which le remainder of iiy he approved suits' claims and istruction do not ■o t ) be paid out uncil. It is not 1 with a trust in proceeds of that ■e shall hereafter the Protestant s a matter which le province, and Act received the which the Pro- cal parties, foundation than exercise of the ns of the public isponsibilities of 'o undertake the 1 be to incur the ' understandin/T IS. The British he power of the bions, which the ;tioned a breach , however much been suggested, 1 future time, a year made far I minority, than 5ts could afford, of the proceeds io is necessary uestion. This it be regarded forward under nee of Ontario, B (prior to the ice of Ontario, was once a part. The estates, however, are solely within the province of (^uelwc. They a.ii public lands of that province, and any trusts with which they may be chargt'd are trusts in favour of the people of that |)rovince. Neithtsr t\w govcr-nmcnt. nor tiio legislature of Ontario have ever asserted the slightest claim ujion them, or the slightest right to interfere in regard to them, nor has cither the government or the legislature; of Ontario in any way given countenance to this objection. It seems tluMi i|uite cleai', not only that tlu; province of Ontario has no claim to these estates, but that its legislature would have no power to pass a statute with regard to them, as such a statute would relate to a matter outside oi that province. The t^uebcc statute, thisrefore, seeming clearly to bo within tli(! powers of the legislature which passed it, it appeared to b(! the duty ersons had at the time of tlie union, or should afterwards acquire under authority of the legislature of tlis statutes on such a subject, even thougli they may conflict with the early statutes relating to religion or in any way connected with religion. On this point the cases already cited in this memoiandum, as to the power to alter or to repeal Imperial en- actments affecting a colony, seem to havfj force. The point wliich is here being ansv^ered implies that the early British legislation in relation to the Jesuits forms part of the constitution of the provinces. If that were so it might be answered, by the terms of the British North Ameiica Act, the legislature has power in each province, to alter the constitution of the province, but the theory involved in this objection depends on a very loose notion of the constitution. The contention which has been raised in this connection has been carried so far as to assert that it is not in the power of a provincial legislature to inak provisions inconsistent with the early statutes regarding the exercise of religion, which have never been repealed, although long fallen in desuetude in the United Kingdom. Tliis is not, however, the view which his Excellency's government entertains, nor is it the view held by the large majority of those who recorded their votes on the resolution in the House of Commons, on this subject, at last session. f»"~^The free exercise of tiie power to regulate the civil right of the ,.'3ople, and the full exercise of the ample powers of self-government conferred by the British North America Act, would be almost worthless if they were restricted witl.in the lines 51-52 viCToHiA, 1888. 419 e decision which ll(»\v tho statute II of tlio HiitiHh to make liiws in ciiilly iiff'nct any rts of perHons had >i tho legislature Lication. It can- ;)r the rii,'hts or tienoiiiiiiational trusts in respect have, from year ' been said as to argument there isf!(l against the tiie intention of (1 Society of thu 1887, is hereto without objec- ■ith which they ty's government iicial (/onmiittee ess of the grant ot, as it assumed istain this view, it is impossible Ills, or even to lis Excellency's been conferred, ally considering !ved by his Kx- e legislatures to 3 early statutes loint the cases il Imperial en- ih legislation in If that were so , the legislature but the theory bion. carried so far nak provisions on, which have angdom. This s, nor is it the e resolution in eople, and the i British North tiAn the lines been applied to the colonies. An Act to incorporate "HcH^iety of Jesus," chapter 38, of the province of Quebec. (AxaenUd to 18th Mai/, 1SS7. WhereastheUeve^nd .^hersof t|.H^^^ J^^;;;^'-; ;:;!:^i;s:s;p:;;:l=:l;dc:pi;..ikr u. other reugious connnumties of this ^'''"-rherefore Her Majesty, by and with tho a.lvice and consent of the legislature "*'^T'Se"''S:ci::;y'!ne^s" shall be a corporation couMu.od of the Reverend V ♦, .s Ifenri I u bn Adrien Turgeon, Leonard l.owire, (ieorge Kenn.-y, Arthur.J.mes, rmi;:f:dhul<..Lwh;:;^w:rnu.y\erea^^ the said society, .n accord- ancB with its rules, by-Uws and regulations. *'- l;:r;r:i:e;Kn::;j;;:=::::;;x«:u .« V ll iJ t nmv sell alienate, hypoth.^cate, give, lease, traiister, exchange or StK^; dl! lose :i, r,vLy tl'Ue wliatsoev^.'; provided always, that the annual revenue estabHshments elsewhere than in the archdiocese of Montreal and Ottawa and in the "^'"'T Tir'^rponZn shall be governed in accordance with its community rules, and 3hauU::;o3Lpassby-.aw^l..Kl3^^ ir Jf ;:r r^:£.rirSr ,'^t;!;^S^;k.; .u. dis;iissal of its members and, P" ,; ,, , ,.nnectpd w'th the purposes ot the corporation. ^""T''K e:,t;arreafo L corporation shall be in the city of Montreal. 4. i'"- '^"i P'^'^'^y,^ ;,"'. „,.„vince within the present limits of the archdiocese of Mon^'a^dSu^ ::;;i lih^Xcese of ThiJuivers may be selected later on by a '^'^Th'eirprtir may appoint officers, procurators or administrators and define **'''X™natures of the superior of the society in this province or of the procurator of its lief "establishment shall be sufficient for all legal pui-poses. 6. This Act shall come into force on the day of its sanction. Mr. Hugh GraUm to the Honourable the Secretary of State for Canada. RiDEAU Club, Ottawa, 10th June, 1889. Hon J A. Chapleau, Secretary of State, Dominion of Canada. ^,R I be- herewith to inclose a cheque for five thousand dollars and a Petition to his SelencyVe Governor in Council which I wiU thank you to bnng before the Council at the earliest opportunity. .r . i Yours truly, HUGH GRAHAM. I QUKUKO LEUI8LAT10N Pef.itivu of' .\fr. II mjlt (Iraham. Tetiti()n of Hugh (Jralmin, of the city of Montreal, JournaliHt, rpspect- fully l^']>^^^s(•llts : - 1st. That gmvo doubts hiivt* been expresHed and exist regarding tho logality and constitutionality of the Act^ of tlm logisl.ituro of the provinco of (^Ufbi'c, intituled n-spectivcly : " / n Act to int'orporatc tlio Sociifty of Jcsuh " (HO Vic. cap. l.'S), and "An Act reMpoctiiig till Ht'tllciut'tit of tii(> Jesuits' Estat*!H," (51 atid 52 V if., cup. l.'i). llnd. That it is Jesirabie that an opinion whould be pronounced upon these Acts by tho higlicst judicial tribuni! in the Dominion. ',\n\. That your ]>ctitioner, who is a citizen of tho Dominion of Canada and a tax payer of the province (if <,Juel)ec, acting on his own bciialf an Jesuits' Estates," which was assented lOo and went into force the twelfth day of July, lbC8. )iiriwiliMt, roHpwit- (lii- lt';,'(ility 1111(1 j»M<'l)('c, iiitilulctl i|>. l.'<), and "An •fip. l;t). >ii tlieisti Acts by 'iiiiiulii and a tax lialf of othiiiH, is \>y H(!c;ti(tn ;{7 of ula, cliiiptfi- l.'Jo) r Iti'ariti;; oi' con- II thfiioupon hear nor in Council," urt. iijion till' H.iid n lioing mado Ijy D, your petitioner ar tho necesMary r petitioner liere- <) tiin order of J. thousand dollars, en hundred and (iRAHAM. I Excellency the !6'9. July, 1889. CJraham, of the ourt of Canada, the Acts of ths t to Incorporate ittloiuent of the ur to report as of Jesus," was ) force on the sallowance, nor are, until nearly tes mentioned f tiiC' Josuita' f 1 61-52 VICTORIA, \SH8. 421 Tt may Ix) further obfetvod, nn. r<>)(ardN the Act of Incorporation alxtvo mentioned, (f)f il^''<7), the validity of whii'h liax lattily been calli'd in (|uesti(Mi, that that Act dillers only from tlu! Act incorporating^ the Jesuits, pussi^d hy the (.^ucb'jc lej;islature ci>{htc('n years ago, ^chapter 4(J of 1S71), to which no exception has ever i)eon taken, so far as the undersigned is aware, in that the Act of 1871 incurpnratt^s the .Icsults living within the city of Quebec, while the Act of lH87is coextcaisive with the provinciid Jurisdic- tion, and it diti'ers also in ccrtuii: .Mher matttu's of mere detail, which do not appear to concern the vididity of the (iniictmcnt in any way. Mr. (iraham informs your Kxcelloncy, that "grave doubts have been expressed and exist regarding the legality and (lonstitutionality " of tin! two Acts, first above inen- tioiKul, and that "it is desii'ablo that m. opinion should bo pronounc(Ml upr)n t\w Acts by the liighcst judicial ti'ibunal in the Dominion." lleai)pi«''iuttMiAuia«^^^iVr'- mm- 422 QUEBEC LEGISLATION decided to be invalid nnd unconstitutional there can be little doubt that the second Act will be nugatory, as the grant of money and land which the second Act authorizes is, by its terms, to be made to the corporation established by the " Incorporation Act." It does not appear that the petitioner has made any such application to the Attorney General of Quebec, but it nuiy be proper for the undersigned to call the attention of your Excellency to the explicit provision on this subject in the code of civil procedure of the province of Quebec. Articles 997 and 998 of that code, as amended, read as follows : — •' 997. " In the following cases ; 1. " Whenever any association or number of persons act as a corporation without being legally incorporated or recognized ; 2. "Whenever any corporation, public body or board violates any of the provisions of the Acts by which it is governed, or be"omes liable to a forfeiture of its rights, or does or omits acts, the doing nr omi.ssion of which amounts to a surrender of its corporate rights, i>rivi leges and franchises, or exercises any power, franchise or privilege which does nf>t belong to it, or is not conferred upon it by law ; " It is tiie duty of the Attorney General to prosecute, in Her Majesty's name, such violations oi the law, whenever he has good reason to believe that such facts can be established by proof in every case of public general interest ; but in any other case he is not bound to do so unless suftioient security is given to indemnify the government against all costs to be incurred uiion such pmcecJir.g ; and in Puch case the special information must mention the name of ti)e person who has solicited the Attorney Gen- eral to take such legal proceedings, and of the person who has become security for the costs." 998. " The summons for that purpose must be preceded by the presenting to the Superior Court, or to a judge, of a special information containing ccmclusions adapted to the nature of the contravention, and supported by an affidavit to tlie satisfaction of the court or judge and the writ of authorization of the court or judge. "The writ, as well as the writs of quo ivarranto mandamus and prohibition, must be in the same form as the ordinary writs of summons." • These articles seem to afford ample means of testing the validity of the Act of incorporation. The Society of Jesus, in the province of (Juebec, is undoubtedly acting as a corporation, as is shown in the preamble to the Act respecting the settlement of the Jesuits' Estates, and it is so acting "without being legally incorporated or recog- nized ", as mentioned in article 997, if the Act of incorporation is invalid. If the doubts which the petitioner refers to are sufficiently grave ami well founded to justify yi)ur Excellency's interference with sucli statutes, by insisting on their validity being made the subject of contention in the court, they are sufficiently grave and well founded to induce the Attorney General of Quebec to proceed under the en'^f^ments just cited. The petitione'' hiving, by the constitution, as a "citizen and ratepayer" the safe- guards and remedies which are above mentioned, it seems unnecessary, and far out of the usual course, that he should pxss all these remedies by and ask your Excellency to intervene, by a proceeding which is intended, as the undersigned will presently suggest, for widely different purposes. It may be added here that the questions which he desires to have raised and settled may be raised in the courts at any time, by any person who has c direct and su'ostan- tial interest affected by either statute, and that in any 1 tigation which may so occur, or in the proceedings which may be instituted by the Attorney General of Quebec at the instance of the petitioner, resort may, and almost inevitably will be, had to the "highest judicial tribunal in the Dominion," which is the court by which the petitioner alleges, "an opinion should be pronounced upon these Acts." / Jf the Attorney General of the province of Quebec, in view of the specific enact- ments of the Code of Civil Procedure before cited, does not deem it proper to interfere, and if no individual having a direct and substantial interest in the questions raised should think it proper to interfere, or should think the doubts which the petitioner refers "*X )t that the second Act nd Act authorizes is, ' Incorporation Act." tiou to the Attorney call the attention of ikIc of civil procedure a corporation without .•my of the provisions eiture of its rights, or render of its corporate ie or privilege which Majesty's name, such that such facts can be ill any other case he is nify the government uch case the special ed the Attorney Gen- come security for the the presenting to the ;i inclusions adapted to the satisfaction of the and prohibition, must validity of the Act of is undoubtedly acting ting tlie settlement of ^ncorpoi-ated or recog- s invalid. rave and well founded isting on their validity iently grave and well er the en''ft,ments just jJU lmmi ft, ..^^ i ratepayer " the safe- essary, and far out of -k your Excellency to will presently suggest, lave raised and settled '• direct and suostan- which may so occur, >neral of Quebec at the p, had to the "highest lie petitioner alleges, of the specific enact- it proper to interfere, the questions raised ill the petitioner refers 51-52 VICTORIA, 1888. 423 to sufficiently grave and well founded to justify legal proceedings being taken, it is diffi- cult to see on what grounds your Excellency should be called on to compel litigation on the result of which no i-ight of *^^he Dominion of Canada would dept-nd, and which could not even be serviceable as affording a guide t > any action on the part of your Excel- lency's government. The petitioner, however, considers evidently, that in addition to the rights and I'emedies which are above mentioned, he may properly call on your Excellency to exer- cise, in regard to these Acts, the power conferred on you b? the " Supreme and Exciie- cjuer Court Act"' by referring to the Supreme Court of Canada, for an opinion, the ques- tic:';« which have arisen respecting their validity. As to this the following considerations are respectfully submitted : The provision whih confers that power on your Excellency was undoubtedly in- tended to enai)le the Governor General to obtain an opinion from the Supreme Court of Canada in relation to some order which his government miglu be called on to make, or in relation to some action whicli his officers might be called on to adopt. For the guid- ance of your Excellency, or of your officers, the provision may be a valuable one, but, used as a means of sohing legal problems in which the government of Canada has no direct concern, however much they may interest or excite the public mind, as the peti- tioner .seems to propose, or used to compel an adjudication on private rights aad inter- escs, it would be perverted, the undersigned humbly submits, into an arbitrai-y and in- quisitorial power, anticipating and interfering with the ordinary course of justice. Used in that manner it would become in time a means of depriving the provincial courts 01 their functions to a considerabh^ extent, as every important and inlluential interest affected bj' legislation would seek the opinion of the Supreme Court of Canada by application to the Governor in Council to have such opinion oVitained, and the provin- cial courts would be, in a great degree, bound by the opinions so pronounced, however inadetpiately the parties concerned might have been represented. The rig'nts of parties concerneil would be practically concluded withcit their having had the opportunity which the laws of the respective provinces give them of submitting these rights volun- tarily for decision in the mode, and on the proof, which may seem best adapted to elicit a thorough investigation. If the parties interested did not take part in su(!h inquiries before the Supreme Court of Canada the e.r parte decisions on their rights would bo an unsatisfactory method of disposing o* the qr.estions involved, — if they did participate, under the compulsion of the pi'oceeding by which the government in sending the ques- tion to the court had actually acted as a plaintiff in calling them to the bar of the tri- bunal, the Supreme Court would, to that extent, be turned into a court of first instance instead of being, what Pai-liament declared it should be, a court of appeal. Those whose rights are in any way affected by legal questions should, unless some interest on the part of the government being involved, a different course is necessary, be permitted to raise and discuss such (juestions in the form, at the time, and before the tribunals of their own choice, without being hampered by an opinion certified by the highest tribunal on an ex parte argument, it may be, or, at any rate, without the presentation of facts and testimony which miy have an important influence on the decision which should be arrived at, and which are presented in the course of ordinary legal proceedings. An enactment similar to that contained in the Supreme and Exchequer Court Act, to which the petitioner refei-s, exists in EnL'land in relation t(, tho Privy Cnuncil, and enables Her Majesty's goveinment to ask : ■ Judicial Committee of the Privy Council to certify an opinion to Her Majesty on questions of law which may be rel'eried ;o that committee by Her Majesty. In no casg, that the undersigned has been able to fi id, has that power been used, excepting when some action on the part of Her Majesty's govern- ment or her officers required to be guided by judicial decision, and then very rarely. In no case does it seem to have been used at the instance, or on the application of the subject, whether possessing special interest in the questions raised, or having only an interest as one of the "citizens and taxpayers" of the countrj'. Of the vast number of colonial statutes which have been passed since that provision was enacted, scores have 27* '- t I i iis< i ni»n>t^,M«f,vA»>^«»» w^ ,..t'».,i\-. l\XV -■nvi'— - -.■ "tt-TMf. ■**»«■, tarti ••'•rr».»U-«piftmw*^stion was undetermined. A similar reference was made, under the " Railway Act," not long ago by the Railwaj' Committee of your Excellency's Privy Council, in order that the committee niigiit obtain from the court the advice or instruction of that authority as to the order which they should make, in a matter affecting very important public interests. These references were theiefoi'e in the line of the references made by Her Majesty's government, and were in relation to proceedings which the government of Canada or its members or officers were called on to take. With regard to the Act incorporating the Jesuits in the province of Quebec, and with regard to the Act "Kespecting the settlement of the Jesuits' Estates," no such reasons exist for such a reference. Your Excellency has no action to take in respect to the statutes on which advice can be required. The Act of incorporation was, as before remarked, left to its operation Ion.' ago, without a request being made for its disallow- ance. No power now remains in your Excellency to disallow it. The Act respecting the settlement of the Jesuits' Estates was assented to by the Lieutenant-Governor of Quebec on the twelfth day of July, 1888, was transmitted to the Secretary of State of Canada on the eighth day of August, 1888, and on the nineteenth day of January, 1889, the Lieutenant-Governor of Quebec was notified that it would be left to its operation. No doubt existed then, or exists now, on the part of your Excellency's advisers, that the enactment is within the power of the legislature of Quebec. After the decision of your Excellency in Council that the Act should be left to its operation, and after the notification of that fact to the Lieutenant-Governor of Quebec, it may be doubted whether even the power of disallowance remains, but it seems quite clear that it would be contrary to all constitutional usages that an Act, in respect of which that signification has been formally made, should afterwards be disallowed. The inconveni- ence of such a practice would be extreme. No provincial statute even for the incorpo- ration of a company — for the building of a railway — for effecting a loan for the transfer of property, or indeed for any purpose, could be safely acted upon until the expiration of a year from its transmission to the Secretarj' of State for Canada, even though declared by the Governor General in Council to be unobjectionable, lest, within a year, on some new objection being started, it might be disallowed. Your Excellency is doubtless aware, that, of the hundreds of Acts which have been passed every year by the legislatures in Canada, there are many statutes of doubtful validity, and there have been some which have been declared, by the advisers of the Governor General, from time to time, to be beyond the powers of the legislatures which passed them. Most of th.^.se h;ive been left to their operation and their validity has been left to be tested by those interested in doing so. Indeed this course has nearly always been followed, in the case of Acts of doubtful constitutionality, excepting where some interference with the powers of the federal government would result, or where serious confusion or public injury was likely to ensue from such a course. If your Excellency were to be called upon to refer to the Supreme Court the question as to the validity of every enactment in respect of which " grave doubts have been expressed and exists," on the part of persons, within the province concerned, or outside of it a new .^,-^ 426 QUEBEC LEGISLATION U) system, not in force in any other country, one which is of very doubtful utility, cor- sidering the facilities which exist in every part of the country for raising and deciding legal questions hy the ordinary process of law, and one which may be very burdensome, harassing and expensive for the provincial governments and private persons, will have been established, under an enactment not intended to be so used. The Acts referred to in the petition relate only to the province of Quebec. They do not conflict in any degree >vith the powers of the Parliament of Cansida, or with the rights and powers of your Excellency. They do not concern in any way your Excellency's officers, and they do not affect the revenue or property of Canada or any interest of the Dominion. They should, therefore, in the opinion of the undersigned, be left to the reponsibility of those whom the constitution has entrusted with the power to pass enactments relat- ing to " property and civil rights," relating to the public property and money of the province, relating to the " incorporation of companies with provincial objects," relating to "education," relating to matters of " a merely local or private nature in the province," and relating to the other matters which such enactments directly affect. There are other reasons, although perhaps of less importance, why, in the opinion of the undersigned, the petition cannot be favourably entertained. Vv ithout intimating, as has already been ohserveil, that he has any interest beyond that of any other citizen and taxpayer, and without stating that he has even any doubts as to the validity of the legislation which he proposes should be tested, with the plain declarations of your Excellency's advisers that the Acts referred to are within the powers of the legislature, and with the declaration, which will be hereafter referred to more particularly, of the House of Commons of Canada, that interference with these Acts, on the part of your Excellency was not to be advised, the petitioner, in making the present request, pro- poses a course which would result in the government of the province of Quebec, or the persons in w^ose favour these Acts were passed, being put to expense in defending the validity of these enactn,i.ats in the Supreme Court of Canada and, perhaps, ultimately on appeal, before the Judicial Committee of the Privy Council, unless they would submit to the decision being ex parte, in which case it would have very little weight as a judicial determination. The petitioner has not, in the matter of costs, subjected himself to the s;ime obliga- tions as an applicant would incur in the somewhat anaiagous case in which a private person seeks to use the name of the Crown, or of the Attorney General, in a civil pi-oceed- ing in a court of justice. He declares in his petition that he is willing to bear " the necessary costs of the government," and, "as an evidence of such willingness," he Iwis deposited his certified cheque on the Bank of Montreal, payable to ttie order of the Deputy Minister of Finance for the sum of five thousand dollars. This deposit is there- fore made for the purpose of securing the " necessary costs of the government " of Canada, should a reference be made. So far as now appears, the case would seem to be one in which the government of Canada would be justified in appearing as a party to the reference or in incurring any costs in respect tliereto, the Dominion government not having any immediate or direct interest in the controversy. It is not the practice of Her Majesty's government to interfere on a reference for advice, or to retain counsel to argue that the advice should be given one way or the other. Indeed, to do so would appear unseemly, and inconsistent with the idea of seeking advice and guidance merely, which is the theory on which such applications are made. The ofl'er to pay the costs of the government, as distinguished from the c.sts of the only parties interested in the validity of th'? legislation in question, is not "herefore, a very onerous one, nor would it afford any security to those who might deem it to be their duty to support or oppose the allegation that the Acts in question were within the competency of the legislature of Quebec. As your Excellency's government would be under no expense, even if the reference should be made, and would not in any event feel justified in availing itself of private generosity to enable it to carry on public affairs, the cheque inclosed by the petitioner may properly be returned to him. loubtful utility, cor- laisinj,' and deciding je very burdensome, te persons, will have The Acts referred to not conflict in any rights and powers of id they do not affect t to the reponsibility iSS enactments relat- or and money of the ial objects," relating ire in the province," feet. why, in the opinion Without intimating, of any other citizen o the validity of the eclarations of your rs of the legislature, particularly, of the on the part of your >resent request, pro- ce of Quebec, or the use in defending the perliaps, ultimately is they would submit ' little weight as a f to the sjime obliga- s in which a private al, in a civil pi-oceed- willing to bear " the willingness," he has to the order of the ?his deposit is there- le government " of ,se would seem to be jaring as a party to lion government not not the practice of to retain counsel to leed, to do so would nd guidance merely, r to pay the costs of es interested in the js one, nor would it to support or oppose y of the egislature ven if the reference ing itself of private led by the petitioner The undersi<^ned would remind your Excellency that, as regards the Act for the .flinrofth"josurtJ instates, a r^^^^^ favour of disallowing the same was IseTd to t e Ho^e of Comm;ns of Canada during the last session of ^-^^^^ pusentea to ine r j. ^ negatived by an ovorwhelnnng majority. The will /i.^ tl^ rSof ^rundersignod^ consistent with the deference which should phed with. jj^Q g p THOMPSON, , , ' . Minister oj Justice. Petition of J. R. Dongall and others to His Excellency the Governor General. To His Excellency the Governor General in Council : The petition of the undersigned loyal subjects of Her Majesty, residing in the province of Quebec, :, Humbli/ Represents : , , ^ To His Excellency the Governor General in Council : " The appeal and petition of the undersigned, loyal subjects «* H«.'-,^I-J^«^J{;' ^^^^ ^ in the proC^ce of Quebec, made pursuant to section 93 of tue British .North America ^"'' " Thai^theTp'Jl'lants, your petitioners, are ratepayers and electoi-s residing in said were entitled to a share and portion. ^ t^ \ ^ rA ^vo Vin oar, 13 _.-^":,JiH»iSJl.'aiJi;- ': 428 QUEBEC LEGISLATION I. hundred thousand dollars appropriated by the said Act, 51-52 Vic, cap. 13, and said Act appropriating that sum, and also the Laprairie Common, and granting $00,000 to the Protestant Committee of the Council of Public Instruction, is prejudicial to the rights and interests of the Protestant minority of said province. " That the submission of the said alleged settlement of the Jesuits' Estates to the Pope of Rome, as set forth in the preamble of said Act .^)l-52 Vic, cap. 1.3, is unconsti- tutional as being contrary to the provisions of an Act passed in the first year of the reign of (Jueen Elizabeth, and declared by the Imperial Act 14 George III., cup. 83, to have force and effect in this pi'ovince, and said unconstitutional Act is prejudicial to the interests of the Protestant minority of this province. " Wherefore, your petitioners hereby humbly a{)peal to your Excellency in Council, against said Act of the legislature of the province of Quebec, 51-52 Vic, cap. 13, and pray that your Excellency in Council will be pleased to disallow said Act and annul and set aside the same, and your petitioners, as in duty bound will ever pray." That althougli several months have elapsed since the presentation of said petition, no answer hath been had to the prayer thereof, nor have your petitioners been afforded any opportunity of being heard befoi-e your Excellency in Council, either personally or by counsel learned in the law. That your present petitioners are advised by counsel learned in the law, that they are entitled to be heard either personally or by counsel in support of their said petition and appeal. And therefore your petitioners pray that your Excellency in Council may be pleased to afFcrd your petitioners an opportunity of being heard upon the said appeal and petition at such time and place as your Excellency may appoint ; and further humbly pray that you " Excellency may be graciously pleased to fix an early date for said hear- ing, lest the delay allowed for disallowing said Act should pass before they have had an opportunity of being heard, and your petitioners, as in duty bound, will ever pray." Montreal, July, 1889. J. R. DOUGALL, 294 Drummond St., Montreal. J. A. BAZTN, 469 St. Urbain " " HENRY IV^ORTON, 392 Mountain " JAMES BEALL, 242 St. James and nine others. Report of ilm Honourable the Minister of Justice, approve'l by His Excellency Governor General in Council on the 20th September, 1S89. the Department op Justice, Ottawa, 3rd August, 1889. To His Excellency the Governor General in Council : The undersigned, to whom has been referred a petition from J. R, McDougall and others, dated July, 1889, praying that your Excellency in Council might be pleased to afford the petitioners an opportunity of being heard upon the appeal in petition referred to in the said petition, and should fix a day therefor, has the honour to report as follows : The petition in question states that on or about the 26th March last, the petitioners and others, forming a part of the Protestant minority of the province of Quebec, did " present a petition in appeal under section 93, of the British North America Act, to your Excellency, praying that your Excellency would be pleased to disallow the Act respecting the settlement of the Jesuit Estates, passed by the legislature of the province of Quebec, in the year 1888, and so annul and sot aside the same." 51-52 VICTORIA, 1888. 429 , cap. 13, and said ■antins l^GO.OOO to prejudicial to the its' Estates to the .p. 13, is unconsti- tirst year of the ;e III., cap. 83, to prejudicial to the ellency in Council, Vic, cap. 13, and d Act and annul er pray." n of said petition, iiers been afforded ther personally or the law, that they their said petition Council may be he said appeal and d further humbly late for said hear- they have had an ill ever pray." t., Montreal. [I K is Excellency tlie . August, 1889. , McDougall and ;ht be pleased to 1 petition referred iiour to report as st, the petitioners ice of Quebec, did America Act, to disallow the Act 3gislature of the ame." The undersigned has the honour to observe that at the time of receipt of the petition referred to as having been presented on or about the 2Gth March last, all the questions relating to the Act referred to were discussed and voted on in the House of Commons. Subsequently a number of the petitioners re(iuested permission to approach your Excellency in person to ask for the disallowance of the Act, which permission your Excellency was i)leased to grant. The request set out in the petition of March (lid not ask for a hearing before your Excellency in Council, and did not set out anything that would appear to'bring the complaint of the petitioners within the terms of an appeal within the 93rd section of "The British North America Act," consequently the petition was treated merely as a request for disallowance. Inasmuch, however, as the petition now being reported on expresses a desire that the petitioners be heard, and as they may be able to show, if so heard, that there is ground for taking action on the part of your Excellency, under the 93rd section of "The British North America Act," irrespective of disallowance, the undersigned had the honour to recommend, soon after the receipt of the petition of July last, that a day be tixed for the purpose of such hearing as early as a full attendance of the members of the Committee of Her Majesty's Privy Council for Canada could be had, and that on such day the petitioners be heard by the usual committee of council. A day for that purpose could not conveniently be named before the present time, owing to the absence of some members of council. The undersigned has the honour now finally to recommend that, should your Excellency see fit to name a day for the purpose of hearing the appeal in question by the committee of council aforesaid, the petitioners be so informed. Respectfully submitted, HECTOR L. LANGEVIN, For the Minister of Justice. 430 QUEBEC LEGISLATION QUEBEC, 52nd VICTORIA, 1889. 3uD Session — Gtii Legislature. Report of the Hon. the Minuter of Justice, approved by His'E.rceUency the Governor General in Council on the 28th June, 1890. Department of Justice, Ottawa, 31st May, 1890. To Ills E.rcellency the Governor General in Council, : The undersigned respectfully recommends that the following Acts passed by the legislature of the province of Quebec in the session of 1889, tiie chapters of which are given in the annexed schedule be left to their operation. JNO. S. D. THOMPSON, Minister of Justice. Schedule. Chapters 1 to 11, 13 to 29, 31 to 40, 42 to 75, 78, 81 to 88, 94 to 118. Report of the Hon. the Minister of Justice, approved by His Excellency the Governor General in Council on the 1st July, 1889. Department op Justice, Ottawa, 21st June, 1889. To His Excellency the Governor General in Council. The undersigned has the honour to report upon the Act of the legislature of the province of QueVjec, assented to on the 21st of March 1889, intituled "An Act to amend the law respecting District Magistrates, (Chapter 30) a certified copy of which Act was received by tlie Secretary of State on the 2nd April, 1889. By chapter 20 of the Acts of the province of Quebec for the year 1888, intituled " An Act to amend the law respecting District Magistrates," the legislature of Quebec purported, among other things, to give the Lieutenant-Governor in council power to abolish the circuit court in the district of Montreal. This court had been presided over by the judges of the superior court, who are judges appointed by the Governor General, under the terms of the "The British North America Act." The statute referred to also purported to empower the Lieutenant- Governor in council to establish, instead of the circuit court, a court of record, under the name of " the district magistrates court " of Montreal. It was further provided that such "district magistrates court" should be composed of two justices to be called "district magistrates of Montreal," to be appointed by the Lieutenant-Governor in council, the salary of each magistrate to be |3,000. per annum, and that the powers and duties of the judges of the superior court, should be transferred to the "district magistrates," so to be appointed. On the 3rd September, 1888, the undersigned reported to your Excellency that in his opinion the principal provisions of that Act were clearly in excess of the powers conferred oh provincial legislatures by the British North America Act, and were inva- sions of the powers conferred exclusively on the Parliament of Canada and on the Governor General, and he, therefore, recommended that the Act be disallowed, and, by an Order in Council, dated 7th September, 1888, the same was disallowed accordingly. 52 VICTORIA, 1889. 431 cy the Governor it Jlay, 1890. ts passed by the the chapters of 'SON, ter of Justice. a 118. cy the Govurnor it June, 1889. legislature of the led "An Act to ed copy of which ar 1888, intituled islature of Quebec council power to )r court, who are rhe British North »r the Lieutenant- i of record, under ould be composed appointed by the 3,000. per annum, •uld be transferred Excellency that in ::ess of the powers ct, and were inva- nada amd on the llowed, and, by an d accordingly. .»• On the 'ind day of October following, the Lioutenant-Ciovcrnor of tiio province <»f Quebec transmitted to your Kxcellency's govcrnniciit an order of his I'^xecutive (Council, discussing and protesting against the disallowance of said Act, and that minute of council having been referred to the undersigned, he reported at lengtii thereon to your Excellency. The report was approved on the 22nd day of January last, and was transmitted to his Honour the Lieutenant-Oovernor of Quebec. That report contains a statement of the reasons which, in the opinion of the undersigned, not only jiistitied, but made neces- sary, the exercise of the power of disallowance in the instunee refei-red to. The Act, wiiich is the subject of this report, is substantially a ro-cnactment of the principal provisions of the disallowed Act. It prf)vide8 : 25t4«. "The Lieutenant-Governor in Council nuiy, by proclamation, establish in the city of Montreal, a magistrate's court uuder the name of 'Magistrates' court of the district of .Montreal.'" 2544t. "iSuch court may be composed of twO district magistrates, chosen from among the members of the bar of the province, of ten years' practice, and ap[)ointed undei- the great seal of the province, by the Lieutenant Governor in Council." 2.") t4c. " No such district magistrate, while in office, can be a Senator or Member of the House of Connnons, the Executive Council, I^egislative Council or Legislative Assembly of the province, nor fill any other oHice under the Crown," 2544rf. " Such magistrates shall hold ofHce during good behaviour, and cannot be removed from office except upon the joint address to the legislative council and legislative assembly." 254413. " The salary of each of such magistrates shall be three thousand dollars per annum, payable out of the consolidated fund." 2544/. " One of these magistrates shall preside over the court alone, but they mfiy both sit at the same time in diflerent rooms, and exercise all the powers of the court." The court is given ultimate jurisdiction in all suits wherein the amount demanded is less than one huntlred ilollars (suV)ject to certain exceptions) in all suits for school taxes or school fees, and all suits concerning assessments for the building or repairing of churches, parsonages and chui'chyards, whatever may be the amount of such suits. Also, in all suits for the recovery of rates, taxes, assessments, penalties, damages or sums of money whatever, due or payable in virtue of the Municij)al Code, ifcc, or un(l(M' the laws respecting abuses prejudicial to agriculture, and in all suits for the recovery of penalties incurred, and of sums due to the treasury under the license law. The Act fuither provides that all proceedings had and commenced before the court established by the Act 51-52 Vic. cap. 20, (the disallowed Act) may be continued " before the court established l)y this Act," which court is authorized to terminate such proceedings as if they h.ad never been interrupted, and as if they had commenced before the court established by this Act. The judgments rendered by the court establisiied by the said Act, 51-52 Vic. cap. 20, are authorized to be executed by the court established by this Act. By a comparison of the two Acts it will be found that their provisions are sub- stantially the same, excepting that the jurisdiction of the Circuit Court has not been abolished. Nearly all the objections which the undersigned pointed out in reference to the former Act are equally applicable to the latter, inasnmch as it purports to confer (m his Honour the Lieutenant-Governor authority to appoint judges to exercise in the new court established, the large powers which the judges of the Superior Court held and exercised in relation to the circuit court before the union and since, and it pur[)orts to regulate the qualifications, salaries and tenure of office of such newly created judges. The Act now under review also repeats the peculiar provision to which attention was directed in the report of the undersigned, approved on the 22nd day of January last, in which it is declared that " no such district magistrate, while in office shall be a Senator or Member of the House of Commons, &c." The fact that a provincial legislature cannot regulate the eligibility for member- ship of the Senate or House of Commons seemed so clear, that the undersigned ■ritiah North America Act of X^f)!, to form one Dominion with four provinces, and by section 9, the executive government and author- ity is declared to contitiue and to be vested in the C^uecn. As the j)ower of pardoning is, by the law of England, and her settlements, part of the royal prerogativ*; the power of pardoning is, at and after the passing of the Hritisli North America Act, to be found in tlm C^ii t^n, or in those to whom the Queen deputes it, except so far as the Queen's lelegation of this power is controlled by statute. It is true that, before the passing of this Act, the powerof pardoning was vested in the Lieutcnant-Ciovernorsof the several provinces, but that power was '.vithdrawn, not oidy by the revocation of tlio letters patent by which it was conferred, but also as 1 am advised, by the (^ucenV Act in assenting to the British N(>rth America Act, by which Act the authorities gi\en to the several pro\ incial Lieutenant ( l(»vernor8 were rc^ iked, except so far as is other- wise therein jn'ovided. Among the revoked powers, I () power of pardoning would be one, unless especially excepted. "Now the Lieutenant-Ciovernors of the provinces, urwler the new system, aro to be appointed, not directly by the Queen, but by tli*- Governor General in C.'ouncil, and the new Lieutenant-Governors would not take the power of pardoning vlrfiite o/ficii, unless it were so given them by the Act. " The whole constitution of the prov iiiccs was changed by the Act of Union and the delegated powers of g(»vcrnment necessarily ceased. " No such power is gi\en or retained to or for them in the part of tlu! Act which is headed "Provincial Constitutions," nor can it be proi)erly said that the prerogative of mercy is part of the administration of justice ; — still less can it be argued that the Lieutenant-(Jovernor possesses the power of pardon because the administration of justice in the provinces is reserved to the provincial legislature." I have, (to., GRANVILLE. For the purpose of testing the legality of this legislation a suit was instituted by the undersigned in the High Court of Justice of the province f)f Unturio which will probably be adjudicated upon at an early day.* Should the ultimate lecision establish that the Ontario Statute, above referred to, is inoperative, the one now under discus- sion, as well as the former, will have no effect. The undersigned therein )re, recommends that the power of disallowance be not exercised in respect to it. Cap. 18. — An Act to amend the lawVespecting fishing in this province. In recommending that this Act, which is only an amendment to the regulations upon the subject of fishing, contained in the Revised Statutes of the province of Quebec, be left to its < iperation, the underaigned would again express his doubts as to the right of a provincial legislature to pass any enactment dealing with the fisheries whether in the inland waters of Canada or elsewhere. The original Act, however, having been left to its operation, no public interest would be subserved by dealing otherwise with this Act. Cap. 30. — An Act to amend the law respecting district magistrates. This Act has already been reported upon. Cap. 41. — An Act to amenfl the laws respecting land surveyors and the survey of lands. Sections 11 and 12 are substituted sections for articles 4123 and 4127 of the Revised Statutes of the province of Quebec, and such sections, as well as the articles repealed by them, prescribe conditions necessary to be fulfilled before any one can act as a land surveyor in the province of Quebec, and they attach penalties to any one act- ing as a land surveyor, who has not conformed to such conditions. So far * See Atty. Genl. of Canada vs. Atty. Gonl. of Ontorio, 20 Ont., Repts. 222, 19 Ont., App. Repts 31, 23 Sup. Ct. Repts (Can.) 468. ;.*_;.M* 434 QOEDEO LEOIBLATION aa these ])rovi«ions urn inconsiHtent with those clausoH of the Dominion Lands Act j)rovi(liiiji{ for the iv|i|)i)iiitni(Mit and <|uiilifi(!iiti(inH of I)orniiiioii Land Surveyors they are ultra rinm of a proviiunal It'^ixiature. They niaVi liowover, he fonstcued as appli- cable only to persons surveying,' lands, otlier than Dominion Crown lands in the pro- vince of (i)uel)('i', and as not, tminj; intt'tided to ]ir(!verit l>i'tniniitn Laml Surveyors from oxercisin;^ their functions in relation to l>ontinion lands in that province. In that view, and considerinji^ also that the Revised Statutes of (.Quebec have been left to their operation, it is not, in the view of the undersigned, desirabh? that this Act should bo disallowed and he reconnnends accordiiij,dy. Cap. 70. An Aet to incorporate the Mel- Air Jockey Club. This is an Act incorporating,' the p(^rsons therein named, under tlie name of The Bel-Air .fockey {,'lul), for the purpose of impn»vinii the breed of horses and cattle in the province of (Quebec, of aci]uiring and nuiintaining grountis and premises for the exhibition and trial of horses urd cattle, and oi liolding contcists, race meetings and other exhibi- tions of horses and cattle in \\w province of Quebec. Sections 10 and 11 are as follows : "Any person who shall wilfully des(r-)y the jiroperty of exhibitors, or of any lessee, or of the corporation, or who shall hiiifler or obstruct the oHicers or police in the perfornianct^ of theii- duties, or who slinll wrongfully oi" maliciously gain admission to the grounds contrary to the rules of the cor]>or-ation, or who shall be guilty of any dis- ordei'ly conduct in or aiound the said grounds, or who shall flisobey or violate such rules aiui regulations as may have been lawfully made by the corporation under this Act, shall be subject and liable to a lino of not less than one, or more than ten dollars, or impr'isonment not exceeding thirty ilays, at the discretion of the court, b(!foi'e which the offender may l)e tried." " All fines and penalties nuiy be recovered, and prosecutions for the same may be brought before two justices of the peace in the judicial district in which the said grounils of the said Jockey Club an; situated, or before any magistrate, judge of the sessions, or other otlicei' having the powers of two justices of the peace." " All fines imposed and collected under this Act shall be \nnd to the Provincial Treasurer." This legislation in the view of the undersigned, unquestionably relates to the criminal law. The first offence specified, namely, the wilful destruction of prof)(>rty, upon or around the grounds of the corporation would be a criminal offence by chapter I()H of the Hevised Statutes of Canada, (see sections 43, 44 and 45) and the obstruction of police in the performance of their duties in a misdemeanour under caj). IG'J of the Revised Statutes of Canada, (see sec. 34). It is clear that the fines imposed for oiFences of this character should be paid, not to the Provincial Treasurer, but to the Receiver General of Canada, under the provisions of chapter 180 of the Revised Statutes of Canada. The undersigned is of opinion that the sections in question may have been allowed to pass inildvertently, and he recommends that the attention of the government of the province of Quebec be called thereto, with a view of the repeal thereof at the next session f)f the legislature. The following Acts, in sections mentioned, contain provisions in regard to promissory notes and bills of exchange, which may be invalid. The undersigned, however, recom- mends that such Acts be left to their operation, in view of the provisions made by the Act of the Parliament of Canada passed in the session of 1890, relating to bills of ex- change and promissory not(>s, which permit notes, and bills to be made by corporations under certain restrictions. Chapter 77. An Act to incorporate the St. Lawrence Improvement Company. Section 17. Chapter 89. An Act to incorporate " The Lotbiniere and Megantic Railway Com- pany." Chapter 90. An Act to incorporate the Lake St. Francis Railway and Navigation Company. 52 VICTOHIA, 1889. 435 tiion Lands Act SurveyorH they istj-iied lis (ijij)li- aiids ill tin- pri)- Survcyoi'H from iviiiof. Ill that e«n h'ft to tlmir s Act Hh(Mil(i ho lie name of The lul enttlo in the )!' the cxhihition lid otliir exliibi- tors, or of any or poiioo in the liii a(hiiissi(iii to uilty of iiny dis- ■ or viohitc such itioii under this han ten dolhirs, •t, before wiiicli »e same may bo which the said e, jufige of the I tlie Provincial relates to the jn of property, Knee by cliapter tlie obstruction caji. IGl' of the dd be paid, not !r the provisions ve been allowed ernment of the [•eof at the next rd to promissory lowever, recom- is made by the g to bills of ex- by corporations Chapter 91. An Act to incorporate " The Peninsula and (laspo Sliort Lino llaiiway '""chlmter 92 An Act to incorporate "The Ivvsterii llaiiway Company.'' Chapter 9:». An Act to incorporate " The Mal.ine I {ail way Company. Chapt(!r 79. An Act to revise and consolidate the charter oi the city (.t Montreal, and the sev.u-al Acts amending the same. .■,.., , t I :.. This -Vet is a revision and consolidati(m of all provincial A(;ts heivlotore pass..,l in reference 'to the city of Montreal, many ..f its provisions being taken trom legislation. passed before the division of the legislative power between t^.e te.leial a.i.l pr..v,„cia. Lislatures, made I ■, the Uri.ish North America Act. As to those ei.actnu.n ,s, relating to .he city, pas.se make by-laws, also, in some instances, include matters over which tho Parliament of Canada'has control and has adopted legislation. • . . « u The provisions in relati.m to the Recorder's Court and to the appointment of the recorder and his ,,ualitications, may also be open t,. some .juest.on, n. view of the federal authority with respect to the appointment ot judges and their .lualdH.it.ons The provisions of the statute in respect to Hn^s, and remission of fines, may like- wise be doubted, but as most of this legislation is substantially a re-enactment ot pre- confederation enactments, and as all the .,uestions involve,! can be cmveniently raised in the courts by those having an interest thernn, the undersigned is ot .,pini..n that tho Act may properlv be left to its operation, and he recommends accorilmgly. Cap. 8U. An Act to incorporate the city of Sorel. . ., , , f ,i „ The observations which the undersigned has made in reference to the charter ot the citvof Montreal are e.iually applicable to this Act. .,.„,• ,.„„<„, Attention must also be calle.l to the sections which authori/,e the laying out, open- ing up and keeping in order of ice roads, crossing the St Lawrence to the north shore, and the river llichelieu to the west bank, also to those which relate to the taking ot ice from those rivers, and to the establishment of ferries on those rivers. These provi.sions nay be open to objection as an interference with the rights ot Parliament ot Ciuiada to legfslate in respect to navigable rivers, and with the proprietory rights ot the Dominion of^Canada in relation to those rivers. , , , n. ^ -^ r tUo The undersigned recommends that tliis Act bo also left to its operation. The questions involved may be raised in .lue course by those concerned or if they be of suth- dent importance, be raised by your Excellency's government tor the purpose of having the rights of the federal and provincial authorities respectively determined. llespectfully submitted. JNO. S. D. THOMPSON, Minister of Justice. lent Company. ! Railway Com- ind Navigation 436 QUEBEC LEGISLATION .^ QUEBEC, 53 VICTORIA, 1890. 4t'i Session, 6tii Legislatuee. '' Government House, Quebec, 30th April, 1890. The Liert^,tant-Gover7u>r of Quebec to the Secretary of State. Sir, — T have tlie honour to report to his Excellency the Governor General in Council that I have reserved, for the signification of his Excellency's pleasure, a bill entitled : " An Act to legaHze the marriage and contract of marriage of Aime Bourassa and Dame Purissima Robert." Tiis is a case of a widow marrying h^. deceased husband's brother. The bill con- tains tv o clauses — the first one declaring the civil legality of the marriage, and the second one declaring the marriage settlements Ijgal. My reason for reserving this bill was that I vonridered the first clause an infringe- ment upon the legislative power exclusively assigned to the Dominion Parliament by section 91, subsection 2fi — "marriage and divorce" of the British North America Act, 1867. T will feci much obliged by bein? a,cquainted with the action of the honourable the Privy Council in this matter for my future guidance. ':'■-"■': A. R. ANGER.S, Lieutenant-Governor. Report of the ITononrahle the Minister of Justice approved by His Excellency tlnj Governor General in Council on the 31st Api'il, 1891. Department of Justice, Ottawa, 14th March, 1891. To His Excellency the Governor General in Council : The undersigned having considered the Acts passed by the legislature of the pro- vince of Quebec in the session held in the year 1890 (.laaaary- April), the chapters of which are given in tliR annexed schedule, respectfully recommends that they be left to their operation, and that the Lieutenivnt-Governor of that province be informed thereof. (Received by the Secretary of State, Ihid May, 1890.) Respectfully submitted. JNO. 3. D. THOMPSON, Minister of Justice. s Schedule. f f Chapters 1 to 69, 80 to 124. '.~,f^:. 53 VICTORIA, 1890. 437 30thi\nril, 1890. State. lor General in Counoil isure, a bill entitled : Qtj Bourassa and Dame rother. The bill con- he marriage, and the [■st clause an infringe- ninion Parliament; by itish North America of the honourable the GERS, Uenant-Governor. ' Ilia Excellency t/nj 1891. 4th March, 1891. ?gislfi.ture of the pro- ^pril), the chapters of i that they be left to 3 be informed thereof. lOMPSON, inisier of Justice. Report of the 11 -otirable the Minister of Justice approved by His Excellency the Governor General in Council on 21st April, 1891. Department of Justice, Ottawa, March 2l8t, 1891. To His Excellency he Governor General in Council: The undersigned has the honour to report upon the following Acts pa«sed by the legislature of the province of Quebec in the session held in the year 1890 (January and A aril), which were received by the Honourable the Secretary of .State on the 2nd May, ;890, as follows :— „ „ ^ i ^ tvt <• i Chapter 70. An Act to incorporate the city of St. Cunegonde, of Montreal. Chapter 71. .\n Act to consolidate the Acts respecting the corporation of the town of St. Johns. , . , <■ t l- t i.\,^ Chapter 72. An Act to amend and consolidate the Acts of Incorporation ot the town of Terrebonne. Chapter 73. An Act to incorpuv-ui 3 the town of Acton. Chapter 74. An Act to incorponte the town of Buckingham. Chapter 75. An Act to incorporate the town of Cote St. Louis. Chapter 7G. An Act to incorporate the town of Cote St. Antoine. Chapter 77. An Act to incorporate the town of Bedford. Chapter 78. An Act to incorporate the town of Victoriaville, and to erect the municipality of the parish of St. Victuire d'Arthabasca , , ,, Chapter 79. An Act to incorporate the town of Magog and for the better manage- ment of education within its limits. i n • *• i •„ These Acts are all of the same purport, and consolidate and amend all existing legis- lation, having particular reference to the corporations therein referred to, and m recom- mendin.' that they be left to their operation the undersigned, notwithstanding, teels it necessary to question the large powers of enacting by-laws, vested in the council of these corporations, by the legislature. „ j i. i- * i a „(-= The undersi-ned has in previous reports frequently called attention to such Acts of incorporation, infringing more or less upon the subjects exclusively assigned to the Federal Parliament. All of these Acts contain provisions which are objectionable in tliat regard, but the Acts may properly be left to their operation, leaving all such mat- ters to be determined by legal tribunals. Respectfully submitted. JNO. S. D. THOMPSON, Minister of Justice. 438 QUEBEC LEGISLATION QUEBEC, 54th VICl^ORIA, 1890. (1st Session, 7th Legislatuke.) The Lieutenant-Governor of Quebec to the Secretary of State. Government House, Queheo, 13th January, 1891. giR^ — I have the honour to report to iiis Excellency the Governor General in Council, that I have again reserved, this session, for the signification of his Excellency's pleasure, a hill entitled : " An Act to render the marriage contracted between Frederick Pratt and Marie- Albina Thibault, civilly valid." Again this is a case of a widow marrying her deceased husband's brother. My reasons for reserving this bill, in the absence of any signiiication of his Excellency's pleasure about the bill of the same nature, reserved last session, are not only taken on the same grounds, viz. : an infringement upon the legislative power ex- clusively assi^cned to the Dominion Parliament by section 91, sub.section 26 (marriage and divorce) of the B. N. A. Act 1867, bur, also on the ground that this marriage was contracted in the United States, State of New York. Accepting this bill miglit be taken as a precedent for the legislature of Quebec to validate niai-riages contracted all over tlie world, in violation of our and British laws. I have, etc., A. R. ANGERS, ^ Lieutenant-Governor. Repttrt of >he Hon. th^ Minister of Justice, approved by His Excellency the Governor Gmieral in Counci/ on the 21nt September, xSQl. r^F-PARTMENT OF JUSTICE, OTTAWA, 24th March, 1891. • To His Excellency the Governor General in Council. The under! JKnt'd lias had referred to him a petition from the Baie des Chaleurs Railway Company, praying tiiat your Excellency might be pleased to disallow an Act pMMd by the legislature of Quel)ec at its last session intituled " An Act to amend the law respecting railways in the province." The undersigned has also had the said Act referred to him for report. The portion of the said Act which is called in question by the petition is in the fol- Ujiwing terms : '5183. A. It shall be lawful for the Lieutenant-Governor in Council at any time, upon the report of the liailway Committee of the Executive '"Council, to cancel the charter of any railway company incorporated under the laws of this province, when the said c impany has not complied with the terms of its charter as to the commencement and completion of its works within the prescribed time, or when the said company has become inst)lvent .nd Ul'O 11. S. P. Q., which allow purchasers of lands mentioned in these articles t > l)uy the mines sit- uated on said lands, by paying to the Crown the diH'erence between the price of agricul- tural Iftiids and the price of mines, consiitutes a confiscation of private property. This pretension is as unfoundi.'d as the previous one. The mineral estate (trefon.U mineral) belonging to the Sovereign, the legislature, in the Mining Act of 1880, indicated the mode of acquiring such mines and causing them to become the property of the owners of the surface. All ot these owners, who thought proper to take advantage of this clause of the law, became absolute owners of the mines ou their lands, and the Act of 1890 does not in any way affect them. On the other hand, such surface owners, who did not take advantage of this exceptional privilege granted them by the law of 1880, did not become owners of the mines which might be situated on their lands, and the legislature, by changing the mode of acquiring such mines, did not confiscate anything belonging to them. Parliament is no more "bound than a private individual, to give perpetual existence to an offer which has not been ac- cepted during a certain number of years. It is also worthy of remark that the Mining Act of 1890, when fixing, in articles 1463 and following, the price of mines, only exercised the powers which belong to the Lieutenant-Governor in Council, under the article 1434 R. S. P. Q., and that, under the previous law, the owners of the surface mentioned in said articles 1428 and 1429, could have been forced, in order to become proprietors of the mines ou their lands, to pay a much larger sum than the price required by the law of 1890. Another objection to be disposed of, under the head of, first, the assertion by the peti- tioners that articles 1455-1512 inclusively, of the Mining Act of 1890, interfere with private rights and despoil private individuals of their property. This is ucterly false. These articles despoil nobody and deprive no man of his property, since they are dealing exclusively with mines which have not yet become private properties. Moreover, the mode of exploration of the soil and of working mines, laid down by these articles, existed in the statute of 1880 and in articles 1439 and following 11. S. IL The petitioners bitterly complain of the imposition of a tax or royalty of 3 per cent on the mercantile value of the products of all mines and minerals enumerated in section 142l), and declare such tax unconstitutional and ultra vires. The imposition of a tax or royalty on the products of mines cannot be a cause of disavowal of the law which impo.ses such tax, as the power of imposing a tax of this nature is of the competence and within the jurisdiction of the Quebec legislature, which alone should judge of the opportunity of imposing it, and it is not because such a tax, at a certain standpoint, affects the commerce of the country that the law which de- crees it should be disallowed. Disavowal for this cause would render necessary the disavowal of almost all the laws under which provincial taxes are imposed. Liquor licenses, timber licenses, auctioneer licenses, the law imposing a direct tax on commercial corporations and many other of our local statutes doubtless have a certain restrictive effect on trade and com- merce. However, nobody dreamt up to this of asking the disavowal of these laws on such ground. It must also be remarked that the Minino; Act of 1890 makes no innovation when It imposes this tax or royalty. The old French law gave the King the right to levy a royalty of ten per cent on the products of the mines. 54 viCTOHiA, 1890. 445 inch ordinances to tli(> Crown. letitioncrs that by the govern- v'sd tlieni of a Mid Ul'O 11. 8. V the mines sit- jrice of agricul- jroperty. This /he legislature, d causing them s, who thought rs of tlie mines On tlie other it)nal privilege ^hicii might be icquiring such ) more bound IS not been ac- ing, in articles I belong to the that, under the nd 1429, could inds, to pay a ;ion by the peti- , interfere with s ucterly false, hey are dealing , laid down by illowing 11. S. ayalty of 3 per enumerated in t be a cause of a tax of this Bc legislature, because such a law which de- almost all the nber licenses, ions and many ;rade and com- these laws on lovation when right to levy a Regina ivv. Delery et al., 9 Legal News. Law Reports, p. 12") and following. And article Ui') R. S. P. Q., which re-enacted tlie :\[ining .Vet of 18S0, gave the Lieutenant-Governor in Council the power to claim at any time the royalty due to the Crown upon any land already sold, conceded or otherwise alienated, or which might be hereafter .sold. in. The last argument of the petitioners for disavowal is that the Mining Act of 1890 is nifm vin's and unconstitutional. In what manner tiiis act is ultra virex of the Quebec legislature and unconstitutional, the petitioners do not see fit to state. However, nothing can be more self-evident than the constitutionality of this law. The British North America Act speciticially gives to the provinces the ownership of mines and section 92 of the same act gives the legislature of the provimjes exclusive power to make laws concerning them. To sum up the question to your Excellency, the undersigned humbly submits that the Quebec Mining Law, 54 Vict. chap. 15, which was duly assented to on the 30th December, 1890, is constitutional, has not a retroactive effect, does not interfere with private rights unjustly nor confiscate private property, nor is it contnuy to the policy of the Dominion or injurious to a large and increasing industry, but that it merely affirms the principles which were always admitted to the province of Quebec, imposes a tax or royalty evidently within the powers of the legislature, and in no way violates the constitution. Wherefore, the undersigned humbly prays that the petition of A. Morrison and others, praying for the disavowal of the Quebec Mining Law, 54 Vict. chap. 15, be dis- missed. J. E. ROBIDOUX, Attorney General. Quebec, 31st July, 1891. Uon. Geo. Irvine to Deputy Minister of Justice. Quebec, 1st, December, 1891. Dear Sir, —I duly received your telegram asking me to send, by first mail, the stenographer's notes of the interview we had with you in the early part of the summer, return I send I re- of the Lower respecting the disallowance of the Mining bill of the province of Quebec, them to you herewith. I find a fairly good report of what took place in the " Mining Review," and you herewith a copy. There is only one point which is omitted in this report, ferred to the decision of the Seignorial Court, composed of all the judges province of Quebec, which sat in 1855, and is found in a special numoer of the Canada Reports, and in which the particular point respecting the question of whether minerals were reserved in grants where there was no express reserve came up, and was decided adversely to the opinion now held by the Quebec government. The judgment of this court is binding on the government the seigniors and censitaires, and therefore is practically binding on the public generally, and justifies our contention that the jurisprudence of the country, which was confirmed by the legislature of 1880, favoured the pretension that, where there was no special reserve the property in the baser metals passed to the grantee with the grant from the Crown. I would be much obliged to you if you would let nie know if you want any further information from mo, or even if you think it desirable I should go to Ottawa to see you, as I consider it very important that I should do all in my power to properlv represent the views of the miners in this matter. I remain, yours truly, GEO. IRVINE. 446 «jt'KUEO LEUISLATION Extract from " Mining Review " of Inlerrieio of Dnjjutation with Dt'puty Miaiiiter of Jnntice. Tlie petition prepared by tlio General Mining Association of the province of Quehec, having befMi prosented to the Privy Council, and a lioaring l)oing granted hy the Hon. Sir Jolin Thompson, ^Minister of Justice, the following deputation attended at Ottawa on the morning of Friday, 17th July, 1891 : A. Desjardins, M.P., Montreal ; VV. ii. Ives, Q. C, M.P., Sherhrooke ; Hon. George Irvine, C^.C, Quebec, president of the Association ; 0. Magee, Managing Director Bristol Iron Co., Ottawa; J. Lainson- Wills, Manager General Phosphate Cori)oration ; Cap. Itobt. C. Adams, Managing Director Anglo Canadian Phosphate Co., Montreal ; Hector McPae, Ottawa, and B. T. A. Bell, Secretary General Mining Association. The members were received by Mr. Kobt. Sedgewick, Q.C., Deputy of the Minister of Justice. Hon. Gko. luviNE, Q.C., said; There are three grounds upon which we seek to Imve thif Act disallowed, lat. We claim that it is an unreasonalile law because it deprives people of their vested rights in property for which they hold a title from the Crown itself. 2nd. That it is contrary to the general interests of the Dominion and to the policy of the Dominion government. I presume that that would be a principle governing the disallowance of the Act, because it would produce chaos if the provinces were allowed to adopt Acts which nullify the policy of the Dominion Parliament and government. 3rd. Because it tends to so impede, and in many cases to put a stop to the exercise of an industry which is of great importance to the whole Dominion. Now with reference to the claim that it takes away private property, that is most easy to understand and the simplest. In 1880, an Act was passed regulating Crown Lands generally, and having a particular reference to mining. Prior to the passing of that Act, it had been universally admitted and judicially decided, and the whole course of the jurisprudence of the country, as well as the management of the Crown Lands Department, and the regulations made by them, went to establish that where lands were granted without a reserve of minerals, all the baser metals — except gold and silver — became the property of the lessee. There is no doubt about that. (Mr. Irvine here cited several important legal decisions in support of his contention.) Mr. Sedgewick — If a seignior owns lands in the province of Quebec he may convey his interest and reserve the mines. Hon. Mr. Irvine — No ; they cannot do that Mr. Sedgewick — Well, they can do it here, and in all the other provinces. Hon. Mr. Irvine— You have no seignorial tenants in the other provinces. Mr. Sedgewick — But if you own a piece of property in the province of Quebec, can you not reserve for yourself — an easement we would call it — for the purpose of having something off it ? Hon. Mr. Irvine — The holding of the seigniory under the Feudal Rights is different from the holding of lands under the Crown. The former were made with a visw to settling the country, copying the old style which then existed in France, and they were bound, whenever an application was made by a settlei-, to make a grant to him, subject to an annual rent. One of the questions put by the Crown to the court in one of the cases referred to was, whether, if a seignior reserves the baser metals in mak- ing a grant, would that reserve be legal. The court held that it would not ; that the property of the baser metals would go to the tenant censitaire. Mr. Sedgewick — That was in consequence of the original grant under the Feudal law to the seignior. Hon. Mr. Irvine — I refer to that for the purpose oi showing tliat a long time back the jurisprudence of the country held that the property in the baser metals, where they were not reserved, went to the owner of the soil. Mr. Sedgewick — I suppose you are giving that particularly because the Act alleges that all the mines in the province belong to the Crown Is there any authority with respect to that argument in the Aot ? ^ m th Di'puty Minister ! province of Quebec, [ranted by the Hon. attended at Ottawa ?., Montreal ; VV. B. )c, president of tlie 'a ; J. Lainson- Wills, ManaL'infj Director X, and B. T. A. Bell, lived by Mr. Hobt. on which we seek to nalile law because it jld a title from the ihe Dominion and to vould be a principle laos if the provinces lion Parliament and les to put a stop to )le Dominion. Now that is most easy to datinjT Crown Lands the passinf^ of that the whole course of f the Crown Lands ish that where lands ixcept gold and silver t. (Mr. Irvine here ) •uebec he may convey sr provinces. r provinces. ivince of Quebec, can e purpose of having B Feudal Rights is er were made with a isted in France, and to make a grant to Irown to the court in baser metals in malc- .vould not ; that the mt under the Feudal ;liat a long time back r metals, where they ly because the Act i there any authority 54 VICTORIA, 1890. 447 Hon. Mr. Irvine — Not in the slightest. In the c.iso of th(^ Queen v. DeLery, the queslion was the ownership of gold. In the oi-iginal grant to DoLi'ry there was no reservation of the [)re<;ious metal, and it was argued that gohl was incluiled in the grant to the seigniory anil that it followed that it went to the censitaires when the lanil was conceded to them. Later on, the DeLfsry family, who were the seigniors of that property, made application to the Crown for a grant of golil, and letters-patent were miuie out ami they have Iwild |)ossession of the gold deposits ever since, under that title. Mr. SKDOKwirit -Was this in Lower Canada? Hon. Mr. luviNK — Yes, in the district of Beauce. There is g(j|(l thisre, they are working at it now, and at one time there was a fairly large development. In that case (the Dcf^iry) it was held that the ownership of the gold did not pass to the seignior, therefore it did not pa-s to the censitaire. Mr. 8i;i)(1KWI(;k — But the Court of Appeals held that that did not apply to the ba.ser metals that belong to the 1 md. I do not think there can bo any doul)t but that everything does pass, unless expressly reserved. Hon. Mr. Ikvink — The Act of 1H80, provided, "That all grants which were made subsecjuent to the pa.ssing of the Act shall not be necessary to make a reserve of minerals when they were held to be reserved, that being so stated." Well, that of course was perfectly legitimate legislation, because it did not afl'ect any vested rights, and anybody taking a grant, took it subject to that legislation. But there was an im- portant provision in that Act, i.e., that if a man took a grant from tlie Crown under ordinary circumstances, that is for agricultural [)urposes, in which, under the Act, the mines shall be reserved — if such a person afterwards discovered minerals on the lot, he would have the right to obtain title to them by paying the diCFerence between the agric- ultural price and the mineral price. Mr. Sedut of leasing our plant and machinery for a royalty of so much per ton, so that these last people have really to pay three rents, that is, if the new Act is held to be constioutional. I im > .. pi»i i i> i W i i' j 448 (jt'KliKC LKdIHLATION Hon. Mr. Irvink — That has a rofflienco to the tax. Mr. MAfJKK" 'Vhoy pay a tax to th(^ owner of tlio soil, the roj-alty to iho ownor of tho milling ii>,'hts, machinery and plant, and tlien they have to pay tlnco p»>r cent unfh'r this new Act, to the governiiiont, on the nierchantahlo value of the quantity rai.sed, hefore tliey ean export their ores. F[on. Tr. Ihvink I sliould say that, altliou^li tliere is !io ditlerenie otherwise, then; is an exeeption in the case of pliosjiliate lands, principally as re;,'ardH tlie date from which the law of 1880 takes etl'ect. There has heen a clian.i^e made with regard to these lands in 1878, so that as regard.s phosphates, 1878 is the date refern'd to instead of 1880, as in the ease of the other minerals. In the int.erjjretation clauses of this .Vet the delinilion of puhlic and private lands is descrilied as follows : — " TIh! words 'public lands' mean and designate all Crown lands or Ordnance lands transferred to the province, etc., which have not been idienated by the Crown." "The words 'private lands' designate all lands onceded otlK^rwise alienated by the Crown, othei' than nuning concessions or lands conceded by the Crown as such, or which shall hi'H'.'ifter be conceded." So that when private lands are used, it does not in any way affect lands granted as mining lands. Now clause 142.") says : — " As it is admitted that mines, whether upon public or private lands, V)elong to the Crown, and any person discovering a mine may purchase the same, by complying with the pi'ovisinns of this law." Now private lands mean all lands which are not conceded as nnning lands, that is to say, an ordinary grant for agricultural purposes is called "private lands," and the government now declare tiiat all these lands belong to the Crown. l\Ir. SiaxJKWiCK- Of course, you have to give that a limited meaning. That may mean all mines upon public or private lands belong to the Crown whore the Crown has not ali'eady parted with the title. Hon. Mr. luviNic — ^They define " private lands " to mean all lands which are not granted with mining privileges. Then this clause goes on following u{) this provision. " Upon private lands, however, the occupant of the surface has the first right to j)ur- chase such mine, upon the conditions imposed by law and the regulations. Before coming to that, however, the next clause provides : — " From the first day of May, 1891, a royalty shall be levied in favour of the Crown, upon every mine which is now, or may hereafter be sold, conceded or otherwise alien- ated. Such royalty shall, unless otherwise determined by letters-patent already granted, consist of a percentnge of three [ler cent of the merchantable value of tho products of all mines and minerals." Now, the meaning of that is that on all minerals taken from the province of Que- bec, there is a royalty of three per cent, whether the lands were sold as mining lands or otherwise. Mr. Skdoewick — Now, wherein do you say that this is unju.st — any more unjust than a tax — say an income tax ? Hon. Mr. Irvine — An income tax would not affect a particular industry. Mr. SEnoEwiCK — In what respect is it ditFerent from a license? Hon. Mr. Irvine — It is greatly different. You have to pay license fees besides this. jNIr. Sedgewick — I mean a license to carry on a business or profession. It is a general tax upon a particular industry, it is true, but does it differ in any moral sense from any particular tax which a province may impose, for instance, they say an insur- ance company shall pay a certain tax 1 Hon. Mr. Irvine — The Privy Council decided that these commercial taxes wgre constitutional. Therefore, the question as to the legality of the law relating to one par- ticular industry in face of that decision has been settled. Mr. Sedgewick — I agree with you that we ought to look askance at an Aco which professes to interfere with vested rights — to take one's property without compensation, and give it to the state. dtf ▼^ .0. ^^ t ^S"^ % '/ IMAGE EVALUATION TEST TARGET (MT-3) 1.0 150 ""^^ ■^ ^ mil 2.2 I.I u ■luu 2.5 2.0 Hm Photographic Sciences Corporation // k 1.25 1.4 1.6 ' ^ 6" ► 2? W^ST MAIN STREET WS«STER,N.Y. M5<}0 CIHM/;CMH Microfiche Series. ', isl CIHM/ICMH Collection de microfiches. Canadian Institute for Historical MIcroreproductlons / Instltut Canadian de microreproductlons historiques "» . J . '" i I 54 VICTORIA, 1890. 449 ■I; •';■ Hon. Mr. Irvine — I only mention tliis fact now — that they use the word " royalty," implying on the part of the person, the Crown or individual who levies that right by statute or otherwise, ownership in the property from which royalty is paid. Mr. Sedgew ICK — It does not make any diderence what they call it. You say the Act infringes upon private rights in some other way. Hon. Mr. Ikvine — I say I have a right to assume that all rights upon private lands conceded previous to 1880 belon'; to the grantee, and that all granted since 1880 belong to the grantee, subjected to the payment of certain sums of money. I will show you how the carrying out of this Act infringes upon private right.s. You will observe it says that the Crown may sell mines on private lands subject to certain regulations. Section 1455 says : " Every person, firm or company may explore and prospect for the discovery of mines and minerals upon public lands not already occupied as mining con- cessions or otherwise." And section 1461 says : " Any person may obtain from the commissioner the sale of one or more mining concessions upon the following conditions : — 1. Upon private lands, after the owners thereof have been placed in mora to take a sale thereof, if they refuse to avail themselves of such rights ; the whole in conformity with this law." Mr. Sedgewick — Do you not think a limited construction must be given to that, and apply it only to those lands which contain a reservation of minerals. Hon. Mr. Irvine — Take the lands since 1880, they have been by law reserved and subject to the right to purchase them. Mr. Sedgewick — Then may not that section only apply to those lands? Hon. Mr. Irvine — If that would be the construction the courts would give it ; but I think ic very doubtful. Now you see the effect of that legislation is that any person may go to the Crown and obtain a permit for exploration of private lands. He has the right to go on private lands and examine the lot, and he may take 50 acres of this lot, measure it out, go to the Commissioner of the Crown Lands and deposit the price which he considers this property is worth. There is a minimum price fixed by the Act but no maximum price. He must deposit at least $5 per acre. We will take a man who has held a mining property for years. He believes by law that it belongs to him. Another man may go and obtain a permit from the Crown, go on to his property and measure out 50 acres, he offers $100,000, which this man must take or lose his property. That is a most outrageous invasion of private rights. The next point I spoke of is whether this tax (assuming it to be a tax), is of such a nature as to be unreasonable and against the public policy of the Dominion. As regards some mines it may be ?aid that it is not a very heavy tax, but of course as to its being reasonable or unreasonable, that is within the right of the legislature that has power to pass tlie law to say. Mr. Sedgewick — Is the 3 per cent royalty on the gross value of the output at the pit's mouth ? Hon. Mr. Irvine — Yes. If you get a large quantity of minerals and for one rea- son or another you cannot sell them, you have got to pay thiu 3 per cent not only on the minerals themselves but on the cost of producing them. Mr. Sedgewick — Who determines the value? Hon. Mr. Irvine —They have inspectors who tax the value. Mr. Sedgewick — Have they any principle upon which to fix the value? Hon. Mr. Irvine — No ; there is no principle. There is no doubt that this tax weighs very heavily upon a large number of the mining industries of the country, and more particularly with regard to those industries where the marginal profit is very small, and the quantity produced very large and a great number of men employed. Of course the fact of a number of men being employed is included in the small margin of pro- fits. Supposing a man is working a mine, and he with difficulty makes a very small profit. If you bring in a tax of 3 per cent on the gross output of that mine, you may walk off with all his profits and make him pay the government something out of his capital. Now, the effect of this will be to put a stop to a large number of mining industries in which the Doirinion has a very important interest. It is in the interest of the whole country I 1 I '■ i I: ! 400 QUEBEC LEGISLATION that these industrial enterprises should succeed, and if the provincial government kills that by putting on a tax, it appears to me that the Act is one whicli the Dominion government ought to disallow. Mr. Sedgewick — If it was perfectly clear that the object of this provincial Act was to kill a piuticular industry, the government would perhaps have good grounds to do so. We could not disallow an Act because it affects .a particular industry, unless clearly shown that the intention of the Act was bad and was aimed at the policy of the government \\ 452 QUEBEC LEGISLATION The jurisprudence of this province is in perfect accord with the doctrine I have just laid down, as can be ascertained by the holding in the case of Kogina vs. de Lery et al, already cited in my letter of the 31st July, 1891, 6 Legal News, page 4021 — " 1st. By tiie old law of France which is in force in Canada, the right to minerals did not pass by a grant of lands, to the grantee without special words, but remained in the Sovereign. 2nd. The King of England at the cossion succeeded to this ri^ght. Srd. The Sovereign could grant the right to minerals to whomsoever he pleased, and in such case the owners of the soil had no right except to an indemnity for any damages they might suffer by the mining operations." The fact that the right to mines is a prerogative of the Crown does not prev'ent the old French civil law, as modified by our Statutes, to apply to mines in our province. The prerogatives of the Crown are of two kinds ; direct prerogatives, and incidental or minor prerogatives. (Bowyer, Constitutional Law, page 134.) The right to mines is one of the minor prerogatives. ' Tt is quite true that the direct prerogatives of the Crown are governed by the public law of England, but the same does not apply to the minor prerogatives of the Crown in this province ; they are governed by our civil law„ which is the Old French civil law as modified by our statutes. Chitty, on Prerogatives, page 25, expresses himself as follows : " But in countries which, though dependent on the British Crown, have different and local laws for their internal government, as for instance the plantations or colonies, the minor prerogatives and interests of the Crown must be regulated and governed by the peculiar and established law of the place." (Idem, pages 29-30 31). Our courts have several times applied this principle. Chief Justice Reid, in rendering judgment on the 30th July, 1828, in a case of the Attorney General pro Jiege, appellant, and Jane Black, respondent, expressed himself as follows in the holding of the case : — " Where the greater rights and prerogatives of the Crown come in question, recourse must be had to the public law of the empire, as that nlone by which they can be deter- mined ; but where its minor prerogatives and interests are in question, they must be regulated by the established law of the place where the demand is made." In this case Chief Justice Reid gives the following extract from Chitty : — " That in the colonies and plantations, the minor prerogatives and interests of the Crown must be regulated and governed by the particular and established law of the place where the dertiand is made," and accordingly, where peculiar laws and process ex- ist, as in Guernsey and Jersey, the King himself, in " seeking to recover his own debts therein, must resort to snrh laws for redress." (Stuart's reports, pages 324, 325, 326.) Later on, on the 22nd December, 1874, Chief Justice Dorion, on rendering the judgment of the court of appeals in the case of Dame Georgiana H. Monk, esqualitd, appellant, and the Honourable G. (Juimet, Attorney General, pro Regina, respondent, expressed himself as follows : — " When this colony passed under the dominion of the Crown of England, the main- tenance of the civil laws then in existence was guaranteed by treaty. Theselaws, as altered by competent authorities, are still in foi-ce, and are as binding on the Crown as they are upon any of its subjects, except in cases where the higher prerogatives, which form part of the public law throughout the whole empire, are affected. The right to be paid in preference to other creditors of a common debtor, does not form part of the higher pre- rogatives of the Crown, which are part of the public lav/, but belong to what are termed the minor prerogatives, those which are not essential to ttie supremacy of the Crown, and which are controlled by the private or municipal law of that part of the empire where they are claimed. Vide also Chitty on Prerogatives, 25, 29, 31 ; Chambers Colonial Opinions, 88, and Attorney General and Black, Stuart's Reports 324, where this rule has been followed." I respectfully submit that the above authorities establish beyond doubt that, in our province, mines are regulated by the old French civil law, as modified by our statutes. The contention of the petitioners for the disavowal, that our courts have invariably held that the ownership of mines on lands granted in 1880, without reserve of mines 54 vicTOKiA, 1890. m the doctrine I have 1' (igina vs. de Lery et ,1 News, page 4021 — right to niiiiera's did , but remained in the id to this right. Srd. le pleased, and in such for any damages they n does not prevent the nines in our province. tives, and incidental or governed by the public atives of the Crown in Old French civil law s : 1 Crown, have different plantations or colonies, iilated and governed by 30 31). ', 1828, in a case of the nt, expressed himself as •me in question, recourse hich they can be deter- [uestion, they must be is made." In this case rea and interests of the d established law of the ar laws and process ex- recover his own debts ;s, pages 324, 325, 326.) orion, on rendering the la H. Monk, esqualit^, nro Regina, respondent, n of England, the main- y. Thesftlaws, as altered 1 the Crown as they are tives, which form part of The right to be paid in part of the higher pre- ilong to what are termed Dremacy of the Crown, part of the empire where lonial Opinions, 88, and uie has been followed." ayond doubt that, in our edified by our statutes. r courts have invariably tbout reserve of mines thereon by the Crown, belong to the surface owners, is absolutely unfounded. The petitioners do not cite a solitary decision in support of this alleged jurisprudence, for the obvious reason that no such decision exists. The few reported decisions on this question, amongst which that of Regina vs. deLery, already cited, al)solutely lay down a doctrine contrary to that claimed by the petitioners. Wherefore, I respectfully persist in praying that the petition of A. Morrison and others, for the disavowal of the Quebec Mining Act, 54 Vic, chap. 15, be dismissed. I have, &c., J. E. ROBIDOUX, Attorney General, The Hon, tJie Minister of Jiistice to Honourable Attorney General of Quebec. Department of Justice, Ottawa, 16th December, 1891. My DEAR Attorney General,— I am much obliged for your letter of the 12th instant, having reference to the petition for the disallowance of the Quebec Mining Law of 1890. Will you permit me to say that I am still far from being convinced that Crown grants in your province since the cession, have the limited effect which you claim they have, and I am likewise somewhat in doubt as to the limited character of Crown grants issued prior to the cession. The statute under consideratic.i makes the statement "that it is admitted that mines, whether upon public or private lands, belong to the Crown." If the legislation in question were really based upon an admission, it ought to appear that the person making the admission had authority to make it from those who would be affected by it. It seems clear, however, both from the statute itself and from the cor- respondence, that your legislature intended to legislate in respect only to mines which, as a matter of fact, belong to the Crown. J may be excused for suggesting that all ditii- cuity might be removed by an amendment making it clear that the Act only applied to mines and minerals which belongefl to the Crown, without making any specific declara- tion that this includes all minerals in lands granted by the Crown, although not specific- ally reserved. In that case the legal questions which have been raised, and in respect of which there may, T think, be considerable doubt, would be left for determination by the courts. Such an amendment, it appears to me, while in no wise impairing the just rights of the province, would remove any objection to the Act on the ground of its being a confiscation of existing private rights, as claimed by the petitioners. An assur- ance from you that your government, at the next session of the legislature, would pro- mote an amendment to the effect suggested, would materially aid me in making ray report to his Excellency in Council on the subject of the Quebec legislation of last session. Faithfully yours, J. S. D. THOMPSON. The Hon. the Minister ofJtistice to Honourable Attorney General of Quebec. Department of Justice, Ottawa, 22nd December, 1891. My dkar Attorney General, — I beg to inclose you copies of certain papers and correspondence having reference to the disallowance of the Quebec Mining Act of last session of your legislature. You* will observe that my last letter to your predecessor was written on or about the day when he ceased to be Attorney General, and I have not received any reply from him. I send the whole correspondence to you in the hope that I may be able to obtain from you at an early date an assurance that the Act wil be amended at the next sitting of your legislature in the manner I have suggested. Yours faithfully, J. S. D. THOMPSON. 29 454 QT'EHEC LEGISLATION Honourable Attorney General oj Quebec to the Hon. the Minister of Justice. Depaktment op Attorney General, Quebec, 8th January, 1892. My dear Sill John, — Referring to your letter of the 16th December last, addressed to the Attorney General of this province and having reference to the petition for the disavowal of the Quebec Mining T^aw of 1890; after having submitted the same to ray colleagues, I am authorized to inform you that we have come to the following conclusion as regards the proposal you made in the above-mentioned letter in the following terras : — " I may be excused for suggesting that all difficulties might be removed by an amendment making it clear that the Act only applied to mines and minerals which belong to the Crown although not specifically reserved. In that case the legal ques- tions wiiich have been raised and in respect of which there may, 1 1 hink, be considerable doubt, would be left for determination by the courts." Without in any way waiving any rights this province may have to legislate on this matter, and without prejudice to said rights, this government pledges itself to promote at the next session of the legislature of this province an amendment to the said Quebec Mining Law of 1890, to the effect suggested by you, as above. Should you not find this letter a sufficient assurance to enable you to make your report to his Excellency the Governor General in Council on the subject of the Quebec legislation of the last session, this government is ready to pass an Order in Council to the same effect. I remain, yours very truly, T. CHASE CASGRAIN, Attorney General, Report of the Honourable the Minister of Justice, approved by His Excellency the Governor General in Council on tJte 12th January, 1892. Department of Justice, Ottawa, 8th January, 1892. To His Excellency the Governor General in Council : The undersigned has the honour to report on two Acts (chapters 15 and 22) passed by the legislature of the province of Quebec in the session held in the year 1890, as follows : — Chapter 15. An Act to amend and consolidate the Mining Law. This Act is a consolidation and amendment of the statute law of the province of Quebec in relation to mines. It purports to impose a royalty upon the mines therein mentioned, the royalty upon gold and silver being 2J per cent on the gross weight, and on the other minerals 3 per cent on the merchantable value. The Act contains the following clauses : 1425. " As it is admitted that mines, whether upon public or private lands, belong to the Crown, any person discovering a mine may purchase the same by complying with the provisions of this section." *' Upon private lands, the occupant of the surface has the first right to purchase such mine upon the conditions imposed by law and the regulations " ; and section 8 (1421) provides that " the words ' private lands ' designate all lands conceded or other- wise alienated by the Crown, other than mining concessions or lands conceded by the Crown as such." < The undersigned has annexed to this report a petition, addressed to your Excel- lency from a number of gentlemen interested in mining lands, together with correspond- ence between himself and the Attorney General of the province of Quebec having refer- ence tj the prayer of that petition. _^' im- 64 VICTORIA, 1890. 455 ',r of Justice. January, 1892. mber last, addressed the petition for the ;ed the same to ray "ollowing conclusion ! following terras : — be reraoved by an nd rainerals which case the legal ques- link, be considerable 3 to legislate on this ;es itself to promote ; to the said Quebec e you to raake your bject of the Quebec ier in Council to the 5RAIN, ttorney General. His Excellency the 1892. January, 1892. irs 15 and 22) passed in the year 1890, as (V of the province of Dn the raines therein the gross weight, and ?he Act contains the private lands, belong ae by coraplying with rst right to purchase ons " ; and section 8 ds conceded or other- nds conceded by the •essed to your Excel- ither with correspond- Quebec having refer- In view of the assurance contained in the comraunication, dated the 8th instant, from the Hon. Mr. Attorney General Caagrain, the undersigned has the honour to re- commend that this Act be left to its operation. Chapter 22. An Act respecting the Court of Queen's Bench (Crown side.) This Act after reciting that " the nuraber of judges who now compose the Court of Queen's Bench in the province is insufficient for the efl'ectual administration of civil and criminal justice within their jurisdiction," and that " it is advisable that two additional judges be appointed for the said Court," provides that, hereafter, the Court of Queens Bench shall bo composed of eight judges instead of six. , . i Although recommending that the said Act be left to its operation, the undersigned does not concur in the statement contained in the preamble above r-.rerred to, as to the insufficiency of the Court of Queen's Bench to perform its functions as at present consti- tuted, and this report, if approved, is not to bo taken as an expression of opinion on behalf of your Excellency's government that the appointments provided for by the Act should be made. Respectfully submitted. JNO. S. D. THOMPSON, Minister of Justice. ■iii m 466 Qf BBEC LEGIHLATION QUEBEC LEGISLATION, 1891. Note. — Owing to the dismissal of the Executive Council, by his Honour the Lieu- tenant-Governor of Quebec, no session of the legislature of that province was held in 1891. QUEBEC, 55th-56th VICTORIA, 1892. (IsT Session — 8th Legislature.) ' His Honour the Lieutenant-Governor of Quebec to the Honourable the Secretary of State : Government House, Quebec, 5th July, 1892. Sir, — I have the honour to report to his Excellency the Governor General in Council that I have again reserved, for the signification of his Excellency's pleasure, a bill entitled " An Act to legalize the marriage of Henri Aime Hourassa and Dame Purissima Robert." I beg to refer you to my previous report dated 30th April, 1890, about this bill, which has the same wording as the one previously reserved and reported upon as above. I am further informed that the object of this bill is to secure for the child of the said Aim^ Bourassa nnd Purissima Robert a share in the intestate estate of an uncle ; and this gives the bill the n/vture of pout facto legislation which would be unjust. T have also to report that I have reserved another bill entitled " An Act to incor- porate La Banque Hypoth^caire Canadienne," for the following reasons : The British North America Act 1867, has given to the Dominion Parliament alone the power to legislate on " Banking and the incorporation of Banks" — s. 91, ss. 15. Although, from the rending of the bill, this company may not be classified as a bank, its title. La Banque Hypoth^caire Canadienne, is apt to create confusion and le.id the public to the assump- tion that this company is operating as a bank under a Dominion Charter. This, it seems is an objectionable feature. I will feel m^ch obliged by being acquainted with the action of the Honourable the Privy Council in this matter. I have, etc., A. R. ANGERS, ' Lieutenant-Governor. The Canadian Bankers' Association to the Hon. the Minister of Justice. Canadian Bankers' Association, Montreal, 7th July, 1892. Sir, — We are advised that his Honour Lieutenant-Governor Angers has reserved his sanction to the Assembly Bill 36, passed at the recent session of the Quebec legisla- ture, entitled " An Act to incorporate La Banque Hypothecaire Canadienne," and has referred the same to the federal authorities. As the time has gone by for opposing the measure at Quebec we now beg to express our objection to the Act direct to your department, as follows, and shall be glad to be informed whether such a statement of our objectiens is sufficient, or whether it is incumbent upon us to address a formal memorial to the government in the premises : 1st. We object to the word "Banque" in the proposed title of the corporation, as being a violation of clause No. 100 of the Bank Act ; 2nd. We object to their being granted under clause 3, title II, power to loan otherwise than on hypothec to town or rural corporations ; clause 6, title II, power to his Honour the Lipu- province was held in 92. 68-56 vicToniA, 1892. 457 makn loans to the government of the province ; clause 8, title IT, power to roceivo with or without interest, moneys, securities and bullion ; clause 9, title II, power to lend on security of warrants. The preamble of the Act also refers to loaning on warrants and bills of lading. All of these powers, we claim, are banking powers which cannot bo granted to any corporation by the provincial legislature, and we now petition that the Act be dis- allowed as it stands. I am , Ac, G. HAGUE, President, Uhe Secretary of State : 5th July, 1892. Governor General in xcellency's pleasure, a Mourassa and Dame ited 30th April, 1890, leserved and reported jill is to secure for the in the intestate estate ilation which would be led " An Act to incor- ; reasons : The British nt alone the power to 15. Although, from ik, its title, La Banque e public to the assump- ion Charter. This, it of the Honourable the J^GERS, 'utenant-Governor. ster of Justice. L, 7th July, 1892. )r Angers has reserved of the Quebec legisla- I Canadienne," and has we now beg to express nd shall be glad to be lent, or whether it is int in the premises : of the corporation, as itle II, power to loan 16 6, title II, power to Petition of the Canadian Bankers' Association. To the Right Honourable Sir Frederick Arthur Stanley, G.C.B., Oovernor General of Canada, in Council : May it please Your Excellency : The memorial of the Canadian Bankers' Association acting and represented by their President and Secretary-Treasurer. Humbly showeth : — 1. That your memorialists comprise thirty-three (33) out of the total number of thirty-nine (39) banks chartered under the Bank Act, and represent an aggregate paid- up capital of over fifty-nine millions of dollars. 2. That your memorialists have taken cognizance of a certain bill, known as Assembly Bill No. 36, passed at the recent session of the legislature of Quebec, entit- led "An Act to incorporate La Banque Hypothecaire Canadienne." 3. That his Honour the Lieutenant-Governor has reserved his sanction to the said bill, and is about to transmit the same to the Federal government at Ottawa for con- sideration ; 4. That your memorialists humbly urge that the several persons praying for the Act of Incorporation and using the title " Banque ", are thereby guilty of the offence against the " Bank Act " named in clause No. 100 of the Act ; 5. That in the preamble of the said Assembly Bill No. 36, power is named to loan on warrants and bills of lading; 6. That under clause 3 of section 5, title II, of said Assembly Bill, power is asked to loan otherwise than hypothecs, to town, rural or other corporations ; 7. That under clause 6 of section 5, title II, power is asked to make loans to the government of the province ; 8. That under clause of section 5, title II, power is asked to receive, with or with- out interest, moneys, securities and bullion ; 9. That under clause 9 ot section 5, title II, power is asked to lend on security of warrants ; 10. That these privileges enumerated in paragraphs Nos. 5, 6, 7, 8 and 9 of this present memorial, are banking privileges which are not within the rights of the provin- cial legislature to confer ; Wherefore your memorialists humbly pray that the said Act of Incorporation of La Banque Hypothecaire Canadienne be disallowed. And your memorialists will ever pray. Daced at Montreal this 16th day of July, 1892. On behalf of the Executive Council. For the Canadian Bankers' Association. G. HAGUE, President. W. W. L. C] [IPMAN, Sec.-Treas. : |1 i ■) i T^^f^mwr^^^mm^ 4&8 (iUei)EC LEGISLATION Report of tlie Honourahla the Minintfir of Justice, approved hy Ilia Excellency the Governor General in Vouneil on the Jut March, 1893. Dbpahtment of Justice, Ottawa, 16th February, 1893. To Ilia Excellency the Governor General in Council : The uiideragned has had referred to him two bills passed by both houses of the legishiture of the province of Quebec, during,' the session of 1892, intituled respectively : an Act to incorporate the " Credi' Canadien," and an Act to legalize the " Marriage and contract of marriage of Hf ari Ainie Bourassa and Dame Purissima Robert," but reserved by his Honour the Lieutenant-Governor for the signification of your Excellency's pleasure thereon. It would seem that this action in respect to these Bills is due to some doubt as to whether they were within the legislative authority of a provincial legislature. Should the bills be passed as statutes of the province, the undersigned may have an opportunity of considering the questions involved, but for the present he recommends that your Excellency take no action in respect thereto, and that his Honour the Lieutenant-Governor of the province of Quebec be so informed Respectfully submitted, JNO. S. D. THOMPSON, Minister of Justice. Report of the Honourable the Miniater of Justice, approved by Hia Excellency the Governor General in Council on the 2nd June, 1893. Department of Justice, Ottawa, 18th May, 1893. To Hia Excellency the Governor General in Council. The undersigned has the honour to report that he has examined the Acts passed by the legislature of the province of Quebec, in the session thereof held in the 55th and 56th ye'ars of Her Majesty's reign (1892), the chapters of which are contained in the annexed schedule — received by the S jretary of State for Canada on the 1 5th day of August, 1 892 ; and he is of opinion that they are unobjectionable, and may be left to their operation. Respectfully submitted. J. A. OUTMET, Acting Minister of Justice. Schedule. Chapters 1 to 55, 59 to 73, 75 to 115. Report of the Honourable tlie Minister of .Justice, approved by His Excellency the Governor General in Council on the 2nd June, 1893. Department of Justice, Ottawa, 18th May, 1893. To Hia Excellency the Governor General in Council : ^ The undersigned has the honour to report upon the following Acts of the legisla- ture of the province of Quebec, passed in the session thereof, held in the 55th and 56th years of Her Majesty's reign (1892), certified copies of which were received by the Secretary of State of Canada on the 15th day of August, 1892. Ilia Excellency the SOS. February, 1893. ly both houses of the itituled respectively : ^alize the " Marriage irisaima Robert," but lignification of your B to some doubt as to al legislature, nderfcigned may have •esent he recoiiuiiends tiat his Honour the [OMPSON, niater of Justice. Hie Excellency the W3. 18th May, 1893. ud the Acts passed by in the 55th and 56th I are contained in ada on the 1 5th day bble, and may be left mister of Justice. His Excellency the 893. 18th May, 1893. g Acts of the legisla- in the 55th and 56th vere received by the 55 56 vicToniA, 1892. 459 Chapter 56. " An Act to consolidate the variou. Acts atFoeti-.g the incorporation of "^^ 'o.rtl'r""'' An Act to incorporate the town of Cookshiro." ^S:Uh. ;^ A.Jtoinc.p<.a.U^ „„, ig.d must In recominending t at these ACIH oe e f authority which by them are The un.lersigned is ot opinion ^^at this provision i Canada which str::?crrs:s;rpr!prHr Acting Minister of Justice. 460 QUEBEC LEGISLATION QUEBEC— 56th VICTORIA 1893. (2nd Session. — 8th Legislature.) Report of the ffononrable t/ie Minister of Justice, approved by His Excellency the Governor General in Council on the 28th February, 1894. Department of Justice, Ottawa, 12th February, 1894. To His Excellency the Governor General in Council: The undersigned has the honour to report that he has examined the Acts passed by the legislature of the province of Quebec in the fifty-sixth year of Her Majesty's reign (1893) — the chapters of which are contained in the annexed schedule — received by the Secretary of State for Canada, on the 7th day of March, 1893 ; and he is of opinion that they are unobjectionable, and may be left to their operation. Chapter 76 has been reserved for a separate report. The undersigned also recommends that if this report be approved, a copy of the same, with a copy of the schedule of the T, les of the Acts, be sent to the Lieutenant- Governor of the province for his information. Respectfully submitted, JNO. S. D. THOMPSON, Minister of Justice. ^ Schedule Chapters 1 to 75, 77 to 101 inclusive. Report of tlie Honourable the Minister of Justice, approved by His Excellency the Governor General in Council on the 28th Februa/ry, 1894.. DEPAr.TMENT OP JUSTICE, Ottawa, 12th February, 1894. To His Excellency the Governor General in Council : The undersigned has the honour to report upon Chaptf>r 76, passed by the legisla- ture of the province of Quebec, in the fifty-sixth year of Her Majesty's reign (1893), as follows : — " Chapter 76. — An Act to incorporate the Compagnie Hypoth^caire." The compajiy is incorporated, among other objects, for the purpose of loaning money upon immovables situated in the province of Quebec, and upon other securities. By sections 6, 7 and 8 it is provided as follows : — " 6. The partnership may create and issue obligations representing its operations, comprising loans to private individuals, to municipal or school corporations, to fabriques and church trustees, public securities, bonds and debentures of municipal and school corporations on hand, and others not described herein. " 7. The obligations created by the partnership shall be divided into six cate- gories : — " 1. Those redeemable at par, N'ith a fixed term for redemption, without prizes ; " 2. Those redeemable at par, within a definite delay, without any period being fixed for their redemption before such delay, and by means of a drawing of numbers, without prizes ; ^ 56 VICTORIA, 1893. 461 yy His Excellency the f, 1894. 1 February, 1894. mined the Acts passed year of Her Majesty's ed schedule — received ch, 1893 ; and he is of )eration. pproved, a copy of the ent to the Lieutenant- lOMPSON, Hnister of Justice. \y His Excellency the ', 18H. 1 February, 1894. passed by the legisla- lajesty's reign (1893), h^caire." le purpose of loaning upon other securities. isenting its operations, porations, to fabriques municipal and school livided into six cate- on, without prizes ; out any period being , drawing of numbers, "3. Those redeemable with premiums at a fixed term for redemption, without ^'^''^ '4. Those redeemable at par, with a right to participate in prizes, within a definite delay without any period being fixed for their redemption before such delay, and by --".! f T^fo^rXl^witT; a premium, within a definite delay without any period being £ed for their redemption before such delay, and by means of a drawing of num- bers :f ?/* P™-^^^^ble at, par, with a premium and a right to participate in prizes within a definTte dela" without'^a period being fixed for their reden.ption before such dela^and by means of a drawing of numbers The board of management shall deter- mine the duration of the delay and the date of the drawing. ^, u ^u 1, 11 "8 Pr zes and premiums attached to such obligations and payable when they shal be withdrawn from circulation shall not exceed 2 per cent per annum on the capita represented by the series of such obligations; and the aggregate amount of the m erest 3 of The percentage for prizes or premiums, shall not exceed the rate of interest :l:ri ed E; ^h: Taws m fo^rce in the^rovi^ce of Quebe. The board of, management shall determine the importance and the method of apportionment thereof. These provisLs appear to the undersigned to contemplate such a disposal of money bv lot as would be illegal under section 205 of the Criminal Code. The provmcial £i Mature has of course' no power to authorize any Act which has been constituted an offence by Parliament. There may, however, be room for the exercise of the powe conferred^ uponThe company without any infringement of the section of the Criminal Code referred to, and any question which may arise as to the legality or the company s business may be conveniently left to the determination of the courts The undersigned recommends, therefore, that the Act be left to its operation. The Undersigned further recommends that, if this report be approved, a copy of the same be sent to the Lieutenant-Governor of the province for his information. Respectfully submitted, ' JNO. S. D. THOMPSON, Minister of Justice. ii m 462 QUEBEC LEGISLATION QUEBEC— 57th VICTORIA, 1894. (3rd Session, 8th Legislature.) Jieport of the Hanourahle the Minister of Justice, approved by Kis Excellency the Governor General in Council on the 9th October, 1894. Department of Justice, Ottawa, 11th September, 1894. To His Excellency the Governor General in Council : The undersigned has the honour to report that he has examined the Acts passed by the legislature of the province of Quebec, in the 57th year of Her Majesty's reign (1894), —the chapters of which are contained in the annexed schedule— received by the Secretary of State for Canada on the 23rd day of January, 1894, and he is of opinion that they are unobjectionable and may be left to their operation. The remainias; Acts have been reserved for a separate report. The undersigned also recommends that if this report be approved, a copy of the same, with a copy of the schedule of the titles of the Acts, be sent to the Lieutenant- Governor of the province for his information. Respectfully submitted, JNO. S. D. THOMPSON, Minister of Justice. Schedule. Chapters 1 to 49, 51 to 58, 60 to 62, 64, 65, 67 to 70, 72 to 74, 76 to 82, 84 to 106. Report of the Honourable the Minister of Justice, approved by His Excellency the Governor General in Council on the 9th October, J894. Department of Justice, Ottawa, 12th September, 1894. To His Excellency the Governor General in Council : The undersigned has the honour to report upon the following Acts, passed by the legislature of the province of Quebec, in the 57th year of Her Majesty's reign (1894), received by the Secretary of State for Canada, on the _23rd day of January, 1894, as follows : — Chapter 50. " An Act respecting the early closing of shops." This statute provides that in every city and town the municipal council may make by-laws, fixing the time for closing and opening of stores, within the municipality, the hours to be so fixed, not being earlier than 7 o'clock in the evening, nor later than 7 o'clock in the morning. It has been represented to the undersigned that this enactment is " an encroachmekit on the powers of the Dominion Parliament to regulate trade and commerce," and that " siiiih a matter has no connection with municipal institutions, nor can it be said to be legitimately within the subjects of police regulation." The enactment does not, however, in the opinion of the undersigned, come within any of the powers assigned to Parliament by the British North America Act, but rather is ft matter exclusively for provincial legislation, undei one or all of the following sub;ect8 mentioned in section 92 of that Act. 57 VICTORIA, 1894. 463 \ellenr,y the Governor Iptember, 1894. the Acts passed by jesty's reign (1894), ved by the Secretary ' opinion that they roved, a copy of the to the Lieutenaut- IPSaN, .ister of Justice. 76 to 82, 84 to 106. His Excellency the '94. ptember, 1894. Acts, passed by the jesty'o reign (1894), if January, 1 894, as I council may make le municipality, the ng, nor later than 7 " an encroachment mmerce," and that a.n it be said to be signed, come within fica Act, but rather 1 of the following " Municipal institutions in the province. Property and civil rights in the province. Generally all matters of a merely local or private nature in the province." The undersigned considers the statute unobjectionable, and that it should be left to its operation. Chapter 59, "An Act to amend the various Acts relating to the corporation of the city of Three Rivers." By section 14 of this Act it is provided that the council shall have power to make By-laws " To prevent obstructions of any nature whatsoever in the streets, and to compel every railway company to put up gates with keepers, at its own expense, on the roads and streets crossed by such railway in the city, and impose a fine of twenty dollars for each day that it refuses or neglects to do so, after being thereunto duly required ; " To prevent the obstruction of its streets by railway cars, locomotives and engines, and impose on every railway company or its employees, a fine not exceeding twenty dollars, for each infringement of the by-laws in that respect." Chapter 63, " An Act to consolidate the Acts respecting the corporation of the town of Salaberry of Valleyfield." By sections 148, 149, and 197 it is provided that the council may make by-laws to " compel all railway companies to make, construct and maintain, at all hours of the day and night, such gates, fences or other works, as may be deemed necessary for the pro- tection of the citizens, vehicles and animals passing through such streets or public places : and all such companies shall be liable to such penalty as the company may impose." 149 : " To prevent the obstruction of the streets by railways, cars or trains of c irs, locomotives or other engines of railway companies, and determine what precautions the con luctors, engine-drivers or stokers of such trains, cars or engines shall take, when crossing or about to cross the streets in the town, and impose on the company a fine for each infringement of the by-laws passed for that purpose," 197: " Subject to the provisions of the general laws respecting railways, compel railway companies to keep in order the streets, portions of streets and public squares through which their trains run, in such manner as the council by resolution, or the town inspector, may indicate." " If such companies neglect or refuse to do such work, the council may have the same done, and recover the amount thereof from such companies in default." The undersigned observes that the Railway Act mentions the precautions which are to be adopted upon streets and crossings by railway companies under the legislative authority of Canada, and otherwise defines the statutory duties and obligations of such companies to the public and the municipalities through which their railways pass, and it is not competent for a provincial legislature to legislate with regard to that subject. The several sections above referred to are, however, applicable to provincial rail- ways, and it does not appear to the undersigned that they are intended to have any more extended application. If, however, such provisions can be construed as intended to extend to railways under Dominion control, the companies thereby efiFected would have a remedy in the courts ; and the undersigned, therefore, does not consider that with regard to these statutes, the power of disallowance should be exercised. Chapter 66 : " An Act to amend and consolidate the charter of the town of Chicoutimi." By section 61, paragraph (c) it is provided that the council shall have power to make by-laws " for the maintenance of good order, for the preservation of good morals, the closing and suppression of any disorderly house or building, whatsoever, for punish- ing the occupants of such house or building, and the persons who frequent the same." The undersigned refers to sections 198 and 307 of the Criminal Code, which provide for the punishment of keepers and occupants of disorderly houses, and states that this paragraph appears to contemplate the punishment of such offenders b}' virtue of a municipal by-law. To that extent the enactment is beyond the power of the provincial legislature. It appears to the wndersignetl, however, that by-laws might be framed under the paragraph in question, which would not be open to objection, and the courts M: 464 QUEBEC LEGISLATION would afford a remedy as to any by-law which might properly be considered ultra vires. The remaining provisions of the statute in question appear to be unobjectionable. Chapter 71 : " An Act to amend the Act 44-45 Victoria, chapter 44, incorporating the Quebec, Montmorency and Charlevoix Railway Company and amendments thereto, and granting additional powers to the said company." By section 6 the company is empowered to build, or charter, and operate, steam or other vessels on the St. Lawrence and Saguenay River and all other lakes and rivers touched by the said railway. The undersigned desires to point out that the provincial legislature could not era- power the company to build or operate vessels on waters beyond the limits of the province. The section referred to is, nevertheless, broad enough in its terms to authorize the company to build and operate vessels upon any part of the St. Lawrence and other rivers and lakes touched by the railway, even although not within the province. The undersigned recommends that this objection be called to the attention of the government of the province, in order that the authority intended to be conferred by the section may be so limited by amendment, as not to exceed that which the legislature has power to grant. Chapter 75 : " An Act to incorporate ' The Merchants' Fire Insurance Company." By section 11, it is provided that "the company may insure, against fire, mov- ables and immovables of all kinds within the limits of the province, on such conditions as it may deem expedient, re-insure its risks and those of other companies, and generally do all other transactions and things necessary for obtaining the object of its incorporation, having depc^sited, with the provincial treasury the sum of $25,000 as a guarantee or a security for the policy holders in the said company." The unde signed construes this section as merely intended to define the conditions under which, so far as provincial authority is concerned, the company can be authorized to carry on business, and not as intended to authorize the company to disregard any of those provisions of the Insurance Act with which it will be necessary for it to comply, before engaging in the business of insurance, it being obviously beyond the power of the legislature to dispense with the requirements of the Insurance Act. The undersigned respectfully recommends that the several statutes mentioned in this report be left to their operation, and that a copy of the report, if approved, be sent to the Lieutenant Governor of the province of Quebec, for the information of his govern- ment. Respectfully submitted, JNO. S. D. THOMPSON, Minister of Justice. Deputy Minister of Justice to the Hon. the Attorney General, Quebec. Department op Justice, Ottawa, 11th September, 1894. Sir, — I am directed to transmit herewith copy of petition of Mr. George Ball and others (which please return) addressed to his Excellency in Council, praying for the disallowance of an Act passed at the last session of the Quebec legislature, being 57 Victoria, chapter 83. You observe that the petitioners ask for the disallowance of this measure upon the ground that it interferes with the vested interest guaranteed to them under a previous statute, the contention being, as I understand it, that the e^ect of the Act in question is to provide for the taxation of the taxable property, of the Roman Catholics of the Pari>e pleased to receive such observations as I may desire to offer with regard to the complaint of the petitioners and legislation in question. In answer I beg that I have carefully examined the petition in question and am of opinion as follows : That it does not appear that the provincial legislature has exceeded its powers in enacting either statute nor has unwarrantably interfered with private rights in either case. The Act 49-50 Vic, cap. 42, was passed on a petition presented to the legis- lature by the Bishop of Nicolet, supported by the unanimous resolution of the free- holders of the parish of Nicolet, and handed over certain property to the Bishop, upon certain conditions as to the expenses of maintenance, Ac, subject always, however, to article 10 of the Revised Statutes, and the Act 57 Vic, cap. t^3, was passed upon a similar petition, supported by the unanimous resolution of the freeholders of the parish, and authorized two municipal councils to subscribe to tlie rebuilding of the cathedral and levy, for that purpose, a tax upon the freeholders of the parish who had authorized the petition for the Act. Yours sincerely, TH. CHASE CASGRAIN, Attorney General. Report of the Hon. the Minister of Justice, approved hy His Excellency the Governor General in Council on the 11th October, 1894- Department op Justice, Ottawa, 10th October, 1894. To His Excellency the Governor General in Council : The undersigned has the honour to report upon Chapter 83 passed by the legis- lature of the province of Quebec in the 57th year of Her Majesty's reign (1894) — received by the Secretary of State for Canada on the 23rd day of January, 189''., as follows : Chapter 83 : An Act to grant extended powers to the municipal corporation of the town of Nicolet, and of St. Jean Baptiste de Nicolet. A petition addressed to jour Excellency in Council from George Ball and others, praying for the disallowance of this Act, has been referred to the undersigned. The petition, together with the correspondence relating thereto, is hereunto annexed. The petitioners claim that the statute should be disallowed, not because it is ultra vires of the legislature, but because, as the undersigned understands the petition to allege, it authorizes the imposition of a tax upon the taxable property of the Roman Catholics of the parish of St. Jean Baptiste of Nicolet, for the purpose of building a Roman Catholic Cathedral at that place, the entire cost of such building having been, as the petitioners contend, previously assumed by the Roman Catholic Episcopal Cor- poration of the diocese of Nicolet, under the provisions of (Chapter 42 of the statutes of Quebec pa-ssed in the year 1886. The undersigned considers that it was at least incumbent on the petitioners 'to establish clearly to the satisfaction of your Excellency that the measure is one which I 57 VICTORIA, 1894. 467 |o/ Justice. |mber, 1894. the 11th inst., Issed to his Ex- Iwance of an Act |(ind stating tliat ■ with regard to Bstion and am of 1 its powers in rights in either id to tlie legis- tion of the free- ;he Bishop, upon ays, however, to d upon a similar the parish, nnd e cathedral and d authorized the RAIN, orney General. cy the Governor bober, 1894. d by the legis- reign (1894)— muary, ISg-*., as rporation of the Ball and others, igned. >> is hereunto 3ause it is ultra the petition to r of the Roman ie of building a g having been, Episcopal Cor- the statutes of I petitioners 'to ■e is one which unwarrantably interferes with individual property or rights, and is not justified by any countervailing consideration in the public interest, and it does not seem to the undersigned that either of these conditions appear in the present case. The undersigned observes that by the statute in (juestion, it is recited that a resolution had been unanimously adopted by the freehold inhabitants of Saint Jean Baptiste of Nicolet, praying that authority might be granted to tlie municipal coipora- tionof the town, to subscribe towards the rebuilding of the cathedral. This fact is not called in question by the petition, and it would appear to be a legitimate inference that the petitioners, if they have interests which are affected by the statute, which does not clearly appear from the petition, have been consenting parties to the movement which has resulted in the legislation in question. Attention is called to article 10 of the He vised Statutes of Quebec, which as applied to the Act under consideration expressly reserved to the legislature, whenever the public good might require it, the power of repealing, revoking, restricting or modifying any power, privilege or advantage thereby secured to the petitioners, as, no doubt, would be the case without such enactment. The undersigned further observes that the whole subject of this legislation seems to be witliin the powers conferred on the legislature of the province, and he does not consider that the case is one for the exercise of the power of disallowance vested in your Excellency. The undersigned, therefore, recommends that the statute be left to its operation, and that a copy of this report, if approved, be transmitted to the Lieutenant- Grovernor of the province for the information of his government. Respectfully submitted, JNO. S. D. THOMPSON, Minister of Justice. (Translation.) Petition from Master Workman J. A. Rodier, and Executive Committee, District 19, Knights oj Labour. Montreal, 11th October, 1894. To His Excellency the Governor General in Council : May it please your Excellency : The humble petition of the undersigned ratepayers of the city of Montreal, P. Q., humbly showeth : That by Act 57 Victoria, chapter 57, intitutled : " An Act to modify Act 54 Victoria, chapter 78, relating to the charter of the city of Montreal", the legislature of the province of Quebec was pleased to modify the charter of the city of Montreal, with- out the approval, and against the will of the regularly constituted municipal authority, and outside of the knowledge of the ratepayers, and in violation of the limited powers conferred upon it by the British North America Act ; That the moditicatiom so made to the said charter have had the effect of depriving the said ratepayers of the said city of the right of administering their own affairs and especially of disposing, without constraint, of their own moneys ; That such provincial legislation is contrary to the public interest and an infringe- ment upon the liberties and the right of property of the citizens by its effects, as well as by the means by which it was obtained ; That moreover such provincial legislation is contrary to the dignity of the Crown, in whose name it was declared, under the pretense of a false preamble ; That it appertains to your Excellency to safeguard in Canada, by the right of dis- allowance, the dignity of the Crown and the public interest, which are endangered by such provincial laws ; That your petitioners are ready to substantiate before your Excellency in Council the facta set forth in this petition ; i 468 QUEBEC LEGISLATION Wherefore your petitioners, liaving for the purposes of the present petition elected domicile at the residence of Mr. Joseph Alphonae Rodier, Master Workman of District No 19, of the Knights of Labour, 109 St. Louis Street, Montreal, pray that your Excellency will be pleased to admit them in his honourable Council so as to hear the proof of their allegations and, after having heard them, to exercise his right of disallow- ance against the said Act, 57 Victoria, chapter 57, according to the wishes of your petitioners. And your petitioners will ever pray. J. A. RODTER, Master Wgrhnan of District No. 19., Knu/hts of Labour, and seven members of Executive Committee. Report of the Honourable the Minister of Justice, approved by His Excellency the Governor General in Council on the iiOth day of October, ISdJf. Department of Justice, Ottawa, 22nd October, 1894. To His Excellency the Governor General in Council : The undersigned has the honour to submit a copy of a petition addressed to your Excellency in Council, dated 11th October, 1894, signed by J. A. Rodier and seven others, being the Executive Committee of District No. 19 of the Knights of Labour of Montreal, which was referred to the undersigned on the 15th instant. The petition refers to an Act passed by the legislature of the province of Quebec in the fifty-seventh year of Her Majesty's reign (1894), being chapter fifty -seven, entitled : " An Act to amend the Act, Fifty-four Victoria, chapter seventy-eight, concerning the charter of the city of Montreal." The petitioners having by their petition alleged several general objections to the statute in question, pray your Excellency " to receive them in your Honourable Coun- cil and hear the proof of their allegations, and, after the parties have been heard, to exercise you prerogative of disallowance with regard to the said Act." The undersigned by his report, which was approved by your Excellency in Council on 9th instant, stated that, in his opiuion, this statute was unobjectionable and might be left to its operation. The undersigned, having considered the several objections set forth in the petition, does not at present see any reason for changing the opinion previously expressed. The objections urged by the petitioners are stated in a very general manner, and, while it is alleged that the legislature has exceeded the powers vested in it under " The British North America Act," the undersigned, from the expressions with which this objection is introduced, and having regard to the provi.sions of the statute in question which relate merely to the payment of the cost of widening certain streets in Montreal, entertains no doubt that the petitioners have mistaken the scope of the powers so vested in the pro- vincial legislature. As to the request of the petitioners for a hearing before your Excellency in Coun- cil, the undersigned observes that it has never been the practice of your Excellency in Council to hear petitioners orally, either for the purpose of proof or argument, and the undersigned recommends that the petiiioners in the present case be so informed, and that such a request cannot be acceded to. The undersigned also recommends that the petitioners be further informed that, while the character of their complaint, as gathered from the general allegation of their petition, would not appear such as to aflford reason for any action on the part of Your Excellency, yet if they desire to submit a specific statement of their objection in writing within the time limited for disallowance, your Excellenc/ will be pleased to give it due consideration. Respectfully submitted. JNO. S. D. THOMPSON, -^ Minister ofJuaticf- 58 VICTORIA, 1895. 469 ent petition elected orkinan of District al, pray tliat your HO as to hear the is right of disallow- ;he wishes of your f Labour, ive Committee. flix Excellency the October, 1894. addressed to your Rodier and seven lights of Labour of )vince of Quebec in fty-seven, entitled : jht, concerning the 1 objections to the Honourable Coun- Lve been heard, to . it cellency in Council ionable and might *th in the petition, y expressed. The er, and, while it is ider " The British ich this objection Bstion which relate real, entertains no vested in the pro- tcellency in Coun- oUr Excellency in irgument, and the so informed, and ■er informed that, il legation of their the part of Your ijection in writing sed to give it due •N, sr qfJuaticf. QUEBEC— 58th VICTORIA, 1895. (4th Session, 8th Leoislature.) Report of the Honourable the Minister of Junfice approved hy Ifin Excellency the Governor General in Council on the 22nd October, 1895. Depahtment of Justice, Ottawa, 13th October, 1895. To His Excellency the Governor General in Council : The uiidprsigned has the honour to report that he has examined the Acts passed by the legislature of the province of Quebec in the fifty-eighth year of Her Majesty's reign (1895), chapters 1 to 19, 21 19 109, received by tlie Secretary of State for Canada on the 2nd day of February, 1895 ; and he is of opinion that they are unobjectionable and may be left to their operation. Chapter 20 has been reserved for a special report. The undersigned also recommends that if this report be approved, a copy of the same, with a copy of the schedule of the titles of the Acts, be sent to the Lieute'^ant Governor of the province of Quel)ec, for the information of his government. Respectfully submitted, CHARLES HIBBERT TUPPER, Minister 0/ Justice. Report of the Honourable the Minister of Justice, approved by His Excellency the Governor General in Council on tJie 22nd October, 1895. Department of Justice, Ottawa, 18th October, 1895. To His Excellency the Governor General in Council : The undersigned has the honour to submit his report upon chapter 20 of the Statutes of the province of Quebec passed in the fifty-eighth year of Her Majesty's reign (1895) entitled "An Act to amend the law relating to fisheries and fishing in the waters under the control of this province," which Act was assented to on 1 2th January, 1895, and was received by the Secretary of State for Canada on the 2nd of February, 1895. This Act provides, among other things that every dam, slide or other obstruction across or in any waters under the control of the province shall be provided by the owner or occupant, with a durable and efficient fish-way, where the Commissioner of Crown Lands determines it to be necessary ; that the place, form and capacity of the fish-way may be prescribed by the commissioner ; that every one violating this requirement shall incur a penalty ; that fish-ways shall be kept, open and unobstructed, and shall be supplied with a sufficient quantity of water to fulfil the purposes of the law, during such time as may be required by the commissioner. A penalty is established for injuring or obstructing any fish-way or hindering fish in ascending or descending. The commis- sioner is also authorized to grant permission to certain persons to take, at any season, from any waters belonging to the crown, whether leased or unleased, breeding fish, in order to obtain ova for propagation purposes. 80 U ' .-JiL M* 470 QUEHEC LEGISLATION 'I'liese provisions, i» the opinion of the undersigned, strictly relate to the subject of seacoivst and inlimd fisheries, as to which, legislative authority is vested in parliament. They are further, in some respects, inconsistent with Dominion legislation which has already been enacted, covering the same ground. The provisions are, therefore, in the opinion of thi- undersigned, nftra virex. Inasmuch, however, as there is a difference between the provinces and the Dominion as to tiie extent f f their respective legislative jurisdictions with regard to fisheries, which has l)een referred to the courts for determination, and as the courts would also all'ord a remedy for any individual who might claim to be injuriously affected by this legislation, the undersigned recommends that the Act be left to its operation, and that a copy of this report, if approved, be transmitted to the Lieutenant-Governor of Quebec, for the information of his government. llespeutfully submitted, CHARLES HIBDERT TUPPER, ' Minister of Justice. NOVA SCOTIA LEGISLATION— 31 VICTORIA, 1868. 471 to the Hubjcct of (1 ill parliainent. ation which ImH thereforo, in the )ViiicoH iiiul the s with regard to 111(1 as the courts uriously affected to its operation, iiant-Governor of PPER, er of Justice. NOVA SCOTIA— 31sT VICTORIA, 1868. (IsT Skshion — 24th Gemkral Ahhemih.v.) Report of the Honourable the Minister of Jiinli.ce, approved In/ //is Exi-elli'in-y the Governor (ieneral in Council, on the ^^'n'l Febriinry, ISIl'J. Department of Justice, Ottawa, 19th February, 1869. With reference to the Imperial "British North America Act, 1867," and also to the Order in Council of the 9th June, 1808, on the memorandum of the undersigned, relative to the course to be pursued with respect to the Acts passed by the provincial legislatures, the undersigned has the honour to report : — That he considered the Acts mentioned, cliapt s not allow the previous law, except as to the person who shall distribute licenses, the undersigned does not recommend its disallowance, but suggests that the attention of the government of Nova Scotia be called to the subject. Chap. 4, intituled : "An Act to amend chap. 137 of the Revised Statutes (of the Relief of Insolvent Debtors)." Tlie law of Bankruptcy ond Insolvency is to be dealt with under the British North America Act, 1867," by the Parliament of the Dominion of Canada, and therefoi (> the Act in question would seem to be ultra vires. As, however, the Act now amended, may be considered more as an Act for the relief of indigent debtors, than a law of Insolvency, and as its main object is to establish a remuneration for the commissioners, the undersigned recommends that it be left to its operation, but that the attention of the government of Nova Scotia be called to it. A measure of a similar nature was passed in the session of 1868 by the legislature of New Brunswick, and the court there has declared the Act to be unconstitutional. Probably, if the question arises in the courts of Nova Scotia, the same decision will be arrived at. Chapter 18, intituled: "An Act to amend the Act for the appointment of a Stipendiary Magistrate and Police Constable in the town of Pictou." The second clause of the Act is objectionable. The clause is as follows : " On the trial of all larcenies there shall be on the bench at least, three justices of the peace, including the stipendiary justices, and a jury of three disinterested persons shall be sworn to try the prisoner if required l)y him." The provision as to a jury of three disinterested 'persons is one connected with criminal procedure. By the 27th paragraph of the 91st clause of the "British North America Act, 1867," it is provided that the Parliament of Canada shall deal with criminal law, except the constitution of the courts of criminal jurisdiction, but including the pro- cedure in criminal matters, -^' «. 31 VICTORIA, 1808. 491 IdWs ; — I Scotin. hoyonrl tho kcMiior (iiiil Council vicncy the Oovernor August, 1869. ure of Nova Scotia, if>])ort us follows : — I'isecl Statutes of the and deaths, and the 1H()6, and provides I with the Cliairman e distributed by the as the power of General as ordinary, f niuriages, it must e niittcd to the tl 'pinion of Her diM s not allow the the undersigned does of the government led Statutes (of the er the British North nd therefor <> the Act w amended, may be I law of Insolvency, commissioners, the ilie attention of the 8 by the legislature be unconstitutional, me decision will be e appointment of a follows : leasi three justices three disinterested me connected with bhe " British North 1 deal with criminal including the pro- The undersifjiied reconiniunds that tho attention of the govornmont of Nova Scotia be called to this elausc* in order to its reptsal next session. ( I'/ii^ Ai'f iran nmfuded Ity vpfitliixj t/if MfcoH'i Hf 'ion llu'Vfof. Sri' Sfiilii/fn, X. .S'., ■I.lnl Vi<\ chap, Jf.i.) It is suggested that it would lie well for tin- goverrnnerit ot Nova Sootia mean- while to cull up(tii the magistracy not to net under that elause, as otherwise, on oljjt)C- tioti lH;ing taken, criminals may be disehatged and a fi'.ilurn of justice ensue. Chap. '21, intituled ; " An Act to empower the Polico Court in the city of Halifax to sentence tJuvenile OlVendors to the Halifax In- of thn ilUth AiujiiMt, /St!!). Vol. III., Xo. J.I, p. -IS/}. Chap. 37, intituled : " An Act t > amend the Act to incorporate the ' Union Marine Insurance Company of Nova Scotia; ' " After full consideration tho undersigned respectfully recommends that this Act be left to its o[)eration. All of which is respectfully submitted. JOHN A. MACDONALD - 474 NOVA SCOTIA LEGISLATION NOVA SCOTIA— 32nd VICTORIA, 1869. (2nd Session — 24th General .Assembly.) Report of the Honourable the Minister of Justice, approved by His Excellency the Governor General in Council on the 9th Novrmhcr, 1869. Department of Justice, Ottawa, 4th November, 1869. With reference to the Imperial " British North America Act, 1867," and al^o to the Order in Council of the 9th June, 1868, on the memorandum of the undersigned, relative to the course to be pursued with respect to the acts passed by the provincial legislatures, the undersigned has the honour to report, that, in his opinion, all the act.o passed by the legislature of the province of Nova Scotia, in the second session thereof (32ud Victoria) with the exception of chapter eleven, " An Act to amend Cap. 75 of the Revised Statutes ' Of Shipping and Seamen,' " should be left to their operation, and he respectfully recommends accordingly. The undersigned, while recommending that chapter 12, intituled : " An Act in addition to Chap. 162 of the Revised Statutes, ' Of oSences against the Public Peace,' " bt left to its operation, feels it his duty to report that he has great doubt whether sections 2 and 3 ■ ■ i not idtra vires. The otfences mentioned in those two clauses arc misdemeanours. It would seem, therefore, that the Act relates to criminal law, which by the 27th paragraph of section 91 of the " British North America Act, 1867," is subject, exclusively, to legislation of the Dominion Parliament. He is also inclined lo believe tliat chapter 16, intituled : " An Act to amend Cap. 92 of the Revised Statutes of the preservation of useful Birds and Animals," and the Act in amendment thereof, is beyond the jurisdiction of the provincial legislature, as it aflFects trade and commerce. By the second paragraph of the clause above cited, laws for the regulation of trade and commerce are to be dealt with by the Dominion Parliament. The undersigned recommends that the attention of the government of Nova Scotia be called to these two Acts, and their consideration of the objection taken to them invited. JOHN A. MACDONALD. Report of the Honourable tfie Minister of Justice, approved by His Excellency the Governor General in Council, on the 9th November, 1S69. Department of Justice, Otfawa, 4th November, 186^. With reference to the following Act passed by the legislature of the province of Nova Scotia at its session (32nd Victoria), the undersigned has the honour to report as follows : That chapter 1 1, intituled : " An Act to amend Cap. 75 of the Revised Statutes ' Of Shipping and Seamen ','' is objectionable ; as any amendment of that Act can only be passed by the Parliament of the Dominion, which has, by the British North America Act, 1867, exclusive jurisdiction in all legislation relating to tra^le and commerce, and navigation and shipping. The attention of the government of Nova Scotia, should be called to this Act ; and they should at the same time be request^-d to state whether they would prefer repealing it at the next session of their legislature, or having it disallowed here. Should the latter course be adopted, the undersigned woijld recommend that an Act similar in its provisions to the one in question, be submitted to the Parliament of Canada at its next session. All which is respectfully submitted. JOHN A. MACDONALD. NoTK. — The time within which this Act oould be diaallowed, expired without any disallowance. 11 33 VICTORIA, 1870. 475 1869. by His Excellency the '(IT, 1869. bh November, 1869. Act, 1867," and aldo to um of the undersigned, assed by the provincial his opinion, all the acts e second session thereof fVct to amend Cap. 75 of t to their operation, and intituled : " An Act in inst the Public Peace,' " las great doubt whether wurs. It would seem, 'th paragraph of section usively, to legislation of ' An Act to amend Cap. and Animals," and the )vincial legislature, as it the regulation of trade ?rnment of Nova Scotia bjection taken to them .. MACDONALD. by His Excellency the ir, 1S69. h November, 1869. iure of the province of the honour to report as he Revised Statutes ' Of ot" that Act can only be British North America i trade and commerce, be called to this Act ; her they would prefer ng it disallowed here, commend that an Act to the Parliament of . MACDONALD. lOut any disallowance. KOVA SCOTIA-33RD VICTORIA, 1870. (3bd Session— 24th General Assembly.) Report of the Honourable th. Minister of J^i^^-fP^.^'f ^^ His Excellency the Keport oj im ^^^^^^^ ^.^^^^ .^ (.^^^^.-^^ „„ the 28th September, 1870. Department of Ju.^tice, Ottawa, Sept. 23rd, 1870. The undersigned has the honour to report t^ha^af^^^^^^^^^^^^^ opinion that the Act (chap. 2) passed by the \eg^^^ "? "« TZ^Tto improve th^ ^^^° Ttetdersigned. however, thinks it necessary ^ call attention - the^J c^-^^^^^^^ the Act. which legislates as to the ^isn urge oij^^^l^^^^^ olLoUenl /he ';^:X^ei:^T^^l2^::t^^^ - wa^ant the undersigned in recom- mending the disallowance of the .vet. JOHN A. MACDONALD. Seport of the Honourable the Minister of Justice, ^^f-f % .^^^ ^^'^'"^y '"^ Report OJ g^^^^^^^ G,,^ral in Council, on the 24th October, 1870. Department of Justice, Ottawa, October 19th, 1870. the ui>dev»igned tas the honour to report ;-^ ,.„,.l.ture ot the province of Nova That -.n his ojMnion -'''^^'Jf'^^^^l^^.^'TlZvi^J'^ tho«, under- Sad Se'tbcreL re»n.n,e„d.'th.t the »me be left le .h„r operation. St*"T'"^Z Srat: JeC- lot:l *rRev« Statute.. .Of the »n. Harbours and Harbour Masters.' All which is respectfully submitted. JOHN A. MACDONALD. ..• A ^ the early notice LD, nt-Governor. da, in Council : •any (Limited), irt of capitalists rch, 1867, as a ed : " The Com- Nova Scotia (30 he construction railways of the »nce of eighty- The capital embarked by your capitalists amounts to £.300,000, in fifteen thousand shares of £20 each. Your memorialists have, as provided by their articles of association, also raised the further sura of £200,000 by the issue of terminable debentures carrying interest at the rate of six per cent per annum. Your memorialists having completed the construction of the line of railway, have now opt'rated it, with the utmost energy and regularity, for more than five years ; but all their efforts have hitherto failed to derive a return on their invested capital, the income from the road after payment of expenses not even sufficing to meet any part of the interest upon the debenture debt. Your memorialists, however, hw-v, with continued regularity, paid this interest to the holders of their debentures, having necessirily to provide the funds thoiefor by borrowing, and the capital requirements of the road having been met in a bimilar manner, your memorialists have, up to the present time, increased floating debts to the amount of £100,000. It would, therefore, appear that the circumstances of the company are such as to necessitate an increase of capital, and their articles of association giving them power to negotiate such increa.se, your memorialists last year proposed a scheme to their bond- holders by means of which a further sum of £190,000 might be raised on mortgages, to rank equal with those already existing, and over four fiftlis of the parties interested acquiesced in the said scheme. But owing to the objection of a few remaining bondholders, your memorialists were unable to carry out this scheme, and the interest of the whole of the capitalists connected with the undertaking- were thereby endangered. In order, therefore, to protect the interests of the great majority of debenture holders, and that the ill-advised hostility of a few, might not be permitted to hamper the well-considered plans of your memorialists for the benefit of the line, a bill was introduced into the Honourable the House of Assembly of Nova Scotia, entitled : " An Act to facilitate arrangements between Railway Companies and their creditors," the intention of which was to prevent any small number of creditors from exercising the power of selling or otherwise acting towards your memorialists' property, in a way likely to aflFect the continued running of the road. This bill was twice passed by the Honourable the House of Assembly in their sessions in 1872 and 1873 respectively ; in both instances, however, it was too late to pass the legislative council. At the last session the bill being again iutioduced, was unanimously pa' "ed by both Honourable Houses. His Honour the Lieutenant-Governor, however, reserved the Act for the consider- ation of your Excellency in Council. It has come to the knowledge of your memorialists that a few gentlemen, in Halifax, holding bonds to the extent of some seven thousand five hundred pounds sterling, have thought fit to petition your Excellency to withhold your assent to their bill, on the grounds that it will materially affect a prior lien upon the property, which they claim to hold, to the exclusion of other bonds of the same class, and com- pel them, at the instance of other creditors of the company, to compromise their just claims. It is further stated in the said petition that the petitioners would have opposed the passage of the Act, had they been awn re of its introduction into the House of Assembly, and also that it was hurried through the legislative council before they were enabled to signify their objections to it. Your memorialists regret to observe that there is considerable error in their state- ments, since the bill was introduced on the 24th March ; read second time and referred to Committee on Law Amendments, 26th March ; reported from this comnuttee, and committed, 9th April ; passed in committee and ordered to be engrossed, 5th May ; read a third time and sent to legislative council, 5th May ; every stage of these pro- ceedings being duly reported in the newspapers. Also, upon its being sent to the legislative council, opposition was made thereto by the gentlemen signing the abovemeutioned petition, and, in consequence, the Bill 484 NOVA HCOTIA LEGINLATION wna referred to a ooinmitteo of the council, the Hon. Mr. Creighton beiri;; Chairman, who summoned reprcHentatives of those gentlemen and of your inemorialiNts to apjteiir before them. Accordingly, on the 6th of May, Dr. Lewis, of Hiiiiiax, appearing for certain of the objecting parties, w.ia heard before the said committee, wlio also examined your memorialists' commissioner, and the said committee reporting in favour of tlie Bill, with certain amendments, it was passed in the council, returned to the House of Assembly, iind finally passed on the 7th of May. Your memorialists claim that the passing of the bill will be no injustice to the opposing parties, nor to any of the company's creditors, since it provides tlwvt anv scheme of arrangement must V)e assented to in writing by three-fourths of the class of creditors aflPected by its proposals, and that, should any refuse their assent, they may be heard before a judge of the Supreme Court, who, upon considering their objections valid, may disallow the pr»)poseonds of the same class not registered at all, or registered subsequently." That if the Act should be assented to, they are afraid that they would be prevented from recovering the amount justly due them by the Windsor and Annapolis Railway Company, and be compelled, at the instance of the company and its creditors, who are not secured to the same extent as they are, to compromise their claims and give up their security. That they had intended to have appeared lieforethe Couiniittee of the House of Assembly and oppose the passage of the Act, but that none of them were aware that the same had been introduced until it had passed through the House on the 5th May last, and that as it was hurried through the council on the morning of the 7th May, the same day on which the legislature was prorogued, they were unable to oppose its passage. That if the Act becomes law, great injustice will be done to them, and they pray for its disallowance, so that they may have an opportunity, in case the Act is again in- troduced into the local legislature, of being fully heard before a committee in the House. In the letter transmitting this petition, the writer states that the bill would have been defeated in the legislative council, but for an intimation of Dr. Parker that the rights of bondholders would not be affected. 3. The Windsor and Annapolis Railway Company (Limited), presents a petition in favour of the passage of the Act, stating that they are a company incorporated in England, under the "Joint Stock Companies Act." for the construction and working of a portion of one of the sections of the government railways, from Windsor to Anna- polis, being eighty-five miles. That the capital embarked is £300,000 sterling, with further sum of £200,000 sterling by the issue of terminable debentures at 6 per cent interest per annum. They allege that they have completed the construction of the line, and have oper- ated it for five years, but unsuccessfully ; and that they have paid interest to the de- benture-holders, and have thereby incurred a floating debt to the amount of £100,000. That the company require an increase of capital, and their articles of association permit such increase. That they proposed a scheme to the bondholders by means of which a further sum of £100,000 might be raised on mortgages to rank equally with those already existing ; and that over four-fifths of the parties interested acquiesced in the scheme, but that the few remaining bondholders objected, and the scheme fell to the ground. That to meet this difficulty the bill in question was passed ; the intention being to prevent any smaller number of creditors from exercising the power of selling or other- wise acting in a way likely to affect the continued running of the road ; and that the bill was twice passed in the House of Assembly in their sessions of 1872-73, but in both instances, too late to pass the legislative council. With reference to the allegations in the petition against the bill, as to the i- ame having been hurried through the legislature, they state that the bill was introduced on the 24th March, passed the committee with amendments thereto, and did not pass the Assembly until the 5th May ; and that in respect to the Council, the representatives of the gentlemen who petitioned against the same were summoned, and appeared be- fore them. 31 ir :U[ i-'' NOVA SCOTIA LRdlRLATION They allege that the passage of the bill will be no injustice to the op|;>08ing parties or to any of the company's creditors, since it pn)vides that any st-home of arrangement must \)e assented to by three- fourths ' the class of creditors affected by it, and by other provisions. They contend that such an Act is indispensable to any railway company in mone- tary ditKculties, and that, if disallowed, the company would be debarred from all pow- er of developing their property, or even from saving it from annihilation, and an injury would be done to the creditors. 4. The bill itself provides that a company may propose a scheme of arrangement between itself and their creditors, with or without provisions for settling, and defining any rights of shareholders as among themselves, and for raising, if necessary, additional share and loan capital, and may file the same in the Supreme Court, upon which the latter may. on tho application of the company, in a summary way, restrain any action ngainst the company on such terms as the court thinks fit. Notice of the filing of the scheme is to be published, after which no execution or process against the company Bliall be available, without leave of the court. The scheme is to be deemed to be assented to by the creditors when p - oed to in writing by three-fourths in value, and by the preference shareholders by ' je-fourths in value of each class, and by the ordinary shareholders when assented *■ .t an extra- ordinary general meeting, specially called for that purpose ; but the ■■ .c to the scheme of any class of encumbrances or shareholders is not to be re({uisite, if the scheme does not prejudicially affect any right or interest of such class. If the directors thereupon consider the scheme to be assented to, they may apply to the court by petition for confirmation, and the court, if satisfied that the scheme has been assented to, and that no sufficient objection has been established, may confirm it, whereupon it shall be enrolled in the court and binding on all parties. 5. It is under the foregoing circumstances that the bill requires either your Ex- cellency's assent or disallowance. It may be mentioned, in the first place, that the Act is by its terms specially limit- ed to any railway company constituted by any Act of the legislature of Nova Scotia ; and, further, that it does not conflict with any law of Canada relating to bankruptcy or insolvency. The Insolvent Act of Canada, 1869, does not extend to incorporated companies, and to reach such matter as the present, it would be requisite that legislation should, if necessary, be had. As to the necessity for legislation of such a kind as the present, or of its nature, there can be no doubt that it frequently exists, and in England provision is made frequently for the winding up of companies, or for enabling them to come to terms with the various classes of creditors on fresh provisions and arrangements, which shall enable a concern to be carried on. The same legislation has, on various occasions, been parsed by the parliament of Canada — not, indeed, to the extent of wij.fl'ng up. but as to re-arrangements of its shares and debenture indebtedness. In sc dvivg xt is obvious that private interests must be more or less affected, and it is, thereto; i-, left to a majority or Idrger proportion of the parties interested to decide whether t'le scheme should be accepted by them or not. In reference, therefore, to the allegations made by the petitioners against the bill, and as it appears for nearly six weeks after its introduction into the legislative as- sembly, the petitioners had the power of taking steps to represent their interests before the legislative assembly oi Nova Scotia, and as the same passed the committee of both Houses and was amended in both, the undersigned is of the opinion that no reason ex- ists on these grounds for withholding your Excellency's assent. 6. The point, therefore, for consideration, and which is one of some importance, is that raised by the Lieutenant-Oovernor, namely, chat the Act deals with a subject not i 37 vicToniA, 1874. 487 pfKMi'ng partien of nrningomnnl t, ftnd by other ipuny in inone- from nil pow- and an injury )f arrangement g, and defining wry, additional upon which the ain any action 10 filing of the the company en '•'•■ ted to je-fourths •t an extra- to the scheme he scheme does to, they may isfied that the Ben established, binding on all iibher your Ex- specially limit- : Nova Hcotia; > bankruptcy or ted companies, ition should, if of its nature, avision is made J to terms with ch shall enable B parliament of lements of its rivate interests •ger proportion pted by them rainst the bill, legislative as- nterflsts before nittee of both no reason ex- e importance, 1 a subject not within the jurisdiction of a local legiiilnture, inasmuch as it deals with "bankruptcy and insolvency " which are, by the Britixh North A erica Act, 1807, reserved to the parliament of Canada alone. U|)on this [)oint the undersigned refers to the judgment of the .Judical Committee of the Privy Council on the appeal of L'Union Ht. Jac(|ue8 do Montreal v. Daniu Jiilie Melisle, on appeal from the Court of Queen's Bench for the province of Quebec, Canada (apj)e:il side) delivered 8th July, 1874.* In that cose an Act was passed by the legislatute of the province of Quel)ec, in reference to the Society of L'Union Ht. Jacques de Montreal, imposing a forced com- nmtation of the existing rights of two widows, who at the time when that Act was passed, were annuitants of the society under the rules. The reason for that Act was, by its recitals, stated to oe that the resources of the society had l)een considerably reduced, and encroachments made on its savings and the balancing of receipts and expenses prevented, and that two out ot four widows of de- ceased members had agreed to allow their weekly and life benents to be les.sened, but that the other two refu.sed so to do, and that it had been shown that the financial con- dition of the association did not permit of its continuing to pay to the two wi lows their previous pensions without entailing its own ruin. The Judical Committee of the Privy Council said : " Clearly this matter is private, clearly it is local, so far as locality is to be considered, because it is in the province, and in the city of Montreal, and unless, therefore, the general effect of that head of section 92 is for this purpose qualified by something in section 91, it is a matter not only within the competency, but within the exclusive competency, of the provincial legislature." The (|uestion then was whether it was a matter coming under bankruptcy and insolvency, a. / the view taken by their I^ordships in this respect is set out. They further add that no general law, in respect to bankruptcy and insolvency, covering particular associations, or the society in question, is alleged ever to have been passed by the Dominion, and they add these words : — "The fact that this particular society appears, upon the face of the provincial Act, to have been in a state of embarrassment, and in such a financial condition that, unless relieved by legislation, it might have been likely to come to ruin, does not prove that it was in any legal sense within the category of insolvency, and in point of fact, the whole tendency of the Act is to keep it out of that category, and not to bi'ng it into it. The Act does not terminate the company ; it does not propose a final distnljution of its assets on a footing of insolvency or bankruptcy ; it does not wind it up. " On the contrary, it contemplates it going on, and possibly at some future time recovering its prosperity, and then these creditprs, who seem on the face of the Act to be somewhat summarily interfered with, are to be re-instated. " Their Lordships are clearly of the opinion that this is not an Act relating to bankruptcy and insolvency." The undersigned is oJE the opinion that the present reserved bill of Nova Scotia, comes within the argument taken by their Lordships in the case of the Quebec Act. Al- though in the Nova Scotia bill, no particular company is named, yet it applies to any railway company within the legislative competence of that legislature, in a stale of em- barrassment, and in such a financial condition that, unless relieved by legislation, it may be likely to come to ruin. In point of fact, indeed, as was observed by their Lordships, Ihe whole tendency of the bill of Nova Scotia is to keep it out of that category, and not to bring it into it. The bill does not terminate the company ; it does not propose a final distribution of its assets on the footing of insolvency or bankruptcy ; it doe- not wind it up. On the contrary, its object is to ensure its going on and recovering its prosperity. The Act itself seems very reasonable. It propounds a scheme to be filed in the Supreme Court, and which from begining to end, is to be under the protection of the court, and before which any sufficient objection may be heard. •See 8 L. R. P. C. App. side, p. 31. 31i ,i^r I'l.'i ) 1 tAv >.; 488 NOVA SCOTIA LEGISLATION The interests of creditors of preference shareholders, and of ordinary shareholders, are all protected ; the two former by votes of three fourths in value, and as to the latter, at an extraordinary general meeting. The confirmation of the scheme depends upon the judgment of the court, who have the power of hearing the directors and creditors, shareholders or other parties whom the court thinks entitled to be heard on the application. Simple as it is, the details appear calculated to effect the desired objects. It appears to provide full machinery for enabling any company, temporarily em- barrassed, to provide means for.«eontinuing their operations and business. 6. Under all these circumstances, the undersigned recommends that your Excel- lency should assent to the said bill. I concur. H. BERNARD, Deputy Minister of Justice. T. FOURNIER, Minister of Justice. Note. — Proclamation giving assent to tlie above mentioned Act, published in the Canada Gazette, on the 12th day of December, 187 If. Vol. VIII., No. 25 p. 659. Report of the Hon. tlve Minister oj Justice, approved by His Excellency the Governor General in Council on the Slst March, 1875. ' Department op Justice, Ottawa, 25th March, 1875. Upon the undermentioned Act, passed by the legislature of the province of Nova Scotia, in the year 1874, t.^e undersigned has the honour to report : — Chapter 82. — " An Act to incorporate the Eastern Steamship Company." This Act purports to incorporate certain persons under the above name, for the purpose of running steamers on the coast of this province, and elsewhere. There is no limit therefore to its operation within the province of Nova Scotia ; on the contrary, it speaks of " elsewhere." The undersigned is of opinion, therefore, that the company comes within one of the clauses mentioned in the British North America Act, 1867, section 92, subsection 10, clause A. The undersigned has the honour, therefore, to advise that this Act is not within the competence of a local legislature, and would recommend that this Act be disallowed by your Excellency. H. BERNARD, Deputy Minister of Justice. I concur, T. FOURNIER, Minister of Justice. Note. — Proclamation disallowing the above mentioned Act, published in the Canada Gazette, on the Slst day of March, 1875. Vd. VIII., No. 40, p. 1189. ' ordinary shareholders, |n value, and as to the iient of the court, who llders or other parties |sired objects. upany, temporarily em- Ibusiness. pnds that your Excel- (rd, finister of Justice. i Act, published in the , No. 25 p. 659. Excellency the Governor ■5. 25th March, 1875. f the province of Nova rt:— ip Company." This Act : the purpose of running nee of Nova Scotia ; on ly comes within one of , section 92, subsection this Act is not within this Act be disallowed ARD, Minister of Justice. iblished in tlie Canada '189. 37 VICTORIA, 1874. 489 Report of the Hon. the Minister of Justice, approved by His Excellency the Governor General in Council on the 26th October, 1875. D.:partment of Justice, Ottawa, 19th October, 1875. With reference to the Act (Chap. 18^, of the Nova Scotia L^cislature to establish County Courts, passed on the 7th May, 1874, the undersigned befs to report that by the 27th section of that Act, the summary jurisdiction of the Supreme Court of Nova Scotia is abolished ; by the 53rd section the jurisdiction of the City Court of the city of Halifax in all cases of torts, and for forcible entry and detainer is abolished : and transferred to the County Court for District No. 1 ; by the 50th section so much of the «xisting law as is inconsistent with the Act is repealed ; and by the 57th section it is provided that the Act shall not go into operation, until brought into force by proclama- tion of the Lieutenant-Governor in Council. During lust session of the Canadian Parliament a bill was brought in by the government to provide for the salaries of the judges to be appointed under this statute, but it was defeated in the Senate. The Nova Scotia Act has not yet been proclaimed, but the undersigned is led to believe that the question of bringing it into force immediately, is under consideration. There are very grave difficulties in the way of appointing judges, before parliamentary pro- vision is made for their salaries, and it is obviously the most satisfactory disposition of the matter, to postpone bringing the Act into operation until after the next session of the Canadian Parliament, when it is to be expected this provision will be made On the other hand, should the Act not lie proclaimed earlier, and if the judges are not appointed, it seems probable that there will be a failure of justice in many cases, owing to the abolition of the summary jurisdiction of the Supreme Court, and the non-erection of the substituted county courts. The undersigned suggests that it would be advisable to communicate with the Lieutenant-Governor of Nova Scotia suggesting the expediency, under the circumstances of postponing until after next session, the proclamation of the Act. EDWARD BLAKE. Report of the Honourable the Minister oj Justice.* Department op Justice, Ottawa, 25th Murch, 1875. Upon the undermentioned Acts passed by the legislature of the province of Nova Scotia in the year 1874, the undersigned has the honour to report : — Chapter 14. — "An Act to amend the Chapter of the Revised Statutes 'Of Licenses for the sale of intoxicating Liquors.' " Chapter 15. — " A.n Act to prevent the sale of intoxicating liquors at camp meetin.'is." Thes^ Acts r i.-port to restrain and prohibit, under certain circumstances, the sale of intoxijating liquors. Howevc ;• desirable the objects sought to be attained may be, the undersigned suggest.^ for the conRiueration of the Lieutenant-Governor of the province of Nova Scotia, whether ti.e same may not be in restraint of trade. The undersigned recommends that your Excellency do not exercise the right of disallowance in respect of these two Acts, but that the above suggestion be made to the Lier t ceedings taken under the law of Canada. Nevertheless, the undersigned, while recommending that the attention of the Lieutenant-Governor should be called to this objection, with a view to considering the propriety of proposing an amendment, does not recommend that the power of disallowance should be exercised. With reference to chapter 29, intituled : " An Act to continue the Acts of Incor- poration of ■'.Yharf, Pier, and Breakwater Companies," this Act provides that all Acts of incorporation of Wharf, Pier, or Breakwater Companies, whether temporary or perpetual, heretofore passed by the legislature of Nova Scotia, and now in force, are hereby continued and made and declared perpetual. The 3rd section provides, " that nothing herein shall be construed to contravene or conflict with the British North America Act, 1867, or with any legislation {intra vires) of the parliament of Canada." This Act does not appear free from objection. Presumably, some of the Wharf, Pier, and Breakwater Companies, whose charters were in force at the time of its passing, had been given powers which could not be continued by the legislature of Nova Scotia, and could be dealt with only by the parliament of Canada. However, to the extent to which the first section of the Act might appear to continue such powers, it is of course void, and considering this in connection with the character of these com- panies, and with the third section limiting the construction of the Act, and preventing the Act from being construed, so as to c ndersigned, vhile d be called to this amendment, does ihe Acts of Incor- 'ides that all Acts iher temporary or low in force, are n provides, " that he British North tment of Canada." the Wharf, Pier, e of its passing, B of Nova Scotia, er, to the extent such powers, it 5r of these com- b, and preventing rtb America Act uch confusion or The undersigned, lant-Grovernor of liat the power of sburg Extension y to construct a n provides that ver the company ri'-3r or other e as it ought to h are vested in Canada, but the Act will of course be inoperative to give powers to interfere with these rights, and upon the whole the undersigned does not recommend that it should be disallowed. Chapter 75. " An Act to incorporate the Protheroe Coal and Railway Company." The 12th section is open to observations such as those which have been made with reference to chapter 66 ; but the proviso in the 16th section is the same as the restric- tive clause in that Act, and the undersigned does not recommend the disallowance of the statute. Chapter 76. " An Act to incorporate the Globe Marine Insurance Company." By the 11th section of this Act " the company may, at their office in Halifax, com- mence and conduct the busine:^ of marine insurance on steamships, sailing \essels and freights only, and may transact the business of a marine insurance broker, insurer or underwriter." Chapter 77. " An Act to continue and amend the Acts relating to the Nova Scotia Marine Insurance (Company." By this Act, the original Act of incorporation, being chapter 20 of the Acts of 1837, as amended, is continued and made perpetual, x'he original Act, which is to be found at p. 235 of the Private and Local Acts of Nova Scotia, appears to have been passed in the year 1835, and, by the 20th section, the company is authorized to " commence and carry on, in their office in Halifax, or elsewhere in this province, the business and operations of marine insurance, in all its branches, and shall and may receive and accept orders, directions and proposals for insurance, and make insurance upon all ships and vessels whatsoever, in port or at sea, or for or upon any voyage or adventures whatsoever, and for and upon all goods, merchandise, pro pei ty and effects whatsoever ; and all money, coins, bullion or other valuable things whatsoever in and upon any such ship, laden or to be laden, and in and upon the freight of goods or merchandise carried or to be carried upon any ship or vessel, or on any voyage whatsoever ; and also upon moneys lent or advanced upon bottomry or respond- entia, and upon expected profits and commissions or adventures by sea, and upon all subjects of marine insurance whatsoever ; and the same :,hall and may insure against all losses, perils and dangers whatsoever of the seas, fire, enemies, thieves and other risks of the seas and navigation usually insured against by underwriters, and either for or dur- ing the respective voyage, or any time or times whatsoever." These powers do not appear to be limited by any of the amending Acts. Chapter 78. — " An Act to incorporate the Maitland Marine Insurance Company." By the 11th section of this Act, the directors of the company "may, at their office in MalLland, commence and conduct the business of marine insurance in all its branches, and may make insurance upon all subjects of marine insurance whatsoever, and may trans- act all matters relating to the business of a marine insurance broker, insurer or under- writer.' Chapter 79. — "An Act relating to the Union Marine Insurance Company of Nova Scotia." By this Act, the Act incorporating this company, as altered and amended, is con- tinued in force for twenty years. The Act of incorporation was passed on the 20th March, J 838, and is to be found at page 253 of the private and local Acts of Nova Scotia. By the 21st section the company may " commence and carry on in their office in Halifax, or elsewhere in this province, the business and operations of marine insur- ance in all its branches, and shall and may receive and accept orders, directions and proposals for insurance, and make insurance upon all ships and vessels whatsoever in port or at sea, or for and upon any voyages or adventures whatsoever, or for and upon all goods, merchandise, property and effects whatsoever, and for and upon all money, coins, bullion or other valuable things whatsoever, in or upon any such ship, laden, or to be laden, and in and upon the freight of goods or merchandiue carried, or to be carried upon any ship or vessel or on any voyage whatsoever." With reference to these Acts, chapters V6, 77, 78 and 79, the undersigned would )-efer to his approved report of 27th October, 1875, upon the Prince Edward Island Act - 492 NOVA SCOTIA LEQISLATION to incorporate the Merchants' Marine Insurance Company of Prince Edward Island, which report contains the following language : — " It appears to the undersigned that, under the express language of this clause, it is attempted to give the company power to do an insurance business with persons not residents of the province, in respect of risks on vessels not touching provincial ports, in a word to do a universal insurance business. The power of provincial legislatures to incorporate insurance companies is to be found, if at all, in the 11th 'subsection of the 92nd section, British North America Act, 1867, which gives to the local legislature authority to make laws for the incorporation of companies with provincial objects. It appears to the undersigned, that the powers attempted to be conferred on this company are beyond any fair construction of these words." The undersigned would also refer to his approved report of 16th November, 1875, with reference to the Ontario Act to incorporate the Canada Fire and Marine Insurance Company, which report contains the following language : — " The powera professed to be conferred by this Act appear to the undersigned too wide. It authorizes the company to efifect po^'^ies of fire insurance with any persons or bodies corporate and to make contracts of aarine insurance with any persons, in respect to losses to vessels navigating any v ,,ters from or to any ports. It is not pro- vided that tlie chief place of business shall be in the province. Power is given to com- ply with the laws of ot! . r provinces or states, wherein the company may carry on busi ness, and the word "G&,: ; "' ^troduced into the name is of itself indicative of more than provincial power. 0. 31st March, 1875, chapter 82, of the statutes of Nova Scotia for 1874, was disallow pon grounds applicable to this Act." Much of the language quoted appears to apply to all the Acts now under consider- ation. Chapter 76 indeed does not expressly authorize the doing of a universal insur- ance business, though its language is wide enough for such an interpretation, but the corporations created or perpetuated by the remaining Acts, are expressly authorized to do a universal marine insurance business. The undersigned recommends that the attention of the Lieutenant-Governor of Nova Scotia should be called to the suggested difficulties, with an intimation that, subject to such observations as he may make, it would seem that these Acts cannot be left to their operation. Chapter 89. — "An Act to incorporate the Colchester Lumber Driving and Manu- facturing Company." This Act authorizes the company to build dams, sluices and breakwaters, and otherwise improve Little River, in Brookfield, in the county of Col- chester, and its tributaries, so as to make the same navigable for logs, timber and lum- ber, and to levy tolls for conveying logs, timber and lumber down such river and its tributaries, and it provides for a lien on all logs, &c., passing through the dams, &c., and for the enforcement of such lien. The 6th section provides that nothing in the Act contained shall be construed to authorize the company to interrupt, hinder or prevent the navigation of any navigable river or other navigable waters. Chapter 90. — " An Act to incorporate the St. Margaret's Bay Lumber and Timber Driving Company." This Act gives substantially the same powers with reference to the Ingraham and Indian Rivers and their tributaries. Chapter 91. — " An Act to incorporate the Cumberland Driving Company." This Act gives substantially the same powers with reference to the Moose Rivor, Apple River, Half- Way River and River Hebert, save that the power to levy tolls is cooiined to levying tolls for conveying logs, ifec, down such of the rivers as the com- pany shall have so improved as to make navigable for logs, timber and lumber. Chapter 92. — "An Act to incorporate the Liscomb River Driving Company." This Act gives substantially like powers as are given by chapters 89 and 90, with refer- ence to the east and west branches of the Liscomb River and their tributaries, but it does not contain the restrictive clause providing against the company being authorized or empowered to interrupt the navigation of any navigable water. The undersigned is not aware whether any of the rivers referred to in these Acts is, to any extent, at present navigable. If so, none of the Acts can be said to be wholly Edward Island, of this clause, it with persons not •ovincial ports, in ial legislatures to lubsection of the local legislature icial objects. It on this company November, 1875, arine Insurance the undersigned with any persons any persons, in 3. It is not pro- ' is given to com- ly carry on busi dicative of more itatutes of Nova ' under consider- universal insur- retation, but the ily authorized to overnor of Nova 1 that, subject to t be left to their I'ing and Manu- kms, sluices and B county of Col- imber and lum- ich river and its e dams, (fee, and hing in the Act nder or prevent ber and Timber ith reference to npany." Moose Rivor, • to levy tolls is 'ers as the com- umber. ing Company." 90, with refer- butaries, but it ing authorized ) in these Acts id to be wholly 38 VICTORIA, 1875. 493 unobjectionable, as they appear to authorize the companies to levy tolls, not merely for the conveyance of the logs through the improvement, but also for their passage down those parts of the river-i which are navigable. It is further to be observed that it might become an important question whether works of this kind should be constructed under local authority in important navigable rivers, the navigation of which might, by a small expenditure, be improved. Chapter 92 is open to the additional objection that the restrictive clause is not inserted. It is presumed that none of these rivers are of great importance, and that no serious embarrassment will result from the operations oif the companies. Of course they do not, in law, acquire by these local Acts any power to interfere with the free navigation of such parts of the river as are navigable, and, upon the whole, the undersigned submits that, notwithstanding the difficulties to which he has referred, they may be left to their operation, the attention of the Lieutenant-Gov- «rnor being called to the difficulty. EDWARD BLAKE, Minister of Justice. \ The Hon. the Provincial Secretary to the Hon. the Minister of Justice. Provincial Secretary's Office, Halifax, N.S., 18th October, 1876. Sir, — I have the honour to acknowledge the receipt from his Honour the Lieu- tenant-Governor, of a copy of a despatch from the Hon. the Secretary of State, under date 21st September, inclosing copy of an order of the Hon. the Deputy of the Governor General in Council, and of the report of the Honourable the Minister of Justice therein referred to, on the subject of the Acts passed by the legislature of Nova Scotia in the 1st session of the 26th Assembly, 38 Victoria, 1875. ^ I have carefully read the order and report ; and with regard more particularly to the Act incorporating Marine Insurance Companies, or amending such Acts previously enacted, I would beg to call your attention to the fact, that a period of eighteen months has elapsed since the Acts referred to were passed, and that many liabilities, amounting in the aggregate to a very large sum, have been entered upon by the several companies supposed to be empowered to do so. Were the Acts now to be disallowed, almost end- less confusion and embarrassment would result, which it would be desirable to avoid if possible. The reasons given in your report for believing that the powers assumed to be con- ferred on the several companies are ultra vires of the provincial legislature, are doubt- less very strong ; and it appears to me that in such oases the only remedy will be for the Dominion Parliament to pass an Act ratifying and confirming the provisions of the local Acts, at its next session. Should you approve of this course, I would further suggest that the Acts be not officially published a? disallowed ; so long a time having elapsed since the passing of the Acts, no great injury can occur from the continuance of the same state of things until parliament meets. I do not see that the legislature of this province can remedy the defects in the Acts, for the same reason which would render the Acts already passed inoperative. It appears to me, therefore, that the power to apply a remedy lies in the legislature of the Dominion alone ; power to issue policies on voyages to or from the province only, would so restrict the business as to render it not worth undertaking. I have, . Chapter 77. An Act to continue and amend the Acts relating to the Nova Scotia Marine Insurance Company. Chapter 78. An Act to incorporate the Maitland Marine Insurance Company. Chapter 79. An Act relating to the Union Marine Insurance Company of Nova Scotia. In that report the Minister recommended that the attention of the Lieutenant- Governor of Nova Scotia should be called to the difficulties suggested by him, with an intimation that, subject to such observations as he might make, it would seem that these Acts should not be left to their operation. In reply to the communication from the Secretary of State to the Lieutenant- Governor, as suggested in the report, the Provincial Secretary of Nova Scotia communi- cated with the Minister of Justice by letter, dated 18th October, instant. In reply, a telegram was sent by the Secretary of State to the Lieutenant-Governor, in th" follow- ing words : — " Letter of Provincial Secretary received. Unless your government undertakes, by telegraph, on Monday, to promote amendatory legislation next session, concerning insurance Acts, they will be disallowed. Time expires next week. Companies interested must apply to parliament in the usual way; if they desire Canadian legislation. Same course adopted with Ontario company last session." In reply to that telegram, the Secretary of State, on the 23rd instant, received from the Lieutenant-Governor, a telegraphic dispatch, as follows : — " Have submitted your message to the government, who undertake at next meeting of assembly to promote legislation, amending the insurance Acts in the sense indicated in the memorandum of the Minister of Justice, and in such form as he shall suggest, and companies requiring Canadian legislation will apply for charters at Ottawa." The undersigned recommends thai, on the representations and assurances given by the government of Nova Scotia, with reference to the four Acts hereinbefore alluded to, that the right of disallowance be not exercised in respect of such Acts. R. W. SCOTT, Acting Minister of Justice. Heney the Governor October, 1876. of Justice of the pgislature of Nova 870), with special the Nova Scotia ince Company. Company of Nova of the Lieutenant- sd by him, with an )uld seem that these to the Lieutenant- »va Scotia communi- iistant. In reply, a •rnor, in th" follow- nent undertakes, by session, concerning bmpanies interested legislation. Same d instant, received ake at next meeting the sense indicated 3 he shall suggest, at Ottawa." assurances given by inbefore alluded to, >8. ■ster of Justice. NOVA SCOTIA— 39th VICTORIA, 1876. (2nd Session — 26th General Absbmblt.) Report of the Honourable the Minister of Justice, approved by His Excellency the Governor General in Council, on the 16th November, 1876. Department op Justice, Ottawa, November, 13th, 1876. With reference to the statutes of the legislature of Nova Scotia, passed in the year 1876, 39th Victoria, the undersigned begs to report as follows : — Chapters 2 to 21, inclusive, 23, 25 to 41, inclusive, 44 to 48, inclusive, 50 to 87, inclusive, 79 to 91, inclusive, 93 to 99, inclusive, do not appear to call for special observation, or for the exercise of the power of disallowance. Chapter 1 : " An Act to alter and amend chapter 75 of the revised statutes of Licenses for the sale of Intoxicating Liquors, and the Acts in amendment thereof." This Act contains some provisions restrictive of the sale of intoxicating liquors. Similar legislation has been in many cases left to its operation, anu the same course is recommended on this occasion. In the Act the word " offence " is several times used to describe breaches of the law. It has been remarked, on former occasions, that this word is hardly a proper description of a breach of the provincial law, being rather descriptive of a criminal act. The attention of the Lieutenant-Governor may be directed to the suggestion. Chapter 22 : " An Act respecting the Legislature of Nova Scotia." By the 2nd section of this Act the legislative council of Nova Scotia, and its com- mittees and members respectively, are given such and the like privileges, immunities and powers as are for the time enjoyed by the Senate of Canada, its committees and mem- bers ; and the House of Assembly of Nova Scotia and the committees and members thereof respectively, are given the like privileges, immunities and powers as are for the time enjoyed by the House of Commons of Canada, and its committees and members. The Senate and House of Commons enjoy all the privileges, immunities and powers of the House of Commons of the United Kingdom. Acts purporting to confer upon the legislatures of Ontario and Quebec such privileges, immunities and powers were objected to, and in the case of Ontario, the Act was disallowed, while in that of Quebec it was repealed. The undersigned begs to refer to the reports upon these Acts, inasmuchAs the 2nd section of the Act under consideration professes to give, in the case of Nova ocotia, the powers which it was decided that the legislatures of Ontario and Quebec should not assume. It is true that in the 23rd section it is provided that nothing in the Act shall be constnv to contravene or conflict with any legislation, ultra vires of the Parliament of Canada, ..c with any enactment of the Imperial Parliament in force in the province, but by the 2nd section there is an express assertion of a right to legislate in excess of what has been decided to be the legislative power of the province. The undersigned recommends that the attention of the Lieutenant-Governor should be called to the objection with a view to the repeal of this section before the time with- in which the Act can be disallowed shall have expired. With reference to the other provisions of this Act, the bulk of them are contained in the Act of the province of Ontario upon the same subject, which has been left to its operation. The undersigned refers to his report upon that Act, and for the reasons therein given he does not recommend interference with such of the provisions of this statute as are therein contained, but he observes, amongst the supplementary provisions, some to ill: ■f ir - 496 NOVA SCOTIA LEGISLATION which he is bound to call attention. Among the prohibited matters which are to be deemed infractions of this Act, and which a^e to be adjudged on and punished by the House is section 14, subsection 3, the refusal or failure of any member or Officer of either House, or other person to obey any rule, order or resolution of such House. Whatever view may be taken of so much of this subsection as applies to members or officers of the House, it seems obvious that its application to the subject in general would be to put the subject at the mercy of either House, no matter what might be the nature of the rule, order or resolution which it passed. The last paragraph of the 1 7th section provides that all rules of either House not inconsistent with the Act shall have the force of law until altered, amended or repealed by such House. These provisions give, in the opinion of the undersigned, objectionable powers to to each House, and he recommends that the attention of the Lieutenant-Governor should be called to them with a view to their being repealed before the time within, which the question of disallowance may be determined. Chapter 24 : " An Act to amend chapter 25 of the Revised Statutes, 4th Series, of the Church of England." This Act repeals the Act cited in the title, which was a statute containing various provisions for the management of the affairs of members of the Church of England. The substituted sections are in the main similar to those of the repealed Act, but several provisions are introduced, among which are some giving greater powers to the lay members of the church. It is to be presumed, as well from the constitution of the church as the character of these provisions, that they are based upon and carry out the views of its Synod. With reference to some of them, had the legislation been entirely novel, it might be necessary to consider how far it was proper, under our political system, to make such enactments, but the circumstances to which the undersigned has referred, lead him to the conclusion that this is not a question which can be fitly raised with reference to this Act, and he recommends that it be left to its operation. Chapter 42 : " An Act respecting the Lower Chezzetcook Dyke, in the county of Halifax." The 4th section of this Act uses the term " offence," the objection to which has al- ready been the subject of remark. Chapter 43 : " An Act to provide for supplying the town of Dartmouth with water." The ' st section gives power to 'the council to make by-laws, «fec., amongst other things, to , revent frauds being practiced, and under it the observance of the by-laws, &c., may be enforced by attaching penalties not exceeding forty dollars or three months imprisonment at hard labour in the county jail. The ^rding of the clause is wide enough to embrace breaches of the criminal law, and the pA^er of the provincial legislature to inflict a punishment of imprisonment at hard labour may be questioned. The attention of the Lieutenant-Governor should be c&V id to this section with a view to <}he amendment of the Act. Chapter 49 : " An Act to amend the Act to incorporate the town of Truro." Sections 8 and 10. — It may be questioned whether some of the provisions of these sections do not trench upon the criminal law and procedure, but the undersigned does not recommend that the Act be disallowed on that ground. Chapter 88 : " An Act to amend the Act to incorporate the Colchester Lumber Driving and Manufacturing Company." The undersigned refers, in connection with this Act, to his observations made upon the original Act. Chapter 92 : •' An Act to incorporate the Nova Scotia Fishing Company, Limited." By this Act certain persons are constituted a body corporate for the purpose of fishing, and for acquiring, equipping and managing boats and vessels and other property, and conducting all necessary business in connection with the same. which are to be id punished by the or Officer of either louse. Whatever Jrs or officers of the would be to put the lature of the rule, either House not nended or repealed ionable powers to it-Governor should within, which the utes, 4th Series, of ;ontaining various ih of England, repealed Act, but ter powers to the 1 as the character of its Synod. |r novel, it might be em, to make such red, lead him to the reference to this , in the county of m to which has al- f Dartmouth with kc, amongst other ice of the by-laws, •8 or three months the criminal law, imprisonment at ection with a view 1 of Truro." provisions of these undersigned does olchester Lumber ations made upon impany, Limited." >r the purpose of d other property, There is no provision whatever as to the place or places at which the business is to be carried on, or as to the range of the powers of the company, which therefore may, under the unlimited language of the Act, do a business beyond the range permissible to a company incorporated under a provincial statute. The attention of the Lieutenant-Governor should be called to this objection, with a view to the amendment of the Act. EDWARD BLAKE, Minister of Justice. Extract /rom a Report of the Hon. the Minister of Justice, dated 13th October, 1876. Chapter 9. — " An Act respecting the Legislative Assembly." This Act contains various clauses conferring privileges upon the assembly and it^ members. The exact range of the powers of local legislatures in this particular has been the subject of discussion in more than one case. Besides other clauses open to question the 11th section provides that the assembly shall have all the rights and privileges of a court of record for the purpose of summarily inquiring into and punishing as breaches of privilege or as contempt of court (without prejudice to the liability of the offenders to prosecution and to be punished criminally or otherwise according to law independently of the Act) several acts, matters and things, amongst them are assaults on members of the assembly, not merely during the session, but also for twenty days before and after the same, giving false evidence before the assembly, or a committee thereof, pre- senting to the assembly forged or falsified documents with an intent to deceive, forging, falsifying, unlawfully altering papers and certain other matters which appear to be clearly within the criminal law. The section declares that the assembly possesses the power and jurisdiction to provide by statute, as may be necessary or expedient, for inquiring into, judging and pronouncing upon the commission or doing of any such acts, matters or things, and awarding and carrying into execution the punishments thereof provided by the Act. The 12th section provides that any person guilty shall be liable, in addition to any other penalty or punishment to which he is by law subject, to imprisonment for such time, during the session of the legislative assembly then being held, as may be determined by the legislative assembly. The 13th section provides that if any person is declared to be guilty of contempt for any of the acts, matters and things in section 1 1 set forth, is directed to be taken into custody or to be imprisoned, the speaker shall issue his warrant to the sergeant- at-arms attending the House, or to the keeper or governor of the common jail in county of York, to take such person into custody, and to keep . nd detain him in his custody in accordance with the order of the assembly. The 14th section declares that the determination of the assembly upon any proceeding under the Act within the authority of the province, shall be final and conclusive. It appears to the undersigned that several of these provisions are open to very serious question, as being tdtra vires of a local legislature, but almost all of them are contained in an Act of the legislature of Quebec, upon the same subject, which was left to its operation. There are, indeed, some new provisions, but it would not be advisable, upon the principle upon which the Quebec Act was allowed, to advise the disallowance of this Act by reason of the insertion of these provisions, and the undersigned feels bound to recommend that, following the precedent referred to, the Act should be left to its operation, it being quite possible for those who may object to its constitutionalty to raise their objections in the courts. jit i.l* 4M NOVA BCOTIA LEQISLATION NOVA SCOTIA, 40th VICTORIA, 1877. (3rd Session — 26th General Assembly.) Report of tJie Hon. the Minister of Justice, approved by His Excellency the Governor General in Council on the let April, 1878. Department of Justice, Ottawa, 27th March, 1878. I beg to report upon the Acts of the legislature of the province of Nova Scotia passed in the fortieth year of Her Majesty's reign (1877), received by the Secretary of State, on the 10th day of July, 1857, as follows : — Chapters 1 to 24, 26 to 56, 58 to 66 and 70 to 88. To the above Acts there appeai-s to be no objection. I recommend that they be left to their operation. Cap. 25. — " An Act further to amend the laws for the preservation of useful Birds nnd Animals." The subject matter of this Act comes, I think, within the legislative authority of the provincial legislature, and is therefore free from objection so far as its constitution- ality is concerned. Objection, however, has been mede on behalf of the officers of Her Majesty's Army stationed at Halifax to the provisions of section 18, which declares that such officers shall be entitled to the privileges of the game laws of the province on the payment of an annual fee of five dollars, &.c. The ground of objection being, not that the fee is charged, but that a distinction has been made between the officers and the inhabitants of the province generally. The late Sir W. O'Grady Haly, General Command- ing the Forces in British North America, addressed a communication on the subject to Her Majesty's Secretary of State for War, dated 15th October, 1877. This communication was transferred to the Secretary of State for the Colonies, who, on tht 30th of Novem- ber, 1877, transmitted the same to his Excellency the Governor General, and expressed the hope that the provincial government might, on further consideration of the matter, be disposed to recommend to the legislature an amendment of the Act, so as to allow »ersons serving in Her Majesty's Army and Navy in the province the same privilege as tersons domiciled there. I recommend that copies of the communications referred to )e transmitted to the Lieutenant-Governor of Nova Scotia, for the information of his government, with the request that the hope expressed by Lord Carnarvon and above alluded to may be taken into their favourable consideration.* Cap. 57. — "An Act further to amend the Act to incorporate the town of New Glasgow." The first section of this Act declares that the municipal courts of the town of New Glasgow shall be a court for the trial of civil causes, known as the town court, to be presided over by the stipendiary magistrate, and a court for the transaction of all police and criminal business of the town, known as the police court, to be presided over by the stipendiary magistrate, recorder or warden. The fourth section provides that all fines, costs and fees shall go to form a fund, out of which the salary of the recorder and the expenses of the cour^. shall be defrayed, and that any deficiency shall be paid out of the general funds of the town. 1 had occasion to consider the right of the local legislatures to legislate in respect of the application of fines arisin^ from the criminal law, in a report on the legislature of the proviftce of British Columbia, dated 29th September, 1877. In that report, which was approved of, the following remarks occur, namely : — The Act under consideration being as follows : " Notwithstanding anything to the contrary contained in any Act, ordinance or proclamation, it shall be lawful for every *NoTX.— For oopieB of this oorrespondenoe see pp. 602 and post ^ i 40 VICTORIA, in. 4M 7. moy the Governor March, 1878. ice of Nova Scotia by the Secretary mend that they be ition of uiieful Birds slative authority of as its constitution- i the officers of Her which declares that bhe province on the tion being, not that bhe officers and the , General Command- n the subject to Her rhis communication ;he 30th of Novem- leral, and expressed ition of the matter, Act, so as to allow le same privilege as icatious referred to information of his rnarvon and above the town of New if the town of New town court, to be taction of all police resided over by the to form a fund, out 11 be defrayed, and I. 1 had occasion the application of )f the provifice of 1 was approved of, ig anything to the I lawful for every municipality paying the annual salary of a police magistrate and maintaining a police force to retain and use, as part of the municipal revenues, all police court fines, fees and forfeitures." This provision is wide enough to cover not only fines and forfeitures incirred fo" breach or of non-compliance with laws of the province, made in relation to matter-* coming within the classes of sibjects over which the provincial legislature has exclusive legisla- tive authority, but also all fines and forfeitures which may be imposed at the police court under the criminal law of Canada, or by reason of the breach of or non-compli- ance with the laws of Canada. The 102nd section of the •' British North America Act, 1867," provides that : "All duties and revenues over which the respective legislatures of Canada, NovalScotia and New Brunswick, bafore and at the union, had and have powers of appropriation, except such portion thereof as are by this Act reserved to the respective legislatures of the provinces, or are raised by them in accordance with the special powers conferre : the peace, shall also have all the powers conferred by any statute of the province i;^ .■, two or more justices of the peace.' " I recommend that the attention of the Lieutenant-Governor be called to these remarks. Cap. t)7. — " An Act to incorporate the Truro Marine Insurance Company." This Act, by section 11, authorizes the directors of the company, at the office, in Truro, to commence and conduct the business of marine insurance in all its branches, A ii i 1,1! •I HI 000 NOVA 8C0TIA LE(1I8LATI0N with respoct to vr .isols owned or registered, and cargoes owned or Hhipped in the province of Nova Scotia, and within the said province to make contracts of insurance upon all subjects of marine insurance, including freight of such vessels, and to transact all matters relating to the business of a marine insurance broker, insurer or underwriter, within the province of Nova Scotia, with respect to vessels registeied <>r owned, and cargoes owned or shipped in the province aforesaid, and freights of such vessels. The power of a local legislature to incoqjorate an insurance company must be derived from the power given to incorporate companies with provincial objects, and what is or is not a provincial object in reference to marine insurance, is by no means easy of determination. I am not prepared to say that the powers to be conferred upon the company, by the section in question, are not within the authority of the provincial legislature, and in view of the doubts which surround the subject, I recommend that the power of disallowance be not exercised in respect to this Act. Cap. 68 — "An Act to incorporate 'The Shipowner's Marine Insurrnce Company, of Windsor (Limited). The b-'cond section of this Act gives to the company similiar powers to those given by the eleventh section to the company incorporated by cap. 67. The same remarks apply to this. Cap. 69. — " An Act to amend the .A.ct to incorporate ' The Maitland Marine Insurance Company.' " This Act givef; to the Maitland Marine Insurance Company similar powers to those above referred to, and the same remarks apply also to thi.s Act. Z. A. LASH. iiiputy Minister of Justice. I concur. 11. LAFLAMME, Minister of Justice. General Sir W. O'Grady Holy to the Governor General. Headquarters, Halifax, N.S., 18th October, 1877. My Lord, — I have the honour to forward, for your Excellency's information, a copy of a letter which, in the interest of British officers serving in this command, I itave deemed it my duty to address to the Right Hon. the Secretary of State for War, wi'h a view to the subject thereof being submitted for the consideration of the law offi» ers of Her Majesty's government. I have, (fee, W. O'G. HALY, General, Commanding the Forces in B.N. A, General Sir W. 0' Grady Holy to the Secretary of State for War. Halifax, N.S., 15th October, 1877. Sir, — I beg to forward herewith a copy of the Statutes of Nova Scotia, passed in the fortieth year of the reign of Her Majesty, and to refer particularly to your con- sideration, cap. 25, described as, " An Act further to amend the laws for the preserva- tion of usefu' Birds and Animals." By the 18th clause of this Act (page 26), you will observe that a tax or fee of 85 (equivalent to about £1 sterling) is imposed upon all officers of this garrison desiring to avail themselves of the privilege of the game laws, as being persons not having their domicile in the province. or Hhipped in the itracts of iriHuranco cIh, and to triinsuct urer or underwriter, )ied (>r owned, and uch vessels. company must be vincial objects, and in by no meanH be conferred upon of the provincial 1 reconunend that nsurpnce Company, wers to those given The same remarks Muitland Marine similar powers to isler of Justice. ral. October, 1877. oy's information, a n this command, I ^ of State for War, leration of the law rcea in B.N. A. r War. October, 1877. \ Scotia, passed in ilarly to your con- 8 for the preserva- at a tax or fee of of this garrison being persons not 40 vicTOHiA, 1877. SOI I feel it iticuinbent upon ino to point, out that this enactment, imposing a tax upon Uritish (itlic»M's stationed on duty in this province, from which tlio niitivcs are exempt, has not uniuiturally caused a feuling of considerable dissatisfaction among oIKcers serving in this command. It is not that the otHcers object in any way to the payment, of a fe*' V^-lilKMtitHJI.^- - 508 NOVA SCOTIA LEGISLATION To Jlis Excellency the Governor General of the Dominion of Canada in Council : The humble petition of the Windsor and Annapolis Railway Company, under their common seal, showeth : — 1. That by an Act of the legislature of the province of Nova Scotia, passed 2nd May, 1865 (28 Victoi'ia, chap. 13), intituled : " An Act to provide for the construction of two other sections of the Provincial Railways," it was enacted that the Chief Commis- sioner of Railways, by direction and authority of the Governor in Council, might contract for and on behalf of the pi'ovince, with any responsible party or parties, for the construc- tion of certain sections of the provincial railway, including the section from Windsor to Annapolis, on the terms and under the provisions in the said Act set forth, and it was enacted by sections 7 and 8 of the said Act, as follows, that is to say : — " 7. The (Jovernor in Council may, at any time before or after the said sections, or either of them, are or is completed, by an Order in Council, assume, on behalf of the province, the ownership of the said sections, or either of them, by paying to the owners thereof the value of the same — to be ascertained as hereinafter provided, either in cash or provincial debentures, at the option of the Governor in Council." " 8. The amount to be paid under the next preceding section shall be ascertained by the decision of three arbitrators ; one of whom to be appointed by the Governor in Council ; one by the owner or owners of the section, and one by the Principal Secretary of State for the Colonies. But in case of either of the said sections being so taken be- fore completion, regard may be had by the arbitrators to the loss sustained by the contractors by means of such termination of their contracts." 2. By an agreement dated 22nd November, 1866, made between the Chief Commis- sioner of Railways of the province of Nova Scotia, by the direction and authority of the Governor in Council of the said province, of the fir»t part, and William Henry Punchard, Frederick Barry and Edwin Clark, in this petition called "the contractors," of the other part, and which said agreement was expressed to be made in pursuance of the provisions of the said Act of 1865, the contractors agreed to construct the railway from Windsor to Annapolis, upon certain terms and conditions in Jihe said agreement expressed, and it was thereby provided that for the purposes of carrying out the same agreement, the contractors should have power to form a joint stock company, with such capital as might be necessary, for the purpose of enabling the contractors to sell and the company to purchase, the railway and works therein contracted for, and to take the tolls and charges therein referred to. That when, and so soon, as such company was formed and capital subscribed, as therein mentioned, the intended company should possess the said railway and works subject to the terms of the said agreement. 3. By a memorandum and articles of association, dated 26th February, 1867, and duly registered in England on the 1st of March, 1867, your petitioners were incorporated in England by the name of the Windsor and Annapolis Railway Company (Limited), for the purpose of acquiring the said railway and working the same, and for the other purposes in the said memorandum and articles of association expressed. The share capital of the company was fixed at £500,000, divided into 25,000 shares, of £20 each, with authority to borrow on bonds or debentures, or other security, to an amount not exceeding the aggregate sum of £200,000. 4. By an Act of the said legislature, passed the 7th May, 1867 (30th Victoria, chapter 36), intituled : " An Act to in..orporate the Windsor and Annapolis Railway Company," after reciting the said Act of 1865 and the said agreement of the 22nd November, 1866, the contractors, with others, were incorporated as the Windsor and Annapolis Railway Company (being your petitioners), for the purpose of constructing a railway from Windsor to Annapolis (which it was thereby enacted that your petitioners should own), and for such other purpopes, and with such extended and additional powers, privileges and authorities, as in the said Act expressed and contained. 5. By an Act of the said legislature, passed on the 14th June, 1869, intituled : " An Act to amend the Act to incorporate the Windsor and Annapolis Railway Com- JfaijJbX^^JaiB in Council: impany, under their Scotia, passed 2nd or the construction the Chief Commis- ncil, might contract is, for the construc- n from Windsor to forth, and it was he said sections, or , on behalf of the ying to the owners led, either in cash liall be ascertained y the Governor in rincipal Secretary )eing so taken be- s sustained by the the Chief Com mis- on and authority lid William Henry ;he contractors," of n pursuance of the t the railway from reement expressed, ) same agreement, ith such capital as I and the company ake the tolls and f was formed and i possess the said bruary, 1867, and were incorporated mpany (Limited), and for the other essed. The share ires, of £20 each, ) an amount not ' (30th Victoria, nnapolis Railway lent of the 22nd the Windsor and of constructing a i your petitioners ! and additional itained. 1869, intituled : is Railway Com- pany," the memorandum and articles of association above (in paragraph 3) referred to, were made binding and incorporated into the now reciting Act, with the powers therein referred to. 6. Under and in pursuance of the said Acts and agreemeiit, and of divers other transactions which have been duly effected by your petitioners with the government of Canada, ind otherwise, your petitioners have constructed the said Windsor and Annapolis Railway, and have acquired, in connection therewith, and as part of their undertaking, divers other rights and powers incident thereto or connected therewith (including certain rights hereinafter particularly referred to), and have laid out very large sums of money in constructing, establishing and carrying out their said railway and undertaking, and they are now lawfully possessed of the said railway (which has been and is duly operated by them) with such several rights and powers as aforesaid. 7. By virtue of the powers in that behalf given to your petitioners, sanctioned by the said Acts of the said legislature, your petitioners issued debentures to the amount of £200,000, but their capital and funds proving insufficient for the purposes of the undertaking, they were compelled to incur sundry mortgage and other debts to a large amount beyond the amount of the said debentures, and ultimately, under a scheme of arrangement between your petitioners and their creditors, made in pursuance of an Act of the said legislature, assented to on the 12th December, 1874, and entitled : "An Act to facilitate arrangements between railway companies and their creditors," your petitioners, in order to meet their obligations, so incurred as aforesaid, have duly issued debenture stocks as follows, viz. : — " A " debenture stock for £75,000, and " B " deben- ture stock for £350,000, both bearing interest at the rate of 6 per cent per annum. There have been also issued shares in your petitioners' company to the amount of £301,500, which are still outstanding, Nearly all the said debenture stock and shares are held in England. 8. By "The Nova Scotia Railway Act, 1880," it was enact'nl (section 2) that the provisions of tho same Act, from section 5 to section 32, both inclusive, should apply to every railway constructed and in operation or thereafter to be constructed under the authority of any Act passed by the legislature of Nova Scotia, and should, so far as they were applicable to the undertaking, be incorporated with the special Act author- izing the construction of the railway, unless they were inconsistent with, or were expressly varied by the special Act oi other Act of the said legislature. 9. By an Act of the said legislature, assented to on the 14th April, 1881, intituled : "An Act to amend the Nova Scotia Railway Act, 1880," certain provisions of tlie said Act of 1880 were repealed and varied, and by section 7 it was enacted as follows : — " 7. In the case of any railway of which the Governor in Council is authorized by statute or by any agreement or contract to assume the ownership, on paying the value of the same or conipensation for any part or the whole of any outlay made thereon, and it is pro\ ided by the statute, agreement or contract, that the amount of such value or compensation is to be ascertained by arbitration : The Governor in Council of Nova Scotia may enter into possession and hold such railway and assume the ownership thereof, and Be vested with all the rights, property and powers intended by any such statute, agreement or contract to be conferred on the Governor in Council, on the assumption by the Governor in Council of the ownership of such railway, four weeks' notice being first given to the company in possession of the said railway, or its president, manager, secretary or agent in this province or elsewhere, of the name of the arbitrator appointed by the Governor in Council. This enactment shall not take away the right of any company to the compensation to which such company may be entitled on the award being made under the provisions of any such statute, agreement or con- tract, as is hereinbefore referred to." 10. Your petitioners are Info» dd and Vielieve that the last-mentioned Act was introduced into the House of A/^^ombly of the said province on the 13th April, 1881, without public notice, that the same was passed by the assembly on the same day that it was also passed by the legi8lati\B fiouncil on the same day, and assented to by his Honour the Lieutenant-Governor on vue next day, the 14th April, 1881. 510 NOVA SCOTIA LEGI8LATI0K 11. Under the circumstances aforesaid, your petitioners had no notice of the said Act or of the provisions thereof, until it had passed and been assented to, and had no opportunity of objecting to or opposing the same. 12. Section 7 of the said Act seriously prejudices the rights and property of your petitioners, and the interests of thoir shareholders and bondholders in respect of the said railway and undertaking, and your petitioners are greatly aggrieved by the passing, and strongly object to and would humbly protest against, the allowance of the said Act. 13. In so ^oing it is not necessary for them to take notice of various questions which arise (having regard to the matters hereinbefore stated, and divers other con- siderations) as to whether the option of purchase given by the said Act of 1865 is now continuing or operative, or whether, if so, it is not vested in the Dominion govern- ment, or whether the said Act of 1881 is not in whole or in part ultra vires of the legislature of Nova Scotia. Whether there may or may not be any railways in Nova Scotia differently situated fr jm your petitioners' railway, and to which section 7 of the said Act may apply, there can be no doubt that it has been enacted with the object and intention of being applied and put in force with respect to the railway and undertaking of your petitioners. Under such circumstances, they submit that they are entitled to claim of your Excellency due consideration and protection of their rights, without reference to mere legal considerations. They conceive, indeed, that these, so far from weakening, might well serve to strengtiien the grounds of this petition. But it is enougli here to deal with the Act in question in the apparent sense and object in which it has been framed. 14. Your petitioners have no desire to impede any action which may be deemed beneficial to the interests of the Dominion of Canada or the province of Nova Scotia. On the other hand, if upon terms fair and just towards them and their interests, and in a mode not invading their rights, it should be deemed expedient that the govern- ment should acquire their undertaking, they would be prepared to concur in that decision, although it might interfere in .-^ome measure with their realizing at last, and after a long period of effect, the reasonable expectations of profit which induced them to undertake their enterprise. But they cannot consent to be dispossesseri of their property anrl rights in a node (as provided by the said Act) which would in effect enable the provincial government to oust your petitioners at any time upon four weeks' notice, and deprive them of any security ; that before they are dispossessed, there shall be ascer- tained and paid, a fair and adequate price in respect of their railway, and the property, rights and advantages forming part of their undertaking. 15. The provisions above referred to, of the Act of 1865 (assuming them to apply to their undertaking) afford your petitioners (as they are advised) a security essential to their interests, viz., that such undertaking can only be assumed by the government thereunder upon the va'ue thereof being actually ascertained and paid to your petitioners as thereby provided. 16. That security was and is the more essential by reason that in many respects the provisions of the said Act of 1865 are vague and imperfect, and it has become still more so by reason of the changes which have since taken place in the constitution and position of the province of Nova Scotia, the extension and position of your petitioner's undertaking, the various rights acquired by them, and the moneys laid out by them in respect thereof, involving considerations too numerous and compli- cated to be herein detailed ; but which must make the due provision for, and enforce- ment of, your petitioner's right in the mode provided for by the Act of 1865, uncertain and difficult. 17. Under such circumstances, the reservation expressed to be made by the last clause of section 7 of the said Act of 1881, as to "the right of any company" would (as your petitioners are advised) be ineffectual, if not wnolly nugatory, to afford to them due protection for their interests in case, under 'the earlier provisions of that section, they should be dispossessed of their railway. 18. Amongst otl er special circumstances affecting the position of your petitioners and their undertaking, which, as they conceive, would make the provisions of the said notice of the said d to, nnd had no property of your n respect of the ^d by the passing, e of the said Act. various questions ivers other con- it of 1865 is now )oniinion govern- ultra vires of the railways in Nova section 7 of the bii the object and and undertaking ey are entitled to • rights, without hose, so far from tition. But it is d object in which may be deemed e of Nova Scotia, eir interests, and that the govern- • concur in that izing at last, and ich induced tliem )os8esserl of their Id in effect enable )ur weeks' notice, ere shall be ascer- and the property, ng tiiem to apply security essential the government your petitioners in many respects nd it has become 1 the constitution position of your the moneys laid •ous and compli- for, and enforce- F 1865, uncertain made by the last iompany" would tory, to afford to rovisions of that your petitioners isions of the said 44 VICTORIA, 1881. 511 section 7 especially unjust, as to them, is the fact that your petitioners are engaged in litigation with respect to certain rights of great value, derived by them from the gov- ernment of Canada, as to which (without entering upon matters of detail or of contro- versy) it appears desirable to state as follows : — 19. Your petitioners claim to be entitled, under agreement entered into with the government of Canada on behalf of Her Majesty, in the lirst instance, in the month of September, 1871, and again (by way of conKrmation and compromise of various disjjuted claims, and in consideration of large outlay and important concessions on their j)art) in the mouth of June, 1875, the exclusive right to use the bnincli line from VVitulHor to Windsor Junction, and also running powers over the trunk line from Halifax to Wind- sor Junction. Those rights are of the utmost value to your petitioners, in connection with their own railway and as part of their undertaking. In the month of August, 1877, however, they were (unlawfully, as they contend) dispossessed and excluded by the officers of the government from the use of the said branch railway and the exercise of the said running powers, and soon afterwards the branch railway was handed over by the government to the Western Cojiities Railway Company. Thereupon your petitioners took legal proceedings against that company in the Supreme Court of Nova Scotia, to e.stablisli their right to the said branch railway, and afterwards (being advised that they could not nbtain a complete and effectual remedy in the premises, except as against the Crown) your petitioners caused Her Majesty's Attorney (ieneral for Canada to be joined as a defendant in the said suit, and also proceeded, by way of petition of right, against Her Majesty, in order to enforce specifically tlie said agreements, and to obtain redress for the breach thereof. 20. Such proceedings are still pending, and though thus far your petitioners have been successful in establisliing theii rights, as claimed in the said suit, the final decree in their favour, of the Supreme Court of Nova Scotia, has been carried on appeal, at the instance of the said Attorney General, to the Court of Appeal of Canatla, and, at the instance of the said Western Counties Company, to Her Majesty in Council. The proceedings on the petition of right have as yet only been proceeded with so far, as that a demurrer put in thereto on the part of the Crown has been overruled. 21. In the meantime, the government of Canada having retaken possession of the said Windsor Branch Line from the Western Counties Company, have placed your petitioners again in possession thereof, under a new and temporary arrangement, with- out prejudice to any question in the said litigation. 22. Under the circumstances aforesaid, and having regard to the great importance of the claims so made by your petitioners, it would be especially injuriouls to your petitioners' rights and interests that any new power should be given to the govern- ment to take and acquire your petitioners' undertaking', while they are still in litigation. 23. Your petitioners further submit that the opv^ration and effect of section 7 of the said Act of 1881 would be so unjust to them and y/o thoir bondholders and share- holders (who have invested large sums of money on the faith that their rights and interests would be duly maintained and protected by law) and that it is contrary to equity and universal practice to deprive and expropriate the lawful owners of property, even for objects of public benefit, without first effectuady providing for, ascertaining and paying, the full value and compensation in respect of property so taken, that the provisions of the said Act of 1881 are inexpedient in the public interest, and, if carried into effect, would tend to lower the credit and reputation, in England, of the Dominion, and is contrary to public policy, and ought to be disallowed. Your petitioners, therefore, humbly pray that the said Act of 1881 may be disallowed. And your petitioners will ever pray, ifec. The common seal of the petitioners was"] hereunto affixed in the City of London | on the 18th day- of July, 1881, in the I presence of John K. Jacomb-Hood, Chairman. W. R. Campbell, Secretary. 512 NOVA HCOTIA I-K(iI8I.ATIO\ The Provincial Secretary to the Honourable the. Minister of RailwayH nW Canah. Pkovincial Skcuetary'h Offick, Halifax, N.8., 17th Septombor, 1881. An Act to amend the Nova Hcotia Railway Act of 1880 was passed 1 of the legislature of this province, and its disallowance havinc Deau Sir, in the last session being petitioned for by the Windsor and Annapolis Railway Company, a rejiort on the questions involved has been made by the Attorney General. I beg to inclose you a copy of this report, for your information, and with the request that you will examine into the merits of the controversy, and assist in procuring the allowance of the Act, if you can do so consistantly with your views of justice and propriety, as its final passage is a matter of great importance, in the present position of railway aflairs in Nova Scotia. I have, iic, S. H. HOLMES, Provincial Secretary. Report of the Hon. Attorney General Thompson. ArroBNEV General's Office, Halifa.x, N.S., 21st August, 1881. The undersigned had had before him the petition of the Windsor and Annapolis Railway Company to his Excallency the Governor General in Council, dated the 18th day of July, 1881, praying that the Act of the legislature of Nova Scotia, passed on the 14th day of April, 1881, entitled: "An Act to amend the Nova Scotia Railway Act of 1880," or certain portions thereof, \m disallowed, and begs to report thereon for the information of his Honour the Lieutenant-Governor, as follows ;— The statements contained in the first four paragraphs of the petition of the .Windsor and Annapolis Railway Company are admitted to be correct, but the under- signed must call attention to the fact that the two .sections of chapter 13 of the Nova Scotia Acts of 1865, which are quoted in the first clause of the petition, and indeed all other provisions of said cliapter 13, of 1865, which have any bearing upon the subject- matter, ate made applicable to and incorporated ui, the charter of the Windsor and Annapolis Railway Company by the terms of that Charter. (Chapter 36, of the Nova Scotia Act of 1867.) It is submitted, therefore, that all the undertakings, operations and expenditures made by the company, or any other person, on the security of the Company's pro- perty, must be considered as having been made with a view to these provisions of chapter 13, of 1865, in relation to wli-.ch the Act sought to be disallowed, is merely auxiliary. The circumstances which led to the introduction and passage of the Act petitioned against are, briefly, these : — The railway system of Nova Scotia (apart from the railways owned by the Dominion of Canada) consist of various lines, operated under different managements, the lir e of the petitioning company being one. It has been considered desirable, in the interests of the government of Nova Scotia and of the public at large, to combine these lines of railways undor one management, if that can be accomplished without en- tailing too heavy burdeas upon the province, or operating unjustly to those who now have interests in the railways. The only practical mode of carrying out any such policy would be to exenise, in relation to this company's railway, on behalf of and under the authority of the government of Nova Scotia, the powers conferred by section 7 and 8 of chapter 13, Nova Scotia Acts of 1865, quoted in the first clause of the petition ; and, in relation to the other railways, to exercise other powers, some of them of a like character, possessed by the Nova Scotia government. I //* a7id CanalH. onibor, 1881. 1 880 was piusHcd (illowiuico having y, a rejiort on the \ to inclose you a you will exiimine 'iince of the Act, priety, us its final railway art'airs in lES, al Secretary, ugust, 1881. or and Annapolis I, dated the 18th Hcotia, passed on I Scotia Railway eport thereon for 1 petition of the st, but the under- T 13 of the Nova n, and indeed all upon the subject- the Windsor and f 36, of the JSlova md expenditures 2 Company's pro- esc provisions of llowed, is merely e Act petitioned owned by the t managements, desirable, iu the .rge, to combine hed without en- > tho'ie who now out any such laif of and under >y section 7 and clause of the 8, some of them The undersigned sulHnits that the powers conferred by sectionM 7 and 8 are vestt'd in the government of Nova Scotia alone. They were undoubtedly possesseil by the government of Nova Scotia, as constituted prior to the union of the provinces. When the I'nion was consumniateon these general principle-, and thinks he may fairly do so, as the petition of the Windsor and Annapolis llailway Company waives any discussion of this point, although suggesting that doubts may exist in re- lation to it. No legislation exists expressly, or by necessary implication, abrogating sections 7 and 8, chapter 13, Nova Scotia Acts, 1805. The undersigned therefore subniits that the legislation edected by the statute petitioned against, is clearly within the competence of the Nova Scotia legislature. As regard the fairness of the statutory provisions objected to, the following obser- vations are offered : — It has been found on a full consideration of the policy l)efore referred to, that although it should be conceded that sections 7 and 8, chapter l:>, Nova Scotia Acts, 1865, are in full force, and applicable to this company's railroad, and that the powers therein conferred are now possessed by the government in Nova Scotia, great pi'actieal difficulty nuiy exist in carrying out these sections, if the company should be disposed to resist their operations, and should refuse, neglect or delay to niaLe the appointment of an arbitrator, or to ctmiply with the awar I. Hence it was desirable to supply by statute the details required by the spirit and principle of the two sections of the Act of 18y tlm leader of the ^(>vernnlent into, the Houno of AHsemhly on tli(^ 7tli April, 1H81, when it w/is read a tirst time, and ordered to l)e read a seeond time. On the Hth A|iril, 1*n of the Windsor I'lde in the closing ntention that the 18 of money on the protected by law, ' is seen that these of the petitioning ^i the Act of 1865. to dej)rive and ex- )ublic benefit, and ull value and com- ita application to msation is secured ^reiJ that the mode •t of 1865 is left off expropriation of i-ovince, including expropriated, and for the purposes ney General. ie Minister of inber, 1881. ny company had K'lal in Council to authorize the npany's railway ermined, or the The Attorney (Joneral of Nova Scotia prepared a report in answer to tlte said petition, which is very misleading and only deals with what he assumea to be gt-noial principles, avoiding the real and important points at issue. My diret-tors have accordingly thou'.;ht it proper to siippleinent I heir original pt>titi(>n by c( ascertained till after the final determination cf the litigation at present proceeding between your petitioners and Her Majesty's Attorney General for Canada. It is submitted that it is entirely erroneous to suppose that the value of the rights of your petitioners in the Windsor Branch could be separately valued and purchased, as suggested by the Attorney General of Nova Scotia. The value of the Windsor and Annapolis Railway itself must very largely depend upon whether it is merely proved by His Excellency the ^ Governor General in Council, on the ^U^i February, 1883. Department of Justice, Ottawa, 13th February, 1883. To His Excellency tlie Governor General in Council : The undersigned having had under consideration the following Acts passed by the legislILre of th?province of Nova Scotia in the session of 1882, recommends that they be left to their operation. , ^, ^ on Chanters 1 to 19, 22 to 60, 62 to 72 and 74 to 90. . .. vr S to chapter 20 jntijuled : ^;^^ ^n^ct toTmlTth: It s!ra SarAcTS' 8^0 atthJiJt T^Smenf thereof," the undersigned observes thanhev were left t<^ their operation by Order in Council of the 24th April last Subseauentlv th^ Windsor and Annapolis Railway Company petitioned for the disal^ lowaLe ofTapKo, but by Order in Council of the 6th October last it was determined ''''^^^:''S^l^t:^:.Z^^ tSn attention of the Lieutenant-Governor of Nova sL^be'cStd to the provisions of chapter 61, intituled :'. An Ac^-n-rpor- ate the Eastern Development Company" (Limited), and chapter 73, intituled . An Act to incorporate the Pictou Oil Company. These Acts purport to give the c >mpanies incorporated by them very large ana general powirs among others to build, own and possess ships and steamboats to carry SanE! 8;ppliesLd products to and from the site of the company's operations, and *" 'idtYttinr'oT the present that the incorporation of a company to own ships within the ptovTnceb a provincial object, the authority should be given with such imitations IfnEtto conflict with section 91,^paragraph 29, and section 92, paragraph 10, of the British North America Act, 1867. A. CAMPBELL, Minister of Justice. 33^ 620 NOVA SCOTIA LEGISLATION • NOVA SCOTIA— 46th VICTORIA, 1883. (1st Session — 28th General Assembly.) Report u,' the Honourable the Minister of Justice, approved hy His Excellency the Governor General in Council, on the 23rd May, 1883. Department of Justice, Ottawa, 22nd May, 1883. To His Excellency the Governor General in Council : The undersigned has had under consideration a petition of the Nova Scotia Rail- way Company, asking for the disallowance of two Acts lately passed by tlie legislature of the province of Nova Scotia, and intituled respectively : " An Actrespecting Eastern Extension Railway," and " An Act to authorize the raizing of a Provincial Loan and for other purposes." He has also had under consideration a memorial from Messrs. White and Fielding, members of the government of Nova Scotia, at present in Ottawa on pul lie business, requesting that the said Acts be confirmed. Having carefully considered the Acts in question, the undersigned is of opinion that they are within the legislative authority of the legislature of Nova Scotia. On inquiry he is informed by the Minister of Railways and Canals that there is no objection to them on grounds touching the general railway policy of the government, and he would, therefore, respectfully recommend that they be left to their operation. The undersigned further recommends that in case this report is approved, the Nova Scotia Railway Company and Messrs. White and Fielding, be informed of the action taken. A. CAMPBELL, Minister oj" Justice. Report of the Honourable the Minister of Justice, approvtd hy His Excellency the Governor General in Council, on the 18th October, 1883. Department of Justice, Ottawa, 29th September, 1883. To His Excellency the Governor General in Council : Upon the reference by a petition from Lieutenant General Domville upon the sub- ject of an Act passed on the 19th April last by the legislature of the province of Nova Scotia, and intituled : " An Act to amend an Act to incorporate the Spring Hill and Parrsboro' Coal and Railway Company, and the Acts in amendment thereof," and " to provide for winding up the affairs of said company ; " the undersigned has the honour to report as follows : — The prayer of the petition is that your Excellency will be pleased to withhold your assent to the Act in question. As there is nothin'.? in the Act reserving it for your Excellency's assent, the undersigned assumes that, the intention of the petitioners is to ask for the disallowance of the Act The undersigned is of opinion that the petitioners should be asked to state if such is the proper construction to be placed on the petition. The undersigned recommends that a copy of the petition be sent to the Lieutenant- Governor of Nova Scotia for any remarks his ^-tvernment may think proper to make thereon, and foi- communication with the directors of the company, in order that they may be afforded the opportunity of making such answer thereto as they may desire. All of which is respectfully submitted. A. CAMPBELL, Minister of Justice. 46 VICTORIA, 1883. 521 ^3. His Excellency the 'S. nd May, 1883. Nova Scofcia Rail- by tlie legislature > respecting Eastern rovincial Ijoan and lorial from Messrs. present in Ottawa gned is of opinion •va Scotia, als that there is no )f the government, their operation, approved, the Nova 'med of the action ELL, later of Justice. His Excellency the 5tember, 1883. ville upon the sub- ) province of Nova le Spring Hill and ; thereof," and " to ed has the honour id to withhold your iervin)( it for your le petitioners is to that the petitioners ?.ed on the petition, to the Lieutenant- ik proper to make in order that they ley may desire. Report of the Honourable the Minister of Justice approved hjEis E.ceUency the nepori ./ g^^^^nor General in Council, on the 6th May, 186^. Department of Justice, Ottawa, 18th April, 1884. To His Excellency the Governor General in Council : The undersigned beg. le„ve to .ubmit hU rep,rt upon the Act. pa,»,d by the '^^'s:;l^.^i^t^zS2:::^T;^or^'^ ... .o^ ot,... purposes. ^^ ^^^ respecting Eastern Extension Railway ;" C,»Und'K.iiw.y I>.-iUe. petHion h„ been »,thdra.„ by^^^ »--; ^^t '''''^:^:i:^^tZX^^^^^ -mmends that this Act be left to its ^^"The"undersigned further recommends that the ..n.i^^^^^^ Acts of the said session be left to their operation. Chapter 1 to 18, 20, 22 to 24, 84, 8b, S>. A. CAMPBELL, Minister of Justice. ELL, ■ster of Justice. 6S2 NOVA SCOTIA LEGISLATION NOVA SCOTIA— 47th VICTORIA, 1884. (2nd Session — 28th General Ahsembly.) Report of the Honourable the Minister of Justice, approved by His Excelleiicy the Governor General in Council on the 6th September, I884. Department of Justice, Oitawa, Ist September, 1884. To His Excellency the Governor General in Council. The undersigned having had under consideration chapter 3 of the Acts passed by the legislature of the province of Nova Scotia, in the 47th year of Her Majesty's reign, intituled ; " An Act respecting a Provincial Loan," respectfully recommends that the Act be left to its operation. J. H. POPE, For the Minister of Justice. Report of the Honourable the Minister of Justice approved by His Excellency tlie Governor General in Council on the Jfih April, 1885. DEPARTMEyT OF JUSTICE, Ottawa, 26th March, 1885. To His Excellency the Governor General in Council : The undersigned has the honour to rei)ort upon the Acts passed by the legislature of the province of Nova Scotia in the year '884. The undersigned having considered tne Acts mentioned in the schedule attached hereto, respectfully recommends that they bd left to their operation. Chap. 3. An Act respecting a Provincial Loan ; was left to its operation by Order in Council dated 6th September last. Chap. 9. An Act to impose duties on licenses issued under the Dominion Liquor License Act, 1883. ^ The undersigned had occasion to examine this Act a short time after it was passed, and came to the conclusion that it should be left to its operation. He sees no reason to change the view which he then entertained, and recommends that the power of dis- allowance be not exercised in respect of this Act. Chap. 19. An Act to amend chapter 137, Reviae(? Statutes, 3rd series "of the relief of insolvent debtors." This Act makes provision with respect to the discharge of insolvent debtors con- fined in jail under the ordinary process of the courts. Some difference of opinion exists with respect to the authority of the legislature over this subject. In Ontario, in the revision of their statutes, the laws on this subject were consolidated, as being within the legislative authority of the province. In New Brunswick, on the other hand, in the case of Regiua vs. Chandler (1 Han., 548) it was held that legislation of this class was ultra vires of a provincial legislature, and in the consolidntion of the statutes of New Brunswick, 1877, the Acts of that province relating to the subject were not con- solidated, but were printed in an appendix. In Nova Scotia the Acts relating to Insolvent Debtors were not included in the consolidation of 1873, although the Act had been amended by the legislature of Nova Scotia in 1868. 1 ellencythe Governor ptember, 1884. the Acts passed by [er Majesty's reign, commends that the POPE, Bter of Justice. His Excellency the 1 March, 1885. by the legislature 3 schedule attached eration by Order in e Dominion Liquor after it was passed. He sees no reason t the power of dis- 3rd series "of the olvent debtors con- ference of opinion ct. In Ontario, in ed, as being within be other hand, in iation of this class of the statutes of aject were not con- ot included in the egislature of Nova 47 VICTORIA, 1884. 523 operation. ^^^ administration of justice. Chap. 10. An acl w imp . ^pgration. The undersigned recommends that this Act b^^^^^^ the provisions of section 3, At the same time he desires to observe Jhat some ot p ^^^ ^^^.^ relating to the qualification of ^■hVjdgeB. the oftces ^^ cedence, and the oaths to be ^^en by them are m^^^^^^ - ^^ ^^^^^^ ^he same of the legislature, and very considerable f^^^ «^'Y;„i,,,,tures, and as the provisions in to their operation the Acts (chapters 1, 2, 4 to 8, lU to lo, ^ also those mentioned in this report. AH of which is respectfully submitted. ^ CAMPBELL, Minister of Justice. 524 NOVA SCOTIA LEGISLATION NOVA SCOTIA— 48th VICTORIA, 188.5. (3rd Session— 28th General Assembly.) Petition of Mrs. Maria Kearney irith respect to Chapter 31. To His Excellency Sir Henry Charles Keith Fitzmanrice, Marquis of Lansclowne, and Goiiernor General of Canada. The petition of Maria Kearney, of Dartmouth, in the county of Halifax and province of Nova Scotia, humbly showeth : That her father, Andrew McMinn, died in the year 1838, having fii.st made his last will and testament, a copy of which is hereunto attached, and which will was after- wards duly proved and registered in the Probatt* Court at Halifax, where it still remains registered. Your petitioner was of the age of about two years at the time of her father's death, but wac not born when the said v/ill was made. Administration with the will annexed was obtained by Mary McMinn, your petitioner's mother, of the estate of your petitioner's father. By the said last will and testament a property of 1 60 acres of land at Dartmouth aforesaid was devised to the said ^lary McMinn during her life, with remainder to any child or children the testator might have In' liis then marriage. Your petitioner waa the only child of that marriage, and became entitled to the said property on the death of her mother, who died in 1881. Shortly after the said Mary McMinn became administratrix, wishing to obtain the absolute control and ownership of said propei-ty, she applied under pretense of debts being due by the testator, to the Governor and Council of Nova Scotia, who then alone had power to order the sale of the property of deceased persons, for permission to sell the same, but the Governor in Council refused to order sucli sale or any sale thereof. She afterwards instituted proceedings in the Chancery Court of Nova Scotia, and, having concealed from the court the title of your petitioner, fraudulently obtained an order from the Master of the liolls to sell the said property, and under such order sold and became the purchaser thereof. Your petitioner contends that the Chancery Court held no jurisdic- tion over the property even if the Governor and Council had not been applied U) ; that the Governor and Council having refused to order a sale, no other court could interfere ; that the Master of the Rolls could not make a valid order of sale ; that no hearing of the cause ever took place, nor any final decree ever made ; that your petitioner's title as devisee was concealed and never set out in the writ ; that no sale or deed was ever confirmed or any decree enrolled ; that these and many other grounds exist making the sale of said property as to your petitioner nugatory and void. At the time of such sale your petitioner was still a mere infant. Immediately upon the accruing of your petitioner's title on the death of her mother in 1881, she brought an action of ejectment in the Supreme Court of Nova Scotia to recover a portion of her said property against the Honourable Samuel Creelman, a Member of the Legislative Council of Nova Scotia, and against Alexander P. Reid, physician, which suit was decided adversely to your petitioner, but which has been appealed to the Supreme Court of Canada. Such decision was, however, given without your petitioner having been heard. To make good the title to this property in those holding it adversely to your petitioner, an Act was passed during the session of the legislature of Nova Scotia just closed, couched in general language, viz. : making good all chancery titles, but such general terms were used to conceal the real intention of the Act which was passed solely to prevent your petitioner from recovering the property claimed in her said suit, and of which she has been deprived by the above-mentioned irregular, fraudulent and void proceedings, instituted and conducted while she was a mere infant, but never co n 48 VICTORIA, 1886. 5. 31. \f Lanstlotvne, and of Halifax and ng fiist made his ich wiJl was after- eie it still remains iino of her father's tion with the will the estate of your 1 60 acres of land (ng her life, with mai-riage. Your the said property id Mary McMinn ownership of said testator, to the order the sale of but the Governor yhe afttjrwarcis having concealed 1 order from tlie d and became the b held no jurisdic- applied to ; that b could int,erfere ; hat no hearing of petitioner's title or deed was ever exist making the time of such sale ccruing of your tion of ejectment property against I of J^ova Scotia, Iversely to your Canada. Such Iversely to your N^ova Scotia just titles, but such lich was passed n her said suit, fraudulent and I but never co n cludt'd. Your petitioner was not aware of any measure Iiaving l)een before the Nova Scotia legislature of this character, and cmly discovered the fact after the close of the session ; and not having had any notice of it, she was unable to offer any op])osition thereto, and the said Act passed wholly unknown to her. The said Honourable Samuel Creelman was a memljer of the legislative council of Nova Scotia, and voted upon and assisted in the passing of said Act, though one of the defendants in the said suit brought by your petitioner to recover the said land. Your petitioner l)elieve8 that with the exception of said Samuel Creelman, but few, if any of the members of either branch of the legislature of Nova Scotia were aware of the true and real intention of the said Act. The said Act is entitled " An Act to confirm sales of land under order of the Supreme or Equity Court." Your petitioner is a widow with eight young children depemiing upon her for support, and if the said Act should become law, great and manifest injury and i^njustice would be done to her and her children, and she humbly priys that your Excellency will refuse your assent to and disallow the said Act either in whole or in so far as it will apply or include or bear upon the property or title thereof claimed in her said suit against the said Honourable Samuel Creelman and Alexander P. Reid. And your petitioner as in duty bound will ever pray. MARIA KEARNEY. Report of tlie Honourabfe the Minister of JuMv-e, approved by lHn Excellency the Governor General on the llith day of May, ISH'i. Department of Justick, Ottawa, 7th May, 1885. To His Excellency the Governor General in Council: The undersigned to whom, was referred the petition of Maria Kearney, praying for the disallowance of an Act passed by the legislature of Nova Scotia at its last session (1885), chapter 31, and intitled : " An Act to confirm sales of land under order of the Supreme or Equity Court," has the honour to recommend that copies of the petition and accompanying papers be transmitted to the Lieutenant-Govornor of Nova Scotia, with a view to obtaining an authenticated copy of such Act, and also of affording his government an opportunity of making any observations with regard to the said Act and petition that they think fit to make. A. CAMPBELL, Minister of Justice. Petition of Mrs. Maria Kearney with respect to Chapters 23 and 31. To His Excellency Henry Charles Keith Fifzmaurice, Marquis of Lansdowne, and Gov- ernor General of Canada. The petition of Maria Kearney, of Darmouth, in the county of Halifax and province of Nova Scotia, humbly showeth : That she addressed a petition a few days ago to your Excellency, praying that your Excellency would disallow or refuse your assent to an Act of the legislature of Nova Scotia for reasons contained in the said petition. Since the forwarding of said petition your petitioner has discovered that another Act of the provincial legislatuie, intituled : "An Act to enable the government of Nova Scotia to appropriate lands for public purposes," was also passed during the last session, and though couched in general language, as if to apply universally, was intended solely to take lands from your petitioner under circumstances which she contends are wholly unjustifiable. The circumstances are these ; In the year 1859 the provincial government were constructing a building known as the hospital for the insane, and needed a supply of water for it, which could be obtained by carrying water pipes through land which had been devised to your petitioner by her father, subject to the life interest of her mother, then living. fi26 NOVA 8C0TIA LKUIHI.ATION An Act of parliament w«* conaeurhood. The conseijuence of this wrongful as well as injudiciouH bartering away of this valuable right was that this institution was left without water except what it could obtain by autleraint! from the sugar refinery. To meet this diffi- culty so recklessly brought on, the government of Nova Scotia, unsanctioned by any law, with force and violence entered the land of your petitioner and to the extent of over a thousand feet, sank a deep trench through the same, and laid therein a new set of pipes, thereby unjustly acijuiring a second supply or watci'. An action was thereupon instituted by your petitioner before the passing f)f this Act, to obtain a removal of this second set of pipes out of this property which is now in her possessioi), by the death of her mother in 1881, and t;>is action is at the present moment on the list of trials of the Supreme Court of Canada, to which court it has l)een removed by appeal from the Su- preme Court of Nova Scotia. Your petitioner contends that the said Act concealed under general terms aims at the destruction of this suit, by obtaining, by Act of parliament, property in litiga- tion, which would be an unconstitutional exercise of legislative power. Your petitioner further contends that to allow her property to be again invaded and forcibly taken from her for a purpose once already satisfied by an adverse appropriation of her property, would be a proceeding uneiampled in hardship, wholly unjust in principle, and unwarranted by any precedent however arbitrary. Your petitioner further submits that as the provincial government of Nova Scotia are constructing no public works, and have no intention of doing .so, and posse.ss none except the building known as " the province building" and the building known as the hospital for the insane, no such Act is required, and to place such unlimited power of taking lands in the hands of the Council of the province, as that Act proposes wantonly, would be a most arbitrary exercise of legislative power. Your petitioner also submits that, except in cases of the most pressing necessity which do not exi.st in Nova Scotia, the land of the subject should n t be wrested from him until he would first receive compensation, but this Act intends the contraiy, and this right of the subject to hold his land generally till he voluntarily parts with it, or is paid for it, when he is to be adversf-ly deprived of it, applies most particularly to the government of Nova Scotia taking lands ; for as the government cannot be impleaded in any court or brought to account except through their agents or servants whom this Act screens from liability, the party deprived of his land under this Act should not be deprived thereof before compensation made in any case. This Act it is true refers to arbitration and makes a sort of plausible flourish in this way, but arbitration could neither be enforced against the government nor any award obtained by arbitration, and every proprietor would, after being deprived of his land be at the mercy of the government for compensation. Your petitioner further submits that the legislature of Nova Scotia, when independ- ent and exercising control over the whole province and over extensive public works, never attempted to pass a general Act to appropriate property, but brought each particu- lar case before parliament in an open and public manner so as to give an opportunity to parties interested to be heard before a committee of the Assembly, and in order to have it sanctioned or rejected upon its merits, and that this is the first attempt of the kind ever made and it is contrary to the practice and course of the legi^'ature of Nova Scotia since the foundation of the province. Annexed hereto are copies of both said Acts duly certified. Your petitioner therefore most respectfully and humbly prays your Excellency to refuse your assent to the Act intituled : ' An Act to enable the government of Nova Scotia to appropriate lands for public purposes," as well as to the Act previously petitioned against. MARIA KEARNEY, By her Solicitor, Ottawa, 8th day of May, 1885. - T. J. Wallace. fovernmeiit to carry An ample supply wIkmi, without Ihm- i lecessity for its introduction, on its being presented to us by Mr. Thomson, and I find i .lat he is as much surprised as we all are to discover that Maria Kearney, or her counsel, should considei that the exis- tence of her suit now pending in the courts in any manner prompted its passage. I inclose herewith Mr. Thomson's letter written to me after he had rused Maria Kearney's petitions. In regard to the alleged trespass, I may say that iic portion of the waterpipe trench passes through lands of Maria Kearney, unless, indeol, the public highway leading from the town of Dartmouth to Cow Bay and other places, is discovered to be her private property. In October, lb84, an action of trespass was instituted at the suit of said Maria Kearney, against Dickson and Ryan, two employees of the provincial lunatic asylum, who were engaged in reopening, by direction of the government, the trenches in which were laid the waterpipes leading from Maynard's Lake to the asylum. The trenches were cut originally in the year 1858, and the trespass complained of is for open- ing them on the public ri«ad which intersects Maria Kearney's property. After issuing the writ in her action of trespass, she obtained an injunction to restrain the said em- ployees of the government from prosecuting the work of putting in a new pipe, which injunction was without delay dischargad, on application to the court at Halifax, which court was unanimous in its judgment dissolving said injunction. From this judgment Mr. Wallace appealed to the Supreme Court of Canada, and on hearing said appeal the 8.iid Supreme Court unanimously sustained the judgment delivered by the Supreme Court of Nova Scotia, and gave judgment quashing said appeal. In regard to chapter 23, of the Acts of 1885, I may be permitted to remark that such an Act is essential, if the public works of the province are to be proceeded with un- interruptedly. It is a transcript of the Dominion Act of 1868, so far as it goes, and in ''< »S8 NOVA HCOTIA r.RCllBLATION providinjf for the acconimodiition of the public intoreHts due regard in had for the prO' tectioii (if private iiidividuiils. But were it otlierwim;, the contention of Mr. Walliiceon Itehalf (if Maria Kearney in very inaccurate, aH the fuwHage of this Act cannot, in my opinion, atlect in any manner suitN instituted, prior to its passnj^e and now pendente lite. Attaclied liereto are certified copies of botli stututes. I have, &.C., A. J. WHITE, Attornei/ General, Mr. Jainen Thonimn to the Von. the Attwney General. Halifax, 18th»June, 1885. Dkau Silt,- Tn 1832 (.'J VVill. IV., chap. 52) an Act was passed in tlie legiwhiture of thi.s province dochiring and enacting that all sales and convfyances made or there- aftei' to be made by a master of the court of chancery should, when confirmed, be good and eflectual foi' transferring to the purchasers the interest directed in the decree to l)e sold. It is evident that at that oarly date the court of chancery had been in the habit of making decrees for the sale of leal estate, and having the deeds exticuted by a Master of the Supreme Court. This practice was continued until 1850. Upon the revision and consolidation of the statutes in that year it was enacted in the Act relative to the Court of Chancery (chapter 127, section t) : " All conveyances of land made in pursuance of any order or decree of the court shall be efJ'ectual when confirmed by the court for conveyii;g such land, without the persons whose interests are conveyed being made parties thereto.)" In 1855 an Act was passed " abolishing the court of chancery and conferring equity jurisdiction on the supreme court " (chap. 28). While this Act repealed chapter 1 27 of the Revised Statutes it omitted any mention of section (!, relative to the sale and conveyance of teal estates. It was evidently inadvertently omitted. The practice wa.s never changed in the court when etiuity jurisdiction was then conferred upon it. The attention of practitioners does not appear to have turned to this omission in that law. Hundreds of mortagos have since been foreclosed, and sales made by the sheriffs or masters under decrees of the Court of Equity, and deeds made to the pur- chasers at such sales. As you are aware I myself have foreclosed a considerable number, and have passed many titles depending on the validity of such sale. While lecturing on leal property at the law school, the omission was brought to my notice, and I hastened to remedy the defect, and prepared the Act in question. I had not in view any particular case, nor was I aware that it would in any way affect the cause of Maria Kearne} . I have, (fee, JAMES THOMSON. Secretary Department of Railways and Canah to Dep%t,ty Minister of Justice. Departmext of Railways and Canals, Ottawa, 12th Febi-uary, 1886. Sir, — I am directed to refer to you, for the necessary action thereon, a petition ad- dressed to his Excellency the Governor General, dated the 4th February instant, from Mr. Norvin Green, by his attorney the Hon. W. McDougall, praying, for the reasons stated, that his Excellency will be pleased to disallow a certain Act, passed by the 4H vi(n"(»niA, 1885. 019 in had for the pro <»' Mr. WhIIhckom Let cannot, in my now ])f:ndente lite. ITK, Vmry O'nirral. |h*Juno, 1885. n the lej,'islature of ;i'M made or there- •oiitirmed, be good n the decree to l)e een in the habit of cuted by a Master 1 consolidation of Court of Chancery nee of any order urt for conveyii:g ing made parties "V and conferring his Act repealed ction (), relative to »tly omitted. The tvas then conferred ed to this omission sales made by the made to the pur- [•, and have passed n was brought to in question, ould in any way lOMSON. r of Justice. ii-uary, 1886. on, a petition ad- ry instant, from for the reasons t, passed by the local legislature of the province of Nova Hcotia, (jhaptei- 30, declaring a certain draft- agreement, dated the "JTth .July, 188U, purporting to have been made by and between the North American (Construction ('om|>.iny of the one |>art, the (J'eat Ameiiean and Kuropeaa (Short fiitie Railway (company of the second |)iirt, and William Stewart and W. II. ('hisholm, trustees, of the third part, as a security to the sul)-c<>iitractors ot the said North ^Vmerican (Construction ('ompany for certain balances due them by the said construction company— to be valid and binding det'd. With regard to paragraphs 7 and 8 of the above |)etition, f am instructed to say that ttui reasor; why the proposed contract betwt-en Her Majesty and the Mont real and European H'lort Line Railway (Company has not been fully ex(H'uled is, that the sai I company lias failed to pay outstanding claims of the said sub-contractors. I am, ibc, A. P. BRADLEY, Secr>:tarj/. Petition of Mr. Xorviii Green to the Governor General, re t'/inpter ,iU. To His E.r.cellencythe Mnrqu'iH uj Lansdwone, Gorertior General of Canada, dkr., dc., dec. : The petition of the undersigned, Norvin (Ireen, of the city of New York, president of the Montreal and European Short Line Railway Company, humbly sliowetli : 1. That your petitioner subscribed for and now holds a large amount of tbe capital stock of a railway company incorporated by an Acto:' the Parliament of Canada, being chapter 73 of the session of 1882, with power to construct a railway from Cape North, in the Ishind of Cape Breton, to the strait of Canso, and fr(im New (jlasgow (in Nov. Scotia,) to Oxford, Amherst or some suitable point of intersection with the intercolonial Railway, and thence by the use of, or connection with, other lines through the province of New Brunswick, the State of Maine and the province of Quebec, to establish railway communication with Montreal. 2. That by an A^t of the same parliament, pas.sed in the session of 1884, the name of the said company was changed and was thereafter to bo known as " The Mon- treal and European Short Line Railway (company," with power to construct a line from Sydney or Louisburg, in Cape Breton, and also to construct a line from New (Glas- gow along the north shore of Nova Hcotia, through Moncton and Fredericton, in New Brunswick, to a point on the New Brunswick Railway between Debec and McAdam's Junction, and "for the purpose of making the railway line and connfiction with the city of Montreal more direct," were empowered to " hold, acquire and maintain a part thereof across any part of the state of Maine " or intervening states, so far as might be consis- tent with the laws of the said state or states. 3. That the .said last mentioned Act, which received the royal sanction from your Excellency, 19th April, 1884, expressly declared that your petii.ioner's company (which hod already secured the right of way and expended large sums of nioney in surveys and construction in Nova Scotia) should under its new name and enlarged powers, " enjoy all the franchises and privileges and hold all the rights and assets, and be subject to all liabilities " which had heretofore " attached to the Great American and European Company." 4. That the time limited by the Act of incorporation for the commencement of the construction rf the lines therein mentioned, expired in the month of April of last year, and the time limited for the coropletion of the same will not expire until April, 1889. 5. That no time is limited by the amending Act of 1884, either for the commence- ment or the completion of the line from Sydney or Louisburg to Canso, or the line from New Glasgow to Moncton and Fredericton, and thence through the state of Maine to Montreal. A .'^1 ^vt 530 NOVA SCOTIA LBOIHLATION ■V. 6. Tliat all the rights, powers and franchises granted to your petitioner's company in and by their Act of inoorporation (except is modified and extended by the amending Act of ] 884) are still possessed and enjoyed, and held by the company as a subsisting corporation, without any default or forfeiture, under the terms and provisions of the said Acts or either of them. 7. That, under and by virtue of an agreement dated 9th May, A.D. 1884, between Her Majesty (represented by the t^'Mi'>lrn. trustees, of the third part, as a security to the sub-contractors of the said Noi th i\ nierican Construction Company, for certain balances due them by the said Construction Company, was signed at Pugwash, in Nova Scotia, by an officer of the Great American and Euiopean Short Line Company on behalf of both the s^d <.oinpauies, with the intent that the -ame if apprc »'fcd by the said ooiiipanies and oxecuted by them, would then become and be valid and binding. 11 That the said draft agreement of 27th July, 1883, was wholly unauthorized by the said Grsat American and European Sljort Line Railway Company, and has never been approved, signed or sealed by that company, or by any person or persons authorized to deal with, or bind the property, assets, or franchises of the samp, in Nova Scotia or elsewhere. 12. That with full know!>^dge of these facts the provincial legislature of Nova Scotia, on the 24 th da} of April, 1885, passed an Act which declares the said un- authorized draft or writing, a valid and binding deed, as if the same had been duly approved and executed by the said companies, aad vests, or purports to vest, all the property and assets of your petitioner's company in Nova Scotia, in two persons, called trustees, and authorizes or purports to authorize the sale of all the said property and assets, " particularly the road-btJ, right ot way, rails, sleepers, rights, privileges and franchises connected with the .«aid line of ra Iway, and the interest of the said company in the subsidy granted to it by the Doiniiiion government," to third parties without the privity or consent of your petitioner's company. 13. That the said Act contained a proviso that the same "should have no force or effect until published in the " Royul Gazette" by order of the Governor in Ccuncil" 14. That it appears from the "Royal Gazette" of 6th January, 1886, » copy of which is annexed hereto, that the said Act, chapter 39, of 24th April, 1885, has been published therein by order of the Governor in Council. l.T. Your petitioner submits for your Excellency's consideration that, under the facts and circumstances herein set forth, the said Act of the legislature of Nova Scotia, ch'.f V r 39, intituled: An Act to confirm io'id give efFroved hy His member, A.D. 1886. ries, and objections tch of the Honour- iint-Governor, dated rev sed statutes of eral points therein of the Composition, IS objected to is that Did, exercise and en- time being be held, d in a corresponding to hold, enjoy and time being be held, s enactment by suc- macted by the legis- lorts of the several id duly considered, titutionality of said e subject is that by regarding t.K On- This was given after the opinion of the law officers of the crown in England had been obtained, as their opin- ion is dated 4th of May, 1869. Some reasons are given by the Minister of Justice in his report for the disallowance of the clause now objected to in the Nova Scotia Act, the chief being that section 18 of the British North America Act confers on the Senate and House of Commons of Canada the authority to confer on its members, privileges, immunities, and powers co-extensive with those enjoyed and exercised by the Commons of the United Kingdom. It is assumed by the minister that the power to pass an Act defining these powers, inc., was conferred up(jn the parliment of Canada on the ground that without such a provision the parliament of Canada could not have passed such an Act. With the greatest deference, the undersigned cannot unreservedly accept this doctrine. The right of conferring privileges, powers and immunities upon the members and committees of any independent legislature under the British form of governn.ent, should be regarded rather as inherent, and section 18 of the British North America Act in that light would be regarded rather as a limitation, than a conferring of power. The whole question was elaborately discussed by the late Hon. J. Sandfield Mac- donald, the then Attorney General of Ontario, in a report of the date September Ist, 1869, and the reasoning contained in that able report the undersij^ned takes the liberty of averring has never yet been successfully overthrown by any subseijuent report or opinion from the Department of Justice at Ottawa. Regarding the opir ^n of the law officers of the crown in England, it is submitted that this wfus given without hearing the other side, or without having presented to their consideration many powerful reasons which might have been easily adduced in favour of the enactment complained of. Nevertheless the undersigned would not desire to recommend adhesion to any en- actment by the legislature of this province at variance with the constitution of the country ; but before advising the repeal of the clauses complained of in the despatch of the Honourable the Secretary of State, would seek for further and more cogent reasons for pronouncing it unconstitutional. It seems, in the opinion of the undersigned to be an open question, susceptible of argument on both sides. Might not the point, which is one of importance — inasmuch as it seems to involve the right of the provincial legislature to confer any powers and immunities upon its members — be submitted for final ajudication to the Supreme Court of Canada? The undersigned has reached fhe conclusion with respect to the sections 19 and 20 of chapter 3, to use the words of the Hon. J. Sandfield Macdonald, that they are "not liable to the exceptions which have been taken to them, and that sufficient considera- tion has lu t, in his humble opinion, been given to the important distinction between powers clauned by the authority of a statute, and powers claimed as belonging inherent- ly to a legislative body. 2. Exception is taken to sections 94 and 96 of chapter 4, "of election of Members of the House of Assembly." The undersigned is of the upinioii th^t section 96 is a useless and superfluous pro- vision, and might with propriety be eliminated from the chapter. It seems, however, not to have been objected to at the tirne of its enactment, and while it confers no advantage, its retention can never resu t in any confusion. 3. Exception is likewise taken to Sv^ction 65 of chapter 29, " of Public Instruc- tion," inasmuch as it provides for the punishment by fine and imprisonment, at the dis- cretion of the court, of any person making a false declaration of the right to vote at a school meeting, the offence being perjury by statutes of Canada, 32-33 Vic, chapter 23. In the opinion of the undersigned it is by no means clear that the offence defined amounts to perjury within the meaning, of the Canadian statute referred to. No oath is prescribed and no form of declarati(jn wliich tlie statutes of Canada declare to carry the penalties of perjury when false. It seems rather in the nature of a fraudulent mis- representation of fact, for which a reasonable and ade((uate punishment is attached ; even if the making of such a declaration as aforesaid would be held to amount to per- jury within the meaning of 32 Vic, chapter 23, still there is nothing in the section ob- jected to which overrides, or attempts to override, the exercise of the criminal statute. The option is left to proceed in another form ; still it is admitted that '.f the declaration Ml 636 NOVA SCOTIA LEOISLATION Vihen false is clearly corrupt perjury within the meaning of the Canadian statute, then the penalty ought not to be in the section. But, as at present advised the undersigned submits that the declaration, when false, does not amount to perjury within the meaning of the Canadian statute, nor under the terrns of the common law, and therefore the penalty is one which the legislature may legally impose, 4. It is recommended that the suggestion contained in the despatch of the Hon- ourable Secretary of State touching section 1 of chapter 51, "of bridges and public land- ings " be adopted, and that the legislature be asked to amend the chapter so as to limit the authority of the municipalities to the structures which are within the authority ' of the legislature. 5. The error in section 28 of chapter 53, " of railways " was a pure inadvertence and should be rectified. 6. Exception is taken to chapter 69, " of the conveying of timber and lumber on rivers, and the removal of obstructions therefrom," though no recommendation is made by his Excellency the administrator of the government. Such being the case it is not necessary to say more than that in the opinion of the undersigned, the provisions of the chapter in question are strictly within the authority of the legislature. 7. It is admitted that the chapter relating to the inspection of provisions, lumber, fuel and other merchandise deah with subjects exclusively beloiiging to the fedei'ai parliament. It was left in the appendix of the Revised Statutes, fourth series, for that reason. In respect to the particular matters embraced in the Act the parliament of Canada has not, as the undersigned is advised, dealt with them, nor has there been any Act repealing the sections now embodied in the chapter under consideration. As a consequence the provisions of said chapter are still in force in Nova Scotia. For this reason it was deemed proper that the Act should appear in the body of the statutes, until it was actually Superseded and repealed by the federal parliament. 8. Chapter 75, " Of Licenses for the sale of Intoxicating Liquors," has been re- pealed by th(.' legislature of Nova Scotia since the promulgation of the fifth series of the Revised Statutes, and therefore it is not necessary to deal with the objections raised in respect to it. 9 and 1 0. No comment or remark is needed in respect to the observations in the despatch of the Honourable the Secretary of State in paragiaphs i* and 10. 11. Exception taken to chiipter 8'', "Of the Property and Civil Rights of aliens," on the ground ti^t this is a matter within the sole jurisdiction of the federal parliament. Under the feitmh North America Act, section 91, it is laid down that among the matters ext-luaveiy imdH? the control of the parliament of Canada should be " natura- lization and aliens.' But r. is not clear that this exclusive jurisdiction extends to the control of their property aad ci^nl rights in the several provinces. The chapter in question has never, as tlie imdersigned is advised, l>een distinctly repealed or sought to be repealed l)y tJie federal parliament, and tlie nnciersigned regrets that he is unable to concur in the suggestion tti&t chapter 86 should be repealed by the legislature of this province. 12, l.T and 14. No remarks are considered necessary in respect of the observations in paragrapiis 12, 13 and 14. 15. Chapter 110 is no longer of any value, for the reasons stated in the despatch of the Honourable the Secretary of State,, and might properly be expunged ffom the statutes. 16. The uufilersigned has before him the report of 26th March, 1886, touching the matter, " Of tke relief of Insolvent Debtors in Jail," and has nothing to remark thereon except that, in Uis opinion, crreat inconvenience would re.^ult if the power to give relief to imorisored debtor.s were found to be ultra vires of the provincial legislatures. Nor indeed dt>es tliere seem to be any sound reason for so holding, so far as mere liberation from jail is concerned. All of which is respectfully submitted. /. W. LONGLEY. 16th November, 1886. iF y. ' ny i )MJ) l . ^'i 48 vicToniA, 1885. 537 idian statute, thea ied the undersigned within the meaning and tiierefore the spatch of the Mon- ies and public land- apter so as to limit the authority of pure inadvertence ber and lumber on mendation is made the case it is not le provisions of the re. provisions, lumber, gins to fcho federal H, fourth series, for tct the parliament 3m, nor has there ider consideration. Nova Scotia. For the body of the parliament, ors," has been re- e fifth series of the :)jections raised in bservations in tlie ad 10. Civil lliglits of fcion of tlip federal d down that among should b(> "natura- on extends to the s. The chapter in ealed or sought to lat he is unable to legislature of this )f the observations 3d in the despatch ixpunged ffom the 886, touching the to remark thereon iwer to give relief legislatures. Nor s mere liberation LONGLEY. Report of the I/onourab/e the Minister of Justice, approved by His Excellency the Governor General in Council on the 7th April, 1887. Dbpabtment op Justice, Ottawa, 30th March, 1887. To His Excellency the Governor General in Council : The undersigned has the lionour to report that it appears froni the despatch of the Lieutenant-Governor of Nova Hcotia, and its inclosure.s, that his government is reluctant to adopt the suggestions made by the undersigned in his report of the 9th October last, that certain sections of chapter 3 of the Revised Statutes of Nova Scotia, 1886, 5th series, should be repealed, because they purport to confer powers on members of the provincial legislature which it is beyond the competence of that legislature to confer. The reason for such reluctance appears to be that the Attorney General of the province has reported to his Honour that " the reason for the unconsitutionality of such provisions have never in his opinion, been clearly and convincingly stated, and that in his opinion, the right of conferring privileges, powers and immunities upon the members and committees of any indep ndent legislature under the British form of government, should be regarded rather as inherent." The Attorney General of Nova Scotia adheres to the views expressed in relation to a similar statute, by the Honourable John A. Macdonald, in a report dated l.st September, 1869, and dissents from those put forward by the law oti"::ers of Eng- land, regarding that statute in their opinion, dated 4th May, 1869, and by ^ir John A. Macdonald, then Minister of Justice, in his report thereon, dated the 14th Tuly, 1869, and by the Honourable Edward Blake, then Minister of Justice, in his report on the Nova Scotia statute (of which the one in question is a copy) dated the 1 3th November, 1876, and by the undersigned in his report of the 9th August last. The Attorney General also indicates a wish, before advising the appeal of the clauses complained of, for further and more cogent reasons for pronouncing it unconsti- tutional. With a view of obtaining such, he asks whether the point mighv not be submitted for final adjudication to the Supreme Court of Canada ? The time within which disallowance of the statute in question might be made, has expired, and the undersigned did not advise the exercise of the power in this instance for the reason stated in his report of the 9th August last, that the objectionable pro- visions are but part of one of the chapters of the Revised Statutes of Nova Scotia, and that great public inconvenience might result from the disallowance of an Act embodying, as it did, nearly all the public law of the province, and bringing into force the Revised Statutes. The undersigned is, however, unable to advise that the question as to the power of the legislature to make such enactments as those in question should be submitted to the Supreme Court. Such a course, he thinks, should only be adopted when greater urgency exists for a decision of the point in dispute, and when greater doubt, attaches to the objections to the enactments, than can be said to exist nc ^ after the series of concurrent opinions which had been pronounced regarding such provisions," and after the full and repeated judicial examination which has been given to the point taken by Mr. John Sandfield Macdonald, and relied on by the Attorney General of Nov . Scotia. The reasons given by the undersigned against the exercise of ths power of dis- allowance apply equally to other provisions of the Revised Statutes of Nova Scotia, to which attention was called in his report of the 9th August last, but in respect of which it seems that his Honour's government does not fe«l disposed to adopt the suggestion* contained in said report. J. S. D. THOMPSON. Minister of Justice. NOVA SCOTIA— 49th VICTORIA, 188G. (4th Session, 28Tn General Assemijly.) Petition of Mr. E. W. Plunkett to Ilia Excellency the Governor General, re Chapter 1. To Ilis Excellency the Governor General of Canada : The petition of Edmund W. Plunkett, of Brockville, Ontario, civil engineer, respectfully submits : That your petitioner represents the proprietors of a majority of the shares and " A " debenture stock of the Western Counties Railway Company of Nova Scotia ; That the government cf Nova Scotia, recently, in a sudden and hurried manner, without notice to any of the parties interested, and without their consent, did introduce and have passed by the legislature of Nova Scotia an Act, intituled : Chapter 1. "An Act to authorize certain grants in aid of railways and to provide for the completion and consolidation of the railways between Halifax and Yarmouth ;" That said Act provides for the expropriation for public purposes, of the property and rights of the Western Counties Railway Company, and for payment as compensa- tion of about one-tenth of the present "alue of such property and rights, as can be abundantly proved to your Excellency's satisfaction ; That the government of Nova Scotia in thus arbitrarily expropriating the com- pany's rights and property without consent, without even an ordinary arbitration to determine value, and without almost any compensation, has grossly violated the principles of common honesty and .justice, to say nothing of public policy ; Wherefore your petitioner humbly prays : That your Excellency be pleased to suspend or cancel said Act in order that a great wrong mey be prevented. And your petitioner will ever pray. E. W. PLUNKETT. Supplementary Petition of Mr. Plunkett to His Excellency the Governor General re Chapter 1, To ffis Excellency the Governor General : The supplementary petition of Edmund Walter Plunkett, presently of Brockville, engineer, — Respectfully represents, in addition to, and in explanation of his former petition for disallowance of an Act, recently passed by the legislature of Nova Scotia, chapter 1, intituled : "An Act to authorize certain grants in aid of railways, and to provide for the completion and consolidation of the railways between Halifax and Yarmouth ;" That there has been expended upon the Western Counties Railway, between Annapolis and Yarmouth, a distance of about 85 miles, the following amounts, exclusive of interest : Paid up shares .« $ 500,800 do A debenture stock 726,500 do B do do 325,000 do Nova Scotia government subsidy . . . ,. 680,000 do County subsidies for land damages, &c. 147,000 Total $2,378,300 1 49 vicToiUA, 1886. 639 ]G. noral,, re Chapter 1. rio, civil engineer, of the shares and Nova Scotia ; id hurried manner, isent, did introduce ays and to provide iX and Yarmouth ;" aes, of the property ment as compensa- d rights, as can be opriating the com- tiary arbitration to •ossly violated the jlicy ; ct in order that a PLUNKETT. ivernor General re ntly of Brockville, former petition for Scotia, chapter 1, tnd to provide for I Yarmouth ;" Railway, between amounts, exclusive 500,800 726,500 325,000 680,000 147,000 378,300 That Mr. Edmund Wragge, C.E., a railway engineer of 20 years Canadian experience, of recognized ability and character, made a careful examination in 1882 of the Western Counties Railway property at the request of Sir Henry Tyler, president of the Grand Trunk Railway of Canada, who was then chairman of the Nova Scotia Rail- way Company ; this was an English company lately formed to purchase, acquire and consolidate Nova Scotian lines. Mr. Wragge's estimate of the value of the Western Counties Railway Company's property to the consolidation system, was £279,000 sterling, or in round figures $1,400,000. This sum did not include the value of the Western Counties Railway Company's interest in the AV^indaor lirancli property trans- feried to it by 37 Victoria, chapter IC, of the Dominion parliament ; but the value of the Western Counties Railway Company's claim to the Windsor Branch has recently been established by the Dominion government who, in consideration of said company settling that claim and completing its line, have agreed to give a subsidy eijuivalent to the net earning of the branch until the company gets possession in 28 years, This subsidy capitalized is equal to $600,000 ; That the value of the 67 miles of the Western Counties Railway in operation as determined and certified by Mr. Wragge is about $20,000 per mile, and can be no less than when made up in 1882, as improvements have since been made ; That $20,000 per mile according to Mr. Wragge's certificate is well known to be a reasonable price for an ordinary railway in operation in Nova Scotia ; That according to the Act and agreement petitioned against, no larger sum than $7,500 per mile can be paid by the province for the Western Counties Railway, its interest in the Windsor Branch, its lands, assets and property generally ; That the commercial or dividend paying value, of a new, incomplete, undeveloped railway, disconnected from all other railways, and cut off from interchange of traffic with them, does not form a fair or reasonable basis of purchase by a government for public purposes ; that nevertheless that basis has been greatly departed from by the provisions of the Act and agreement petitioned against ; for the Premier of the govern ment of Nova Scotia from his place in the legislature made on the 5th May, 1880, this staten\ent : " I believe these roads will earn more than $100,000 at no distant day." Here is the admission of the leader of the government of a capital value at no distant day of $12,000 per mile, which he wants appropriated for public purposes for $7,500 per mile ; That subsection e of clause 13, and subsection d of clause 31, of the agreement petitioned against, make the payment of a larger amount than $7,500 per mile for the Western Counties Railway Company's property impracticable under the legislation ; and that =aid sum of $7,500 per mile provides only a distribution of five cents per dollar of principal and interest of the company's just mortgage debenture stock, secured on its interest in the Windsor Branch property ; That the power given the Nova Scotia government, in clause 20 of the Act, to vest the properties and rights of the present company, by mere proclamation, and free of incumbrance, in another company, before payment or settlement has been effected, or secured, or the creditors paid, or the existing mortgages satisfied, is fatal to the rights of property, and leaves the owner no resource, aa he cannot sue the government of Nova Scotia ; That the summary expropriation of property for provincial purposes, at a valuation arbitrarily fixed by the government or legislation, without reference to arbitration, court of assessment, or other lawful machinery for appraising value, is a violation of the indefeasible rights of property and oonstitutional usage ; Wherefore your petitioner prays that the Act, Chapter 1, intituled : " An Act to authorize certain grants in aid of railways and to provide for the completion and consolidation of the railways between Halifax and Yarmouth," passed by the legislature of Nova Scotia at its last session, may be disallowed. And your petitioner will ever pray. E. W. PLUNKETT. Quebec, 26th July. 1886. Mr. J. W. Bingay to the Secretary of State. Yarmouth, N.8., 11th August, 1886. Sir,— T am instructed by the directors of tlie Western Counties Railway Company to forward you the inclosed, viz. : "•.ipu.uj' (l.) L.>tter of It. G. Elwes to Secretary W. C. R. Co., 2Gth June, 1886. (2.) Directors' answer thereto. (3.) Resolution of directors respecting disallowance dated 10th August, 1886. and passed on that day. " i '" These will, if necessary, be followed by a formal petition for disallowance, and are intended to supplenient the petition of E. W. Plunkett already filed in this matter. While being willing to make an amicable arrangement, the company strenuously objecsto any Act or Acts which expropriate their property without providinjr for adequate compensati.n, and which were passed by the legislature of Nova Scotia at the end ot a long se.ssion, and without notice to, or any opportunity for the company to oppose, many various objectionable clauses, .several of which, in the opinion of the Board are beyond tlie power of the local legislature. I have, (fee, "^ JAS. WENT. BINGAY, Secretary W. C. By. Co. Letter oj Mr. Wives to Secretary Western Counties Railway Company. LoRNE House, Yarmouth, N.S., 26th June, 1886. Consolidation of the Western Railways. Dear Sir —Referring to my interview with your Board yesterday and to the negotiations which are in progress for the acquisition of your outstanding debenture stock, I now desire to ascertain from your board whether, in the event of those negotia- tions resulting in an amicable settlement with the debenture stockholders, your directors will be prepared to recommend your company to assent to, and join in the transfer of the undertaking of the company, by the government of Nova Scotia, to the Halifax and Great Western Railway Company, under the powers claimed by the government bv " virtueof the agreement 16th August, 1879. ^ 8 k, "y I have, ttc, R. GERVASE ELWES, ,_ M. Inst. C. E. (On behalf of the Halifax and Great Western Railway Company.) Answer of Directma Western Counties Railway to Mr. Elwea. Extracted from Minutes of Directors' meeting held 26th June, 1886. "That the following letter be sent to Mr. Elwps " :— » Yarmouth, N.S., 26th June, 1886. Sir,— The directors have considered your letter of this date and have passed a resolution to the eflFect that in the event of the negotiations now in progress for the acquisition by your company of the "A"debenture stock resulting in an amicable settlement with the holders before January, 1887, and the payment to the company in addition, of the sum of five thousand dollars, the directors will be prepared to recom- 49 VICTORIA, 188G. 641 tuguHt, 1886. tail way Company 1886. Ugust, 1886, and lowance, and are this matter, pany strenuously )ut providing for ova Scotia at the the company to ion of the Board, JINOAY, C. Ry. Co. ympany. June, 1886. srday and to the nding debenture of those negotia- rs, your directors le transfer of the the Halifax and government, by .WES, Inst. C. E. Iway Company.) 'es. 186. ' That the June, 1886. 1 have passed a progress for the in an amicable to the company spared to recom- mend the company to assent to, and join in the transfer of the undertaking of the company by the government (tf Nova Scotia to tlii' Halifax and Great Wosterti Railway Co., under the powers claimed by the government, by virtue of the agri^einent. of Kitli August. 1879. The directors wish tr) be understood thiit the above is made without prejudice to, or waiver of, any legal or e(|uitablc rigiits of the company or bondholdera to resist any attempt, by the government of Nova Scotia or others, to secure [)oss»'ssion or control of the undertaking from the company without their consent. I have, ifec., JAS. WENT. HIN(iAY, Secy. W. C. Ry. Co. (Extract from Minutes of Directors' Meeting held 10th Auyust, 1S80.) Resolved, — That the president and secretary be instructed to petition his Excellency the Governor General to disallow the whole or sucii parts of the Acts of the Nova Scotia legislature, 18HG, chaps. 1 and 16, as provide for the expropriation and acciuisition by the Nova Scotia government, of the railways and property of the Western Counties Railway Company, and that the Hon. Secretary of State l)e notified that the directors, while not objecting to the charter of the Halifax and Great Western Railway Company and the amicable acquisition by them of the property and securities, and having assented to negotiations between them or their agents, and the debenture holders of the Western Counties R lilway Company, and others foi' that purpose, will resist any attempt on the part of the government of Nova Scotia or other persons to accjuire possession of any of the company's property, on the condition contained in the Acts asked to be disallowed. Further Supplementary petition of Mr. E. W . Plunket to His Excellency the Governor General, re Chapter 1. To His Excellency the Governor General of Canada : The supplementary petition of Edward W. Plunkett, of Brockville, Ontario, Civil Engineer, humbly showetli, — That your petitioner represents the proprietors of a majority of the shares and "A ' debenture stock of the Western Counties Railway Company of Nova Scotia. That the government of Nova Scotia, in a sudden and hurried manner, without their consent, introduced and procured to be passed by the legislature of Nova Scotia, at the last session thereof, an Act, being chapter 1 of the Acts of 1886, and intituled : "An Act to authorize certain grants in aid of Railways, and to provide for the comple- tion and consolidation of the Railways between Halifax and Yarmouth." So soon as your petitioner became aware of the said Act, your petitioner presented an humble petition to your Excellency for the disallowance of the same. Your petitioner is desirous that the present petition should be read as supplementary to his said former petition ; In the said Act, and the agreement made part of the same, and made substantially between the Government of Nova Scotia of the one part, and the joint stock association, it is recited that the said government possesses certain powers of disposing of the ^estern Counties Raihyay Company, and all its franchises (see section 12 of the Act, aind the recital to said agreement). The powers of disposition, if any such exist (whicli your petitioner does not admit) possessed by said government, are powers to sell the said railway, said to be contained in a certain mortgage alleged to have been executed oy the Western Counties Railway Company, but which your petitioner is informed was never executed by the said railway company. i»| 642 NOVA SCOTIA LKOIRLATION By t\w sftid Act and agrnomoiit tlni said ^{ovoinnient agrno with tho Haid joint stock iiHsociatioii, liiiiiteil, at tlio retjuast of a certain company, in waid Act and agreement mentioned, and to be or^ani/fd \>y Haid joint Htoci< association, limited, to put in force and exercise all statutory and other powers poMsoMsed, or to be pos8(!Hse said government ' petitioners were > the said Act, 49 poses aforesaid, is allowed by your nay be pleased to gislature of Nova aS'^., London. leir Attorneys. Petition of Mrs. Maria Kearney, with reaped to Chapter 5. To Ilia Excellency Henry Cfuirles Keith Fitzmaurice, Marquis of Lanado^mie, Governor General of Canada : The petition of Maria Kearney, of Dartmouth, in the county of Halifax, and province of Nova Scotia, widow, humbly showeth : That an Act of the legislature of Nova Scotia was passed on the 11th day of May, 1886, chapter 5, intituled ; "An Act respecting Public Charities," the fourth and fifth sections of which were intended chiefly to prevent your petitioner from recovering the lands described as Lot 1 in the schedule to said Act, and to destroy her title thereto without making any provision for compensation. This land was devised by your peti- tioner's father, Andrew McMinn, to your petitioner's mother during her life, and after- wards to any ciiild or chil Iren the testator might have by his then marriage, and as he had no children by such marriage but your petitioner, who was born after the execution of the testator's will, it rightfully belonged ,o your petitioner on the death of her mother, which took place in 1881. It is true, certain proceedings took place in the chancery court of Nova Scotia, and the property was sold under these proceedings, and boil^ht in by the plaintiflp in that suit, but their validity is disputed on many grounds, among which are : that the chancery court had no jurisdiction ; that the order of sale did not bind your petitioner, who was then a mere infant, and whose title or right to the property was not set forth in the bill, but fraudulently suppressed and kept con- cealed from the court from the inception of the proceedings to their close, and that the plaintiff, who was also administratrix in that suit, could not purchase the property for herself, but that such purchase would be either void, or make her a trustee for your petitioner, and that the character of a trust would be impressed upon the property in the hands of every succeeding purchaser, not purchasing from or with the consent of your petitioner. Under these circumstances an ejectment suit was brought in 1882 by 3'our peti- tioner and her husband, who has since died, to recover this land from the parties in possession, who claimed to hold it for the provincial government under section 47 of chapter 36, of the 4th series of the Revised Statutes of Nova Scotia, and en other grounds. The supreme court of Nova Scotia, before which the case was argued, decided adversely to your petitioner on the merest technical ground, viz., that the legal title was outstanding in a former mortgagee, though the mortgage had been fully paid off forty years previously. An appeal froL' l;'o decision was taken to the Supreme Court of Canada, and the judgment of the supreme court of Nova Scotia was there upheld, chiefly on the ground that the 17th clause of chapter 36 of the Revised Statutes of Nova Scotia transferred the title to the defendants. Your petitioner and her counsel being dissatisfied with the judgment, caused a petition to be filed in the Privy Council of England for special leave to appeal from this judgment, but in the event of special leave to appeal being denied, or the case being decided by the Privy Council on any technical ground, your petitioner submits that she should not be precluded by special legislation from bringing another action or actions, to have her claim to tliis property disposed of upon its merits, of which right she would be deprived if the 4th and 5th sections of the Act first above mentioned should bucome law. Though there is a pro- vision in this Act that it shall not apply so as to interfere with your petitioner in case the special leave to appeal applied for shall be allowed, the application is, notwithstand- ing, strenuously opposed by the local guvcTntnent, and at their instance the application was postponed by the Judicial Committee of the Privy Council from its last sittings to its next sittings, and counsel are engaged with instructions to offer every opposition to said appeal, and it may be defeated on some technical ground aside from the merits, as it was in the court of Nova Scotia, or because it does not come within the rules upon which appeals are granted in the Privy Council. Your petitioner has already expended large sums of money to recover this property, yet if defeated in her application for special leave to appeal she is prepared to pay the -\ u^> 548 NOVA SCOTIA LKGISLATION defemlant's costs before instituting another suit, and as her claim is not vexatiously but legitimately [)rosecutcd, and as it would be against natural justice to legislate her out of her proj>erty without compensation, she most humbly submits that the fourth and fifth sections of said Act should be disallowed by your Excellency. Your petitioner further submits that the legislature of Nova Scotia never before this occasion specially appropriated private property, without providing for an (Mjuiva- lent, and even in such cases not without notice to the owner to show cause against the appropriation before a committee of the assembly or otherwise, whether this hapj)ened from a belief that the legislature had not the power to act otherwise, or whether the practice for more than a hundred years binds the legislature, or has become pait of the constitutional law of Nova Scotia, your petitioner is unable to say, but she most humbly submits that it ought to weigh as a strong argument in the exercise of your Excellency's prerogative, in preventing an act against natural justice. Your petitioner annexes liereto a printed copy of said Act and humbly states that in consequence of the absence from the province of her solicitor and it not havin" con)e to her knowledge that such an Act was passed until a day or two ago, she was unable sooner to present a petition with reference thereto. Your petitioner, therefore, humbly prays that your Excellency may refuse your assent to, or disallow the said Act, or the 4th and 5th clauses thereof, with that part of the schedule describing this property. , And your petitioner will ever pray, &c. MARIA KEARNEY. An Act respecting Public Charities. Fourth Clause. — The Nova Scotia hospital for the insane at Dartmouth, and all the real and personal property and assets of the commissioners of public charities in respect of or in connection with the said provincial hospital for the insane shall on the 1st day of July, 1886, vest in Her Majesty the Queen, her heirs and successors, repre- sented in this behalf by the commissioner of public works and mines. Fifth Clause. — To remove doubts as to the title or otherwise, and for greater cer- tainty, Ijut not so as to restrict the generality of the foregoing section, it is hereby declared and enacted that the lands mentioned in the schedule to this Act were, under chapter 16 of the Acts of 1878, entitled : "An Act to establish a Board of Commis- .sioners of Public Charities," duly vested in said commissioners of public charities, and that the commissioners of public charities had a good, sure, perfect and indefeasible estate of inheritance in fee simple in the said lands, both at law and in equity, freed and absolutely discharged of and from all claims whatsoever, and that the said lands on the 1st day of July, 18S6, shall vest in Her Majesty, her heirs and successors, repre- sented in this behalf by the commissioner of public works and q^ines, in fee simple, and the deeds and proceedings mentioned in said schedule, by means of which said lands were acquired or transferred, are hereby confirmed and made valid. Nothing herein contained shall prejudice the rights of the parties in the suit of Kearney against Creel- man, decided in the Supreme Court of Nova Scotia and in the Supreme Court of Canada in case of an appeal to the Judicial Committee of Her Majesty's Privy Council. His Honour the Lieutenant-Governor to the Hon. the Secretary of State. Government House, Halifax, N.S., 29th November, 1886. Sir, — Referring to ray letter of the 9tli of November last, in which I stated that the members of my government had under their consideration several despatches relative to petitions to his Excellency the Governor General praying for the disallowance of certain Acts (chapters 1, 5 and 16) of the legislature of 1886, I have now the honour to forward herewith, copies of the Attorney General's reports thereon, and a certified copy of the minute of council relative thereto approved by me. I have, ifcc. M. H. RICHEY, '' Lieutenant-Governor. 49 vicToiUA, 188C). 549 not vexatiously but legislate her out of the fourth and fifth Scotia never before 'iding for an e(juiva- w cause against the letlier this liap])ened .vise, or whether the s become pai t of the lut she most humbly of your Excellency's humbly states tliat 1 it not having come ago, she was unable ;y may refuse your )f, with that part of . KEARNEY. Dartmouth, and all public charities in insane shall on the id successors, repre- s. and for greater cer- 3ction, it is hereby his Act were, under Board of Commis- ublic charities, and ct and indefeasible and in equity, freed t.t the said lands on id successors, repre- s, in fee simple, and f which said lands id. Nothing herein irney against Creel- me Court of Canada ivy Council. ry of State. ovember, 1886. in which I stated . several despatches or the disallowance 86, I have now the )ort3 thereon, and a me. CHEY, '■nant- Governor, thf. CAP. 1. Extract from the Hon. the Attorney General'^ liflport approvftd hy His llminur Lieutenant-Governor in Couiiril on the iiOth day of Noremhcr, ISSIJ. Re petitions of E. W. Plunkett, Messrs. Markby, Stewart & Co., and the Western Counties Railway Company, praying His Excellency the Governor General to disallow certain Acts of the legislature of Nova Scotia, passed at the last session. The undersigned has had submitted to him M. petition of E. W. Plunkett and supplementary petition of the same party, piaying his Excellency the Governor General to disallow chapters 1 and 16 of tiie Acts of Nova Scotia, 18SG. Also the petition of Markby, Stewart & Co., and the resolution and communication of the directors of the Western Counties Railway Company of like purport, which have been forwarded to his Honour the Lieutenant-Governor by the Honourable the Secretary of State. The memorials and documents referred to contain much that is irrelevant, and as all are substantially the sami; in their n^presentations and objects, it iji .'scarcely necessary to follow all the statements therein contained, in detail. A general statement of the case is suilicient for a proper view of the action of the government and legislature of this province in respect co the Acts complained of. The Western Counties Railway is an enterprise which was subsidized by the Igislaturo of Nova Scotia. In 1872 the legislature voted 150,000 acres of Crown lands and a cash subvention of .S:W,000 a year for twenty years, for a railway from Annapolis to Yarmouth. In 1874 the legislature changed this, on condition that Digby town should be included in the route, to a subsidy of .^6,000 per mile and 150,000 acres of Crown lands. The Western Counties Railway Company entered into a contract with the government under this Act and agreed to construct the whole line in consideration of this subsidy. In 1875 the legislature granted an additional subsidy of $2,000 per mile to this railway, without any consideration save a desire to secure the early construction of the work. ' By a liberal interpretation of the contract, and the legislation providing these subsidies, the whole of the government cash subsidy was paid out before a mile of road was fully completed, and work ceased about the latter part of 1876. No further progress was made in this work until 1879, when the government and legislature again came to the rescue. By the scheme of 1879, the company was to call in the issue of .$280,000 of first debenture bonds, and to substitute an issue of first debenture stock as follows : — (a.) £90,000 of "B" debenture stock, which was to be a first lien on the gross receipts of the Western Division, after paying working expenses. (6.) £210,000 of "A" debenture stock, which was to form a second lien on the Western Division, and a first lien on the Eastern Division of che railway, which latter division is declared to be the Windsor Branch, so called. The legislature authorized the government to guarantee the interest on a portion of these bonds sufficient to complete and equip the line between Digby and Yarmouth. Under the authority of this legislation, the company issued the two classes of delx-nture stock, namely : £90,000 " B " debentures, and £210,000, " A " debentures, and entered into an agreement with the government of Nova Scotia (See Journals, 1880, Appendix No. 7). The leading provisions of this agreement are as follows : — The government were to guarantee the interest at the rate of five per cent on £50,000 of the " B " debenture stock, in order to raise money for the completion of the road between Digby and Yarmouth, and, by a special clause in the agreement, an additional sum of £5,000, was to be guaranteed to meet pressing demands upon the Company, £55,000, in all. 36 660 NOVA BCOTIA I.ROISI.ATION The company was to deposit with the government an security for this f,'uaranu-e, £110,000 of tlie " A " (lelienturt! stock, ami £40,000 of the " I! " dchentnre stock. It also hound itself to complete, ei|uip and continuously operate the line hetween l>i;^by 4vnd Yarmouth, to maintain a daily stecm ferry hetwei-n I 'if^hy and Annapolis, to pay till! interest on the honds guaranteed by the government, and to pay the niunicipalitieH of Annapolis and IMghy, interest at the rale of seven per cent on tlie amount paid for right of way on the portion between Annapolis ami Digby remaining uncompli ted, until the same was (inished. It was stipulated by way of remedy, that if the interest wa« not paid on the debenture stock guaranteed by the governnn^nt, the governnntnt should have the right to sell all or any part of the securities in its [)()sse.ssion, and als i to sell the western division of the company's railway without foreclosure. And the company bound itself to make valid any instrument or conveyance which the government might make ia pursuance of this power. After that agreement wiw entered into the government guaranteed the interest on £r)r), 000, to enable the company to carry out its undertaking. The .£1 10,000, of debentuie stock was duly dcpositHd with the government, and also £40,000, of " 13 '' dei)enturo stock. The line between Digby and Yarmouth has been so far cotiiphitod as to be open for trathc and passengeis. But the company has entirely failed to fulfil its obligation to pay the interest on the guaranteed debenture stock, and the government have ])aid interest every year since the guaranteed stock was issued and sold. Neither has the company paid the interest to the niunicijialities of Annapolis and Uigby as •agreed. A large sum of money is now due from the company to the government for accrued interest, which the government have paid for several years. Such is the present position of the relations hetween the government and the company. The company is in default, and the government have the right to exercise the powers conferred by the agreement of 16th August, 1879. Recognizing that the existing conditions of railway communicaticm between Halifax and Yarmouth is now satisfactory, and that it was in the puiilic interest that there should be one completed and consolidated railway under one management, the government entered into an agreement with the Joint Stock Assot'iation looking to that end, anil said agreement is embodied in chapter I of the Act of 1886. In that agree- ment, the government undertake to exercise their powers for the acquisition of the Western Counties Railway, for the purpose of securing the consolidation. These are p jwers acquired by agreement with the company, and which the company is estopped from calling in (juestion in any form. But it will be noted that in the scheme for consolidation emljodied in the Acts of 1886, chapter 1, it is provided that compensation to the extent of $120,000 may be given for piivate interests in the Western Counties Railway. This is purely a gratuity, as there is no legal or moral obligation resting upon the government to advance one farthing additional to the company. The government stand in the exact po.sition of a mortgagee, whose mortgagor has made default. But so anxious are the government to deal liberally with the colnpany, that they have procured the assent of the legislature to a provision giving them power to appropriate, out of moneys to bo raised on the scheme, $1 20,000, to be paid to those having interests in the company, in the event of an amicable acquisition being agreed upon. So far from the Western Counties Railway Company, or Markby, Stewart & Co., or any person holding any preferential strrect. The goverment are merely enforcing a security according to the terms of the agreement creating the security. They are only doing what the company themselves agreed they should do, in a case of default. Speaking tlien in general terms, the undersigned submits that chapter 1 of the Acts of 1880, is in a measure entirely within the jurisdiction of the legislature of Nova Scotia, which aims to encourage the construction of railways in Nova Scotia proper and Cape Breton, and which especially looks to the completion and consolidation of the western .system of the province. The whole Act is fair in its dealing with all railway corporations now existing and having interests in Nova Scotia, and generous to the Western Counties Railway, inasmuch as the government practically assume the liability of the outstanding guarantee. And while fully convinced that the railway and its franchises, and all the debenture stock held would be entirely insuthcient to satisfy the government guarantee or interest on .$55,000, which is perpetual, the government have asked and induced the legislature to give a gratuity of $120,000 to the present company, for the mere consideration of an amicable acquisition. All of which is respectfully submitted. J. W. LONGLEY, Attorney General. November 9th, 1886. 35^ •mmm^^imm nB2 NOVA SOOTIA LKrilHLATION I. Extract /rom the /fon. the Attorwy (iiniernf'n Report, ajiprorfil hij J/is I/oiiour th« LieiitfinantOovernor in Counrll on the -KHh S'ovemlur, I SSI!, Cap. 16. Re. pfrtitiouH of I'l W. Plunkott, MeHsr.s. .Miukhy, Htowiirt it Co., iiiul tlio Wtistoru Counties Uailwiiy Coiiiputiy, pnvyiri!^ Iii.s I'ixoelleiicy tlio (lovoriuit- (Jonoriil to disallow corlivin Acts of tlin lej^isliiturc of NovaScotiu, passed at tin) last Hession. The uridersigned liaa had submitted to him the petition of E. W. I'luiikett, and supplcincnt.iry petition of tlie same parly, praying his Kxcolltmcy tho Governor (Jeneral to disallow chapters 1 and IG of the Acts of Nova Hcoija, IMHG. Also the petition of Markhy, Stewart it Co., and the resolutifjn and conniiimication of the dire(!tors of the Western Counties Railway Company, of like purport, which have been forwarded to his Honour the Lieutenant-(iovernor by the Hon. the Secretary of State. The petition of Messrs. Markby, Stewart k Co., refer to the dop<).sit of £15,300 with the government in July, ly torm.^ of the agreement of 1879, was to bo deposited with the government as a condition precedent to the guarantee. How far the provincial secretary of that day was authorized to make any conditions in regard to the acceptance of this stock, is a matter which need not lie discussed. It is sutlicient to say that the gDvernment fully recognize the conditions embodied in Mr. Gundry's letter, regard thenj as binding upon the province, and will respect them fully and unreservedly. Wliat there is contained in chapter 16 of the Acts of iHiSfi, which is inconsistent with, or amounts to a violation of the terms of that letter, is not apparent. Nothing the kind was intended, ai^d the undersigned is compelled to say that in his opinion no such violation can be discovered in the whole scope of said Act, or in any particular clause or line thereof. As regards chapter 16 of the Acts of 1880, the undersigned submits that it is merely a ratification of th^ agreement of 1879, with the added authority to the provincial secretary, to purchase sai railway for the province if deemed expedient. The .said Act is (juite within the authority of the Nova Scotia legislature. The Western Counties Railway is estopped by its own agreement from opposing it, as before indicated. As the agreement of 1879 was very ample in its powers, it may be doubted if legis- lation was necessary to its enforcement. The government were advised that it should be safer to have the agreement ratifiefl by parliament, and it is ditHcult to comprehend how the interests of any of the memorialists are prejudiced or effected by an Act, which simply ratifies and confirm.s an agreement admittedly binding upon the company and debenture holders. Clause three, however, of the said chapter 16, gives the provincial secretary the right to sell either by public auction or sale, or by private contract, at his discretion, and at or for such sums of money as he shall judge sufficient, the securities, and also the western division, to the person or persons purchasing the same. It may be contended that this is a large and unusual power. It is submitted, however, that the provincial secretary, being a publ'c official, and i-epresenting the Crown, can be trusted to exercise such a power fairly and in the public interest, and with a due sense of the moral respon- sibilities which it involves. This was evidently the view of the legislature. Neverthe- less, as some parties who have interests involved, may fancy that their rights are liable to be prejudiced by the exceptional powers therein' conferred, I would recommend that his Honour the Lieutenant-Governor be advised to order that the powers therein con- ferred on the provincial secretary be not exercised, without due notice to all parties con- cerned, and, if not exercised in the meantime, that the government recommend to parliament, if any parties concerned desire it, at the next session, such amendments to 1/ //w Honour the I881K i>., ntid thn Western llovc'riiui- Gononil to (lit tlio last session. W. riunkett, and |th(( (Jovornor (Joiienii Also tilt* petition l)t' the directors of tlie M* heon t'orwiinlfd to State. e deposit of £45,300 jiddreHsed by Mr. I'\ uyof that day, which "),,'<()0 was part of tho Miicnt of IHTIJ, was to ^'uarantee. How far •onditions in re<;ard to ted. It is sutlicient to n Mr. Gundry's letter, fully and unreservedly. h is inconsi.stent with, arent. Nothing the in his opinion no such iiy particular clause or ned submits that it is hority to the provincial pedient. The said Act The Western Counties efore indicated, nay be doubted if legis- ndviaed that it should difficult to comprehend Bcted by an Act, which upon the company and rovincial secretary the itract, at his discretion, securities, and also the It may be contended ■er, that the provincial n be trusted to exercise ise of the moral respon- legislature. Neverthe- ,t their rights are liable would recommend that he powers therein con- lotice to all parties con- rnment recommend to in, such amendments to 49 VKiTOHIA, 188fi. B5.3 said section three, as will jirevent the p issibility of any action, until after ample notice to the parties (•oncerned, and to the world. With this a.ssurance, in I'egard to the ojiera- tion aiid enforcement of section three of the said chapter 1<), the undc^rsigned submits that in the public interests, both chapters I and l(i should be liift to their operation. All of which is respectfully submitted. 9th November, 1886. J. vv. lon(jm<:y, Attorney (/ineraf. Report of I/onoiirnhfi' Alloi'niy Gftieral Lonyh'y upon (^hiijitcr 5, ttppnwfid hi/ II in lIoHonr till'. Lic.utcnant-d'itveriior in Caiiacil on. the Jtith iSovntnlur, ISSti. Hamfa.x, N.S., 10th November, 1886. He pelitiori of Maria K(>arney praying his Excellency the Governor (JeiKiral to dis- allow tht! fourth and fifth sections of chapter 5 of the Acts of Nova Hcotia, 1886. The undersigned has had under consideration the above memorial of Maria Kearney and begs to submit as follows : — The land in ([uostion is the site , n which stands at present, and has stofxl frtr many ytJars, the Nova S(;otia Hospital 'i^ the Insane, a structure worth some hundreds of thousands of dollar-:, imd containing e regarded as being in the category of regulations are here so strained as to make any traffic in li(juor almost an impossibility. This provision is here introduced for the first time into any Act which has been before the courts. By section .^8, subsection 2, brewers and distillers, duly licensed under the Iidand Revenue Act to manufacture fermented or spirituous liquors, are recjuired, before selling the same, to take out a license under this Act. Such a provision tends toal)ridgc, and, if such power resides in the local legislatures, may be used to put an end to tlutt source of revenue, which it is unquestionably the prerogative of the Dominion parliament to create. At the least it conflicts with such prerogative, and it is here contended that the IocmI legislatures cannot j)ass laws conflicting in any way with th(! laws of Canada. The parliament of Canada has the exclusive right to make laws relating to revenue, and it surely could not have been intended by the imperial parliament when passing the British North America Act, that the amount of the internal revenue, so to be raised, should depend on the caprice of each of the provinces, yet it must depend on such caprice, if the business may be weighted down by an additional license fee, rendering the business not worth pursuir.ig. It is t herefore submitted tliat tliere are special grounds for holding the provisions of the Act to be ullra vires as regards brewers, Ije^'ond the other grounds upon which it is herein contended that the Act should be disallowed. I have, &c., HUGH McD. HENRY. Si:-: •Mbi. 966 NOVA SCOTIA LEGISLATION Report of Hon. Attorney General Longley upon Chapter 3, apj^roved by His Honour tlie Lieutenant-Qovernor in Council on the 6th May, 18S7. Re Nova Scotia Liquor License Act of 1886. Regarding the application of Tvlr. H. McD. Henry, Q.C., to the Honourable the Minister of Justice, asking for the intervention of his Excellency the Governor General to disallow the Act of the legislature, which has been copuniunicated to his Honour the Lieutenant-Governor, by the Honourable the Secretary of State for Canada, the undersigned has the honour to report as follows : — It is not deemed necessary to enter into any elaborate discussion of the several points so clearly raised and so forcibly presented by Mr. Henry. The British North America Act, section 92, subsection 9, defines one of the sub- jects which come exclusively within the jurisdiction of the provincial legislature as follows :— " yhop, saloon, tavern, auctioneer, and other licenses, in order to the raising of a revenue for provincial, local or municipal purposes." The interpretation of this clause has elicited endless controversy by the best legal minds in the Dominion, ami the best that can be said in regard to its determination is that the Privy Council have decided at last that Acts regulating the sale of intoxicating liquors by license, come within the exclusive jurisdiction of the provincial legislatures. Such being the judgment of the ultimate authoiity on the interpretation of the British North America Act. it is difficult to define the point at which this power to regulate ends. If the provincial legislatures have the right to fix the conditions under which licenses can be issued or granted, it is by no means unreasonable to assume that they may, within the scope of their jurisdiction, impose such conditions as would make the obtaining of license practically impossible. The imposition of punishment by fine, penalty or imprisonment for enforcing any law of the province made in relation to any matter coming within any cf tlie classes" of subjects enumerated in section 92, is distinctly given by the liritish North America Act. There seems to be no limit to this authority, and the same objections which are open to the severity of the conditions upon which licenses are granted, might be urged against the severity of the penalties imposed. But, in both cases, the under- signed is not aware of any limit. It seems to the undersigned that the burden of Mr. Henry's objections are more to the propriety of the measure than to its validity. The gravamen of the charge against the Act is, that the legislature have carried their restrictions to such a length that licenses are practically impossible to obtain. No authority is given to show that the power is carried beyond the limit which the British North America Act contemplates. In regard to the objections that the limitation of the sale to quantities not less than a pint involves something which would interfere with trade and commerce, and therefore trench upon a matter within the exclusive jurisdiction of the Federal Parlia- ment, the undersigned submits that some power of regulation must be incident to a license system, and it seems that the provisions in the Act come in the classes of legislation which are within the powers of the provincial legislature. All of which is respectfully submitted. Halifax, 23rd March, 1887. J. W. LONGLEY Attorney General, 49 viCTOUiA, 1886. 667 by Ilia Honour tJie bhe Honourable the 3 Governor General ted to his Honour te for Canada, the ission of the several nes one of the sub- icial legislature as order to the raising sy by the best legal its determination is sale of intoxicating nncial legislatures, iterpretation of the kvhich thi^ power to it.ions under which bo assume that they as would make the unishmcnt by fine, made in relation to Led in section 92, is bjections which are granted, might be 1 cases, the under- abjections are more amen of the charge ns to such a length md the limit which quantities not less Find commerce, and the Federal Parlia- st be incident to a e in the classes of GLEY irney Getieral. Mensm. Meagher, Drysdale dc Newcomhe, to the Honourable the Miuider of Justice, re Chapter 50. . Halifax, N.S., 30th July, 1886. Sir, — At the last session of our local legislature an Act was passed, i^hapter 56 and entitled "An Act concerning the collection of freight, warehouse and wharfage charges," and it is our intention at an early day, on behalf the Eastern Development Company (Limited) and o'hers, to memorialize your department to have that Act disallowed, and the object of this letter is merely to call your attention to it. The Act in question, we have good reason for believing, was prepared at the in- stance of the Honourable Alexander McKay, M.L.C., from South Sydney, and was promoted and passed at his instance and for his benefit. Ta the month of December hint the Eastern Development Coinpany (Limited), who are operating their copper mines at Coxheath, in Cape Breton County, imported from the £>ti;tes ik. quantity of machinery for the purpose of their mines, of the value of about .seven thousand dollars. When this machinery arrived the .season was so far advanced that they could not place it at their mines until this spring, and they requested the collector of customs at that port to permit them to place it in some store or upon some wharf, to be considered as a suflerance warehouse, until the opening of the spring. This peroiission was granted, and the property was accordingly placed upon the wharf of Mr. McKay. You are aware, of course, that the harbour of Noith Sydney is closed to navigation from the month of December until May, and often during the greater part of May, and that consequently Mr. McKay could make no use whatever of the wharf in the meantime. Early in the month of June, in the present year, and when the com- pany were about to take steps for the removal of this property to their mine, they di.s- covortd a notice in the North Sydney Herald, inserted by Mr. McKay, of the sale of the property to meet his claims for wharfage and storage. The value of the property, as we stated, is Jibout .seven thousand dollars, and Mr. McKay's claim for wharfage and storage for the period intervening between the time of the goods being lauded on his wharf in December and the end of May, amounts to $1,406.64, and we have no doubt whatever that Mr. McKay procured the passage of this Act to enable him to make the grab in question. You will notice that the Act professes to legalize the tariff agreed to between the various wharf owners in Halifax, and under it Mr. McKay's claims — under the woi'ds — " All articles put upon the wharf to be at the risk of the owner of the goods and not the proprietor vi the wharf, and if not removed in 48 hours to be subject to a repetition of the same wharfage as in the first instance, and so on for evei-y forty-eight hours until they shall be removed ; " the right to double the wharfage every forty-eight hours. Merchants, wharf-owners, and others handling goods here denounce the whole proceeding, and speak of it as an outrage of the worst kind. We merely write this to call your attention to the Act, and we will, at an early day, as soon tko we can communicate with the company, prepare a formal remonstrance against the allowance of the Act in question. Yours truly, MEAGHER, DRYSDALE k NEWCOMBE. «'( lii 668 NOVA SCOTIA LEGISLATION Report of the Ffoiwurable the Minister of JuMice upon Chapter SO, apprmied by Ilia Excellency the Governor General in Council on the 11th April, 1887. Department of Justice, Ottawa, 30th March, 1887. To His Excellency the Governor General in Council : — The undersigned has tl\e honor to report that, by the Act of 49 Victoria, 18S&, chapter 56, intituled " An Act concerning the collection of freight and wharfage and warehouse charges," tlie legislature of Nova Scotia 1ms, with a few changes and ad- ditions re-enacted the provisions of the Merchant Shipping Act Amendment Act, 1867, relating to the delivery of goods, and lien for freight (ss. 66, 77). The latter Act by its terms, is be construed with, and to form part of the Merchant Shipping Act, 1854, by the 547th section of which it is provided that the legislative authority of an^' British possession shall have power by any Act or Ordinance, confirmed by Her Majesty ia council, to repeal wholly or in part, any provisions of the Act relating to ships registered in such possession, but no such Act or Ordiiuince shall take efj'ect until such approval has been proclaimed in such possession, or until such time thereafter as may be fixed by such Act or Ordinance for the purpose. Acting within these powers and the exclusive legislative authority conferred upon it by the 91st section of the British North America Act, 1 867, the parliament of Canada has from time to time passed Acts re.specting navigation and shipping, and trade and commerce, in its relation to these subjects. Subject to this legi'^lation the Merchant Shipping Act, 1854, and its amend- ing Acts are in force in Canada. In the opinion of the undersigned the legislature of the province of Nova Scotia exceeded its powers in passing the Act under consideration, and he therefore recom- mends that it be disallowed. JNO. S. D. THOMPSON, Minister of Justice. Proclamation disallowing the above mentioned Act published in the Canada Gazette on the 11th day of April, 1887, vol. xx, No. 43, page 1924. Report of the Honourable the Minister of Justice upon Chapter 1, approved by Hia Excellency the Governor General in Council on the ISth Januai y, 1887. Department of Justice, Ottawa, 10th January, 1887. To His Excellency the Governor General in Council : The undersigned has the honour to submit his report upon chapter one (1) of the Acts of the legislature of Nova Scotia, passed in the session held in the year 1886, intituled : " An Act to authorize certain grants in aid of railways, and provide for th j completion and consolidation of the railways between Halifax and Yarmouth." Certain petitions have been received praying for the disallowance of this Act, which have been submitted to the Lieutenant-Governor of Nova Scotia, who has favoured your Excellency with the views of his advisers with respect thereto. The undersigned, after a consideration of all the papers, and being of the opinion that the Act is within the competency of the legislature of Nova Scotia, recommends that it be left to its operation. The undersigned also recommends that in communicating to the Lieutenant-Governor of Nova Scotia the fact that the Act has been left to its operation, he be infonned that no inference is to be drawn therefrom that your Excellency's government concur in the 49 vicTouiA, 18e6. 559 i, apprnvd hy I/is ^il, JS67. March, 1887. 49 Victoria, 1886, and wharfage and changes and ad- sndnient Act, 1867, Tlie latter Act by iping Act, 1854, by 'lity of an;/ British ')y Her Majesty in relating to ships ce effect until such hereafter as may be ie powers and the ction of the British to time passed Acts relation to these 854, and its amend- ince of Nova Scotia e therefore recom- PSON, ister of Justice. the Canada Gazette t, approved by His Majy, 1887. ranuary, 1887. pter one (1) of the in the year 1880. md provide for th j rarmouth." ^ance of this Act, b, who has favoured ling of the opinion cotia, recommends eutenant-Governor i be infoimed that nent concur in the recital contained in the 3rd paragraph of the 12th section of the said Act, nor in any manner admit any liability to the government of Nova Scotia for any subsidies, moneys or aids heretofore granted, or that may hereafter be granted by that province in connec- tion with the lines of railway mentioned in the 20th section of the said Act. JNO. S. D. THOMPSON, Minixter of Justice. Report oj the Hon. the Minister of Justice, approved by His Excellency the Governor General in Council on the 25th April, 1887. Department of Justice, Ottawa, 30th March, 1887. To His Excellency the Governor General in Council : The undersigned has the honour to submit for considciration his report on the Acts passed by the legislature of the province of Nova Scotia in the session of 1886, authentic copies of which were received by the Secretary of State on the 15th September last. 1. Chapter 1, intituled : "An Act to authorize certain grants in aid of railways, and to provide for the completion and consolidation of the railways between Halifax and Yarmouth," was left to its operation by an Order in Council dated the 13th day of January, 1887. 2. Chapter 2, intituled : " An Act to incorporate the Halifax and Oreat Western Railway Company," chapter 16, intituled: "An Act respecting the Western Counties Railway Company," and chapter .'56, intituled ; " An Act concerning the col- lection of Freight, and Wharfage and Warehouse Charges," will V)o made the sultjects of separate reports. 3. To Chapter 3, intituled : " An Act respecting the sale of intoxicating liquors," objection is taken by Mr. Henry, acting for a large number of liquor dealers in the city of Halifax. A communication on the subject was addressed to the Lieutenant-Governor of Nova Scotia on the 22nd day of January last, but with the exception of a formal acknowlt'dgment, no reply has been received. 4. To the fourth and fifth sections of chapter 5, intituled : " An Act respecting Public Charities," it is objected by Mrs. Maria Kearney, by her solicitor, Mr. T. J. W^allace, that they were enacted with the intention chi< tly to prevent her from recover- ing the land described in lot 1, in the schedule to the said Act mentioned. The under- signed submitting herewith Mrs. Kearney's petition and the answer of the government of the province of Nova Scotia thereto, and being of opinion that the Act is within the legislative authority of the legislature of that province, recommends that it be left to its operation. 5. By the 15th section of chapter 81, intituled : An Act to provide for the manage- ment and improvement of tlie cemetery in Upper Stewiacke, in the county of Colchester,'' it 18 among other things provided that "any person who shall wilfully destroy, injure or carry away any fence, gate, monument, mound, embankment, tree or plant, or other property, in or upon the lands or burial grounds of the corporation, whether there naturally, or the work of art, shall be punished by a fine of not less than five dollars nor more than fifty dollars, to be recovered upon summary conviction before any two justices of the peace for the county of Colchester, kc." Every such wilful destruction or injury is already punishable under the general criminal law, respecting malicious injuries to property. (R. S. C, c. 168, ss. 23, 24, 27, 42, 58 and 59), and every such wilful cany- ing away, under the Larceny Act (R. S. C, c. 164, ss. 17, 19, 21 and 85). Apart from the (juestion of legislative authority and the fact that the provision is unnecessary, there is the further objection that enactments of this character should not be inserted in private Acts, but should appear in the public general law, in order that every one may have the fullest opportunity of being aware thereof. m nt ii i ¥' di St \ 660 NOVA SCOTIA LEIilSLATlON These observations are eciually applicible to the following Acts : (a.) Chapter 136, intituled ;'" An Act to incorporate the Forest Hill Cemetery Company, county of Colchester," section 14. (/*.)" Chapter 147, intituled " An Act to incorporate the Trustees of South Brook Cemetery, in the county of Inverness," section 15 ; and (c.) Chapter 168, intituled : " An Act to incorporate the Plymouth Cemetery Company," section 18. The undersif^ned is of opinion that the legislature of Nova Scotia should be afforded an opportunity of amenoing the Acta mentioned, either by striking out of the sections referred to as objectionable provisiotis, or by repealing the sections, and embody- ing in a general statute, applicable to all cemeteries, such of the remaining provisions M are tliought necessary, and within its ledslativo authority. 6. Section 176 of chapter 86, intituled : "An Act to amend the Acts relating to the town of Dartmouth," by which a peace officer is given authority to anest without warrant, persons connuitting certain offences, not only trenches upon the criminal lajv, but is unnecessary, as such officers, by tlie Revised Statutes of Canada, Chapter 174, section 24, have the power so to arrest in any case in which a person is found committing any offence punishable either upon indictment or upon sunnnary conviction. The under- signed thinks the section should be repealed. JJy tht. 182nd section of the same Act, it is provided that all fines and forfeitures collected in the stipendiary magistrates' court or in the police office of the town, shall be paid into and form part of, the general revenues of the town. In view of the juris- diction of the stipendiary magistrate of Dartmouth, under the ciiminal law and other statutes of C mada, this secti m should be so amended as to limit its application to fines and forfeitures subject to the legislative authority of the legislature, which clearly has no power of tlisposiiion over fines and forfeitures recoverable or enforceable under any Act of the parliampnt of Canada. By the 192nd section of the same Act, the town council of Dartmouth is given power to make by-laws to regulate, among other things, the following subjects : — (5.) The use and management of docks, wharfs, landings and cranes, and fixing the rate oi dockage, wharfage, and cranage in all cases within the town. (6.) The weighing and measurement of salt, coal and wood, lumber, shingles, logs, timber and hay, straw and grain, and fixing the rates therefor. (15.) The prevention of vice, immorality and indecency in the public streets, high- ways and other public places, and prevention of profanation of the Sabbath. (20.) Regulation of the discharging and depositing of ballast in all portions of the harbour of Halifax. The 20th paragraph should, the undersigned thinks, for obvious .easons, be repealed, and the 5th confined tc docks, wharfs, landings and cranes, which are the property of the town, or, ^f extended to those which are owned by private persons, should be so extended, subject to any legislation at any time enacted by the parliament of Canada, respecting trade and commerce, navigation and shipping, or public harbours, which, by the British North America Act, 1867, and the decisions of the Supre^ne Court of Canada in Holman v.s. (Jreen, are the property of Canada, and as such, would not be subject to legislation by the legislature of a province. The 6th and loth paragraphs may, the undersigned thinks, be treated as a dele- gation to the town council, of police powers, and not as an iittempted delegation of powers of legislation respecting weights and measures and the criminal law, and as such open to serious objection. • • i j The observations made respecting chapter 86 apply also to chapter 98, intituled ; " An Act to incorporate the town of Kentvilie," and chapter 105, intituled : "An Act to consolidate and amend the Acts relating to the town -of New Glasgow." ponding sections of the sevetal Acts are as follows : — The corres- 49 VICTOKIA, 188G. r.fli pst Hill Cemetery es of South Brook lymouth Cemetery Scotia should be Jstriking out of the tions, and emhody- |ining provisions as 10 Acts relating to \' to arre.st without the ciiniinal law, lada, Chapter 174, found committing etion. The under- nes and forfeitures of the town, shall fi view of the juris- inal law and other application to fines wliich clearly has )rceab]e under any given Dartmouth ia ? suljjects : — cranes, and fixing wn. ^ber, shingles, logs, lublic streets, high- ibbath. all portions of the easons, be repealed, ire the property of rsons, should be so ianient of Canada, arbours, which, by lie Court of Canada I not be subject to 3 treated as a dele- ipted delegation of J law, and as such pter 98, intituled : tituled : "An Act 'ow." The corres- Chap. 80, s. 17G Chap. 98, H. 238 Chap 105, 8. 229 -1 s. 182 li s. 244 it S. 235 s. 198 ^i H. 2r/.3 ct 8. 241 p. 5 !< (1 P- 5 p. 6 (( p. 5 ii !'• () p. 15 " p. 15 1. !'• 16 p. 20 (( p. 20 II P- 21 The undei'signed recommends that the substance of this report if approved, be communicated to the Lieutenant-Covernor of Nova Scotia, and that your Kxeellency defer for the present, the further consideration of chapters .'5, 81, 8(1, 98, 105, 136, 147 and 168. The undersigned further recommends that the Acts, the chapters of which are given in th'j annexed schedule, be left to their operation, and that the Lieutenant- Governor of Nova Scotia be informed thereof. JNO. S. D. THOMPSON, Ministi r of JuHtice. ScHEbULB. Chapters 4 to 15, 17 to 55, 57 to 80, 82 to 85, 87 to 9V, 99 to 104, 106 to 135, 137 to 146, 148 to 167. Secretary Department Railways and Canaln to Deputy Minister of Justice. Depautment op Railways and Canals, Ottawa, 20th May, 1887. Sir, — 1 am instructed to return to you, herewith, the copy of the statutes of the province of Nova Scotia, for the year 1886, transmitted with your letter of the 30th March, and to inform you that the attention of the Minister has been called to chapter 2 therein, intituled : " An Act to incorporate the Halifax and tJreat Westein Railway Company," with respect to which you desire to have his views. I am to state that many of the provisions of this Act appear to the Minister to be of a somewhat extraordinary nature, and that the (piestion as to whether the Act should be allowed in its present shape, would seem to deniand consideration. He is of opinion, however, that the Depaitment of Justice is in a better position, than his own to decide upon the proper action to be taken in this matter. I have, (fee, A. P. BRADLEY, Secretary. lion. Attorney General Longley to the Hon. the Minister of Justice, Halifax, 10th June, 1887. My Dear Sir, — You will recollect, perhaps, of the objection made by Markby Stewart & Co., to an Act of 1886, chapttr 16, respecting the exercise of our power of sale of the Western Counties Railway. You kindly forwai-ded, through the Honourable the Secretary of State, a copy of the objections, which our government on a report from me, answered. In that answer, if you will be good enough to refer to it, you will see that I recommended that at the then ensuing session of our legislature, an amendment should be made to the Act complained of providing that the powers therein given to the Provincial Secretary should only be exercised after due and ample notice, and this was approved by the Lieutenant-Governor. m I- 111 lit! 562 NOVA SCOTIA LEOI8LATION I take this early opportunity of forwarding you the advance sheet of the amcmding Act, since the wliole volume of the Acts will not l)e pul)iish(Kl for some tiu)eyet, in order that you may bo assured that this recommendation was carried out fully. I think this amendment removes the gravamen of the objection to chapter IG. I may add that I introduced and carried through the House, a bill, eliminating from the Revised Statutes, a number of clauses objected to in your report on the fifth series, and also after the receipt of your report respecting objectionable clauses in the incorp- oration of cemeteries. I procured the passage of an Act striking out those; cl lu.^es in the Acts of last session, and I had similar clauses eliminated from the Acts before the legislature during the session just e!ided. Very sincerely, J. W. LONGLEY. Attorney General. Memo, re Disalloivance. In regard to the communication of his Honour the Lieutonant-(.'rovernor of this date, touching certain sections of chapters of the Acts of 1886, mj which objection 'lad been taken by the Hon. the Minister of Justice, I beg to make tlie following observations : — The report of the Honourable the Minister of Justice to his Excellency the Governor General, dated 30th March, 1887, was fully considered by this department. The suggestions touching chapters 81, 136, 147 and 168 were adopted, and a bill submitted to the legislature last session repealing the several objectional clauses therein referred to. Chapters 86, 98 and 105 were not dealt with for this reason. It was pretty gen- erally understood and recognized, that it would become the duty of the government at tlie next ses.sion of the legislature to bring forward a general measure relating to the incorporation of towns in Nova Scotia. It seems to be an unsound policy to allow each town to get its own particular Act, and it is proposed to substitute for this, a general measure applicable to all towns now incorporated or hereafter to be incorporated. In such a measure due cai-e would be taken not to trench upon provisions outside the authority of this legislature. It must be understood that in not submitting to the legislature a measure at the last session to repeal the clauses objected to by the Minister of Justice, no implication should be drawn that this government upholds the validity of these .sections. But as the whole matter was likely to be dealt with so soon, it was not deemed expedient or necessary, to raise the question at the last days of the session. In the event of the government of this province not being ready to submit a general measure relating to town incorporation at the next session, I shall recommend that a measure be submitted to the legislature in the direction of removing from the chapters in question, any clauses whicli are ultra vires. J. W. LONGLEY, Halifax, N.S., 17th August, 1887. Attorney General. Report of the Honourable the Minister of Justice upon Chapters 2, 3, 16, 81, 136, H7, 16S, approved by His Excellency tfie Governor General in Council on the 17th September, 1887. Depaetmentop Justice, Ottawa, 15th September, 1887. To His Excellency the Governor General in Council : The undersigned has the honour to submit a further report on certain Acts passed by the legislature of the province of Nova Scotia in the session held in the year 1886 (49 Victoria). 1. Chapter 2, "An Act to incorporate the Halifax and Great Western Railway Company." in 49 vioTOKiA, 1886. 563 |t of tlie arnondinp time yet, ill order ly. 1 think this |1, eliminating from Jin the fifth Sfiries, lusi's in the incorp- Jt tiio.se el lu.Hjtjs in lie Acts before the rney General. ernor of this date, Dji'ction \\w\ been g observdtions : — ency tlie Governor ment. K)pted, and a l)ill nal clauses therein It was pretty gen- the goveiiiment at ro relating to the oJicy to allow each fo," this, a general incorporated. In ■isions outside the a measure at the ic), no implication fiection.s. But as med expedient or -eady to submit a shall recommend amoving from the 'ney General. 3, 16, 81, 136, mncil on (he 17th smber, 1887. tain Acts passed in the year 1888 /■estern Railway Sonne of the powers given to this company appear to the undersigned to lie of an unusual oharaeti^r, in this view the Ministc'r of Hallways and Canals eniicurH, but as the enactment is probably within the powers of the legislature, and as the undersigned has no refUHiiii to apprehend that any serious public i^iconvef.ience will be (jccii.sioned by leaving the Act to its operation, be reconnnends that tlic^ Act bo .so h'ft to its operation. 2. Chapter 3, "An Act respecting the sale of f ntoxicii.ting Liquors." Mr. Hugh McD. Henry, Q.C., by his (^ominunii-ation ot the ITjthof January, 1887, on behalf of li(juor dealers of the city of Halifax, has asked that this Act bfi disallowfid on the grounds : (a.) That its provisions are not intended ir, good faith to regulate ihe tratlic in intoxicating liquors, but under the guise (jf regulation vii'tually to jinj'liibit all sale therein ; and (I).) That it encroaches upon the recognized powers of the parliament of Canada in respect to trade and commerce. A copy of Mr. Henry's communication having been transmitted to the Lieutenant- Governor of Nova Sfotia, a minute of his Executive Council on th'3 subject was approved by him on the 5th Ma)', 1887, and a copy thereof was '/orwarded to your Exc(!llency and forms part of the papers submitted with this report. The views of the dealers who are opposed to the enactment were further presented to the undersigned, by counsel who attimded at Ottawa f(jr that purpose. Attention has been especially called to the follon ing se<;tions ; — (1.) Sections makes provision for Iiotel, shop and wholosaUi licens j only, and does not authorize the issue of saloon or other licenses, under which li(|Uors can be sold for consumption on the premises, in any place other tlian an hotel. In the case of a hotel licon.se the quantity sold cannot exceed one quart, and the sale cannot be made to a person who is not a bona fide guest or lodger in the hotel (2.) Section 10, wliich is follows ; — " In the case uf an applicatii.n for a liotol or shop license in the city of Halifax the petition must be accompanied by a certificate signed by tliree fifths of the ratepayers of the polling district in which the prerai-^es sought to be licensed are situated ; and in the case of an application for a wholesale license in said city, petition must be accompanied by a certificate signed by a majority of the ratepayers of the polling district in which the premises sought to be licensed are situated ; and in the case of an application for a hotel, wholesale or shop license, elsewhere than in the city of Halifax, the piitition must be accompanied by a certificate signed by two thirds of the ratepayers of the jjolling district in which the premises sought to be licensed are situated. Such jiolling district shall be that established by law for the purpose of an election for the House cf Assembly, or if none should be established, then the p.iUing district used for the last election for the House of Assembly." (3.) Section 58, subsection 2, which is as follows : (After making provision as to the breweries licensed by the government of Canada.) " Such a brewer, distiller or other person, is, however, furtiier required to first obtain a license to sell by wholesale under this Act, but a brewer shall not be required in order to obtain such license, to get a petition under section 10 of this Act. The liquor so manufactured by him. when f.old for consumption within this pi'ovince, under which license the said liqu.or may be sold by sample or in original packages, in any municipality as well as in tliat in which it is manufactured, but no such sale shall be in qualities less than those prescribed in a wholesale license." And also all other provisions which are said to interfere directly with trade, and, it is urged, should not be treated as merely regulating the sale of intoxicating liquors. It is clear that section 58, subsection 2, is not within the legislative authority of the legislature of Nova Scotia. The decision of the Supreme Court of Canada in Servern vs. the Queen (2 S. C. 11. 71) supports this view. The other objections raised by counsel for the petitioners raise some doubts as to the validity of other sections of this enactment, especially when their direct effect upon trade is considered. /ii 564 NOVA SCOTIA LKtilHLATION The Act, howover contiiinH many provisions for the regulation of the sale of intox- icatiiif? liijuorH, wliich uppoiir to l)n dourly within the powers of the lei,'isliitiue. Homo of these are iniportimt, and the disallowance of the enactment would, witli- out doubt, produce considerable public inconvenience within tiie province ol Nova Scotia. The undersi;;ned tlierefore, after careful consideration, recommends that the Act bo left to its operation, but that the Lieutenant-Crovernor of the province be recjuested to call the attention of his advisers again to the Act, with a view to the amendment or rep(!al of such of its provisions as are of doubtful validity, and espcciiiUy with a vi(!w to the repeal of the 2n(l subset;! ion of section rjK befon^ (|uoted, in order to prevent the litigation which must otherwise inevitably ensue, with all its attendant conseque> ces. ;{. Ciiapter 1(5, " An Act respecting the Western Counties Railway Company." IJy the ."Jrd section of this Act the Provincial Secretary of Nova Hcotia is autlior- ized to make sale and absolutely dispose of, either altogether or in separate parcc Is, at one time or at separate times, ; ; I either at public auction, sale, or by private contract, at his discretion, and at or fo. such sums of money as he shall judge sufficient, among other thing.s, X 11 0,000 sterling of the debenture stock of the western division of the Western Counties Railway Company deposited with the provincial secretary as col- lateral security for the guarantee of interest on certain debenture stock of the said company. To this Act objection has been taken by Messrs. Markby, Stewart it Co., of London, England, the proprietors of £15,300, a portion of the £110,000 debenture stock above referred to. They claim that the said sum of £4r),;500 of debenture stock was not deposited with the provincial secretary under the terms of the agreement recited in the Act in question, but in accordance with the term.s of the letter addressed by Mr. F. (Jundry, then manager of the Bank of Montreal at Halifax, to the provincial secretary, dated 16th August, 1879. In that letter Mr. Gundry stated to the provincial .secretary that in compliance with instructions received from Messrs. Markby, Stewart A Co., he begged to hand to him therewith script for £45,300 sterling for " A " debenture stock of the Western Counties Railway Company of Nova Scotia, and that this script was made out in the name of the provincial secretary and was to be held by him as collateral security for the provincial guarantee of £50,000 sterling of " B " debenture stock of the said company. The correspondence on this subject was duly transmitted to the Lieutenant-Governor of Nova Scotia, and the views of his advisers obtained thereto. This correspondence has led to an amendment of the 3rd section of the Act in (juestion (49 Victoria, chapter 16), by which it is provided " that no such sale either by public auction or piivate contract, shall be held or take place unless and until the provincial secretary shall have |i,'iven public notice of such sale, at least thirty days be- forehand, stating the time and place of such proposed sale, which notice shall appear in the Royal Oazetti; for at least four issues, and in at least two daily papers published in the city of Halifax, and in one or more n-wspapers published in Yarmouth, in as many as four issues of each of the said papers. The undersigned does not understand Messrs. Markby, Stewart & Co., to contend that the Western Counties Railway Company has not made default in respect of the provincial guarantee of £50,000 sterling of " B " debenture stock of the said company, and having considered carefully the whole correspondence does not feel himself justfied in recommending your Excellency in council to disallow the Act in question. The undersigned therefore recommends that the Act he left to its operation. 4. Chapter 81, " An Act to provide for the management and improvement of the cemetery in Upper Stewiacke, in the county of Colchester. " Chapter 136, " An Act to incorporate the Forest Hill Cemetery Company, county of Colchester." i 49 VICTORIA, 1886. r.cr) : the sale of intox- i{islatui'e. inent would, with- pi'oviiicd ol Nova uda that the Ai^t 'ince he roqucHted to the aineridnu'nt y, and »'sj>ccially H' (|U()ted, ill order h all its attendant 'ay Company." Scotia is autl'.or- !{)iirato paro( Is, at )' private contract, e sufficient, amonj; istor'n division of il atici'etary as col- itoi'k of the said Stewart k Co., of 10,000 debenture .-as not deposited ;ited in tiie Act in )y Mr. F. (Jundry, ,1 secretary, dated lat in compliance e begf^od to hand ck of the Western made out in the collateral .security stock of the said iutenant-Governor n of the Act in io such sale either sss and until the 1st thirty days be- >tice sliall appear papers published Yarmouth, in as k Co., to contend n respect of the he said company, el himself justfied jestion. s operation. provement of the Company, county Chapter 147, " An Act to incorporate the Trustees of South I3rook Cen.etery, in '*'' T^iXS*?"" An Act to incorporate the Plyn.outh Cemetery Company." y S ve mmtt ed Acts having been amende.l in accordance w.th the su«Kest.on8 „.a,le in tt'^ort of the undersigned' of the 30th March last, he reconunen.ls that they '" 't C.:i;;:;?6:'' Ai Act to amend the A.-ts reh^ing to the , town of Dartmouth." riiiintor ')8 " An Act to incorporate the town ot Jventville. , ,. . Chapter 10^ "An Act to consolidate and amend the Acts relatu^K to the town °^ ^WiS 'Xrence to the suggestions made in respect to these Acts in his report of the Jo h Ma ch 1887, abov! referred to, the undersig.ied begs to chrect attention to S Si Kl = ;:i^^ i^^ri^r r^ir:::'';:: ? I ' A 1 , ;.l M »t it wm i)roIK«c- fi »»l«tilute for Ihi. o g™or»l immure ..pjjici.ble to trencli unon provisions outside the autho.ity of the legislatuie. Uude"TheS circnmstances the undersigned respectfully reco.nmends that the several Acts be left to their operation. All of which is respectfully submitted. JNO. S. D. THOMPSON, Minister oj Justice. 36 6«6 NOVA MC'OTIA LKdlMLATION NOVA SCOTIA— nOTH VICTORIA, 1887. (Iht Hkhhion— 29tii Oknekal Ahsemhly.) Petition of Messrs. Belden Bros., re chap. 12. To His E.vc.elkncy the Governor General of tht Dominion of Canada, in Council : Tlio petition or inoinoriiil of tlio uniler.siK'ned, Messrs. Bolden Brothers, of Toronto, in the province of Ontario, respectfully showetli :— Ist. Your uieinorialista are publisliers in the said city of Toronto. Home years a;,'o tliey published a book called " Picture.s be introduced into the local legislature of Nova Scotia, compelling plaintifls having claims against debtors for sums under |80, to bring their action in the county where the defendant resided, thus driving the creditor to the debtor, instead of following the old and established law of compelling the debtor to come to his creditor, and the Act also went so far as to direct and compel judges of the county courts to send any case then before them back to the counties where the defendants resided, thus striking a blow at the very cases we have now stand- ing in the county of Halifax for trial. In fact, since the said Act passed the legislature, which it did without any notice to us, a few weeks since, it has been admitted that it was aimed at and passed, for the sole purpose of .striking a Wow at the " Picturesque Canada " cases. ,. ^u- i • n j* 5th Feeling that very great injusticft will be done us if this law is allowed to come into operation and that we might just as well throw away our claims as to go to Cumber- land county and fight them ; we humbly ask your Excellency and your honourable government to disallow said Act which is entitled : "^An Act to amend the provisions of the R^^vised Statutes of County Courts and the procedure therein." 6th. We lastly say that our claims against the parties defendants in the several actions tried at Amherst were just and honest, and in every case the learned County Court Judge charged strongly in our favour, but notwithstanding that, and that the 87. in Council : ^rotlierH, of Toronto, to. Home yoarsii'^o ,'i'ly 'old all through soino havo rosiHted, Illy of Cumberland, iry to take l»!gal pro- Tlieso prooeodingH (lefendants residtsd. fl for juries in each 10 evidence given at tity court, wiio tried jfendarita themselves easitated an appeal till pending, and as serious injustice has jsiding in said county lyear 1887, to again inst tlieae defendants id in said county, we istice in said county to Halifax, persons rluced into the local nst debtors for sums resided, thus driving led law of compelling to direct and compel back to the counties s we have now stand- assed the legislature, en admitted that it at the " Picturesque w is allowed to come as to go to Cumber- id your honourable ruend the provisions 1." idants in the several the learned County J that, and that the 80 VICTOUIA, 1887. evidence l)eing with us — in one case where our witness(fs as to the onler for, and duirtl)erland jury, and it will bn seen on n;feren('o to flaid Act, it applies to ceases now outstinding as well as to any future" cast-s. On the grounds above set forth, y<»ur memorialist.'; ask that said Act may bo t or cause of action ifiable and perfectly ision : — sither party shall be he same is pending, sides, or the debt or ialists in the present )vision, and if it did s to go to the Nova altogether to be pre- nintentional error it Brothers be correct, he Act in its second of the judge of the venue in such cases n general principles sive of the just and Je understood that irrespective of any GLEY, ornei/ General. Iward Church, and ■otia. are, in the main, lember, and has no ?ard to the specific ill assume that the it I feel compelled reasonable ground >f the Act in ques- ra Scotia. If any •da any number of e to address these objections, which are clearly and forcibly set out in the memorial before me to the provincial legislature at its next session. And there is no reason to doubt that this body would be ready to rectify any wrong unintentionally done. I would lay it down as a just and sound principle that the disallowunce of Aces clearly within the jurisdiction of a provincial legislature, should not be exercised unless the Act be gros.sly and inexcusably aimed at private parties, is exceedingly prejudicial in its character, and likely to work manifest and irreparable injury to the pcrty or parties affected, before repeal was possible ; and the legislature intended to per- sistently adhere to the gross, inexcusable and purposely prejudicial legislation. The Act now complained of would not fall, as it appears to me, within the above category or definition, in any respect, and I, therefore, solely on general principles, respectfully submit, that it is not fairly amenable to the legitimate exercise of the power of dis- allowance vested in his Excellency the Governor General. September 5th, 1887. W. LONGLEY, Attorney General, Report of the Honourable the Minister of Justice, apjrroved by His Excellency the Governor General in Council on the 2nd October, LSi^S. Department op Justice, Ottawa, 30th April, 1888. To His Excellency the Governor General in Council : The undersigned has the honour to report that he has had under consideration the Acts of the legislature of the province of Nova Scotia passed in the session held in the year 1887 (50th Victoria) the chapters of which are mentioned in the schedule hereto, and recommends that they be left to their operation. Respectfully submitted, JNO. S. I). THOMPSON, Minister of Justice, Schedule, Chapters 1 to 5, 7 to 11, 13 to 19, 21 to 50, 53 to 55, 57 to 91, 93, 97 to 101, 103 to 107 and 109 to 125. Report of the Honourable the Minister of Justice, apjrroved by His Excellency the Governor Gerter^i in Council on the '2nd October, 188S. Department of Justice, Oti'awa, 30th April, 1888. To His Excellency the Governor General in Council : The undersigned has the honoui to report upon the following Acts of the legisla- ture of the province of Nova Scotia pa^-sed in the year 1887, namely : Chapters 6, 12, 20, 56, 92, 94, 95, 102 and 108. Chapter 6. — An Act relating to the administration of Criminal Justice in the Supreme Court. This Act has for its oL;Pvt the regulation of the choice of barristers who shall con- duct criminal prosecutions in the province. As the expense of conducting such prosecutions devolves up n nrder changing which the cause of . of Toronto, it was r attempts to collect [ho had purchased a T-ly protested against Their petition, on t of Nova Scotia for of disallowance in spect to a matter of ghts of litigants in >e undersigned does is within the juris- ffect the interests of esult in a defeat of ndersigned does not of disallowance in tutes, "of Commis- Revised Statutes of Lands," and it pro- r occupiers of dyked rred, or hereafter to 1 had or taken by, or such. t an action of tres- >avison, " a commis- louth Village Great complained of were of chap. 40, above i^entuaDy confirmed Falmouth Village ew of enabling Mr. itors of the marsh ■t litigation, signed in reference should exercise the of Kentville. In the report of the undersigned to your predecessor of the 30th March, 1887, in relation to the legislation of the province of Nova Scotia fur the year 1886, he had reason to call attention to certain objections to various acts passed by the legislature in that year in relation to the incorporation of certain towns. Such objections are equally applicable to certain provisions in this Act. Your Excellency's attention is also directed to sections 253 and 2.^7 of this Act, which purport to give to the stipendiary magistrate appointed by the town council, all the jurisdiction of two justices of the peace, and provides that all fines for the future, and fees collected or received in the stipendiary magistrate's court, or in the police office of the town, shall be paid into and form part of the general revenues of the town. This provision is inconsistent with the provisions of chapter 180 of the Revised Statutes of Canada, sec. 2, which provides that, " whenever no other provision is made by any law of Canada for the application of any fine, penalty or forfeiture imposed for the violation of any such law, the same shall belong to the Crown for the public uses of Canada." So far as section 257 might be held to be in contravention of the Dominion Statute, it is beyond the powers of the local legislature, but inasmuch as it may and undoubtedly should be construed to apply only to fines and foifeitures imposed by acts f)f the local legislature, or under lawful by-laws of the municipal council, the undersigned does not consider that tl'ose objections are sufficient to justify the disallowance of the Act as a whole. He recommends, however, that the attention of the provincial goveriiment be called to these provisions, in order that they may be amended so as to make it plain that they are not intended to interfere with the fines and penalties, which are at the disposal of the parliament of Canada. The undersigne 1 is of opinion that a provincial legislature cannot give to a town council power to make regulations for the discharging and depositions of ballast, rubbish or refuse in harbours or rivers. A portion of this statute (sec. 209, subsec. 20) would appear in this respect to be beyond the competency of a provincial legislature, and the undersigned recommends its repeal. The matter, however, is not of sufficient public importance, in the opinion of the undersigned, to call for the exercise of your Excellency's power of disallowance in respect of the Act, as such disallowance would probably occa- sion more public inconvenience. The undersigned deems it right to call special attention to the provisions made in this Act for the organization of the municipal and police courts, and for the appointment of a stipendiary magistrate over such courts. There are doubts as to the power of a provincial legislature to legislate in respect to the appointment of justices of the peace or other magistrates. There have been decisions in Canada, all entitled to great respect, supporting both views of the question, but no court of final review in the Dominion has as yet adjudi- cated upon it. In the meantime it cannot be taken as settled that a provincial legislature or a Lieutenant-Governor has the power of making the appointments in question, or that the powers vested in your Excellency, under your commission, to appoint justices of the peace in her Majesty's name can be interfered with, abridged or taken away by provin- cial legislation. Chapter 52. — An Act to consolidate with amendments, the Acts of Incorporation of the town of Windsor, and the Acts in amendment thereof. This Act is open to the same objections as that in relation to the town of Kentville, sections 229 and 233, containing similar provisions in relation to Windsor in respect to the application of fines and forfeitures. Section 239 is also objectionable, inasmuch as it purports to give the town council power to make regulations ; (a.) In respect to docks and wharfs, (h.) The weighing and measurement of salt, coal, etc., and(c.) The discharging and depositing of balK'Jst in harbours and rivers. There is also a grave question as to tiie competency of the provincial legislature txj give the municipality the power of making such regulations as to the suppression of vice, and as to the observance of Sunday, as are indicated in subsection 16 of section 239. tl" B74 NOVA SCOTIA LEGISLATION The undersigned, however, does not deem these objections of suflBcient importance to call for your Excellency's exercise of your power of disallowance in regard to the A.-t, as such disallowance would probalily occasion some public inconvenience, but he recom- mends that the attention of the Lieutenant-Governor of the province be called to the sub- ject, in order that his Honour's advisers may recommend to the legislature the repeal or amendment of the objectionablp provisions. Chap. 56. — An Act to inc( .porate the Bolton, Parrsboro' and Londonderry Bailway and Steam Navigation Company, Limited. The title of this Act would seem to imply that the promoters intended that the business of the company should be done outside of the province of Nova Scotia, but inasmuch as that it is the only indication of an intention that this Act should have more than a provincial purpose, the undersigned does not recommend that the power of dis- allowance should be exercised in respect to it. Chap. 92. — An Act to incorporate the Nova Scotia Gas and Electric Light, Fuel, and Power Company, Limited. Sections 18, 19 and 20 of this Act are objectionable, inasmuch as they trench upon the criminal law. Section 18 provides for the punishment of a person who steals gas or electricity. Sections 19 and 20 provide for the punishment of a person who wilfully or maliciously injures property. All of such offences are punishable under the provisions of the criminal law of Canada. The undersigned has received an assurance from the Attorney General of Nova Scotia that the government of that province will, at its next session, promu*^e legislation to secure the repeal of these sections. Chapter 94. An Act to incorporate the Amherp* Electric Light and Water Com- pany, Limited. Section 15 of this chapter is subject to the same objections as those pointed out in respect to the last chapter referred to, and the same assurance has been given in regard to it. Chapter 95. An Act to incorporate the Mountain Cemetery Company, Limited. The provisions of sec. 18, providing for the punishment of any person who wilfully destroys any property in the cemet-ery is, in the opinion of the undersigned, an inter- ference with the criminal law. The legislature of Nova Scotia acted on the opinion which the undersigned had felt it his duty to express, that such legislation is jeyond its authority, as by chap. 37 of the Acts of 1887, similar sections in Acts passed in the year 1886 were expressly repealed and expunged, by reason of their being ultra vires of that legislature. Chapter 102. An Act to incorporate tlie New Glasgow Electric Company, Limited. Chapter 108. An Act to incorporate the Truro Electric Company. Section 19 of both of these Acts is subject to the same objections as the undersigned has made in respect to chapter 94 above referred to, and the same assurance has been givan by the Attorney General of Nova Scotia in regard to these sections. The undersigned therefore recommends that the seveial chapters which form the subject of this report be left to their operation. Respectfully submitted. JNO. S. D. THOMPSON, Minister of Justice. 60 VICTORIA, 1887. 6i pfficient importance regard to the A,-fc, Ince, but he recom- oe called to the sub- lature the repeal or adonderry Railway J intended that the If Nova Scotia, but pt should have more It the power of dis- tlectric Light, Fuel, IS they trench upon s gas or electricity, fully or maliciously he criminal law of iy General of Nova promote legislation ht and Water Com- hose pointed out in een given in regaid mpany, Limited, person who wilfully ersigned, an inter- ndersigned had felt s hy chap. 37 of the expressly repealed Company, Limited. as the undersigned assurance has been tions. ers which form the PSON, ster of Justice. The Honourable the Minister of Justice to the Honourable Attorney General Longley. Department of Justice, Ottawa, 4th July, 1888. My Dear Sir, — I wish to call your attention to the Acts of Nova Scotia, passed in the year 1887, which are set out in the annexed schedule, and to state that the sections therein specitied are, it seems to me, ultra vires of a provincial legislature. Inasmuch as the statutes in which these objectionable provisions are containefl, are doubtless in the public interest. I do not think it desirable that the power of disalK.wance should be exercised in respect to them by reason of such provisions, if I am able to effect an arrangement with you, having in view the repeal of those provisions which are objectionable. This may be attained if you can assure me tliat at the next session of your legislature the government of Nova Scotia will promote legislation repealing the sections to which attention is particularly called. That assurance being given, his Excellency the Governor General will not be advised to exercise the power of disallowance. I apprehend that you can have no difficulty in acceding to the proposition I have made, as it would in substance be the carrying out of the views expressed by you in your memorandum of the 17th August, 1887, upon my report on Nova Scotia legislation on the 30th March, 1887. I am, kc, JNO. S. D. THOMPSON, Minister of Justice. Schedule. Chap. 92, see's. 18, 19 and 20. Chap. 94, sec. If). Chap. 95, sec. 18. Chap. 102, sec. 19. Chap. 108, sec. 19. Chap. 51, see's. 253, 257, 269, subsec. 20. Chap. 62, see's. 229, 223 239, subsec's. 5, 6, 21. The Hon, Attorney General Longley to the Hon. the Minister of Justice. Halifax, 11th July, 1888. My Dear Sir, — T received your communication of the 4th instant, respecting cer- tain chapters of the local Acts of 1887, and have given the matter full consideration, and have to make the following statement in regard to the several c'auses specified, first, chapter 51, sections 253, 257, 269, subsection 20 ; chapter 52, sections 229, 223, 239, sub- sections 5, 6, 21. All these sections were revised last session by the introduction of a general Act of towns incorporation, and in that Act all these objectionable clauses were omitted. Chapter 95, section 18. This clause was merely the result of oversight. I have passed an Act, as you are awar6, eliminating that clause from all the cemetery bills, and will, of course, rectify this at the next session. Chapter 92, sections 18, 19, 20; chapter 94, section 15; chapter 102, section 19 chapter 108, section 19. These clauses have given me some difficulty. I am inclined to agree with you that these clauses are not in the public interest. It is quite manifest that the cri^ninal statutes of Canada are ample to meet such offences, but I am not absolutely clear that the legislature of Nova Scotia may not provide such penalties as these clauses contain, under the clause of the British North America Act, relating to property and civil rights. However, without distinctly acknowledging that such clauses are ultra vires of the provincial legislature, 1 am disposed to say that the government will at the next session promote legislation to secure their repeal. I have, &c., J. W. LONGLEY, Attorney General. !■» .1 I i-i '! iii 676 NOVA SCOTIA LEOI8LAT10N NOVA SCOTIA— 51st VICTORIA, 1888. (2nd Session — 29th General Assembly.) Petition of Trustees of School Lanh in Cornwallis respecting Chapter 62. To Ilis Excellency the Governor General in Council, and the Horwurable the Privy Council of the Dominion of Canada. i The humble petition of the undersigned shaiveth, That your petitioners have learned that a bill having for its object the appointment of new trustees of the school lands in tlie township of Cornwallis, in the county of Kings, Nova Scotia, has been passed by the Governor, Council and Assembly in Halifax, the 16th day of April, 1888. Your petitioners believe such an Act to be unconstitutional, and in the words of the Attorney General, Honourable J. W. Longley, whose short speech is inclosed, takes away the trust from the present holders thereof, who, with their predecessors, have held it for 98 years, and creates a new trust, making " a serious change in the management and ownership of property." Your petitioners humbly beg for a disallowance of the said bill, among others, on the following grounds. First. The lands in question, in common with all school lands in the province of Nova Scotia, were set apart on the understanding come to between the English govern- ment and the Church Society for the Propagation of the Gospel in Foreign Parts, as will be gathered from the inclosed certified copy of a letter from the clerk of the Lords Com- missioners for Trade and Plantations, in 1749. Secondly. T'lat the lands thus promised were vested in trust in the Rect ir and Church Wardens of the parish of St. John, which is coterminous with the township of Cornwallis, in 1790, and in their successors in office, to our own trusteeship. Thirdly. That Acts of like character have from timi; to time passed through the legislature of Nova Scotia, and have always been refused confirmation by the home government. That in 1839 after the passing of such an Act, on the petition of the Lord Bishop of Nova Scotia, and the Society for the Propagation of the Gospel, to Her Majesty, the government of England caused a thorough examination into the claims of the church to be made, with the result that it was declared that the Society for Propagating the Gospel, which was the Church's representative, with whom the government had treated ninety years previously " have established an equitable claim to that portion of the lands which is already occupied and improved " * * * " that the Society should be left to the entire and unreserved possession of it." The lands now interfered with were then in the position thus contemplated in Lord John Russel's despatch, a copy of which is also inclosed, with other certain extracts from the opinion of Counsel employed by the Crown, taken from the Journals of the House of Assembly of Nova Scotia, 1839-40. Another bill was again disallowed in 1850, see despatch of Earl Grey to Lieutenant- Governor Sir John Harvey, Oct. 5th, 1850, (see page 162 Debates and Proceedings of the House of Assembly 1880). Fourthly. That in 1880, when a similar bill was' asked for, the then Attorney General (Hon. John S. D. Thompson) suggested it was more a matter for the courts, than that the House should be asked to interfere with " vested rights." The bill did not pass that session. Chapter 53. Ve the Privy Council 3ct the appointment in the county of ssembly in Halifax, irifl in the words of h is inclosed, takes lecessors, hava held in the management hill, among others, in the province of bhe English govern- ireign Parts, as will c of the Lords Com- • in the Rect )r and ith the township of teeship. jassed through the ation by the home jf the Lord Bishop Her Majesty, the ns of the church to agating the Gospel, had treated ninety of the lands which 5 Society should be terfered with were 5h, a copy of which lel employed by the icotia, 1839-40. Irey to Lieutenant- tid Proceedings of he then Attoi-ney ter for the courts, ." The bill did not 61 VICTORIA, 1888. 577 Your petitioners have since then been conducted through the Etjuity and Supremo Courts of Halifax, and the Supreme Court of Canada, when they wore carryir-g out the toruis oi their trust deed, relying in good faith on the decision of the Privy Council in 1839 : and Now because the prayers of these j ersons have not been granted tlieni by the courts, they have applied once more to the legislature to destroy our trust and create a new one. Your petitioners therefore pray, your Excellency, and Honourable Council, not to assent to any such bi' . And your petitioners, as in duty bound, will ever pray. Signed, by the trustees of the school lands in Cornwallis, this 12th day of July, 1888 FllEDRlCK J. H. AXFORD, Rector of the Church of St. John. WM. SMITH, Church Warden. H. ZINK. Propagation oj the GosprI in Extract from tlie Journal of the Society for the Foreiyn Par/n. At a special meeting of the Society for the Propagation of the Gospel in Foreign Parts, by order of his Grace the Ijord Archbishop of Canterbury, held on the 7th of April, 1749. His Grace the Lord Archbishop of Canterbury in the chair. A letter from Mr. John Pownall, solicitor and clerk of the reports, by order of the Lords Commissioners for Trade and Plantations, dated the Cth instant, was laid before the board and is as follows : — WiiiTKUALL, April Gth, 1749. Sir, — His Majesty having given directions that a number of persons should be sent to the province of Nova Scotia in North America, I am directed by my Lords Commissioners for Trade and Plantations to' desire you will accjuaint the Society for Propagating the Gospel in Foreign Parts that it is proposed to settle the said persons in six townships, and that a particular spot will be set apart in each of them for building a church, and 400 acres of land adjacent thereto granted in perpp dty free from the pay- ment of any quit rent, to a minister and his 8Ucces.sors, and 2(,'0 in like manner to a schoolmaster. Their Lordships therefore recommend to the society to name a minister and schoolmaster for each of the said townships, hoping that they will give such encouragement to them as the society shall think proper, until their lands can be so far cultivated as to aflford a surticient support. I am further to acquaint you tliat each clergyman who shall be sent with the persons who are to form this first settlement, will have a grant of 200 acres of land, and each schoolmaster 100 acres, in propriety to them and their heirs, as also 30 aces over and above their said respective quotas for every person of which their families shall C!)nsist, that they will likewise be subsisted during their passage and for 12 months after their arrival, and furnished with arms, ammunition and materials for husbandry, building their houses, &c., in like manner as the other settlers. Their Lordships think proper that the society should l)e informed that (except the garrison of Annapolis) all the inhabitants of the said province amounting to 20,000 are French Roman Catholics, and that there are a great number of priests resident amongst them, who act under the directions of the French bishops of Quebec. At the same time their lordi-hips would recommend it to the consideration of the society whether it may not be advisable to choose some amongst others of the ministers and schoolmasters to be sent, who by speaking the French language may be particularly useful in cultivating a sense of the true Protestant religion among the said inhabitants, and' educating their children in the principles thereof. I am, &c., JOHN POWNALL, Solicitor and Clerk of the Reports. ii I (1 '1 I .1' :! I I 678 NOVA SCOTIA LEaiBLATION Certified e,ctr(K'ta from a dfHpatch from Lord Jo'n Ranftdl, kUeen from the Journah of the IfoHse of Amieinbly of Nova Scotia, 1889-40, app. No. 6, p. 27. Downing Street, 23rd September, 1839. Sir, — Among other subjects — the Act passed by the Assembly during their last session, for the appointment of trustees of school lands — much time lias nect-Hsarily been occupied in weighing the representations against the contirmation of that Act which have been submitted by the Bishop of Nova Scotia, and in obtaining the opinions of the law officers of the Crown on those points of law in which the question was in- volved. Those representations and opinions have been fully considered. I am now enabled to communicate to you the views of Her Majesty's government upon this subject. The real points which the government have had to fletermine have been the value and extent of the claims whicli have been preferred by the Bishop of Nova Scotia, on behalf of the Society for the Propagation of the Gospel, to the possession of these lands for the use of schoolmasters of the Established church. The decision of the Crown as to the confirmation or disallowance of the Act recently passed by the provincial legis- lature has ntfcessarily been dependent, in a great degree, on the success or failure of that claim, and I shall proceed, therefore, in the first place, to explain to you the opiniot.s which iiave been formed on these- p ints by Her Majesty's government, after a mo it careful consideration of the whole subject. Her Majesty's government are of opinion that the Society for the Propaga- tion of the Gospel, although not posseshrd of a strictly legal right, have established an eipiitable claim to that portion of the land which is already occupied and improved, and they consider that the society should be left to the entire and unreserved posses- sion of it, for the purpose to which it is at present dedicated, setting aside any other consideration, the society in connection with the Established Church of England and Ireland, have by the extent and efficiency of their arrangements for dispensing the benefits of education throughout the province, entitled themselves to the full enjoyment of the property. You will have collected from what I have now stated, that it is not my intention to advise Her Majesty's government to assent to the Act passed in the last session of the provincial legislature entitled " An Act to provide for the Selection and Appoint- ment of Trustees of Lands, granted or reserved or otherwise allotted as school lands, or for schools in this province." The legal opinions which have been taken on this Act confirms the doubt which was entertained by the government as to the competency of the local legislature to exercise this jurisdiction over the lands in question. The Act passed is open to the strong objection that it extends to all lands originally reserved or granted for purposes of schools, which must be plainly improper, so far as relates to lands vested in trustees appointed from time to time by the Governor. Even if the claim of the society had been altogether rejected, still the property not having been found with them, would revert to tlie Crown, and be disposable by the Crown, and not by the local legislature But independently of what I have already stated, it appears to me that the Act is liable to this other grave objection, that it seeks by a direct exercise of power, to enforce a settlement of a question embodying many important points of proprietary rights and equitable consideration, which could be satisfactorily arranged, after a full examination of the ground on which the claims of the parties were founded. I have, etc., ' J. RUSSELL. % »*' nil the Journals of pteniljer, 1839. y (luring their last lie liiiH neccsNiirily ination ot" that Act tiiining the opinions , pp. US-it. Downing Strket, 27th Hoptombor, 18.'{9. My Lord, — T^ord Jolin Russell having fully considered tiie whole (|Uestion which has recently been under discussion, relating to the School Lands in Nova Scotia, and having duly weighed the several representations which your Lordship has submitted, in supptirt of the claim advanced by the Society for tlie Pr(»pagation of the (Jospel, to the possession of those lands for the use of schoolmasters of the hist-iblished Church, I am now directed to communicate to you his Lordship's decision on the subject. Lord John llussell is of opinion that the society, although not possessed of a strictly legal right, have established an efjuitable claim to that |)orti(in of the lands which is already occupied and improved, and the society will therefore be left in the entire and unreserved possession of them, for the purposes to which they are at present dedicated. I have etc., R. VERNON SMITH, Petition from the Bishop of Nova Scotia rcspccfinrf Chapter 72. To His E.ixellency the Right nondurable Sir Frederick Arthur Statdey, Jiaron Stanley of Preston, Governor General of Canada and Vice Admiral of the same. The petition of the Right Reverend the Lord Bishop of Nova Scotia, humbly showeth : That the Act. Chapter 72 of the Acts of the province of Nova Scotia, intituled : " An Act respecting School lands in the township of Cornwallis" passed the 16th of April, 1888, was wrongfully enacted and should be disallowed for the following reasons : The grant of lands issued the 31st of December, 1790, referred to in this Act, was issued to the Reverend William Twining, the rector of the Church of St. John, and John Burbidge and Benjamin Belcher, wardens of that church, and the future rector and wardens of that church for the time, in special trust for the use of schools, etc. For a period of 98 years, extending from that date up to the present month, the rector and wardens of that church, have during their respective terms of office held the land and administered the trusts of the grant, receiving such compensation therefor out of the lands as the law allows : Although the legal title may have been technically defective, the rector and wardens were de facto trustees, and were on the one hand liable to the persons intended to be beneHted, and on the other entitled to the administration of the trusts. From an alteration in the circumstances of the schools of the country, the duties of the trustees were not at all clear, end hence arose litigation. The effect of the litigation, as your petitioner understands it, was to declare that a certain expenditure in con- structing a school-house was not in accordance with the terms of the trust, and for this mistake the trustees were ordered to pay a large sum of money in costs, and upwards of three thousand dollars were expended in the costs of litigation. The rector and v.ardens defended the action in good faith, and upon the advice of eminent counsel. Indeed, the Supreme Court of Nova Scotia sustained them in their defence. The Supreme Court of Canada reversed this decision, but held, as had been deter- mined in the other courts, that the Equity Court undoubtedly could authorize a mole of disposing of the trust fund, so as to carry out as nearly as possible the intention of the grantor. It is submitted that while this suit was pending, and while the trustees had the opportunity, under the directions contained in the judgment of Mr. Justice Strong, of applying to the Equity Court to authorize a mode of disposing of the trust funds and which it was not denied, but that the courts could do complete justice, it was a great \.h !m 580 NOVA BCOTtA LROIBLATION i interferonce with vested rights for tiio partieH promoting the action to iipproaoh the l()gify the grant, and vestH thoni in trustees t.) ho appointed hy an inNtitution of the state. The tith) of tlie rector and wanhmi may hn technically defective, the value of the property small, and the renmneralion connected with the trusts insignilicant, hut gen- erally in English speaking countries, thn legislature does not, as has het^n done ntliia case, deprive a citizen of his rights or his property without ade(|uate compensation ' It is suhniilted also that it is perhaps the estahlishuK'nt of a (lang(Tous precedent in these times to allow a municipal institution to seize upon the administration of trusts originally vested in, and administered hy a religious institution. If the legislatuie was inducisd to pass an Act of confiscation upon the understand- ing that some compensation should be made in the form of payment of the costs t)f tli^ unfortunate rectcu- and wardens, in connection with the litigation refc d to, hh is indi- cated in the last section of the Act, even this compensation has '■ .1 withheld. The munioij)al council has, at its last meeting, refused to vote that costs of the trustees should he paitl out of the accuniulaU^d funds. The trustees appointed hy the municipal council hv ..> connection with the parish of St. John, and the appointment, contrary to the doctrine of the e(iuity courts, has been made entirely without reference to the original intention of the grantor. The lents are to be paid in to the county treasurer, to be expended upon the schools in the township of Cornwallis, in manner as by them shall be deemed most advisable, a trust so vague that nothin'/ but an Act of the legislature could make it legal. • Your petitioner has been informed that a previous Act of the legislature of 1839, entitled, " An Act to provide for the selection and appointment of Trustees of lands granted or re.served, or otherwise allotteil as school lands or for schools in this Province," was disallowed by Her Majesty in Council upon the ground stated in a despatch of Lord John Russell, bearing date 23rd September, 1839, in which it appears that the opinion of the law othcers of the Crown was taken. That another Act of a similar nature passed in 1850 was disapproved of, as appears by the despatch of Earl Grey to the Governor of this province, Sir John Harvey, dated 5th October, 1850. And your petitioner submits that the objections set forth in these despatches are applicable to the present Act. Your petitioner therefore humbly prays that the Act of the legislature of the province of Nova Scotia, passed on the 16th day of April, 1888, chapter 72, may be disallowed ; and as in duty bound will ever pray. F. NOVA SCOTIA. Halifax, 24th January, 1889. Heport of the Honourable thr Minister of Justice, approved by His Excellency the Governor General 'n Of uncil, on the 30th January, 18S9. Depahtmknt op Justice, Ottawa, 28th January, 1889. To His Excellency the Gove ruw General in Council : The undersigned having had under consideration the following Acts of the legisla- ture of the province of Nova Scotia passed in the session held in the year 1888, the chapters of which Acts are mentioned in the schedule hereto, respectfully recommends that they be left to their operation. Respectfully submitted, JNO. S.'D. THOMPSON, Minister of Justice. Schedule. Chapters 4 to 8, 10, 12 to 15, 17 to 29, 31 to 36, 38, 39, 41, 42, 44 to 71, 73 to 81, 83 to 127, 129 to 136, 138 to 144, 146 to 151. i *!!. to approKoli til" projw'rty and t'o jippoint»'d hy llm vdlnf! of tlio Igiiiliauit, hut geii- l»'on dono mi this IcoinpeMMiitioii mi>,'<'r(.tm proot((Jent IniHtiutiua of trustB I'll the undorstiind- t)k' tho costs of tli^ <"■ (I to, iiH i.4 iiidi- .i withheld. The >ata of tlie trustees tinn with the parish ity courts, lias been or. Tiie rents are Is in the township le, a trust so vague igislature of 1839, >f Trustees of hinds Is in this Province," d in a despatch of vppears that the i^ct of a similar h of Earl Grey to toher, 1850. And tches are applicable legislature of the chapter 72, may be VA SCOTIA. lis Excello^cy the '89. anuary, 1889. \.cts of the legisla- the year 1888, the bfully recommends 'SON, ter of Justice, a to 71, 73 to 81, 61 VICTORIA, 1888. Ml Rfport of (fill Ifonimrahh the Mininffr i>f Junlirf, i>ppri>r^il by 11 in Exfellnnci/ t/m Governor (t'enaral in Counfil, on the illk F>^ltruuri/, 1S,S',>. Department op .Tustick Orr.vwA, 28th January, 1889. To Ilia Excellimry the. Governor General in C'ounci/ ; The undersigned has the honour to submit for consideration Jus rop< .t on the fol- lowing Acts pas.sed by tho legislature of the province of Nova Scotia, in the session of 18H8, authentic copies of which were received by the Secretary of State on the 29th August last. Chap. 1. The Towns Incorporation Act. This Act repeals all of the charters of incorporation to the various towns in Nova Scotia, bringing the towns under tho operation of this gc-neral Act. It eliminates several objectionable features which existed in various Acts of incorporation and which have been commented on from time to time by the undersigned, and by his juedecessors in office. The undersigned must, however, call attention tosjiction 209 of this Act which pur- ports to give a town council power to iniike by-laws on the following, among other, subjects : "(5.) The weighing and measurement of salt, coal and wootl, lumber, shingles, logs, timber, hay, straw and grain, and fixing the rates thereof." "(15.) Tho prevention and punishment of vice, drunkenness, immorality and inde- ce.j y in the public streets, highways and other public places, and prevention of the profanation of Sunday." These matters are within the control of the parliament of Canada, and have been legislated on by that parliament, and it can only be competent for a provincial legis- ature to enact laws in respect of them for the purpose of aiding the enforcement of the aws of Canada. In any other view it would be difficult to assent to the constitutional character of the provisions mentioned. Subsectioii (15) of sec. 269, which relates to the licensing of auctioneers, pedlars, and hawkers of ^'oods and traders who are not ratepayers within the town, is a provision of doubtful validity ; but as this question cai be raised in due course by those concerned, there seems to be no necessity for any action by your Excellency with regard to it. The ■ undersigned wishes to call attention to the provisions made in this Act in relation to the municipal court and to tiie powers of the stipendiary magistrate. So long as the statute provides that the justice presiding over the court is to be appointed by the Governor General in Council, under the provisions of the British North America Act, there may be no objection to increasing the jurisdiction of such court. But there are serious objections as in the pre.sent case, to the provincial legislature giving to the municipal court, the presiding officer of which is appointed by the pro- vincial authorities, such large jurisdiction as is in this Act provided for, section 187 it would seem, gives the municipal court unlimited jurisdiction in the natter of taxes, and the subsequent sections give additionel powers. Section 252 of the Act, it would seem, infringes upon the common law, the phrase "criminal offenders" therein being wide enough to cover persons offending against the criminal law of the Dominion ; and the same objection applies to section 255. The undersigned, however, recommends that the whole Act be left to its operation. Chap. 2. An Act to amend and consolidate the Acts relating to Municipal Assess- ments. The British North America Act limits the powers of taxation vested in a provincial legislature to the imposition of direct taxes. The result of some of the provisions of this Act may be of the nature of indirect taxation. Any objection on that ground can, however, be easily raised by those whose property may be affected by it, and can, without inconvenience or detriment, be left to the decision of the courts. 37 V\ ■s M i.;!^ :'•;( i!'; 582 NOVA SCOTIA LEGISLATION Chap. 3. An Act to provide a Tribunal of Arbitration in certain cases. This Act forms the subject of a separate report to your Excellency. Chapter 9. An Act in relation to tb^ Public Health. Section 2 (subsec. 4) of this Act provides that "the Governor in Council may by his sanitary orders, provide for regulating, so far as this legislature has jurisdiction in this beiialf, with a view of preventing the spread of infectious disease, the entry or departure of boats or vessels at the different ports or places in Nova Scotia, and the landing of passengers or cargoes from such boats or vessels or from railway carriages or cars, and the receiving passengers or cargoes on board the same . " The British North America Act gives exclusive legislative power to the Parlia- ment of Canada in respect of quarantine, navigation and shipping. It would clearly not be competent for a provincial legislature to make an enactment relating to tho arrival of vessels, vehicles, passengers or cargoes from places outside the province ; but it may be that provincial control m.'iy be exercised in relation to transport from one port of the province to another, subject of course to any regulation on the suV)ject of quarantine by the federal authority. The Act appears to be one of considerable utility, and inasmuch as suitable quarantine regulations have already been established for the prevention and spread of infectious disease throughout Canada, the undersigned recommends that this x\ct be left to its operation. Chapter 11. An Act to ' consolidate and amend the enactments relating to Trustees, and for other purposes. Section 8 provides in effect that no property vested in any person upon any trust shall be forfeited to her Majesty by reason of the attainder or conviction of such trustee, but shall remain in him as if no such attainder or conviction took placfe. This section which is taken from the English Act on the subject clearly relates to the criminal law, and is not therefore a proper subject of legislation for a provincial legisi.itur'^. The undersigned has to recommend that the attention o.: the Lieutenant-Governor of Nova Scotia be called to this provision with a view to its repeal at the next meeting of the legislature, and that his Honour be asked whether such repeal will be recommended by his advisers, as it will be the duty of the undersigned to recommend disallowance of of the Act if that assurance be not given. Chapter 16. An Act to amend chapter 56 of the Revised Statutes, " Of County Incorporations," and an Act in amendment thereof. This Act proposes to give to municipal councils the power to make by-laws in respect to the licensing of auctioneers wiio are not ratepayers within the county and licensing of pedlars, hawkers of goods and traders, who are not ratepayers within the province. The undersigned, in recommending that this Act be left to its -operation, neverthe- less thinks it to be his duty to suggest that it is of doubtful validity, in view of the ex- clusive right of the parliament of Canada, to regulate trade and commerce. The observation which has been made in this report on subsection 15, of section 269, of chapter 1, is applicable to this provision, Chtvjjier 30 : " An Act relating to Bills of Lading." This Act seems to entrench upon the jurisdiction of the parliament of Canada to legi.slate in respect to trade and commerce. It recites that " by the custom of merchants a bill of lading of goods, being transferable by endorsement, the property in the goods may thereby pass to the endorsee, but nevertheless all rights in respect of the contract contained in the bill of lading continue in the original shipper or owner, and it is expe- dient that such rights should pass with the property." The Act then proceeds to pro- vide what the effect of the endorsement of a bill of lading shall be as regards the right under the contract contained in such bill of lading. The policy of the Act is unquts- tionablv sound. It would seem well that such a chaage should be embodied in an Aci of the "parliament of Canada and although thj compefency of the provincial legisl - • i in this regard is doubtful, the undersigned uoes not therefore recommend the exercise of the power of disallowance. "~nn 51 VICTORIA, 1888. 583 rtain cases. 3ellency. aor in Council may by ture lias jurisdiction in disease, the entry or n Nova Scotia, and the from railway carriages ne." ve power to the Parlia- )ing. It would clearly ctment relating to tho tside the province ; but to transport from one tion on the suVjject of Ijo one of considerable -Ircady been established /anada, the undersigned enactments relating to ^ person upon any trust iviction of such trustee, k placb. bject clearly relates to slation for a provincial Lieutenant-Governor of at the next meeting of !al will be recommended ommend disallowance of 1 Statutes, "Of County I make by-laws in respect lie county and licensing s within the province. its~operation, neverthe- idity, in view of the ex- i and commerce. The 15, of section 269, of irliaraent of Canada to he custom of merchants > property in the goods respect of the contract r owner, and it is expe- ■ then proceeds to pro- be as regards the right ;y of the Act is unquos- be embodied in an Aci e provincial legisl- „ iommend tlie exercise of Chapter 37 : " An Act to amend chapter 106, Revised Statutes, ' Of Juries.' " The enactments respecting grand and petit jurors may, to some extent, affect " procedure in criminal cases," but as such enactments have not been excepted to heretofore, the undersigned does not feel called on to comment on this Act in any special manner. Chapter 40 : " An Act respecting the Liquor License Act, 1886." The undersigned had the honour to report to your Excellency's predecessor on the 15th day of September, 18u7, upon the constitutionali*^y of certain provisions contained in the statute of which this i^ct is an amendment, in re' Governor General in Council on the 5th July, IsUfJ. Department of Justice, Ottawa, 31st May, 1890. To His Excellency the Governor General in Council :— The undersigned has the honour to submit for consideration his report on the foUoI'ng Acts p^^^^^^^^ by the legislature of the province of Nova Scotia m the session ""^^^Chap. 9. An Act to amend and consolidate the Acts relating to the County Courts. ?TheTe IS^:^^:^:^::':^ for each di.trict, who shall reside within the district for which he is appointed, and shall hold office during good behaviour. "Ever78uch judge shall be ; barrister of the Supren.e Court of the province, of not ^"^ ttrnJo'^hCfrqt'nt/bet called toattemptson the part of provinciallegislaturej to lii^ttL power to a^^^^ Judges vested in your Excellency under the provisions ot «.\tLuXNoth America Act!" and this legislation is subject to ^1-^ objecti^^ The provision is, however, not new or important, and in "« ^^'^^^j;", ^'«. f^^^^^ on your Excellency or your successors in office. The Act may, therefore, be left to its operation. respecting the County Judges' Criminal Courts. ?5Act was passed for t^ purpose of enabling the province of Nova Scotia to takelS^ntageofL provisions of chapter 47 of 52nd Vic. (C.nada) intituled : "An ■!" •1! 686 NOVA SCOTIA LEGISLATION Act to make further provision respecting the Speedy Trial of Indictable Offences " whereby " The Speedy Trials Act " then in force was extended to the province of New Brunswick, Nova Scotia and Prince Edward Island. Tlie undersigned has reason to believe that the extension of the system of speedy trials has been of great service in reducing the cost of the administration of criminal justice in 2?ova Scotia, and in making it more prompt than it had ever been before. Cap. 57. An Act to amend chapter 159 Revised Statutes of Nova Scotia, third series, entitled : " Of offences against religion." A question has arisen as to whether the statute which this Act purports to amend, is within the competency of a provincial legislature. This Act professes to regulate the penalties for the violation of the provisions existing in Nova Scotia before confederation, on the subject of the observance of Sunday. The doubts which may be entertained as to the constitutionality of the enactment may be left, without inconvenience, to be decided by the courts, and the undersigned therefore recommends that the Act be left to 'ts operation. Cap. 114. "An Act to furt' jr amend the Act to incorporate the Nova Scotia Telephone Company, limited. The object of this Act is to ratify and confirm an agreement entered into between the Nova y tia Telephone Company, limited, as a company, incorporated by provincial charter, an "ell Telephone Company of Canada, a company incorporated by a Dominion chu The result of the agreement is practically to confer upon the latter company, enlai^ powers and franchises, and may be therefore in effect an attempt to amend tne provisions of the Dominion Act of incorporation. The undersigned is of opinion that this is beyond the powers of a provincial legis- lature, hut as the Act in question is one dealing with private rights, the questions involved may be conveniently settled by the courts should litigation arise, and the undersigned therefore recommends that it be left to its operation. Ca^). 119. An Act to amend chapter 131 of the Acts of 1888, intituled : " An Act NO incorporate the New York and Nova Scotia Iron and Railway Company," limited. Cap. 126. An Act to incorporate the "Amherst Street Railway Company," limited. Cap. 143. A'. Act to incorporate the " Lake View Mining Company," limited. Cap. 144. An Act to incorporata the "Dawes Gold Mining Company," limited. Cap. 147. An Act to incorporate the " American Steam Compressed Fish Company," imited. 148. An Act to incorporate the " Eureka Manufacturing Company," limited." 150. An Act to incorporate the " Dufferin Gold Mining Company," limited. 151. An Act to incorporate the "Cape Breton Fish and Trading Company." Cap. Cap. Cap. limited. Cap. 157. An Act to incorporate the Nova Scotia Condensed Milk and Canning Company," limited. Section 3, of chap. 11 5^, contains a provision in reference to the rights and capacity of aliens, which has been frequently objected to by the undersigned in Acts of incorporation. Section 5, of chap. 126 ; sec. 16, of chap. 143 ; sec. 17, of chap. 144 ; sec. 13, of chap. 147 ; sec. 6, of chap. 148 ; sec. 9, of chap. 150 ; sec. 20, of chap. 151 ; sec. 14, of chap. 157, are provisions purporting to confer on the companies to which these Acts re- late, powers to make bills of exchange and promissory notes, a matter in respect to which, as has been frequently pointed out, the parliament of Canada alone has legislative jurisdiction. In view, however, of the provisions of this subject in the Canadian Statute of 1890 in relation to bills of exchange and promissory notes, the undersigned recommends that they be left to their operation. Respectfully submitted, JNO. S. D THOMPSON, Minister of Justice. 53 VICTORIA, 1890. 587 dictable Offences" 16 province of New ! system of speedy tration of criminal er been before. J^ova Scotia, third purports to amend, of the provisions ervance of Sunday. bhe enactment may dersigned therefore ) the Nova Scotia bered into between rated by provincial incorporated by a ifer upon the latter Sect an attempt to a provincial legis- jhts, the questions bion arise, and the itituled : " An Act mpany," limited. Company," limited, jany," limited, ipany," limited, ied Fish Company," Company," limited." impany," limited. Frading Company." Milk and Canning rights and capacity jigned in Acts of p. 144 ; sec. 13, of ip. 151 ; sec. 14, of hich these Acts re- in respect to which, one has legislative ian Statute of 1890 1 recommends that the NOVA SCOTIA— 53rd VICTORIA, 1890. (4th Session— 29th General Assembly.) Report of the Honourable the Minister of Justice <^PP;o-fby His ErcelUney ^ Governor General in Council, on the iUst April, 1891. Department of Justice, Ottawa, 2nd April, 1891. To His Excellency tlie Governor General in Council : of state on the 25th of April last, ^/ |»ll W. J. Stairs, President. Hon. Attorney General Longlcy to the Hon. the Minister of Justice. Halifax, 28th September, 1892. Dear Sir, — I have carefully considered the memorial signed by Henry S. Poole and others, which your deputy has under your directio-is forwarded to me, with an intimation that you would be pleased to have any observations I might see fit to make in reference thereto. In the first place, it is hardly necessarj that I should point out that the manage- ment of the mines under the British North America Act is vested exclusively in the provincial legislatures, and that therefore they have the sole and exclusive right to legislate in reference thereto, so long as that legislation does not trench in any way upon the laws which the Parliament of Canada is competent to make. As the Act complained of in this instance is an Act relating solely to the management and control of the mineral interests of Nova Scotia, and is simply a compilation of the Acts already upon the Statute-book with a few amendments, I certainly am unable to comprehend any reason why a serious proposal should be made to his Excellency the Governor General,' to interffere with its operation. Second, the particular clauses to which objection is made are those relating to the royalties upon coal. It will be scarcely necessary for me to remind you tiiat the royalties upon coal in Nova Scotia constitute the largest scree t)f provincial revenue outside of the federal allowance, and thei-efore any interference on the part of the federal autho- rities with the prerogative to obtain revenue from this source would be such a direct and vital interference with the rights of the province, as to make government practically impossible. The whole financial policy of a province misht be based upon the admini- ■R: 58 VICTORIA, 1892. S93 Ithe proposed Acts Honour to withhold int. tnts. thf.ir attorney. my, Limited, \eir attorney. t/ieir attorney. ■a solicitor. r and Manager. '■ President. apany, Limited, f Justice, ptember, 1892. by Henry S. Poole ded to me, with an ight see fit to make it that the manage- I exclusively in the exclusive right to h in any way upon ;be Act complained and control of the Acts already upon o comprehend any Governor General," 3se relating to the J tliat the royalties revenue outside of the federal autho- d be such a direct rnment practically upon the admini- stration f)f its chief source of revenue, and any attempt to abridge this right might lead to provincial bankruptcy. Tho right to raise nneiiuo by direct taxation of which the mining royalties are a species, is an undoubted right, and or>e whicii would involve the gravest coiise(iuencex if interfered with in tho slightest degree. Third, one of the objections is that the Act is uuide retroactive in its operation. This is very easily explained. The government of Nova Scotia determined upon the policy of readjusting the coal royalties in the early part of Fel)ruary, and sent notices to that eft'ect in writing to all the coal owneis in Nova Scotia. This was a distinct intima- tion to them that legislation woul.l bo introduced by the government at the ensuing session, fixing the royalty on all coal removed from the mine at ten cents per ton royalty, and they were notified to make their arrangements for the season's work accordingly. In the Act chapter .3 of the Acts of 1892, you will find that by sections 2, .'J and 4, provision is made that in all cases whore contracts, either written or of a verbal char- acter, hail been entered into prior to the 23rd of February, which was ten days after the notice bad been mailed, that tho royalty should bo paid under the old basis. I think that this removes the suspicion of unfair dealing on the part of the government with any of the coal owners. Fourth, the government might fairly take the ground in relation to this api)lication, that the legislation complainoil of, being strictly and uncjuostionably within the legis- lative rights, it is not cvlled upon to explain, justify or defend the provisions of its mea- sure. Independent le^isla'ivo authoiity I interpret to mean the right to legislate with- out restriction within the compass of its legislative powers. This includes the rij^ht to introduce legislation that some people may think wrong. In fact, no Act of parliament has ever yet been pa.ssed that has not met with opjMisition and ailver.so criticism from some, and most legislation is denounced by i.alf the population. But I do not think the principle could be entertained for a moment, tl.rt this constitutes a reason why any party should interfere tx> override the rights and powers which the con- stitution of the country has vesteil in any legislative body. Fifth. Nevertheless, as the memorialalleues breachof faith and an excessof legislative authority, I am quite content to submit for the consideration of his Excellency the Gov- ernor General, an answer to all these imputations, which I do not hesitate to .say are without a shadow of foundatii. The first grunts isHuuod liy the government of Nova Scotia after it became ©stablisliedas a province, reserved nothing in thf way of iiinerais, l)Ut gold, silver and other precious metals. Later on, about the year 1704, coal was <'xpr(\ssly res(;r\ed in the old grants and still later, alH)ut the year 180M, iron and other minerals were like- wise reserved in the grants. For all practical purposes, it may be said that the coal in all the mines in Nova Scotia has been reserveul in grants issued in tlie localities where these coal formations are found, so tliat the right of the government to impose rentals or royalties <»ii the product of coal is universal. On tiie 2r)th day of August, 18'JG, by letters patent, express'-d to be made by His Maje/.ty King George TV., certain mines and minerals in the province of Nova Scotia were demised to \l. 11. H. Frederick Duke of York, for the teim of sixiy years, at the rents and royalties tlierein mentioned, which rents I believe amounted to X.S,000 a year. Subsequently an agieoment was entered in on the rjih day of September, 1826, whereby certain mines and minerals in this province which were not included in, or were excepted out of the said letters patent, were demised to John Bridge and others, who had received an assignment from the Duke of York of his interests in his lease from this province. After a time the government ' parliametitof Nova Scotia became satisfied from the development of the coal n industries of this province that a great mistake had been made and a great ,;e done the province in thus parting with its entire interests in valuable coal deposits for such a limited rental, and efforts began to Vje made in the legislature to have this improvident arrangement set aside. Negotiations of /arious kinds were entered into with unsatis- factory results, until in 1853 the legislature of Nova Scotia pa.ssed an Act, the purport of which was that all leases of coal mines that were not being effectively worked should be liable to forfeiture under which it was proposed to re-acquire the title to all those portions of the coal areas of Nova Scotia, that were not being actively and effectively worked by the General Mining Association of England, a body corporate which had acquired the rights of the Duke of York and other patentees. In 1857, however, a more direct attempt to get the matter settled was made and two delegates, the Hon. J. W. Johnson and A. G. Archibald, were sent from this province to England, to negotiate a basis of agreement between the government and the General Mining Association whereby a more satisfactory arrangement could be entered into. They came to an agreement which was in substance as follows ; — The General ]\Iining Association, were to have leases, which were to extend to August 15, 1886, the period of time at which the original lease would expire, of throe areas in the Island of Cape Breton, one in the county of Pictou and two in the county Cumberland. Some of those areas embraced several square miles. They were to pay a royalty of 6d. currency per ton on all quantities up to 250,000 tons and 4d. r er ton on all quantities over that. It also provided that the province should not allow ,any person to mine coal in Nova Scotia at a less royalty or on more favourable terms, and it was also covenanted that the province should not, without the consent of the association, impose an export duty on coal. All the other coal areas of Nova Scotia were by this agreement surren- dered and transferred absolutely to the province of Nova Scotia. rr». BB VICTORIA, 1892. 890 >roiich of fftith with 10 K'giHialuro ? Mr. jYova iicotia. ' Mines, aft or it Iwcame JUt <,'ol(|, .silver and H'.ssly reserved in iiiiiHTiiIs worn like- I ttiiittlie (;o(il in all ciilitifs whom those impose rontals or ros.s"cl to be made II tho province of )rk, for th(» term li ronts I JMilirvo iitered in on tlie Is in this province tent, were domiHod )iikoof York of his parliarnontof iiuluatries of .;e done the eposits for such a k'o this improvident intfj witli iin.satis- II Act, the [)iuport ^ely worked should lie title to all those ely and effectively porate which had 3d was made and •e sent from this jvcrnment and the t could be entered ere to extend to d expire, of throe two in the county 'hey were to pay 00 tons and 4d. to mine coal in also covenanted impose an export greement surren- Aftor this agreement was oarriod into ofToot, tho lojfisliituro provitloil that tho same royalty should bt» imposed uiKtn tho hvssoes of other coal mines, a.s wore fixed as the maximum rate for tho (Jeneral Mining AsHociiition. 1 have no doubt that tho legisla- ture ! '■' % m M ,,ii li 698 NOVA SCOTIA LEGISLATION The Chief Commissioner of Mines as officially reported in the debates on the Royalty Bill introduced Ijy him said : " Now, sir, the object of the government has been to get as nearly as possible an equivalent rate to the present rate of 9j"g cents per ton, a uniform rate that wiil yield an equivalent revenue to the present rate." The Hon. Mr. Fielding said ; " The bill in the ir.aiu was satisfactory to mine owners. The real difficulty that he saw suggested was, that the government might be making a mistake and that they had not the necessary information. He was going to suggest that the bill might be passed, with the provision that all leases issued should contain a stipula- tion that the royalties might be increased or diminished, which would leave the House free to make a change next year ; unless some such provision was made, parties taking leases might complain." In accordance with the Hon. Mr. Fielding's suggestion, a clause was added to the bill reading taus : 4. " All leases of coal mines issued after the passing of this Act shall contain a provision that the royalties may be increased, diminished, or otherwise changed by the legislature." In section 2 of the bill the royalty on coal was fixed at 7^ cents per ton. 7. Your petitioners are advised that the above quoted section 4 applies only to new leases, not to renewals, and they submit that the Chief Commissioner of Mines appears to have been of that opinion, because after the passing of that Act he issued some renewals which did not contain the provision in question, and your petitioners submit that if it could be legally omitted in some renewals, it could not be legally inserted in others. " All leases " must either include "all ' renewals, or be restricted to new leases. The Chief Commissioner of Mines apparently took the ground that " all leases " did not mean all renewals, hence he should not have inserted that provision in your petitioners' renewals. And your petitioners submit that they should not be bound by the said pro- vision in their renewals unless its insertion was required by the Act of the legislature. They further submit that if any Act of the legislature authorized the insertion in their renewals of a provision that the royalty might be increased beyond the rate named in their original leases, it would be a repudiation of the legislation of 1873, already referred to. 8. Ever since the year 1885 your petitioners have paid royalty at the rate of 7 J cents per ton, as specified in their renewals, but under an Act of the legislature passed in April, 1892, the rate of royalty has been increased to ten cents per ton to take effect from the 23rd February last. Further, section 118 of the said Act provides that the increased rate may be further increased by the legislature. Thus, although in 1873 the legislature of Nova Scotia by their Act assured your petitioners, as holders of coal leases, that they would be entitled in 1886 to renewals for twenty years upon the same terms as contained in their original leases, the same legislature in 1892 increjised the royalty 33^ per cent above the equivalent of the rate specified in their original leases and in the renewals thereof. This legislation in 1892 your petitioners submit, is a gross invasion of their legal rights, and if allowed to stand is calculated to destroy all confidence in rights granted by the legislature. Your petitioner-! therefore humbly pray that the said section 117 of chapter 1, 1892, in 60 far as it relates to coal ; the said section 118 ot said chapter 1, and the said section 1 of chapter 3, 1892, may be disallowed. And your petitioners as in duty bound will ever pray, tkc. Glace Bay Mining Company Limited. by Edward P. Arciibold, President. James R. Lithgow, Manager. 55 VICTORIA, 1892. ates oil the Royalty timent has been to ,'(j cents per ton, a !." The Hon. Mr. owners. The real making a mistake to suggest that the contain a stipula- leave the House uJe, parties taking D was added to the Act shall contain a ise changed by the s per ton. applies only to new r of Mines appears Act he issued some r petitionera submit legally inserted in •icted to new leases. ' all leases " did not in your petitioners' ind by the said pro- of the legislature. e insertion in their the rate named in 873, already referred y at the rate of 7J le legislature passed er ton to take effect ct provides that the Ithough in 1873 the holders of coal leases, >on the same terms icreased the royalty nal leases and in the is a gross invasion poy all confidence in )n 117 of chapter 1, pter 1, and the said lident. IGOW, Manayer. Correspondanre beticpen the Honourable W. S. Fiflding and Mr. J. Lifhgow, Tn'asurrr and Manager Glot-e Bay Mining Coiiipatiy. Mr. Litkgoiv to lion. W. S. Fie/ding, Deah Sih, — It occurs to me to make one more appeal to you and through you to the government of Nova Scotia, to do the (jilace Bay Mining Co., Ltd., an act of justice. If your legal adviser will show that we are not justly and legally entitled to what I am about to ask of you, then we must be content. Our case is briefly as follows : - 1. Prior to 1886 we held and still hold, three coal lea.ses which expired in 1886, but by the legislation of 1873 were renewable for three periods of twenty years each, up to 1946, upon the terms, conditions and covenants of the original lease.«. 2. There was nothing in our original leases touching a change in the royalty. It was fi.ved at 6d. per ton, with slack free. 3. In 1873 and up to at least 1883, we were entitled to renewals up to 1946, with royalty fixed at the rate named. 4. The foregoing being admitted to be correct, without a breach of provincial faith, we were entitled to such renewals in 1886. Allow me to illustrate my contention. Suppose I owned a large wheat farm and gave you a lea.^e of it in 1865 for 21 year^ to tf rminate in August, 1886, at a rental of 7^ cents per bushel of wheat raised and sold by you. Then, suppose that in 1873, I assured you by a written document that you, by giving me six months' notice prior to August, 1886, would become entitled to renewals of your lease for 20, 40 or 60 years from 1886, on the terms of your original lease. What would you think of me if, two or three years prior to 1886, I wrote you that you could have renewals, but they must contain a provision that the rental may be raised as I may see fit ? Would yoxi regard me as an honest man 1 Would you not call iny second proposal repudiation or .some- thing like that? But again, suppose, as you could not help yourself you accf.[)ted a renewal with that provision, in.^erted, thinking probably that the rent would never- be raised, the owner being a just man, and in 1892 you were suddenly notified by me that the rent up to 1906 would be 10 cents per bushel instead of 7^ cents; and up to 1926 it would be not over 12^ cents ; and after 1946, well, I would not say what it might be ; how would you feel towards me ? For a do.'.en years »it. least vou believed you were sure of renewals up to 1946 at 7 J cents per bushel, and in 189 ,ou find you cannot get them from me for the periods I have promised, even at 33.^ per cent advance on the original rental, could you regard me as an honourable man? BetV)rH you sufficient answer to your letter. „ i • < ^u- 1. It is true, as you state, that your original leases referred to contain nothing touchiiit,' a change in the royalty." •J. Hut it is also true, although you do not state it, that those original leases con- tained nothing touching a renewal of the leases ; consequently, as far as any contract between your company and the government was concerned, your rights ceased and expired in 1886, and if you had tlien received no leases at all you would have had no cause of complaint. 3. The mining laws had, however, been amended from time to time, not as a mat- ter of special contract with your company, but in the general interest of the province. You seem to think that you have a right to pick out of twenty years of legislation such parts as you like and claim the benefit of them, while ignoring all the rest. It should not be necessary for me to argue against such a view. If, having no rights whatever under your leases after 1886, you desired to claim rights under the general law, you had to deal, not with selected parts of the statutes, but with the whole law. You were not bound to continue to work your mines. You were at liberty to withdraw from the business on the termination of your contract. But you preferred to apply for new leases under the law as it then stood, including a provision respecting the right of the government to increase the royalty. You did so apply, the leases were granted, and you went on your way rejoicing in privileges which the legislature had generously given you, but which it might have withheld altogether without eftbrding you a shadow of cause for complaint or breach of contract. That you should have applied for these privileges, accepted them and enjoyed the advantages of them for nearly six years, and now assail the legislature which gave them to you, seems to me to be most unfair. If in any " appeal to the people " which you desire to make, you wiU include this statement of the case, I shall be content to await their judgment. I have the fullest confidence that the course pursued by the government in this matter has been in the public interests, and that ample justice has been done to every private interest affected by the legislation. Yours faithfully, W. S. FIELDING. Mr. J. R. Lilhgorv to Hon. W. 8. Fielding. Halifax, 19th May, 1892. Dear Hik, I beg to acknowledge your valued favour of the 18th and to reply 1. It is true that our leases, in common with all other leases issued between 1858 and 1866, contain nothing touching renewals, but you are certainly wrong when you say "conse increase the rate of royalty, it did wish to declare most emphatically the I'ight to increase it at any future time. The government's views in this respect met with the unanimous approval of the House of Assembly, and I am quite sittisfied that they have the approval of the public at large. If there has been any breach of faith in this matter it has riOt been on the part of the legislature or government. They have kept faith. The only attempted breach is on the part of those who, after obtaining through the favour of the legislature privileges to which they htul no contract right, now appear to wish to repudiate their own agree- ments, and assail the legislature whiclt dealt so liberally with them. Yours faithfully, W. S. FIELDING. Mr. J. R. Lithgoiv to Honourable W. S. Fielding. H.^LiFAX, 20th May, 1892. Dear Sir, — Your kind favour of the 19th was read on the following evening,and as only good can come out of mutual desire to know the truth of the subject we are dis- cussing, I beg to again trouble you. You say, after reading my letter of the 19th, that the government were bound by legal enactment to renew the lea.ses we held. That the legislature of 1866 and 1873 were under no obligation to pass the Act entitling lessees to renewals any more than to authorize the issue of original leases, no one has ever dis- puted. The government could only give what the legislature authorized, and hence, if the legislature in 1873 had not enacted that the holders of coal leases issued since 1858, and expiring in 1886, were entitled on giving six months' notice, prior to August, 1886, to obtain three renewals of twenty years each up to August, 1946, we could not have claimed them. And, again, if the legislature had not in the same section enacted that the said renewals were to be issued upon the terms, conditions and covenants of the original leases, we could not claim that the insertion of a clause in the renewals that the royalties might be increased was a breach of legislative faith. Nor could we claim that the increase of one third, that is from 7J cents to 10 cents per ton, is a most flag- rant breach of the legislation of 1873, under which we were entitle.! to lea,ses to terminate in August, 1946, at the old rate of royalty, namely, ^^-^ cents per ton on all coal except slack, a rate revised and altered in the legislature of 1885, hut not raised, You do not seem to appreciate the fact that a legislature cannot without repudia- tion, or a breach of faith, enact in 1892 that lessees of coal mines must pay more rent than the same legislature had in 1873 enacted the lessees should pay up to 1946. A legislature may by enactment put lessees in a better position than they previously were, but they cannot, subsequently, with a breach of faith, make their position worse during the periods of the leases issued to them. A lessor of property has the right to lease it for certain number of years at a certain rental, say from 1862 to 1886 at $7,500 a year. He has also a right to assure the lessee, in say 1873, that he can have renewals of his lease at the same rental, for three periods of twenty years each from 1886 on giving six months' notice, but he cannot, withoi';t a breach of faith, subsequently, either refuse his promised renewals, or give them with a clause inserted that the rent may be increased. Above all, he cannot during the first renewal period given notice to the les- sees that the rent shall be increased from $7,500 to $10,000 a year until 1906, after which and untd 1926 '\h will not exceed $12,500 a year. I say, he cannot ; well, I mean he cannot honourably, w'.atever he may be able to do legally. You will have no diffi- culty in seeing f-om .is illustration what a gross breach of faith the legislature at their last session .,;y.nmitted, in raising our rental from 7^ cents to 10 cents per ton, seeing they had in 1873 guaranteed us that until 1946 it should r'^t exceed 7^ cents, which you will admit is the full equivalent of the original rate. The fact that the legislature in 1885 autiiorJ^.ed the insertion of a clause in leases issued thereafter, to 604 NOVA SCOTIA LEOISLATION the effect^ that the royalty might be raised, I fully admit, but T contend timt said clause could not be inserted in the renewals referred to in the lej^islation of 1873 without a breach of faith. It could be inserted in new leases, but not in renewals which were to be issued upon the terms, conditions and covenants of the original leases, hence, with no increase of royalty. Again, no one knows better than you do that the said clause was passed by the legislature, simply because it was uncertain whether or not the altered rate of royalty — 7^ cents on all coal, round and slack — would be the equivalent of 97 cents on round and slack. Any increase over the old rate, th* debates clearly show, especially the statements of yourself and the Hon. C. E. Church, was distinctly rejmdiated. The clause was enacted so that if 7h cents yielded more revenue than the old rate, it might b" diminished by a quarter of a cent ; and if it yielded less than the 1)7 cents, it might be increased sutticiently to make it the equivalent of the original royalty. It was not designed to legalize any increase of the original rate per ton, either then or at any future time. You cannot show from the debates which led to the enactment of the clause in question, that the legislature did wish to declare most emphatically the right to increase it at any future time. The government or such members of it as spoke during the d«bate«, never hinted that the object of the clause was to declare the right to increase the 7J cents beyond what would make it equivalent to the old rate. Admitting that every outstanding lease which contained any right of renewal, con- tained also a specific declaration of the right of the government to raise and alter the royalty in and nfter 1886, you should bear in mind that there were in 1873 outstand- ing leases issued subsequent to 1858 which contain no right of renewal, and no declara- tion of the right of the government to revise or alter the royalty in and after 1886, and that the holders of such leases — the Glace Bay Mining Company among others — became by the Act of 1873 entitled to renewals on the terms, &c., of the original lease, hence at the old original rate of royalty, or as amended in 1885, but without any clause as to revising, altering, diminishing or increasing the royalty, and that hence the holders of such leases did not receive in 1886 such renewal as they were legally entitled to, seeing they contained the clause under which the government had claimed the right to exact until 1906, \ more royalty than the lessees were formerly entitled to pay. Again, the leases which were the same originally as the Glace Bay Mining Com- pany's issued prior to 1866, but which were renewed in 1868, and whose renewals con- tain the provision that i he royalties might be revised and altered in or after 1.886, were, I hold equally with leases not then renewed, entitled under the legislation of 1873 to renewals until 1946, on the terms, conditions and covenants contained in the original leases, hence with no provision that the royalty might be revised or altered, increased or diminished. That the royalty might be diminished, or changed, or altered, as long as it was not increased, I fully admit ; just as a landlord may freely lower a tenant's rent, or make it payable quarterly instead of monthly, without any breach of faith ; but he cannot increase it during the term of his lease. No more may the legislature increase the royalty on those who in 1873 held leases renewable till 1946, at the rate of royalty named in their original leases. . It is true that the Glace Bay Mining Company and other lessees who applied for re- newals at least six months prior to August, 1886, obtained them with the royalty specified at 7 J cents per ton and did not object at the time to the clause that the royalty might be increased or diminished, supposing it was legally inserted, and that anyhow the royalty would not be increased ; but, surely, the real binding contract is not a document issued from the mines office, but the Acts of the legislature, construed in accordance with consistency and good faith ; for the written lease crin only be viewed as binding so far as it has the sanction of the legislative enactments upon which its validity depends. You speak of privileges we have received since 1886 ; perhaps you will kindly specify them. I know of no privileges we have received since 1886, from either the government or legislature. Our original leases were obtained nearly thirty years ago. The legislation entitling us to renewals up to 1946, at the old rate of royalty payable yearly, was passed in 1873. All that we have to thank the government and legisla- ;)W. contend tluit said ^islation of 1873 it not in renewals 'lie original leases, vas passed by the rate r)f royalty — cents on round especially the •epudiated. The old rate, it might the U-7 cents, it iinal royalty. It either then or at enactment of the latically the riffht I'ls of it as spoke IS to declare the it to the old rate, of renewal, con- ■aise and alter the in 1873 outstand- il, and no declara- 1 and after 1886, y amonff others — the original lease, but without any nd that hence the hey were legally nent had claimed rmerly entitled to Bay Mining Com- lose renewals con- ■ after 1.886, were, islation of 1873 to cd in the original altered, increased ir altered, as hjng ' lower a tenant's each of faith ; but gislature increase he rate of royalty dio applied for re- with the royalty e that the royalty that anyhow the s not a document 1 accordance with as binding so far iity depends, you will kindly i, from either the thirty years ago. royalty payable nent and legisla- 55 vicTo 1892. 605 tu re of 1802, or since 1886, for, is a breivch of public faith heretofore unheard of in Nova Scotia, and most injuriously affecting the value of our coal i)roperties. When the time comes for the Commissioner of Mines to collect 10 cents per ton royalty on run of mine coal instead of the 7.1, cents fairly due, it may be tested whether or not the recent Mines' Act can be enforced If it can, then another legislature may cancel our leases, or make the royalty 50 cents per ton, notwithstanding the legislation of 1873. Yours respectfully, J. n. LITHOOW, Treaimrer. Hon. W. S. Fii'ldiny to Mr. J. Ji. Litfii/oir, Halifax, 25th May, 1892. Deah Sir, — I have neither time nor inclination for continuing a iliscussion with you, which can only amount to a reiteration on lioth sides of what has ali't»ady lieensaid. Every material point in your letter of 23rd inst., has been dealt with in my letters already addressed to you. As you did not receive or seek any leases under the law of 1873, nearly every word you say concerning that law — and that means the greater part of your letters — is beside the question. You applied for and obtained lea.ses under the law as it stood in 1886, which law distinctly recognized the right of the legislature to increase the royaltj'. If the closing paragraph of your letter is meant to indicate that your company intend to attempt to repudiate its contract and set the law at defiance, I need say nothing more than that the government are not unaware of the power with which the legislature has clothed them in regard to such a case. Yours faithfully, W. S. FIELDING. Messrs. Drysdale, Nenicomhe d: Mclnnes to the Honourable the Serretary of Slate. Halifax, 3l8t October, 1892. Sir, — On behalf of the Acadia Coal Coni'^any, the Cumberland llailwaj' and Coal Company and the Caledonia Coa) and Railv ay Company, we beg to inclose a petition for the disallowance of two statutes pa.s3e(l at the last session of the legislature of this province, entitled " An Act to amend and consolidate the Acts relating to Mines and Minerals," and, " An Act respecting the royalties on Coal." The said companies have signed the petition on the 8th page of the document inclosed. We are instructed to request that it be referred to the Governor General in Council. We remain, etc., DRYSDALE, NEWCOMBE k McINNES 606 NOVA HCOTIA I-KOIHIiATION Petition of " Tho Arndia Coal Company," the " Cumberland Raihray A: Coal Company,^ and the " Calfd'mia Coal & Raihvay Cotrpany," to Hin Exrellency the Govertip}' (reneral in Council. To I/in ExcUency, thf Riyht Honourable Sir Frederick Arthur Stanley, Baron Stanley of Preston^ rf'c, Ac, Gorerruyr General of tlie Dominion (f Canada, in Council : The petition of the undersigned lesssees of Coal Mines in the province of Nova Scotia, humbly showeth ; That a statute has been enacted by the legislature of the province of Nova Scotia, entitled, " An Act to amend and Consolidate the Acts rehiting to Mines and Minerals," being 55 Victoria (189*2), chapter 1. The said Act received assent on the 30th April, 1892. The 117th and 118th sections of the said Act are respectively as follows : "117. All ores and minerals (other than gold or gold and silver) mined, wrought or gotten under authority of licenses or leases granted under the provisions of said chapter 7 of the Revised Statutes, fifth series, or of any Act heretofore passed by the legislature of this province, shall be subject to the following royalties to the crown for the use of the province, that is to say : " {a.) Coal. Ten cents on every ton of two thousand two hundred and forty pounds of coal sold or removed from the mine, or used in the manufacture of coke, or other form of manufactured fuel." "118. All leases of coal mines issued after the passing of this Act shall contain a provision that the royalties may be increased, diminished or otherwise changed by the legislature." A statute has also been enacted by the same legislature entitled, " An Act repect- ing the Royalties on Coal," being 55 Victoria (1892), chapter 8. This Act also received assent on the 30th April, 1892. The first section of the last mentioned Act refers to section 117 hereinbefore quoted and is as follows : " 1. The royalty of ten cents per ton on coal as fixed by the said section, shall be held to have taken effect on the 23rd day of February, 1892." The first mentioned Act provides in the said 117th section, for an increase of thirty- three and one-third per cent in the royalty to be paid by your petitioners and by all corporations or persons operating coal mines in Nova Scotia under existing leases. Your petitioners are advised n."-id submit that the said sections hereinbefore set forth ar ■ contrary to the fundamental principles which should control the exercise of legislative power, and that they constitute a gross and unjustifiable invasion of the vested rights and interests of your petitioners ; that said sections unwarrantably and inequi- tably violate and disregard the obligation of contracts solemnly entered into 1 jtween Her Majesty the Queen, represented by the Commissioner of Public Works and Mines for the said province, of the one part, and your petitioners of the other part, and if allowed to stand their eflFect will be to seriously impair, if not destroy, the confidence which should prevail in the continuance of rights granted by the said province ; and further, that not only do the said sections have the effect of so infringing vested rights and impairing the obligation of contracts, but by the last mentioned section such eflFect is declared to be retroactive. The foregoing grounds of complaint against the said legislation are, it is submitted, upheld and justified by the following facts and reasons : Your petitioners previously to 1866 held valuable 'coal properties in Nova Scotia under original leases thereof granted by Her Majesty. The rate of royalty reserved by such leases was sixpence per ton of 2240 pounds of round coal sold, slack coal being exempt from royalty. 55 vuToiUA, 18'J2. G07 <(• Coed Company,' rri'Uency hi/, Bnron Stanley 'a, in Coiniril ; province of Nova ice of Nova Scotia, noH unci Minerals," 11 the 30th April, follows : ir) mined, wrought lions of said chapter 1 by the legislature rown for the use of )d and forty pounds coke, or other form Act shall contain a ise changed by the 1, " An Act repect- is Act also received hereinbefore (juoted id section, shall be n increase of thirty- titioners and by all xisting leases. iBG hereinbefore set trol the exercise of vasion of the vested mtably and incqui- iered into I jtween Works and Mines other part, and if roy, the confidence said province ; and iging vested rights section such effect ire, it is submitted, ties in Nova Scotia royalty leserved by k coal being exempt By 29 Victoria (IW^iO), chapt«'r 9, section 1, of the Acta ht Nova Scotia, it is provided as folluws ; " 1. Lessees of eoal mines in this provine(», their executors, adiriinistrators, and assigns, holding leases from the Crown, or from ciio t'hief Coimnissioner of Mines, made since the first day of January, A. I). 1H.")H, or hereafter to he made, siiiill, upon gi\ing notice in writing tt> the ('hief Commissioner of Mines, at lejist six months previous to the expiration of such leases, respectively, of their intention to renew such lenses respec- tively f'r a further period of twenty years from the exjiiration thereof, Im; eiitilled to a renewal thereof for such extended term upon the same terms, conditions and covenants as contained in the origin il lease, and in like manner upon gi\ ing a like notice before the expiration of such renewal term, to a second renewal and extens'on of term of twenty yeaiv, from and after the ex|)iration of such renewal term, and in like manner upon giving like notice before the expiration of such seiond renewal term to a third renewal, and extension of twenty years from and after the expiration of such second renewed term, provi(h-d at the time of gising such notices, and the expiration of such terms respectively, the siiid lessees, their executors, lulministratois atid assigns, are and shall continue to be liona tide working the areas comjirisecl within their respective leases and complying with the terms, covenants and stipulations in their respective leases contained, within the true intentand meaning of section 101 of th- vided also that the legislature shall be at liberty to revise and alter the royalty im- posed under such lease in or after the year 188G. ' In pursuance of the last mentioned statute your petitioners, together with other coal lessees in the said province, procured renewals of their said leases. The rate of royalty reserved by such renewals was the same as in the said original leases, and such renewal leases also contained provisions f.ir further renewals in their terms of the section last hereinbefore (juoted. All leases renewed under the provisions of the said last mentioned section, as well as all other coal lea.ses issued in the said province previously to 2r)th August, 1H86, expired on that day, and according to the terms of the said section, and the provisions of the said leases, were renewable on that day, and on the corresponding dates in 11)06 and 192G. Your petitioners are advised, and they submit, that according to the true con- struction of the said last mentioned section, and of the said renewal leases, which con- tained provisions in accordimce therewith, the rate of royalty thereby reserved could be revised only once, and that such revision could be made only at one of the renewal periods, namely, either in 188G, 1906 or 1926. If such construction is not to prevail, then, adopting the construction most un- favourable to your petitioners, and assuming that several revisions of royalty are contem- plated, it is obvious that such revisions could be had only at the renewal neriods in 1886, 1906 and 1926, and at no other tine or times. The fourth revision and consolidation of the public statutes of the said province took place in 1873. Section 102, chapter 9, of the Revised Statutes of Nova Scotia, fourth series, is identical with the above section of the Act, 29 Victoria, chapter 9, (1866) except that it does not contain the concluding proviso, that is to say, the words " and provided also that the legislature shall be at liberty to revi.se and alter the royalty imposed under such lease, in or after the year 1886." No such provision as this is con- tained in any part of the said consolidation of 1873. The following section (103) of said chapter 9, Revised Statutes, fourth series, is as follows : " 103. New leases in accordance with the {)rovisions of *his chapter may be executed to all parties now holding leases which will expire in the year 1886." Your petitioners are advised, and they submit, having regard to the fact that the aforesaid section 1, of the Act 29 Victoria, chapter 9 (1866), was re enacted in the .said revision of 1873, without the proviso under which the legislature was as liberty " to 1 608 NOVA HCOTIA LKdlHLATIUN rovise iiiul alter llio royalty in or after the year ISHfi," that yniir petiti(in»'rs and all oth(*r lioldiM'H of tli<;ii .-xistin^ coal litaHCM, as well as all Hiil)se<|iiciit Ixildtn-s of cnal leases up to the year IMH"), whi-ii the Revised Statutes of Nuva Siiotia, lifth series, were pro- iiiul^ated, iici|uire(i the ahsidute le;,'al rijjht to renewals of their lenses, without any in- erease of rent o. royalty, or provision for revising or alu-ring the previous rent or royalty. Section 10.') of chapter 7 of the Kevised Statutes of Nova Scotia, fifth Heries, which came into efl'ect on the "J.'ird April, 1^8"), is as follows : " lor*. 'I'lie (leneral Mining Association, Limited, and other lessees of mines other than ffoM or ;;oUl and silver mines in this province, their executors, administrators and assij^ns shall, upon ;;iving notice in writing, to the Commissioner of MiiK^s, at least six months previous to the expiration of their leases, respectively, of their inttMitiun to re- new siK^ii h^ases respectively for a further period of twenty years from tlu^ expiration thereof, Ix^ entitled to a rtMiewal tln>reof for such extended term upon the same terms, conditions and covenants as cimtained in the original lease or as preKciil)ed by this chapter or by any Act that may be passed by the legislature of this province, and in like manner upon giving a like notice before the expiration of such renewal term, to a second renewal and extension of term of twenty yt^irs, from and after the ex|)iration of such renewal term, and in like manner upon giving like notice before the expiration of such second renev'al term to a third renewal and extension of twcinty years, from and after tlm expiration of such second renewal term, provifled that at the time of ■ ing such notices, iind the expiration of such terms, respectively, the said lessees, Uieir executors, administrators and assigns are, and shall continue to be, bona (ide working, the areas comprised within their respective leases, and complying wit'- the terms, coven- ants and stipulations in their respective leases contained, within the true intent and meaning of section 107 of this chapter, and provided that in no case shall such renewal or renewals extend, or be construed to extend to a period beyond eighty yeai's from the date of the original lease, but the rcMiewed lease shall not include in respect of eii'ih mine worked a larger area than five square miles. " (c.) In the case of leases that are eligible for renewal, in which the conditions of renewal embodied therein are ditrtnent from those prescribed by this chapter, aiid Mie lessees thereof are unwilling to have such conditions altered, the connnissioiv'r sh:ill have power to renew said leases on the terms contained therein and as presc»;„ ' ^y chapter 9, Revised Statutes, fourth series, and no other." As to the said last mentioned .section your petitioners are advised, and they sub- mit that in construintt that portion thereof, which provides that lessees " shall be en- titled to a renewal upon the same terms, conditions and covenants as are ci>nl;iiried in the original lease or as prescribed by this chaptei, or l)y any Act that may be passed by tiio legislature of this province," it must be assumed that it was not the intention of the legislature to provide for future legislative action in the shape of a measure purporting to legalize the imposition of an increased royalty in violation of a lease defining what the rent should be. On the other hand, if the hmguage u.sed as to the terms of renewal be considered broad enough to cover the matter of an increa.se of royalty, then the Act itself was improper, and does not afford any justification for the subsequent action of the legislature in increasing the royalty in violation of existing contract rights. Until 1885 the said royalty of sixpence per ton of 2240 pounds of round coal, con- tinued to prevail as to all coal leases in the said province. Sections 1, -3 and 4, of chapter 4, of the Acts of Nova Scotia, 48 Victoria (1885), entitled : " An Act to amend chapter 7, of the Revised Statutes, fifth series, ' Of Mines and Minerals,' " are as follows : — " 1. Section 104 of the chapter hereby amended is repealed and the following sub- stituted therefor : " ' All ores and minerals (other than gold or gold 'and silver) mined, wrought or gotten under authority of licenses or leases granted under the provisions of .said chapter 7 of the Revised Statutes, fifth series, or of any Act heretofore passed by the legislature of this province, shall be subject to the following royalties to the Crown for the use of tho province, that is to say : ^'' mm t » n api ■■ nirpi i w *! 11 M vicToiiiA, IS92. fiO» petitioners /ind nil J()ld«IS of ciul JCIISCS Itii .series, were pro- ||'H, without any in- provious rcMit or (it'tli Heries, which Bocs of niineH other |iuliniiiistratorH atid •Mines, at least six lii'ir int((iitioii to rv- roin tho expiration on the .sanie torms, {)re,sc!il)e(l l,y this lii.s [)rovinc<', /md iti renewal term, to a '!■ the expiration of <' the expiration of l,v yeai'H, from and the time of ■ ing said lessees, tjieir ', bf-iia tide wcjrking, t'- tile terms, coven- 10 trur! intent and shall such renewal ^'hty years from the 1- in respect of enoh ch the conditions of lis chapter, and the commissiorMf shall id as preset..^ :/! '^y •ised, and they sub- ssees "shall be en- as are cont.iinefl in t may be passed by .he intention of the Measure {)nrj)ortin" lease defininjj what le terms of renewal '.ilty, then the Act ibsequent action of act rights. oi round coal, con- 8 V^ictoria (1885), 1 series, ' Of Mines the following sub- nined, wrought or ins of said chapter by the legislature 3wn for the use of "'Coal. S«!ven cents and one half of a cent on every ton of two thousind two hundred and forty [Mtunds of coal sold oi' removed from the mine, or used in the manu- facture of (!oke or other form .)f manufactured fuel.' " .'{. Nothin;^ in this Act shall <'onipel les.sees of coal mines in this province to pay royalties on (Mial other than on the terms prcscrili.'d in the leases now outHlanding, I'litil said leas((8 expire ; but any such lessee may take advantage of the pnjvisioiiH of this Act, from the fh.te of its pas.sage, if so disposed "1. All leases oi' coal mines issut^l -after the paHsing of this Act shall contain a provision that the royalties may b*; increased, diminished, or otherwi.se changed by the legislature.' Your petitioners ar(^ advised, and they submit, that in and by said sections 1 and 3 of IH N'ictoria (IMHr^), cluster 4, a revision of the coal royalties was made by the legis- lature, inasmuch as slaci\ coal, which was previously exempt fi'om any royalty, was thereby made subject to a royalty of seven and one-half cents per ton, and the royidty per ton upon round coal was therel)y reduced from nine and seven tenths (e([ual to six- pence old currency) to seven and one-half cents. Tim average output of slack coal is from thirty to forty jier cent of the; whole. The said revision was, however, declared by said section .'5, to be optional with the lessees in I'espect of all unexpired least's. When the time arrived in IKHd for the renewal of coal leases a nundier of the out- standing lenses were renewed in accordance with the option afforded by the last men- tioned statute. Ytiur petitioner.s, deeming it in their interest to maintain the previous rate of royalty, [irocured renewal leases reserving the royalty on round coal only at the said previous rate of nine and seven-tenth cents per ton. Further, as to the terms and conditiims of such renewals, your petitioners invoked the provisions of subsection (e;, section lOf), chapter 7 of the Hevised Statutes, fifth series, hereinbefore set out, and obtained renewals of their said leases upon the terms in the said leases pre.scribed, and as authorized by said chapter 9, Hevised Statutes, fourth series, and not upon the terms or conditions otherwise prescribed by said chapter 7 of the Hevised Statutes, fifth series. The renewals so obtained by your petitioners in 1886 did not contain any provision for increasing or diminishing the royalty based upon 48 Victoria (I88f)), chapter 4, sec- tion 4, above set out, and it is submitted that that section is quite immaterial in respect to such leases. Your petitioners further submit that during the debate in the House of Assembly, in the year 1885, upon the said Act, 48 Victoria, chapter 4, and previously to the pas- sing thereof, it was distinctly declared by the member of the government who intro- duced the said bill, and by the Premier of the province, that the saiil bill was not intended to increase, but only to equalize the rate of royalty. The Commissioner of Mines who introduced the bill said; " Now, sir, the object of the government has been to get as nearly as possible an equivalent rate to the present rate of 9 j^ cents per ton — a uniform rate that will yield an equivalent revenue to the present rate." It was disputed that the rate of 7h cents per ton on all coal would yield the same revenue as 9 j^^ cents per ton on round coal only. An amendment having been intro- duced exempting slack coal, the debate was thereupon continued as follows, by the Premier and by Mr. Bell, the leader of the opposition. Hon. Mr. Fielding said : •' He did not. think it reasonable to ask that slack coal should be exempted after the government had oased a figure on all coal. The bill in the main was satisfactory to mine owners ; the real difficulty that he saw suggested, was, that the government might be making a mistake and that they had not the necessary information. He was going to suggest that the bill might be passed with the provision that all leases issued should contain a stipulation that the royalties might be increased or diminished, which would leave the house free to make a change next year ; unless some such provision was made, parties taking leases might complain." ■■mmJ 610 NOVA SCOTIA LBGISLATION Mr. Bell said: " With the consent of the lion. member for Cumberland, and on the understanding that such a clause would be added to the bill, he would withdraw his amendment." Your petitioners submit that in view of these declarations, and othei' statements made by members of the government of Nova Scotia, during said debate (which are set forth in the extract tlierefrom hereto annexed,) it is inequitable and against good faith for the government of said province to claim or pretend that the said section 4 was introduced or passed, save for the purpose, of making such an increase or decrease in the rate of 7i cents per ton on all coal, as would produce an equivalent rate to the old rate of Ity'^y cents per ton or. luund coal only. Your petitioners are advised that representations made by members of the government during debate may not control the legal effect of a statute, but they sulimit that if such representations relating to the provisions of statutes affecting contracts with the Crown are to be lightly made, and as lightly repudiated or disregarded, the credit of the province and of the government thereof will be most seriously impaired. Your petitioners are further advised, and they submit that the fourth section of said Act, 48 Victoria, chapter 4, according to the legal construction thereof, relates only to original leases to be issued subsequently to its enactment, and that it does not relate to renewals which are agreements merely expressing the rights of the parties by virtue of leases previously issued. There is, it is submitted, no legal ground for giving to the language of the section in question retroactive effect, seeing that there is ample office for the words to perform as applied to original leases to be thereafter issued. Moreover, section 3 of the same statute provides that "nothing in this Act shall compel lessees of coal mines in this province to pay royalties on coal otiier than in the terms prescribed in the leases now outstanding until said leases expire." The leases to which this petition refers were then in existence and have been renewed, but have not yet expired. It is therefore submitted that tho&v "ections can- not be in anywise invoked for the purpose of justifying the present legislative increase of royalty. It follows, therefore, that a revision of the coal royalties having been made in 1885, which could, and in many cases dirl take effect in 1886, the power of the legis- lature, as a matter of contract, to further revise or alter the royalties was exhausted. But whether the statute of 1885 is to be considered as effecting a revision of the royalties or not, the provisions of the statutes and leases are such as to exclude the right of the legislature to make a further revision of the royalties previously, at least, to 1906. Both of these positions have been oisregardevl in the enactments complained of, not- withstanding the fact that your petitioners and other holders of coal leases in the province, many of whom resifore passed by the ies to the Crown for • thousand two hun- d in the manufacture this province to pay w outstanding until he provisions of this t shall contain a pro- hanged by the legis- said section 1 and 3 hud or made by the n any royalty was ton, and the royalty entlis (equal to six tput of slack coal is owever, declared by ired leases. When f of the outstanding t mentioned statute, us rate of royalty, at the said previous i and conditions of ion («), section 103, out, and obtained md as authorized by erms or conditions I, excepting the said 55 viCTOiUA, 1892. 615 The ren»iwals so oVjtained by your petitioners in 1888 did not contain any provision for increasing or diminishing the royalty based upon 48 Victoria, chapter 8, section 4 above set out, and it is submitted that that section is quite iunnaterial in respect to such leases. Your petitioners further submit that during the debate in the House of Assembly in the year 1885, upon said Act, 48 Victoria, chapter 4, and previously to the passing thereoi, it was distinctly declared by the member of tlie government who introduced the said bill, and by the Premier of the province, that the said bill was not intended to increase but only to equalize the rate of royalty. The Commissioner of Mines who introduced the l)ill said, " Now, sir, the object of the government has been to get as nearly as possible an equivalent rate to the present rate of nine and seven-tenths cents per ton, a uniform rate that will yield an equivalent revenue to the present rate. "It was disputed that the rate of seven cents and one-half per ton on all coal, would yield the same revenue as nine and seven-tenths cents per ton on round coal only. An amend- ment having been introduced exempting slack coal, the debate was thereupon continued as follows by the Premier and by Mr. Bell, the leader of the opposition. Hon. Mr. Fielding said : — " He did not think it reasonable to ask that slack coal should be exempted after the government had based a figure on all coal. The bill in the main was satisfactorj' to mine owners. The real difiiculty that he saw suggested was that the government might be making a mistake, and that they had not the necessary information. He was going to suggest that the bill might be passed with the provision that all leases issued should contain a stipulation that the royalties might be increased or diminished, which would leave the House free to make a change next year, unless some such provision was made, parties taking lea.ses might complain. Mr. Bell said — " With the consent of the hon. member for Cumberland and on the understanding that such a clause would be added to the bill, he would withdraw his amendment. Your petitioners submit that in view of these declarations and of other statements made by memberssof the governnicnt of Nova Scotia during said debate, it is inequitable and against good faith for the government of said province to claim or pretend that the said section 4 was introduced or passed save for the purpose of making such an increase or decrease in the rate of seven cents and one-half per ton on all coal as would produce an e(juivalent rate to the old rate of nine and seven-tenths cents per ton on round coal only. Your petitioners are advised that representations made by members of. the gov- ernment during debate may not control the legal effect of a statute, but they submit that if such representations relating to the provisions of statutes effecting contracts with the crown to be lightly made and as lightly repudiated or disregarded, the credit of the province and of the government thereof will be most seriously impaired. Your petitioners are further ad\ ised and they ubmit, that the fourth section ■"* said Act 28 Victoria, chapter 4, according to the legal construction thereof, relates only to original leases to be issued subsequ<'ntly to its enactment, and that it does not relate to renewals which are agreements merely expressing the rights of the parties by virtue of leases previously i.ssued. There is, it is submitted, no legal ground for giving to the language of the !-;ec- tion in question retroactive ellect, seeing that there is ample office for the words to per- form as applied to original leases to be thereafter issued. Moreover, section 2 of the same statute provided that " Nothing in this Act shall compel lessees of coal mines in this province to pay royalties on coal other than in the terms prescribed in the leases now outstanding until such leases expire." Your petitioners' leases which were then in exis- tence, have been renewed, but have not yet expired. Your petitioners having declined to avail themselves of the provisions of sections 1 and 4 of the said statute ; it is submitted that those sections cannot be in anj' wise invoked for the purpose of justifying the pre- sent legislative increase of royalty. It following therefore that a revision of the coal royalties having been made in 1885, which could, and in many cases did take effect in 1886, the power of the legisla- ture, as a matter of contract, to further revise or alter the royalties was exhausted. But whether the statute of 1885 is to be considered as effecting a revision of the royalties 39i 616 NOVA SCOTIA LEOISLATION or not, the provisions of the statutes and leases are such as to exclude the right of the legislature to risk a further revision of the royalties previously, at least to 1906. Both of these positions have been disregarded in the enactments complained of, notwithstand- ing the fact, that your petitioners and other holders of coal leases in the province, many of whom reside outside of the province, have invested very large sums as capital in the various coal mining districts in the province, upon the faith of the contracts so entered into by them, and upon the assurance thereby vouchsafed to them of a certain holding for a fixed rent. Your petitioners are further advised, and they submit that the imposition of such increased royalty upon coal under the circumstances hereinbefore set forth, is contrary to the general policy of the Dominion of Canada, the intention of which lias been to foster and promote the coal and iron industries of the Dominion, by imposing a protec- tive duty upon coal, by removing the duty on machinery imported for the use of mining operations, and by imposing a duty upon pig iron imported, and granting a bounty on pig iron manufactured in Canada. In the manufacture of such pig iron in this province, two tons of coke are used for each ton of manufactured iron. The coke so used is made in this province out of the slack coal produced in thb mines of your petitioners and others. The increased royalty of ten cents per ton upon that grade of coal, therefore falls largely upon the producer of pig iron in the said province, and thus adds materially to the cost of its production. Your petitioners are also advised, and they submit that the legislation complained of is ultra vires of the provincial legislature, in that it affects trade and commerce, by narrowing and controlling the scope of the coal trade of Nova Scotia with other pro- vinces, and also by seriously impairing the general trade I'elations of this province, so far as they depend upon honesty and fair dealing on the part of its legislature. Your petitioners therefore humbly pray that the said sections ; 117 of 55 Victoria (1802), chapter 1, in so far as it, relates to coal, the said section 118 of said chapter 1, and the said section 1 of 55 Victoria (1892), chapter 3, may be disallowed or in the al- ternative, that the whole of tho said Acts may be disallowed, and your petitioners as in duty bound will ever pray, (fee. Mr. H. T. Beck to the Hon. the Secretary of State. Toronto, 6th March, 1893. Sir, — I have the honour to transmit to you petition of Hugh St. Quentin Cayley and others praying that his Excellency the Governor General in Council may be pleased to disallow chap. 1 of the Acts of 1892, Nova Scotia, unless the legislative assembly of the province repeal sec. 115 of said Act within the time limited for disallowance. I also inclose the official copies of the Mining Acts and amendments in question and statutory declaration in support of the facts set out in the petition, together with a list of precedents and authorities relied on. I' counsel may be heard, I should be glad to be advised. Such seems to ha^e been the practice in some cases. The petitioners rely on the following grounds and precedents and authorities for the disallowance of chapter 1 of the Acts of 1892, Nova Scotia, entitled : '• An Act to amend and consolidate the Acts relating to Mines and Minerals," unless section 115 of said Act is repealed within the time limited for disallowance. Rrcommendation of the Hon. R. W. Scott, acting Minister of Justice, made 18th July, 1876, that the Act passed by the legislature of Prince Edward Island, entitled an Act to amend the Land Purchase Act, 1875, do not receive the assent of the Governor General in Council, adopted. Extract from report : " Without giving weight or consideration to any great extent " to the allegations in the petition which are unsupported by actual proof, he is of " opinion that the reserved bill is retrospective in its eflect, that it deals with rights of " parties now in litigation under the Act which it is proposed to amend, or which may j i .m fc gn iy i i'ni wj ii i ^ i u iwt^wn* yvjwwrw 55 VICTORIA, 1892. 617 the right of the t to 1906. Both of, notwithstand- he province, nmny sums as capital )f the contracts so them of a certain nposition of such forth, is contrary vhich has been to nposing a protec- for the use of and granting a such pig iron in iron. The coke thts mines of your ipon that grade of )rovince, and thus lation complained and commerce, by I witli other pro- this province, so jislature. 117of 55 Victoria of said chapter 1, owed or in the al- ur petitioners as in March, 1893. It. Quentin Cayley icil may be pleased lative assembly of isallowaiice. nents in question n, together with a I, I should be glad id authorities for ;d : " An Act to ess section 1 1 5 of iistice, made 18th ;sland, entitled an ' of the Governor 1 any great extent al proof, he is of als with rights of id, or which may " yet fairly form the subject of litigation and that there is an absence of any provision " saving the rights and proceedings of persons whoso propeities have been dealt with "under the Act of 1875." Recommendation of the Hon. James McDonald, Minister of Justice, upon which an Act passed 4th March, 1881, by the Ontario legislature, entitled : "An Act for protecting the public interests in rivers and streams and creeks," was disallowed by proclamation 19th May, 1881. Extract from report: "The effect of the Act now under consideration must " necessarily be to reverse the decision of the suit (McLaren vs. Caldwell). I think the " power of the local legislatures to take away the rights of one man and vest them in " another, as is being dom; by this Act, is ext.emely doui)tful, but assuming that such " right does in strictness exist, I think that it devolves upon the government to see that "such power is nut exorcised in fliigrant violation of private rights and actual justice, " especially when, as in this case, in addition to interfering vith private rights in the way " alluded to, the Act overrides a decision of a court of competent jurisdiction, by dewjlaring " retrospectively that the law always was, and is, different from that laid down by the " court." It is submitted that the enactment complained of is contrary to the policy of the British North America Act of 1807, in that it assumes to construe the intention of a clause in the statute which is sub judien, and is therefore an infringement on the judicial power whose authority it should be the policy of the Dominion government to protect and uphold, especially as their appointment is in its hands. Although the section is unconstitutional, it is necessary to appeal to his Excellency to exercise his powers of disallowance, since a court of law could only have power to declare an enactment Hltra vires, where the local legislature infringed upon the juris- diction of the Dominion parliament, or vice versa. Attorney (leneral, (Canada,) v. Attorney General, (Ontario,) per Boyd C, p. 245, 20 O.R, " The power of disallowance which may operate both on the plane of political expediency and in that of judicial capacity. Its exercise in these days is largely con- fined to the former." In Appeal, 19 A. R. It is under the British North America Act unconstitutional for a legislature to declare what was the intention of a statute passed at a former session, at all events unless the rights of then litigants are preserved. Governor v. Porter, 5 Humph. 165. Postmaster General v. Early, 12 Wheat. 148. Greenough v. Greenough, II Pa. St. 489. Reiser v. Tell Ass'n. 39 Pa. St. 137. Potters Dwarris Stat., p. 70 and notes. Sutherland Stat. Construction S. S., 200 and 201. I have, etc., H. T. BECK. Statutory Declaration of Mr. Frank Cayley. I, Frank Cayley, in the city of Toronto, in the county of York, estate agent, do solemnly declare as follows : — 1. I have read the annexed petition of the Executors of the Honourable William Cayley and Andrew. Thornton Todd, and the Toronto Coat Company of Cape Breton (Limited), to his Excellency the Governor General in Council, and I verily believe that the alleg.itions and statements therein contained are true in substance and in fact. 2. I am in possession of the books and am intimately acquainted with all matters connected therewith. The said company expended over $120,000 in acquiring and developing the coal area in said petition mentioned, and in providing plant and machinery for the working of the mine. 618 NOVA SCOTIA LEOISLATION 3. The said lease expired on the 25th day of August, 1886, and the said company were entitled to a renewal of said lease for a further term of 20 years on their giving six months previous notice in writing to the Commissioner of Mines. i. Through inadvertence and oveisight the Commissioner of Mines was not notified until the 15th March, 188G, although such notice should have been given on or about the 26th day of February previously. 6. The commissioner was again notified on or about tlie 9th of August, 1886, but took no notice of either application and on the 26th August, 1886, being the day after the expiration of the lease, granted a license to search, to one J. W. Kelly Johnston, a man whom I have been advised is of no substance, and who on the 23rd of September, 1886, following, purported to assign the same to Reynolds and Fairbanks, clerks in the department of the Commissioner of Mines. 6. None of the said parties have spent any money or attempted to develop said mining areas. 7. On the 23rd of August, 1887, the said comrnissioner granted to said Reynolds and Fairbanks a license to work over said area, and on the 21st of August, 1881), said commissioner purported to grant a renewal of such license to work. 8. On the Hih of April, 1890, Hugh St. Quentin Cayley, on behalf of the estate of the Honourable William Cayley and the petitioners, made applications under the Mining Act, as amended by statute 7, Revised Statutes of Nova Scotia, chapter 23 of the Acts of Nova Scotia, 1889, for a lease of said arei. 9. On the 20th of August, 1890, said Reynolds and Fairbanks also made applica- tion to said commissioner for a lease of said mining area. The said commissioner ignored the application of Hugh St. Quentin Cayley and granted a lease to said Reynolds and Fairbanks, whereupon an action or information was commenced at the suit of the Attoi-ney General of the province of Nova Scotia, on the relation of said Hugh St. Quentin Cayley, myself and the other executors of the Honourable William Cayley, Andrew Thornton Todd and said company, for the purpose of declaring our rights to the lease of said area as against said Reynolds and Fairbanks, and upon the ground, among others, that our application for lease was made prior to th it of .said Reynolds and Fairbanks and that the power of the commissioner to grant said license and renewal of license had been repealed by chapter 23 of the Acts of 1889, and that Reynolds and Fairbanks had not preserved their rights, if any. 10. Pending such action, namely, on the 30th of April, 1892, the legislative Assembly of the province of Nova Scotia, by section 115, of chapter 1 of the Acts of 1892, purported to declare the intention of chapter 23 of the Acts of Nova Scotia, 1889, the construction of which statute was then, and still is, subjudice in our said action. 1 1 . No notice of the proposed introduction of said clause was given tO myself, or as I verily believe, to any of the parties interested in the said company, and the first intimation we had that the legislature had attempted to construe the intention of said Act wa-;, as I am informed by our solicitors in the action, the citation of such amend- ment at the trial, by the counsel for the defendants Reynolds and Fairbanks, and I believe that said amendment was made in view of the litigation aforesaid. 1 2. The said mining rights are, I believe, of very considerable value. And I make this solemn declaration believing the same to be true, and by virtue of the Act respecting extra judicial oaths. FRANK CAYLEY. Declared before me at Toronto, in the county of York, in the province of Ontario, this 6th day of March, 1893. H. T. BECK, Notary Public. Sn VICTORIA, 1892. 610 I the said company n's on their giving i^s was not notified given on or al)out August, 1886, but feiiig the day after Kelly Johnston, a 3rd of September, lanks, clerks in the 'd to develop said to said Reynolds August, 1889, said lalf of the estate of under the Mining )ter 23 of the Acts also made applica- mmissioner ignored said Reynolds and at the suit, of the n of said Hugh St. e William Cayley, aring our rights to 1 upon the ground, it of .said Reynold.s license and renewal that Reynolds and 92, the legislative er 1 of the Acts of Nova Scotia, 1889, our said action, ven to myself, or as ipany, and the frst 16 intention of said lion of such aniend- 1 Fairbanks, and I JSiiid. alue. irue, and by virtue K CAYLEY. rovince of Ontario, ICK, Votary Public. Petition of Mr. Hugh St. Qiimtln Cai/ley and others. To His E.ircVcncy the Ji'ujhl /fonoiirabli^ Sir Frederick Arthur Stanley, Itanm Stanley of' PrfxloH, (t'.C.li., it'!'., ((■('., Gori'rnor (Hfneral in Council. The petition of Hugh St. Quentin Ca3'ley, Frank Cayley and James Strachan Cartwright, executors and ti-ustees of and uiidt-r the will of the Hon. William C'aylty, deceased, and Andrew Thornton Todd and the Toronto Coal Company of Cape Hrtfton (Limited), huinbiy showtih : — 1. That the above named company is incorporated by letters patent dated 20th April, liS78, under chapter 43 of the Acts of the parliament of Canada passed ia the year 1877, entiled : "An Act to amend the law respecting the incorporation of joint stock companies by letters patent." 2. That the estate of the Han. William Cayley and Andrew Thornton Todd, repiesent a majority in interest of the shareholders of said company. 3. That the said company were on and prior to the 2r)th day of August, 1880, the holders of a coal mining lease issued undei' the mining laws of the province of Nova Scotia by Her Majesty, represented in such behalf by the Connnissioner of Mines and Public Works of said province of Nova Scotia, to one Patrick Collins, dated the 3r(i day of December, 1869, numbered 46 and covering "all and singular the beds and seams of coal whether opened or unopened within, under or upon all that tract of land situated a Little Hras d'Or, in the county of Cape Breton and province aforesaid, and de.scribed as follows : That is to say, beginning on the southern sliore of the entrance to the Little Bras d'Or at the western line of the General Mining .V.ssociation's property, thence b}' said line south 23" east 127 chains and 20 links to a stake and stone, tlience south 75" west 65 chains 25 links to Fortunes' line fence, theiice by said fence and by western side of the road north 37' west 46 chains and 90 links to the shore of the Little Bras d'Or, tlience by said shore and the shore of the entrance aforesaid north easterly to the place of beginning ; the corners and distances being descril)ed according to, and agreeing with the descriptions contained in the leases granted S. Ceautro and J). DiHin, January 1, 1863, and Patrick Collins, December 24th, 1861, contiiining six hundred and ninety-four acres, more or less, in manner and foi-m as the said area is specified and delineated. Reserving hereout a strip or margin of ten yards in width, running all round the lot above described." 4. That the said lease was for a term of 20 years, to commence and be computed from the 25th of August, 1866, and expire on the 25th day of August, 1886. 5. That the said company since the date of their said incorporation and prior to the expiration of said leiuse, expended a large sum of money in acquiring and developing the mining area comprised therein, namely, a sum exceeding the sum of $120,000, and that they would not have expended said sum had they not expected to obtain a renewal of said lease. 6. That the said company were desirous of obtaining a renewal and intended to renew said lease under provisicms of section 105, chapter 7, Revised Statutes of Nova Scotia, 5th series, but through inadvertence and oversight, they omitted to give six months previous notice to the Commissioner of Mines of the company's intention to renew as provided by the said statutes. 7. That the said company, however, gave notice of such intention to the Commis- sioner of Mines, on or about the 15th March, 1886, and also on or about 9th August, 1886. 8. That the said commissioner, nevertheless, ignored such notices and on the 26th day of August, 1886, immediately on the expiration of said lease, granted to i-ne J. W. Kelly Johnston, a license to search over the minini; area described in s^ud lease, under tlie provision of sec. 84, Revised Statutes of Nova Scotia, fifth series, which said right to search was on the 23rd of September, 1886, assigned to William K. Reynolds and Edward C. Fairbanks, employees in the department of said Commissioner of Mines. 620 NOVA 8C0TIA LKOISLATION 9. Tliat on the 2^vd dtiy of Aufjust, 18S7, the said Reynolds and FivirlmnkH npplifd to said coniniis.^ionor and ()i)tainp.d a liccmso to work ovcm' and upon .said area, aM(! on i ho 2lHt day of Auj^ust, iSiSi), tiu? said R(!ynoidM and Kaiiliankn applied to tho saiil coniinis- fiioner and olit lined wliat pufported to bo a renewal f)f said license to work. 10. That l)y chap. '2:5 of the Acts of 1889, passed the 17th dny of April, 1889, by the lei^'islature of tlie said province of Nova Scotia, tho provisions for grant inj,' licenses to work, in tho statute aiithori/.ing the j^ratitin;.; and renewinj^ of licenses tr) woi-k, was repealed, and such attempted renewal was and is nidi and void. 11. That on tho 14th day of April, 1890, application was made by the said Hugh St. Quentin Cayley, on behalf of himself and tl,e said company and the s dd Htockhnldcu-s, to tho said commissioner for a lease of tho said uuning areas, undei' the provisions of said statute, chap. 7, llevi.sed Statutes of Nova Scotia, and said chap. 23 of the Acts of Nova Scotia, 1889, in amendment thereof. 12. That on the 20th (hiy of August, 1890, the said Reynolds and Fairbanks also made application to said commi.ssioner for a l';i.se of the said mining area, un<]er the provisions of the statutes, aforesaid. 1.3. That the Commissioner of Mines, noverthele.ss, ignni-ed the application of the said Hujih St. Quentin Cayley, and granted a lea.se to said Reynolds and Fairbanks. 14. That on the ISih February, 1892, the Honourable J. W. Longley, Her Majesty's Attorney Oenerul for the province of Nova Scotia, on behalf of Her Majesty, on the relation of your petitioners, instituted proceedings to determine tho validity of the application of said Hugh St. Quentin Cayley to obtain a lease of said coal ndning areas, and to determine the rights as between your petitioners and the said Fairbanks and Reynolds. 15. That pending such action a certain Act entitled "An Act to amend and conso- lidate the Act relating to Mines and Minerals," being chapter 1 of the Acts oF 1892, was on the 30th day of April, 1892, passed by the legislative assembly of the said province of Nova Scotia, and in and by section 115 of said Act it is hereby declared and enacted that chapter 23 of the Acts of 1889 shall not be deemed to have taken, and did n(jt take, from any holder of licenses to search in force at the time of passing of said chapter, the right to select an area and apply for and obtain a license to work in the same manner as such holder could have, had said chapter not been enacted, and that said chapter shall not be deemed to have taken, and did not take, from any holder of a license to work from the time of passing the said Act, the right to obtain an extension of such license to work for three years upon the additional payment being made as provided in section 95, chapter 67, of the Revised Statutes, fifth series, but all holders of licenses to search at said time are deemed and shall be declared to have the same right to select and apply for such licenses to work, and all holders of licenses at said time shall be deeuied and thereby declared to have the same right to such extension as aforesaid, as they would have had if said chapter had not been enacted, and all licenses ta work and all such extensions of licenses to work as aforesaid, shall be held to have been as valid and good as they would have been had such chapter not been enacted. 16. That the said section 115 was inserted in the said statute without notice to your petitioners, and as they believe at the instance of the said Fairbanks and Reynolds for the purpose of defeating the proceedings pending before the Supreme Court of Nova Scotia, the legislature thereby usurping the functions of the judge, and assuming to place a construction on the repealed enactments without reserving the rights of their litigants, and the said enactment was evidently aimed at this litigation. 17. Neither the said Johnston, nor the said Fairbanks and Reynolds have ever expended any mcmey in developing the said mining area, and your petitioners believe them to be men of no substance, and that they perpetrated a fraud on the legislature who passed the section in question inadvertently and without due consideration of its eflfect. 18. The said proceedings are still pending, the trial having taken place, and judg- ment being reserved. Your petitioners humbly submit that the Act should be disallowed, for the follow- ing reasons, unless the said section is repealed before the time for disallowance expires : Fdirltfinks (ipplicl aid iii'Hii, aii() on i||,. i<> tlio said commiH- work, of April, 1889, by '!• j,'raiitiii;,' licenses ■ciiscH to work, was i)y tlip said Tlufjh ■< lid stockholders, the provisions ot' •-';{ of t\w Acts of iiid Fairbanks also ly area, uncJer tho ' application of the and Fairbanks'. ,dey. Her MaiB,sty's f Her Majesty, on the validity of the coal ndning areas, lid Fairbanks and i amend and con.so- 1 Acts of 1892, was f the said province iclared and enacted 1, and did n(jt take, )f said chapter, the n the same manner 1 that said chapter Ider of a license to extension of such lade as provided in )lders of licenses to ame right to select mid time shall be ion as aforesaid, as jenses to work and lave been as valid I. without notice to inks and Reynolds sme Court of Nova % and assuminj; to the rights of their >n. 3ynolds have ever petitioners believe in the legislature )nsideration of its 1 place, and judg- ed, for the foUow- llowance expires : ft') virroRiA, 1892. 621 1. Hecause it assumes to interjiret the intention or meaidnL; of a statute under review in a court of law at the lime of the piwtsage of tlie (leeltinitory eiiactinmt, thereby usurping tho functions of the judieiary. ■J. The Act is contrary to ihe |)olioy of the hritish North Ainer'ii'.i Act, 1M()7, inas- nmch as it is the province of tho judiciary appoinird by the hoininion goveinuKMit to construe the uK^aning ot' statutes, and the enactmei t is tlii'iet'ore unconstitutional. .'{. The Act is t)bjectionablo in declaririL' what was the meaning of an Act at the time of its [)a88age, without excepting existing litigatioti from its operation. 4. The said section if idlowcnl to remain in force will have the ellert of depriving the petitioners of very valual)le ri;,'lits which they atli'mpted to preserve by applications which till section in ijuestion makes nugatory, and validates an aboitivt; apilication of Fairbanks and ISeynolds under the guise of interjinting the stalute, but in reality by rei'iaving an appealed enactment atl'ecting f>ending lilig ition, and your petitioners will ever pray. 4 H. T. MKCK, tSuliciUn' j'ur the I'l'titioufrs, The Hon. the MiniMer o/' Justice to Hon. W. S. Fie/din;/. Depakiment ok Justice, Ottawa, 20th February, 1893. Deak SiH, — T duly received your telegram stating as follows : " The operations of the Dominion Coal Company would be much facilitated by nninediate allowance of their charter, and of the Act for the further encouragement of C'oal Mining, recently passed by the Nova Scotia legislature. Our government respectfully ask that his Excellency be ttdvi.sed to pass upon thos ' A^cts as early as possible." As you have no doubt seen by the press, strong remonstrances have been made against these Acts, with a view to tlieir tli.sallowance, anil I have promised to transmit to you some representations which have recently been made. I think that in a niattrr of such grave importance and about which s. much feeling exists, we should hardly l)e asked to anticipate to so great an extent the 1 ime fixed by law for declaring the action of his Excellency, unless very important interests are found to depend on such action. Yours faithfully. JNO. .S. D. THOMPSON. Messrs. Josiah Wood, M.P., and R. C. We/don, M.P., to the Hon. the Minister oj Justice. Ottawa, 24th March, 189.'{. Dear Sir, — In your reply to the delegation that waited upon yourself and col- leagues in the Privy Council chamber re Nova Scotia coal legislation, you su;?;gested that a statement of the case be submitted in writing, and promised to forward the same to the Nova Scotia government. We herewith inclose a memo, signed by a large number of the members of the House of Commons, and trust you will forward same as propo.sed, and take such other action to secure the object desired as you may deem expedient. Yours very truly, JOSIAH WOOD. R. C. WELDON. 633 NOVA HCOTIA l,K(MHr,ATION I'ftitioH /tout Mr. A*. C. W'ddtm, A/J'., und Dlhern tit II in E.icdhncy the Governor Utmeral. We, tho unt' thi' t'ollowin!,' fiictH, luivci the honuiir to lirirj; tlit,'iii to llio notico of your HxcflU'iicy aiul IiIh udvistirH: - In I8!)2 an Act was j)aH8t'd liy t\w li'^'lslaturi' of Nova Scotia, entitlwl : " An Act to amend and consolidate the Acts relatiiij,' to Mines and Minerals. " 'I'lie IHdth Miction of this Act is fiau;;lit with danirei- to the public and repui,'nant to tho spirit of the con- stitution. The forej^oin^ section empowers the Lienteniint-(Jovernor in Council to lease all the <'oal lutias in Nova Scotia, upon such terms iis may to them seem proper as to ttiea, duration of lease, taxati(jn and royalty,; the inininiuni royalty, however, being ten cents a ton. This ieijisltttion places the disposal of the coal areas of Nova Hcotia in the hands of the Lieutenaiii Governor in Council, svithout referenct! to the legislature. It may be ol)served that legislation as tct mines atl'ects the most valuable public property of Nova Scotia, and also materially aU'ects important interests in other pro- vinces of Canada. In imr opinion provincial legislation of a clmracter affecting vitally the general iiitere.sts ui the iJominion, should not be by Order in Council. Provincial statutes are, but provincial Orders in Council m-v not, sabj(!ct to disallowance by your Excellency in Council. This Act of Nova Scotia, in relegating to the Lieutenant-Cov- ernor in Council |>owers heretofore exerci.sed by the legislature, practically destroys the federal j)Ower of disallowam e - and is, '\\\ our opiinon, repugnant to the spirit of the constitution. Under the auth ;rity of the said Act, sec 156, cap. 1, Acts of Nova Scotia, 1892, the governuu'nt of Nova Scotia have given a lease to the Dominion Coal Company, a corporation chartered by the legislature of Nova Scotia at its late session. This coni- pany is empowered to mine and quarry coal and all other minerals, and to manufacture and deal in the same, to construct, purchase and operate railways, to own and sail ships and barges, and to transport on land and water freight and passengers, to acquire letters patent and patent rights, to own farm lands and buy, sell and deal in farm stock and profluce, to construct and operate telegraph and telephone lines, to accjuire, hold and deal in shares, stocks, debentures and bonds, and also to acquire all the property and franchise of any other company carrying on any business similar to its own. It will be observed that under the foregoing powers, the Dtmiinion Coal Company can acquire and control all the coal areas of No\tt Scotia, and thfe means of transporting coal by land and water. The lease given to the Dominion Coal Company has none of the safeguards against monopoly and extortion which former leases in Nova Scotia contained, as will more clearly appear from the following particulars : — In the old lease, one lessee could not bold mori; than two square miles of coal lands. In the new lease, one lessee holds the entire county of Cape Breton. In the old lease, the lessee held for twenty years. In the new lease, the lessee holds for ninety-nine years. In the old lease, the lessee was subject to the Mines Act, and to any Act which the legislature rcight from time to time pass for the public protection. In the new lea.so, it is stipulated that the terms thereof cannot be in any way affected or altered by the legislature lor ninety-nine years. The new lease, it is true, contains the usual covenants, providing for the bona fide and effectual working of the mines and the like ; but it will be remembered that under former leases the instrument was forfeited for breach of any covenant, while under the new lease there is in fact no effective way of enforcing these covenants. The undersigned desire further to point out that the dangers of a coal monopoly are enhanced by the fact that the coal measures of eastern Canada are confined to a few counties in Nova Scotia. R6 VICTORIA, 1892. 623 tiiji the. f,'iivervi>r lly iinpicHsed by the ' tlic! iKitioo of your lititlwl: "An Act to 'III' inoth «wtioii of Hliitit of tlie con- liiior ill Couiitil to lnun sfjctii |no|M;r (w [ilty, liowevfT, heiiig II' ill in the hiviuls of 111 lire. iiost va!uiii)lo |)ul)lic I'U'sts in otluT pro- pter affecting? vitally 'ouncil. Provincial isallowance by your the Lieutenant (Jov- •ticaliy (lestroyH the o the H|iirlt of the Nova Scotia, 1892, on Coal Company, a session. This com- and to manufacture o (jwn and sail ships srs, to accjuiro letters III in farm stock and to ac(|uire, hold and ill the property and its own. inion Coal Company cans of transporting e safeguards against tained, as will more ? miles of coal lands, eton. 1 to any Act which n. mot be in any way ig for the b'nafifie umbered that under nt, while under the its. i a coal monopoly 1 are confined to a They desire also to ui'ge that coal is an article of prime necessity for domestic pur- poses, for railways and manufacturing industries, and when such an article becomes a monopoly, the results may Ih) disastrous. 'J"hc experieni-e of coal consumers in the seaboard cities of the United States during the |)ast year furnishes conclusi\e proof of iliis fact. I'nder those Nova Sc((tia statutt's the l)oininion Coal (,'oinpany can acipiire an, ii'cor- porated, is (hsdared by joint address of the two Houses of the legislature of Nova .Scotia to have violated its covenants or unduly enhanced the price of coal to Canadian c(m- sumers, such charge so decliiiod shall be referred to the Supreme! t-'ourt of Canada, with power to hear mid detormiiie, and in use the said charge shall he sustained, the Supreme Court shall avoid the lease or tine the lessees in their discretion. R. C. WELDON and 77 others. Hon. Alt If. (ienl. Longlfy to Di'imty Minixter qfJustici; Halifax, 3()th March, 1893. SiH, — I have carefully read the petition of Hugh St. Quontin Cayley and others praying that his Excellency the Governor General may be pleiused to disallow chapter 1 of the Acts of 1892 of Nova Scotia, unle.ss the legislative assembly of the province repeal .section 115 of said Act within the time limited for disallowance. In regard to the authorities and precedents cited, I have no observation to make, except thai, the principle embodied in the report of the Hon. James Macdonald, Minister of Justice on the Ontario Act for protecting the public interest in rivers and streams, seems open to question, and is not recognized as a conclusive or authoritative statement of the principle. Regarding the facts set forth in the memorial I ha\e also but little to say. It is a fact that the lease of the Toronto Coal Company expired on the 25th of August, 1880. It is likewise true that the law for years and year.-, had made it essential that six months' notice of an intention to renew was a condition pre- cedent to the right of renewal conferred by the Mining A.ct, and it is a fact that the application for renewal was not made within (he six months in this case, and hence in the judgment of the Department of Mines, acting upon the advice of this ilepartment, it wfus interpreted and upheld that renewals could not be granted. Tlie case of the TorontoCompanyis not the only one, several other leaseholders failed to makeappliration within the six months, and lost their rights accordingly, except that in most cases those who had neglected to make the application were on hand promptly on the day after the expiry of the lease to make application for the right to search and that precaution was not taken by the present applicants, and the consequence was that the leases became vacant and applications wore made which the department had no option but to receive. The application was made as stated by M. J. W K. Johnstone and subsequent to his application he transferred (for what consideration I know not) his rights to Messrs. Reynolds and Fairbanks, who are not, as alleged, clerks in the Department of Mines, but a.e clerks in the department of the provincial secretary, which so far as I can see has nothing whatever to do with the legal aspect of the case. Subsecjuently, as stated in the memorial, Messrs. Reynolds and Fairbanks applied for a lease and the present memorialists also applied. The question was referred to me as being a purely legal question and I, after due examination o^ the statutes and of the Act, and acting upon the best interpretation of the law, advised the commissioner that he had no option but to issue a lease to Messrs. Reynolds and Fairbanks. At the same time representatives of the Toronto Company 624 NOV\ SCOTIA LEGISLATION appl.ed to mo for a fiit to take proceedings in my name to set aside the lease to Messrs. Reynolds and FairbanKf,, which is a bona fide question of law seemed to bs involved I granted, and that case is, as stated in tlie memorial, still outstanding. The insertion of section 115 of chapter 1 of the Acts of 1892 had no reference whatever to this case, anJ only applies to it incidentally. In 1889 the government submitted to th^ legislature a measure which changed to a certain extent the incident connected with licenses to search and licenses to work, that is, licenses to work were abolished, anci parties who lield licenses to search were authorized or required to apply for a lease of the a: .''. if they desired to continue their mining right in it. When that Act was passed, a considerable number of persons held licenses to searcli, and it became a (juestion whether the Act of 1889, chapter 2.3, was retroactive in it^ operation, that is, whether it took away from the holders of licenses to .search their right to obtain licenses to work before applying for a lease. I was compelleil to advise that it did not, and the department acted on this assumption in many cases. When the Mining Act was being consolidi'^cJ at the last session, it was deemed desirable by the department of mines, that thita matter should be settled beyond question, and the consetjuence was a legalizing Act was passed, affecting a considerabk; n imber of casos, and possibly incidentally affecting the case cf the prf>-cnt memorialisi-o, which was then before the court. But as the measure was a measure introduced and promoted by the government, I mt-.st dis- tinctly disavow in the liiost explicit manner, any intention on the part of the govern- ment to prejudice by this Act any rights which any p -rties had in controversy before the c !urts. As I have stated incidentally, it may have affected C lyley's case, but it was not intended specially t' apply to liis case, but to set at rest the titles of twenty other persons--. Whatever may have been the intc-ation cf the legislature, it may ha frankly con ceded that if the effect of a clause is to work injustice to any suioors before the courts, it is a fair question whether it s'^oiild not be repealed. 1 l.ave in this case, liowev'er, to bring lo your notice the h' .^ that there can by no possibility be merits in the applica- tion of the memorialists in this regard. When J. W. K. Johnstone applied and paid his money for a license to search, and this was acquired by Messrs. Reynolds and Fairbanks, they thereby obtained legal rights as clearly cognizable by the courts as the rights of the present memorialists could, irrespective of how much money any of the parties had expended. I can scarcely believe that the memorialists could seriously ask the Department of Justice to disallow an important public ineasure, because the eHect of it would be to legalize a general principle, which was in itself sound, nor can I believe that the present memorialists would attempt to maintain that any interests would be subserved Ity t^eir destroying the lease to I'lessrs. Reynolds and Fairbanks, on a ground so technical, as that perhaps the Act of 1889 had a retroactive operation, and while securin^- siuh a result, disturb the titles of twenty other persons. If there are any substantial grounds for .'■etting aside the lease to Messrs. Reynolds and Fairbanks, in order that it rnay be granted to the memorialists, the courts of the -"ountry have the amplest and fullest power to det.l with them. To prevent misconception fi the facts let me state that the fact that this Toronto company spent $100,000 prior to 188G has nothing whate'-.r to do svith the case. The Mines Act had to be framed to meet the public needs and to lay down principles appli- cable to all times and to all parties, and because a man had spent i$l, 000,000 in develop- ing a mining property, would form no ground for setting aside strict interpretation of the law, much as every person vould be disposed to sympathize with parties, who by their negligence hnd lost valuable interests, we could not think of either setting aside or stretching the law to meet such cases. If good reasons can be stated for repealing this Act it seems to me that no better and more reasonab'c; coo,rse co'ld have been taken by, the memorialists than to apply to the government of Nova Sjotia and set forth in detail their objections to it. Certainly the government of Nova Swotia is not interested in the remotest degree in any litigation taking place between the memorialists and Messrs. Reynolds and others, and I tiiink it is reasonable to infer if a substantial case of injuslice could be made out against the clause in question, that the government would be only too ready to introduce i B H i^- .^^ . i.^ i.i i u iwii ^im w u i 'ii ii L 'W^ W r , * le the lease to Messrs. emed to b3 involved I ins. 892 had no reference 1889 the government in extent the incident licenses to work were I or required to apply it in it. When that search, and it became I it^ operation, tiiatis, iglit to obtain licenses lat it did not, and the Mining Act was being department of mines, uence was a legalizing possibly incidentally ire the court. But as vernment, I mr.Nt dis- e part of the govern- in controversy before yley's case, but it was itles of twenty other t may be frankly con cors before the courts, this case, however, to merits in the applica- bone applied and paid Messrs. Reynolds and ! by the courts as the ich money any of the could seriously ask the )ecause the ed'ect of it II nd, nor can I believe ,ny interests would be 'airbanks, on a ground operation, and while ns. If there are any rls and Fairbanks, in the "ountry have the fact that this Toronto > with the case. The down principles appli- $1,000,000 in develop- trict interpretation of with parties, who by »f either setting aside to me that no better irialists than to apply leir objections to it, emotest degree in any nokis and others, and ? could be made out too ready to ii.troduce 55 VICTORIA, 1892. mti legislation to modify or repeal it. I have to state, however, that no application to repeal said Act has been made by the memorialists to the government of Nova Scotia or to the best of my knowledge and information to any member thereof. I li„. to add in conclusion that the clause in question is entirely and exclusively •within the legislative competency of the parliament of Nova Scotia, and T must reiterate that it dies not contravene any sound principle of legislation in giving a legalizing effect to a lumber of cases in which some doubt might possibly arise. I have, &c., s ■ J. W. LONGLEY, Attorney General. TeUfiram from Honourable Attorney General Longley to Deputy Minister of Justice. Halifax, N.S., 11th April, 1893. Government will introduce bill re Cayley in form suggested, but its ultimate passage must depend upon result of /uil hearing of all parties before a committee of the House. J. W. LONGLEY, Attorney General. Honourable Attorney General Longley to Deputy Minister of Justice. Halifax, 11th April, 1893. My Df.ak Sin,— I wired you this morning stating that in compliance with your suggestion the government would introduce a bill repealing section 115 of chapter 1 of the Acts of 1892, as far as it relates to pending suits. But as it is a matter involving private rights, and is one in which the government have a great deal of difficulty as to the real merits of the case, we propcse to submit the bill to the committee on law amendments to hear evidence and the argument of counsel on the subject. Mr. Cayley's solicitors will have the fullest opportunity of presenting his case and the fate of the bill must depend upon the judgment of the House and Committee. I think that this ought to be satisfactory to Mr. Cayley and to the Department of Justice. Yours very truly, J. W. LONGLEY. Honourable Attorney General Longley to Deputy Minister of Justice. Ottawa, 24th April, 1893. Dear Sir, —Referring to our previous correspondence with regard to the petition of Hugh Quentin Cayley and others, for the disallowance < 2 chapter 1 «;f the Acts of N( •a'Scotia, 1892, and to the bill which at my suggestion you propose to introdiice repealing section 115, so far as penning suits were concerned, 1 beg to say if the principle is to be admitted that legislati(.n is improper which takes away the rights of suitors in pending litiiration, it would seem to follow that such legislation ccidd searcely be justified because .he legislature, after full hearing of both sides in committee, had n fu.'ed to repeal it. The section complained of appears to come within the principle, and I trust thr.x by enacting the proposed measure, the legislature may free this department from further consideration of the petition. I am, (fee, E. L. NEWCOMBK. Deputy Minister of J attire. Wl^A Wf^ 626 NOVA SCOTIA LEGISLATION Tdfgramfrom Honourable Attorney General Longley to Deputy Minister o/Jiistice. Halifax, N.S., 28th April, 1893. Bill amending section 115 as you suggested pas^sed both Houses and assented to today. J. W. LONGLEY. Mr. S. fVa/son O.fuer to Honourable the Minister of Justice. LuNENBUiuj, 10th May, 1892. Sir, — I desire to bring to your notice certain provisions of an Act passed by ihe legislature of Nova Scotia on the 30th day of April last, entitled.' ' "An Act to amend chapter 92, Acts of 1891, entitled, 'An Act to enable the Municipality of Lunenburg to borrow money for a Court-house," I forward herewith a copy of tlie Royal, Gazette, newspaper, published at Halifax, by authority, of date May 4th, 1892, containing on page 227, a copy of the Act above referred to. An examination of the 1st section of the Act, lines 8, 9, 10, Ac, will show that the legislature has undertaken to legalize a past vote of the municipal council, notwith- standing the fact thiit the legality of that vote was, on the 30th day of April last, when the Act was passed, the subject of judicial deliberation in the Supreme Court of Canada, and is the principal issue in a still pending suit for an injunction against ' muni- cipality. The facts of the case are, briefly, as follows : — The municipal council of the municipality of Lunenburg, on the 7th day of May, JMIQl, passed a resolution to the effect that the new court-house >nd jail for the county of Lunenburg (authorized by chapter 92, Acts of 1891 ) be built at Uridgewater^ in the county of Lunenburg, and appointed a building committee to carry out that resolution On tie 8th day of June, 1891, acting under instructions from the uwn council of the town of Lunenburg, the shire town of the county from its earliest settlement, I caused procefiit ^:i to be taken in the Supreme Court of Nova Scotia t> restrain the municipal council and the members of its building conmiittee and tlie cle.-k-treasurer of the municipality from carrying ort the resolutions of May 8th, 1891. A n interim restrfiining order was obtained from his Lordship Chief Justice McDonald on the 10th day of June, 1891, and on the loth or 16r,h of July, 1891, the Supreme CVjuit of Nova S<;otia, sittinnd jail for the )uilt ai Lr'dgewaterj i to carry out that the wwn council of arliest settlement, I uotia t) restrain the he cle:"k-treasurer of !. ef Justice McDonald 1891, the Supreme 8 be restrained from IS argued before the served till May 2nd, the judgment of the the Act in question, directly with rights highest court in the ct is to forestall and red hj the Supreme bject are set out and The warden and council of the municipality of Lunenburg, ft al. Defendants Appellants and the Attorney General of Nova Scotia on the relation of S. Watson Oxner Plaintitf, Resjwndent. I beg leave to submit, in view of the facts above mentioned, that the Act in ques- tion, as interfering with pending litigation, is contrary to sound public policy, contrary to those principles which ought to regulate legislation thrcighout the Dominion, and is an Act that ought to be disallowed by his Excellency the Governor (ieneral in Council. I may add that the Act in question undertakes to give the municipality of Lunen- burg, comprising about 22,000 of the population of the county, and paying le.js than two^thirds of the taxation, power to practically change the shire town of the county, without any representation or vote in the matter being conceded to the municipality of Chester, comprising about 6,000 of the population and paying about one tenth oi' the taxation of the county, or to the mcorporated town of Lunenburg comprising about 3,000 of the population, and paying about one-fourth of the taxtationof the county. The Act, chapter 92 of 1891, amended by the Ac^ in question, recjuires Chester municipality and' Lunenburg town to contribute in proportion to their as.sessments towards the cost of the court-house and jail proposed to be built. If the municipality of Lunenburg requires or desires a municipal court-house at Bridgewater, legislation can easily be obtained for that purpose, and the disallowance of the Act now in question v/ill not interfere with that object, but will prevent interference with the judgment of the Supreme Couit of the Dominion and with the results of the injunction suit still sending, and will prevent the injustice of the municipality ot Chester and the town of Lunenburg being required to pay more than one-third of the cost of buildings, the location of which is shifted from the shire town without their being con- sulted, Vnd against the tenor of resolutions unanimously passed by their respective council. .IP It may not be out of place for me to bring to your notice the tact that at least two other Acts interfering with pending litigation were passed by the legislature of Nova Scotia during its recent session, one relating to the well known case of Mayor Thomas, of Truro, and the other being an amendment of the Probate Act. I have, ttc, S. WATSON OXNER, Mayor, Town of Lunenburg. Petitkn of Mr. David J. Thomas to Hi^ Excellency the Governor General in Council. To His Excellency The Right Honourable Frederick Arthur Stanley, Governor (General of the Dominion of Canada, dr. The petition of David I. Thomas of Truro, in the county of Colchester, and pro- vince of Nova Scotia, Esijuire, humbly showeth. That I am mayor of Truro. That on Friday the 22nd day of April, I 892, I was arrested at Truro by Alfred F. Haliburton, serjeant-at-aims of the House of Assembly of Nova Scotia, Nicholas Power, of Halifax, city detective, and one Tanner of Halifax city aforesaid, under a warrant of Micha 1 I. Power, Speaker of said House of Assembly, and conveyed to Halifax, and there kept in the custody of said officers at the Albion Hotel till Saturday evening at half past nine o'clock, when I was brought before the bar of the said House of Assembly at about fifteen minutes to twelve o'clock, inidnight, and was sentenced by said House to be committed to the common jail at Halifax for forty- eight hours. , TT li That about half an hour afterwards I was committed to the county jail at Halitax by the said officers, and was there imprisoned till Monday morning, when I applied to t.ViA Snnifiine Court, sittinsr in banco for a writ of Habeas Corpus. the Supreme Court, sitting in banco for 628 NOVA SCOTIA LEGISLATION That said writ was granted, and my application was fully argued, when I wad unanimously discharged by said court, on the ground tliat said warrant was void. That on the 27th day of April last, past, I commenced an action in the Supreme Court aforesaid to recover damages for said trespass, assault and imprisonment, against said serjeant-at-arms ; Nicholas Power, the jailor, the Speaker of said assembly ; and the several members who voted for the issue of the said warrant and my imprisonment as aforesaid. Tliat the said serjeant-at-arms, the said Nichohis Power, the jailor, the Speaker, and all the members oi the said assembly, voting for the said arrest and commitment, saving three, were served on the 28th day of April last past with copies of tHe writ in said action. That an Act of the local legislature, entitled " An Act to amend chapter 3, Revised Statutes, N.S., of the composition, powers and privileges of the House," was passed and assented to on the 30th day of April last, a copy of which your petitioner is informed has been transmitted in due course to the Secretary of State at Ottawa. That said Act is a grave injustice to your petitioner in the following respects, among others, because it undertakes to validate trespasses professed to have been committed under unconstitutional clauses in chap. 3, Revised Statutes, N.S. Because the Act is based upon unconstitutional and extra viren foundations. Because it deprives me of vested rights. It deprives me of damages for injuries done me by said officers, by an ex pout facto law. It confiscates and expropriates rights anJ property without indemni- fication. It subjects the plaintiff to costs in respect of the defendants, against whom the action already commenced has been taken away. It throws doubts upon the plain- tiff's right to recover at all, inasmuch as the third section of said Act may create doubt as to the extent to which the remedy is taken away, since it may be argued that if said Act makes valid the warrant and proceedings, all the members voting for the issue of the warrant may justify under it. If the contention as to the House constituting a court of record at the time said proceedings were taken, be entertained, then said Act might be extended by construction to protect all the members as officers of such court. It is not an Act of indemnification as it professes to be, but one of spoliation. If it were an act of indemnification it would have provided that in case damages and costs were awarded against the defendants, and such costs and damages were not paid by the other defendants to the suit, such damages and costs should be made good to the said officers from the public revenues. It is submitted th'it the proper form of indemnification would have been the personal bond of the members, who employed and authorized such officers to act uncer said warrant. That said action will likely be for trial at the ensuing June term of the said Supreme Court which opens at Truro on the 7th day of June, 1892. That your petitioner humbly prays that your Excellency may be pleased to disallow sai J Act. And your petitioner as in duty bound will ever pray, etc. D. J. THOMAS. Truho, N.S., 6th May, 1892. Report of the Hotwurdble the Mi'nist''r of Justice approved by His Excellency the Governor Genercil in Council on the 5th July, 189'!i. Department of JusTicr, Ottawa, 18th May, 1893. To His Excellency the Governor General in Council : The undersigned has the honour to report upon the following Acts of the legislature of the province of Nova Scotia, passed iu the fifty -fifth year of Hi- Majesty's reign (1892), certified copies of which Acts, were received by the Secretary of State on the fourth day of August, 1892. 55 VICTORIA, 1892. 629 n ued, when I was it was void. in the Supreme risonment, against aid assembly ; and my imprisonment ailor, the Speaker, and commitment, )ies of the writ in amend chapter 3, t" the House," was your petitioner is at Ottawa, ng respects, among e been committed because the Act is it deprives me of aid officers, by an without indemni- ita, against whom )ts upon the plain- ; may create doubt argued that if said ; for the issue of the d at the time said led by construction i of spoliation. If damages and costs 3re not paid by the le good to the said e been the personal to act unt^er said e term of the said pleased to disallow HOMAS. Excellency the ;h May, 1893. » kA the legislature •r Maje-xlv's reign •y of State on the Chap. I. — "An Act to amend and consolidate the Act relating to Mines and Minerals." Chap. 2. — " An Act to amend an Act of the present session entitled an Act to amend and consolidate the Acts relating to Mines and Minerals." Chap. 3.- — "An Act respecting the royalties on Coal." In a petition addressed to your Excellency in Coiincnl on behalf Hugh St. Quentin Cayley and others, the petitioners prayed that chapter 1 might Vie disallowed, because section 115 prejudiced their vested rights in litigation which was pending in the Supreme Court of Nova Scotia at the time the statute was pa.ssed. It appeared to the undersigned that the section in question might have the effect of which the petitioners complained, and he accordingly suggested to the Attorney General of Nova Scotia the justice of an amendment of repealing section IIH, in so far as it might affect pending litigation. The Attorney General adopted this suggestion and introduced a bill which was passed and received assent at the recent .session of the JSiova Scotia legislature, which removes the ground of the petitioners. A petition addressed to your Excellency in Council on behalf of the Mining Society of Kova Scotia, The General Mining Association, The Acadia Coal Company, limited. The International Coal Company, limited, The CumV.'land Railway and Coal Company, limited. The Caledonia Coal and Railway Company, The Gowrie Coal Mining Company, limited, J. R. Cowans, Glace Bay Mining Company, limited, Intercolonial Coal Mining Company and Lingan Low Point and Barachois Coal Company, limited, prayed that chapters 1 and 3, might be disallowed upon the ground that section 117 of chapter 1 exacts from the petitioners, who are lessees of coal areas in Nova Scotia, a rate of royalty in excess of that which was by their leases guaranteed to them for a fixed period, which has not expired ; that section 118 of chapter 1 interferes with the petitioners' rights in respect to the renewal of their leases, which, according to their claim, should, as a matter of contract, be renewed in the terms of the original leases, which original leases did not contain any provision that the royalties might be increased, . diminished or otherwise changed by the legislature ; also upon the ground that the in- crease of royalty complained of shall be held to have taken effect on the twenty-third day of February, 1 852, the Act providing for such increase not having received assent until the 30th day of April, 1893, thus giving to it a retroactive operation. Several of the petitioners, namely, The Acadia Coal Company, The Cumberland Railway and Coal Company, limited. The Intercolonial Coal, Company, limited. The Caledonia Coal and Railway Company, and the Gowrie Coal Mining Company, limited, have subsequently withdrawn from the petition. Such withdrawal does not, however, affect the case of the other petitioners. Leaving aside fo/ the moment the ground cf objection based upon the retroactive effect of one of the oections complained of, it is to be observed that no objection to the legislation arises upon the face of these statutes, and, therefore, in the opinion c>f the undersigned, the onus of establishing that they operate unjustly or interfere with private interests, rests with the petitioners. By reference to the leases under which the peti- tioners claimed at the tine these statutes were passed it appears that they each con- tained a provision very similar in terms, and quite possibly the same in effect, as that which is set forth in section 1 16, and it is not clear to the undersigned that the peti- tioners' leases, particularly in view of previous legislation, did not contemplate such revision of the royalty payable thereunder as is -oraplained of, With regard to the objection that section 1 17 has become retroactive by reason of section 1 of chapter 3, the Attorney General in the correspondance which is submitted herewith, points out that in view of the policy of readjusting the noal royalties which was determined iipon by the government of Nova Scotia early in February, 1891, notices were sent to the petitioners with an intimation that the government would promote legislation at the then ensuing session of the legislatui-e, fixing the rsice of royalty on coal at ten cents per ton, and that yrovision is made by rhe Act for exempting from the new rate of royalty, coal sold pursuant to contracts which had been made or which were being negotiated at the time such notices were received by the petitioners. These facts, while they may not entirely justify the retroactive legislation, still to a considerable 40— K •630 NOVA SCOTIA LIGitLATION degree detract from the effect which would otherwise belong to the objections raised upon this point by the petition. In riew of these considerations and the grave consequences which woul I ensue, should Acts of such importance as those in question be disallowed, the undersigned cannot see his way clear to make any recommendation to that effect. The attention of your Excellency has also been called to section 156 of chapter 1 with the objection that the powers thereby vested in the Governor in Council are more extensive than is consistent with the public interest, and that a lease containing excep- tional provisions has already been granted by the Commissioner of Public Works and Mines under the authority thereby conferred. Inasmuch, however, as this section aflects merely provincial interests, which are already under the control of the provincial legis- lature, and does not purport to prejudice private vested rights, the undersigned does not consider the objections raised as affording reason for the exercise of the power of dis- allowance. He, therefore, respectfully recommends that these Acts be left to their operation. Chap. 42. "An Act to amend chapter 3, Revised Statutes, 'Of the Composition, Powers and Privileges of the Houses.' " This Act after reciting that the Speaker of the House of Assembly under the authority of the House had issued his warrant directing that one David J. Thomas should be committed to jail for certain reasons in the v/arrant set forth, and that the said Thomas had been detained in custody in the county jail at Halifax, and had been dischaigeil therefrom by an order of the Supreme Court, proceeded to enact that the speaker, the serjeapt-at-arms and the keeper of the county jail should be exon'jrated from all liability to the said Thomas by reason of their action in the premises, and that such Act should be an absolute bar to any proceedings which they have taken or which might thereafter be brought by reason of Mr. Thomas's imprisonment. Tn a petition to your Excellency, Mr. Thomas has prayed for the disallowance of the Act in question. The undersigned is unable to recommend that Mr. Thomas's request should be granted. Legislation of the character in question is not unusual in those countries which have adopted parliamentary systems of government, and it would seem but reasonable that a legislature or a branch of legislature might properly promote legis- lation indemnifying its own officers from the consequence of acts done by its authority. The Act in question does not purport in any way to legalize the proceedings of which Mr. Thomas complains, except in regard to its own officers. It leaves him any remedy which he maJ^ have against those members of the Houpe who voted ^or or were parties to his arr«-*t Jiasi imprisonment. For these reasons the undersigned recommends that the Act be left to its operation. Chap. 11:2 "An Act to amend chapter 92, Acts of 1891, entitled 'An Act to enable the Municipality of Lunenburf, to borrow for a court house.'" This Act aiathorizes the erection of a court house and jail in any town or village within the county were a sitting of the Supreme Court or Country Court is held, and authorizes the purchase of land for the purpose. It also empowers the municipal coun- cil to purcb^we from the town of Lunenburg a building recently erected there for the purpose of ho4 grave consequences stion be disallowed, tion to that elfect. ion 156 of chapter 1 in Council are more fcse containing excep- Public Works and as this section aflects the provincial legis- undersigned does not E the power of dis- ots be left to their Of the Composition, Assembly under the e David J. Thomas t forth, and that the ,lifax, and had been led to enact that the :iould be exonerated le premises, and that have taken or which mt. r the disallowance of i's request should be 1 in those countries it would seem but •operly promote legis- one by its authority, proceedings of which .ves him any remedy id for or were parties !e left to its operation, entitled ' An Act to 1 any town or village y Court is held, and the municipal coun- erected there for the ,1 grounds. It is one, ght to pass, and the m advanced to justify he same be left to its "7^ inister of Jxbstice. Report of the ffonourahle the Minister of Justice, approved by Hia Excellency the Governor General in Council on the Ist July, 1893. Department of Justice, C^ttawa, 13th May, 1893. To His Excellency the Governor General in Council : The undersigned has the honour to report that he has examined the Acts passed by the legislature of the province of Nova Scotia in the fifty-fifth year of Her Majesty's reign (1892), the chapters and titles of which are contained in the annexed schedule- received by the Secretary of State for Canada on the fourth day of August, 1892 ; and he is of the opinion that they are unobjectionable and may be left to their operation. Respectfully submitted, J. ALDRIC OUIMET, Acting Minister of Justice. Schedule. » Chapters 4 to 41, 43 to 111, 113 to 188. i m P'T 682 NOVA SCOTIA LEGISLATION. NOVA SCOTIA, 56TH VICTORIA, 1893. I!. 1. 3rd Session, 30th General Assembly. Report of the Honourable the Minister oj Justice, approved by I iial Excellency the Governor General in Council on the 13th February, 1894- Department ok Justice, Ottawa, 27th January, 1894. 2'o His Excellency the Governor General in Council : The undersigned has the honour to report that he has examined the Acts passed by the legislature of the province of Nova Scotia in the 56th year of Her Majesty's reign (1893), the chapters of which are contained in the annexed schedule, received by the Secretary of State for Canada, and he his of opinion that they are unobjectionable and may be left to their operation. The remaining Acts have been reserved for a separate report The undersigned also recommends that if this report be approved, a copy of the same, with a copy of the schedule of the titles of the Acts, be sent to the Lieutenant- Governor of the province for his information. r.ispectfuUy submitted, JNO. S. D. THOMPSON, Minister of Justice. Schedule. Chapters 1 to 16, 18 to 45, 47 to 51, 53 to 123, 125 to 140, 142, 144 to 154, 156 to 166, 168 to 174, 176 to 192, 194 to 216, 219, 221 to 223. Petition Jrom Mr. Joseph Bingay to the Governor General re Chapter J^6, To His Excellency the Governor General of Canada in Council, The petition of the undersigned Jacob Bingay, of Yarmouth, in the county of Yarmouth, province of Nova Scotia, and Dominion of Canada, humbly showeth — That your petitioner is a shareholder in, and directors of, the Yarii.outh and Annapolis Railway Company, formerly called the Western Counties Railway Company, and has for a number of years past owned one hundred and ninty shares in said com- pany. That the Western Counties Railway Company was incorporated by Act of the legislature of Nova Scotia, passed in the year 18 ('0, being chapter 81 of the Acts of that year, for the purpose, among other things, of constructinsr and operating a railway from Yi rmouth to Annapolis, and that between the years 1870 and 1887, the said Act of incorporation was at different times amended by other Acts of said legislature. That by Acts of the parliament of the Dominion of Canada, passed in the year 1887, being chapters 25 and 77 of the Acts of Can'ada of that year, the Western Counties Railway and all lines of railway then or thereafter owned by the said company, were declared to be works for the general advantage of Canada, and it was also declared by said chapter 77, that all such railways should thereafter be subject to the legislative authority of the parliament of Canada. rfto 66 VICTORIA, 1893. 633 ial Excellency the Fanuary, 1894. sd the Acts passed • of Her Majesty's ledule, received by Eire unobjectionable ved, a copy of the to the Lieutenant- [PSON, ister of Justice. t2, 144 to 154, 156 Chapter 46. 1, in the county of bly showeth — the Yaru-outh and s Railway Company, shares in said com- ited by Act of the 81 of the Acts of operating a railway i 1887, the said Act aid legislature. passed in the year ; year, the Western by the said company, d it was also declared ect to the legislative That by Act of the said parliament of Canada, passed in the present year, chapter 63 of 1893, amongst other things, the name of the said company was changed from Western Counties Railway Company to Yarmouth and Annapolis Railway Company. That im Act of the said legislature of Nova Scotia, passed in the present year, chapter 46 of 1893, an agreement bearing date the 31st day of January, A D. 1893, schedule B to said Act, between the Western Counties Railway Company and certain persons or companies called and referred to as the syndicate, was approved, ratified and confirmed, and declared to he valid and effectual and binding upon the said company. That by Acts of the said legislature of Nova Scotia, passed in the present year 1893, chapter 141 of 1893, amended by chapter 143 of 1893, the Yarmouth and Annapolis Railway Company was empowered, upon being authorized so to do by a vote of the majority of its shareholders, at any general meeting or at any special meeting called for the purpose, to transfer by way of sale to the Windsor and Annapolis Railway CJompany, limited, the said the Yarmouth and Annapolis Railway, and all and singular the under- . taking known as the Yarmouth and Annapolis Railway, formerly the Western Counties Railway, and all the property of the Yarmouth and Annapolis Railway Company, with all its lands, franchises, powers, rights, privileges, equipments, stations, plant, rolling stock and appurtenances. That by order of the Governor in Council for the province of Nova Scotia, lately published in the lioyal Gazette the said chapter 141, as amended by said chapter 143, has been brought into operation in accordance with the provisions of said chapter 143. That for the purposes of this application, petitioner craves to refer to the said Dominion and provincial Acts, and the Jioyal Gazette hereinbefore mentioned. That your petitioner as a shareholder in, and director of, the said company as afore- said, is advised and verily belives that the said Acts of the legislature of Nova Scotia are ultra vires said legislature, and in contravention of the provisions of the British North America Act. And that the said order of the Governor in Council founded on said Acts and the publication thereof as aforesaid, are invalid and void. That your petitioner, shareholder in and director of the said company as aforesaid, objects to and protests against the approval, ratification or confirmation of the said agreement, and to the sale and transfer of the said railway or property thereof, by or under the said Acts, or either of them, as any Act done, deeds or writings executed, or proceedings taken by the company under said Acts, or either of them, would be illegal, and would lead ♦^o complications in the affairs of the company and to extensive litigation. That there is danger that such complications will occur, and such litigation be had, if the said provincial Acts should be sanctioned or be permitted to remain without dis- allowance. That petitioner hereby begs leave to call your attention to the said Acts and to the fact that the same are ultra vires, and prays that the same may be disallowed. And as in duty bound will ever pray, ikc. Dated at Yarmouth, N.S., August 19th, 1883. V Sandford H. Pklton, | Solicitor Jor Petitioner. JACOB BINGAY. Report of the Honourable the Minister of Justice, approved by His Excellency the Governor General in Council on the ISth February, 1894. Department op Justice, Ottawa, 27th January, 1894. To His Excellency the Governor General in Council : The undersigned has the honour to report upon the following Acts passed by the legislature of the province of Nova Scotia in the 56th year oi" Her Majesty's reign (1893), received by the Secretary of State for Canada. _ Chapter 17. " An Act to amend the Towns' Incorporation Act of 1888. Power is given to the town council to make by-laws for the several purposes in the statute mentioned, and to establish penalties for the violation thereof. 684 NOVA SCOTIA LKOIHLATION Some of the powers of legiHlation thus delegated to the town council appear to relate to the subject of criminal law, as for instance the following ; Subsection 42. " The prevention and |)unishraent of vice, drunkenness, immorality and indecency on the pulilic streets, highways and other public places and prevention of profanation of Sunday." Subsection 55. " For preventing the pcjsting of indecent placards, writing or pictures, or the writing of indecent words or making indecent pictures or drawings on walls or fences in streets cr in public places." It appears to the undersigned, however, that there is scope for the exercise of the powers so conferred in matters within the legislative control of the province. Chapter 46. — "An Act respecting the Yarmouth and Annapolis Railway Company." Chapter 141. — -"An Act to authorize the sale of the Yarmouth and Annapolis Railway, formerly the Western Counties Itailway, in the province of Nova Scotia, to the Winc'sor and Annapolis Railway Company, limited." Chapter 143. — "An Act to amend an Act of the present session, entitled: 'An Act to authorize the sale of the Yarmouth and Annapolis Railway (formerly the Western Counties Railway) in the province of Nova Scotia, to the Windsor and Anna- polis Railway Company, limited.' " Chapter 46 confirms an agreement of Slst January, 1893, between the company and certain firms therein referred to as the "syndicate," and provides for the release of the claims of the government of Nova Scotia upon certain debenture stock of the company now held by that government, and the transfer of such stock to the syndicate. It also provides for the cancellation of certain debenture stock of the company, and the payment of the claims of the muiiicipalitits of Digby and Annapolis. Chapter 141 is intended to authorize the sale of the Yarmouth and Annapolis Railway to the Windsor and Annapolis Railway Company : and Chapter 143 is an amendment of the latter Act. A petition of .Facob Bingay of Yarmouth, addressed to your Excellency in Council, has been received by the undersigned. Mr. Bingay states that he is a shareholder and director of the company, and his petition prays for the disallowance of these statutes, mainly upon the ground that they are ult7'a vires, the railway having been declared a work for the general benefit of Canada. The petition is hereto annexed and made a part of this report. It is unnecessary to consider whether the provincial legislature had power to con- firm the agreement set forth in the schedule to chapter 45, because by an Act of parlia- ment, 56 Victoria, chapter 63, the same agreement has been duly ratified and confirmed, and declared to lie valid and binding upon the parties. The remaining provisions of chapter 46 appear to relate chiefly to the payment of the claims of the government of Nova Scotia upon the debenture stock t f the company and the release and cancellation of that stock. The question whether such legislation is within the power of the provincial legis- lature, in view of the fact that the railway has been declared by parliament to be for the general advantage of Canada, is one which may conveniently be decide;! by the courts. As to chapters 141 and 143, which purport to authorize the sale of the railway to the Windsor and Annapolis Railway Company, the undersigned considers it open to very serious doubt whether the provincial legislature has power to authorize such & transfer. The undersigned is informed, however, that this doubt is shared by the officers of the respective companies concerned, and that it is not intended to carry into effect the proposed sale, until legislation authorizing it has been obtained from parliament. The undersigned, under these circumstances, would not recommend the disallowance of these Acts or any of them. Chapter 52. — "An Act to amend chapter 58 of the Acts of 1891, entitled : 'An Act to consolidate and amend the Acts relating to the city of Halifax.' " Section 13 provides that "Every master or other person in charge of any vessel who brings into or leaves in said city any poor or indigent person, who shall or is likely to become chargeable to the city of Halifax, for his or her support, or any such master 56 VICTORIA. 1893. 635 council appear to nnesp, iininorality and prevention of cards, writing or 68 or drawings on he exercise of the avince. ailway Company." th and Annapolis : Nova Scotia, to on, entitled ; 'An 'ay (formerly the indsor and Anna- een the company les for the release iture stock of the : to the syndicate, company, and the Dh and Annapolis jllency in Council, a shareholder and of these statutes, SI been declared a had power to con- ' an Act of parlia- ied and confirmed, ning provisions of bhe government of e and cancellation tie provincial legis- irl lament to be for 36 decided by the 3 of the railway to lers it open to very ize such a transfer. d by the officers of Lrry into effect the parliament. id the disallowance !91, entitled : ' An X.'" arge of any vessel lo shall or is likely or any such master or other person in charge of such vessel, or the agent or consigneo of such vessel, who shall neglect or refuse to receive or put on board puch vessel such poor and indigent person for the pur[)()sn of removing him or her from said city, shall be liable to a penalty not exceeding $200, to be recovered before the stipendiary magistrate for the city, and in default of payment to be imprisoned in the city priHon for a periml not exceeding sixty days." To the extent to which this provision is intended to relate to the subject of immi- gration it is, in the opinion of the undersigned, uUrn vircn. Several statutes have been passed by parliament in relation to the landing in Canada, and removal therefrom, of pauper and other immigrants likely, to become a public charge. The undersigned is of opinion, however, that the provision in questior. may properly lie left to such operation, as it may have with regard to matters within the legislative authority of the province, and not within that of parliament. Chapter 155. — "An Act to incorporate the Annapolis and Granville Bridge and Harbour Improvement Company." This Act recites that the construction of a bridge connecting the town of Annapolis Royal and the township of (Jranville, across the Annapolis River, at the town of Anna- polis Royal and Granville Ferry, would be of great commercial advantage and provide largely increased facilities for traffic. The company is incorporated for the purpose of constructing such a bridge, and the company is empowered to build a bridge of such dimensions and material as may be considered most suitable, and to erect piers and abutments and other structures as may be necessary, provided that the bridge shall have a suitable draw, sufficientlv large to admit of vessels passing through the same in the navigation of the Annapolis River. The undersigned observes that in so far as the Annapolis River is vested in the Dominion of Canada, under the British North America Act, the provincial legislature has not the power to authorize the company to erect the proposed works upon the river, and further that the river being navigable, it is not whithin the power of the provincial legislature to authorize the construction of any works upon it, which would impede or interfere with navigation, except to the extent to which such authority is intended to be subject to the legislation of the Dominion with regard to the construction of works in navigable v/aters. Inasmuch, however, as it may be lawful for the company to pro- secute the proposed work upon obtaining the necessary authority from the Dominion, and complying with the requirements of chapter 92 of the Revised Statutes of Canada, the undersigned would not recommend the disallowance of the Act. Chapter 167. — "An Act to Incorporate the Fisherman's Marine Insurance Company of Lunenburg, limited." By tliiij statute the company is incorporated for the purpose of carrying on the bus)ne.ss of marine insurance. The undersigned observes that the powers conferred upon this company are not strictly limited to a provincial object. The company is given power to make insurance, not only upon any vessel owned and registered in Nova Scotia and engaged in the fishing business, but also upon any vessel engaged in the coasting trade including the freights of such vessels. The expression " coasting trade " is not defined, and it would, in the opinion of the undersigned, be ultra vires of the provincial legislature to an'ihorize a company to insure vessel) not belonging to or engaged in the trade of the province. The undersigned would recommend, t-herefore, that the attention of the government of Nova Scotia be called to the Act, with a view to such an amendment as may pro- perly limit the powers of the company. Chapter 175. — "An Act to incorporate the Stellarton Loan Association." By section 9 it is provided that " the operations of the corporation shall be confined to receiving deposits of money from shareholders and others, and lending money under the terms and regulations to be established by the by-laws of the corporation ; but such loans and deposits shall not at any one time exceed $20,000." Chapter 193. — " An Act to amend an Act to incorporate the Halifax Trust and Loan Society, limited." -■'- taerLi rtv A w iu f ti-n ii«ia K'J^'l^ii^ji>'tVi'^'.'iijea^ssttvwvA viltt' '■■> i '•, G3G NOVA 8C0TI \ I.BdlHLATION. Among tlie powers conferred upon this company im! the following: — (o) "To act as the lisciil or transfer agent of any province, niuniciimlity, body politic or corporation ; ami in sucii capacity to receive and disburse money, and transfer, register and counter- sign certificates of stock, bonds or other evidences of indebtedness." (f) " llecoived deposits of money, securities and other personal property from any person or corporation and t(. loan money on real or personal securities." (h.) " To puchaae, invest in anci sell stock, bills of exchange, bonds and mortgages, and other securities ; and when moneys, or securities for money, are borrowed or received on deposit or for investment, the bonds or obligations of the company may be given therefor, but notiiing herein contained shall bo construed as giving the right to issue bills to circulate as mti.) "To become the agent of bankers, foreign banks or corporations." (n.) "To guarantee the payment of the principal or interest, or both, on bonds of the corporation or individuals." It is in the opinion of the undersigned, open to very serious question whether the provisions above referred to or some of them, do not relate to the subject of banks and banking rather than to any matter within the legislative control of the province. The question, however, is one which may be left to the determination of the courts. Chap. 217. — " An Act to incorporate the Greenwood Cemetery Company." Chap. 218.— "An Act to incorporate the Lockeport Cemetery Company." Chap. 210. — "An Act to i ncorporate the Canso Cemetery Company of Canso Guys- borough County." Each of these statutes contains a provision constituting it an oflence, to wilfully destroy or injure any monument, tree or other property within the cemetery of the respective tompiinies. The undersigned calls attention to these provisions rs possibly relating to the sub- ject of criminal law, and not within the legislative control of the province. The undersigned recommends that each of the statutes referred to in this report, be left to its operation, and that a cony of this report, if approved be transmitted to the Lieutenant-Governor of Nova Scotia. Respectfully submitted, JNO S. D. THOMPSON, Minister of Justice. Petition from Toum of New Glasgow to the Governor General re Cliapter 124- To His Excellency the Goverjior General in Council : — The petition of the town of New Glasgow, in the county of Pictou, and provii.ie of Nova Scotia, humbly showeth : 1. That it is a town of New Glasgow, in the county of Pictou, and province of Nova Scotia, humbly showeth : 2. That in the year 1887 it constructed water-works under the authority of the legislature of Nova Scotia and has ever since owned and operated the same. .3. That the source of supply of water for the petitioner is the East River of Pictou • and the petitioner's pumps and machinery are erected on the east side of said river at a point nearly opposite to the town of Stellarton. 4. That your petitioner on the 19th day of June, A.D. 1889, entered into a con- tract with Her Majesty the Queen represented by Sir John A. Macdonald, Acting Minister of Railways and Canals of Canada, under which said t/3Wn agreed to provide and supply to the Intercolonial Railway from time to time and at all times during the ..>V«', % Vf.'^ ▼ „c.. -i^^^^ ■V^ ^.Q ^*^ 7 IMAGE EVALUATION TEST TARGET (MT-3) tGU Mta "•WWWBf" Photographic Sdaices Corporation CmM/ICMH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadian Institute for Historical Microreproductions / Institut Canadian de microreproductions historiques period of 10 years from the date of sdid agreement, all the water which might be required at New Glasgow and Stellarton for locomotive engines, engine houses, cars, stations, shops, yards, and other railway purposes, and the said miniistcr agreed to pay to said town for whatever water might be required and supplied under said agreement, the sum of 6 cents for each 1,000 imperial gallons. 5. That under the said contract the said minister agreed to lay the pipe from the railway yard at Stellarton to the pumping-house of the petitioner on the said East River, and thereafter to a .aintain the half nearest said station in good repair ; petitioner agree- ing to keep the other half, in repair. 6. That your petitioner appends hereto a copy of said contract. 7 That your petitioner in the said year 1889, duplicated its pumps and machinery and when so doing, in order to carry out said contract and others which it was negotiat- ing for, was compelled to put in very much heavier and more costly machinery than it otherwise would have needed. 8. That your petitioner has received each year between five and six hundred dollars for water supplied under said contract. 9. That your petitioner on the 31st day of July, A. D. 1889, entered into a contract with the Acadia Coal Company doing business at Stellarton aforesaid, to supply water to it. Your petitioner herewith presents a copy of said contract. 10 That your petitioner since the making of said contract has received between four and five hundred dollars each year for water supplied thereunder. The amount received varying slightly each year. 11. That your petitioner presents herewith a certified copy of an Act passed by the legislature of Nova Scotia entitled "An Act relating to the town of Stellarton," f petition from the session of the Nova 1 of Stellarton and 56 VICTORIA, 1893. 639 New Glasgow, I have been instructed by the town council of Stellarton to make the following statement. Paragraphs 1, 2 and 3 of the petitions require no comment. As to paragraph 4 it may bo stated that at the date of the alleged contract the question of incorporation was being agitated in Stellarton, and three months later the necessary preliminaries had bnen complied with to anable Stellarton to take advantages of the "Town Incorporation Act, 1888," the introduction of water for fire and domestic pur- poses was a potent argument in favour of incorporation and was extensively used in that connection. New Glasgow undertook to supply water to the Intercolonial Railway in Stellarton without having obtained any legislative sanction for that purpose, altough they deemed it wise to procure the authority of parliament before supplying water in the village of Trenton. It is clear that New Glasgow could not at that time have procured such legislation, as application had been made to the provincial government by Stellarton for incorportion, and the provincial government is always careful to protect the territory of an incorporated town from such invasion. After the iii'iorporation of Stellarton, negotiations were entered into by which Stellarton should be supplied with water, by New Glasgow, but owing to obnoxious stipulations insisted upon by New Glasgow they fell to the ground. Stellarton then /esolved to equip a water system of its own, and to borrow .f 30,000 for that purpose, provided the legislature would pass an Act giving to Stellarton the exclusive right to supply water within the town limits, whenever the Stellarton system should be completed. This Act was duly passed (See chap. 122 of the Acts of Nova Scotia for 1892) and was agreed to by the New Glasgow representatives before the committee of the House. The Act as will Le seen contained a proviso that the actual outlay made by the town of New Glasgow should be paid by the town of Stellarton. After the passing of the above Act attempts were made to arrange an amicable settlement of the amount to be paid to New Glasgow hy Stellarton under the Act, but New Glasgow held out for some $7,000 a preposterous claim, to which Stellarton could not in justice to itself accede, further legislation was then sought for by Stellarton, and the Act of 1893 was passed, after most strenuous opposition on the part of New Glasgow. Acting upon legal advice, Stellarton disconnected the pipes of the Acadia Coal Company from the New Glagow water system, and made a connection with the Stel- larton system, and were about to do the same with the Dominion Government pipes when the town of New Glasgow procured a restraining order, to dissolve which a motion is now pending undecided. A mi>bion has also been made and is also undecided, to pro- hibit the town of New Glasgow from supplying water in Stellarton. As to paragraph 7 it is submitted that the statements therein made are false and misleading, as can be shown by the reports of the town of New Glasgow of 1889 and 1890, and by the recommendation of the engineer then in charge. As to paragraph 12 it is submitted that there was no intention on the part of the legislature of Nova Scotia to prejudicially affect any contract made by Her Majesty through a department of the government of Canada, The legislation in question was aimed at New Glasgow solely and was intended to supplement the Act of 1892, which as has been before stated was agreed to by New Glasgow, which they are now endeavouring to repudiate. It was assumed both by the legislature and by the Stellarton authorities that it would be a matter of indifference to the Dominion Government, whether their water came from the New Glasgow system or the Stellarton system, and in any case the Act in question is at the most but a technical interferense with Dominion Government rights, and should not be disallowed on that account merely. It would be inequitable for the g^.vernment of Canada to throw its weight on the side of New Glasgow for the following reasons : (a) Because New Glasgow had in 1889 no authority to supply water in Stellarton. (6) Because New Glasgow concurred in the Act of 1892, and are now endeavouring to evade the effect of such concurrence. ■I ■li \) f>!! I ^ It IM: 640 NOVA SCOTIA LEGISLATION (<•) Because Sfceilarton harrowed $30,000, floated its bonds iand constructed the work upon the faith of New Glasgow's consent of 1892, and fully believing that upon the completion of their system all revenue accruing within the town limits would be available to meet interest on the bonds. The Acadia Coal Company were consenting parties to the Act of 1893 and to the change of connection. So far as the interference with their contract was concerned it comes within section 92 of the British North America Act, subsection 8 and 13 and the act so far as the company is concerned is intra vires of the legislature of Nova Scotia. Respectfully submitted, Donald Gray, Town Clerk. JAMES MITCHELL, Mayor. Dej}uty Minister of Justice to W. B. Boss, Q.C. Ottawa, 4th April, 1894. Dear Sir, — Referring to the petition asking for the disallowance of chapter 122 of the Nova Scotia Acts of 1893, which you forwarded some time ago to this department, I would be glad if you would inform me whether the reasons urged for disallowance on behalf of your clients still hold good. I am informed by the Attorney General of Nova Scotia that an amending statute was passed at the last session of the legislature repeal- ing those sections which afiFect the interest of the government of Canada, and I think that I also understood from you in conversation last fall that an amicable settlement had . been arrived at or was likely to be reached between your clients and the town of Stel- larton with regard to the matter. I will be obliged, thefore, if ycu will inform me what the attitude of your clients now is. Yours very truly, E. L. NEWCOMBE. W. B, Boss, Q.C, to Deputy Minisfo-r oj Justice. Halifax, N. S., 12th April, 1894. Sib, — I have the honour of acknowledging the receipt of your letter of the 4th inst, I now beg to inclose a certified copy of the Act passed at the last session of the legisla- ture of Nova Scotia, amending chapter 124 of the Acts of 1893, this latter being the one complained of by me as ultra vires of the legislature of Nova Scotia. I beg to call your attention to the fact that section one of chapter 124 has not been repealed or modified. I do not wish to urge the reasons with which you are already conversant. I submit that the Act should be dissallowed as being tiHi-a vires. I should state that the Act, a copy of which I am forwarding, was passed without any notice to and without the knowledge of me and of my clients, the town of New Glasgow. My clients are in no way a party to this amended legislation, and so far as they can see, think that this is a disingenuous attempt to avoid the objections already urged against chapter 1 24. No settlement has been reached between the two towns. Yours very truly, ' -W. B. ROSS. and constructed the believing that upon own limits would be of 1893 and to the ct was concerned it lection 8 and 13 and e legislature of Nova lELL, Mayor. 4th April, 1894. ince of chapter 122 to this department, 1 for disallowance on ney General of Nova ;he legislature repeal- /anada, and I think icable settlement had . id the town of Stel- itude of your clients )MBE. 2th April, 1894. letter of the 4th inst. session of the legisla- this latter being the cotia. I beg to call not been repealed or B already conversant. I should state that notice to and without My clients are in see, think that this against chapter 124. ROSS. Halifax, N.S., 21st August, 1893. SiH, I have the honour to acknowledge the receipt of your letter of June 21st last containing copies of a communication from the Attorney General of Nova Scotia and another from the town of Stellarton. There is nothing in the letter of the Attorney General on which I desire to comment. There are two points in the communication from Stellarton, to which I wish to refer. 1st. Aa to the consent of New Glasgow gave to the legislation of 1892. (n) The legislation of 1892 is not under di cussion. (6) I inclose two statutory declarations of John MacGilvray and A. M. Fraser which negative any such consent. 2nd. With reierence to New Glnsgow supplying water outside its limits. (a) New G'aagow pumps the water into pipes within its jurisdiction and does not act outside. (6) The case of Pudsay Coal Company, aajainst corporation of Bradford (L. R. 15 Equity 167) shows that Stellarton has no right to complain in any view of the facts. (c) The railway department of Canada knows the facts about the supply of water to it by New Glasgow, and that before laying of the pipes at Stellarton that they had to go to the town of New Glasgow with their engines for water. I have &c., W. B. ROSS. Report of the Hon. the Minister of Justice, approved by His Excellency the Governor General in Council, on the 7th June, 1894. Department of Justice, Ottawa, 1st June, 1894, To His Excellency the Governor General in Council : The undersigned has the honour to report upon chapter 124 of the Acts passed by the legislature of the province of Nova Scotia, in the fifty-sixth year of Her Majesty's reign (1893), received by the Secretary of State for Canada, as follows : — Chapter 124.—" An Act relating to the Town, of Stellarton." A petition on behalf of the town of New Glasgow has been received by the under- signed, addressed to your Excellency in Council, praying for the disallowance of this Act, upon the grounds set forth therein. Such petition with the correspondance relat- ing thereto, is hereunto annexed and made part of this report. The Act recites that by chapter 122 of the Acts of 1892 it was provided that when the town of Stellarton should have established a system of waterworks, and should be prepared to supply water within the town at a price not exceeding that which is paid for water supplied in the town under agreement with the town of New Glasgow, the town of Stellarton should have the exclusive right to supply water within the limits of the town of Stellarton, provided that the town of Sceilarton should pay the actual outlay which the town of New Glasgow had made. The Act further receites that the town of Stellarton has established a system of waterworks, and is prepared to supply water within the town at a price not exceeding that paid for water supplied within the town under agreement with the town of New Glasgow, and that the town of Stellarton is prepared to pay the extra outlay actually made by the town of New Glasgow ; and the Act provides that the town of Stellarton shall have the absolute and exclusive right to sell and supply water wihin the town of Stellarton ; that it shall be unlawful for the town of New Glasgaw to sell or furnish water to any person, firm, corporation, com- pany, government or railway within the limits of the town of Stellarton ; that all con- tracts existing between the town of New Glasgow and any person, firm, corporation, ^,'>9i««ffliw 642 NOVA BCOTIA LEGISLATION company, government or railway for the Bupply of water within the town of Stellarton are thereby assigned to the town of Stellarton, and that the town of Stellarton shall be liable to, and shall fill such contract, and supply the water required thereby upon the same prices as previously charged by the tiwn of New Glasi;ow under agrement with that town It further authorizes the officers of the town of Stellarton to disconnect the pipes of the Intercolonial Railway or the government of Canada running into the town of Stel- larton from the pumping station of the town of New Glasgow, and to connect its own pipes with the pipes of the Intercolonial Railway or government of Canada, and with the pipes of the Acadia Coal Company, limited ; and lastly, the Act provides for the pay- ment by the town of Stellarton to the town of New Glasgow of an amount representing the actual expenditure made by the town of New Glasgow in connection with the water supplied to the Intercolonial Railway and to the Acadia Coal Company in the town of Stellarton, such amount to l-e fixed by arbitrators chosen under the provision of the Act. It appears that at the time this statute was passed there were two contracts in existence, one between the town of New Glasgow and Her Majesty the Queen, repre- sented by the Minister of Railways and Canals of Canada, and the other between the town of New Glasgow and the Acadia Coal Company. The former contract bears date 19th of June, 1889, and the latter 31st of July, 1891, and these contracts provide for the supply of water by the town of New Glasgow for the period of ten years for the use of the Intercolonial Railway and the Acadia Coal Company, it being stipulated that the water should be supplied at the works of the railway and the company respectively, at Stellarton, by means of pipes laid from the pumping-house of the town of new Glasgow to the points of supply, the water to be paid for by measurement accoT ding to prices stated in the contract. The intention of the Act, therefore, appears to be to give to the town of Stellarton the benefit of these contracts, without the con- sent of any of the contracting parties and to authorize the town of Stellarton to discon- nect the works of the Intercolonial Railway and the Acadia Coal Company from the water supply of the town of New Glasgow, and connect them with that of the town of Stellarton. While, therefore, this statute would in its operation interfere with the vested rights acquired under the above mentioned contracts, the undersigned observes that provision is made fur compensation to the town of New Glasgow for its actual expenditure in connection with these contracts, and further that the obligation is imposed upon the town of Stellarton of carrying out the provisions of the contracts so far as the other contracting parties are concerned. It appeared to the undersigned, howev3r, that the Act was ultra vires because it aTected the public property of Canada, and was intended to interfere with the obligation of a contract to which the Crown, in the right of Canada, is a party, and to require the Crown to accept the obligation of the town of Stellarton to cary out the contract existing between Her Majesty and the town of New Glasgow. The undersigned therefore caused these objections to be brought to the attention of i;he Attorney General of Nova Scotia in order that they might be removed by amend- m».it, and the undersigned is now informed that by an Act of the Provincial Legislature which received assent on the 12th of February last, the statute in question has been amended so as to remove these provisions which relate to the public property of Canada and the contract of Her Majesty. In view of such amendment the undersigned recommends that the power of dis- allowance be not exercised. The undersigned further recommends that this report be approved, a copy of the same be sent to the Lieutenant-Governor of the province for his information. Respectfully submitted, J. S. D. THOMPSON, Minister of Justice. 57 VICTORIA, 1894. 643 e town of Stftll/vrton f Stellarton shall be lereby upon the same nent with that town connect the pipes of ito the town of Stel- to connect its own uanada, and with the •ovides for the pay- amount representing connection with the )al Company in the L under the provision I'ere two contracts in ;y the Queen, repre- le other between the contract bears date contracts provide for >f ten years for the y, it being stipulated Y and the company g-house of the town for by measurement ct, therefore, appears ts, without the con- Stellarton to discon- Company from the h that of the town of with the vested rights serves that provision jctual expenditure in IS imposed upon the its so far as the other ultra vires because it •e with the obligation by, and lo require the iry out the contract ught to the attention le removed by amend- Proyincial Legislature ! in question has been ic property of Canada that the power of dis- jproved, a copy of the iformation. lOMPSON, inister of Justice. NOVA SUOTIA, 57th VICTORIA, 1891. 4th Session, 30th General Assembly. Report of the Hon. the Mirdater of Justice, ajypr^' respectfully submitted. JOHN A. MACDONALD. 4U ttda^St^-" 648 NEW BRUNSWICK LEGISLATION Report of the Hon. the Minister of Justice, approved hy His E.r.cpUency the Governor General in Council on the 18th September, 1808. Department of Justich;, Ottawa, 16th September, 18G8. The undersigned after full consideration has the honour to report that, in his opinion, the following Acts passed by the legislature of the province of New Bruns- wick at its last session, 31st Victoria, should be left to their operation : — Chap. 10, — "An Act to authorize the Town of Woodstock to aid further in the construction of the Woodstock Railway, and to authorize the Woodstock Railway Company to give security therefor." Chap. 57. — " An Act to extend the time for building the Albert Railway." With respect to the latter Act the undersigned thinks it necessary to call the attention of your Excellency to the fact that the Albert Railway is one of those to which a subsidy was granted by the 27th Vic, chap. 3, of New Brunswick. {See Statutes of New Brunswick, 32nd Victoria, chap. 57, 1869.) This subsidy is a liability of the province for which, under the Union Act the Dominion must provide. It is, however, clear that only those liabilities that existed at the time of the union are to be met by the general government, and that the obligation to pay the subsidy cannot be extended by the provincial legislature, by any legislation since that time. The attention of the provincial government should be called to this, so that they may, should they deem it expedient, submit a measure to the provincial legislature granting a subsidy to the railway, if commenced and completed under the Act in question. JOHN A. MACDOJSfALD. Report oj the Hon, tlie Minister of Justice, approved by His Sxcellency the Governor General in Couny^U o'.i tlie 18th September, 1868. Department of Justice, Ottawa, 16th September, 1868. In reference to the following Acts passed by the legislature of the province of New Brunswick at itb iaat session, 31st Victoria, the undersignsd has the honour to report as follows : — Chap. 25. — " An Act to exempt the homesteads of families from levy or sale on execution." The 9th section of this Act is objectionable, inasmuch as it declares that a fradu- lent violation of an oath taken by an appraiser shall be a felony, punishable as for wilful and corrupt perjury. (The 9th section of this Act repealed hy statute of New Brunswick, 32nd VictoriUf chap. 18, 1869.) This is legislation respecting the criminal law, which appertains solely to the parliament of the Dominion, and the undersigned recommends that the attention of the government of New Brunswick be called to the clause, suggesting that it should be repealed next session, and no action be taken upon it meanwhile. Chap. 56. — " An Act relating to the Central Bank of New Brunswick." This Act appears to be objectionable, inasmuch as it relates to banking and the issue of paper money, and should have emanated from the general parliament. The attention of the provincial government is invited to this Act. (Repealed by statute of New Brunswick, 32nd Victoria, c/iap. 27, 1869.) All which, &c. JOHN A. MACDONALD. KM 31 VICTORIA, 1867-8 649 llency the Governor sptember, 18G8. ) report that, in his noe of New Bruns- ion : — X) aid further in the iVoodstock Railway rt Railway." ecessary to call the y is one of those to nswick. ?•) the Union Act the lities that existed at id that the obligation 3, by any legislation to this, so that they •rovincial legislature under the Act va. lACDCXNALD. cellency the Governor eptember, 1868. 3 of the province of i has the honour ta om levy or sale on eclares that a fradu- nishable as for wilful wick, 32nd Victoria^ irtains solely to the t the attention of the ng that it should be •unswick." to banking and the •al parliament. The ^7, 1869.) klACDONALD. Memorandum re Reserved Bill, On the despatch of the Lieutenant-Governor of New Brunswick, 1st of April, 1868, transmitting an Act relating to presentation to parishes in the city and county of St John, and county of Westmoreland, in the province of New Brunswick, which had been reserved for the assent of the Governor General, the Minister of Justice reported on the 19th of July, 1869 as follows: j , •. f .k " This Act having been largely petitioned against by the clergy and laity ot the Church of England in New Brunswick, it has been thought advisable to allow the year to expire within which a reserved bill must be assented to, if assented to at all. Ihat year has expired and the Acts falls to the ground. The legislature of New Brunswick has since passed a General Act relating to presentations to rectories, 61 Vic, chap. The despatch containing the reserved Act in question, together with all the peti- tions against it should be returned to the Secretary of State for the provinces, to be put on file there, JOHN A. MACDONALD. i' 650 NEW BRUNSWICK LEGISLATION NEW BRUNSWICK, 32nd VICTORIA, 1869. (4th Session — 22nd General Assembly.) /■•■ Report of the Hon. the Minister of Justice, npjyroved by Nis Excellency the Governor General in Council on the 17th August, 1869. Department of Justice, Ottawa, 12th August, 1869. With reference to the Imperial British North America Act, 1867, and also to the Order in Council of the 9th June, 1868, on the memorandun of the undersigned, relative to the course to be pursued with respect to the Acts passed by the provincial legislatures, the undersigned has the honour to report : / Thai ho considers the Acts mentioned in the annexed schedule, passed by the legislature of the province of New Brunswick in the fourth session of the twenty- second general assembly thereof (being the second session since the passing of the British North America Act, 1867) to be free from objection of any kind. He, therefore, recommends that the same be left to their operation. SCHEDULE. Chapters 1, 2, 4, 7, 8, 10, 12, 13, 14, 16 to 33, 35 to 53, 55 to 68, 70 to V9, 81 to 85, 87 to 91. JOHN A. MACDONALD. Report of the Hon. the Minister of Justice approved by His Excellency the Governor General in Council on the 20th Augnst, 18fJ9. I Department of Justice, Ottawa, 14th August, 1869. The undersigned, to whom was referred tLe bill reserved by the Lieutenant-Gov- ernor of New Brunswick, on the 21st of April, 1869, intituled : " A bill relating to the appointment of Justices of the Peace in the several Counties of the Province," chap. 92, of Acts of 1870, begs leave to report ; That he has carefully considered the provisions of the said bill, and that he is of opinion that it is within the jurisdiction of the legislature of New Brunswick, and that it is unobjectionable. He, therefore, recommends that your Excellency do give your ssent thereto. All which is respectfully submitted. JOHN A. MACDONALD. Order in Council giving assent to tlve Act above mentioned published, in Canada Gazette on the 4th day of December, 1869. Vol. I J I., No. ,iS, pa^e 386. 32 VICTORIA, 1869 €-.1 69. ency the Governor August, 1869. >7, and also to the the undersigned, by the provincial lie, passed by the )n of the twenty- he passing of the nd. He, therefore, 58, 70 to V9, 81 to MCDONALD. ency the Governor August, 1869. e Lieutenant-Gov- he several Counties , and that he is of runs wick, and that 3ncy do give your MCDONALD. blished, in Canada 0. Petition of certain Inhabitants of the City of St. John. To Hia Eiceellency the Riyht Hon. Sir John Young, Baronet, K.C.B.. K.C. M.G., April, 1870. With reference to the Act passed by the legislature of the province of New Brunswick in the fourth session of the twenty-second General Assembly thereof (being the second session since the passing of the British North America Act, 1867), entitled : " An Act in addition to, and in amendment of, Chap. 60, Title VTII., of the Revised "Statutes, 'Of Harbours.'" And which Act was reserved by the Lieutenant-Oovernor of the province for the assent of his Excellency the Governor General, the undersigned has the honour to report : That in his opinion the Act in question is beyond the jurisdiction of the local legislature. He therefore begs leave to recommend that your Ex'^ellency do not give your assent thereto. All which, ikc. JOHN A. MACDONALD. GRANVILLE. Excellency the Governor S70. WA, 11th April, 1870. if the province of New ereof (being the second 1867,") entitled : "An arved by the Lieutenant- I honour to report : or the Colonies, for the »y report 'that the same af New Brunswick. He 'our assent thereto. A. MACDONALD. ed, jnMithtd in Canada 660 NEW IIKUNHWICK LKlilHLATIO.N 1 NEW BRUNSWICK, IVdUD VICTORIA, 1870. (6th Sehhion — 22NO (Jknkral Anhbmdly.) Report of the Hon. the Minister of Justice, approved by Hiit Kicdlcncy the Governor (ieneral in Council on tlie ^j^lh October, lS7(f. Department of Justice, Ottawa, 20th Octoljer, 1870. With reference to the Imperial British North America Act, 1867, iiiid also to the Order in Council of the 9th June, 1858, on the memorandum of the undersigned rela- tive to the course tt) be pursued with respect to the Acts passed by the provincial legis- latures, the undersigned has the honour to report : That in his opinion all the Acts passed by the legislature of the province of New Brunswick in the last session, being the fifth session of the twenty-second General Assembly (with the exception of chapter 35), are free from objection of any kind. He therefore recommends that the same be left to their operation. That with reference to chapter 35, entitled : " An Act to divide the Parish of St. Stephen, in the County of Charlotte, and to erect a separate District for Ecclesiastical purjjoses," th' ■ " are two petitions before his Excellency praying that the Act be disallowed, after usideration of which a further report will be made. All which, ikc. JOHN A. MACDONALD. Note. — The Act above mentioned, r/iapter S-'f, has been alJowed to go into operation by efflux oj time. 1l 34 VICTOKIA, 1871. 661 NEW imUNSWI(M<, .UTii VKTORIA, 1H71. (2nd Hkhhion-22ni. (Iknkkai. Ahhkmhi.v.) lieHlwanlGmwnor [Vilmot to the SecreUiry of State Jor the Ptomneet. GovKRNMKNT HoUHK, Nkw Hkunswick, 29th May, 1871. Slu,— I have the honour to inclose the copy of " An Act relating to tho Hynwl of the Church of England, in the Diocese of Fredericton and Province of Nth June, 1871. The undersigned has the honour to report that a bill passed by the legislature of New Brunswick at its late session, chap. 8, entitled : " A Bill relating to the Synod of the Church of England, in the Diocese of Fredericton and Province of New Brunswick,' has been reserved and transmitted by the Lieutenant-Governor of that province for the signification of the pleasure of your Excellency. The undersigned having carefully examined the provisions of the said bill, is ot opinion that it is within the jurisdiction of the legislature of New Brunswick, and as no rights of the Crown are affected by it, he recommends that your Excellency do give your assent thereto. All of which is respectfully submitted. .TOHN A. MACDONALD. Proclamation giving assent to the Act above mentioned, published in ihe Canada Gazette on the 7th day of June, 1871, vol. IV, No. 50, page 1169. Iteport of the Honourable the Minister of Justice approved by His Excellency the Governor General in Council, on the 2find January, 1872. Department of Justice, Ottawa, 20th January, 1872. The undersigned, ^,o whom were referred certified copies of the Acts of the General Assembly of the province of New Brunswick, passed in the month of May, 1871, in the thirty-fourth year of Her Majesty's reign, has the honour to report that all the said Acts, excepting chapters 1, 16 and 19, are free from objection, and he recommends that they be left to their operation. 42 1 1 1^ ^; 1)1 !i 662 NEW BRUNSWICK LEGISLATION With respect to chapter 1, the 14th section of the Act is in excess of jurisdiction. It provides that the police magistrate of the city of Fredericton shall have power to do alone such acts as are required to be done by two or more justices of the peace. This provision ia general in its terms, and would be held, it is presumed, to authorize the police magistrate to act alone in criminal cases where the statutes of the Dominion provide that two or more justices must act. Such an enactment, though a very proper one, is beyond the competence of the local legislature, as it, in effect, repeals the pro- vision ill the Act of ihe general legislature. The atteiition of the government of New Brunswick should be invited to this, with the view of having the clause amended at the next session. There will be no difficulty in obtaining a general Act from the Dominion Parliament, providing that police and stipendiary magistrates should have the powers usually conferred on two or more justices. It should alfco be noticed that the 2nd clause recites the title of the Act inaccurately, which error should be amended. Chapter 19, " An Act to authorize the appointment of a District or Stipendiary Magistrate for the County of Gloucester," is objectionable, for the same reason as above given respecting chapter I. With respect to cliapter 6, intituled : " An Act in addition to an Act passed in t 33rd year of the reign of her present Majesty, intituled : " An Act to continue and amend an Act to regulate the sale of Spirituous Liquors," — the undersigned thinks it well to remark, that he entertains considerable doubt whether it, and the Act which it amends, are not, in some respects, ultra vires. The 92nd section of the Union Act gives to provincial legislatures the exclusive power 01 making laws in relation *n shop, saloon, tavern auctioneer and other licenses, in order to the raising of revenue for provincial, local or municipal purposes. The Acts in question, however, go iw'rther than making provision for the raising of revenue by charging license fees. They contain certain clauses placing restrictions on the i«f^ue of tavern licenses, such restrictions having no connection with any revenue. Now, by the Union Act, the duty of all legislation relating to the regulation of tr.ide and commerce, is thrown upon the general legislature, and, in the opinion of the undersigned, the provisions in these Acts are in regulation of trade, and do not concern the raisin'j; of revenue. The undersigned recommends that the Act be left to its operation, leaving it to any persons thinking themselves aggiieved by any action under these provincial statutes, to test their constitutionality in the courts. The attention of the provincial govern ment should, however, be called to the matter as worthy of their consideration. Numerous petitions to his Excellency the Governor General, from the Roman Catholics of New Brunswick, most respectably signed, have been received, praying that the Act, chapter 21, intituled : "An Act relating to Common Schools," be disallowed The grounds upon which this prayer is based are : 1. That the Act will greatly destroy or greatly diminish the educational p^ivilege^ which Catholics enjoyed at the time of the passing of the British North America Act and subsequently. 2. That the pecuniary grants hitherto made to the graded schools h-ive been taker away, although to these grants Catholics may, in most cases, be fairly regarded as having a prescriptive right. Now the provincial legislatures have exclusive powers to make laws in relatioi to education, subject to the provisions of the 93rd clause of the British North Americi Act. Those provisions apply exclusively to the denominational, separate or dissentien schools, they do not, in any way, affect or lessen the power of such provincial legisk tures to pass iaws inspecting the general educational- system of the province. The Act complained of is an Act relating to Common Schools, and the Acts repeal© by it apply to pa-ish grammar, superior and common schools. No reference is made in them to separate, dissentient or denominational schooh and the undtrbigned does not, on examination, find that any statute of the provinc exists establishing such special schools. \T??I' in excess of jurisdiction, n shall have power to do ses of the peace, is presumed, to authorize tat'jtes of the Dominion nt, though a very proper n eflFect, repeals the pro- ould be invited to this, ssioii. There will be no irliament, providing that aally conferred on two or le of the Act inaccurately, District or Stipendiary the same reason as above tion to an Act passed in ' An Act to continue —the under8^gn^^d thinks ler it, and the Act which legislatures the exclusive ioneer and other licenses, sipal purposes, provision for the raising jes placing restrictions on ectioii with any revenue, .ting to the regulation of and, in the opinion of the trade, and do not concern operation, leaving it to any these provincial statutes, of the provincial govern- leir consideration, xeneral, from the Roman een received, praying that n Schools," be disallowed. the educational privileges itish North America Act, d schools hive been taken »e fairly regarded as having bo make laws in relation he British North America lal, separate or dissentient •f such provincial legisla- )f the province, lools, and the Acts repealed r denominational schools, y statute of the province 34 VICTORIA, 1871. 663 It may be that the Act in question may operate unfavourably on the Catholics or on other religious denominations, and if so, it is for 'ucb religious bodies to appeal to the provincial legislature, which has the sole power to grant ledress. As, therefore, the Act applies to the whole school system of New Brunswick, and is not specially applicable to denominational schools, the Governor General, has, in the opinion of the undersigned, no right to intervene. As to the second objection respecting pecuniary grants, these must, of course, be under the annual supervision of the legislature, which has the sole power to deal with the public funds ; unless, by special enactment, those grants have been conferred for a specified period by an Act of the legislature. In such case the grant might be considered in the nature of a contract, and the repeal might be held to a breach of that contract. The undersigned does not find that any such statutory contract has been made. Under the circumstances he is, therefore, of opinion that no other course is open to the Governor General, than to allovi' the Act to go into operation. All which is respectfully submitted. JOHN A. MACDONALD. Report of the Hon. tJie Mi nister of Justice, approved by His Excellency the Governw Genera^ in Council on the 6th day of November, 1872. Department of Justice, Ottawa, 30th October, 1872. The undersigned has the honour to report : — 1. That, upon the 30th . May last, the House of Commons of Canada passed the following resolution : — " That this House regrets that the School Act recently passed in New Brunswick is unsatisfactory to a portion of the inhabitant" of that province, and hopes that it may 'of so modified during the next session of the legislature of New Brunswick, as to remove any just grounds of discontent that now exist, and this House deems it expedient that the opinion of the law officers of the Crown in England, and, if possible that of the Judicial Committee of the Privy Council, should be obtained as to the right of the New Brunswick legislature to make such changes in the school laws, as deprived tine Iloraan Catholics of the privileges they enjoyed at the time of the union, in respect of religious education in the common schools, with the view of ascertaining whether the case comes within the terms of the 4th subsection of the 93rd clause of the British North America Act, 1867, which authorizes the Parliament of Canada to enact remedial lav'? ifir the execution of the provisions respecting education in the said Act. The House divided, and it was resolved in the affirmative." 2. That the sections of the British North America Act, 1867, to which allusion is above made, are as as follows : " EDUCATION. " 93. In and for each province the legislature may exclusively make laws in rela- tion to education, subject and according to the following provisions : — " (1.) Nothing in any such law shall prejudicially affiict any right or privilege with resfject to denominational schools which any class of persons have by law in the province at the union : " (2.) All the powers, privileges and duties at the union, by law conferred and imposed in Upper Canada, on the separate schools and school trustees of the Queen's Roman Catholic subjects shall be, and the same are hereby, extended to the dissentient schools of the Queen's Protestant and Roman Catholic subjects in Quebec : " (3.) Where in any province a system of separate or diweentient schools exists by law at the uuion, or is thereafter established by the legislature of the province, an 42J r 664 NEW BRUNSWICK LEGISLATION appeal shall lie to the Governor (Jeneral in Council, from any Act or decision of any provincial authority aflfecting any right or privilege of the Protestant or Roman Catholic minority of the Queen's subjects, in relation to education : " (4.) In case any such provincial law, as from time to time, seems, to the Governor General in Council, requisite for the due execution of the provisions of this section, is not made, or in case any decision of the Governor General in Council on any appeal under this section, is not duly executed by the proper provincial authority in that behalf, then and in every such case, and as fir only as the circumstances of each case require, the Parliament of Canada may make remedial laws for the due execution of the provi- sions of this section, and of any decision of the Governor General in Council under this section." 3. That the Act of the province of New Brunswick, of 1871, referred to in the resolution of the House of Commons, is as follows : — 34th Vic, cap. 21, 1871. — "An Act relating to Common Schools," passed 17th May, 1871." 4. That an appeal by petition was thereupon made to his Excellency the Governor General, by the Roman Catholic hierarchy, clergy and laity of the province, against the last recited Act, and praying that his Excellency would be pleased to disallow the sameunder the powers conferred by the British North America Act, 1867. The petition which was printed in numerous copies, and signed by the Roman Catholics in difFeren) parts ot the province, is as follows : — " To Hia Edxellency tii£ Right Honourable Baron Liagar, G.C.M.G., Governor Geneial of Canada, (kc, <£"(•., «b.^ ^'> his Excellency the respecting the New ed amendment, That the following inserted ity, praying that she itish North America tended at the time of denomination in the ossess all such rights, lomination enjoyed in led Act ; to the same established by law.' motion of Hon. Mr. hen the first order of iigan's motion, for an school law : — and of ;•. Chauveau's amend- whether the case comes within (.he term of the 4th subsection of the 93rd clause of the British North Americ i Act, 1867, which authorizes the Parliament of Canada to enact remedial laws for the due exec Uion of the provisions respecting education of the said Act ; ' the House divided, and it was resolved in the affirmative." In accordance, therefore, with the resolution of the House of Commons, the under- signed has the honour to recommend that his Excellency the Governor General be requested to transmit the statement herein made to Her Majesty's Secretary of 8tate for the Colonies, in order that the opinion of the law officers of the Crown in England, and if possible the opinion of the Judicial Committee of the Privy Council, may be obtained as to the right of the New Brunswick legislature to make such changes in the school law, as deprived Roman Catholics of the privileges they enjoyed at the time of the union in respect of religious education in the common schools, with the view of ascertaining whether the case comes within the terms of the 4th subsection of the 93rd clause of the British North America Act, 1867, wi:ich authorizes the Parliament of Canada to enact remedial laws for the due execution of the provisions respecting education in the said Act. All which is respectfully submitted. JOHN A. MACDONALD. mendment in amend- led amendment, the we'd ' that ' (oe juse regre^.s that the y to a portion of the ified during the next just grounds of dis- di vision : — Yeas 117, added to Mr. Colby's ich well-grounded dis- vised to disallow the which was nejiatived Ided thereto : — of the law officers of ial Committee of the ur,swic'i< legislature to bolics I f t he privileges nation in the common hin the terms of the icu Act, 1867, which the due executon of jreed to. i, it was agreed to on id in New Brunswick nd hopes that it may ew Brunswick as to House deems it expe- nd, and if possible the be obtained as to the in the school law, as le time of the union, view of ascertairing The Earl of Dufferin to the Earl of Kimberley. Government House, Ottawa, 6th November, 1872. My Lord, — I have the honour to inclose a copy of a report of a committee of the Privy Council of the Dominion of Canada, approved by me on the 6th instant, and accompanied by a printed copy of a report from the Minister of Justice, relative to an Act of the legislature of New Brunswick relating to common schools. My ministers have requested me to farward these documents to your Lordship, in accordance with a resolution adopted by the House of Commons of Canada, on the accompanying report. I have, ifec, DUFFERIN. Lieiitenant-Governor Wilmot to the Hon. the Secretary of State. Government House, New Brunswick, 31st December, 1872. Sir, — I have the honour of sending with this despatch a copy of the minute of my Executive Council on the case submitted by the Dominion government for the consi- deration of the Crown officers in England, on the New Brunswick School Act of 1871, and to request that the same may be laid before his Excellency the Governor General, to be transmitted to the Right Honourable the Secretary of State for the Colonies, to be submitted to the Crown officera. I have, (be. A. WILMOT, Lieutenant-Governor. Copy of a Memorandum of the Executive Council in Committee, approved of by the Lieu- tenant-Governor, on the 23rd day of December, A.D. 1872. The Executive Council, having had under consideration a copy of a minute of the Privy Council of Canada, submitting for such remarks as may be thought proper to be made thereon, a statement in reference to the school law of New Brunswick, made by the Honourable the Minister of Justice, for transmission to the Right Honourable the 670 NEW BRUNSWICK LEGISLATION Secretary of State for the Colonies, in pursuance of a resolution of the House of Com- mons of the "0th May last, have the honour to make the following observations : The statement sets out — 1. The resolution of the House of Commons of 30th May last, on the above subject, which is as follows : — " That this House regrets that the School Act recently passed in New Brunswick is unsatisfactory to a portion of the inhabitants of that province, and hopes that it may be so modified during the next session of the legislature of New Brunswick, as to remove any just grounds of discontent that now exist ; and this House deems it expedient that the opinion of the law officers of the Crown in England, and if possible, the opinion of the Judicial Committee of the Privy Council, should be obtained as to the rights of the New Brunswick legislature to make such changes in the school law, as deprived the Roman Catholics of the privileges they enjoyed at the time of the union, in respect of religious education in the common schools, with the idea of ascertaining whether the case comes within the terms of the 4th subsection of the 93rd clause of the British North America Act, 1867, which authorizes the Parlia- ment of Canada to enact remedial laws for the due execution of the provisions respect- ing education in the said Act." 2. Section 93 of the British North America Act, 1867. 3. The Common Schools Act, 1871. 4. Petitions and correspondence from the Roman Catholic clergy, praying his Excellency the Governor General to disallow the last-mentioned Act ; together with an extract from the report of the Minister of Justice, dated January 20th, 1872, recom- mending that the .^aid Act be allowed to go into operation. 5. The various Acts passt^^d by the legislature of New Brunswick on the subject of the school law of the province, showing the law as it existed at the time of the passing of the Common Schools Act, 1871, and which were repealed thereby, viz.. An Act relating to Parish Schools, 21st Vic, c. 9; An Act in amendment of an Act relating to Parish Schools, 26th Vic. c. 7 ; and an Act relating to Grammar, Superior and Common Schools, 30th Vic, c. 27. 6. The proceedings of the House of Commons, from the 20th to the 30th May last, in reference to the foregoing subject. Two questic is appear to be raised by the resolution of the House of Commons : the one relating to the powers of the New Brunswick legislature, the other relating to the powers of the Parliament of Canada. Before considering such questions, it may be remarked that in the resolution it is assumed, as a fact, that the New Brunswick legislature, b}' the passage of the Common Schools Act, 1871, made such changes in the law, as deprived the Roman Catholics of the privileges they enjoyed at the time of the union in respect of religious education in the common schools. This assumption the Executive Council cannot for a moment admit. No privileges are taken away by the Common Schools Act, 1871, except such as were secured by the statutes thereby repealed ; and the Executive Council regret that the House of Commons should have assumed a state of facts, which should dispense with the necessity of examining the legislation of the province on the subject. The first question relates to the right of the New Brunswick legislature to make such changes in the school law as were in fact eflected by the passage of the Common Schools Act, 1871, and involves the constitutional powers of the legislature. Upon this point the Executive Council fully concur in the following opinion of the Minister of Justice, contained in his report before alluded to : — " The provincial legislatures have exclusive power to make laws in relation to education, subject to the provisions of the 93rd clause of the British North America Act, 1867. Those provisions apply exclusively to the denominational, separate or dis- sentient schools. They do not in any way affect or lessen the power of provincial legislatures to pass laws respecting the general educat onal system of the province. " The Act complained of is an Act relating to Common Schools, and the Act repealed by it applies to parish, grammar, superior and coopnon schools. No reference is made in them to separate, dissentient, or denominational schools, and the undersigned 34 vicTOHiA, 1871. 67 he House of Cora- servations : the above subject, ct recently passed of that province, legislature of New and this House n in England, and ]!ouncil, should be e such changes in hey enjoyed at the schools, with the 4th subsection of norizes the Parlia- provisions respect- lergy, praying his ; together with an 20th, 1872, recom- 'ick on the subject at the time of the I thereby, viz.. An idment of an Act inmar, Superior and the 30th May last, ouse of Commons : he other relating to in the resolution it he passage of the prived the Roman respect of religious Council cannot for Schools Act, 1871, and the Executive tate of facts, which she province on the legislature to make ige of the Common i-slature. tving opinion of the laws in relation to sh North America nal, separate or dis- power of provincial : the province, lools, and the Act ools. No reference .nd the undersigned does not, on examination, find that any statute of the province exists establishing such special schools. * * * As, therefore, the Act applies to the whole school system of New Brunswick, and is not specially applicable to denominational schools, the Governor General has no right to intervene." The Executive Council would not have thought it necessary to add anything in support of these conclusions ; but the unwarrantable assumption in the resolution of the House of Commons as to the effect of the recent legislation of this province, and the att«mpt to maintr a that the lioman Catholics had, by the Parish School Act of 1858 (21 Vic , c. 9), rights or privileges with respect to denominational schools which bring the case under the 1st subsection of section 93 of the British No th America Act, would seem to render it necessary to examine more particularly the provisions of such section, and the various Acts of Ney Brunswick set out in paragraph 5 of the case. In a question uifecting the constitutionality of an Act of the legislature, the Executive Council would refer to the principle which has been uniformly adopted in similar cases by the Supreme Court of the United States. In delivermg the judjiment of the Supreme Court, in Dartmouth College vs. Woodward, 4 Wheaton, 518, Chief Justice Marshall says : — " This court can be insensible neither to the magnitude nor delicacy of this ques- tion. The validity of a legislative Act is to be examined, and the opinion of the highest law tribunal of the state is to be revised. On more than one occasi n this court has expressed the cautious circumspection with which it approaches the consi- deration of such questions, and has declared that in no doubtful case would it pronounce a legislative Act to be contrary to the constitution." And again, in Fletcher vs. Peck, 6 Cranch, 128, the same learn d judg- says : — " The question whether a law be void for its repugnancy to the constitution, is at all times a question of much delicacy, with ought seldom, if ever, to be decided in :he affirmative in a doubtful case. The court, when impelled by duty to render such a judgment, would be unworthy of its station, c >u\(\ it bj unmindful of the solemn obliga- tion which that station imposes ; but it is not on slight implication and vague cotijecture that ihe legislature is to be pronounced to have transcended its powers, and its acts to be considered as void. The opposition between the constituti n and the law should be such that the Judge feels a clear and strong conviction of the'r incompatibility with e ch other." In a case in the Supreme Court of Massachusetts, Wellington, petitioner, 16 Pick., 95, Chief Justice Shaw held that — " The ''ourts would n ver declare a statute void unless the nullity and invalidity of the Act are placed, in iheir ju 'gment, beyond reasonable doubt." And in another case in the Supreme Courts of the United States, Ogden vs. Saunders, 12 Wheat, 270, Mr. Justice Washington, after expi-essing the opinion that the particular question there presented, and which r garded the constitutionality of a state law, was involved in difficulty and doubt, said : " But if I could rest my opinion in fjivour of the constitutional ty of the law on which the question arises, on no other ground that this dojbt, so felt and acknow- ledged, that alone would in my estimatio i, be a satisfactory vindication of it. It is but a decent respect liue to the wisdom, the integrity and the patriotism of the legisl itive body by which any law is passed, to presume in favour of its validity, until its violation of the constitution is proved beyond all reasonable doubt." By section 93 of British North America Act, 1867, the provincial legislatures have exclusive powers to make Ijiws in r lation to education, subject and a cording to certain provisions. Of the provisions, the first declares that nothing in any law shall prejudicially affect any right or privilege wi h respect; to denominational schools, which any diss of persons have by law in he provin.e at the union. This provision is in general terms, and is only in limitation or restraint of the general grant to legislative power. The second provision refers specially to Quebec, extL>nding to the dissentient schools of that province, the powers and privileges in Ontario accorded to the Roman Catholic separate schools ; this provision imposes a duty on the Quebec legislature ■rfWltV : 672 NEW KRUNBWinK LROIHLATION to make the necessary laws for the due exe^'Hion thereof. The third provision gives an appeal to the Governor General in Council from any Act or decision of any pro- vincial authority affecting any right or privilege of the Protestant or Roman Catholic minority of the Queen's subjects in relation to education in any province, wherein a system of separate or dissentient schools existed by law at tho union, or should be th(!ieat'tor established by the h-gislature of the province. Suoh a system of schools, whereby the religious minority is permitted to escape from the operation of the general public system, and to establish scho Is of the denomination, existed at the union in the province of Ontario under the name of "Separate Schools," and in the Province of Quebec under the name of " dissentient sch ols," but did not at the union eixst, nor has it since been established, in any of the other provinces. The fourth provision (subsection 4) rela.tes to matters of procedure, and vests certain powers of remedial legislation in the Parliament of Cannda. In order to render any law of a piovincial legislature inoperative under the 1st subsection of section 93, it is requisite that there should in such province have been at the union, denominational schools, with respeu-t to which certain class of persons had rights or privileges, and that those rights or privileges should have been secured by law. This would seem to lead at once to the consideration of the laws in force in New Brunswick at the union, for the purpose of determining whether, within the meaning of subsection 1, section 93 of the British North America Act, the Roman Catholics had by such laws, any rights or privileges with respect to denominational schools ; and of the Common ir'chools Act, 1871, for the purpose of determining whether anything therein prejudicially affected such right or privileges. But it has been attempted to be sliown that the first subsection of section 93 of the British North America Act, 1 867, so clearly r fers to New Brunswick, that the fact of such a section renders unnecessary any inquiry into its meaning or application. It is said that as subsections 2 and 3 reffr specifically, or by clear intendment to the case of Ontario and Quebec, subsection 1 must refer to the case of the other provinces, and therefore presumably to New Brunswick ; and in the use of the words " denomina- tional s hools" in the 1st subsection, and of the words "system of separate or dissen- tient schoo's " in the 2nd and 3rd sul sections, is referred to as indicating that the " denominational schools " in the 1st subsection cannot inc ude the separate or dissentient schools in the 2nd or 3rd subsections. The effect and object of this view is to import a supposed intention which shall control the words, and relieve from the embarrassment of investigating the language of the 93rd section of the school legislation of New Brunswick. The answer to this is : — (1.) That subsection 1 may have been inserted with no particular intent, but ex majore cautela. (2.) That if it were intended to refer specifically to New Brunswick, analogy to the following subsections would have suggested a particular reference. (3.) That inasmuch as in terms it is large enough to cover the case of any of the provinces, it is sufficient to inquire whether it is in fact applicable to New Brunswick, without inquiring whether or not it does or does not apply to any other province. It might equally be contended that it applies to other provinces because it does not apply to New Brunswick. (4.) That subsection 1 is the general abstract provision, applicable to any province in which, at the Union, denominational schools existed by law, whether such schools be known as such, or by the secondary and applied name of separate or dissentient schools, and is the only section which imposes restraints upon the legislative power of the pro- vinces in respect thereto, the remaining subsections ''being particular and remedial provisions. This appears more clear when it is considered that in the scheme of union agreed to at Quebec, by the representatives of the several provinces in 1864, and which formed the basis of all the public discussions of the question of union ; the separate and dissentient schools of Ontario and Quebec .were referred to as denomina- tional schools ; for, under the head " local government," resolution 43, of the said 34 VICTORIA, 1H71. «573 ird provision gives ecision of any pro- or Roman Catholic province, wherein a union, or should be a system of schools, ation of the general at the union in the in the Province of the union eixst, nor trocedure, and vests ative under the Ist province have been ain class of persons ave been secured by aws in force in New within the meaning e Roman Catholics actional schools ; and whether anything tion of section 93 of Brunswick, that the aning or application, ir intendment to the the other provinces, le words " denomina- if separate or dissen- indicating that the ide the separate or itention which shall gating the language icular intent, but ex runswick, analogy to ce. e case of any of the i to New Brunswick, 7 other province. It use it does not apply jable to any province Bther such schools be r dissentient schools, ive power of the pro- bicular and remedial the scheme of union vinces in 1864, and stion of union ; the irred to as denomina- tion 43, of the said scheme, it is declared that the local logislatures shiill iufi'r n/iu have power to make laws respecting thw following subjects : — "titli. Kiluoation : Having the rights and ])rivilflgt!s which the Protestant ■ taken as an inter- pretation of thw moaning of the New Brunswick Acts o AHHombly. (6.) But in order to satisfy the terms of subsection 1, it is not necessary to resort to the school sys:em of New Brunswick, inasmuch as in each of the provinces there were at the union speciHc denominational schools existing by law, the righis hekl by the various classes with respect to which are rights protected by this subsecrtion. Thus in Nova Scotia : King's College, Church i>f Kngland ; Acntlia College, Baptist ; Pictou Academy, Presbyterian ; St. Mary's anil St. Francois Xavier Colleges, Catholic. In Quel)ec : L'Assomption College ; Ltival University, Catholic. l!i Ontario : liegiopolis College, Bytown College, St. Michael's College, Victoria College. So in New Brunswick, standing outside of the general .school system, ami in no res- pect under the control or inspection of the public or educational authorities, and in no wise aflFected by the provisions of theCommon School Act, 1871, there were three denomin- ational schoc»l8 : the Madras School, in which the membera of the Church of England have interests different from the public at lirge (see Acts of Assembly, GOth George III., chap. 6 ; the Wesleyan Academy (see Acts of Assembly, 12th Victoria, chap. G.'i), and the Wesleyan College (see Acts of Assembly, iJlst Victoria, chap. 57). If it were p''oposed by provincial legislation to H<^fogat«! from the statutable rights of those institutions, it might reasonably be contended thnt such legislation would be inoperative and void ; for example, if it were propo.sed i^o deprive the Wesleyan College of the right of conferring degrees, or to interfere wiih the rights of the goveinf>r and trustees of the Madris School, under their charter, confirmed by Act of Assembly, 60th George III., chap. 6, or to repeal section 1 1 of the Act incorporating Trustees of the Wesleyan academy at Mount Allison, Sackville, which provides that — " No person shall teach, maintain, promulgate, or enforce any religious doctrine or practice in the said academy, or any department thereof, or in any religious services held upon the said premises, contrary to what is contained in certain notes on the New Testament, commonly reported to be the notes of tiie said Reverend John Wesley, A. M., and in the tirst four volumes of sermons commonly reputed to have been written and published by him. It is submitted, therefore, that it cannot be assumed that the general provisions of subsection 1, section 93, of the British North America Act, refer particularly to this province ; aud much leas that they refer to the general system of the province, which existed under the several Acts of Assembly, 21st Vic, chap. 9, 26th Vic, chap. 7, and 30th Vic, chap. 27. Whether or not such subsection does cover the case of schools established under the said several Acts of Assembly, is a matter of interpretation of the language both of the imperial and provincial statutes. The provincial statutes consisted of the Parish School Act of 1858 (21st Vic, chap. 9), and the Acts 26th Vic, chap. 7, and 30th Vic, chap. 27, in amendment. The Parish School Act of 1858 was a general public Act, ope>ating territorially through the parish, which in New Brunswick, constitutes the municipal unit for civil purposes. The Act provided for a central and local control of the schools ; the central control consisting of the board of education, a superintendent and four inspectors, the local control consisting of three trustees and a school committee of three persons. The superintendent and inspectors were appointed by tlie Governor in Council, and the governor and his council, with the superintendent, con,stituted the board of education. The trustees were parish officers, elected by the ratepayers of the parish, at the same time and in the same manner as other parish officers, and were subject to the same penalties as other parish officers. (See section 6, clause 1, 21st Victoria, cip. 9). They were thus officers of the civil government, performing civil functions, and amenable solely to civil authorities, and representing the people in their character as 074 NRW imUNaWICK I.E(II8LATI0N rntepayerit, l)oing no more raligiouH iMidioH f>r nxHrcisiriK dennminittiiiriHl fuitctionN, thtin th« other [uirinli otlioors elected at the siiiiie time mid in the Hunie nwinner viy. :— Over seefi nt the pDor, (ujnstiibles, iiss msop^t, and ooUectorM of rateit, fence-viewerH, pound- keeperH, Jleld-driv(>rH, liog-reevcH, Ac, Ac. ThoHe trustees, iw piirish ortlcors, divided their respective piirisheH into convenient school districts, convenient in respect of the civil purposes which the trustees were electotl to etiect ; and from time to time reconstruct tliem, and detinod in writing the boundaries of each district, and tiled a description thereof with the clerk of the peace (See :4ection (>, (dauso 2.) The public, as opposed to the denominational system, is apparent in the provisions with respect to districting, for it is evident how impossible it would be to divide a parish into districts, territorially corresponding with the religious features of the |)opu- lation, and to define such boundaries in writing. The trustees, as parish otficers, controlled the appointment of the teacher, and gave auth(jrity to open the school. (See sec. fl, clause 3). They might s'- ,yond, or displace a teacher. (See sec. (5, olause 4). They summoned a meetint' ' ne rat'-payocs of the district for the purpv«e of electing a school committee (v .section C, clause 5), and they apportioned amongst tho school districts in their r active parishes, any money raised by county or parish >vssessment for the supj^'' ..id maintenance of the schools therein, in such manner as they nught deem just and ecjuitable. (See sec. 6, clause 10). In all this they acted solely as civil otHoers, and in the discharg j of a public duty were governed by public considerations. The remaining body having local control was the school committee. This com- mittee Mas elected by the inhabitants of the school district being ratepayers (see sec. 7, clause 1), and had the immediate charge of the school house and property, library, Ac. ; they called meetings of the district to determine upon the support of the school ; had charge of the money f>f the district, and care and direction of the children. (See section 7, clauses 2-6). And in towns and populous districts, the rate- payers of tho district might elect one or moie committees for the district, or a com- mittee for each school, as might bo decided by a majority of the electors present (sec. 26th Vic, cap. 7, sec. 2). The school meeting was therefore a collection of rate- paying inhabitants of the district ; and such meeting called for the purpose had power to order a rate for the support of the school, or the entire county or parish might provide for the support of the schools of the county or parish respectively, by assessment. (See 21st Vic, cap. 9, sections 21-22). The nnture of the school district is thus defined in a judgment of the Supreme Court of New Brunswick, in ex parte Jocelyn, 2 Allen's Hep., 639 : — " When the trustees establish school districts, the foundation is laid of a special jurisdiction to be exercised by a majority of the inhabitants of the parish or district, ratable upon property, over all the inhabitants of the district." Such was the structure of the Parish School Act of 1858 (21 Vic, cap. 9), and it is inconceivable that schook s> creatjd, so controlled, sq sustained, could for a moment be regarded as denoininati' n;.l .chools. They were clearly schools of the ratepayer, not of the denomination. They existed, not in connection with the denoiuination, but in connection with the st; Ir and vested no rights or privileges in any class of persons. But it is alleged, th.it ;:lcbough the schools of New Brunswick were not denomina- tional schools, they were public schools in which denominational teaching was by law permissible ; and that the school system of the province at the union might be de- scribed, not perhaps, as a system of denominational schools, but as a system of public schools in which denominational teaching was legalized, subject to a conscience clause in favour of those children whose parents or guardians objected to that teaching ; and sec- tion 8, clause 5, of the Parish School Act of 1858, is^ relied upon. That clause is as follows : — " Every teacher shall take diligent care and exert his best endeavours to impress on the minds of the children committed to his care, the principles of Christianity, morality and justice, and a sacred regard to truth and honesty, love of their country, loyalty, humanity and a universal benevolence, sobriety, industry and frugality, chastity. 34 viCTouiA, 1H71. 676 I mill fuiictii)r)8, thun iiiiirin(*r vi/, : — Over- •iu;t)-vi»'wefH, poutul- ixheH into coiiveniont ch the trusteoH wpre otiried in \vritin>{ the le clerk of the peace !tit in the piovisiona )ul(J l)e U> divide a [•iitureH (if the [K)pu- bhe teacher, and ga\ e ,yond, or displace a ne rat'-payurs of the ion 6, clause 5), and parishes, any money nance of the schools ■^ee sec. 6, clause 10). arg . of a public duty )mmittee. This com- )eing ratepayers (see house and property, upon the support of and direction of the lus districts, the rate- le district, or a cora- the electors present e a collection of rate- :or the purpose had tire county or parish )ari8h respectively, by ment of the Supreme ion is laid of a special je parish or district, Vic, cap. 9), and it could for a moment ols of the ratepayer, he denoiuination, but any class of persons, were not denomina- teaching was by law i union might be de- iS a system of public a conscience clause in .at teaching ; and soc- n. That clause is as sndeavours to impress iples of Christianity, jve of their country, ad frugality, chastity, moderation and temperance, order r d cleanlinesH, and all other virtues which are the ornaments of human society ; but no pupil shall be retjuired to reiul or study in or from any religious book, ,'iinrdiHn.s ; and the board of education shall, by regulation, si-euT'e to itll children whose parents or guardians do not object to it, the reading of the iiible in parish schools iind the Mible, when roa r education, with full lil»erty for the use of Catholic Ijooks and religious emblem »i ; -n the performance of religious exercises, and that the right be recognized of tli<', hi ••■■f al pastt>r8 of the children in such schools to have access to them, to regulate the 'Mti- t' business of religiou,s instruction in ihem, and to remove objection^ible books, if any. I; such sclnKjis the teachers, the lKX)ks and the inspectors shall all be Catholic." Agiiiii, in the p'ovince of Ontario, a system of public schools has exi^stcu for about twenty years. These schools not having met the requirements of ll.d Roman Catholic clergy, they broke away from the public school system, and procured the e.st blis ment, by law, of the " separate " schools referred to subsections 2 and 3 of section 9.3, of the British North Ame ica Act, 1867. On the 1st of last January, the Homun Catholic Bishop of London, Onta-io, isRued a pastoral, which conclutled as follows : — " We have eideavoured to point out the importance of Catholic edud*"^ fid the danger that result from an unchristian education. We have shown that t.;. >' "lion i I'parted in the commf>n .schools of Ontario cannot be religious for the sinij. 'efc*o;i that it cannot, in justice to all sects, be denominational. We have pointed out the 34 VICTORIA, 1871 679 ^'" )hus described those ctarian or denomina- public observation, il formularies would lelf the orgau of any board of education, [)ol board, elected in ) invests all the parish isdiction, power and ourts, with respect to fc, however, provides and in receipt of any nd any child may be biflcta, and from any 1 any such school, be ven therein by reason ;, or by reason of his that or *.imes during ( .iS .rhiii -cs is given, V-it:-" .» 'oeginning i<' -n&li • i specified in were denominational cience clause, ivays heretofore been 1 the public, as such, eneral public system, recognition of their •ific yearly appropria- )lic control or right of lenoaiinational schools In a Pastoral Address blin tlie 20th October, all schools whif^ ,iri IS inp.tructions, '■' iliMi course of d.iily !-;i;''r lious emblem ar ; "fw. co e Catholic." ihocls has exidtca for •ments c2 t'nt) Roman 3iii, and procured the ibsections 2 and 3 of ,ondon, Onta'io, issued lolic educi^"^ lad the )wn that tm <' •> tion for the fiinij.' ei^eon B have pointei^ out the duty of our clergy and of our Catholic parents on this subject, and we earnestly exhort tliem to be faithful to it. To ensure the efficient working of our separate school system, we, having invoked the holy name of God, deem it our duty to ordain as follows : — "Art. 1. No Catholic parent living within the legal limits of a separate school shall send his children to mixed or common schools, they being adjudged by the Canadian hierarchy as dan2;erous to faith and morals. Should any Catholic parent unfortunately persist in violating this ordinance, he shall be refused the Holy Sacraments until such time as they shail consent to obey the Church in this matter. " Art. 2. Every Catholic ratepayer, living within the legal limits of a separate school, shall pay his school taxes to said school, under a penalty of being refused the Holy Sacraments. If, for grave and special reasons, exemption should be claimed from these ordinances, let the pastor, and if necessary, the bishop, be consulted, and their directions followed. " We hereby renew the wise ordinance of our predecessor : — "Art. 1. In any school section whose trustees are Catholics, no other than a practical Catholic shall be chosen to fulfil the duties of a teacher, whether male or female. " Art. 2. The school trustees are to consult their respective pastors in regard to the appointment or dismissal of the said teachers, as well as in all that concerns the general good of the parochial schools. " Art. 3. In case of a dissent between the pastor and the trustees in this matter, recourse shall be had to the bishop, who, after hearing both sides, will give a decision, which shall be final. " Art. 4. Inasmuch as any srhool, established and maintained in opposition to these rules, can no longer be considered as Catho ic, the pastor, after consulting the bishop, will forbid parents to support said schools, or to send their children thither." Now, what is the character of the sc.ools, to attend which, as dangerous to faith and morals, subjects the offender to the refusal of the Sacraments 1 They are schools in which, by the 129th section of the Consolidated Common Schools Act of Upper Canada, 22 Vic, cap. 6 1, it is provided, almost in the language of the New Brunswick Parish School Act of 1858, that — " No person shall require any pupil in any such school to read or study in or from any religious book, or to join in any exercise of devotion or religion objected to by his or her parents or guanlians ; but within this limitation, pupils shall be allowed to receive such leligious instruction as their parents and guardians desire, according to any religious regulations provided for the government of common schools. And by regulation 5 of the regulations made by the board of education under such Act, it is provided that the teacher " shall daily exert his best endeavours, by example and precept, to impress upon the minds of pupils the principles and morals of the Christian religion, especially those virtues of piety, truth, patriotism and humanity, which are the bases of law and freedom, and the cement and ornament of society." It is with reference to such schools that the Bishop of London says, that the edu- cation therein i^iparted cannot be religious, for the simple reason that it cannot, in justice to all sects, be denominat onal. Inasmuch, then, as in New Brunswick, at the union, and at the time of the passing of the Common Schools Act, 1871, the Roman Catholics had, by la>v, no rights or privileges with respect to denominational schools, nothing in the Common Schools Act can have deprived them of rights or privileges which they did not previously enjoy. Tne ctfect of the Common Schools Act was to repeal the Parish School Act of 1858, and the amendments thereof ; to aler the distribution of power between the local and general authoi iues ; to substitute a system of rate-supported schools for a systein of schools supported either by rates or voluntary subscription. On the question of religious teaching it preserves silence, — neither excluding the Bible from the school, or legislating it into the school ; neither requiring nor prohibiting the inculcation of the principles of Christianity in their non-denominational features ; neither prescribing nor proscribing 43A 680 NEW BRUNSWICK LEUISLATION such religious instruction, but simply providing that the schools s'lould not be turned to sectarian purposes. In this connection the Executive Council would refer to someoF the allegations of the petitir)n of Rev. C. Lefebvre and others, sft out in paragraph 4 of the case. It is there stated that under the school law in force at t!i3 union, and up to the passing of the Coimuon Schools Act, 1871, the Catholics were enabled, wherever their numbers were suHiciently hirge, to establish schools, in which a g od leligious and secular education was afforded. No such rigiit existed " under the law ;" nothing in the Parish School Act of 1858 prevented the establishnunt of private schools outside of the law, as nothing in the Common Schools Act, 1871, prevents the establishment of simil.ir schools. An irregular and defective administration of the law might tolerate illegal pmctices, and allow parties to derive unwarrantable advantages in violation of the law ; but privileges enjoyed in violation of the law cinnot give rights under the law. For example: — Th ■ Executive Council does indeed find that, ., ui. i time, certain if the branches of the Madras school, a denomina'ional school exi-- e taught. But if the contention of those be correct who maintain that the Parish School A.cb of 1858 pi'ovided for denominational schools, or legalized denominational teaching, the power of the majority could, under that Act, have been exercise I to compel Catholics to contribute to the extension of Protestant doctrines. This, in the words of the peti- tion, " depriving Catholics, who, in most instances, are in the minority, of all rights- and all protection of the law." m^i 34 vicTouiA, 1871. 681 should not be turned B of the allegations of of the case. union, and up to the abled, wherever their g od leligious and ;h School Act of 1858 iiw, as nothing in the lehools. An irregular ices, and allow parties ])rivilegcs enjoyed in iple : — Th ■ Executive of the Madras school, 1,1 control, inconsistent fc of 1858, did, whilst if Assembly in aid of 'pasury secured by the lie same having been ees as a parish school, by the governoi- and uider the law. It was e too few in numbers to nee as applied to the tribute to the support lything would be done lildien, and that this sly passed will wholly nion Schools Act, 1871, ies are to be divided, nation of the amount I all that concerns the y, thus, by proces" of n the minority, of all ) which the petitioners r th'j Common School J the p';\v»r of raising le mode of expenditure ; I absolutely in the ma- jtitioners, who, in most II of thf^ law." jority cannot be used to re doctrines of any sect / the Parish School A.ct linational teaching, the 3 1 to compel Catholics I the words of the peti- minority, of all rights- the right and from time to If, as alleged, Catholics could not, under the Parish School Act of 1858, be com- pelled to contribute to the support of any s hools in which they had reason to appre- hend that anything would be done to sap the faith, or weaken the religious convictions of their children, it could be only the supposition that that Act which gave to the majority the power of ordering assessment, did not admit of denominational schools be- ing established under its provisions. It is thus evident that the Common Schools Act, 1871, so far from prejudicially affecting the right of Catholics, secures them against the possibility of hostile action of the Protestant majority, and that no more dreadful consequence could fall upon the Roman Catholics, who are one-third the population, than the re-enactment of the Parish School Act, with the interpretation sought to be placed upon it, of legalizing the establish- ment of denominational schools, or the teaching of sectarian theology. Another objection to the Common Schools Act is, tiiat it deprives Catholic graded schools, in the cities and large towns, of pecuniary legislative grants. The answer to tliis is, briefly — (1.) That such grants were not secured by law, but were simply annual votes passed in supply, in aid of .special schools. (2.) That the Common Schools Act, 1871, does not seek to restrict power of the House of Assembly to dispose of the public funds as may, time, think proper. The second general question involved in the resolutions of the House of Commons, relates to the extent of the power of the Parliament of Car? ua fo pass remedial laws in reference to education. If the foregoing remarks, in respect of the power of the legislature of New Bruns- wick to pass the Common Schools Act, 1871, be correct, and, if there be nothing in that Act contravening the provisions of section 93 of the British North America Act, 1867, it is evident that the Parliament of Canada can have no right of legislation in the mitter, remedial or otherwise. But the Executive Council are not prepar d to admit that the Parliament of Can- ada would, in any e > ent have legislative juiisdi tion. An examination of section 93 would appear to show that the power of the Parliament of Canada does in no way ex- tend beyond the matters specifically referred to in subsections 2 and 3. Subsection 1 is a general abstract provision in limitation of the general grant of leg'slative powers given to the local legislatures in the niatter of education. It is a general saving clause, under which the rights of the Roman Catholic and Protestant minorities in Ontario and Quebec, in respect of their separate and dissentient schools, are saved ; whilst for greater caution, being extended to cover similar rights in any of t: e provinces, should such exist. It is the generalized expression of the following pro- vision of the Quebec scheme, before alluded to .• — "(6.) Education, saving the rights and privileges which the Protestant or Roman Catholic minority in both Canada** may possess, as to their denominational schools, at the time when the union goes into operation ; " which Quelle scheme having been the basis of the desire for union, referred to in the preamble of " The British North America Act, 1867," may be looked to for light in the interpretation of the latter Act. Now, the effect of this general saving clause is, that it shall be lead in ever)' Act of the several local legislatures respecting education. It is the same as if such words were expressly inserted by way of proviso in every such Act; and so far, and only so far. as the rights thereby secured are prejudicially affected by provincial legislation, the Act becomes inoperative and devoid of force of law. Those rights tontinue as before unaffected by any legislation, and thecourtt, will uphold such rights in the same manner as if they were expressly eaved by such legislation. It is to be further noted, that the provision is negative and restraining. It does not require the legislature to enact laws for the preservation of the rights referred to ; it simply requires that the legislatures shall not in certain cises make laws, and provides thi t if they do, their legislation shall be ultra vires, or at least that it shall not operate to affect certain objects. 682 NEW BRUNSWICK LEGISLATION Sulisection 2 on the other hand, grants certain rights to the minorities in Quebec, and tlierefore imposes impliedly on the legislature of that province, the duty of execut ing such provision. Subsection 3 provides a remedy by appeal to the Governor General in Council from any Act or decision of any provincial authority, aff< cting any right or privilege of the Protestant or Catholic minority in relation to education in any province, wherein separate schools exist by law (whether at the union or sulwequently established). Here it is to be observed that the words " act or decision of a provincial authority," rather seem to point to matters of administration, as, for instance, to the acts or deiision of executive autho ity, or the board of education. Subsection 4 vests certain powers of passing i\>..:^^i^, a m the Parliament of Canada. But it is to be noted that this power is given in but two cases — Ist. Where any provincial law, as seems to the Governor General requisite for the due execution of the provisions of the section, is not made ; and 2nd. Where any decision of the Governor General in Council on any appeal under the section is not duly executed by the proper provincial authority in that behalf. Taking the .second branch of the power first : it gives the right of legislation where the decision of the Governor General in Council on appeal is not duly executed by \e proper provincial authority ; but the jurisdiction of the the Governor General on anp al is limited to cases arising under subsection 3. The other branch of the power is where the provincial legislature has made default in passing the requisite legislation for the due execution of the provisions of the section. This is clearly applicable only to subsection 2, under which .something is required to be executed. The minority in Quebec is thereby vested with • rtain rights, and the duty cast upon the legisluture of that province to pass the i\ essary legislation to effectuate the object ; in order words, provincial law "becomes necessary for its execution. But the words are not applicable to sub-section 1, by which provincial legislatures are not required to act, but are forbidden from acting, and by which the legislation of the local legislatuiey is, to the extent that it contravenes the provisions of subjection 1, entirely inoperative and of no force of law, being to that extent ultra vires and unconstitutional. Nor does it impair the force of this, that the power of parliament is not expressly limited to ca.ses under subsections 2 and 3, but extends to the section, because the section is in its nature entire; and the same extended reference is made to the " section," in the case oi the failu:? to execute the appeal of the Governor General in Council, as in the case of the failure to have the requisite h gislation. The words in the one case are : " any decision of the Governor General in Council on any appeal under this sec- tion." But it is clear that the appeal only lies under subsection 3, and the word " section " there means that part of the section to which the ca.se is properly referrable. In short, the power of legislation is in the Parliament of Canada in two cases ; the ca.se were appeal lies to the Governor General in Council, under sub-section 3, and the case where something which is required to be executed is not executed, as under subsection 2. The provisions of subsection 1 do not require execution, or the passage of any provincial law to execute them. They execute themselve.'s, and subject all provincial laws in their operation. No remedy is needed, because no wrong can be inflicted ; they lie in the protection of the law. But jvs in the system of denominational schools, such as those of Ontario and Quebec, provincial authorities may by act or decision, interfere with rights or privileges, the section makes provision under subsection 3, for such cases of injurious administration, act, or decision. The Executive Council would further observe, that while the .subject was under discussion by the House of Commons, and before the adopticm of the resolution of the 30th May, they, on the 29tli May last, caused to be transmitted by telegraph to the Privy Council of Canada, the Minute of Council, of which a copy is hereunto annexed, marked A, by which it will be seen that the government of New Brunswick, on behalf of the people in that province, entered their most earnest protest against any dealing with the Common Schools Act, 1871, by the Parliament gf Canada. 34 VICTORIA, 1871. 683 linorities in Quebec, the duty of execut' • General in Council right or privilege of province, wherein established). Here authority," rather acts or decision of I the Parliament of cases — ral requisite for the n any appeal under in that behalf. 1 of legislation where ily executed by \e or General on apj. al ure has made default Msions of the section, omething is required rtain rights, and the essary legislation to lary for its execution, ncial legislatures are ;he legislation of the iions of sub-section 1, ent ultra vires and lent is not expressly section, because the lade to the " section," ieneral in Council, as ords in the one case ipeal under this see- on 3, and the word s properly referrable. mada in two cases ; er sub-section 3, and )t executed, as under cution, or the passage jlves, and subject all Jse no wrong can be ?m of denominational ities may by act or aion under subsection J subject was under the resolution of the by telegraph to the is hereunto annexed, Brunswick, on behalf against any dealing The Executive Council in making the foregoing remarks, do not desire it to be undenitood that they are assenting parties to the submission to the opinion of the law officers of the Crown in England, c? the right of the New Brunswick legislature exclusively to deal with the subject of education ; on the contrary, they most respect- fully now enter their protest against any such submission ; and while they entertain that just respect which should properly be accorded to any opinion on the subject emanating from such distinguished lawyers, they foresee the great danger as likely to arise from such a course. The question, whether the Common Schools Act, 1871, is ultra virea within the intent and meaning of the 93rd section of the British North America Act, 1807, is'at present pending in the Supreme Court of New Brunswick, and the parties in whose interest it is now sought to obtain the opinion of the law officers of the Crown, have had their view, with all the facts, presented and argued before the Supreme Court by some of the ablest gentlemen of the Bar in New Brunswick. The decision and judg- ment oi the Supreme Court will be given in Hilliary Term (February) next, and as an appeal from such judgment will Ho to the Judicial Committee of the Privy Council, it does appear to the E\ecutive Council that any opinion that the law officers of the Crown may give, can in no way settle the question ; for should the opinion of the law officers of the Crown differ from the judgment of tho Supreme Court, neither the legislature nor the courts of New Brunswick would feel bound by such opinion. And, again, were the opinion of the law officers so difijring, such as to lead the Dominion Parliament to legislate upon the subject, any such law of the Dominion Parliament might, by the New Brunswick courts, be held to be ii/tra vires. The Supreme Court of New Brunswick, in the case of the Queen i>8. Chandler, 1 Hannay's Report, p. 54 8, having held that — " An Act passed by the legislature of New Brunswick, on the 23rd March, 1868, "intituled: An Act in amendment of chapter 124, title 34, of the Revised Statute?. " ' Of Insolvent Confined Debtors,' was an insolvent Act which the legislature of Nev-. " Brunswick h»id no power to pass since the British North America Act, 1807, camw " into force, and was, therefore, invalid and void ; the Parliament of Canada having, " under the imperial statute, the exclusive power to legislate on bankruptcy and " insolvency ; and that the assent of the Governor (ieneral to such provincial Act " would not make it valid ; the court holding that where an Act of the local legisla- " ture conflicts with tie British North America Act (it being an imperial statute) the " court will pronounce upon its validity ;' they may, and no doubt would, equally hold as ultra riren any legislation of the Dominion Parliament interfering with the exclusive power of the New Brunswick legislature to legislate on the subject, with the sole limitation mentioned in the lat sub-section, .section 93, British North America Act ; and tlms if the Common Schools Acts ; 1871, be determined by the Supreme Court to be not ultra vires, it is clear an Act passed by the Parliament of Canada on the subect, upon the assumption that it is so, would be necessarily of no force or efl'ect. Entertaining the strongest view possible of the Common Schools Act, 1871, the Executive Council would regret to see such a conflict of law as would aris* should the Supreme Court uphold that view, and the law officers of the Crown arrive at a con- clusion, and they see, as the only legal and constitutional determination of the question, an appeal to the Judicial Committee of the Privy Council, from the judgment of the court, by the dissatisfied partie,«. Any other course that this will not prove satisfactory to the people of New Brunswick, and in no other, and by no other judgment, will they permit their rights in the matter of the Act in question, to be settled. 684 NEW UKUN8WICK LKOI8LATI0S IN COUNCIL, 29TII MAY, 1872. The Executive Council in committee have observed the introduction into the House of Ci)minon8 of Canada, of a resolution that an address be presenteil to Her Majesty, praying that she will be pleased to cause an A't to be passed ameuding the British North America Act, 1867, in the sense in which the House of Comnions believes to have been intended at the time of the passage of the said Act, by providing that every religious denomination in the provinces of New Brunswick and Nova Scotia shall continue to po-sess all such rights, advantages and privileges with regard to their schools, as such denomination enjoyed in such province at the time of the passage of the said last-mentioned Act, to the same extent as if such rights, advantages and privileges had l)een duly established by law. The avowed object of such resolution i-s the overthrow of the recent legislation of New Brunswick re ating to common schools, which legislation is admittedly within the powers of the legislature of this province uniler the constitution as it exists. Upon the q lestion of fact embodied in the resolution, the committee beg to say that in none of the discussions and ne^^otiations publicly carried on previous to the union, was it regarded l)y any parties in this province, that the then existing legisla- tion upon the subject of education, partook in any respect of the character of finality, or conferred vested rights upon any class, nor did any portion of the people of New Brunswick openly seek to .secure permanence or continuance of such legislation and procedure. There had not been in this province, as in some of the other provinces, any legislatine compromise (m the question of denominational education, and the people of New Brunswick would certainly have repudiated any arrangement which sought to limit their freedom of action. It appears to ha\ e been reserved for the representation of other provinces of the Dominion to discover that the assumed privileges of a certain portion of the people of New Brunswick were intended to be secured to a greater extent, than was by them at the time supposed or intended. It is now proposed that the powers of the provincial legislatures shall be deter- mined, not by the language of the constitution, but according to the sense which is believed to have been intended by a body that at the time of the passage of the Act had no existence, and from which in this case the constitution expressly withdraws the power of legislation. The committee, desii'ous of preserving the union, cannot refrain from drawing the attention of the Government and Parliairent of Canada to the alarming character and consequence of the above resolution. Those consequences far outweigh in importance the particular subject involved. The assumption, by the Government and Parliament of Canada, of the right to seek the impo.»'tion of further limitations of the union, tending to the destruction of the powers and independence of the provincial legisla- tures, and to the centralization of all power in the Parliament of Canada. The people of New Brunswick caanot and will not so surrender their rights of self-government within the limits of the constitution, and will regard the passage of such resolution as an infringement of the constitution, by those whose duty and interest should lead them to uphold the rights of the provinces, while maintaining the powers of the general government. The Executive Council in committee therefore hasten to warn the government and Parliament of Canada of the danger involved in the passage of the said resolution, which, if passed, whatever its effect upon the course o^ the imperial legislation, must stand as a pi'ecedent of innovation of provincial rights, fruitful of evil ; and in the name of the people of New Brunswick, and invoking the protection of the constitution, the Executive Council in Committee protest against the passage of such resolution, and emphatically assert the right of the legislature of New Brunswick to legislate upon all questions affecting the education of the country, free from interference by the Parlia- ment of Canada. 34 vrroKiA, 1871. 680 roductioii into the be presented to Her assed amending the ^ouso of Coninions d Act, by providing ck and Nova Scotia kvitii regard to their le of the passage of ts, advantages and recent legislation of Jmittedly within the it exists. mmittee beg to say on previous to the then existing legisla- sharacter of finality, the people of New such legislation and the other provinces, ation, and the people lent which sought to lor provinces of the rtion of the people of han was by them at bures shall be deter- the sense which is passage of the Act ressly withdraws the ain from drawing the arming character and weigh in importance uent and Parliament ations of the union, le provincial legisla- Canada. render their rights of 3gard the passage of lose duty and interest lintaining the powers am the government >f the said resolution, trial legislation, must of evil ; and in the m of the constitution, P such resolution, and k to legislate upon all erence by the Parlia- Copy of a Report of a Committee of the Ifonnurahle the Privy Council, approved by //in Excellency the Governor General in Council on the 10th January, 1S73. The committee have had under consideration the despatch No. 97, datrd 31st December, 1872, from the Lieutenant-Oovernor of New Jlrunswick, inclosing copy of a minute of his Executive Council, on the case submitted by the Dominion Govoiiiment for the consideration of the Crown officers in England, on the New Hrunswick ISchool Act of 1871, and requesting that the same may be laid before your Excellency, for transmission to the Right Honourable the Secretary of State for the Colonies, to be submitted to the Crown officers. The committee advise that your Excellency will be pleased to transmit the minute in question to the Earl of Kimberly to be laid befn, of the 6th November, 1H72, advising that it should be submitted by his Excellency the Governor General to the Right Honourable the Secretary of State for the Colonies ; and that copies of it should lie forwarded to the lieutenant-governor of the province, and to your Lordship, for any remarks which the lieutenant-governor or your Lordehip might think proper to make thereon, and that your Ix)rdship might desire should be transmitted therewith to the Right Honourable the Secretary of State for the Colonies. The statement of the Honorable the Minister of Justice sets forth: — 1st. The resolution of the 30th May, 1877. 2nd. The 93rd clause of the British N(»rth America Act, 1867. 3rd. The Common Schools Act, 1871. 4th. The petiti(m of the Roman Catholic hierarchy, clergy and laity of this province to his ExcelUmcy the Governor General, praying that " the Common Schools Act, 1871,"might be disallowed, as afi'ecting and diminjshing the educational privileges which the Roman Catholics enjoyed in this province at the time of the union ; the reply of the Under Secretary of State for the Colonies thereto ; an extract from a report of the Honourable the Minister t)f Justice upon the petition, dated 20th January, 1872, advising that "the Common Schools Act, 1871," should be allowed to go into operation ; a correspondence between the Reverend James Quinn and the (Governor General's Secretary. 5tl). Copies of various Acts of the province of New Brunswick which were in existence at tlie time of the union, and which were repealed by the Comm(m Schools Act, '871. 6th. The proceedings in the Hou^e of Commons on the 21st, 22nd and 29th May, 1872. Involved in this statement, and altogether behind the question arising out of the resolution of 30th May, 1872, is the correction of the opinion given by the Honourable the Minister of Justice in his report of the 20Lh May, 1872. Of course, your Lordship is not prepared to regard that opinion as ci'nclusive, so far as relation to the constitu- tionality of the Common Schools Act, 1871. In the event of its being decided that this is a case for the intervention of the Dominion Parliament, under subsection 4, there is no doubt that the Roman Catholics of the province may safely leave the protection of their rights and privileges to that Parliament ; but should the Judicial Committee be of a contrary opinion, then another, and, in a constituiional point of view, a not less important question remains to be decided, viz., whether it is not covered by sub- section 1. According to the opinion of the Honourable the Minister of Justice, the high respect which any legal opinion of his is always entitled to receive, we cannot help thinking that the one which he gave in his report of the 20th January, 1872, so far as it relates to the constitutionality of "the Common Schools Act, 1871," is erroneous. He says : — " The provincial legislatures have exclusive powers to make laws in relation to education, subject to the provisions of the 93rd clause of tbo British North America Act. These provisions apply exclusively to the denominational, separate or dissentient schools, they do not in any way affect or lessen the poiver of such provincial legislatures to pass laws respecting the general educational system of the province. The Act complained of is an Act relating to common schools, and the Acts renealed by it apply to parish, grammar, superior and common schools. No reference is made in'them to separate, dissentient or denominational schools, and the under.'figned does not, on examination, find that any statute of the province exists establishing such special schools. As, therefore, the Act applies to the whole school system of New Brunswick, and is not especially applicable to denominational schools, the Governor General has, in the opinion of the undersigned, no right to intervene." 34 vicrouiA, 1871. 697 mons, on the 30th y of State for the n in EnglanH, and, ncil, might be ob- leh oh iges in the loy enjoyed at the schools, with the 18 4th subsection of have also read the uncil thereon, of the his Excellency the >r the Colonies ; and af the province, and • or your Lordehip t desire should be ate for the Colonies. !t8 forth:— 1. St. The itish North America ition of the llouian l(!ncy the Governor sallowed, as utt'ecting lies enjoyed in this ry of State for the Minister nf Justice onimon Schools Act, (tween the Reverend of various Acts of me of the union, and t proceedings in the n arising out of the 1 by the Honourable ourse, your Lordship .ion to the constitu- ting decided that this subsection 4, there is fe the protection of icial Committee be of of view, a not less not covered by sub- stice, the high respect annot help thinking '2, so far as it relates 'oneous. He says : — relation to education, America Act. These jpntient schools, they datures to patrn laws complained of is an to parish, grammar, parate, dissentient or tation, find that any 8, therefore, the Act especially applicable n of the undersigned, The 03nl clause of the British North America Act given the local legislatures power exclusively to make laws in relation to education, provided those laws do not " prejudicially affect any right or privilege with respect todenuminational scIkkiIs, whi-.-h any class of persons hiive by law in the province at the union." Is not this a (|ualifica- tion of tliB p finrenln or (jnardiaiiH do not ohjert to it, tlu' rnaditty of thr Jiifilt' in pn-,i.,h Kcliooh ; and tlio Hiblc, when read in parish H(^hools by Roman Catholic children, shall, if r(!(|uired by th« parents or guardiauH, lie the ^uuny version, without note or comuient." This section cecures the teaching of Chrixtianity to all ; it HfCiireH thr readinij of the Jiili/r in the schools to all who do not oxjireHsly object ; it Hfciireii to the childr(>n of Koniau Catholics thc! Dona;/ verKton. It does more, it sanctions the use of n^ligious books and acts of devotion by all pupils who^e parents do not object to th|iropri'>tion of moneys raised in the dislricl, for the |)urpos(( of pi'oviditig a library, subje(!t, of course, to the provisions of the Hih para- graph of the 4th section, which excludes work of a licentious, vicious, or immoral tend- ency, or hostile to the Christian religion, and works on controversial (but not dogmatic) theology. In many parts of this province, as your Lordship is well aware, th(( Roman Catholics largely prepondiu'iite and in some they con!pecially to name them. The Dartmouth College case, 4 Wheaton, U. S. Reports, is an authority to the effect that corporations of such a character as these, form no part of the general educational or uonimon school system of the country. Whatever aid they received from the province, moreover, was in the shape of annual grants, to which they had no vested rights, and which the legislature might at any time refuse to make. And it was not the different .^gg0^ €90 NEW BBUNPWICK LE(JISLATIO!f Protestant denom, nations which were referred to at all. There is nothing in the context of the British North America Act, 1867, to gi' e th*: ;-.iighte8t colour of support to such an argument. Christians, in the 93rd section, are divided into two great classes, the same into which all Christendom have been divided for centuries, the Roman Catholic and Protestant. The ma->ife8t design of the section is in accordance with all modern British legislation — to protect the minority from the encroachments of the majority. The same division of classes is to be found in the 8th section of the Act of 1858. It is the Protestant Bible on the one hand, and the Douay version on the other. It is not Methodist, or B iptist, or Presbyterian. Therefore, whether we construe the first sub- section by the context, by the light, of contemporary legislation, or by the circumstances and position of aflFairs in the province, to which the law was to be applied, the conclu- sion is the same — the Roman Catholics and the Protestants are the only classes of persons before the minds of the legislature. The "Common Schools Act, 1871," repeals the Act of 1858, and thereby deprives Roman Catholics not only of the right which that Act secured to them of hav ng the Douay bible read by their children in the mixed schools, but also Ate privilege which they had under it, of creating schools of a character exclusively Roman Catholic, where the population was entirely Roman Catholic, and deprives the trustets of the authority which they formerly had of establishmg Roman Catho'ic schools in populous places. The 60th section of the act of 1871 enacts, that "all schools conducted under the provisions of the Act shall be non->iectarian." This emphatically prevents the use of the Douay Bible, or of liie Catholic catechism, or of religous books, or the performance o? any acts of devotion. By the 58th section, subsection 12, it is enacted thar " no public funds sha'l be granted in support of any school, unless the same ha a free school, and conducted in every resipect in conformity with this Act and the regulations of the board of educa- tion ; " and this deprives the Rom m Catholics of the provincial allowance which was secured to them by thurse is for the petitioner to present a petition uo the Crown through the Secretary of State, and then it can be referred to us generally for uur opinion. We have no jurisdiction as it stands." Jn re the Island of Cape Breton, 5 Moore's P. C. C, p. 259 692 NEW BRUNSWICK LEGISLATION "This was a petition from certain inhabitants of the Island of Cape Breton against the annexation of that island to Nova Scotia. The object of the petition was to obtain restoration of the constitution alleged to have been granted by His Majesty King George III., in 1784, and for the convening of a local legislature, under a lieutenant-governor, council, and assembly, conformably to such grant, and that/ the laws of Nova Scotia, and the authority of its legislature might no longer be enforced over the Island of Cape Breton." This peiitiou prayed, amongst oth<'r things that the constitution of 1784 should be restored to them, and for the convening of their local legislature, under a lieutenant- governor, council and assemby ; but that, if there should possibly exist any doubt of the petitioners' strict legal and constitutional rights, they further prayed that, as a matter of expediency, and to protect th«> interests of the inhabitants of the island, and in consideration of the injuries inflicted upon them by the annexation. His Majesty would be pleased, in thu exercise of hi? prerogative, to grant as an act of great favour, the separation of Cape Breton fi-om Nova Scotia, and to permit the island to enjoy a similar constitution to that of its sister Island of Prince Edward, &c. The petition was referred by Her Majesty to the Judicial Committee of the Privy Council, with directions that the petitioners should be confined in their argument before that tribunal to the bare question raided l.y them, and were not to be permitted to enter into any question Oi public convenience or policy. Notice was required to be given of the petition having been so referred, to the legislative council and house of assembly of Nova Scotia, who were authorized, if they thought fit, to appoint counsel to appear on their behalf, and oppose the claim of the petitioners. The legislature of Nova Scotia, having been specially summoned by the lieutenant- governor in consequence of such notice having been given, declined to appoint an agent or to instruct counsel to represent them at the Bar of the Judicial Committee, express- ing their contidtnce in the learning and ability of the officers of the Crown, and the in- tegrity and wisdom of the eminent tribunal, before whom these officers were to vindi- cate the legality of the annexa,tion. They accordingly put in no case, nor did they appear by counsel. The petitioners having been so directed, lodged a case in which they set fortli the facts, as stated at length in the Report, 5 Moore, together with a summary of the con- stitution of the colony, and referred to a variety of precedents and authorities from which they contended that the annexation in 1820, of Cape Breton to Nova Scotia, and the iegislalive autliOiity of th.at province over the island^ ought t,n be adjudged illegal for reasons set forth in their case as stated in the report iii re Moore. A ciuse was also put in on the part of the Crown, wherein it was submitted that the re-annexation of the island to Nova Scotia was, in the circumstances, strictly legal, for reasons also therein set forth. Counsel was then heard liefore the Judicial Committee on behalf of the petitioners, and also on the p irt of the Crown. No judgment was delivered on the petition, but the report of their Lordships, which was afterwards vontirmed by Her Majesty in Council, was as follows : — "The Lortls of the Committe >, in obndience to your Majesty's said order of refer- e>we, have taken the said petition into consideration, and have heard counsel on behalf of the said petitioners, and have likewise heard your Majesty's Attorney General on behalf of your Majesty's Crown, and their lordships understanding it to be your Ma- jesty's pleasure that their lordships' considerati.m of the matter referred to them, by your Majesty's said order of reference, should be confined to the question whether the inhabitants of Cape i$reton are by law entitled to tiie constitution purporting to be gr.mted to them by the letters patent of 1784 mentioned in the said petition, do agree humbly to report their Ofiinion to Your Majesty, that the ynliabitants of GREA T Breton are not io entitled. In addition to these the cases In Re Polland, Law Reports, 2 P.C., 106, and In Re Ramsay, rine future time be of jus* ice. ;y cannot, with pro- juestion which Her I which the opinion ominion of Canada. REEVE, Reg. P. C. Report of the Hon. the Minister of Justice approved hy His Excellency the Governor Gene' al in Council on the 13th March, 1873. Department of Justice, Ottawa, 11th March, 1873. The undersigned, to whom was referred the despatch of the Right Honourable the Secretary of State for the Colonies of the 20th February last, begs leave to report : — That it appsars from this and from previous despatches, that the resolution adopted by the House of Commons of Canada at its last session, asking for the opinion of the law officers of the Crown in England as to the competence of the Irfsgislature of New Brunswick to pass the Common School Act of New Brunswick of 1871, together with the minute of tho executive council of New Brunswick, was submitted by Her Majesty's Government to the attorney and solicitor general of England. On this reference the law officers have given their opinion that the provincial legislature was competent to pass the Act in question. This opinion was given l)efore the arrival in England of the letter and accompany- ing documents transmitted by the Roman Catholic Bishop of St, John, relating to the New Brunswick Act. It is to be regretted that the delay in the preparation of the memorandum by the Bishop prevented his l tter being before the law officers at the time they had the question under consideration. As the Right Reverend Prelate, however, speaks on behalf of the Roman Catholic people who complain of the Act in qu'stion, and dispute its validity, it seems to the undersigned advisable that the attorney and solicitor general should be requested to reconsider the whole case, after having before them all the papers transmitted by your Excellency on the three several occasions, viz. : — The resolution of the House of Com- mons ; the memorandum of the executive council of New Brunswick, and the letter and papers transmitted by the Bishop of St. John. Without such reconsideration, the Roman Catholic body might feel that the opinion had been given without their case being submitted or considered, and it would not therefore have the weight with them that is desirable. JOHN A. MACDONALD. 'ebruary, 1873. i, signified in Mr. le report furnished legislature of New e v 698 NEW BRUNSWICK LEGISLATION. Excellency to disallow several Acts passed during the last session of the New firunswick legislature, was carried. The right of the House of Commons tx) pass a resolution affecting the prospective exercise of the prerogative, w«> do not propose to discuss, but we may remark that if such a right exists or can be exercised by the popular branch, it could only so exist or be exercised in matters over which the Parliament of Canada has the power of legislation. The right of disallowance of Acts passed by any of the local legislatures, is a statutory as well as a constitutional power, vested in your Excellency by the British North America Act, and for the exercise of which there is no responsibility to the Parliament of Canada. By the British North America Act, the local legislatures have exclusive powers of legislation in reference to certain specified matters, and so long as any legislature acts strictly within the prescribed limits, its legislation ought to stand, unless contrary to any Royal Instructions in that behalf. The entire freedom of the executive, in dealing-with matters expressly reserved to the provincial legis atures, is e sential to the harmonious working, and even to continu- ance of the federal union. If the House of Commons can successfully control, by ante- cedent determination, the exercise of the executive authority, in respect of matters over which the House hiis not even any powers of legislation, it is clear that the rights and privileges of the provincial legislatures are only held and exercised by the sufferance of one branch of the Parliament of Canada. It is conceivable that the House of Commons might lay down a series of instruc- tions to the Crown, in the exercise of its prerogative and statutory powers, covering the whole ground of local legislation, under which no legislation would be possible, except in accordance with such instructions. The House of Commons, in asking that your Excellency be advised to disallow a particular Act, virtually take to themselves the power of determining what Acts of the provincial legislatures shall be allowed ; in short, they would thus make the legislation of all the local parliaments subservient to the opinion of a majority of their body. The establishment of such a principle would be wholly destructive of the federal character of the union, and would entirely destroy the independence of the local legislatures. Feeling strongly that the maintenance of such independent right of legislation as is secured to the Incal legislatures, should be upheld at all hazards as the only safeguard of the constitution, and considering that any aggressive act of the federal power should be met at the'threshold, we deem it our duty, on behalf of our province, to remonstrate against the recent action of the House of Commons on Mr. Costigan's resolution. The character of the legislation ought not to be an element in determining the right, still we beg to call your Excellency's attention to the legislation, which the House of Commons has declared it to be the duty of the government to advise your Excellency to disallow. In 1871, the legislature of New Brunswick passed an Act relating to the common schools of the province, which came into operation on the 1st of January, 1872, and by which all the existing legislation relating to such schools was repealed. The constitutionality of this Act was questioned, and although the Right Honour- able the Minister of Justice gave it as his opinion that it was within the power of the local legislature to pass such law, the opponents of the Act brought the matter before the Parliament of Canada, at its last session, and a resolution was passed, whereby it was sought to obtain the opinion of the law oflScers of the Crown in England, and, if possible, of the Judiinal Committee of the Piivy Council, as to the constitutionality of such an Act. The opinion of the law officers of the Crown was obtained and twice repeated, but the Lord President of the Privy Council declined to entertain the matter unless on appeal from the courts of New Brunswick. The crown officers sustained the opinion of the Right Honourable the Minister of Justice, and also gave it as their opinion that the Parliament of Canada had no power )f the New Brunswick ting the prospective y remark that if such only so exist or be power of legislation, datures, is a statutory the British North ity to the Parliament exclusive powers of any legislature acts unless contrary to any expressly reserved to and even to continu- 'ully control, by ante- spect of matters over ' that the rights and by the sufferance of a series of instruc- powers, covering the d be possible, except .d vised to disallow a ing what Acts of the make the legislation ty of their btitutionaHty of the School Act, but also all technical objections, ari^ing out of the defective administration of the Acts relating to the assessing of municipal rates. The Supreme Court, by unanimous judgment, held the Act to be strictly within the power of the local legislature, thus affirming its constitutionality ; ami tt.ay further held that the Parliament of Canada possessed no power of remedial legislation ; but, in the matter of nine of these assessments, they granted certioraris upon various technical grounds, with a view to the ultimate (juashing of the rates. This judgment was delivered in February last, and the opponents of the law at once applied to the Supreme Court for leave to appeal therefrom to the Judicial Com- mittee of the Privy Council, which leave was granted, the terms of the appeal to be settled by the chief justice. No further steps were taken by the appellants, although their counsel was more than once informed, on behalf of the government, that counsel on their behalf was ready \x» attend and perfect the appeal ; and at length the government were given to understand that the appeal would not be pro-ecutcd. Such was the state of the matter when the Acts legalizing the assessments now sought to be disallowed, were passed bj' the leg!sl«tnro. We may here observe that, in a House of forty-one members, the ^ll'm v»v-." carried by large majorities, the minority vote ranging only from seven to nine, while several members in opposition to the law voted in the majority, believing the legislation to be absolutely necessary in the miniicipal intere-t of the localities. The technical objections which hai been raised as to seven of the assessments, had no reference to the administration of the School Act, but solely related to non-com- pliance with the provisions of the jjenornl assessment law. i;nd in only two of the cases, the city of St. John and town of Portland assessments, were the technical objections sustained in reference to the administration of the School Act. In I lie city of St. John, by the Common Schools Act, the trustees were required to lay before the common council, on or before the 1st of April, which was the time of ordering other city rates, an estimate of the amount required for school purposes, and such amount was to be assessed with and levied at the same time as other city rates. The trustees, however, by some oversight, did not hand in their estimates till the third week in April, but these rates were in fact assesseil and levied at tiie same time as the othei- city rates, and it was thereioi*5 considered that the spirit of the law, which was that the school rates should be assef.c^d and levied at the same time with the other rates, had been complied with. In Portland a sum of i$l50 for interest on debentures had been included in the school rate, but although the trustees had entered into an engajjement for the purchase of land on which to erect school building-*, and although within a few days after they handed in their estimate, they would require to issue these debentures ; yet, inasmuch 700 NEW HRUNSWIOK LEOISLATION. aa the School Act used the term " interest on debentures issued," the courts held that no interest could be levied except on such debentures as had been actually issued before the estimate was made up. As the debentures were in fact issued a f .w days after- wards, and as this sum would be actually required to meet tiie two half-yearly payments of interest which would be due before the next year's assessment could be collected, the Act to legalize the assessment was passed. The technical grounds in the other seven cases, which related to the non-compliance with certain provisions of the general assessment law, were but trifling, and one or two instances will suffice for all. In the Richibucto-Kent case, while the .warrant of assessment contained the several sums ordered to be assessed for each particular .service, the roll contained only the total amount payable by each rate-payer, without setting forth the sum for each service, which latter the court held to be the correct mode. The general Assessment Act, which for the first timt had received this construction, had always been acted upon in Kent, as well as in many other counties, by giving only the total amount of assess- ment on each rate-payer. Since the decision of the Supreme Court, the general assessment law has been amended, and were the amount to be re-assessed the roll would be made up in precisely the same way as the defective assessment was made up. The Act legalizing the Richibucto assessment, also provides for the collection of the rates in the other parishes of the county. This was rendered necessary by the reason of the time for the collection of the rates having expired, in consequence of the stay of pro- ceedings granted by the court, the assessments themselves having been upheld. In Fredericton, one eighth of the assessable amount ought to have been levied by a poll-tax, btit, for upwards of twenty years, a fixed sum of eighty cents had been levied for that purpose ; whereas, it should have been about three dollars, and as the sum of eighty cents had been paid for the period named without question, the assessment was legalized. Of the two Queen's County cases, the Wickham assessment was adjudged defective by reason of the general sessions of the peace having included in the warrant for assessment, a sum of $20 to reimburse the commissioners of highways for costs incurred in a prosecution for breach of the Highway Acts ; and the Petersville assess- ment, by reason of the assessors of rates having made an error of four cents in calculating the amount of the poll-tax. We do not think it necessary to refer to any more of the cases, as those mentioned sufficiently indicate the general nature of the objections which were taken, and which by the Acts in question were not further made tenable, as grounds for finally quashing the assessments. The Act in amendment ^o tho Common School Act, which it is also asked shall be disallowed, contains provisions as to matters of detail, found to be essential to the proper and efficient carrying out of the intention of the original Act in providing free common schools for the youth of New Brunswick, and as the original Act has laeen declared by the highest tribunal in the province to be strictly constitutional, it was, and id, within the province of the legislature, to enact subsequent provisions, found necessary to ensure its efficient working. The presumptions thus far being all in favour of the constitutionality of the original Act, your Excellency ought not to be called upon to disallow the Acts in question, pending an appeal to the Judicial Committee of the Privy Council, for no such appeal is now pending, nor is there any guarantee that any appeal will be prose- cuted, the House of Commons having no power to comp' ' the protesting parties to prosecute an appeal ; and even if an appeal were pending, it would not afford any ground for the disallowance of the Acts, for if the original Act be unconstitutional, all legislation dependent upon, and in amendment of itj must fall also, and it is now quite open to the parties, from whom rates may be sought to be collected under these Acts, or pgainst whom any provisions are sought to be enforced to resort to the courts, and there raise the question that this subsequent legi. ^ation can be of no avail, being in aid of an Act which, as they allege, is unconstitutiona'.--' 34 VICTORIA, 1871. 701 ho courts held that tuiilly issued before II f .w days after- ulf-yearly payments uld be collected, the the non compliance ing, and one or two lent contained the roll contained only the sum for each general Assessment lys been acted upon amount of assess- Court, the general 3ssed the roll would was made up. The ction of the rates in the reason of the )f the stay of pro- sen upheld, lave been levied by mts had been levied i, and as the sum of the assessment was } adjudged defective in the warrant for highways for costs ie Petersville assess- r cents in calculating , as those mentioned re taken, and which for finally quashing p> also asked shall be sential to the proper )viding free common las been declared by was, and id, within found necessary to itutionality of the isallow the Acts in rivy Council, for no ippeal will be prose- )rotesting parties to luld not afford any be unconstitutional, also, and it is now illected under these resort to the courts, e of no avail, being This is the correct course for the objectors to take ; for, by seeking a disallowance of these Acts, your Excellency is asked to assume (|ua«i-judicial powers, and in effect to declare that the Common (Schools Act is unconstitutional ; in other wurds, your Excel- lency is l)e>ought to assume a power which, in the present state of .ho matter, Ixilongs solely to the Judicial Committee of the Privy Council. Again, should the judicial committee declare the Act to be beyond the power of the local legislature, no great inconvenience can follow to the parties who may have paid their rates, for these moneys can all be recovere«l back from tho different muni- cipalitieb and public authorities who may have ordered the assessments and received the funds ; while, on the other hand, were the Acts disallowed, the public inconvenience would be very great indeed, inasmuch as the assessments, as already Ktated, concern the rates and taxes for county, city and parish purposes, as well as the county school rate (which is but a small rate in comparison), and were these not collectable the dei>enlure holders and other creditors of the various localities in which these a-ssossnients arr ordered to bo levied, would be greatly delayed in the payment of interest and other moneys due them, quite outside of and beyond tho school rate, and the public credit of these localities would be seriously impaired. We beg to add that we are quite sure that the remonstrance which we have felt called upon to make against the action of the House of Commons, will meet with the concurrence of our colleagues in the government of the province, and regretting that we have felt ourselves compelled to set forth at such length our views and the facts, We have, &c., R. YOUNG, J NO. J AH. ERASER, GEO. E. KING. Substance of annouticement made in IfouHe of Commons by Sir John Macdonald, on behalf of Governor OeneraJ. The resolution adopted by the House on the 14th May, was duly laid before his Excellency the Governor General ; and I have it in command to state, that he is asked by one branch of the Parliament of Canada to exercise the royal prerogative, by dis- allowing certain Acts of the New Brunswick legislature. It is slated t!mt Lueae Acts were passed for the purpose of legalizing certain as8es<:ments made under the Common School Act of 1871, and in amendment of such Act, the object sought in getting these Acts disallowed is to give the parties complaining of the School Act, an opportunity of bringing such Act judicially before Her Majesty's Privy Council. Now his Excellency has been already instructed by Her Majesty's government, in the opinion of the law officers of the Crown of England, that the Act In question was within the competence and jurisdiction of the New Brunswick legislature. Such being the case, his Excellency deems it is his duty to apply to Her Majesty's Govern- ment for further instructions in the matter. I further desire to state that, considering the gravity of the question and the number of Her Majesty's subjects complaining of the School Act, the government will bo prepared to ask parliament for a vote of money to defray all expenses of the appeal. The Secretary of State for the Colonies to the Governor General. ■' Downing Street, 30th June, 1873. My Lord, — I referred to the law officers of the Crown, your Lordship's despatch, with its inclosures, of the 27th of May, No. 137, in which you requested instructions as to the course you should take with regard to the resolution of the Canadian House of Commons, urging the disallowance of certain Acts passed by the New Brunswick 702 MRW URUNBWICK LEQIBLATION — 35 VICTORIA, 1872. legislature, with the view of legalizing a series of aHsessments made under the Common Schools Act of 1871, and, in amendment «.f that Act, 1 am advised : — 1. That these Acts of the Ntiw Hrunswick legislature are, like the Acts of 1871, within the po-.ers of that legislature. 2. Tliat the Canadian House of Commons cannot constitutionally interfere with their operation hy passing a resolution such as that of the 14th of May last. If such a resolution were allowed to have oflect, it would amount to a virtual repeal of the section of the British North America Act, 1867, which gives the exclusive right of legislatiiin in these matters to the provincial legislatures. 3. That this is a matter in which you must act on your own individual discretion, and on which you cannot be guided by the advice of your responsible ministers of the Dominion. 4. That these Acts of the New Brunswick legislature, being merely Acts for better carrying out the Act of 1871, and for getting rid of technical objections to the assessments thereunder, it would be in accordance with the Imperial Act, and with the general spirit of the constitution of the Dominion as established by that Act, for you to allow these Acts to remain in force. I have, &o,, KIMBERTT^Y. NEW BRUNSWICK, 35th VICTORIA, 1872. '•. 3rd Session — 22ni) Genehal Assembly. Report of the Hon. the Minister of Justice, approved hy His Excellency the f- jverruyr General in Council on the 7th April, 1878. Department of Justice, Ottawa, 5th April, 1873. The undersigned to whom was referred a certified copy of the Acts of the General Assembly of the province of New Brunswick, passed in the session held in the 35th year of Her Majesty's reign, and assented to by the Lieutenant-Governor on the 11th April, 1872, has the honour to report : — That after a careful examination of the said Acts he is of opinion that they are unobjectionable. He, therefore, recommends that the same be allowed to go into oper- ation. JOHN A. MACDONALD. 72. de under the Common d:— ike the Acts of 1871, ionally interfere with of May last. If such virtual repeal of the the exclusive right of individual discretion, isibln niinisters of the »ing merely Acts for nical objections to the rial Act, and with the )y that Act, for you to KIM BERT T^Y. ., 1872. 'Xcellency the < jvernor , 5th April, 1873. he Acts of the General jsion held iii the 35th t-Governor on the 11th I opinion that they are illowed to go into oper- MACDONALD. 36 vicToniA, 1873. 70S NEW BRUNSWICK, 36th VICTORIA, 1873. 4tii Session — 22nd Gbneual Ashemhly. Report of the Hon. the Minuter n/JuHtice, approved hy //w Excellency the Governor General in (Jouncil on the 7th September^ 1874- Depaiitment ob Justice, Ottawa, 2nd Hepteinber, 1874. The undersigned, to whom is referred a certified copy of the statutes passed by the legislature of the province of New Brunswick, in the session thereof, held in the 36th Victoria, A.D. 1873, has the honour to report : — That, after a careful examination of the statutes, he is of opinion that the following are unobjectionable, and he, therefore, recommends that thoy bo left to their operation. Chapters 1 to 12 inclusive, 14 to 28 inclusive, 30 to 85 inclusive, 87, 80, 90, 94, 95, 96, 97, 98, 99, 101 and 102. With reference to the Acts not included in the above list, the undersigned has the honour to report as follows : — Chapter 13.— "An Act further relating to the several County Courts of New Brunswick." Hection 1 has reference to appeals from the conviction of a justice of the county courts in its criminal couipetence. If this be so, it is a matter of criminal procedure, and not within the competence of the local legislature. The attention of the government oi New Brunswick is called thereto, with a sug- gestion that the clause should be repealed. Chapter 29. — " An Act to establish certain Courts in the County of Madawaska." Section 4.— The working of this section has been represented as being beyond the competence of the local legislature, as in effect an appointment by them of a judge. Correspondence having been, however, had with the government of New Brunswick on this point, an Act has been passed in the session of 1874 in amendment of the same. Chapter 86. — "An Act to incorporate the Saint George Red Granite Company, Limited." Section 3 seems to contemplate the carrying on of a business by a company in, England and in the United States, and it may be doubted if this is not in excess of legislative competence. It is 8Ugge3ted that the attention of the government of New Brunswick should be called to it. „ Chapter 88.—" An Act to incorporate the Lake George Railway Company. Chapter 91. — "An Act to authorize David H. Budge and Samuel Stanton to erect a Boom across Eel River (near the mouth thereof) in the county of "Xork, also side booms and piers in connection therewith." Chapter 92. — " An Act to incorporate the North-west Boom Com.pany." Chapter 93.—" An Act to incorporate the Bay of Fundy Red Granite Company, Limited." „ Chapter 100.—" An Act to incorporate the Back Creek Stream Driving Company. In these different statutes there are no words which show the character of the streams, rivers or waters to be affected by the companies incorporated under them, and whether such streams, rivers or waters are navigable or merely floatable. In the absence of any clear enactment on this, it is difficult to say whether the same are or are not within the competence of the legislature. In any Acts of the Parliament of Canada having reference to the crossing or bridging of navigable streams or waters, provision is always inserted regarding the 704 NEW BRUNSWICK LEGISLATION. approval of the Governor in Council before such is carried into effect, and in many cases the plans for crossing or interference in the same, must be submitted for the same approval. When, therefore, such powers as are claimed by these Acts have been granted by the Parliament of Canada, they have been accompanied by lestrictions and conditions calculated to protect a free navigation and the interests of the Dominion. The enactments in the above-mentioned statutes are so unrestricted in their terms, that they would appear to apply to all waters. If, therefore, they would thus interfere with navigable waters, the subject is one suggested for the consideration of the government of New Brunswick, as being one in which legislation should be had to define the rights intended to be granted by the Acts in question. Chapter 103. — " An Act to incorporate certain Districts of the Parish of Saint btephen, in the County of Charlotte, to be known as the Town of Milltown." Section 42, Sub-section 1, purports to confer on the Council of the Town of Milltown the right to make By-Laws. First — The regulating of weights and measures, «fec. This is a matter solely within the competence of the Parliament of Canada. It is not out of place to remark here that the Act passed by the Dominion Parlia- ment on this same subject will be shortly put into operation, as the standards of weights and measures ordered in England are now reaching Ottawa ; and that as soon as they be verified, the law will be put into operation. It is suggested that this section should be repealed. Sections 4, 5 and 6. — It may be doubted whether, in the way in which these sub- sections are worded, they are not in restraint of, or purporting to regulate, trade and commerce : and the consideration of the government of New Brun'iwick should be drawn to this point. T. FOURNIER, Minister of Justice, I „ot, and in many case s mitted for the same ave been granted by tions and conditions minion. tricted in their terms, jrs, the subject is one awick, as being one in e granted by the Acts the Parish of Saint MilltowK." the Town of Milltown ent of Canada, the Dominion Parlia- e standards of weights 1 that as soon as they y in which these sub- to regula,te, trade and Brun'^wick should be )URNIER, (inister of Justice. 37 viCTOKiA, 1874. 705 NEW BRUNSWICK, 37th VICTORIA, 1874. 5t.u Session — 22nd General Assembly. Sir Edward Thornton to the Go:vrnor General. "WA8niN«T0N, 20th December, 1873. My Lord, — I have the honour to inolose copy of a note from Mr. Fish, sulimitting a con plaint made by citizens of the statfi of Maine, with regard to obstacles alleged to be be placed in the way of the navigation of the River Meduxmekeag, which, rising in that state, falls into the River St. John; and I shall feel much obliged if your Excellency will cause inquiries to ba made whether there is any ground for the above- mentioned complaint. I hr^ve, «fec . , EDWARD THORNTON. Mr. Fish to Sir Edward Thornton. Department of State, Washington, 19th December, 1873. SiRj — This department has received, through members of Congress, ". memorial from the inhabitants of the state of Maine, engaged in the lumber trade on the Meduxmekeag River, representing that they have b<'en materially injured in their business by the proceedin:; of v corporation chartered by the legislature of H. M. province of New Brunswick, which corporation has placed dams, booms and piers on that river at or near its mouth, claiming and exercisini: authority to collect tolls on lum- ber passing down the i^ame. As the proce dings of the corporation adverted to, appear to be at variance with the stipulations in the 3rd article of the Ashburton Treaty, I will thank you to bring the subject to the attention of the proper authority, in order that measures may be adopted towards redressing the grievances complained of. I have (kc, HAMILTON PISH. Lieutenant-Governor Tilley to the Secretary of State of Canada. Government House, Fredericton, 3rd March, LSi'4 Sib, — I have the honour to transmit, for the information of nis Excellency the Governor General, a copy of the report of n.y ALtoriiey-Gener^;! in which he states that, in his opinion, the charter granted to the Meduxnakilc Boom Oompan_,, does not inter- fere with tiie rights secure i to American siil)jectH uiider the A^hl)urton Treaty. The company referred to, ate now seeking an extension of time for their charter from the legislature. Sli ,id their application be cuuij'Iieu with, which is possible, provided ceitain conditions asked for by United States ctisHus are inserted, 1 will reserve the bill for thfe consideration of \\u Excellency. A copy of the evidence taken before the committee, and of their report will be forwarded for the information of the Governor General. I have, Ac, S. L. TILLEY, Lieutenant-Governor. 706 NEW BRUNSWICK LEOISLATION. Report of Mr. Attorney-General King. Attorney-Generai.'8 Office, Fbedericton, 28tli February, 1874. SiB^ I have the honour to have received your direction to report upon the matters referred' to in the communication of the 6th inst., from the Department of the Secretary of State, forwarding c 'pies of despatches from the Secretary of State of the United States tf) Her Majesty's Minister at Washington, and from Her Majesty's Minister to his Exi lency the Governor General. It is represented that inhabitants of the state of Maine have been materially in- jured in their business by the proceedings of a corporation chartered by the legislature of this province. I have the honour to submit herewith a copy of the several Acts relatmg to the cor- poration, viz. : — 1. An Act to incorporate the Meduxnakik Boom Company, 8 Vic, chap. 49. Meduxnakik Boom Company, 10 to the Meduxnakik Boom Com- to the Meduxnakik Boom Com- to the Meduxnakik Boom Cora- to the Meduxnakik Boom Com- 2. An Act to amend the Act to incorporate the Vic, chap. 80. 3. An Act to continue the several Acts relating pany, 13 Vic, chap. 12. 4. An Act to continue the several Acts relating pany, 20 Vic, chap. 31. 5. An Act to continue the several Acts relating pany, 23 Vic, chap. 16. 6. An Act to continue the several Acts relating pany, 31 Vic, chap. 35. The Meduxnakik (Meduxmekeag)'is a tributary of the St. John River ; it rises in the state of Maine, but for a distance of abuut twelve miles from its junction with the St. John, it flows through the province of New Brunswick. I am of opinion that the Acts of the General As-enibly above referred to cannot be deemed in violation of the stipulation of the 3rd Article of the Ashburton Treaty. I has© not been able to obtain information sufficient to state wnat has l)een the practical operation of the corporate power so granted, or whether or not the corporation have exceeded such powers. The facts are in dispute, and I have not thought it necessary at present to enter into the somewhat lengthened inquiry that would be necessary in order to obtain full and trustworthy informatitm, inasmuch as (Ist), The complaint referred to in the des- patch of the Secretary of State of the United States is general, and seems to relate to the character of the legislative authority under which the corp ration act, and (2nd), the corporation having made application to the legisUturo now in session for an exten- sioa of their char er, a committee of t'e assembly are now engaged in taking evidence under oath, as well on behalf of the inhabitants of the state of Maine owning land on the h-ad waters of the Meduxnakik. as on behalf of the corporation. The parties are severally represented by counMcl. On the completion of the labors of the committee, I shall lay before you a copy of the evidence In the event of the passage of the bill, I would advise that it be reserved for the signification of the pleasure of the Governor General. I have, &c., G. E. KING, A ttorney • General. Lieutenant-Governor Tilley to t)ie Secretary of State/or Canada. Government House, Freder^ton, 18th May, 1874. Sir, — At the last session of New Brunswick legislature a bill was submitted to further continue the Act to incorporate the Meduxnakik Boom Company. 37 VICTORIA, 1874. 707 February, 1874. )rt upon the matters lent of the Secretary itate of the United [ajeaty's Minister to ! been materially in- I by the legislature bs relating to the cor- Vic, chap. 49. Boom Company, 10 xnakik Boom Com- ixnakik Boom Com- xnakik Boom Cora- ixnakik Boom Com- n River ; it rises in ;s junction with the referred to cannot be burton Treaty. 3 wiiat has l)een the • not the corporation r at presen*^ to enter order to obtain full jfern d to in the des- id seems to relate to ition act, and (2nd), session for an exten- in taking evidence laine owning land on 1. ipletion of the labors be reserved for the I ttorney -General. Canada. 8th May, 1874. ill was submitted to mpany. A protest a/jainst the passage of the bill was forwarded from the authorities at Washington to his Excellency the Governor General, alleging that in its operations it would deprive Amorican citizens of the rights secured to them under the Ashljurton Treaty. The bill as originally submitted has been materially changed by the legislature, and several conditions added, calculated to secure the free navigation of the river to all manufacturers of lumber. I deemed it best, however, to reserve the bill ; and now have the honour to inclose a certified copy for the signification of the pleasure of his Excellency the Governor General. I have, (fee, S. L. TILLEY, Lieutenant-Governor. Report of the Honourable the Minister of Justice, approved b>i His Excellency the Governor General in Council on the 29th May, 187 Jf, Department op Justice, Ottawa, 27th May, 1874. The Lieutenant-Governor of New Brunswick transmits, by despatch of the ISth of May inst., the bill passed by the legislatu"e of that province, at its last session, chapter 61, intituled : " A bill to further continue and amend the Act incorporating the ' Meduxnakik Boom Company,' " and reserved by the Lieutenant-Governor on the 8th day of April last, for the sign-fication of your Escalhncy's pleasure thereon ; Upon this bill, the undersigneil has the honour to report : — That it is for the purpose of continuing in existence the incorporation of the company n imed, and for providing for tiie continuance of the boom of the company, under- certain amended provisions. The bill consists of details in respect to the boom and the management thereof by a boom-maker, and the passage of logs into and through the same. The subject of this bill was, in December last, b ought under the notice of your Excellency by H«r Majesty's Minister at Washington, at the request of the Secretary of State of the United Stat s of America, who alleged on behalf of certain cii izens of the state of Maine, that the bill then before the legislature tendi^d to place and perpetuate obstacles being placed in the v/ay Of the navigation of the River Medux- nakik. The objections then raised by Secretary Fish were -ubmitted by your Excellency to the Lieutenant-Governor of New Brunswick, and in March last, the Lieutenant- Gove-nor reported that the Attorney-General of New Brunswick was of opinion that the charter granted to the boom company, did not interfere with the rights secured to American subjects, und'T the Ashburton Treaty (that b-ing, in eflect, the complaint which Secretary Fish had made). He fun her stated that the company were seeking an extension of time for their charter, and the Attorney-Gene al stated that a committee of the assembly wa-s then engiicerovide for the man- paid for vessels and ir within the limits of the competency of a t the attention of the nilar question which •rs in the Parishes of Saint John." o frequently referred police force and lock- bing the breaches of enience of so describ- the attention of the ihe phrase. constables. (Similar ale. hould be requested to >n criminal law. pear to be a malicious and the undersigned te its repeal, ition may arise as to w with reference to The undersigned begs to report that, from an examination of the line authorized to be constructed by the various companies now included in the New Brunswick and Canada Railroad Company, it appears that these lines are within the province of New Brunswick, thus being within the competence of the local legislature. The Act should be left to its operation. Chapter 111. "An Act to incorporate the Maritime Mutual Fire Insurance Company." This Act does not in terms limit the powers of the company to a provincial business ; but from the whole tenor of the Act it seems tolerably plain that a provincial business only is intended. The undersigned recommends that the attention of the Lieutenant Governor should be called to the doubt, with a request that his government would consider the pro- priety of clearing it up by an amendment. Chapter 116. "An Act to incorporate the St. Croix Wharf Company." This Act incorporates a company for the erection of a wharf on the River St. Croix, at any point at or near Johnson's Cove, and it authorizes a to!l upon property shipped from or landed on the wharf. The undersigned has had already occasion to remark upon the questions to which legislation of this description gives rise, and it is his duty to point out that it is not within the power of a local legislature to authorize any interference with navigation, or with a public h irbour ; and that a question may arise as to the validity of the Act. With these observations, however, he recommends that it should be left to its operation. Chapter 118. " An Act to incorporate the Shediac Station Wharf Company." The observations made on the preceding statute apply to this one. Chapter 123. '-An Act to incorporate the Belliveau Albertite and Oil Company." This Act authorizes the company to construct a railway or tramway over and 11 cross any brooks, streams, or rivers on public lands, and to build harbours, piers or breakw aters on land ow^ned by the company, above or below low-water mark, license therefor having been first applied for and obtained from the Governor General of Canada of the Lieutenant-Governor of New Brunswick in Council, as requisite. The undersigned has already adverted to the questions which may arise with referencs to such legislation, and he refers to his former report as applicable to this Act. Chapter 125. " An Act to incorporate the Utopia Red Granite Company of Saint George." The 8th section of this Act contains provisions similar to those just remarked upon. Chapter 127. "An Act to. authorize the erection of a Boom across the Jacquet River, in the County of Northumberland." This Act authorizes the construction of piers, booms and side- booms for the purpose of collecting and forwarding timber, &c., floating down the Jacquet River, nvenieiice and unsuit- and under the stime ; but however serious 3s not seem to call for hat the Act should be [LAKE, finister of Justice^ 39 vir iniA, 1876. 713 NEW BRUNSWICK, 39th VICTORIA, 1876. 2nd Skssion — 23kd CJeneral Assemhly. RfjHtrt of the I/onourable the Minister of Justice, approved by His £xcelfency the Governor General in Vowicil on the 25th October, 18711. Department of Justice, Ottawa, 16th October, 1876. With reference to the Acts of the legislature of New Brunswick, passed in the year 1876 (39th Victoria), the undersigned begs to report as follows : — He recommends that the following Acts be left to their operation, namely C— Chapters 1 to 50 inclusive, chapters 53 to 62 inclusive, and chapters 64, 65 to 68. Chapter 51. "An Act to incorporate the New Brunswick Red Granite Company (Limited.)" Ch-ipter 52. "An Act to incorporate the Lepreaux Red Granite and Freestone Company." These Acts contain provisions similar to those contained in chapters 116, 118 and 133 of the Acts of the former session, the observations upon which are applicable to these Acts. Chapter 63. "An Act to incorporate the Pollit River Log-driving Company." The undersigned refers to his observations already made upon similar Acts passed in the previous session of the legislature of the province. The undersigned recommends that the attention of the Lieutenant-Governor be called to these Acts, but that they be left to their operation. EDWARD BLAKE, Minister of Justii'e. Lieutenant-Governor Tilley to Secretary of State. Government House, Freuericton, 16th January, 1877. Sir,— I have the honour to forward, in compliance with the request of. a com- mittee of my Executive Council, a copy of the report of the Attorney-General upon certain Acts relating to the withholding of liquor licenses, for transmission to his Excellency the Governor General. I have, A'c, S. L. TILLEY, Lieutenant-Governor. Jteport of the- Attorney-General upon certain Acts relating to the zvithholding oj Liquor Licenses, approved by His Honour the Lieutenant Governor in Council on the 13th January, 1877. At the last session of the legislature a resolution was passed by the House of Assembly to the effect that it is desirable that the government should take the neces- sary steps to ascertain the powers of the legislature as to granting or withholding licenses to sell spirituous liquors. r>%> 1 714 NEW BRUNSWICK LEOISLATION The following are the most material provisions of the Acts of aHSenibly relating to the withholding of such licenses : — 34 Vic, cap. 6, sec. 1, enacts that no license shall l)e grantence to one of the Acts until the 1st May next, the time at which it is provided the Act shall come into force. The alternative suggestion of the Attorney (teiiiM-al shows that it is not merely possibi' , but also easy, to bring the questions referred to before the consideration of the Sujireni- Court of Canada in its judicial capacity, by proceedings begun in the provin- cial court. There is, therefore, obviou'^ly no absolute necessity for resorting to the plan which he proposes. It may be laid down as a general nde that the power of reference to the Supreme Court by the Governor General in Council should not Im exercised in mutters which may in the ordinary course of things, be i >ught judicially before that tr il)unal. The opinion of the Supreme Court on ^uch a reference would be givei without the advantage of hearing argument. Such a disposition of an important and e informed that, with every desire to meet the views of his government, it is thought, for the reasons I have assigned, to be inexpedient to make the proposed reference. EDWARD BLAKE, Mininter oj" Justice. Xute. — Xo Order in Council apfeara to have been passed upon the above Report. 32, the course above :. KING, i ttorney- General. \\. January, 1877. -unswick, of the 16th imittee of his council. Acts aflecting liquor ley-Genpral has been from the letter of the in effect the govern- istion of the attorney- of Assembly of New d take the necessary ng or withholding of o this resolution, the 716 NRW BRUN8WICK LRdlSLATlnN NEW BRUNHWK'K, 40th VICTORIA, 1877. 3ni> 8K8HION — 23i(i> Urnkkai. Ahsrmiily. . Report ofthi' Hon. the Minister ofjuxtice, ajtpron-d by //in Ejcellency the Governor General in Council on thf :'i,ind February, 187S, Dkpartmbnt of Justick, Ottawa, 22nd December, 1877. Upon the Acts of the \^nw,^u,\ lussembly of the province of Now Brunswick, pasHed in tho fortieth year of Her Majesty's reign, A. D. 1877, — received by the Secretary of Htate, on IDth May, 1877, — I beg to report : — To the Acts, chapters 1 and 2, 4 to 9, 12, 13 to 24, 26, 28, 30 to 37, 39 to 49, there appears to be no objection, and I recommend thnt they he left to their operation. Cap. 3. — " An Act relating to MunicipalitieH." Section 17 provides that each candidate for the office of councillor nhall, before being considered as properly nominated, make a certain declaration in writing, and goefi on to provide that any person wilfully making a false declaration, or a declaration that he does not know to be true, shall be liable to a penalty not exceeding one hundred dollars. This appears to entrench on the criminal law relating to perjury, and thus to be beyond the legislative authority of the general aa.sembly. The Act respecting perjury, namely, 32 and 33 Vic. (18G9), cap. 23, appears to make full provi,sion for the punishment of a person making a false declaration in such a case. Section 90. The word " oflFence " is used in this section as describing a breach of the provisions of the section. It has been pointed out on previous occasions that this word is objectionable in describing a breach of provincial law, and the governments of severol provinces have been requested to avoid, in local legislation, the use of this word for such purposes. I recommend that the attention of the I^ieutenant Governor be called to these remarks. Section 92 provides that " every county or parish officer, whether in office at the time the requisitioii is made or not, shall, when required by the county council, render full, true and and detailed accounts of all moneys received and paid by him under the orders of the council, or by the authority of any Act of assembly, or otherwise by virtue of his office, and shall, in like manner, whenever ordered, pay over any sum or sums of money which, by such accounts, shall appear to be due by such officer, and to have come to his hands as such officer as aforesaid, to such person or persons as the council in such order may appoint to receive the same; and, in case of disobedience of any such order, or of any other order of the council, lawfully made, or if the same shall not be attended to within ten days after the service of such order, it shall and may be lawful for any council to cause such disobedient or refractory officer, by warrant, to be brought before the council, and if such disobedience or improper conduct be persisted in, then or at any time afterwards, to commit such officer to the common jail, without bail, until such order or orders of the council shall be complied with, and such proceedings of the council againt the said officer shall not in any case relieve his sureties from liability on any bonds entered into by them." Section 93 provides that in case the officer against whom the warrant is issued, be brought before the council, in consequence of their not being in session at the time of the execution of such warrant, such officer may be taken before a justice of the peace, and may enter into a recognizance with two sureties, und in such amount as the justice 40 VICTORIA, 1877. 717 1877. tlid Governor General December, 1877. iw lirunHwick, pasMed l)y the Secretiuy of to .'}7, 39 to 49, there ^hcir operation. uncillor nhall, before I in writing, and goefi or a declaration that cceeding one hundred •jury, and thus to be >), cap. 23, appears to He declaration in such describing a breach of 18 occasions that this d the governments of ition, the use of this Qr be called to these hether in office at the lunty council, render aid by him under the )r otherwise by virtue r any sum or sums of cer, and to have come is the council in such ice of any such order, shall not be attended 1 may be lawful for irraiit, to be brought be persisted in, then >n jail, without bail, find such proceedings ieve his sureties from warrant is issued, be lession at the time of justice of the peace, imount as the justice may deteiinine, not loss than four- nor more than eight hundred dollars, to appear at the next neeting of the council anent by any officer, of any sums found to have been unlawfully applied or retained by him (which order the council is hereby empowered to make) and such order be not complied with, the council may, instiuid of committing such person to jail, make an order to the sheriff or constable, directing him to levy of the goods and chattels which (the officer) was ordered to pay, and in default of goods and chattels whereon to levy such sum, to take the person and deliver him to the keeper of the jail of the county, there to be kept safely until payment is made in full of the said amount and costs, or until discharged by order of the couiicil. The provisions appear to me very objectionable, and such as should not be left to their operation. Among other objections which may properly be made to them are the following : — 1. If the cir umstances connected with the non-payment of the money, or with the disobedience to the orders of the council bii such sis to make the defaulting or dis- obedient officer criminally liable, his punismnent is already provided for by the criminal law. The l^arceny Act, 32-33 Vic. (1869), chap. 21, would probably cover the case, and in this respect the provisions of the section;! referred to seem to entrench upon the criminal law. 2. A very exceptional mode of determining the liability of the officer, and of realiz- ing any amount due by him is pointed out, and the ordinary courts of justice established for determining the civil and criminal liability of the subject, are (entirely disregarded, the proceedings of the council apparently not even being subject to appeal, or to be reviewed by any of the courts of justice, although by the order of the council, the liberty of the subject may be interfered with, and the disobedient or refractory officer imprisoned indefinitely, without being allowed even the oppor-tunity of giving bail. 3. That the tribunal thus established, and to which such arbitrary powers are intrusted, and which is to be the judge to pr-onounce upon the extent of the liability, is composed of the persons most interested in the subject-matter upon which the decision is to be given. The council is in effect made sole judge in its own case, I recommend that the attention of the Lieutenant Governor be called to these provisions, with a request that his government may, at the next ses.sion, before the time expires within which the Act must be disallowed, promote legislation to amend or repeal them. Section 96 gives the council powipr to make by-laws on certain subjects. Among others (subsection 18) " For the occupation and grazing of marshes, sand bars, beaches and other low lands and islands, and the erection of water and ether fences and gates thereon, and for determining what creeks, lakes, swamps, rivers, arms of the sea and fences shall be deemed lawful inclosures for the same." Subsection 24. — " For the regulation and management of booms for holding timber, logs and other lumber, and for the driving of timber and logo ; for fixing the table of tolls for boomage, with the lien of the boom master therefor, and prescribing the mode of recovering, and right of disposinir of the lumber of any person for which such boomage may be charged in default of payment, not interfering with any corporation or person empowered by the law to establish a boom." Subsection 32. — " For regulating the assizes of ' bread.' " Subsection 33. — "I]or preserving the banks of rivers." Subsection 39. — " For further regulating the measurement of boards, shingles, lathwood and other lumber, cordwood and other fuel." 718 NEW rRUNSWJCK LEGISLATiON S'jbsect'on 44. — • For regulating the discharging and depositing of ballast." The 97th section decHres that no such laws shall be of any force, so far as they are repugnant to any laws, or beyond the authority or power which can be given by tho legislature of the province. This limitation upon «;he power of passing by-laws renders it less difficult to leave the 18th, 24th, 33rd and 44th subsections above mentioned to their operation, and although thos.> subsections seem to some extent to entrench upon subjects over which the Parliament of Canada h's exclusive legislative authority, yet in view of the restriction containtu in the 97th clause, no inconvenience is likely to arise from their provisions. The 32nd and 39tli subsections appear, howe^ er, to entrench upon the subject of weights and measures, upon which, by the Confederation Act, the Parliament of Canada alone can legislate. I recommcjnd that the attent-'on of the Lieutenant-Governor be called to these remarks. Chap. 10. — "An Act in further amenflment of the Act, intituled : 'An Act to amend and consolidate the Laws to regulau the sale of Spirituous Liquors.' " The extent of the r* ,I.i; of tho local legislatures to deal with this subject is now under the consideration of the courts, and, following the practice adopted in reiiereuce to other similar Acts, 1 rbcommend that the Act he left to its operation. Chap. 11. — "An Af't relating to Fences, Trespasses and Pounds." Section 7 makes use of the worl "offence." I call attention to the ren arks above made as to the use of tl i word. The Act, however, may be lef*^^ tj i*^- -operation. Cap. 25. — "An Act to regulate the sale of Spirituous Liquors in the Parish of Lancaster, Simonds and Saint Martin's, in the City and County of Saint John." I refer to the remarks n;. cap. 10 as to the extent of the right of local legisla- tures to deal with this s'::'oject. Section 19 provid3s that no dealer or tavern keeper shall pern it any apprentice to any profession or trade, or any person under the age of sixteen years, or any Indian, or any noted vagrant, to sit or remain drinking in his house or on his premises, nor sliall he sell or give, or suffer to be sold or given, any spirituous licjuors whatever to any such person, &c., &c. Section '2S provides that whoever shall he convicted of any violation or breach of any of the provisions of the Act, an^ for which no special penalty is provided, shall be liable, on thj first conviction, to a penalty oi not less than ten nor more than twenty dollars, and on every succeeding conviction of the same violation or breach, a penalty of not less than twenty, nor more than forty dollars. By the 37th section, penalties where recovered shall be paid into the county treasurer of St. John, and by him placed to the credit of the liquor license fund of the parish in which the .Tenffi wa.' committed, any law or statute to the ontrary notwith- standing. Among the subjects reocved for the exclusi ;e legislative authority of the Parlia- ment of Canada is that of Indiejis. I refer to the report of tho Minister of Justice, dated 20th October, 1876, upon the sta,tutes of the legislature of Prince Edward Island. In dealinj^ with the 16th section of cap. '2 of those statutes, which piovided that no liquor should be sold, or given by any person or to any Indian, without a certiticate from the clergyman or medical man, under a penalty of $10 for every otfersoe, one-half of the line to be paid to the informer and the other half to the treisurer of the province, the following remarks were made : — " Upon this section the undersigned obtained the view of the Department of th« Interior, which points out tha. the provisions of the segtion are in direct conflict with those of the Dominion Act p«' .sed last session, both as regards the amount and disposi- tion of the penalty imposed, and that it seems clear that local leTfislation either in Prince Edward Island or elsewhere, on matters relating to Indians, can hardly fail to cause great ptactical incor.venience and confusion, if not (as in the present case) actual ing of ballast." ce, so far as they are can be given by thw less ditficult to leave their operation, and subjects over which yet in view of the to arise from their upon the subject of Parliament of Canada )r be called to these itituled : ' An Act to Liquors.' " 1 this subject is now adopted in rei'erence 'ation. ds." to the ren arks above ors in the Parish of Saint John." ight of local legisla- r it any apprentice to irs, or any Indian, or lis premises, nor siiall whatever to any such iolation or breach of r is provided, shall be or more than ^wenty or breach, a penalty aid into the county 3r license fund of the ihe >ontrary notwith- ihority of the Parliar tober, 1876, upon the ';th the 16th section be sold, or given by man or medical man, paid to the informer marks were made : — e Department of th« 1 direct conflict with amount and disposi- Ic^fislfttion either in IS, can hardly fail to ! present case) actual 40 VICTORIA, 1877. 719 conflict of laws. Very full provision is made by the Canadian Act, 39 Vic, cap. 18 (1876), respecting Indians in the 79th and following sections. "It seems obvious that there should not be double legislation upon such a subject." lurise remarks equally apply to the section under consideration. I recommend that the attention of the Lieutenant Governor be called to the section, with V suggestion that it should be amended to meet the objections raised, at the next sessiofi, and before the time expires within which the Act can be disallowed. Station 20 is as follows : — " No dealer or tavern keoper shall entice, harbour or conceal any articled seamen .or apprentice, on any pretense whatever, nor encourage or permit or suffer any riotous or disorderly conduct or drunkenness, or gambling of any kind in or about his premises." The Dominion Parliament ha,«, in its Act of 1873, cap. 129, respecting the shipping of seamen, by section 104, legislated upon the subject of enticing and harbouring sea- men or apprentices, and although I do not recommend a disallowance of this Act by reason of the 20th .section, yet I think it should be pointed out that inconveniences may arise by legislation in a province, upon a subject, in respect of which the Parlia- ment of Cansida has legislated, and may in future legislate. I recommend that \iq attention of the Lieutenant-Governor be called to these remarks. The word "offence ' occurs in sections 33 and 41. I refer to the remarks above made with reference to the use of this word. Cop. 27. — " An Act to increase tlie facilities for the collection of Small Debts in the City of Fredericton." I had occasion, in reporting upon the Acts of British Columbia and also of Ontario, to point out the danger of permitting provincial legislation, which not only constitutes courts for the administration of justice, but also appoints the judges of those courts. I desire here to refer to those reports : inasmi>ch, however, as similar legislation to that contained in this chapter, has been left to its operation in other provinces, I do not recommend the disallowance of this Act. Cap. 29. — " An Act to continue and amend an Act passed in the sixteenth yoar of the reign of Her Majesty, intituled : ' An Act to incorporate the Courtenay Bay Bridge Company.' " The Act, which this Act continues and amends, was passed previous to Confedera- tion, but it would seem that the bridge for the construction of which the company was incorporated has not yet been built, and as the right of the local legislature to pass this Act seems to depend upon whether or not the water over which the bridge is to pass may be requiietl for purposes of navigation. I made inquiries from the Depart- ment of Marine and Fisheries as U* the na\ igability of the water in question. The Deputy Minister of Marine and Fisheries states that there is no navigation at •^ourtenay Bay, that place being all dry at low water, except in a small creek called Marsh Creek," on the banks of which vessels as large as 1,500 tons burden are some- tiuies built. As provision is made in the Act that a sutBoient draw, or other means shal' bci placed and maintained in tli*- bridge to allow access to ships and vessels up and down ihe creek, he sees no objection whatever to the continuation of the Act. The 1 0th section of the Act now under consideration provides that a plan and fully detailed description of the site and position of the bridge ana road to be built, including a complete detail as to size of draw to be placed in the bridge, shall be for- warded to the Minister of Public Works at Ottawa, and the site and position so selected shall be subject to the approval of the (lOvernor (Jeneral in Council. Jnder the circumstances the Act seems unobjectionable, and I recommend that it be left to its operation. Cap. 38. — •' An Act to alter ami amend an Act intituled : ' An Act to incorporate the St. John Ga.s-)ight Company,'" This Act authorizes the St. John Gas-light Company to lay a drain from the works of the company into the harbour of the city of St. John, for the purpose of carrying off the refuse water arising from their gas works. This power, if i-estrioted, njight lead to serious evils, but as the Act provides tiiat it shall not be exerciseil unless witli the con- 720 NEW BBUKSWICK LEGISLATION sent and approval of the common council of the city of St. John first had and obtained, and signified by a vote of at least ten members of the common council, exclusive of the mayor, and unless upon the sanction of the Governor General of Canada first had and obtained, the Act may, I think, be safely left to its operation. Cap. 50. — " Act to provide for the Sewerage Service and Water Supply in the Town of Portland." The work "offence" is made use of in this chp^pter; I refer to the remarks above made respecting the use of the word. The Act appears otherwise unobjectionable, and 1 recommend that it be left to its operation. Z. A. LASH, Deputy Minister oj Justice. I concur. R. LAFLAMME, Minister of Justice. Lieutenant-Governor Tilley to the I/on. the Secretary of State. Government House, Predehicton, 14th May, 1878. Sir, — I have the honour to transmit to you, herewit'.i, the report of my kite Attorney-General, in reference to the report of the honourable the Minister of Justice i)n the Acts lif the legislature of this province, passed in 1877, 40 Vic, and which, with the order of his Excellency the Governor General in Council, was forwarded to me from your department on the 25th February last. I have, ikc, S. L. TILLEY, Lio : • 'enant-Governor. Memorandum for His Honour the Lieutenant-Governor iipon the Report, dated 22nd Decerrtlt^r '677, from the Honourable the Minister of Justice, upon the Acts of the General, AssemUy of this Province, passed in the Fortieth year rfHei Majesty's reign. Cap. 3. — " An Act relating to Municipalities,'' certain sections of which wore ob- jeft»d to, were repealed by its incorporation in Consolidated Statutes under the author- ity of Cap. 13 of Acts of 1877, and now appears as cap. 99 of the Consolidated Statutes. The repeal is noted on pagr: 1009 of the Consolidated Statutes. At the late session of the legi«lit'ue so much of section 17, of cap. 99, of the Con- solidated Statutes, as imposes a penalty m respect of a false declaration, was repealed. In the Consolidat'id Statutes care was taken to avoid the use of the word " offence," as describing the breach of provincial law, and in the instances in which the word had baen nadvertently used, in the Acts of 1877, it will be found that in the consolidation of such statutes, the v.ord is omitted. Sections 92, 93, 94 of cap. 99, of the Consolidated Statutes, were not repealed, as it i8 conceived that while, perhaps, they are of doubtful policy, they are clearly within the competence of the local legislatures. The Act 40 Vic, cap, 3, in which the above sections first occur, and to which ol> Jection was taken, is, however, repealed, as above stated. iSubsections 32 and 30, of sect'on 96, of cap. 99, of the Consolidated Statutes (be- ing the sections corresponding to 3uV)section8 32 and 39, of section 96. of cap. 3, of the Acts of 1877), were also repealed at the late session of the legislature. rst liad and obtained, ncil, exclusive of the anada first had and i^ater Supply in the 3 the remarks above unobjectionable, and Cap. 25. — " An Act to regulate the sale of Spirituous Liquors in the parishes of Lancaster, Simonds and St. Martins, in the city and county of St. John. Sections 19 and 20 (and also section 30 of cap. 105 of the Consolidated Statutes which was open to the same objection) was also repealed at the late session of the leg- islature. G. E. KING, Attorney General. A. LASH, ninter of Justice. of State. 14th May, 1878. report of my L.te B Minister of Justice 40 Vic. and which, I, was forwarded to LLEY, ■ 'enant-Governor, Report of the Hon. the Minister of Justice approved by His Excellency the Governor General in Council on the 22nd May, 1878. Depahtment of Justice, Ottawa, 10th May, 1878. Referring to my report of the 22nd December last upon the Acts of the General Assembly of the province of New Brunswick, passed in the fortieth year of Her Majesty's reign (1877), I beg to report : — That not having received a copy of the statutes of the past session of the province, and the time for the disallowance of the Acts of last year expiring on the 19th instant, a communication was sent to the Lieutenant-Governor of New Brunswick, asking what action had been ^aken in reference to the objections made to certain provisions of the statutes of 1877. The Lieutenant-Governor states that the objectionable provisions of the Acts were repealed. I recommend that the various statutes in question be left to their operation. I concur. R. LAFLAMME, Minister of Justice. Z. A. LASH, Deputy Minister of Justice. " Report, dated 22nd upon the Acts of t/ie if f/ei Majesty's reign. !S of which wore ob- tes under the author- consolidated Statutes. if cap. 99, of the Con- ration, was repealed. if the word " offence," which the word had n the consolidation of rere not repealed, as y are clearly within ir, and to which ob- jlidated Statutes (be- 96. of cap. 3, of the ire. /I' 00 NEW BRUNSWICK LEGISLATION — 41 VICTORIA, 1877, NEW BRUNSWICK, 41st VICTORIA, 1877. 4th Session — •23rd General Assembly. Report of ffw Hon. the Minister of Justice, approved by Hia Excellency the Governor General in Council on the 26th September, 1878. Department op Justice, Ottawa, 27th September, 1878. 1 have the honour to report upon the Acts passed by the General Assembly of the province of New Brunswick, at the special session, in the months of August and Sep- tember, 1877. This session appears to have been rendered necessary by the great fire at St. John, in the month of June pievious. The Acts passed are caps. 1 to 23, inclusive. With the exception of certain provisions of the 4th section of cap. 8, which is in- tituled : "An Act to define and establish the sUe hu«is of streets in the city of St.- John, and to prevent encroachments on the public streets," all the other Acts appear unobjectionable, and I recommend that they be left to their operation. With reference to the section referred to, however, I would remark that it appears to entrench upon criminal law, inasmuch as the section declares that every erection, building, porch, stoop, step, encumbrance or obstruction whatsoever, being upon any of the streets referred to in the Act, or upon, or over the side line of any of the streets, is to be, and upon the passing of the Act, is to become, a public nuisance. Although it is within the competence of the local legislature to define the sides and limits of a public street in the province, yet it seems clear that it is not within their competence to declare that an encroachment upon that street is to be a public nuisance. It is laid down, that there can be no doubt, " that any contracting or narrowing of a public highway is a nuisance," and that " an obstruction in any part is the subject of indictment." (Russell, on Crimes, Book 2, cap. 30, section 2.) It is clear that a public nuisance is properly punishable by indictment, and is not the subject of a civil action unless the person suing civilly has sustained some extra- ordinary damage by it, beyond that sustained by the rest of the public. I do not piopose to recommend the disallowance of thi i Act on account of the pro- vision referred to, but as it is lesirable that all provisions of provincial statutes should be within the competence of the provincial legislature, I recommend that the attention of the Lieutenant-Governor be called to these remarks with the suggestion that at the rext session, his government should promote the necessary legislation to repeal the ob- jectionable parts of the section, and that the words " made a public nuisance by this Act," contained in the 5th section, sh lyld be struck out, and other suitable words in- serted. It will be seen that, even if no provision be made declaring the obstruction a nui- sance, it would be, by common law, a nuisance and so indictable. I concur. Z. A. LASH, Deputy Minister of Justice. R. LAFLAMME, Minister of Justice, Hmmaim 7. 41 vicToiiiA, 1878. 723 1877. NEW BEUNSWICK, 41st VICTORIA, 18*78, •ellency the Governor loptember, 1878. jral Assembly of the of August and Sep- reat firs at St. John, cap. 8, Avhich is in- lets in the city of St.- e other Acts appear ion. mark that it appears that every erection, r, being upon any of any of the streets, is mce. 5 to define the sides it is not within their be a public nuisance, iting or narrowing of art is the subject of lictment, and is not ustained some extra- blic. 1 account of the pro- ncial statutes should ad that the attention ^gestion that at the ion to repeal the ob- )lic nuisance by this :r suitable words in- he obstruction a nui- .ASIt, nisttr of Justice. 5th Session — 23ro General Assembly. Lieutenant Governor Tilley to the Hon. the Secretiry of State. Government House, Fredericton, 4th May, 1878. SiRj I have the honour to transmit to you herewith, in advance of the general Acts passved at the last session of the legislature of this province, a manuscript copy of an Act intituled : " An Act to incorporate the St. John and Maine Railway Company, cap. 92." I do this at the request of the representative of the bondholders of " The European and North American Railway " westward, as that railway is soon to bo sold under a foreclosure of mortgage, and the bondholders \vho are likely to be the purchasers, natu- rally desire that the question of the constitutionallity of the recent legislation should be settled. Mr. Murray Kay, the representative of the bondholders, is now on his way to Ottawa to confer with the honourable the Minister of Justice. The following is a copy of the Attorney General's certificate on the Acts, and which refers to the Act above alluded to. " I certify that these Acts are within the ci-mpetency of the legislature of the pro- vince. The title of the bill intituled : " An Act to incorporate the St. John and Maine Railway Company " is objectionable, as seeming to show thai, the line of railway extends beyond the limits of the province, but on the whole I am of opinion that the Ace is a proper one to be assented to. ^ ^ " G. E. King. "April 18th, 1878." I have, (fee, S. L. TILLEY, Lieutenant Governor. Report of the Hon. the Minister of Justice, approved by His Excellency the Governor General in Council on the 2nd July, 1878. Department of Justice, Ottawa, 20th June, 1878. I have the honour to report upon an Act passed by the Legislative Assembly^ of the province of New Brunswick at it? last session (assented to on 18th April, 1878) intituled : "An Act to incorporate the St John and Maine Railway Company " which Act was transmitted by the Lieutenant-Governor in advance of the general Acts of the session, in order that the same might be considered at an early day. Having carefully examined the Act, and having considered, in connection therewith, the Act of the pro- vince of New Brunswick before Confederation, passed in the year 1H64, cap. 43, and intituled : " An Act to incorporate the European and North American Railway Com pany for extension from St. John westward," and th Act of the parliament of Canatia passed in the year 1875, cap. 71, I am of opinion that it is a proper Act to leave to its operation, and 1 recommend accordingly. The title is somewhat objectionable, as indi- cating that the railway may extend beyond the province, and into the state of Maine ; B. 724 NEW BRUNSWICK LEGISLATION as R matter of fact, however, the line is to be within the province, and as the title of the company is a convenient one, as indicating the two termini of the line, the power of Kiisallowance should not, I think, be exercised on this account merely. I concur. R. W. SCOTT, Acting Minister of Justice. Z. A. LASH, Deputy Minister of Justice. Report of the Honourable the Minister of Justice, approved by His Excellency the Governor General in Council, on the 2Sth October, 1879. Department of Justtce, Ottawa, 22nd October, 1879. I have the honour to report upon the Acts passed by the legislature of New Brunswick in the month of April, 1878, received by this government on the 22nd day of March, 1879, as follows :— ,. , , „ . e Cap. 47.—" An Act in addition to cap. 105 of the Consolidated Statutes, ot Licenses for sale of Spirituous Liquors and to repeal certain sections of the Act 40th Vic, cap. 25." Cap. 48.— "All Act in addition to an Act entitled : 'An Act relating to Licenses in the city of Saint John,' being in addition to and amendment of an Act to regulate the sale of Spirituous Liquors in the city and county of Saint John." Cap. 49 —"An Act in reference to the sale of Spirituous Liquors within the town of Moncton.' As these Acts deal with licenses for the sale of spirituous liquors, and as the ques- tion as to how far such 1 jgislation is an interference with the regulation of trade and commerce is still undecided, I think it proper, in recommending that the Acts be left to their opersdon, to refer merely to the doubt which exists upon the subject. As t< shapters 24 to 46, and 50 to 113, I recommend that these Acts be left to sir operairaon. I concur. J AS. Mcdonald, Minister of Justice Z. A. LASH, Deputy Minister of Justice. 42 VICTORIA, 1879. 725 , and as the title of the the line, the power of (rely. [linister of Justice. t His Excdlency the r, 1879. hid October, 1879. the legislature of New iment on the 22nd day insolidated Statutes, of Bctions of the Act 40th ^ct relating to Licenses it of an Act to regulate )hn." ^jiquors within the town liquors, and as the ques- regulation of trade and that the Acts be left to the subject. kt these Acts be left to L. LASH, Minister of Justice. NEW BRUNSWICK, 42nd VICTORIA, 1879. 1st Sbssion, 24th General Assembly. Mr, Jno. Jas. Fraaer to Minister of Justice. Fredericton, 28th April, 1879. Sir, At the last session of the New Brunswick legislature there was passed, inter alia, " an Act relating to the Supreme Court," and " an Act to faciliate the transac- tion of the business of the Supreme Court." These Acts have been transmitted to the Hon. the Secretary of State at Ottawa, together with a copy of an order, passed by his Honour the Lieutenant Governor in council, requesting that the Dominion government would cause provision to be made for the salary of the judge in equity, to be appointed on the coming into force of the first-mentioned Act. In view of the legislation thus had, it may be proper that I shoiUd bring under your notice, the state of matters which rendered such leg. Nation necessary. Up to the year 1872, although the business of the .Supreme Court, en banc, was slightly in arrear, yet no serious inconvenience was thert by caused to suitors, but in that year, quite a block commenced, which has since been constantly on the increase, and for the last two years, it has been felt that some measures of relief must be obtained, and the manifest injustice to suitors, which had become matters of serious and just complaint, be removed if possible. The judges sitting during the four terms of Hilary, Easter, Trinity and Michael- mas, have, during the last few years, occupied fully three weeks for eaoh term. There are 'also eleven monthly sittings in equity, held ,it Fredericton, generally occupying from one to two weeks each for hearings in equity, besides which the equity side of the Supreme Court is always open for the transaction of other equity business. Of the twenty-six circuit courts held each year in the various counties of the province, no less than five of these circuits are held in St. John, and the number of days of circuit sittings, in St. John, has, for some years past, averaged about one hundred days in the year, notwithstanding which there are large arrears of entries on the St. John dockets. Looking at the above as well as at the other ^-usiness which the judges are called upon to perform at chambers ; also, the matter of election petitions and otherwise, it may readily be admitted that it is from the vast amount of labour to be done, and not from anv want of full attention to the diligent discharge of their duty on the part of the judges, that the present state of matters exist. A remedy for this condition of the court business, has for a year or so past, been much discussed by the members of the bar, and by the barristers' society, and com- mittees have been appointed to confer with the local government on the subject. This led to the drafting of a bill prior to the session of 1878, one of the provisions of which bill was the creation of an additional judge, but, owing to various circum- stances, the measure was not nrnturedso as to ask the legislature for its then enactment. The necessity for some action was, however, fully conceded, and it was generally under- stood that another session of the legislature should not be allowed to pass without some action being taken. During the last summer, the whoie suvjeot of the state of business in the Supreme Court was carefully c*onsidered by tht> government, and at Hilary t«rm last, and before the opening of the late session of trti'' legislature, a committee of the barristers' society was appointed again to c(Msid«*r the wbole (|uestion, which committee made full reports that were discussed at lenftb by the «Kietj, and resolutions were ar? opted favouring the 46 26 NEW BRUNSWICK LEGISLATION appointment of an additional judge, and approving of a proposal to have the court sit in two divisions as the only means of bringing up the arrears of business, and preventing any future block. The reports of the committee, with the resolutions, were laid before the gov ornment for their consideration. Bills, of which the present Acts are copies, where then prepared, embodying such suggestions of the barristers' society, and members of the bar, as were thought would be most likely to afford the best means to advance the administration of justice in the supreme court. It was found that the court at the then Hilary term would commence with business which was entered for argument in the Hilary term previous, and wliich business, if there had been no arrearages, ought to, and would have been then hoard and disposed of. In addition to which, from the great pressure upon the time of the judges, and from their desire to reduce the numlier of unheard causes standing upon the docket, the court were obliged to hold, term after term, the preparation uf judgments in causes which had been heard. Besides this, in important equity causes, for the same reasons, the delivery of judg- ments was unavoidably withheld for a very great length of time, to the serious preju- dice of suitors. By the creation, as proposed, of a judge in equity, who should also be a judge of the Supreme Court, but not required to attend circuits, and whose peculiar duty it would be to attend to equity causes, the business in equity can be more promptly and efficiently attended to, and the practice of the court become more unifom and certain, than was found to be the case when the several judges took tlie equity sittings alter- nately, and the addition of this judge also makes practicable divisional sitting of the supreme court, for the disposition oi the business en banc, thus euabling the court to overtake the arrearages, and be the means of preventing the recurrence of any future undue accumulation of business. I may add that both Acts, before their introduction into the Assembly, were sub- mitted to the chief justice, and some other of the judges, who approved both measures, and expressed a strong opinion that they would effect the object sought to be attained. I have, &o,, JNO. JAS. FRASER. Mr. D. L. Hannington to Governor General's Secretary. DoROHESTEE, N.B., 8th July, 1879. Dear Sin, — On behalf of E. P. Turner, of Harvey, in Albert Co., N.B., I now forward you, for his Excellency the Governor General's approval, a petition against an Act of our legislature, passed last session. You will please bring the matter before his Excellency that it may receive consi- deration, as it is a very important matter to Mr. Turner, and oppressive legislation against him. I remain, kc, D. L. HANNINGTON. Petition of Mr. E. P. Turner, To His Excellency Sir John Douglas Campbell (commonly called the Marquis of Lorne), Knight, and Governor General of Canada. The petition of Elisha P. Turner, of Harvey, in the county of Albert, in the pro- vince of New Brunswick, humbly showeth : — 1. That in or about the year 1861 an assessment was professedly made by Michael Keever and others as commissioners, German Town Lake District, in the said county of Albert, by which an amount of about $1,200 w^as ordered to be paid by myself, and 42 VICTORIA, 1879. 727 to have the court sit siness, and preventing before the government )ared, embodying such s were thought would ation of justice in the >mmence with business nd which business, if lioard and disposed of. the judges, and from the docket, the court ents in causes which % the delivery of judg- 3, to the serious preju- )uld also be a judge of whose peculiar duty it be more promptly and »re unifom and certain, e equity sittings alter- ivifeional sitting of the enabling the court to icurrence of any future le Assembly, were sub- jproved both measures, ; sought to be attained. JAS. FRASER. 'retary. i., 8th July, 1879. Ibert Co., N.B., I now 1, a petition against an it it may receive consi- l oppressive legislation HANNINGTON. the Marquis of Lome), of Albert, in the pro- ledly made by Michael i, in the said county of be paid by myself, and your petitioner being dissatisfied therewith, took the usual proceedings in the Supreme Court of this province, to have said assessment set aside and quashed, which, after long argument, was done by a judgment of said court r« Regina V8. the Commissioners of German Town Lake District, published in the 1st vol. of Hanney's Report (to which your petitioner would beg leave to refer^, on the ground, among others, that the said commissioners wore and had acted in said assessment and work, as judges in a matter in which they wore personally and pecuniarily interested. 2. That afterwards the said Michael Keever, and others interested in said assess- • ment, applied to the legislature of the province, from time to time, to legalize the same, in which they failed. 3. That in the year 1873, 36th Vic, cap. 79, an Act of the legislature of this pro- vince was passed, authorizing the appointment of commissioners to ascertain, fix and determine the amount due or to be paid by the owners of said district (and your petitioner would refer your Honour to said Act), and section "^nd thereof provides that the said commissioners shall, in such assessment, have due regard (among other things) and " take into consideration and allow such amount for improvements at any one time therefor, made by any proprietor or owner of land in said district, for any labour or money he may have expended in cutting, making, repairing and maintaining any canal or dyke made in said district, and for any legal, taxable costs incurred by any commissioner or proprietor, by litigation in reference to said district, as they may con- sider just and reasonable." 4. That your petitioner had long before constructed, and thus had a canal and other very expensive works amounting to the cost of several thousand dollars in said lauds, and of benefit to others besides himself, and had also expended a large amount in taxable costs in reference to the matters mentioned in said section, and which should havo been ascertained and taken into consideration by commissioners under said Act. 5. That the Honourable Amos E. Botsford, Amos Ogden and Martin Trueman were, in or about the year 1874, appointed commissioners under said Act, and, in July of the year 1874, went to the county of Albert, and on the day, or day before, they went on the marsh to hold the examination thereof ; on the public road, one mile from the marsh in question, met your petitioner, who was then on his way under subpoena to attend the Circuit Court as a grand juror, and told him they were going to said district to inquire ; to ovhich your petitioner told them where he was going, that he could not recognize them as commissioners, but would be glad to see them as private individuals ; and your petitioner at once, on arriving at court, consulted his counsel about said matters, and was advised by them that the commissioners would hold an inquiry and would doubtless notify him of the time and place, and for your petitioner to attend and protest against their power, but to give evidence of the facts, and your petitioner claims for his canal and other works and expenditure, referred to in said last mentioned Act, which your petitioner intended to do, but never received any notice of any court or inquiry, nor had any notice (except the conversation on the road aforesaid, which was only general as aforesaid) of any inquiry or investigation of the matter until it was all over, as your petitioner believes. 6. That afterwards the said commissioners made an assessment, or professed to do 80 in the matter, and assessed against your petitioner the sum of seven hundred and sixty-nine dollars and eighty-nine cents ($769.89), which was done without any evidence taken on oath, nor was any proper or sufficient notice to your petitioner, nor a fair opportunity given for the proof of his claims, or the taxation of his costs, which costs had to be taxed at Predericton by the clerk of the Superior Court, some two hundred miles from where the inquiry took place. 7. That the said assessment so made as last aforesaid, whh made without any sworn evidence, or any proper court of inquiry held, or notice to your petitioner and others interested being given — and upon the statements not under ot.th of said Michael Keever and others made ex pa/rte, and no proof of your petitioner's expenditure, under the terms of said Act of 1873, and is most unjust to your petitioner. 8. That your petitioner took proceedings in the fall of the year 1876. When the sale of his property was attempted to be made, and on the arguments and affidavits by 46i 728 NEW BRUNSWICK LEGISLATION the commisaionera and othera, and cauae shown on behalf of said conimis f that legislature. The undersigned respectfully recommends, if this report is approved : — 1. That the Lieut,flnant Governor of New Brunswick be informed that it is the intention of his Excellency to leave to their operation the Acts before mentioned, and also chapter 13, intituled : "An Act' respecting the granting of Licenses for sale of Spirituous Liquors." 2. That the attention of the' Lieutenant-Governor be called to the decision of the Judicial Committee of the Privy Council in "The Attorney-General of Quebec va. 47 VICTORIA, 1884. 737 L, 1884. cellency the Governor 26th March, 1885. ised by the legislature 18, and 20 to 66, the sf maintaining Govern- ary of the Lieutenant ranting of licenses for ion of license fees on let, 1883 " (Canada). Tew Brunswick at its til the circumstances a bo raise a revenue from >ly arise as to whether wholesale licenses, but >f in this Act does not, vance of the Act. )s," makes provision for in the Supreme Court, .eceiver General of the itive government of the 1, in the appeal of the t of Canada, delivered in which the fees under 1 cannot be imposed by ince. r not a provincial legis- roceedings in courts of of a special fund, or of 3, however, of so much lis and other cases has is desirable to give the Act, so that it may, if at legislature, approved : — informed that it is the \.cts before mentioned, ng of Licenses for sale i to the decision of the General of Quebec va. Reed," and to the eflTect of that d'cision upon chapter 19, intituled : " An Act respecting Law Stamps," and that in the meantime the further consideration of the Act be deferred. A. CAMPBELL, Minister of Justice. Report of the Hon. the Minister of Justice approved by His Excellency the Governor General in Council, on the 4th Anril, 1885. Department of Justice, Ottawa, 24th March, 1885. To His Excellency the Governor General in Council : The undersigned has the honour to report upon an Act passed by the legislature of New Brunswick in the year 1884, chaptered 11 and intituled : " An Act to reduce the expense of maintaining Government House, and relating to the salary of the Private Secretary of the Lieutenant-Governor." This Act provides that the salary of the private secretary of the Lieutenant Governor shall not be paid by the province after the expiration of the term of office of his Honour the present Lieutenant Governor. When, in 1837, the casual and terri- torial revenues of the Crown, in the province of New Brunswick, came under the con- trol of the legislature of the province, an Act was passed granting to the Crown a yearly sum of fourteen thousand five hundred pounds for the support of the Civil Government of the province. Among the officers on the civil list for whom providion was made by this grant, was the private secretary to the Lieutenant Governor. This Act was in force in New Brunswick at the time of the union, and has never been repealed. After the union the province continued to make provision for the salary of the private secretary, as he was an officer of the province, and not of the Dominion. The amount of the salary was, the undersigned is informed, included in the estimates upon which a vote of the House of Assembly was taken, and that course was continued until the House refused to vote the amount, when the Attorney-General of the province, the Honourable A. R. Wetmore, advised the Lieutenant-Governor that the salary of his secretary was a charge upon the revenues of the province, and ought to be paid ; the Attorney-General also informed the House of Assembly of his view of the law. That the Lieutenant-Governor should have a secretary cannot, the undersigned thinks, be doubted, and under the circumstances, and 1 he respective responsibilities assumed at the union by Canada and by the province of New Brunswick, the go/ern- ment of Canada had reason to expect that the province of New Brunswick would con- tinue to make provision for the secretary's salary. The undersigned, therefore, recommends that if this report is approved, the sub- stance of it be communicated to the Lieutenant-Governor of New Brunswick for the information of his government, with an intimation that his Excellency's Government will be gratified if the n'atter is reconsidered, and provision made for the payment of the salary of the Lieutenant-Governor's private secretary as formerly, and that in the meantime, the further consideration of the Act be deferred. A. CAMPBELL, Minister of Juitice. IT 788 NEW BRUNSWICK I.K(1I8LATI0N — 48 VICTORIA, 1885. NEW BRUNSWICK, 48th VICTORIA, 1885. 4th Session — 25th Uenkral Assembly. Report of the Hon. the Minister of Justice, a])j}roved by Ilig Excellency the Governor General on the KJth March, 1886, Department op Justice, Ottawa, 24th February, 1886. To /lis Excellency the Governor General in Council : The undersigned has the honour to report upon the Acts passed liy the legislature of the province of New Brunswick in the session held in the year 1885. By chapter 1, intituled : "An Act to amend and explain Chapter 19, 47th Victoria, ' An Act respecting Law Stamps,' and the several Acts to which it is in amendment, an attempt has been made by the legislature to avoid the eflFect of the decision of the Lords of the Judicial Committee of the Privy Council in the case of the Attorney General for Quebec vs. Reed, to which attention was called by the Minister of Justice in his report upon the Acts passed by the legislature of the province of New Brunswick in the session held in the year 1884. Without expressing any opinion as to whether or not, under the decision in the case referred to, this Act is within the legislative authority of the province of New Brunswick, the undersigned is of opinion that it should be left to its operation, and so respectfully recommends. The undersigned having carefully considered the remaining Acts, chapters 2 to 72 inclusive, is of opinion that the power of disallowance should not be exercised in respect of any of the said Acts, and respectfully recommends that they be left to their operation. The undersigned further recommends that if this report is approved the Lieutenant- Governor of New Brunswick be informed that it is not the intention of his Excellency to exercise the power of disallowance in respect of any of the Acts passed by the legis- lature of the province of New Brunswick in the year 1885. Respectfully submitted, JOHN S. D. THOMPSON, Minister of Justice. 85. L, 1885. 7w Ejxell«ncy the 5. 1 February, 1886. '6. issed by the legislature 1885. ipter 19,47th Victoria, it is in amendment, an of the decision of the B case of the Attorney the Minister of Justice ince of New Brunswick der the decision in the : the province of New to its operation, and so ; Acts, chapters 2 to 72 ; be exorcised in respect e left to their operation, jproved the Lieutenant- ation of his Excellency ^cts passed by the legis- THOMPSON, Minister of Justice. 49 VICTORIA, 1886. 739 NEW BRUNSWICK, 49th VICTORIA, lb"86. 5x11 Skssion — 25tii (Ieneual A.s8Emhly. Report of the Hon. the Minister of Justice, approved by his Excellency the Governor General in Council on the iind April, 1887. Department ok Justice, Ottawa, 29th March, 1887. To Ilia Excellency the Governor General in Council : The undersigned having considered the Acts passed bj' the legislature of the pro' vince of New Brunswick, in the session held in the year 1886, chapters 1 to 24, 26, 27. 29 to 90, respecfully recommends that they be left to their operation, and that the Lieu- tenant Governor of that province be informed thereof. Chapters 25 and 28 which are not included in the schedule, will be made the sub- ject of a separate report. J. S. D. THOMPSON, Minister of Justice. Report of tlie Hon. t/ie Minister of Justice upon Chapters 26 and 28, approved by His Excellency the Governw-Genercd in Council, on the 2nd April, 1S87. Department* OF Justice, Ottawa, 28th March, 1887. To His Excellency the Governor General in Council : The undersigned has the honour to report upon the Acts of the legislature of the province of New Brunswick, 49 Victoria (1886), chapter 25, intituled : " An Act to incorporate the Town of Marysville," and chapter 28, intitutled : " An Act to in- corporate the St. Croix Electric Light and Water Company," authentic copies of which and of the other Acts of the same session, were received by the Secretary of State on the 2l8t June, 1886. By the 47th section of the Act 49 Victoria, chapter 25, the town council of the town of Marysville is given power, among other things, to make by-laws : (8) To abate and cause to be removed all public nuisances ; (13) to regulate the size of bread ; (14) To regulate the anchorage, jading and unlading of vessels and other craft arriving in the town ; (17) To punish vide, immorality and indecency in the streets or other places within the town; (23) To restrain and punish all vagrants, drunkards, medicants and street beggars, and (35) To prevent the injuring or destroying of threes planted within any of the streets or public grounds of the tov.n To the exercise of these and similar powers as a matter of police, subject to the laws of parliament respecting the criminal law, weights and measures, and navigation and shipping, there can, the undersigned thinks, be no objection, and in that view, and believing that such statutes must be construed as indicating an intention of the legis- lature to confer such police powers only, and not as an attempt to delegate legislative authority over such subjects as those mentioned, the undersigned is of opinion that in this respect the Act may be accepted as not open to seriou^i objection. By the 48th section of the same Act (49 Victoria, chapter 25), it is enacted that it shall be lawful for any police officer of the said town to take into his custody without warrant, any loose, idle or disorderly person, whom he shall find between the hours of seven o'clock p.m. and six o'clock a.m. lying or loitering in any highway, yard or other place in the said town and not giving a satisfactory account of himself, and also, at any fit i»i ■( 740 NBW BRUNSWICK LBOISLATION time of the diiy or night, to take into his custody without wiirrant, any person who shall be found drunk or feigning to l)o drunk, or making any loud bawling, yelling, scream- ing, singing or shouting in any public street, thoroughfare, alloy, road or by-road, or incommoding peaceable passers by, loitering on the said street or highway, and obstructing people by standing across the foot-paths^ &c., and koep such persons in custody until they can be taken before a magistrate. Provision is also made for the punishment of the offence by fine and imprisonment. These provisions are in themselves unexceptionable, and in the absence of legisla- tion by the Parliament of Canada, might perhaps be sustained as police regulations. The ground has, howeve , been occupied by the Parliament of Canada in the exercise of its power of legislating respecting the criminal law. See Revised Statutes of Canada, c. 167, 8. 8, and c. 174, ss. 24 and 28. In the opinion of the undersigned this section should be repealed. By the 52nd section of the same Act it is provided among other things, that all fines, penalties or forfeitures recovered before the police magistrate of the town, for any violation of any statute or common law, shall (so far as thn same shall not be in conflict with any existing law) he paid to the town treasurer. In view of the summary jurisdiction exercisable by police magistrates under the criminal law of Canada, it is desirable that in all such cases as this, the language of the statute should show clearly that there was no intention to attempt to dispose of fines, penalties or forfeitures recovered or enforced under the laws of Canada, contrary to any disposition thereof from time to time made by the Parliament of Canada. In this particular, and to this extent this section should, the undersigned thinks, be amended. By the 21st section of the Act 49 Vic, chapter 28, it is provided as follows : — " If any person shall lay or cause to be laid any pipe or main to communicate with any pipe or main belonging to the said company, or in any way obtain or use its ligb or water, without the consent of the directors or their officers appointed to grant such consent, he, she or they shall forfeit or pay to* the said company, the sum of twenty dollars, and also a further sum of four dollars for each day such pipe shall so remain, which sum, together with the costs of suit in that behalf incurred, may be recovered by civil action in any court of comj^etent jurisdiction." It has been decided that gas (R. vs. Forth, L. R. I., C. C. R. 172, R. vs. White, Dear, 283) and it appears that ater, stored in pipes or reservoirs for the purpose of sale, is capable of being etolen ^dtephen's Digest of the Criminal Law, (1883) Art. 289). By the Act of the United Kingdom, 45-46 Vic, c. 56, s. 23, electricity is made the subject of larceny. There is as yet no similar provision in Canada, though it is possible that it would be held that such a case fell within the provisions of the 85th section of the Revised Statutes, chap. 164. The section under consideration prescribes a penalty recoverable by civil action, for obtaining or using the company's water or light without its consent. Apart from the doubt as to whether the provision trenches upon the criminal law by imp sing a penalty for an act that amounts to larceny, especially where the water or light is fraudulently obtained or used, it is open to the objection that criminal or quasi-criminal provisions should never be inserted in private Acts, if in any way such a course can be avoided. For this reason, and becausie the provision is unnecessary, the company's right of action for any trespass existing independently of the statute, and the prohibited Act, so far as it is criminal, being punishable by the general criminal law^ the undersigned thinks the section should be repealed. The undersigned, therefore, respectfully recommends that the substance of this report be communicated to the Lieutenant-Governor of New Brunswick, with a view to his advisers being invited to promote legislation to meet the objections suggested, and that in the meantime your Excellency in Council defer taking any action in respect of the two Acts referred to in this report. All of which is respectfully submitted, JOHN S. D. THOMPSON, Minister of Justice. , liny peraon who shall wling, yelling, soreain- lloy, roHcl or by-road, roet or highway, and ko«p such personH in is alHu made for the ,he absence of logisla- as police regulations. !!anada in the exercise ed Statutes of Canada, aled. other things, that all trate of the town, for i same shall not be in nagistrates under the this, the language of attempt to dispose of 8 of Canada, contrary ment of Canada. In ndersigned thinks, be vided as follows : — I to communicate with ibtain or use its ligb •pointed to grant such f, the sum of twenty li pipe shall so remain, , may be recovered by R. 172, R. vs. White, irs for the purpose of Law, (1883) Art. 289). )lectricity is made the i, though it is possible of the 85th section of »n prescribes a penalty water or light without 5n trenches upon the ceny, especially where to the objection that private Acts, if in any ause the provision is ting independently of ing punishable by the e repealed. the substance of this unswick, with a view objections suggested, ; any action in respect IPSON, inister of Justice. 50 viOTORiA, 1887. 741 NEW imUNSWlCK, 50TU VICTORIA, 1887. IsT yKSHiON — 26th Gknkrai. Ammemiily. Report of the IfonnurnMe the MiniMer oj Justice, ap/rroved hi/ //in E.vci'Uvnry the Governor General in Council on tlic .'nil October, /8SS. Depaktment of Justice, Ottawa 29th May, 1888. 7\> 1/is Ereellency the Governor General in Council : The undersigned has the honour to report upon the Acts of the legislature of the province of New Brunswick passed in the year 1887, and he-js to recomniciul that the Acts passed in that session (chapters 1, 2, 5 to 27, 29 to 77) bo left to tlieii- operation. JNO. S. D. THOMPSON, Minister ofJnnlice. Report of the Honourable the Minister of Judice, approrcd by His Excellency t/ie Governor (/"/neral in Council on the 2nd October, 1888. Depabtmunt of Justice, Ottawa, 29th May, 1888. To His Excellency the Governor General in Council : The undersigned ha: the honour to report upon the following Acts of the legisla- ture of the province of New Brunswick, passed in the year i8b7, namely : Chapters, 3, 4, and 28. ^^ Chap. 3. "An Act respecting the Public Health. Section 12 of this Act provides that local boards of healtli may make and declare such regulations concerning the entry or departure of boats or vessels at the difterent ports or places in the province, and concerning the landing of cargoes and passengers from such boats or vessels, or the receiving of passengers and cargoes on hoard the same, as may be best calculated to preserve the public health. By "The British North America Act," section 91, the Parliament of Canada has ex- clusive legislative authority in lespect of quarantine, and the establishment and main- tenance of marine hospitals, and as this provision would seem to be an entrenchment upon that power the undersigned racommends that the attention of the government of New Brunswick be called to this matter with a view to the repeal of section 12 of chapter 3. Chan. 4. " An Act respecting the sale of Intoxicatmg Liquors. The undersigned begs to call attention to section 73 of this Act, which purports to interfere with the business of brewers and distillers, duly authorized to carry on their business within the Dominion of Canada, under the laws respecting inland revenue. The provisions of that section are as follows : — " Sections seventy-one and seventy-two shall not prevent brewers and distillers, or other persons duly authorized by the government of Canada, under the 'aws respecting inland revenue, to m .nuf.»cture"fermentefl, spirituous or other liquors, from keeping or having any liquor mauufactured by him in any building wherein such manufacture is carried thereon, providing such building does not communicate by any entrance with any shop or premises v/herein anj article authorized to be mo,nufactured under such license is sold by retail, or wherein any broken package of such article is kept." 47 \n 742 NEW aUUNSWICK LEGISLATION "(1.) Such brewer, distiller, or other person, is, however, further required to first obtain a license to sell by wholesale under this Act, but a brewer shall not be required in order to obtain such license to procure a petition under section 10. of this Act. The liquor so manufactured by him when sold for consumption within the province, may be sold by the sample or in original packages in any municipality, as well as that iu which it is manui..ctured, and in which a license has been granted to him, but no such sale shall be in quantities less than these prescribed in a wholesale license." These provisions are similar in spirit to these contained in the Liquor License Act of 1886 of Nova Scotia (section 58), in respect of which the undersigned made a report to your Excellency's predecessor on the 15th September, 1887. In that report he ex- pressed the view founded on the decision of the Supreme Court of Canada in Severn vs. the Queen, 2 S.C.R. 71, that the section (of which this is a copy) would probably be held not to be within the legislative authority of Nova Scotia. In such report he pointed out as follows : — " The Act contains many provisions for the regulations of the sale of intoxicating liquors, which appear to be clearly within the powers of the legislature. Some of these are important, and the disallowance of the enactment would, without doubt, produce considerable public inconvenience within the province of Nova Scotia. The undersigned, therefore, after careful consideration, recommends that the Act be left to its operation, but that the lieutenant Governor of the province be requested to call the attention of his advisers again to the Act, with a view to the amendment or repeal of such of its pro- visions as are of doubtful validity, and especially with a view to- the repeal of the second subsection of section 58 before quoted." The undersigned has observed that during the session of the legislature of Nova Scotia in the present year (1888) an Act was passed authorizing the Governor in Coun- cil to refer the constitutionality of the section then being commented on by the under- signed, to the Supreme Court of Nova Scotia, and a case has been prepared and is now before such court for argument. In view of the probuljility of a decision at an early day by a court of competent jurisdiction as to the constitutionality of section 73 of the New Brunswick Act, the undersigned recommends, for the same reasons as induced him to make a similar report in respect to the Liquor License Act of Nova Scot'a, that the Act be left to its oper- ation. Chapter 28. " An Act to authorize corporations incorporated by the Parliament of the Dominion of Canada to lend and invest moneys in the province of New Brunswick In the year 1886, the legislature of the province of Quebec passed an Act similar to this, 49 and 50 Vic, chap. .39. The undersigned has the honour to call attention to his report upon that Act dated 28th March, 1887, in which the constitutionality of such Act was discussed. The observations there made refer to this Act. Inasmuch, however, as the legis latures of Ontario and Manitoba have passed similar enactments which have been to their operation, the undersigned does not at present deem it proper to advise the dis allowance of this Act. He begs, however, to suggest that the Act should be so amendec as to repeal any provision discriminating Dominion loaning corporations from sucl corporations incorporated by the legislature of a province, and he recommends that copy of this report, if approved, be transmitted to the LieutenanWiovernor of New Brunswick. ft Respectfully submitted. JNO. S. D. THOMPSON, Minister of Justice, f 51 VICTORIA, 1888. 743 further required to first .^er shall not be required on 10, of this Act. The lin the province, may be as well as that in which bo him, but no such sale license." I the Liquor License Act idersigned made n report In that report he ex- t of Canada in Severn vs. !opy) would probably be E the sale of intoxicating jislature. Some of these , without doubt, produce !5Cotia. The undersigned, (t be left to its operation, to call the attention of his repeal of such of its pro- o- the repeal of the second of the legislature of Nova ng the Governor in Coun- imented on by the under- been prepared and is now y by a court of competent New Brunswick Act, the a to make a similar report he Act be left to its oper- ated by the Parliament of ivinceof New Bi-unswick." ec passed an Act similar to •eport upon that Act dated was discussed, luch, however, as the legis- lents which have been L^ft it proper to advise the dis- ; Act should be so amended g corporations from such and he recommends that a eutenant-Governor of New D. THOMPSON, Minister of Justice. NEW BRUNSWICK, 51st VICTORIA, 1888. 2nd Session, — 26tii General Assembly. Petition of (he Bell Telephone Company to His Excellency the Governor General in Council respecting Cha])ter 78. To His Excellency the Governor General of the Dominion of Canada in Council. The petition of the Bell Telephone Company of Canada under their common seal — humbly showeth : 1. That your petition 3r the Bell Telephone Company of Canada is a body corporate, duly incorporated and chartered under the laws of the Dominion of Canada, by chapter sixty-seven of the Acts of the parliament of Canada, passed in the forty-third year of Her Majesty's reign entitled " An Act to incorporate the Bell Telephone Company of Canada," by which Act your petitioners were granted certain corporate rights, powers, franchises and privileges as by reference to the said Act at large will appear. 2. That by cluipter 98 of the Acts of the parliament of the province of New Bruns- wick passed in the year 1882, your petitioner's said charter was ratified and confirmed by the said parliament of the province of New Brunswick, and by said Act of the parlia- ment of the said province your petitioners were and are declared to be recognized as a corporation with all the rights, powers franchises and privileges incidental to corpora- tions by the laws of the said province of New Brunswick, subject to the conditions, provisions and restrictions contained in the charter of your petitioners aforementioned, as by reference to the said Act of the parliament of the province of New Brunswick at large will more fully appear. 3. Tiiat under its said charter and the said ratification and confirmation thereof, yo ir petitioner entered upon its business in the said province of New Brunswick, and hasec- pended the sum of fifty thousand dollars in and by the erection and equipment of te'e- phone exchanges and hues in the cities and towns of Saint John, Fredericton, Monctoii, Woodstock and Saint Stephen, all in the province of New Brunswick aforesaid, and also erected or caused to be erected posts, lines and apparatus, upon and along the streets of said towns and toll lines connecting outlying places therewith, and your petitioners have also expended large sums of money in and about the operation, management, and control of the said telephone lines and exchanges. 4. That in and by section 4 of the said chapter 67 of the Acts of the parliament of Canada passed in the year 1880, your petitioner's charter it is enacted as follows : " The said company shall have power and authority to purciiase or lease for any term of years, any telephone line established or to be established, either in Canada or else- where, connecting or hereafter to be connected with the lines which the company is authorized to construct or to purchase or lease for any term of years the right of any company to construct, any such telephone line ; and shall also have power and authority to amalgamate with, or to lease their line, or any portion or portions thereof, from time to time, to any company or person possessing as proprietor any line of telegraphic or telephonic communication, connecting or to be connected with the company's line, in Canada ; and the company shall also have power to enter into any arrangements with any person or company possessing, as proprietor, any lino of telegraphic or telephonic communication, or any power or right to use communication by means of the telephone upon such terms and in such manner as the board of directors may, from time to time, deem expedient or advisable, or to become a shareholder in any such corporation." 5. That by an agreement bearing date the 28th day of November, A. D. 1887, in pursuance of the power and authority granted to your petitioners by said section 4 of your '>et'"«^ionbr's charter aforesaid, your petitioners have amalgamated their interests in 744 NEW BRUNSWICK LEGISLATION the province of Nova Scotia, and in the province of New Brunswick, with the Nov Scotia Telephone Company, a body corporate and duly chartered under the laws of th province of Nova Scotia by an Act of the legislature of the said province of Nov Scotia passed in the fiftieth year of Her Majesty's reign, chapter 100, being a conipan possessing as proprietor, lines of telephonic communication in the province of Nov Scotia then connecting, or which were shortly afterwards connected with your petitioner lines in Canada. The said agreement bearing date the 28th day of November, 188' and an agreement supplemental thereto made in December, 1887, between the san parties, were respectively ratified und confirmed by an Act of the legislature of tl: province of Nova Scotia passed in the year 1888, entitled : "An Act to amend chapte 100 of the Acts of the Pro\ince of Nova Scotia for the year 1887, entitled : ' An A( to incorporate the Nova Scotia Telephone Company, liimited.'" The said agreemer and supplemental agreement are fully set out in schedules "A" and "IV to the sai Act of 1888, a copy of which with said schedule is hereunto appended, and your pet tioners beg leave to refer to the same as if incorporated herein. By chapter 100 of the Acts of the Parliament of Canada passed in the year 188i the said Nova Scotia Telephone Company was granted certain authority, rights an privileges for the purpose of extending its operations, and of carrying on a telephor business within and between the provinces of Nova Scotia and New Brunswick. . copy of the said Act of the parliament of Canada is hereunto appended and herewit transmitted. 6. That for the purpose of carrying out the said agreement it is necessary, and yoi petitioners desire that the said Nova Scotia Telephone Company as the agent of yoi petitioners under the said agreement, should carry on the business heretofore coi ducted by your petitioners in the provinces of New Brunswick and Nova Scotia. That your petitioners desire to exercisein their own right in said province of Ne Brunswick, the franchises, powers, rights and privileges, granted and conferred b their charter aforesaid, all of which franchises, powers, rights and privileges are sti extant, and are intended to be used in the provinces aforesaid by your petitioners, the servants or agents. That your petitioners are desirous of at once constructing and equipping toll lin in said province of New Brunswick to connect the exchanges of the Nova Scotia coi pany in said province io purchased from your petitioners. 7. That by an Act of the legislature of the province of New Brunswick passed tl 6th day of April, 1888 (51 Victoria, chapter 78) intituled " An Act to incorporate New Brunswick Telephone Company (Limited)," certain persons therein named, t certain other persons, their successors and assigns, were constituted and declared to| a body corporate by the name of " The New Brunswick Telephone Company (Limitec for the purposes of erecting and maintaining telephone lines throughout the province New Brunswick, and for the purpose of transmitting by telephone, messages from point within said province to any other point or points therein for hire, over the wl of the said company, and the said company by the said Act were granted certain otl corporate rights and franchises as by reference to the said Act at large will more fJ appear. 8. That by section 9 of the said Act of the legislature of New Brunswick (31 Victc chapter 78) it is enacted by the said legislature and declared among other things asl lows, that is to say : — " Tlie said company shall have the exclusive right of erecting poles and maintl ing telephone communication between the following points for a period of ten from the passing of this Act, viz.: Between the city of Saint John and the city of ericton, and the town of Woodstock, in the county of Carleton ; and between the citl Saint John, and the town of Moncton, in th^ county of Westmoreland ; and bet^ the city of Saint John and the town of Saint Andrews, in the county of Charlotte between the said town of Saint Andrews and the town of Saint Stephen, in the! county of Charlotte ; provided always, that the said company shall within two from the passing of this Act, construct, erect and ecjuip telephone communicaticm 1 these several points, or places between tho same ; and also provided that this so 51 VICTORIA, 1888. 745 runswick, with the Jfova id under the laws of the said province of Nova iter 100, being a company in the province of Nova ted with your petitioners' day of November, 1887, ■, 1887, between the same of the legislature of the I An Act to amend chapter 1887, entitled : ' An Act id.'" The said agreement A " and " li " tcj the said appended, and your peti- n. a passed in the year 1888, tain authority, rights and f carrying on a telephone I and New Brunswick. A to appended and herewith nt it is necessary, and your npany as the agent of your le business heretofore con- ick and Nova Scotia, ight in said province of New granted and conferred by r\\ts and privileges are still id by your petitioners, their iing and equipping toll lines ^es of the Nova Scotia com- f New Brunswick passed the " An Act to incorporate the persons therein named, and istituted and declared to be ephone Company (Limited)" s throughout the province of elephone, messages from any ;rein for hire, over the wires it were granted certain other I Act at large will more fully New Brunswick (51 A^ictoria, ed among other things as fol- erecting poles and maintain- its for a p6riod of ten years nt John and the city of Fred- eton ; and between the city of Westmoreland ; and between the county of Charlotte ; and )f Saint Stephen, in the said ipany shall within two years ;)hone communication between Iso pi-ovided that this section shall not apply to or interfere with any lines of telephone actually constructed and operated at the time this Act comes into force." 9. That your petitioners by their directors and agents appeared before the legislature of the said province of New Brunswick, and before a committee of the said legislature while the said Act of the said legislature (51 Victoria, chapter 78) was under the con- sideration of the said legislature, and objected to and opposed the passing of section 9 aforesaid of the said Act by the said legislature as the said section stood, and demanded and asked that «ection should be so amemled as to eliminate that portion which con- ferred upon said New Brunswick Telephone Company, the exclusive right of electing telephone poles, and connecting by telephone between the cities of Fredericton, St. John and Moncton and Saint Stephen, but said legislature passed said Act not- withstanding said protest. 10. That the clause of section 9 of the said Act hereinbefore set out seriously pre- judiced the rights and property of your petitioners, and the interest of their share- holders in the respect of the franchises, powers and privileges granted and hitherto enjoyed by and under the charter of your petitioners aforesaid, and the ratification and confirmation thereof by the legislature of tlie province of New Brunswick afore- mentioned ; in respect of the telephone exchanges and lines and the other estate of your petitioners in the said province of New Brunswick, and also in respect of the afore- said agreement entered into by your petitioners with the Nova Scotia Telephone Coni- panj'. Your petitioners are therefore greatly aggrieved by the passing, and strongly object to, and would humbly protest against the allowance of the said Act, or of the said clause of section 9 thereof. 11. Your petitioners submit that the clau.se of section 9 of the said Act last men- tioned gives to the said New Brunswick Telephone Company (limited) exclusive rights and powers to construct telephonic toll lines connecting the very exchanges erected by your petitioners, to wit — the aforesaid exchanges at Saint John, Fredericton, Moncton, Woodstock and Saint Stephen, in derogation of the vested charter and pro- prietory rights of your petitioners. 12. Your petitioners also submit that the said clause of section 9 of the said Act operates as a forfeiture of the franchise of your petitioners, in so far as the right to construct the said toll lines is concerned, and as such the said clause is contrary to natural Justice. 13. Your petitioners further submit that, inasmuch as neither mis-user or non-user of the said charter by your petitioners, nor any other cause or reason for the forfeiture of of the said charter has been shown or was adduced to the said legislature of the pro- vince of New Brunswick ; and inasmuch as the said clause of section 9 of the said Act is a violation of private charter contract and propriety rights, rhe said clause is sub- versive of the first principles of the common and parliamentary law of Canada, and is ultra virex of the said legislature and unconstitutional. 14. That while the said Act (51 Victoria, chapter 78) was under the consideration of the legislature of the province of New Brunswick, and during the proceedings had and taken at that time by your petitioners, as set forth in paragraph 9 of this petition, your petitioners, by their solicitors and agents, submitted to the Hon. A. G. Blair, Attorney General of the province of New Brunswick, the brief of authorities for your petitioners' contentions in respect to the said Act, which is hereunto appended, and to which your petitioners crave leave to refer, if authority for their propositions and con- tentions herein made should be deemed necessary. 1 5. Appended hereunto is also a copy of a report of the debate on the bill to incor- porate the New Brunswick Telephone Company, had in the legislature of the province of New Brunswick during the consideration of the said bill by said legislature. Said report is taken from the columns of the »S^/. Jolm Sun, newspaper, of the 29th March, 1888. Copies of the various Acts referred to herein, are also hereunto appended and herewith transmitted. 16. Under the circumstances aforesaid, and having regard to the vested rights and interests of your petitioners, and to the specially injurious character of the said clause of the said 9th section of the said Act, as the same afi'ects such vested rights and 746 NEW BRUNSWICK LEGISLATION interests, and having regard also to the character of such portion of the said section, and to the contentions hereinbefore contained, your petitioners submit that they are entitled to claim of your Excellency due consideration and protection of their rights, privileges and interests aforesaid. Your petitioners therefore humbly pray that the said Act of the Parliament of the province of New Brunswick (51 Victoria, chapter 78) or in the alternative that the aforesaid portion of section 9 of said Act, or the whole of section 9 thereof, may be disallowed. And your petitioners will ever pray, etc. The Bell Telephone Company of Canada. By c. F. SISE, Vice-President. The common seal of the petitioners was hereunto"! affixed in the city of Montreal, on the 25th - day of August, 1888, in the presence of J CHAS. P. SCLATER, Secretary-Treasm-er. Petition of Grand Lake Mining Company to His Excellency the Governor General respecting Chapter 5. To the Eight Honourable Sir Frederick Arthur Stanley, d-c., dtc, Governor General, respecting Chapter 5. The petition of the Grand Lake Mining Company, incorporated by memorandum of association under the Act of the General Assembly of the province of New Bruns- wick, relating to corporations, humbly showeth : 1. That on the tenth day of June, A.D. 1870, one Caleb W. Wetmore applied for and received from the province of New Brunswick, seventeen (17) mining leases of lots in Queen's and Sunbury Counties, in said province, containing six hundred and forty acres each, transferring to him said lots for mining purposes for a period of twenty- five years from the said date thereof, with a covenant of renewal for a further term of twenty-five years at the expiration thereof or payment for improvements. 2. That about the year 1871 your petitioners, the above named Grand Lake Mining Company, purchased said leases from said Caleb W. Wetmore, for the sum of five thousand dollars, and said leases were afterwards transferred to them and duly recorded. 3. That there is a thin seam of coal extending over about two-thirds of the surface of said lands, and said company have expended above four thousand dollars in boring for an under seam, but as yet been unsuccessful in finding such under seam. 4. Thac there are no buildings on said lots of land, but all conditions and covenants in said leases have been performed, according to tho terms thereof, and there is not any royalty due and unpaid thereunder. 5. That at the session of the legislature of the province of New Brunswick, held in the year 1887, an attempt was made to introduce an Act that would cause said leases to be forfeited, but your petitioners having been informed of the same, it was opposed and prevented, but at the last session of said legislature an Act was introduced by the. Surveyor-General the Hon. Mr. Mitchell, and passed without any notice or intimation to your petitioners, until it had gone through both branches of said legislature. 6. That section three of said Act reads as follows : — "Mining leases or licenses heretofore issued may, after the expiration of five years from the date of issue of such lease or license, or of the date of issue of any renewal thereof, by the order of the Governor in Council, be declared forfeited, cancelled and annulled, upon its being made to appear to the Governor in Council :— (1.) That no minerals have been secured upon such lease or license for twelve months continuously whereby a royalty has accrued to the Crown ; or 51 VICTORIA, 1888. 747 )n of the said section, submit that they are teetion of their rights, )f the Parliament of the he alternative that the ction 9 thereof, may be F. SISE, Vice-Presiden t. Vreasurer. the Governor General &c.. Governor General^ srated by memorandum )rovince of New Bruns- W Wet more applied for n (17) mining leases of dining six hundred and )8 for a period of twenty- ral for a further term of ovemcnts. med Grand Lake Mining •e, for the sum of five them and duly recorded, wo-thirds of the surface usand dollars in boring under seam. ionditions and covemints of, and there is not any New Brunswick, held ; would cause said leases le same, it was opposed was introduced by tht, iiy notice or intimation iaid legislature, [ining leases or licenses 3 date of issue of such f, by the order of the jd, upon its being made se or license for twelve n ; or "(2.) That minerals have been raised upon such lease or license, and a royalty has accrued due thereunder, but being due for a period of six months has not been paid, or " (3.) That any other condition or covenant contained in any lease or license has not been performed according to the terms thereof ; and "(4.) That a month's notice in writing has been given by or on behalf of the surveyor general to the lessee or licensee, or when he has registered an assignment of his license in the registry office of deeds, for the county in wliich the licensed lands lie, to the assignee, of his intended application to the Governor in Council for an Order in Council for the forfeiture and cancellation of such lease or license, which notice shall state the time and place, when and where the application is to be heard." 7. That there is no stipulation or condition in said leases compelling the securing upon the same for twelve months continuously, or any other period, nny minerals on which a royalty would accrue under said leases to the Crown, nor is there any clause of forfeiture in said leases for not securing minerals. 8. That your petitioners admit that no coal or other minerals have been for the last twelve months taken or mined on said lots, whereby a royalty has accnu 1 to the Crown, and your petitioners say for the following reasons : — 1. That your petitioners could not, except at a large expense, get the necessary machinery to work with any profit so thin a seam of coal, and not having easy access to a market, have previously considered such expenditure unadvisable. 2. That your petitioners have for some time been awaiting the completion of the Central Railway, which was chartered about the year 1871, but the construction thereof is not yet finished, with the expectation of a ready means of transportation of their coal to a market. That said Central Railway and also the Short Line Railway, both now being built and running in close proximity to said lands, will, as your petitioners expect, open up the country, and render their said lands more valuable, and make further expenditure which is in contemplation by your petitioners justifiable. 9. That sections 9 and 10 of said Act provides for payments for improvements out of public money, but your petitioners having put no improvements on said lands (except- ing the boring as above alleged would be so considered) such Act, if allowed, would, as your petitioners are advised, cause .said leases to be forfeited before the time stated in said leases, and they will wholly lose the said sum of five thousand dollars paid for the purchase thereof, and the sum of four thousand dollars expended liy them in boring and besides will lose the benefit of the covenant for renewal, contained in said leases as before set forth. 10. That the Hon. Attorney General of said province was on the 31st May last, notified that a petition to disallow said Act or a part thereof would be pre.sented. Your petitioners therefore humbly pray that said section six and all other .sections in said Act that interfere with, limit or determine any rights or privileges granted in and by such leases may be disallowed And as in duty bound will ever pray. Dated June 23rd, A. D. 1888. Grand Lake Mining Company. W. B. WALLACE, Solicitor 74S NEW HRUN8WICK LEGISLATION Report of the Hon. the Mhiister of Justice approved hy Ilia Excellency the Governor General in Council on the SOth, January J8S9. Dkpautment of Justice, Ottawa, January 28th, 1889. y'o His Excellency tJie Governor General in Conncil. The undersigned liaving had under consideration the Acts of the legislature of the province of New Brunswick, passed in the session held in the year, 1888, chapters 1, 2, 4, 6 to 29, 31 to 33, 35 to 52, 54 to 77, 79 and 80, respectfully recommends that they be left to their operation. Respectfully submitted, ' JNO. S. D. THOMPSON, Minister of Justice. \ Report of the Jlono%irable the Minister of Justice approved by His Excellency the Governor General in Council on the SOth January, 1889. Department of Justice, Ottawa, 20th January, 1889. To His Excellency the Governor General in Council : The undersigned has the honour to submit his report on chapter 30, intituled : " An Act to incorporate the Channel Subway Company," pr.ssed by the legislature of the province of New Brunswick in the session of 1886, an authentic copy of which was received by the Secretary of State on the 6th June, 1888. This Act recites that it has been considered that the construction of a subway or subways beneath the harbour of St. John, to connect with the east and west sides of the city of St. John for the passage of foot passengers, horses, carrif^-ges, street cars and othei vehicles would be of great public utility, and proceeds to create a corporation for the purpose of excavating, constructing and operating such subway, but so as not to intei'- fere with the navigation of the harbour of St. John. By " The British North America.Act " public harbours, of which the harbour of Saint John is undoubtedly one, are vested in the Crown for the use of Canada. The Suji erne Court of Canada has decided in Holman vs. Green, S.C.ll., vol. 6, 707, that the land covered with water in the public harbours of Canada, belong to th Crown for the use of Canada, and not to the Crown for the use of the province in whici such land lies. It therefore follows that the Acl: in question almost exclusively relates to the |)ublic property of Canada, and authorizes an interference with that property. This Act may also be considered as infringing on the power of the Parliament o Canada, exclusively to make laws in respect to navigation, while it professes not to author ize the company to interfere with navigation, it authorizes the construction of a worl which may to some extent interfere with navigation and, at any ra^e, without the sane tiim of the authority which alone can determine whether the work will interfere wit navigation or not. He therefore recommends that this Act be disallowed unless the Lieutenant-Co' ernor of the province is able to assure your Excellency, before the time for disallowanc expires that the Act will be, or has been repealefl. The undersigned recommends that a copy of this report if approved, be transinitt* to His Honour the Lieutenant Governor of New Brunswick. _JNO. S. D. THOMPSON, Minister of Justice. 51 vicTOKiA, 1888. 749 hcellency the Governor \S9. uary 2Sth, 1889. If the legislature of the (year, 1888, chapters 1, recommends that they HOMPSON, Ministtr ofJiialice. >y His Excellency the ry, 18S9. 20th January, 1889. ,. chapter 30, intituled : ised by the legislature of lentic copy of which was istruction of a subway or east and west sides of the \ges, street cars and other ite a corporation for the xy, but so as not to iuter- of which the harbour of le use of Canada. <. Green, S.C.ll., vol. 6, p. s of Canada, belong to the e of the province in which almost exclusively relates ice with that property, jwer of the Parliament of ! it professes not to author- he construction of a work my ra^e, without the sanc- e work will interfere with nless the Lieutenant-Gov- 3 the time for disallowance f approved, be transmitted D. THOMPSON, Minister of Justice, Riport of the I/onourable the Minister of Juxfice npprored by His Excellency the G'over- nor General in Council, on the 80th January, JS89. Department of Juhtick, Ottawa, 28th January, 1889. To If is Excellency the Governor General in Council : The undersigned has the honour to submit for ccmsideration his report on chapter 78, intituled : "An Act to incor})orHtn the New iJrunswick Telephone Compiui)'," passed by the legislature of the province of New Ihunswick in the session of 1888, an authen- tic copy of which was received by the Secretary of State on the Oth June, 1888. In the year 1880, the Canadian Parliament (cap. ()7) granted a charter to the Hell Telephone Companj' of Canada, giving it power, among other things, to construct and maintain lines of telephone along the sides of streets or any public highway in Canada, and that in 1882 tho company so incorporated obtained fi'om the legislature of New Brunswick an Act expressly recognizing and latifying the rights acquired by it from the Canadian Parlinmeat, and expressly giving it power to construct, erect and maintain its lines of telephone throughout the province of New Brunswick. It is stated in a petition to your Excellency, from the liell Telephone Company of Canada, dated the 25ih day of August last, that upon the passing of that Act, the Bell Telephone Company of Canada entered into its business in the province of New Brunswick, and expended the sum of .$r)0,000 in the erection and aquipuientof telephone exchanges and lines in the cities and towns of St. John, Fredericton, Moncton, Wood- stock and St. Stephen. The Bell Telephone Company have a right under this charter to extend their operations in the province of New Brunswick, under the powers granted to them, both by the Dominion Parliament and the New Brunswick legislature. At the last session of the New Brunswick legislature, " The New Brunssvick Telephone Company (Limited)" obtained from the New Brunswick legislature, the charter which is now the subject of discussion. Tliis charter is without objection, ex- cept in respect to the 9th section, which provides as follows : — " The said company shall have the exclusive right of erecting poles and maintaining telephone connection between the following points, for the period of ten years from the passing of this Act, viz., between the city of Saint John and the city of Fredericton, and the town of Woodstock, in the county of Carletnn, and between the city of Saint John and the town of Moncton, in the county of Westmoreland, and l)etween ihe city of Saint John and the town of Saint Andrews, in the "ounty of Charlotte, and between the said town of Saint Andrews and the town of Saint Stephens, ih the said county of Charlotte; provided always that the said company shall, within two years from the passing of this Act, construct, erect and equip telephone communication between these several points, or places between the same, and also provided that this section shall not apply to, or interfere with, any lines of telephone actually constructed and operated at the time this Act comes into force. The rates or cliarges imposed by the said company for the transmission of messages over the lines of the said company within this province shall be subject to regulation of the Lieutenant-Governor in Council, who shall have the right to fix the same from time to time." The Act under consideration, therefore, interferes with and re.stricts the operation of an Act of the parliament of Canada, and has the effect likewise of materially dimin- ishing the value of franchises, which the New Brunswick legislature had previously granted to another company. The undersigned therefore recommends that the Act under consideration be dis- allowed, unless his Honour the Lieutenant-Governor of New Brunswick is aVjle to inform your Eycellency that the provisions of the Act under consideration, which have this effect, have been or will be repealed, and he recommends that a copy of this report if approved, be transmitted to his Honour the Lieutenant-Governor of New Brunswick. Respectfully submitted, JNO. S. D. THOMPSON. Minister of Justice. n mi.'' 750 NKW URUNSWICK LEdlSLATION Report of the Honourable the Minister oj Justice approved hy His Excellency the Governor General in Council on the loth March, 1889. Department of Justice, Ottawa, 11th March, 1889. To His E.rcellency the Governor General t»i Council : The undersigned hus the honour to submit for consideration the following observa- tions on chapter 5, intituled : " An Act further rehiting to mines and mining leases," passed by the legislature of the province of New Brunswiclc in the session of 1888, an authentic copy of which was received by the Secretary of State on the 6th of June last. Section 3 of this Act provides as follows : — " Mining leases or licenses heretofore issued or which are hereafter issued may, after the expiration of five years from the date of issue of such lease or license, or of the date of issue of any renewal thereof, by the order of the Governor in Council, be declared forfeited, cancelled and annulled upon it being made to appear to the Governor in Council : "1. That no minerals have been raised upon such lease or license for twelve months continuously whereby a royalty has accrued to thu Crown ; or " 2. That minerals have been raised upon said len«e or license and a royalty has accrued due thceunder, but, being due for a period of six months, has not loeen paid ; or " 3. That any other condition or covenant contained in any lease or license has not been performed according to the terms thereof ; and, " 4. That a month's notice in writing has been given by or on behalf of th(3 surveyor general to the lessee or license, or when he has registered an assignment of his license in the registry olHce of deeds for the county in which the licensed lands lie, to tho assignee, of his intended application to the Governor in Council for an Order in Council for the forfeiture and cancellation of such lease or license, which notice shall state the time and place when and where the application is to be heard 1 " — and section 8 provides th.it "immediately upon such forfeiture" being made and registered, the Surveyor General shall be deemed to have retaken possession on behalf of the crown," of the leased premises without inquest of office. Objection has been made to the Act by persons holding leases of mining lands under the provisions of former statutes, and the attention of the undersigned has been called to the terms of these leases granted by the provincial authorities of Now Bruns- wick which this legislation would aflfect. They contai ii no provision such as the statute under consideration iniposo--, and the enactment would therefore impose new restrictions on the lessees, with the penalty of the forfeiture in case of non-compliance. Such legislation seems to be at variance with the principles of justice, and seems to invade the rights of property which it is so important to preserve, for the credit of the whole country, and for the safety of private persons. If it is desirable that a province should resume any part of its p»,trimony the methods adopted should be those which recognize and provide for the righ(.s which have accrued under the sanction of the crown. The undersigned therefore, respectfully recommerd that his Honour the Lieu- tenant-Governor of New Brunswick, be infonned that in the opinion of your Excel- lency's government, it is desirable that the statute in question should be aiDended in such a way as to remove the objectionable features indicated. He recommends that a copy of this report, if approved, be transmitted to his Honour the Lieutenant-Governor of New Brunswick. Respectfully submitted, '' J NO. S. D. THOMPSON, / Minister of Justice. 51 VICTORIA, 1888. 761 i Hin Eit'cellpncy (he ISSO. Itli March, 1889. the following observa- and mining leases," le .session of 1888, an the Gth of June last. lereafter issued may, se or license, or of the ernor in Council, be l>pear to the Governor or license for twelve or se and a royalty has has not been paid ; or ease or license lias not behalf of the surveyor anient of his license in ased lands lie, to the )r an Order in Council notice shall state the Imd section 8 provides ^istered, the {purveyor of the crown," of the leases of mining lands undersigned has been orities of Now Bruns- ition impow)--, and the IS, with the penalty of P justice, and seems to e, for the credit of the of its patrimony the the rights which have is Honour the Lieu- pinion of your Excel- should be amended in (' recommends that a Lieutunant-Governor PSON, inistfr of Justice, Report of the Honourable the Mi ii inter i>J Juntice, approved by His Ejcellency the Governor General in Vonncil on the oth February, 1889, Deft, of Juhticr, Ori'AWA, 28th January, 1889. To I/is E.rceUem-.y the Governor General in Ciniiicil : The undersigned has the honour to submit for consideration bis report on cei'tain of the Acts passed by the legislature of the province of New Brunswick in the session of 1888, authentic copies of which were received by the Secretary of Htate on the 6th June last. Chapter 34, " An Act to incorporate the Tobique Rivfjr Hoorii Company." It would appear from section 10 of this Act that the Tobiijiie Hiver is a navigable stream, and, if this is the case, the Act is an interference with the exclusive legislative authority of the parliament of the Dominion to make laws respecting navigation, and it may also be legislation in respect to the public property of Can..i('la, inasmuch as rivers, under the provisions of the British North America Act, are vested in Camula. The undersigned has asked of the Minister of Public Works a report as to the character of the Tobiijue River. In the meantime, however, inasmuch as similar Acts in the province of New Brunswick have been left to their operation, the undersigned does not recommend that the power of disallowance should bo exercised in respect to this Act. Chapter ^^?>. " An Act to continue the Fredericton Boom Company and to consoli- date and amend the several Acts relating to the said company." Chapter 38 of the Acts of the legislature of New Bruncwick pa-ssed in the 3'Sth year of Her Majesty's reign (1875) was an Act to amend the original Act of incorpor- ation of this company, and wa.« reported on by the Honourable Edward Blake, when Minister of Justice, in a report dated the 16th October, 187ti. In view of that report, which recommended that chapter 38 of 1875 should be left to its operation, and in view of the Act now under consideration being merely a continuance and consolidation of the previous Acts, which have been allowed to go into opei-ation, the undersigned recommends that the same course be adopted in respect to this Act, while entertaining much doubt as to the validity of many of its provisions. Chapter 81 " An act to incorporate the town of Campbeliton." Section 47 of this Act enumerates the subjects in respect to which the town council may make by-laws. Among these are the following ; 14. The power lo regulate the anchorage, lading and unloading of vessels, and other craft arriving at the said town. 17. The enforc(3ment of the due observance of the I/jrd's Day, commonly called Sunday, and punishment o'l' vice, imnioralitj' and indecency in th.e streets or other places ^vithin the said town. 23. The restraining and punishing of all vagrants, drunkards, mendi(!ant8 and street beggara. i The subject referred to in the 14th article is clearly beyond the competency of a provincial legislature, having undoubted reference to navigation and shipping, and the management and control, of the harbour, those being subjects exclusively assigned to the Dominion parliament. The undersigned recommends that the attention of his Honour the Lieutenant- Governor of New Brunswick be called to this Act, with a view to the repeal of sub- section 14 of section 47. The provisions of subsections 17 and 23 of the same section also relate to matters which are within the control of the parliament of Canada, and which have been legislated on by th»-t parliament. They can only be considered valid as authorizijig regulations in aid of ohe enforcement of the Acts of the federal parliament. The undersigned recommends that a copy of his report, if approved, be transmitted to his Honoiir the Iiieutenant-Governor of New Brunswick , JNO. S. D. THOMPSON, Minister of Justice. 41 752 Ni:\V URUNHWICK LKdlHhATlOM NEW BRUNSWICK, r)2ND VICTORIA, 1889. 3iiu Skssion— '26th Oknkual Ashemhi.v. Report of the Hon. the Minixter of Jimtice approved />;/ His Excellency the Governor General iii. Council on the JSth June, 1890. Dkpartment of Justick, Ottawa, Slst May, 1890. To His Excellency the Governor General in Council : The undersigned has the honour to recommend that all of the following Acts passed by the General Assembly of "^'lo province of New Brunswick, in the session thereof, held in March and April, 1881' chapters 1 to 6, 8 to 22, 24 to 26, 28 to 72, be left to theii- operation. Respectfully submitted, JNO. S. D. THOMPSON, Minister of Justice. Jiepori of the Hononrahle the Minister of Justice, njTj^roved hy His Excellency the Governor General in Council on the 5th July, 1890. Department ok Justice, Otiawa, 31st May, 1890. To His Excellency the Governor General in Council : The undersigned has the honour to submit for consideration his report on the fol- lowing Acts, passed by the legislature of the province of New Brunswick in the session of 1889. Chap. 7. An Act respecting the executive administration of the laws of this province. The undersigned has in a report bearing even date herewith, upon the legislation of the Province of Quebec, 1889, dealt at length with the questions raised by this Act, but for the reasons in such report stated, he recommends that this Act be left so its operation. Chap. 23. " An Act respecting certain criminal courts." This Act constitutes a judge of every county court, a court of record for the trial of persons under the provisions of the Speedy Trials Act, which at a recent session of parliament was extended so as to apply to the provinces of Prince Edward Island, Nova Scotia and New Brunswick, and is within the competency of a provincial legis- lature under the provisions of "The British North America Act," section 92, article 14. Section 4 of the Act however, provides that the Lieutenant-Governor in Council may appoint stipendiary or police magistrates within any county. The undersigned again desires to express his doubts as to the right of a Lieutenant- Governor to appoint, or of a provincial legislature to authorize the appointment of, justices of the peace or other judicial oflBcers. The (juestion is one of difficulty and there have been decisions both ways, but no final court of appeal has expressly formu- lated a judgment upon it. It is contended on the papt Of the provinces that the power in question is vested in the legislatures by virtue of their power to " exclusively make aws in relation to the administration of justice in the province including the constitu- ion, maintenance, and organization of the provincial courts, both of civil and criminal urisdiction," and in a recent case the court, after intimating that this provision was suf- cient to confer the necessary authority, went on to observe that if there were any doubt m B2 VKToiiiA, 18«9. 7B3 1889. '•cellency the Governor ;iist May, 1890. lowing Acts passed in (ho sfssion tliTeof, stion must bo taken to i)0 set at rest by the action of the Parliament, of Canada. \Vitl)f>ut dealing with this subjeut at length, the undersigned d(((!ms it to be his duty t 1 express his cHssent from what may bo supp isod to be an inference fairly to bo drawn from this argument that the interpretation of "Tiie British North America Act" can in no way be atl'ected by subse(|uent legislation by parliament, or the legislatUi'es, or by any action of the government. Nf) legislative body can, by legislation, incniiise or diminish the auliririty conferred upon it by the constitution ; nor can any expression of opinion or course of legislative action by either, afford any conclusive or even satisfactory guide to its interjjretation. No individual in Canada can be stoppofl from asserting or enforcing his rights, or his objections under that Act, by reason of any action on the part of the Parliament of Canada or of tht* legislatures. No p"rson in Canada can be bound by ac(|uiescence in unconstitutional legislation on the part of governments, even if sucli ac(|uioscence have occurred. The undersigned has been unable therefore to regard the decision referred to, as disposing of the objections which arise to the appointment of such magistrates by tho provinciol authority. After all that has transpired in connection with this subject, it is evident that these v^ues^'jns must be left to be decided by judicial authority, and the undersigned does not therefore recommend in regard to such Acts the exercise of tho power of disallowance. Chap. '27. " An Act to unite the city of Portland with the city of St. .lohn, in the city and county of St. John, and to amend the charter of the city of St. John, and the law relating to civic government." This is an Act which unites tho cities of St. John and Portland, and provides for the government of the new corporation. .Several of the existing statutory provisions, relating to the two cities, have been incorporated in this Act, and the Act is substantially a con.solidation of existing legis- lation. The undersigned would call attention to the provisions relating to the police court and to the city court, and would refer, in connection with the appointment of the police magistrate, to his observations in reference to chapter 23, The undersigned recommends that the Act be left to its operation. Respectfully submitted, JNO, S. D. THOMPSON, Minister of Justice. it 764 NEW UnUNHWICK LEOWLATION — 63 VICTORIA, IHUO — 64 VICTOHIA, 1891. NEW imUNSWICK— 53rd VICTORIA, 1800. IST SE88ION — 27tII (tKNEIlAF, AhHKMULY. Beport of the Honourable the MiivMer o/Juntice. Depahtmknt of Justice, Ottawa, 16th April, 18'Jl. To His Excelleticy the Governor (inierdl in Counril : The undHi'sigiied having considered the Acts passed by the legislature of the pro- vince of New Brunswick at the session held in the year 1890, the chaj)ters I to 46, 48, 41), ."jI to .'39, 61 to 63, 6") to 72, 74 to 79, and received by the Secretary of ytuto on the 10th day of July last, respectfully recommends lliat they be loft to their operation, and that the Lieutenant-Governor of that province be ho informed. Respectfully submitted, JNO. S. D. THOMPHON, Milt inter of Justice, Note. — No Report appears to have lieen marie mton chapterH 47, 50, 00, 04 and 73. NEW BRUNSAVICK— 54th VICTORIA, 1891. 2nd Session — 27tu General Assembly. Report of the Honourable the Minister of Justice, approved hy His Excellency the Governor General in Council, on the 9th August, 189'2. Depautment op Justice, Ottawa, .30th May, 1892. To His Excellency the Governor General in Council : The undersigned has the honour to recommend that all of the Acts of the legisla- ture of the province of New Brunswick, passed in the year 1891, except chapters 13, 18 and 48, in respect of which the undersigned has specially reported, and comprising sixty-four Acts, be left to their operation. Respectfully submitted, JNO. S. D. THOMPSON, Minister of Justice. DiiiA, 1891. f)'i VICTOKIA, 1H91. 755 1890. h April, 1891. islature of the pro- iiiptors 1 to 46, 48, ary of ytuto on the hoir opomtion, and Hon, istcr of JuHtice. 1(1 73. 1891. ffi« E-icellency the th May, 1892. Vets of the legisla- xcept chapters 13, ed, and comprising MPSON, »<«r of Justice. Report oj thi JTimoiirnhlf ihi' .}fl>iiiifi'r uf JiiHllri; approvd hy ffU E.rrelttnri/ th>f (lovuruor (iittfral in Council tructi(m of any structure that would in any way allect the navigability of any of the navigable rivers or waters of Canada, and that the sections in (juestion, in so far as they infiinge in that particular, are icltra vires. In view, however, of the fact that provincial rail- ways may, upon application to the federal authorities, obtain the rights and privileges purporting to be given by the said Act, and that the Act as a whole is beneficial to the public interest, tlie undersigned recommends that the same be left to its operation. Chapter 48. "An Act to extend the powers of the Madawaska Log Driving Company (of Maine) to the provincial waters of the River St. John above Grand I'^alls." It would appear that in the year 1891, certain persons were incorporated by the legislature of the state of Maine, undnr the name of the " Madawaska Log Driving Company," to drive down on the St. John River until they reached the international boundary. This Act purports to give to that company a legal corporate status in the province of New Brunswick, and empowers it to continue its operations in the provin- cial waters of the River St. John, down to Grand Falls in the province. It may be doibted whether this Act is intra vires of a provincial legislature, as the company in question is not a company with provincial objects merely, but would appeai "^o be an "undertaking" extending beyond the limits of the province. (See P N. A. ^ct, sec- tion 92, articles 10 and 11). The undersigned, hov r-Y. cretary of State. '. B., 18th May, 1892. titied copy of an Act to eminent of the province in Assembly and Le<,Hshitive iasure of his Excellency its involved, but I venture posed sale of land, being a f a new building, or in the I making it not only habit- terest and comfort of my rom the Acting Attorney , etc., S. L. TILT.EY. Attorney General for the H reference to the Bill "An hy the Governtn"nt of the 7th day of April last, loas Measure of J/is Excellency the British North America be the property of Canada ildings, except such as the 3ro\incial legislatures and ^ernment House property," :he provincial government appropriated, was thereby rom the provincial public md consequently has con- construction of the British bill, tiiat it recognizes an 3 the proceeds of the sale esidence for the Lieutenant- •iatid to this purpose, the of a special account in a JSLEY, Acting Attorney General, 55 viCTOKiA, 1892. 787 Report of the Honourable the Minister of Justice, approved by His Excellency t/ie Governor General in Council on the 6th February, 1S93. Dkp.\rtment OF JuHTiOB, OTTAWA, 26th January, 1893. To His Excellency tlie Governor General in Council : The undersigned lias had refened to him a coinmunication from his Honour the Lieutenant Governor of New Mrunswick, dated IGtIi May, 1892, inclosing a i)ill, entitled " An Act M declare the Rights of the Crown as represented by the government of the province in certain Lands and Property," passed by both houses of the legislature on the 7th April last, but reserved by his Honour for the signification of the pleasure of your Excellency. The bill in question, after reciting that the property known and describ d as "government house property," situate in the city of Fredericton, was appropriated for the use of the provincial governement of New Brunswick at the timi' of the union, and being so appropriated, was thereby excepted, under and by virtue of the third schedule of the British North America Act, from the provincial public works, and proj)erty, to be declared to be the property of Canada, and in consequence thereof has continued to be and is the })roj)erty of the province ; and after further reciting that a ([uestion might be raised as to the title of tlie p evince to such property and to remove doubts and to declare the rights of the Mown as represented by the government of the piovince therein, it was deemed d" irable to pass a declaratory Act on the question, proceeds as follows : — "It is hereby declared that the right and title to tht property situate in the city of Fredericton, known and described as the government iiouse property, is vested in and belongs to the crown, as represented by the government of the province, and that the said government of tlie province possesses and enjoys full power and lawful authority to grant and convey the same as fully, and to the same extent, as other crown lands and property in this province, may be granted and conveyed by the govern- menl thereof." Fhe bill by its second and last section directs that any proceeds from the sale of property shall be used and applied for the sole purpose of providing a suitable residence for die Lieutenant-Governor, and that in the meantime such proceeds should be placed on depo-^it to the credit of a special account for this purpose. In transmitting the bill to your Excellency's government, his honour stated that h'j did not desire to express any opinion as to the legal rights involved, but intimated l/ht-t the ajjpropriation of the proceeds of the propo.sed sale as specified in the bill would bf. in the interest, and for the comfort of his successors in otfice. Tb^i undersigned is unable to agree with the view of the law and facts in which the bill seems to have lieen framed. Under section 108 of the British North America Act, and the third schedule thereto "customs houses, post offices and all othei- public buildings, except such as the go\'ernment of Canada appropriate for the use of pmvincial legislature and govern- munts, are declared to be the property of Cannda." In order, therefore, to change the title nf the property in question from Canada to the province, there must have been an appropriation of the property by the government of Canada for the use of the province, and untd such appropriation was made, the property remained in Canada. There wsis, hov/e\er, an approjiriation on the part of Canada. On the 11th day of February, 1870, an order of a predecssor of your Excellency in Council was jiassed, appropriating the property known as " the government house " to the use of the government and legisla- ture of the province of New Rrunswick. In the opinion of the undersigned that Order in Council constituted an appro- priation of the property in (juestion within the meaning of the statute, changing its character, and converting it sub modo into public property of the province. 48 B ^> r68 NEW BRUNSWICK LEGISLATION. It did not, the undersigned thinks, vest an absolute title in the crown in right of the province, but gave the us*- thereof to the provincial authorities for the purpose specitied in the Order in Council. The undersigned cannot assent that this matter is free fi'om doubt, but he submits that such doubt as may exist should not be set at rest by the statute of the province,, asserting the provincial view, much less by such an enactment being passed by the legislature and assenteeen mentioned, and upon receive money on deposit !ed upon. The society is e in advance, the interest ty- red, or some of them, may 3gislation. hich may arise as to the the courts, and he would d in this report be left to 3 sent to the Lieutenant THOMPSON, Minister of Justice. NEW BRUNSWICK— 57th VICTORIA, 1894. 2nd Session — 28111 General Assembly. His Honour the Lieutenant Governor of New Brunswick to the Hon. the Secretary of State. Government House, Fkkdericton, N.B., 23rd January, 1894. Sir, — I have the honour to submit herewith, a copy of an Act passed by the legis- lative assembly at its last se'sion, intituled " An Act to amend an Act respecting the use of Tobacco by Minors." This Act was reserved by me upon a report of the hon. the Attorney-General, that my iissent should be reserved, until the Act had been submitted for the consideration of his Excellency the (governor General in Council. Accompanying this is a copy of the report made to me by the Attorney-General, upon which I reserved the Act. I have, etc., JNO. JAMES ERASER, Lieutenant-Governor, Memorandum of Hon. Attorney-General Blair on reserved bill, entitled "An Act to amend an Act respecting the use of I'obacco by Minors. Memorandum of the Attorney-General for the information of his Honour the Lieutenant-Governor relating to a bill to amend An Act respecting the use of Tobacco by Minors, passed by the legislative assembly of New Brunswick at the present session thereof, 1894. A bill " An Act to amend an Act re.specting the use of tobacco by minors," a copy whereof is herewith inclosed to your honour, has been passed during the present session, and as I entertain some doubt as to the competency of the legislature to pass this bill, I would advise that your honour's assent be reserved, until the same be submitted for the consideration of His Excellency the Go' ernor General in Council. The doubt which arises in my mind is as to whether the legislature is not, in passing the bill attempting to make the sale of tobacco te in which it is difficult ial legislature, as apper- m in section 91 of the legislature by reason of t by fine, penalty, or im- 9n to any matter coming ." Statutes presenting their operation, with a kt it would be convenient validity to the courts at i thereby. ishes tobacco to a minor e to a penalty or to im- ) committing justice, and ther valuable considera- ige, in procuring for such nufF, or any form or pre- ipply to any person under tr preparation of tobacco, or other valuable consid- le of not less than $2.00 to imprisonment, with or or to both fine, with or he said term, in the dis- lis possession, cigarettes, fficer, constable or justice or justice, from whom he ubject to a penalty of not prosecution." ither the reserved bill or Provisions of the char- letence of Parliament, as 57 VICTORIA, 1894 763 The undersigned, nevertheless, having regard to the policy referred to, and to the fact that the object of the bill is salutary, would not, had it received assent, have recom- mended its disallowance. The inconveniences which might result if the (Governor Gen- eral is to be called upon to give effect to provincial legislation of this character are, how- ever, of a nature sufficiently serious to justify your Excellency in withholding assent, but if the provisions of this bill should be hereafter enacted by the provincial legis- lature, your Excellency would probably see no reason for adopting a different course from that which has been hitherto generally followed with regard to similar legislatiou open to the same objection. The undersigned, therefore, recommends that no action be taken upon the bill in question, and that a copy of this report, if approved, be transmitted to his honour the Lieutenant-Governor for his information. The undersigned further recommends that the attention of his Honour be called to a minute of his Excellency the Governor General in Council of 20th November, 1882, stating the constitutional principles which should govern the action of a Lieutenant- Governor in the exercise of his authority as to the reservation of bills. Respectfully yours, CHARLES HIBBERT TUPPER, Minister of Justice. Report of tlie Honourable the Minister of Justice, approved by His Excellency the Oov- ernor General in Council, on the 10th January, 1895. Department ov Justice, Ottawa, 24th November, 1894. To His Excellency the Governor General in Council : The undersigned has the honour to report that he has examined the Acts passed by the legislature of the province of New Brunswick, in the fifty-seventh year of Her Majesty's reign (1895), chapters 1 to 78, 80 to 87 ; received by the Secretary of State for Canada on the 5th day of July, 1894 : and he is of opinion that they are unobjec- tionable and may be left to their operation. Chapter 79 has been reserved for a special report. The undersigned also recommends that a copy of this report, if approved, with a copy of the schedule of the titles of the Acts, be sent to the Lieutenant-Governor of the province, for the information of his government. Respectfully submitted, CHARLES HIBBERT TUPPER, Minister oj' Justice. Report of the Honourable the Minister of Justice, ap/,roved by his Excellency the Governor General in Council, on the 10th of January, 1895. Department op Justice, Ottawa, 24th December, 1894. To His Excellency the Governor General in Council : The undersigned has the honour to report upon chapter 79 of the statutes of the province of New Brunswick, passed in the fifty-seventh year of Her Majesty's reign (1894), intituled :— " An Act to continue the Saint John River Log Driving Company, and for the consolidation and amendment of the Acts relating thereto," received by the Secretary of State for Canada on the 5th day of July, 1894, as follows : — 764 NKW BRUNSWICK LEGISLATION This statute authorizes the company, among other things, to drive logs and timber down the St. John and Aroostook Rivers, and for tliat purpose to use all such necessary booms and piers as may bo approved by the Lieutenant-Governor in Council, and to remove from the beds of such river, stones, rocks and other obstructions to the free running of the water and the driving of logs, and to improve the rivers as highways for the driving of logs, timber and lumber. It has been pointed out upon several occasions by the late Minister of Justice, when reporting upon legislation of a similar ch8.racter, that rivers having been by "The Brit sh North America Act" assigned to the Dominion, it is not within the power of a provincial legislature to grant any authority or rights with respect to them. In this statement the undersigned concurs. This statute is, therefore, open to objection, in so far as it is intended to apply to rivers so afisigned to Canada. The question of law, which is involved in the objection, however, having been referred for determination to the Supreme Court of Canada by your Excellency in Council, the undersigned does not, at present, consider it necessary to do more than call attention to the matter. Pending the decision of the reference, the courts would afford a remedy to any person who might be affected l^y the acts of the company. In so far as the powers of the compai.y would authorize it to interfere with or affect the navigation of the rivers mentioned, they are, of course, ultra vires of the provincial legislature. The undersigned recommends that the Act be lett to its operation, and that a copy of this report, if approved, be sent to the Lieutenant-Governor of the province for the information of his government. Respectfully submitted, CHARLES HIBBERT TUPPER, Minister of Justice. drive logs and timber ) use all such necessary nor in Council, and to >8tructions to the free rivers as highways for Minister of JuRtice, rivers having been by it. is not withiu the )8 with respect to them, efore, open to objection, lada. The question of erred for determination i, the undersigned does .tention to the matter, remedy to any person it to interfere with or irse, ultra vires of the eration, and that a copy of the province for the ' T UPPER, Minister of Justice. NEW BRUNSWICK, 58th VICTORIA, 1895. 3rd Session — 28t» Oknekal Assembly. RejK'Tt of the, Hon, the Minister of Justice, approved by His Excellency the Governor Oeneral in Council on thu 29tk October, 1896. Depautmknt of Justioe, Ottawa, 25th October, 1895. To His Excellency the Ooiwrnor General in Council : The undersigned has the honour to report that he has examined the Acts passed by the legislature of the province of New Brunswick in the fifty-eighth year of Hej' Majesty's reign (1895), chapters 1 to 11, 13 ;to 19, 21 to 66, 68, 70 to 81, 83 to 85, 87 and 88, received by the Secretary of State for Canada on the lltli day of May, 1895 ; and he is of opinion that thoy are unobjectionable and may be left to their operation. The remaining Acts, Chapters 12, 20, 67, 69, 82 and 86, are the subject of a sepa- rate report. The undersigned recommends that if this report be approved a copy of the same, with a copy of the schedule of the titles of the Acts, be sent to the Lieutenant Gover- nor of the province, for the information of his government. Respectfully submitted, CHARLES HIBBERT TUPPER, Minister of Justice. Report of the Hon. the Minister of Justice, nppj'oved by His Excellency the Governor General in Council on the 29th October, 1895. Department of .Justice, Ottawa, 24th October, 1895. 7'o His Excellency the Governor General in Council : The undersigned has the honour to submit his report upon the following statutes of the province of New Brunswick passed in the fifty-eighth year of Her Majesty's reign (1895), which were assented on the 5th day of March, 1895, and received by the Secre- tary of State on the 11th day of May, 1895 ; Chapter 12. — " An Act in amendment of an Act respectir-f Law Stamps." This chapter provides that the fees which have heretofore been collected by the Clerk of the Crown for his own use, shall hereafter be paid by law stamps to the Receiv- er General, according to the provisions of an Act of the provincial legislature respect- ing law stamps, passed in the forty-seventh year or Her Majesty's reign, and the Acts in amendment thereof. It also provides that the Receiver General shall pay the Clerk of the Crown the sum of $300.00 annually in lieu of the fees formerly received by him as Clerk of the Crown. A schedule of the fees to be paid by means of such stamps is established by the Act. Chapter 20. — " An Act to amend chapter 52 of the Consolidated Statutes, ' Courts of Probate.' " This chapter provides among other things that the judges' and registrars' fees shall be paid according to a schedule annexed to the act, and that such fees shall be paid by means of stamps affixed to the respective documents mentioned in the schedule ; that the fees so collected shall form a fund called " The Probate Fee Fund," which shall be held and applied by the Provincial Secretary of the province for the purpose of paying the salaries of the judges and registrars as specified in the act, and for defraying the judges' expenses incident to the carrying out of the provisions of the act. Their lordships of the Judicial Committee in the case of the Attorney General for Quebec against Reed, 10 Appeal Cases, page 141, decided that a tax levied by means of i; 766 NEW BRUNSWICK LEUI8LATI0N — 68 VICTOKIA, 1895. atainp duty upon exhibits tiled ia court could not bo culled direct taxation within the meaning of section 92 of "The British Noith America Act." Thoy refrained, how- ever, from deciding whether, if a special fund were created by a provincial Act, for the maintenance of the administration of justice in the provincial courts, raised for that purpose, appropriated to that purpose, and not available as general revenue for general provincial purposes, the limitation to direct taxation would still have been applicable. In this respect the statutes under consideration may be distinguishable in principle from that which was held idtra viren in the case referred to, and although the (juestion as to the validity of these statutes is open to doubt, yet in view of the importance of the sub- ject to the province, and the fact that previous legislation of a similar cliaracter has been allowed to go into operation, the undersigned is of opinion that no duty devolves upon your Excellency in the present case, beyond directing the attention of the provincial government to the question thus raised. Chapter 67. — " An Act to incorporate the Riverside Cemetery Company." i By section 11 it is enacted that any person who shall wilfully destroy, mutilate,. njure or remove any tomb, monument, vault, grave-stone, or other structure placed in the cemetery, or any fence, or other description of property therein mentioned, shall be guilty of an offence punishable on summary conviction and be liable therefor to fine or imprisonment. Chapter 82. — " An Act to incorporate the Baker Brook Mill and Boom Company." Section 9 contains a somewhat similar provision rendering any person or persons liable to fine or imprisonuient who shall wilfully destroy, injure or damage the com- pany's dam or piers. These provisions would appear to be iiltra vires, as affecting the subject of criminal law, and as imposing penalties for offences vhich have already been established under Dominion statutes. Enactments of similar effect have, however, been previously left to their operation, and the question of validity is one which may be conveniently deter- mined by the courts at the suit of any individual who may be uflected. Chapter 69. — '' An Act to incorporate the Grand Falls Power and Boom Company (Limited.)" It is provided by section 4 that the company may, for the purpose of utilizing the water powers of the River St. John, construct, operate and maintain a canal and hydraulic raceway from a point on the river above Grand Falls, to a point upon the lower basin below Grand Falls, and may also build at the head of Grand Falls and in the narrows between the upper and lower basin, wing-dams, sluices, conduits and build- ings, as may be necessary for utilizing the water power of the river for the purpose of the company's business. The company is also authorized to construct and maintain side-booms, wharfs and piers along the upper basin above Grand Falls and to erect other works in the St. John River. Chapter 86. — " An Act to incorporate the Tobique River Log Driving Company." By section 2 it is enacted that the company shall have the right to drive logs and timber down the Tobique River, and for the purpose of holding lumber, mnke such im- provements, and construct such works and do anything that may be required upon the river, subject to the approval of the Lieutenant-Governor in Council. The undersigned and his predecessor have in previous reports upon provincial leg- islation frequently stated the objections which, from a Dominion point of view, exists to legislation of this character. The question of right involved in such objections is now awaiting determination in the courts, and it appears to the undersigned therefore, thai, pending such decision, it would not be prudent to interfere with these enactments. The undersigned therefore recommends that the statutes mentioned in this report, if approved, be transmitted to the Lieutenant-Governor, for the information of his gov- ernment. ' s Respectfuly submitted, CHARLES HIBBERX TUPPER, Minister of Justice. 95. :t tuxatiun within the Tlioy refrained, how- pi'Dvincial Act, for the courts, raised for that al revenue for general have been applicable, hable in principle from ugh the (jueation as to importance of the sub- lilar character has been no duty devolves upon ntion of the provincial )ry Company." fully destroy, mutilate, ler structure placed in sin mentioned, shall be able therefor to fine or 1 and Boom Comp.any." any person or persons re or damage the com- the subject of criminal been established under r, been previously left Y be conveniently deter- I'ected. er and Boom Company jurpose of utilizing the maintain a canal and ills, to a point upon the 1 of Grand Falls and in ices, conduits and build- ■iver for the purpose of construct and maintain •and Falls and to erect Log Driving Company." right to drive logs and lumber, m>ike such im- ly be required upon the luncil. rts upon provincial leg- 1 point of view, exists to (raiting determination in lending such decision, it lentioned in this report, B information of his gov- MANITOBA LEniHLATION — 34 VICTORIA, 1871. 767 MANITOBA— 34th VICTORIA, 1S71. IST SE8.SI0N IST PaRLIAMKNT. Lieutenant-Governor Archibald to the Secretary of State for the Provinces. GOVERN-MENT HoUSE, SlLVEB HEIGHTS. Sir,— I have the honour to ackowledge the receipt of a telegraphic despatch from you dated Ottawa and St. Paul, the Uth June, 1871, inclosed tome by Mr. Kitson, of which I forward you a copy. ^ The word "statements" in the despatch, I presume, was meant lot "statutes.' I have so read it, and have forwarded you a reply, of which also, I inclose a copy. Agreeably to the promise in my telegram, I send you by this mail six copies of the Supreme Court Act, and by next mail shall send you further Acts up to page 50, or thereabouts. I have been' pressing actively the publication of the laws ever since the House rose. li I had any notion that the delay would have been so great, I should have had a manuscript copy of the whole made and forwarded to you. When the printing is complete, I shall transmit the whole in sheets. The four statutes J have reserved are : 1st. One which I have had passed to carry out the pledge made by this govern- ment to the government of Canada, in refererce to North-western Telegraph Company, who were promised certain powers within the province. It seems to me that this being a line to connect with a line in a foreign territory, the jurisdiction was with the Dominion Parliament. 2nd. A bill to authorize the construction of a bridge over Red River. This is a navigable water, and no interruption ought to be offered to the navigation, and the bill was objectionable on that" ground, to say nothing of the subject of navigation falling within the province of the Parliament at Ottawa. 3rd and 4th were railway bills. One to incorporate a company to build from Fort Garry to Pembina, another from the Portage to St. Joseph, parallel with the former. The language of the bills for railway and telegraph confines them to British territory, but they are really intended to connect with the foreign lines, and, not caring to stop the bills I have reserved them for the consideration of his Excellency the Governor General, so as that you may settle the question of jurisdiction. . I have, &c., fe ADAMS G. ARCHIBALD, Lieutenant-Governor. RTTUPPER, Minister o/Jitstice. 768 MANITOIIA LR(iIHLATION Lieiitenant-OovtfrHor Archibald to thu Sff.retary of Stntf for the ProvineeH. GovKRNMENT HouHK, SiLVKii Hrkiiith, 14th July, 1871. Sir, — Adverting to my doHpatch No. 208, of thin dato, 1 have mow the lionour to inclose you inanuHcript copies of bills forming chapters 44, 45, 46 and 47, passt'd by the two houses of the h^gislature of Manitoba at its recent session, and wiiiuh I have already informed you I reserved for the signification of the pleasure of his Excel- lency the Governor General. Chapter 45 is intituled ; " An Act to authorize the construction of a Telegraph line within this province." This Act was pawsed in consequence of the correspondence between you and myself on the subject of the North-western Telegraph Company's agreement to con- struct a telegraph line to Fort (iarry. In your despatch No. 426, under date of the 13th September ' jt, you inclosed me a copy of the articles of agreement ; the fourth clause of w' • imposed upon the Governor General the obligation of procuring from the gove ,ent of Manitoba the right of property retjuirod by the proposed telegraph line. communicated to you in my despatch, No. 1 1 . the action of my government "' ..et matter, inclosing copy of the minute of council passed therein. 1 had expected that some action would have been taken by the company to declare and ask for the rights of tlie property they required. No such application being made, I caused to be introduced and carried the Act now inclosed. Htill, I felt that we were probably exceeding the jurisdiction conferred upon us by the Union Act, And, therefore, while passing the Act to redeem our pledge, I reserve it for his Excellency the Governor General to act upon it, as the Minister of Justice should advise. The line in question is, under the articles of agreement which gave rise to the Legislation, a line between the Dominion and a foreign country, and, as such, the Legislation would seem to appertain to the Dominion. , Bills Nos. 44 and 46 provide for the ci instruction of railways in this province, one in a general term, from any point or points in Manitoba ; the other, from Lake Manitoba to the boundary line, near 8t. Joseph. The intention of the first Act was to cover the ground between Fort Garry and Pembina. Of the second, to cover a parallel line commencing at or near the Portage, each line to communicate with the railway system of the United States. They were, therefore, liable to the same objection as the telegraph bill, while one of them was open to still another. Assuming the jurisdiction of the legislature to be sufficient, it did not seem to me as a question of discretion to be wine to allow any company, organized under the general wording of the first Act, to embarrass or thwart any operations that might be av^derta-'ien on the iuteroceanic railway, under the pro- visions of an Act of the Don Inioi Bill No. 47 authorizes tljii ccustruction of a bridge across Red River, This river is navigabK'. .j.. ertain seasons for 400 miles above this, and at all times for a considerable distai;co above and below the point indicated as a site for the bridge. Without entering into the question of jurisdiction, it did not seem to me desirable to give authority to make any obstruction to the navigation of the river. This bill not only makes no provision for the passing of ships, but exposes to heavy penalties any interference with what, as an obstruction to a public highway, would at common law be liable to abatement as a nuisance. The intention, I understand, was to construct the bridge with the boats moored in the river, the spaces between the boats being connected by a timber flooring. I have, ifec, ADAMS G. ARCHIBALD, Lieutenant-Governor. i »• the l'fovinm$, , 14th July, 1871. avt) now the lioiiour to •,46 and 47, pasHed by sioM, and which I have pleasure of IiIh Excel- ^tion of a Telegraph line 'iico l)etween you and ny't) Hgroeinent to oon- v' mber ' jt, you inclosed imposed upon the .ent of Manitoba the rommunicated to you in att(!r, inclosing copy of the company to declare !ed and carried the Act on conferred upon us by 1 our pledge, I reserve it the Minister of Justice which gave rise to the intry, and, as such, the lilways in this province, a ; the other, from Lake between Fort Garry and I at or near the Portage, 3d States, telegraph bill, while one of the legislature to be to be wife to allow any t, to embarrass or thwart railway, under the pro- Red River. lOve this, and at all times iicated as a site for the not seem to me desirable the river. jf ships, but exposes to ion to a public highway, with the boats moored in imber flooring. .RCHIBALD, Lieutenant-Governor. 34 virroKiA, 1871. 769 Rf/Mrt of thu lion, the Minister of JuHfire, npjirovftl hy fT'm E.rcftlency the Oovenujr General in Cnunci/ on thi; I'.Uk Orlnlur, IS7 1. Dkhahtmknt OP JusTiCK, OTTAWA, 17th October, 1871. The undersigned to whom was referred certified copies of the Acts passed by the legislature of the province of Manitoba in the first seMsion of the first paiiiament thereof, hold in i\w 34th year of Her Majesty's reign, has the honour to re^«jri ; - That he has car(>fully examined the same, and is of opinion that the legislation thereby affected is within the jurisdiction of ti^e legislature of Manitoba, except a*« regards certain power conferred upon a police m.igistrate by the second section of chapter 9, " An Act authorizing the appointmont of Magistrates and Coroners." This section provides that a police magistrate "siiall have ail powers possessed by one, two or more justices of the peace." Now, it is obvious that if an Act of the Dominion Parliament relating to criminal law, provided for the trial of an oHender before two justices of the peace, no provincial legislature has the power of amending such provision, by j^iving any one per.scm, althoughajudgeorstipendiary, or police magistrate, the powers conferred by the Domin- ion Act on two justices. Tt is suggested that the Act in question should be amended at the next session of the legislature by substituting the following words for those above quoted, viz., " in addition to all the powers possessed by any one justice of the peace, shall also have all the powers conferred by any statute of this province upon two or more justices of the peo-r" The undersigned, therefore, recommends that all the Acts, with the exception of chapter 9, be left to their operation, and that the latter be reserved for further report, when the legislature shall have had an opportunity of amending the same as suggested. All of which is respectfully submitted. JOHN A. MACDONALD, Minister of Justice. Report of the Hon. the Minister of Justice, approved by //is H.vcellency the Governor General in Council on the 29th of November, 1871. Department op Justice, Ottawa, 25th November, 1871. The undersigned, to whom was referred the despatch of the Lieutenant-Governor of Manitoba, dated the 14th July last, inclosing copies of four bills passed by the legislature of Manitoba, but reserved by him for the signification of the pleasure of his Excellency the Governor General, has the honour to report as follows : — Chapter 44. — The bill, chap. 44, intituled : ' An Act to empow jr the Lieutenant- Governor in Council to authorize the construction of Railways in this Province," em- powers the Lieutenant-Governor in Council to authorize, by order in council, " the construction, by any ethcient company, of a line or lines of railway from any point or points within tho province, to any other point or points within it, and, for that purpose, to give such company power to enter upon any lands required for such construction, and for all work in connection therewith, and to lay a line or lines of railway thereon, and generally to do any act or thing which may be necessary in constructing and main- taining such line or lines of railway/' This Act seems to be contrary to the first principles of legislation. By it the Lieutenant-Governor in council has the power to give to any as.sociation of individuals, the right to build railways anywhere in this province, and to take possession of any lands whether belonging to the Crown or to individuals, no sufficient provision being made for compensation for any infringement of the rights of proj drty or other vested rights. i 111 I 770 MANITOBA LEGISLATION As the government of Canada is pledged to construct a line of railway connectini the Atlantic and Pacific, and as such railway will pass through the province of Mani toba, it is obvious that this Act, if put in force, might put it in the power of any com pany authorized to build i-ailways, to thwart or greatly impede any operations whici might be undertaken for the construction of svoh inter-oceanic railway. The Act is so objectionable in every respect that the undersigned respectfully re commends that : is Excellency's assent be not given to it. Chapiter 45. — The bill, chapter 45, intituled : "An Act to authorize the construe tion of a Telegraph Line in this Province" empowers the Lieutenant-Governor " to au thorize, by Order in Council, the North-western Telegraph Company or other efficien company, to construct a line or lines of telegraph from any one or more points withii the province, to any other point within it, and for that purpose to give such compan; power to enter upon any lands required for such construction, for the erection of post or other work in connection therewith, and to erect posts thereon and to attach wire thereto, and generally to do any act or thing which may be necessary in erecting or cor tructing and maintaining such telegraph line." The North-western Telegraph Company mentioned in this clause, the undersignec understands to be an incorporated company existing in the United States, which desi res to extend its line across the boundary to the town of Winnipeg. If such be th case, the Act should more properly be passed by the Parliament of the Dominion. The Act, however, is objectionable for the reasons givjn with respect to the on previously mentioned, and the undersigned recommends that His Excellency's assent b not given to it. There will be no difficulty in obtaining an Act of the Canadian Pai Ijament authorizing the extension of the line of telegraph from the frontier to Winni peg, under the agreement entered into between the Canadian government and th North- Western Company, to which reference is made by the Lieutenant-Governor in hi despatch. Chapter 46. — The bill, chapter 46, intituled : " An Act to incorporate The Wei tern Railway of Manitoba," authorizes such company to construct a railway " from point at or neir Lake Manitoba, in the province of Manitoba, to a point within th province in projdmity to St. Joseph, in the state of Dakota, in the United States ; and t construct branch lines from the said main line to other points within the said province. As this Act might interfere with the line of the inter-oceanic railway to be buil by the government of the Dominion, the undersigned has the honour to recommend tha his Excellency's assent be withheld from it for the present, until the line of such intei oceanic railway be settled by the Dominion Parliament. Chapter 47. — The bill, chapter 47, intituled : " An Act to incorporate the ' Re River Bridge Company ' of Manitoba, and to authorize the construction of a Bridg across the Red River at a point opposite or near Fort Garry, and to levy tolls on sai Bridge," is objectionable, inasmuch as the proposed bridge would interfere with an obstruct the navigation of the said river, a stream which, as the Lieutenant-Governc mentions in his despatch, is navigable at certain seasons for 400 miles above the tow of Winnipeg. The construction of a bridge across a river of such size and importance is, in th highest degree, inexpedient, and the undersigned, therefore, recommends that h: Excellency's assent be withheld from such Act. All which is respectfully submitted. JOHN A. MACDONALD, Minister of Justice. line of railway connecting; ugh the province of Mani- t in the power of any com- ipede any operations which ic railway, mderaigned respectfully re- to authorize the construc- sutenant-Governor " to au- Company or other efficient one or more points within ■pose to give such company )n, for the erection of posts ihereon and to attach wires ecessary in erecting or con- lis clause, the undersigned United States, which desi- Winnipeg. If such be the ent of the Dominion, vjn with respect to the one His Excellency's assent be 1 Act of the Canadian Par- Tom the frontier to Winni- adian government and the Lieutenant-Governor in his .ct to incorporate The Wes- nstruct a railway " from a toba, to a point within the 1 the United States ; and to IS within the said province.'' oceanic railway to be built J honour to recommend that ntil the line of such inter- Lct to incorporate the ' Red he construction of a Bridge •y, and to levy tolls on said s would interfere with and IS the Lieutenant-Governor 400 miles above the town :e and importance is, in the Pore, recommends that his MACDONALD, Minister ofJmtice. 35 VICTORIA, 1872. 771 MANITOBA 35th VICTORIA, 1872. 2nd Session- — 1st Parliament. Lieutenant-Governor Archibafd to the Secretary o/ StaCo Jor the Provinces. Government H<.use, Fokt Garry, 14th April, 187L Sir, — T liave been waiting till the bills, reserved by me at the close of last session for the signification of the pleasure of his Excellency the Governor General, should be printed, before making a report of the grounds upon which I thought fit to reserve them. They are now in print, and I have the honour to forward to you two copies of the bills, with some observations upon them, for the information of the Minister of Justice. 1. "A Hill to incorporate the Manitoba Central Railway Company." The subject with which this bill deals would more appropiiately come within the jurisdiction of Parliament. Not only so, but the bill is wretchedly drawn. Ry the second clause, it incorporates, as part of it, several sections of some Railway Act, which it does nt/t .specify. If it means to refer to the Dominion Act, it embodies, as part of our legislation, a code much of which touches matters not only beyond our jurisdiction, but totally inapplicable to a private company, inasmuch as the clauses incorporated provide for the construction of the Intercolonial Railway. If this be not the Act intended to be embodied, it must mean the Railway Act of some other province, for we have no Act of the kind. Undei- these circumstances, the Act would be useless, and, besides, a discredit to our statute-book ; and on these grounds I thought it best to reserve it. 2. " An Act to incorporate the Assiniboine and Red River Navigation Company." It seems to me this Act trenches upon the ground reserved for Parliament. We certainly have the power of incorporating companies for local objects ; but I take it these objects must be such as the local legislature has the right to deal with. Now, this bill, meditating to deal with navigation and shipping, seems to me to be at variance with the 10th subsection of the 91st clause of the ITnion Act ; but, if the subject be within the jurisdiction of the local legislature, I do not see any objection to the bill in point of expediency. 3. " An Act to constitute and incorporate the Law Society of Manitoba." This bill, even if the policy were sound, under any circumstances, seemed to me premature. In a country like this, obstacles should not be thrown in the way of any person in good standing at the l)ar of any other province, to be admitted to the practice of the law here. If the provi^ons of the Uniou Act, which confine the selection of judges in any pnivince to the bar of that province, should be, as I think they are, applicable to Manitobri,, it would not be desirable so to force the admission hore, as to lOstrict tlie ^overnmsnt at Ottawa, in their .selection of judges to such persons as the existing i-iembers of the bar here might think fit to admit. Bat another important objection is the power given under this bill to the bar to regulate their own fdej. Whether that is desirable, in any stage of the history of the bar of a country, there can bo no doubt that it would be a most dangerous power to extend to the bar of this province in its present condition. 4. *' An Act respection Land Surveyors." This is objectionab'e on tlie same grounds. It creates a monopoly where we aie better, I think, without it. We need tor the work of this country not only first-class surveyors, who could undergo the examination prescribed by this Act, but also men moderately accjuainted with the principles of surveying. There are at tiiis moment in the province several persons who have been engaged more or less all their lives in rough surveys, who can run a line with the compass, and in whose judgment their neighbours R '■ I i I f.': 772 MANITOBA LEGISLATION. have confidence, and yet who could not pass such an examination as the bill contem- plates, and would be subject to penalties If they acted as surveyors if the bill comes into opei-ation. I see no reason why this class of men should not be allowed to continue their services, or why others who may come here similarly qualified should not be por- miiited to do the kind of rough work which a new country requires. I have, ikc, ADAMS G. ARCHIBALD, Lieutenant-Governor, Beport of the Hon. the Minister of Justice, approved by His Excellency the Governor- General in Council on the JOth December, 1872. Departmknt of Justice, Ottawa, 24th Septeralier, 1872. The undersigned has the honour to report that he has had under consideration four Acts passed by the lejjislature of the province of Manitoba, at its last session, which were reserved for the sij^nification of the pleasure of his Excellency the Governor General, and transmitted by a despatch from his Honour the Lieucenant-Governor of Manitoba, bearinj^ date the 14th April, 1872. They are as follows ; — 1. " An Act to incorporate the Manitoba Central Railway Company." This Act appears to be within the comjietence of the provincial legislature. A portion of the line, however, proposed to be constructed by this Act wvl ^xtond across the country, through which the Pacific Railway to be constru. ti'ij t'u . 'iiada to British Columbia, must pass. It would therefore seem wise to po' ont. . ..nting an Act of incorporation to a company which may rival, prejudice, or ubstr lit the more important line. The Act is besides, liable to the objection taken by the Lieutenant-Governor in his despatch. He says : " By the second clause it incorporates, as part of it, several sections of some Rail- way Act, which it does not specify. If 't means to refei* to the Dominion Act, it em- bodies, as part of our legislation, a code much of which touches matters, not only beyond our jurisdiction, but totally ina|)pliv?able to a private company, inasmuch as the clauses incorporated provide for the construction of the Intercolonial Railway. " If this be not the Act intended to be embodied, it must mean the Railway Act of some other province, for we have no Act of the kind. Under the.se circumstances the Act would be u.seless, and, besides, a di.scredit to our statute book." Under these circumstances the undersigned recommends that his Excellency not give bis assent to the measure. 2. " An Act to incorporate the Assiniboine and Red River Navigation Company With respect to this bill the Lieutenant-Governor in his despatch says : — " It seems to me this Act trenches upon the ground reserved for Parliament, W* certainly have the power of incorporating companies for local objects, but I takt t" objects must be such as the local legislature has the right to deal with. No..', i Viill meditating to deal with navigation and shipping, seems to me to be at varia. with the 10th subsection of the 91st clause of the Union Act." With great respect for the opinion of the Lieutenant-Govern'n", the undersigned of opinion that the Act is within the competence of the local legislature. It is, •jw ever, objectionable, inasmuch as in its second clause it provides that the s^'"r':h idersol the company shall be, to all intents, partners in the same. This provision is contrary to tlie first principles which govern the corporation o companies : that such corporations are distinct entities in themselves. The making the shareholders partners in the company, t'> all intents, renders them liable to sue p.nc be sued in their individual capacity. The clause goes on to say that the shareholders shall not be liable ^>uv ,d thi amount of their respective shares in the company. R lo !l .i*. .^>il n ition as the bill contem- pveyors if the bill comes lot be allowed to continue ilified should not be per- uires. t. ARCHIBALD, Lieutenant-Governor. Excellency the Governor- 1872. ' Ith September, 1872. d under consideration four at its last session, which Excellency the Governor 3 Lieuoenant-Governor of •llows : — ly Company." provincial legislature. A lis Act wvl i-xt-jiid across istru. t"u lii c -nada to to po<' liU. , .'•-.nting an ice, or ut'Str ot the more B Lieutenant-Governor in ral sections of some Rail- the Dominion Act, it em- )s matters, not only beyond y, inasmuch as the clauses Railway. 3t mean the Railway Act Inder these circumstances ute book." ds that his Excellency da 'er Navigation Compawy ' atch says : — irved for Parliament. Wt objects, but I takt; t *T •)« 3 ; to deal with. No.., ili; 1 to me to be at variRu< r vernor, the undersigned v .1 legislature. It is, Ijw- les that the s>i"r':h Iders of govern the corporation of emselves. The making of lers them liable to sue Rnd not be lial)le d the 35 VICTORIA, 1872. 773 It is apprehended that under this clause, a creditor might bring an action against the corporation, and proceed to judgment and execution against the property of such corporation, and also the shareholders as individuals, and recover against them individu^ ally to the extent of the amount of their respective shares. This, it is presumed, is not the intention or desire of the shareholders. If the promoters of this bill desire to do business on the Red River beyond the bounds of Manitoba, or within the United States, the Act of incorporation should be obtained from the Dominion Parliament. Under these circumstances the undersigned recommends that his Excellency do not give his assent to this bill. 3. " An Act to constitute and incorporate the Law Society of Manitoba." With respect to this Act the Lieutenant-Governor in his despatch says : — " This bill even if the policy were sound, under any circumstances, seemed to me premature. In a country like this obstacles should not be thrown in the way of any person of good standing at the bar of any other [)rovince, to be admitted to the practice of the law here. If the provisions of the Union Act, which confine the selection of of judges in any province, to the bar of that province, should be, as I think they are, applicable to Manitoba, it would not be desirable so to fence the admission herfs as to restrict the government at Ottawa in their selection of judges, to such persons as the existing members of the bar here might think fit to admit. But another important objection is the power given, under this bill, to the bar to regulate their own fees. Whether that is desirable, in any stage of the history of the bar of a country, there can be no doubt that it would be a most dangerous power to extend to the bar of this province in its present condition." The grounds taken by his Honour against sanctioning this bill are so strong that the undersigned begs leave to recommend that the assent of the Governor General be not given to it. 4. " An Act respecting Land Surveyors." The Lieutenant-Governor in his despatch says, with regard to this Act : — " This is objectionable on the same grounds. It creates a monopoly where we are better, I think, without it. We need for the work of this country, not only first-class surveyors, who could undergo the examination p.-escribed by this Act, but also men moderately acquainted with the principles of surveying. "There are at this moment in the province several persons who have been engaged more or less all their lives in rough surveys, who can run a line with the com- pass, and in whose judgment their neighbours have confidence, and yet who could not pass such an examination as the bill contemplates, and would be subject to penalties if they acted as surveyors after the bill comes into operation. " I see no reason why this class of men should not be allowed to continue their services, or w hy others, who come here, similarly qualified, should not be permitted to do the kind of rough work which a new country requires." There is great force in what his Honour says, and it appears to the undersigned, that in the infant state of the province of Manitoba, it would have been well if the legisls.ture had encouraged competent surveyors from all the provinces, to become settlers there, by giving them a legal status, on the production of the necessary certifi- cate from their several provinces. This, however, is for the consideration of the provincial legislature. On the whole, the undersigned recommends that the view taken by the Lieutenant- Governor in his despatch be concurred in, and that the Governor General's assent be not given to the bill in question. All which is respectfully submitted. JOHN A. MACDONALD, Minister of Justice. 49 774 MANITOBA LEGISLATION Report of the Hon, the Minister of Justice, approved by His Excellency tfie Governor- General in Council on the 16th April, 1873. Department of Justice, Ottawa, 14th April, 1873. The undersigned to whom was referred a certified copy of the statutes of Mani- toba, passed in the session held in the thirty fifth year of Her Majesty's reign, has the honour to report as follows : — That the Act, chapter 3, intituled : " An Act to amend an Act to establish a Supreme Court in the province of Manitoba," provides, in its 5th section, that no chief justice or puisne judge of the Supreme Court shall be appointed, unless such person is able to speak both Viie English and French languages. This provision, in the opinion of the undersigned, is tdtra vires, as by reference to the " British North America Act, 1887," clause 97, it will be found that the only limit upon the discretion of the Governor-General, in selecting such judges for the several provinces, is, that they shall be from the bars of the provinces respectively. It would appear, therefore, tV ' this provision is ineffectual, as being beyond the jurisdiction of the legislature of ^ilanitoba. That the Act (chap. 6) ir atuled : " An Act for the Registration of Voters," pro- vides in '^t it in its 21st and 22nd clauses, that any judge refusing or neglecting to perform t / -''iiv imposed upon him by the Act shall be liable to a fine. This, ii .pinion of the undersigned, is objectionable, as it would seem to bs inconsistent » .he dignity of a judge of a Superior Court that a pecuniary penalty should be imposta upon him for neglect of duty. By the " British North America Act, 1867," clause 99, judges of the superior courts hold office during good behaviour, but are removable by the Governor General, on address of the Senate and House of Commons. This clause provides fully the manner in which judges can be called to account for neglect of duty, and, in the opit lOa of the undersigned, their position should not be otherwise affected by legisla- tion such as is contained in the Act under consideration. The undersigned does not, under the circum.stances, recommend your Excellency to disallow the two Acts above quoted, but would respectfully recommend that the attention of the government of Manitoba be called to them, with a view to theii amendment. The government of Manitoba should also, in the opinion of the undersigned, be given to understand that his Excellency the Governor General does not consent t(| the limitation of his power of selection of judges contained in the Act (chapter 3)| and will not feel bound by it in any appointments to the bench. He has, therefore, the honour to recommend that all Acts passed by thJ legislature of Manitoba, in the session held in the 35th year of her Majesty's reigi,] be left to their operation. All of which is respectfully submitted. JOHN A. MACDONALD. Minister of Justice. TO COUNCIL note BY HIS EXCELLENCY. Subject : — Manitoba Supreme Court. I conclude that the recommendation to be conveyed to the Lieutenant-Governo is a sufficient security for the amendment of these Acts. f (Signed) D. 16th April, 1873. 36 VICTORIA, 1873. 775 Excellency the Oovorifior- 73. , Uth April, 1873. f the statutes of Mani- Majesty's reign, has the i an Act to establish a its 5th section, that no je appointed, unless such I. Itra vires, as by reference I be found that the only ing such judges for the rovinces respectively, tual, as being beyond the istration of Voters," pro- refusing or neglecting to e to a fine. e, as it would seem to be t that a pecuniary penalty 9, judges of the superior by the Governor General, clause provides fully the lect of duty, and, in the lerwise affected by legisla- 3ommend your Excellency tfully recommend that the em, with a view to their )n of the undersigned, be neral does not consent to id in the Act (chapter 3), ch. i all Acts passed by the ar of her Majesty's reigi., MACDONALD. Minister of Justice. CY. ,rt. to the Lieutenant-Governor ed) D- L MANITOBA, 36th VICTORIA, 1873. 3bd Session, 1st Parliament. Lieutenant-Governor Morris to t/te Secretary of State Jor the Provinces. Government House, Fort Garry, 1 5th March, 1873. Sir, — I have the honour to inform you that I reserved for signification of the pleasure of his Excellency the Governor General the following bills : — 1. " An Act respecting the Study and Practice of the Law." A similar bill was passed last year and reserved by my predecessor, who was of opinion that no obstacles, in a new country, should be placed in the way of any person of good standing in any of the other provinces being admitted to the practice of the law. I regret to say that the bill, which was understood to have been framed by certain barristers here, was, as introduced in the House, of a character to show that the persons proposing to be incorporated, wished to secure a practical monopoly of the practice of the profession for a period of two years, as the bill provided that no bairister from the other provinces could be received here, until after service for two years in the office of a barrister in the province, and this, although some of the persons to be incor- porated had been made barristers by the Executive Council, having previously been Attorneys at other bars. The assembly very properly struck out these clauses. The Act as it stands nominates fifteen benchers, several of whom are not in practice, and others are of only a couple of years' standing at the bar and even less, and makes the benchers a close body, vacancies being supplied by election of the benchers, while in Ontario the system in question has been abandoned. The law now in the statute-book provides for the admission of barristers or attorneys by the Lieutenant-Governor in Council. With regard to this Act, it is simply a question whether the province be sufficiently advanced, and whether there is a bar here of sufficiently stable and settled a character, to justify the placing the control of admission to the bar in the hands of the few prac- titioners who are resident here, and I therefore submit the Act for the consideration of the Governor General. 2. " An Act relating to the Prairie Fires." I reserved this Act because there are two clauses in it which are of a novel character, and are, I believe contrary to sound principles, and likely to prove injurious to the interests of the Dominion. These clauses make surveyors, railway companies and contractors liable for the result of fires caused by any of their men, irrespective of the facts whether there was negligence, or whether the men were at the time under the control of the employers, provisions which I would fear would seriously interfere with the survey of the public lands. The Act itself is a useful one, but I must recommend that it be not assented to, in which event a similar Act, omitting the objectionable clauses, can be passed next session. 3. "An Act to impose a Tax on Wild Lands." I reserved this bill, as I observed that a similar Act had been reserved in British Columbia. I think, however, that the Act is a proper one. Large tracts of land in good sections of the province have been purchased by specu- lators from abroad. These lands will be unproductive, interfering with the progress of settlement, while the proprietors of them will share in the enhanced value of these lands, caused by the enterprise of the residents here, without contributing in any way to the advancement of the province ; and as the means at the disposal of the legislature here are limited, I 49J 776 MANITOBA 1.BOI8LATION Heretofore the titles to land titles to the soil will emanate there are a few enterprising aliens resident in the province, I necessary. I reserved the bill, as at first I entertained some think the ministry were right in proposing the Act, and I therefore recommend that it be sanctioned without delay. 4. " An Act respecting Aliens." This is an Act copied from the English Act of 1870. in this province have been long leases, but as henceforth from the Crown, and think the legislation doubts »B to the power of the legislature to deal with the subject. Under the British North America Act the legislation with aliens is entrusted to the Dominion parliament, while property and civil rights are under the control of the provincicl legislature. I have come to the conclusion that, as the Aci, .— i:- ,\ .^ith the holding of property by aliens, and declares the existing disqualification from serving as jurors, a question which has already arisen, and was added by the then chief justice under the English laws in force here as now enacted, it is within the powers of the legislature, and I therefore recommend that it be sanctioned forthwith. 5. " The Half-Breed Land Grant Protection Act." The subject of these grants attracts a good deal of attention, and a movement was on foot to obtain legislation to prevent such of these lands as fell to the heads of farailie" from being sold by them, in order that the lands might descend to the children. This project was abandoned, and the present bill was introduced and passed. It seems that speculators have bought largely from half-breeds their claims to allofc merits at low prices, ranging as low in some cases as $15, the maximum being $50. These sales, of course, only give the vendees a right of action, to enforce the contract, when the vendor should become entitled to his land. The object of the bill is to cancel all these sales, and give the vendee an action to recover back tl price, which, if in goods, was to be charged at ordinary prices. The consideration is made a lieu on the land, which may be sold for the recovery of the price paid. The objections to the bill, the intention of which is, no doubt, good, are these : 1st. It is retroactive — dealing with existing contracts and cancelling them. 2nd. It opens a fruitful door for litigation — the prices charged for goods being opened up for examination in each case, where those formed part of the consideration. 3rd. There is no machinery provided for carrying out the sale of the land on which the lien is established, but this, of course, could be remedied next session. I have no sympathy "^ith those who may have purchased these claims to land at inconsiderable prices, or in an unfair manner, but as the law is novel and retroactive in its character, I feel compelled to reserve it for the signification of the pleasure of the Governor General ; though it must be borne in mind also that, if the Act be sanctioned, it may be taken as a precedent for other restrictions with regard to the holding of thesf; lands. 6. " An Act to incorporate the Eastern Railway Company of Manitoba." This railway is within the bounds of the province, and is designed to carry wood and stone, I understand. I reserved it, as I found similar bills had been disallowed 'ast year, on the ground of possible interference with the line of the Pacific railway. There is an objectionable clause in the bill making the shareholders partners, though limiting the liability to the amount of their shares ; as this clause is very obscure, it shov.ld be understood that it should be amended, if it be sanctioned. If it is found that the Act uc?s not interfere with the proposed Pacific Rail way or its line, which I am led to believe it does not, I wojJi recommend that it be sanctioned I have, (fee, ^ ALEX. MORRIS, Lieutenant-Govsrnor. efore recommend that before the titles to land bo the toil will emanate Bnt in the province, I st I entertained some aliens is entrusted to nder the control of the •vith the holding of rom serving as jurors, a chief justice under the wera of the legislature, n, and a movement was 11 to the heads of farailie" to the children, duced and passed, eds their claims to allot bhe maximum being $50. to enforce the contract, !ct of ^he bill is to cancel ck tl price, which, if in e sold for the recovery of lubt, good, are these : [ cancelling them, charged for goods being irt of the consideration, sale of the land on which ext session. id these claims to land at i novel and retroactive in on of the pleasure of the if the Act be sanctioned, rd to the holding of thesf; y of Manitoba." esigned to carry wood and had been disallowed 'ast he Pacific railway. There partners, though limiting t^ery obscure, it shot. Id be )posed Pacific Rail way or end that it be sanctioned. lORRIS, Lieutenant-Govsrnor. Lieutenant-Governor Morris to the Secretary of Stale of Canada, GovERNJiENT HousE, FoET Garry, 29th November, 1873. Sir, — Referring to my de&patch of the 15th of March last, inclosing certified copies of reserved Acts of the third session of the first parliament of Manitoba, I have since procured printed copies of these Acts, and to facilitate the consideration of them, I inclose two printed copies of each of the said Acts. In calling attention to my report contained in my despatch of the 15th March last, with regard to these Acts, I see no reason to modify the views therein expressed, unless it be to say, that with regard to the Act respecting the study and practice of the law, I reserved it, as a similar Act had been reserved in the previous se^aion, and thf royal assent refused thereto. As the Act is within the power of the legislature, I think the better course would be to allow the Act to take effect, suggesting the amendment thereof, if any of its '.eatures be found objectionable. I have, &c.. ALEX. MORRIS, Lieutenant- Governor. Jieport of the Hon. the Minister of Justice, approved by His Excellency the Governor General in Council on the 27th February, 187 j^ Department of Justice, Ottawa, 21st February, 1874. The undmgned to whom is referred certified copies of certain bills passed by the legislative council and assembly of the province of Manitoba in the session held in the 36th year of Her Majesty's reign, but which were reserved by the Lieutenant- Governor for the signification of the pleasure of his Excellency, has the honour to report as follows : — That the bill intitled : " An Act to amend the Act 35th Victoria, chapter 20, for the prevention of Prairie Fires, and for other purposes," provides, amongst other things, that surveyors, railway companies and contractors shall be liable for the result of fires caused, by any of their men, irrespective of the fact whether there wtis negligence, or whether the men were at the time under the control of the employers, provisions which appear likely to seriously interfere with the survey of public lands. In this view the undersigned recommends that the Governor General's assent be not given to the bill in question. That the bill chaptered 42, and intitled : " An Act to impose a tax on Wild Lands " has also been reserved. As to this, the Lieutenant-Governor reports that the Act is a proper one, ar i he, L iierefore, recommends that it be sanctioned without delay. The Act proposes an annual tax upon all lands of the province, except such as are hereby exempted, and these exemptions comprise lands vested in Her Majesty : Lands held for the benefit of any Indian ; lands entered as homesteads, and occupied under the " Dominion Land Act ; " lands held by the Canadian Pacific Railway Com- pany ; and lands set apart for the half-breed minors, kc. Under these circumstances the undersigned recommends that the assent of his Excellency the Governor General be given to this bill, and that the proclamation do issue accordingly. That the bill chaptered 43, and intituled : " An Act respecting Aliens, " has also been reserved. I 778 MANITOBA LEOI8LATION In respect to this bill the Lieutenant-Governor of Manitoba in his despatch of *;he 15th of March, 1873, remarks as follows : — " This is an Act copied from the English Act of 1870. Heretofore the titles to lands in this province have been long leases, but as henceforth titles to the soil will emanate from the Crown, and there are a few enterprising aliens resident in the province, I think the Legislation necessary. " I reserved the bill, as at first I entertained some doubts as to the power of the legislature to deal with the subject. " Under the British North America Act the legislation with regard to aliens is entrusted to the Dominion Parliament, while property and civil rights are under the control of the provincial legislatures. " I have come to the conclusion that as the Act deals only with the holding of property by aliens, and declares the existing disqualifications from serving as jurors, a question which has already arisen^ and was decided by the then chief justice, under the English laws in force here as now enacted, it is within the powers of the legislature, and I therefore recommend that it be sanctioned forthwith." The undersigned concurs in the view taken by the Lieutenant-Governor in this respect. He thinks it right, however, to call attention to the use of the word " parliament- ary," in the first subsection, in the second section of the bill. By the " British North America Act, 1867," sec. 17, a parliament is constituted for Canada, but a legislature for each province ; the use, therefore, in this instance, of the word " parliamentary " may lead to confusion. A similar case occurred in the province of Ontario, in the enacting of the Slst Vic, Ontario, chapter 30, section 12, in which franchise was enacted for those entitled to vote at all " parliamentary " elections ; and to correct the difficulties it was, in the subsequent session of the legislature of that province, 32 Vic, chapter 27, section 4, enacted that the " words ' parliamentary ' elections " should be held and construed to mean and apply to the election of members in the Legislative Assembly of Ontario only." The undersigned recommends that the Lieutenant-Governor's attention be called to this point with a view to its amendment by the legislature of Manitoba. It is to be observed also that the same subsection provides that " No man, not being a natural bom, or a naturalized, subject of Her Majesty, shall be qualified to serve as a grand or petit juror in any of the courts in this province on any occasion whatever." The undersigned is of opinion that this clause, professing, as it does, to disqualify certain persons as jurors for the trial of criminal cases in the province of Manitoba, is not within the jurisdiction of that legislature. The Parliament of Canada has already, by the "Criminal Procedure Act, 1869," 32nd and 33rd Vic, chapter 29, section 44, and by 34th Vic, chapter 14, provided as to the qualification of grand and petit jurors in criminal cases. The undersigned does not, under the circumstances, recommend your Excellency to disallow thi8"i)ill, but would respectfully recommend that the attention of the gov- ernment of Manitoba be called also to this provision with a view to amendment. That another of the bills reserved as before mentioned is one chaptered 44, and intituled : " The Half-breed Land Grant Protection Act." Upon this bill the Lieutenant-Governor remarks as follows : " It seems that speculators have bought largely from half-breeds their claims to allotments at low prices, ranging as low, in some cases, as $15 ; the maximum being $50. These sales, of course, only give the vendor a right of action to enforce the contract, when the vendor should become entitled to his land. The object of the bill is to cancel all these sales, and give the vendor an action to recover ba«k the price which, if in goods, were to be charged at ordinary prices. " The consideration is made a lien on the land, which may be sold for the recovery of the price paid. " The only objections to the bill, the intention of which is no doubt good, are these, viz : — 36 vioTOKiA, 1873. 779 in his despatch of «;he ii-etofore the titles to titles to the soil will sident in the province, .8 to the power of the th regard to aliens is rights are under the with the holding of m serving as jurors, a lief justice, under the Brs of the legislature, nant-Governor in he word "parliament- iament is constituted >ie, in this instance, of enacting of the Slst cted for those entitled culties it was, in the chapter 27, section 4, leld and construed to mbly of Ontario only." > attention be called to mitoba. I that "No man, not shall be qualified to rince on any occasion J it does, to disqualify )vince of Manitoba, is 'rocedure Act, 1869," lapter 14, provided as lend your Excellency attention of the gov- to amendment, ae chaptered 44, and ireeds their claims to B maximum being |50. enforce the contract, of the bill is to cancel he price which, if in ) sold for the recovery no doubt good, are " Ist. It is retroactive, dealing with existing contracts, and cancelling them. " 2nd. It opens a fruitful door for litigation, the prices charged for goods being opened up for examination in each case where those formed part of the consideration. " 3rd. There is no machinery provided for carrying out the sale of the land, on which the lien is established, but this, of course, could be remedied next session. " I have no sympathy with those who m/ty have purchased these claims to lands at inconsiderable prices, or in an unfair manner, but as the law is novel and retroactive in its character, I feel compelled to reserve it for the signification of the pleasure of the Governor General, though it must be borno in mind also that if the Act be sanctioned it may be taken as a precedent for other restrictions with regard to the holding of these lands." The undersigned is, however, of opinion that, having reference to the circumstances under which the appropriation of Dominion lands was made for half-breeds, and that it is recited in the bill that very many persons entitled to participate in the grant had agreed to sell their right, whilst, at the same time, they were in perfect ignorance what that right or its value eventually might be, the Act would be beneficial in protecting their interests. It appears further that, in so far as purchasers of those rights are concerned, the bill proposes to protect them, and, if the machinery in this respect be not sufficient, it can be perfected at a future session of the legislature. The undersigned has, therefore, the honour to recommend that the as-sent of his Excellency should be given to this bill, and that a proclamation to that effect should issue accordingly. A. A. DORION, • Minister of Justice. Report of the Honourable t/ie Minister of Justice, approved hy His Excellency the Governor General in Council on the 28th February, 1874- Department of Justice, Ottawa, 25th February, 1874. The undersigned has the honour to report that a bill passed by the Legislative Council and Assembly of the province of Manitoba, in the session held in the 36th year of Her Majesty's reign, chapter 45, and intituled : " An Act to incorporate the Eastern Railway Company of Manitoba," was reserved by the Lieutenant-Governor for the signification of the pleasure of his Excellency. The Act appears unobjectionable, and the undersigned has, therefore, the honour to recommend that the same should receive the assent of his Excellency the Governor General, and that a proclamation do issue accordingly. A. A. DORION, Minister of Justice. Orders in Council giving absent to Chapters 42, 43, 44 C'^<^ 4^^ published in the Canada Gazette on the 28th day of February, 1874, Vol. VII., No. 36, pages 1115 and 1116. Report of the Hon. the Minister of Justice, approved by His Excellency the Governor General in Council on the 7th September, 1874- Department of Justice, Ottawa, 2l8t August, 1874. The undersigned has the honour to report, that the following Acts were passed in the third session of the first legislature of the province of Manitoba, viz. : Chapters 1, 3 to 27, 19, 20, 22, 23, 25 to 31, and 33 to 41. The undersigned is of opinion that the above statutes should be left to their opera- tion. T. FOURNIER, Minister of Justice. I * 780 MANITOIIA LBOISLATION Report of the Hon. the Minister of Justice, approved by His Excellency the Qovernor General in Council, on the 1th September, 1874- Department op Justice, Ottawa, 2l8t August, 1874. The undersigned has the honour to report that in the third session o: the first legislature of Manitoba, was passed an Act, chaptered 2, and intituled : " A.n Act to define the privileges, immunities and powers of the Legislative Council, and of the Legislative Assembly of Manitoba, and to give summary protection to persons employed in the publication of Sessional Papers." The Act in question seems to be a transcript of the Act of the province of Ontario of 1868, as to which the opinion of the law officers of the Crown in England was taken, and it was advised by them that it was not competent for the legislature to pass Buch an Act ; and that it was inconsistent with the provisions of sections 92 and 96 of the British North America Act of 1867. The Act of Ontario was accordingly disallowed. The legislatures of Quebec anc' British Columbia fell into the same error. The undersigned has, therefore, the honour to report that in his opinion the Act is objectionable ; and he recommends iiiit the same may be disallowed. T. FOURNIER, Minister of Justice. Order in Council disallotving tfie Act above mentioned, published in the Canada Gazette on own in England was the legislature to pass ' sections 92 and 96 of e same error, his opinion the Act is wed. LNIER, Hiniater of Justice. in the Canada Oaxttte 1, page 262. Excellency the Governor 2l8t August, 1874. certain Acts passed by erning the Registration ences therein specified, ■, is not within the com- Dn of this report should s;e8tion that the provi- >n for inquiries concern- re commissions shall be ■rupt perjury, plicable to this, and the uunication be had with on that the section be n as to his-right to vote lereof shall be sentenced 31, and the undersigned ovemor, with a view to NIER, Mini.9ter of Justice. Report of llie Hon. the Minister of Justice, apjrrovfd hy His Excellennj the Governor General in Council, on the 1th September, 1874- Dkpaktment of Justice, Ottawa, 1st September, 1874. Upon an Act passed in tho third session of the first logisJatu re of Manitoba intituled : "An Act to incorporate the Winnipeg Board of Trttdt\" The undersigned has the honour to report that in 1873 this Act wos passed by the legislature of the province of Manitoba, chaptered 32. The undersigned is of opinion that the inc()r[)oration of boards of trade, not being for provincial objects only, but treating of trade and commerce — a subject within within the exclusive control of the Parliament of Canada only, — rests with that parlia- ment. In the session of the Parliament of Canada lately held, provision was mode by which persons, on application, can be incorporated as boards of trade. The undersigned recommends, therefore, that this Act be disallowed. T. FOURNIER, Minister of Justice. Order in Council disallotving tfie Act above mentioned, published in tlie Canada Gazette on the 7th SepU-niher, 187 J,, Vol. VIII., No. 11, page 2G2. Lieutenant-Governor Morris to the Hon. tlie Secretary of State for Canada. Government House, Fort Garry, Man., 10th October, 1874. Sib, — I have the honour to acknowledge your despatch of the 14th September last, informing me, for the benefit of the government, of the disallowance of the Act passed by the legislature of Manitoba, on the 8th of March, 1873, defining the privileges and immunities of the Legislative Council and Legislative Assembly of Manitoba, and transmitting the Order in Council disallowing the same, on the ground that the Minister of Justice had reported "that he was of opinion that it was not competent for the legislature to pass such an Act." As the subject of the Act is one of importance, and materially afiects the position of the legislature, I have been requested by the Executive Council of Manitoba to apply to the Privy Council for information as to the reasons which led the Minister of Justice to report that the Act was beyond the powers of the legislature, in order that another bill within their powers may be submitted to the House at the approach- ing session. The council feel that in this new community, with a legislature composed, of necessity, of members untrained to parliamentary practice, every support ought to be accorded to them by the Privy Council in the ditficult work of legislating for the varied wants of this rising society, and the same consideration ought to be extended to their enactments, as is shown to those passed by the more powerful provinces of the Dominion. I am requested by the council to say, that they believed that the Act in question was within the powers of the legislature, and that ' "' had good reason so to believe, is apparent from the facts that the legislature .' i • itario hod passed an Act of a similar character, 32 Vic, cap. 3, which was assented to on the 19th December, 1868 ; that the legislature of Quebec passed an Act of the same nature, 32 Vic, cap. 4, which was assented to on the 5th April, 1869, and that the legislature of British Columbia passed an analogous Act, 45 Vic, cap. 4, which was assented to on the 11th April, 1872. With these precedents before them, the legislature were justified in passing the Act in question, and I felt that it was right for me to assent thereto, as I examined the legislation of the other provinces before doing so, and I was and am not aware that any of the above-mentioned Acts were disallowed by his Excellency the \) ; If, a 782 MANITOBA LROIHLATION Governor (Jptienil in Council ; and, if such be blie case, it is natural that the Executive Council Hhould desire to be furnished with the reasons which induced the Minist»ir of Justice to report that the Act in question was not competent for the legislature to pass, especially as its disallovance places the legislature in an exceptional and less favourable position as compared with the other legislatures of Ontario, British Columbia and yuobeo, if the Acts above alluded to were to go into operation ; and they therefore respectfully request that they may be supplied with full information on the subject, in order to guide the legislature in dealing with so important a subject aa vi its privileges and immunities. I would further call your attention to the fact that the disallowed Act is, with the single exception of clause one, which relates t« the legislative council, a tran cript of the Ontario Act, while that clause is to be found in the Quebec Act. The council desire me to express their regret that the Piivy Council did not see lib to communicate with them before proceeding to the extreme step of disallowing the Act in question. A session of the legislature took place after the receipt of tha Act in O tawa, and if the objection of the Minister of Justice had been submitted to the Executive Council, it would have been in their power to have amended or repealed the Act. I have, jfec, ALEX. MORRIS, Lieutenant-Governor. Mr. Under Secretary Langevin to the Lieutenant-Governor of Manitoba, Department of thb Sbcbetary of State, Ottawa, 16th November, 1874. Sib, — I have the honour to inform you that his Excellency the Go- -nor General has had under consideration your despatch of the 10th ultimo, in ref » to the dis- allowance by his Excellency in Council of an Act of the legislature of oba, defin- ing the privileges and immunities of the legislative council and ash^.iioly of that provi -ice, and urging that as a similar Act had been passed by the legislatures of Ontario and British Columbia, you would be glad to know the reasons which had led to the dis- allowance of the Act in question, passed by the legislature of Manitoba. I am directed to state that his Excellency is advised that the Act of Ontario, to which allusion is made in your despatch, is the 32 Vic, cap. 3, (1868) and that the then Minister of Justice reported that "by the 18th clause of the 'British Norrh America Act, 1867,' it is enacted that the privileges, immunities and powers to be held, enjoyed and exercised by the Senate and by the House of Commons of the Dominion of Canada shall be such as shall be from time to time defined by Act of the Parliament of Canada, but so that the same shall never exceed those held, enjoyed and exercised at the passing of such Act by the House of Commons of the United Kingdom. " It is to be assumed that the power to pass an Act defining those privileges was conferred upon the Parliament of Canada on the ground that, without such provision, the Parliament of Canada could not have passed any such Act. " It is clear from the current of judicial decision in England that neither of the branches of a colonial legislature has any inherent right to the privileges of the Imperial Parliament. " Perhaps, however, under the legislative powers given to the Parliament of the Dominion by the 91st section of the Union Act to make laws for the peace, order, and good government of Canada, it might have passed an Act without any enabling power from the paramount authority, establishing and (^fining the privileges of its two chambers. However this may be with respect to the general Parliament, it is to be observed that there is no clause in the Union Act similar to the 18th, giving to the provincial legislatures power to define or establish their privileges, and that no general power of legislation for the good government of the provinces are given to their legisla- tures. Their powers are strictly limited to those conferred by the 92nd, 93rd, 94th and 95th clauses of the ' Union Act.' kl that the Executive luceU the MinistjM" of for the legislature exceptional and less of Ontario, British operation ; and they 11 information on the ortant a subject as to )wed Act is, with the uncil, a tran oript of ct. y Council did not see tep of disallowing the the receipt of the Act been submitted to the lended or repealed the MORRIS, lUenant-Governor, " of Manitoba. November, 1874. the Go' -nor General n ref' ' to the dis- iire of oba, defin- and asbv-.iioiy of that t legislatures of Ontario lich had led to the dis- nitoba. the Act of Ontario, to 3, (1868) and that the of the 'British Norrh and powers to be held, ons of the Dominion of :t of the Parliament of ijoyed and exercised at I Kingdom. ng those privileges was vithout such provision, ,nd that neither of the ivileges of the Imperial the Parliament of the 3r the peace, order, and out any enabling power I privileges of its two I Parliament, it is to be ;he 18 th, giving to the ;e8, and that no general re given to their legisla- tie 92nd, 93rd, 94th and " By the Act in fiuestion it will be seen that the legislature of Ontario has declared that the legislative asHembly and its nieml)orH shall enjoy the same privileges as those exorcised by the House of ComnionH of Canada. "It would seem, therefore, that this Act is in excess of the powers of the provincial legislature. If it has any power to legislate in the iiiacter at all, it seems to follow that while the general piirliaineiit' can, under the IHth clause, confer no greater privileges than those enjoyed in the Imperial House of Commons, the provincial legislature, being bound by no such limitation, might, if it were so disposed, confv upon it.self and its members, privileges in excess of those belonging to the House of Commons of England." I am further to inform you that this statement upon which the Minister of Justice so reported, was referred for the opinion of the law officers of the Crown in England, and that they gave their opinion that it was not competent for the legislature of the province of Ontario to pass the Act, and they considered it ineonsistent with the pro- visions of sections 92 and 96 of the British North America Act. In consequence the Act in question was disallowed by the Governor Generp'., aa will l)e seen by reference to the Canada Gazette of the 4th December, 1869. As to the Act of hhe province of Quebec of tlie same tenor as that of Ontario, being 32 Vic, oap. 4, 1869, action was taken and it was disallowed, as will bo seen by the Canada Gazette of the 4th December, 1 869. Reference is also made in your despatch to the Act of the legislature of British Columbia of 35 Vic, cap. 4, based on that of Ontario before mentioned. This Act was repi Ii'd by the Act of British Columbia of 1873, 36 Vic, cap. 35. They appear to have passed another Act on the same subject during the same session. No. 42. In making the above communication I am directed to aud that the government are anxious at all times to aid the Lieuteii.u it-Governor and Council of Manitoba in respect to the legislation of that province, so ir as they can possibly do so. I have, itc, EDOUARD J. LANGEVIN, Under Secretary of State. Lieutenant-Governor Morris to the Secretary of State of Canada, GovEHNMENT HousE, FoBT Garry, Man., 10th October, 1874. Sir, — I Lave the honour to inform you that I am in receipt of your despatch of the 7th ultimo, intimating that "An Act to incorporate the Winnipeg Board of Trade," passed on the 8th day of March, 1873, by the legislature of Manitoba, had been disallowed on report of the Minister of Justice "that it was not competent for the legislature to pass such Act." Having laid your despatch before the Executive Council of Manitoba, I have been requested by the council to apply to you for information as to the legal reasons upon which the Minister of Justice bases his opinion. I am aware that the Parliament of the Dominion has incorporated a number of boa.-ds of trade, and, on recent receipt of the statutes of last session, I observe that a Gtineral Act has been passed by the Dominion for the incorporation of such bodies, but the council think there is serious question whether the incorporation of such bodies does not fall within the powers of the local legislatures, as being " companies with provincial objects," under the British North America Act. If, however, it is decided that all Acts of the local legislatures that may hereafter be passed to incorporate boards of trade shall be disallowed, and the exclusive right of the Dominion Parliament to incorporate such bodies is determined to be included under the powers conferred by the British North America Act on that Parliament, "for the regulation of trade and comuerce," the council have no desire to press the matter of this particular Act further ; but they, nevertheless, wish to be in a position to satisfy the legislature of the province that there were good and sufficient reasons for the disallow- ance of the Act in question, especially as similar Acts have been passed by the legislature of Ontario, and have been permitted, as they believe, to go into operation [' = 784 MANITOBA LEGISLATION I refer to the Act of Or^tario, 31 Vic, chap, 64, incorporating the Guelph Board of Trade, which was then evidently regarded as being within the competence of that legis- lature, as in the next session two clauses of it were repealed, the one dealing with criminal law, and the ither with the inspection of articles of commerce, by the repealing Act 32 Vic, chap. 25, which dealt with that ;i.nd ciher Acts, which in any way transcended the local powers, the said Act evidently having been passed, in conformity with a report of the Minister of Justice, on the several Acts, comprehended within its scope. I also refer to the Act of Ontario, 35 Vic, chap. 73, which incorporated the Kingston Board of Trade, and I ha^e no reason to believe was disallowed by the Governor in Council. The subject of the jurisdiction with regard to this Act, to incorporate the Win- nipeg Board of Trade, was discussed by the Executive Council at the time, and the fact of the passage of the two Acts in question largely influenced them in assenting to the adoption of the Act, which has now been disallowed, as they cc tend that the legislature of Manitoba possesses equal legislative power with that of Ontario. The disallowance of this Act leads me to suggest that it may be worthy of consider- ation whether in the event of the disallowance of an Act of a local legislature, the fact of the disallowance together with its cause, should not, in addition to the notice in the Canwfa Gazette, be communicated to the other local governments. The newer provinces of the Domiuion are naturally led to avail themselves of the advantage of the legislation and experience of the older provinces, and if the govern- ments were advised of such disallowances, diflSculty might be avoided, arising from the adoption by a legislature of an Act which had been passed by another parliament, but which had I^en uisallowed by the Governor General in Council. Soliciting an early reply, I have, (fee, ALEX. MORRIS, Lieutenant-Governor, Mr. Under Secretary Langevin to Lieutenant-Governor Morris. Department of Skcsetary of State, Ottawa, 16th Nov., 1874. Sir, — I have the honour to inform you that his Excellency the Governor Genera has had before him your despatch of the 10th ultimo, in reference to the disallowanci by his Excellency in Council of an Act of the legislature of the province of Manitoba incorporating the Winnipeg Board of Trade, and in which you ask for information fo your iixecutive Council as to the legal reasons for the disallowance of that Act. I am now directed to state that his Excellency is advised that, upon the passiuj by the legisinture of Ontario in 1868, of iic Act to incorporate the Board of Trade o Guelph, to which you make allusion, the then Minister of Justice r'jporteJ " that it ma be doubted," I the Dominion by the Ac . louse of Commons by the le event of the disallowance 3, together with the cause, ixoellency is advised that . LA.NGEVIN, ider Secretary of State. 1 37-38 VICTORIA, 1873-74. 785 MANITOBA, 37TH-38TH VICTORIA, 1873-74. 4th Session— 1st Parliament. Report of the Honourable (he Minister of Justice, approved by His Excellency the Governor General in Council on the 11th January, 1875. Department of .Tustice, Ottawa, 5th January, 1875. The undersigned, to whom is referred copies of the statutes of ilie legislature of Manitoba, passed in the first part of the fourth session, held in the year 1873, and in the 37th year of Her Majesty's reign, has the honour to report : That thfi following Acts appear unobjectionable, and he recommends that they be left to their operation, that is to say : — Chap, i : " An Act to amend the Acta relating to the Court of Queen's Bench." Chap. 2 : " An Act to provide for the enlargemen* of the Boundaries of Manitoba on equitable terms." Chap. 3 : " An Act to amend an Act, intituled ' An Act respecting Municipa- lities. ' " Chap. 4 : " An Act to amend an Act respecting the Office of Speaker of the Legislative Assembly." Chap. 6 : " An Act to amend 36th Vic, chap. 6, of the Statutes of Manitoba." With reference to chapter 5, intituled : " An Act to provide for a fair and equit- able redistribution of the Electoral Divisions of the Province," the Lieutenant-Governor remarks that a careful examination of the measure convinces him that the Act would require to be amended when the legislature resumed its session, as tlie measure was seriously defective owing to its framcrs not having fuliy understood that the settlement belt was not surveyed into townships, but in regard thereto the original parishes and private holdings have been respected, the bill having been ::ramed on the basis of town- ship surveys. The Lieutenant-Governor therefore recommended that the action of the legislature at the resumption of the adjourned session should be awaited before the Governor General arrived at any conclusion with regard to the Act in question. It appears by the Acts passed in the subsequent portion of this session, held in the 37th Victoria, that an Act with a similar title chapter 8, was assented to in July, 1874, by the Lieutenant-Governor, by which the Act immediately under consideration is virtually repealed and a new redistribution made. The undersigned therefore recommends that the Act now under consideration be left to its operation, in so far as the same can have operated. With reference to chapter 7, intituled : " An Act to incorporate the City of Winnipeg," the undersigned has the honour to report as foliows : — Section 1 gives power to the corporation " of giving or accepting any notes, bonds, obligations, judgments or other instruments or securities for the payment of any sum of money borrowed or loaned, or for the executing or guaranteeing the execution of any duty or thing whatsoever." This provision seems in its term° o broad and unrestricted as to entrench upon the subject of banking. The usual provision inserted the Acts of the Parliament of Canada upon a corporation similarly constituted .s that they may become parties to promissory notes for sums not less than $100 ; but provided that nothing in the Act contained shall be construed to authorize the corporation to icdue note^ or bills of exchange pay- able to bearer, or intended to be circulated as money, or as notes or bills of a bank. 786 MANITOBA LEGISLATION The undersigned suggests, therefore, that this section should be modified and restricted. Section 16 provides that "all constables and i^ersons present at the election shall assist the returning officer or justice of the peace, on pain of being guilty of a misdemeanour." The undersigned is cf opinion that the constituting of an offence a misdemeanour is a branch of criminal law, and, therefore, not within the legal competence of the leg- islature of Manitoba. He recommends, therefore, that the clause should be modified, by omitting the constitution of the offence as a misdemeanour, and providing some definite punishment therefor. Section 90, subsection 10, provides for prohibiting the sale by retail, of spirituous, &c., liquors, in any inn or other house of entertainment, and prohibiting the sale there- of in shops and places other than houses of public entertainment, provided by the by- law, before the tii al passing thereof, has been duly approved by the electors of the city in the manner provided by the Act. The undersigned entertains doubts whether it is within the legislative competence of a provincial legislature to pass a law, which absolutely prohibits the sale of liquors, and whether it is not an interference with the parliamentary power of Canada to legis- late in respect to the regulation of trade and commerce. Section 95 provides for the passing by the council of Winnipeg of by-laws, appoint- ing inspectors, for visiting all places wherein weights and measures, steel-yards, or weighing machines of any description are used, and having seized and destroyed such as are not according to the standard, and for imposing and collecting penalties upon per- sons who are found in possession of unstamped or unjust weights, measures, steel-yards, or other weighing machines. As by the British North America Act, 1867, the subject of legislation is left ex- clusively to the legislative authority of the Parliament of Canada, the undersigned doubts whether the legislature of a province can pass any enactments on this subject. The undersigned recommends that these views be communicated to the Lieutenant- Governor for the consideration of his ministers. H. BEKNARD, Deputy Minister of Justice. I concur. T. FOURNIER, \r-. :^i... -^ r,. -/-•.. Report oj the Honourable the Minister of Justice, approved by His Excellency the Governor General in Council on the 11th January, 1875. Department of Justice, Ottawa, 8th January, 1875. Upon the reference of the statutes passed by the legislature of the province of Manitoba, at the second portion of its fourth session, 1874, the undersigned has the honour to report : — That the following Acts appear to be unobjectionable, and he recommends, there fore, that the same be left to their operations : Chapters 8 to 11, 13, 16 to 18, 21 to 24. With reference to the other statutes passed at that session, the undersigned has the honour to report as follows : — Chapter 12. " An Act respecting the court of Queen's Bench in Manitoba." The second section enacts that the " Court of Queen's Bench » « ♦ shall pass and exercise all such powers and authorities as by the laws of England are incident to a superior court of record, of civil and criminal jurisdiction, in all matters civil and criminal, whatsoever, and shall have, use, enjoy and exercise all the rights, incidents and privileges as fully, to all intents and purposes, as the same were on the uld be modified and at the election shall )£ being guilty of a ce a misdemeanour ia jetence of the leg- ed, by omitting the definite punishment retail, of spirituous, biting the sale there- provided by the by- electors of the city igislative competence ;s the sale of liquors, of Canada to legis- g of by-laws, appoint- uros, steel-yards, or nd destroyed such as g penalties upon per- neasures, steel-yards, legislation is left ex- la, the undersigned enactments on this 3d to the Lieutenant- nister of Justice, His Excellency the 1875. January, 1875. I of the province of undersigned has the I recommends, there i, 16 to 18, 21 to 24. lie undersigned has I Manitoba." * « ♦ ws of England are ition, in all matters rcise all the rights, e same were on the 37-38 VICTORIA, 1873-74. 787 day and the year aforesaid possessed, used, exercised and enjoyed by any of her Majesty's superior courts of common law, at Westminster, or by court of chancery, at Lincoln's Inn, England." The third section provides that the Court of Queen's Bench shall sit as a court of oyer and terminer and general jail delivery, and of assize and nisi prius, for the trial of all criminal offences, »fec., and shall possess and exercise all the powers possessed and exercised by the same court of England. The seventli section enacts that the Court of Queen's Bench shall possess the same powers, authorities and jurisdiction as the Court of Chancery in England possessed on the 15th day of July, 1870. Upon these sections the undersigned deems it proper to remark that it is impossible to enter fully into the pow ers and authorities established and exercised by Her Majesty's superior courts of common law, or by the Court of Chancery in England, or all the courts of oyer and terminer and general jail delivery. Those powers and privileges have been exercised by these courts in England from remote times, and have accrued to them partly by custom and usage, and partly by statutable authority. Whilst under the British North America Act, 1867, the legislature of a province has the power to legislate in respect to the administration of justice in the province, including the constitution of courts of criminal jurisdiction, yet it is reserved to the Parliament of Canada to legislate upon the criminal law, including the procedure in criminal matters, and it may be a grave question whether the assumption to t'le Court of Queen's Bench of Manitoba, of similar powers and privileges to those exercised by the superior courts in England, may not entrench upon the criminal procedure, as it is at present regulated by Acts of Parliament of C'anada. This point is suggested for the consideration of the Lieutenant-Governor of Manitoba. Chapter 14. " An Act respecting the Registration of Co- Partnership." Chapter 1 5. " An Act to reqviire certain foreign corporations, associations and co- partnerships to enregister within this province." The first of these two Acts requ res that all persons associated in partnership for trading, manufacturing or mining purposes in Manitoba, shall register in the Co'.irt of Queen's Bench, a declaration of the particulars respecting the partnerships, and there shall be penalties imposed in forfeiture of compliance therewith. The undersigned quite recognizes the right of legislation for Manitoba in respect of any companies with provincial objects, which may be incorporated by the legislature, but it is possible that companies may be incorporated by the Parliament of Canada or under the "Joint Stock Companies' Act " of Canada, and the undersigned is of opinion that the application of the present Ai > any such companies would be in restriction of the rights granted to them by Canada. He suggests, therefore, the consideration of this point by the Lieutenant-Governor, with a view to amendment. In respect to chapter 15, it is to be observed that it pi ivides that no company incorporated by any foreign power, nor any co-partnerships cai ving on any description of trade or commerce, any of which such per.sons are resident m the United States of America, nor the agents of any such, shall do business in Canada, until registration of the partnership is made, together with arrangements for etVi'cting legal process upon the agent, and a penalty is imposed for failure in compliance with the Act. The remarks which are made above apply somewhat si.nilarly to the case, although, practically, the object contemplated is de ^irable, yet the Act appears to be in restriction of trade and commerce. It i-een already shown, in the Imperial statutes, le legislature of Man- i reason that constitu- )horities " the supreme 1 1, read as follows : — e same powers as are ery and Exchequer in sec. 3, is found the be courts of record of )08sess all such powers ior court of civil and criminal jurisdiction, and shall have, use and exercise all the rights, incidents and pri- vileges as fully to all intents and purposes as the same are at the time this Act takes effect, used, exercised and enjoyed by any of Her Majesty's superior courts of common law at Westminster in England, and shall and may do all things appertaining to a superior court of record, in as full and ample a manner as on the time this Act takes effect, can or may be done in her Majesty's Court of Queen's Bench, Common Bench, or in matters which regard the Queen's revenue (including the condemnation of contra- band or smuggled goods) by the Court of Exchequer in England." In so far as it relates to the subjects under consideration, section 5 reads as follows : — "And the Chief Justice and Justices of the said courts, respectively, shall use and exercise all the rights, incidents and privileges of a Judge of a court of record, and all other rights, incident!^ and privileges as fully to all intents and purposes as the same are, at the time the Act takes effect, used, exercised, or enjoyed by any of the Judges of any of Her Majesty's superior courts of Common Law at Westminster." Chapter eleven of the same statute explains what is meant by a court of oyer and terminer and general jail delivery, and of assize and nisi priua. It is in England incident to springing from, and an emanation, and in fact is part of the Queen's own court. Chap. 12, sees. 25 and 26 confer upon the court of chancery in Ontario substan- tially the same equity powers, and in almost precisely the same language as are in this respect conferred upon and employed in respect of the court of Queen's Bench in Manitoba. By reference to the statutes establishing Supreme Courts of record of original jurisdiction in the other provinces substantially the same powers and authorities are conferred upon the courts by the same references, in the same language : but being the same in all this, it is thought it would be tiresome to make further reference or citations on the subjects, and I do not think it advisable to pursue the investigation in this direction any further. Under these circumstances, one can ill-appreciate the " gravity of the question " suggested in the criticism on the Act 38 Vic, chap. 12, intituled : "An Act respecting the Court of Queen's Bench in Manitoba," unless Manitoba is to be placed in an inferior position to that conferred upon it by the British North American Act, and to that occupied by the other provinces of the Dominion. I am, &c,, E. B. WOOD, Chief Justice. 794 MANITOBA LEGISLATION MANITOBA-38TH VICTORIA, 1875. IsT Sksbion — 2nd Parliament. Lieutenaiit-(iOvernhe Dominion, and, there- 38 VICTORIA, 1875. 7M \te of Canada. 4th Nov., 1876. ition of the pleasure f certified copy of n rvey of Lands in the but which I reserved 3ing yet crown lands 'roin acting as a sur- ified in the bill, irveying lands in the es who shall act as id to, be a conflict of of Dominion lands, rs for the admission would be two boards t with regard to sur- poly. lands in the province or secondly, qualified the provinces of tlie land surveyor in the •dly, beoomn nnalified 5ed, aftsr the passing lay be admitted as a ! in the field, with a thereafter undergoing eying lands in Mani- ther of the provinces, litoba, and to compel ovinces, to submit to [nation, thus in effect itoba, into the hands ig here to practise as ir the signification of irk that the question within the powers of J" the survey of lands I, with the exception )ominion, and, there- fore, it is to assumed, subject to their authority, as to the survey thereof as being " public property " with regard to which the Dominion possesses " the exclusive legisla- tive authority." I am disposed to think that it would be competf>r;t for the legislature to pass such an Act as the one proposed, if confined to the lands which have passed fron the crown to private owners in the province, but in view of the whole circumstances of the case I would desire to be advised as to the opinion of the Privy Council with regard to this importtuit question, in order that if the present bill he disallowed, the legislature may be guided in the framing of a new measure, should such be introduced next session. I have, dec, ALEX. MORRIS, Lientenant-Gove mo r. Report of the Hon. the Minister of Jnntice, approved hy flis E.i'cdiency the General in Council, on, the 7th February, 1S76. Governor Department of Justice, OrrAWA, 29th January, 1876. Upon the reserved bill of the legislature of Manitoba, intituled " An Act respecting Land .Surveyors and the Survey Lands in Manitoba," forwarded by the Lieutenant- Governor in his despatch of 4th November for the signification of the pleasure of his Excel- lency, the undersigned would refer to the approved report "^'f his predecessor, dated 24th September, 1872, upon a reserved bill from the same province, intituled " An Act respecting Land Surveyors," and also to the minute approving the report. The under- signed would also refer to the despatch of the 4th November, inclosing the Act now under consideration. The undersigned has caused communication to be had with the Minister of the Interior, who expresses the opinion that the bill is at present premature and unnecessary. Under all the circumstances appearing in the despatch and other papers herein- before referred to, the undersigned recommends that the Governor General's assent be not given to the bill in question. EDWARD BLAKE, Miyiister of Juntice. Lieutenant-Governor Morris to the Hun. to the Secretary of State for Canada. Government House, Fort Garry, Manitoba, 19th July, 1875. Sir, — I have the honour, in compliance with the request to that effect of the Minister of the Interior, to inclose a certified copy of an Act passed at the recent ses- sion of the legislature, to which I assented, and being intituled : " An Act to regulate proceedin<»s against and by the Crown." In assenting to the Act in question, I believed that it only alTected proceedings by and against the Crown, in so far as the same con- cerned the Crown in this province, with regard only to the provincial matters, and I still believe that the Act can only have that effect. Since assenting to it, however, the chief justice, in a judgment, as reported in the Nor" Wester, of the 5th July (a report which I believe to be authentic), in a case where he held that a person who had been recognized in a homestead, could not, under the special circumstances of the case, bring a suit for trespass, as the right "^f soil was in the Crown, used the following language : It was an easy thing for the Crown to put oft the defendant. All it had to do was to permit the plaintifl" to file an " information of in- trusion " against the defendant ; or the plaintiff, under the Act of the session of the Manitoba legislature, may now, with the consent of the Crown, obtained from the •96 MAMTOIiA LKOIMLATION Crown lands agent, brinf» an ordinary action of ejectment in the name of the Queen, againHt the defendant, just the same as any ordinary action of ejectment may he inclu- ded ii.nd conducted Ijetween individual subjects. I do not concu in this view of the Act. The Dominion lands belong to the Crown, and the Crown acting by the Privy Council and Parliament of Canada alone, has con- trol over them, and I do not think that the Provincial Act in question could apply to such lands. Moreover, under the terms of the Act, the Crown lands agent has no authority to allow a suit to be brought under it, as that power is expressly vested in the Lieutenant-(iovernor. Entertaining the view of the Act I do, I would not allow any matter affecting Dominion lands to be litigated under it, but as the matter is one of importance, I sub- mit it for the consideration of the Minister of Justice. I believe that the scope of the Act is a proper one, but that it only affects the Crown, in so far as under the distribution of powers as defined by the Confederation Act, the Crown acts through the provincial executive, and that my assent to it should, therefore, be confirmed. I have, &c., ALEX. MORRIS, Lieutenant-Oajernor. Report of the Honourable the Minister of Justice, approved by His Excellency the Gorernor General in Council on the 0th June, 1876. Department of Justice, Ottawa, 25th May, 1876. Upon an Act passed at the session of the hgislature of Manitoba, held in the month of April, 1875, chapter 12, intituled : " An Act to regulate proceedings against and by the Crown," the undersigned begs to report : That it appeal's from the despatch of the Lieutenant-Governor accompanying the Act, that since its passing the chief justice of Manitoba has judicially state follows • — " It was an easy thing for the Crown to put off the defendant ; all it had to do was to allow the plaintiff to file an ' information of intrusion ' against the defendant ; or the plaintiff, under the Act of the last session of the Manitoba legislature, may now, with the consent of the Crown obtained from the Crown lands agent, bring an ordiiiary action of ejectment in the name of the Queen against the defendant, just the same as any ordinary action of ejectment may be included and conducted between in- dividual subjects." The Lieutenant-Governor gives strong reasons for the view he himself entertains, that the Act in no particular affects the Crown in Canada, but only the Crown in Manitoba. The Act is similar in many respects to that passed by the legislature of Ontario in 1872, upon which, in January, 1873, the then Minister of Justice reported as follows : — " With respect to this Act, the undersigned recommends that the attention of the government of Ontario be called to the fact that it is so general in its terms, that it might be held to apply to claims against the government of the Dominion. " It is presumed that this is not the intention, as the second clause of the Act provides that the fiat for a petition of right must be granted by the Lieutenant-Gover- nor of the province. Now, it is obvious that in case of claims against the Dominion, the fiat should be granted by the Governor General. ' " The passing of a short Act removing the doubt is suggested." The Minister of Justice in that case recommended that the Act should be left to its operation, but it does not appear that the legislature took any action upon the suggestion made in his report. ^- le name of the Queen, ectiiienft may bo inciu- H belong to the Crown, Uanada alone, lian con- ueHtion could apply to lands agent has no cxprosHiy vented in the any matter aiTecting of importance, I sub- that it only affects the by the Confederation my assent to it should, [ORRIS, utetiant-Gajernor. >>/ His Excellency the 1876. L, 25th May, 1876. Manitoba, held in the te proceedings against rnor accompanying tlie 18 judicially statt; ".•' ndant ; all it had to do gainst the defendant ; itoba legislature, may I lands agent, bring an bhe defendant, just the conducted between in- he himself entertains, ut only the Crown in legislature of Ontario of Justice reported as iC the attention of the ■al in its terms, that it Dominion. id clause of the Act the Lieutenant-Gover- against the Dominion, i" ' the Act should be took any action upon With reference to the province of Manitoba the same doubt arises, and its oxistence is of intiniteiy greater conHeijuence, since the lands of Manitoba are lands belonging to the Crown in Canada, and the greater bulk of them are still ungranted, and consequently, should the doubt lie well founded, most serious conseciuonees might ensue. The observations of the highest legal authority of the province add also in this case to the difficulty of leaving the Act to its operation. It is to be observed that the Parliament of Canada in the Petition of Right Act passed during last session, 'ecited the intent of that Act to l)e, to make provisions for the institution of suits "against the Crown in Canada " by petition of right, and thus took pain to avoid the suggestion or reference to that Act of the doubt referred to. The undersigned inclines to the opinion that the view of the Lieutenant-Governor is correct, but having regard 1 1 Ihe judicial opinion already referred to, and seeing that but little or no inconvenience is likely to renult from the absence for a short time of legislative provision in the particulars dealt wilii by the Act, the undersigned is of opinion that the safer course is to exercise the power of disallowance. The provincial legislature will thus be free to pass a statute which, being confined in so far as it purports to authorize proceedings against the Crown to matters affecting the Crown in Manitoba, will avoid the suggested difficulty. With reference to that clause of the statute upon which the judicial opinion already referred to proceeded, namely, the 7th, it appears to the undersigned that although from the reasoning of that opinion would flow the results suggested by the Lieutenant Governor, yet other considerations arise as to the expediency of more extensive legislation and the competency of the provincial authorities to pass it, and the undersigned is of opinion that it would be advantageous in any fresh legislation upon this subject, if the provincial legislature should think fit, without attempting to withdraw any of the exist- ing rights as to procedure or otherwise o* the Crown in Canada, to authorize the Crown in Canada to proceed in Manitoba as the subject may, though it would not be competent for the provincial legislature to provide for the payment of cost of such proceedings by the Crown in Canada, the statutory arrangements for which purpose would no doubt be made by the Parliament of Canada. The undersigned on the whole recommends that the said Act be disallowed. EDWARD BLAKE. Minister of Justice. Order in Council disallorving the Act ahove mentioned, piMiahed in the Canada Gazette on the 10th day of June, 1876, Vol. JX., 'No. 60, page loQS] Lieutenant-Governor Morris to the Hon. the Secretary of State of Canada, Government House, Fort Garry, Man., 9th August, 1875. Sir, — I have the honour to inclose two advance copies of some of the more impor- tant statutes of the last session of the legislature of Manitoba, passed by them and assented to by me. With regard to the first of these, cap. 5, " An Act respectiag the Administration of Justice," I have to call attention to clauses 58 to 61, which I think are ultra vires of the powers of a local legislature, and trench on the powera of thii Dominion. The bill was prepared by the chief justice. I called the attention of the ministry and of the chief justice to my objection at the time, but the clauses were retained. As there was much of value in the bill, I did not think it desirable to reserve it, but determined to call the attention of the Minister of Justice to the clauses in question, as, if he shares my view, they can be repealed next session. I have, (fee, ALEX. MORRIS, Lieutenant-Governor. 798 MANITOBA LEGISLATION Report of the Hon. the Minister of Justice, approved by His Excellency the Ooverno General in Council, on the 16th August, 1876. Department of Justice, Ottawa, 3rd August, 1876. The undersigned has the honour to report, that by despatch received by the Sec retary of State on the 17th August, 1875, the Lieutenant-Governor of the province c Manitoba transmitted copies of some of the more important statutes of the then la8 session of the legislature of Manitoba. Upon these the undersigned has the honour to recommend that your Excellenc do not exercise the right of disallowance of the statutes undermentioned, that is to say Chapters 7, 8, 10, 11, 13 to 17, 19. The undersigned has the honour further to report upon, , Chapter 5. " An Act respecting the Administration of Justice." With regard to this Act, Lieutenant-Governor Morris calls attention to the clause 58 to 61 which he thinks are ultra vires of the powers of a local legislatur3, and trenc on the powers of the Dominion. He states that the bill was prepared by the chief justice, and that he (the Lieut( nant-Governor) called the attention of the ministry and the chief justice to his objectio at the time, but the clauses were retained. As there was much of value in the bill, he did not think it advisable to reserve i Sections 58 to 61, both inclusive, legislate as to the case of any person being i insolvent circumstances or unable to pay his debts, or on the eve of insolvency, givin a preference or priority under such circumstances, and of the fraudulent departing c property. The undersigned is of opinion that these sections entrench on the subject of inso vency, and are, therefoie, not within the legislative competency of the local legislature. Provision is made by the Parliament of Canada in the [nsolvent Act of 1875, 38t Vic, chap. 16, sees. 130 to 143, both inclusive, which provides very fully tor the clat of cases with which the Act of Manitoba has incorrectly dealt. As to sec. 60 of the Act of Manitoba in question, which provides a punishir.ent fc the fraudulent destruction or mutilation, or false entry in books of account, with inter to defraud creditors ; that savours of criminal law, and is dealt with by the Parliamei of Canada in the Insolvent Act, 1875, section 140. The undersigned is of opinion that this section, both on account of its being on tl "ubject of insolvency, and forming a portion of the criminal law, is not within the coi potency of a local legislature. The undersigned concurs in tha opinion of the Lieutenant-Governor, that there much of value otherwise in the Act, and he is averse, therefore, to recommend that t Act should be disallowed. He recommends, therefore, that the attention of the Lieutenant-Governor shou be called to the objectionable features of the Act, in the hope that his government w: take the necessary steps during the ensuing session to repeal the clauses referred that is to say, S^os. 58 and 61, both inclusive ; and that in this view the r?ght of di allowance of tl.is Act be not exercised. Chapter 6. " An Act respecting Grand Jurors." The undersigned has some doubt whether the subject of jurors is not a matter criminal law and procedure, and, therefor**, within the jurisdiction of the Parliament Canada. This Act of Manitoba, has a provision that no rjerson competent to serve as a grai juror, shall be exempted from serving by reason of his bein . a justice of the peace. By the Act of Canada 32 and 33 Vic, chap 39 (Criminal Procedure), sec. 44, is provided that every person qualified as a grand or petty juror in criminal cas( according to the laws then in force in any province, should be held to be duly qualifi to serve as such juror in that province, (fee. If there be any irregularity in the Act Manitoba, it is cured by the Act of Canada above alluded to. 8 Excellency the Governor 1876. ffk, 3rd August, 1876. )atch received by the Sec- overnor of the province of statutes of the then last lend that your Excellency rmentioned, that is to say : ustice." Is attention to the clauses local legislatnra, and trench and that he (the Lieute- lief justice to his objection it advisable to reserve it. case of any person being in eve of insolvency, giving e fraudulent departing of mch on the subject of insol- cy of the local legislature, [nsolvent Act of 1875, 38th les very fully tor the class .It. li provides a punishment for )oks of account, with intent 3alt with by the Parliament account of its being on the law, is not within the com- nt-Governor, that there is •re, to recommend that the lieutenant-Governor should le that his government will il the clauses referred to, lis vj«w the r?ght of dis- of jurors is not a matter of liction of the Parliament of mpetent to serve as a grand 1 justice of the peace, lal Procedure), sec. 44, it itty juror in criminal cases, »e held to be duly qualified 1 irregularity in the Act of 38 vicToiiiA, 1875. 799 The undersigned recommends, therefore, that your Excellency do not • xercise the right of disal owance of this last-mentioned Act. Chapter 9. *' An Act respecting the qualification of Justices of the Peace." The undersigned has the honour to report, that by section 16 of this Act, it is provided, that, " if the statement in any oath or in any declaration under oath, taken or made in pursuance of the requirements of this Act, be false to the kaowledge of the person making the same, such person shall be liable to a line of $250, or six months, imprisonment in the com.non jail in default of payment." The undersigned is of opinion that this is in effect perjury, and a bretch of criminal law, and is, therefore, not within the competency of a local legislature. The case is, indeed, pre- ided for by the Act of Canada, 1869, 32 and 33 Victoria, chapter 23, section 2. The undersigned, therefore, recommends, that t^e attention of the Lieutenant-Gov- ernor be called to this section, with a view to the repeal of the same, and that in this view the right of disallowance of this last-mentioned Act be not exercised. R. W. SCOTT, Acting Minister of Justice, Report of the Hon. the Minister oj Justice, approved by His Excellency (he Governor General in Council, on t'le 16th August, 1876. Department ot Justice, Ottawa, 5th August, 1876. Upon an Act passed by the legislature of the province c.l Manitoba, and assented to on the 14th May, 1875, being: — • Chap. 18, intituled : An Act respecting Estreats, Fines, Penalties and Forfeitures, the undersigned has the honour to report. That the first section provides that " all fines, issues, amerciaments, penalties anu forfeited/recognizances, set, imposed, lost or forfeited, by or before any court in the pro- vince of Manitoba, of superior or inferior ii-risdiction, or by or Ijefore any magistrate, mayor, coroner or justice of the peace, or by the mere operation of any law or statute in furce heretofore, now or hereafter in the said province, shall be paid over to the proviacial treasury of the said province by the person collecting the same, and shall form part of the annual revenue of the said province." The second and following clauses provide for the proceeding in case of the default of the recognizances, and how the same are to be estreated and put in judgment. It also provides in the 11th clause that thi; -i;eriff shall, without delay, pay over to the pro- vincial treasury of Manitoba all moneys by him made or collected under this Act. The 12th clause provides that with reapect to any fine, issue, amerciament, penalty or forfeiture, which is now or may hereafter become due and payable to the Crown within the province of Manitoba by the mere operation of any law or statute in force in the said province, heretofore, now or hereafter, it shall be sufficient for tlie clerk of the Crown and peace to take the necessary proceeding to estreat as therein provided. The undersigned has grave doubts whether the subject on which this statute treats is not, as to the whole, a matter of criminal pncedure, and, therefore, not within the competence of a local legislature. Without dwelling, however, upon that point, he observes that a definite provision is made by the first clause, that all fines, penalties, &c., set, imposed, lost or forfeited in the province of Manitoba, or by the mere operation of a'ly law or statute in force heretofore, now or liereafter, shall Xv paid over to the provincial treasurer, and shall form part of the annual revenue of the province. By the 11th clause the sheriff is to pay over all moneys received bji him in such respect to the treasurer of Manitoba ; and by the 1 2th clause provision is made as to such fines, penalties or forfeitures, as may now or hereafter become due and payable to 800 MANITOBA LEGISLATION k.-. \ the Crown within Manitoba, by the mere operation of any law or statute in force in the said province. This provision deals, therefore, with many matters which come within the exclusive legislative competence of the parliament of Canada. There are many fines, penalties or forfeitures in respect of which parliament has legislated and made provision, both as to the mode of recovery and the appropriation thereof, such for instance as in the Inland Revenue and Customs Act. In addition, also, as to pecuniary penalties and forfeitures, provision is further made as to their recovery and appropriation by the "Interpretation Act, 1867," Slst Vic, chap. 1, sec. 6, subsec. 22. The undersigned is, therefore, of opinion that the Act in question deals with mat- ters beyoii the competence of a local legislature, and he recommends, therefore, that the Act passed by the legislature of Manitoba in the 38th year of her Majesty's reign, chap. 18, intituled : " An Act respecting Estreats, l^^ines. Penalties and Forfeitures," be disallowed. / R. W. SCOTT, Acting Minister of Juatiee. Order in Council discdlowing the Act above mentiotied, published in the Canada Gazette on the 26th day of August, 1876, Vol. X., No. 9, page 217. Report of the Honourable the Minister of Justice, approved by his Excellency the Governor Generai in Council on the 7th October, 1876. Department op Justice, Ottawa, 6th October, 1876. With reference to the statutes of Manitoba, passed in the first session of the second parliament, 38 Victoria, 1875, the undersigned begs to report as follows : — Chapters 1, 3, 4, 23, 24, 25, 28, 29, 32, 34, 36, 38, 39, 40, 42, 43, 44, 45, 47, 48, 49, 51 and 52, do not appear to call for observation or for the exercise of the power of disallowance. Chapter 2. " An Act respecting the election of Members of the Legislative Assembly of the Province of Manitoba." The heading of the first part is " Parlia- mentary Electors," The same phrase occurs before the 12th section, and in the latter part of the 13th section, which provides that the list thereby established shall be the list of parliamentary electors for the electoral division. With reference to this phrase the undersigned refers to the report of the Minister of Justice, of 1st July, 1868, upon chapter 30 of Slst Victoria of the statutes of Ontario, in which report there is con- t.-'ined, with reference to the same phrase, the following observations : — " The 4l8t section of the Union Act provides that all the laws of the several pro- vince;" relating to parliamentary elections, in force at the time of the union, shall remain in force until the parliament of Canada otherwise provides. " If the clause in question is intended merely to apply to elections for the legisla- tive assembly of Ontario, it is inaccurate in expression. " To avoid confusion, the Union Act confines the name of parliament to the general legislature, the provincial legislative bodies are styled uniformly aa legislatures. " The undersigned recommends that the attention of the government of Ontario be called to this section, and suggests that the same should be amended so as to limit it expressly to elections for the legislature of Ontario." The undersigned recommends that the attention of the Lieutenant-Governor of M anitoba should bo called to the use of this phras^, with a. suggestion that it should be amended so as to limit it expressly to electors for the legislative assembly of Manitoba. Section 32. It may be questionable whether some falsifications of the electors' lists may not be crimes within the meaning of the law of Canada, in which it would seem ultra vires of the local legislature to de^ with them. 38 VICTORIA, 1875. 801 r statute in force in the )me within the exclusive which parliament has Y and the appropriation 8 Act. es, provision is further tatioQ Act, 1867," 31st lestion deals with mat- lends, therefore, that the er Majesty's reign, chap, es and Forfeitures," be TT, Minister of Justice. 'd in tlie Canada Gazette page 217. 8 Excellency the Governor 76. , 6th October, 1876. first session of the second « follows : — 42, 43, 44, 45, 47, 48, exercise of the power of jers of the Legislative bhe first part is " Parlia- lection, and in the latter established shall be the reference to this phrase of 1 St July, 1868, upon ich report there is con- itions : — laws of the several pro- )f the union, shall remain elections for the legisla- sarliament to the general Y as legislatures. )vernment of Ontario be amended so as to limit it Lieutenant-Qovernor of jestion that it should be B assembly of Manitoba, ions of the electors' lists in which it would seem In sections 33 and 34, and in other parts of the Act, is used the phrase " parlia- mentary electors " already referred to. Section 166 amongst other things embraces a penalty for the offence of forgery, and is so far ultra vires. Subsection 3 imposes a penalty for the offence of destroying, taking, opening or manipulating, without authority, any ballot box or parcel of papers used or to be used at an election, or attempting to commit such an offence. These may be criminal acts within the meaning of the criminal law of Canada, the Act relating to malicious injury to property, 32 and 33 Victoria, chap. 22, sec. 59. Sections 185 and 205 may also to some extent touch upon the criminal law. Sections 206 provides punishment for the offence of inducing any one to take a false oath. This is clearly subornation of perjury, a criminal offence under the law of Canada, and provided for by 32 and 33 Vic, chapter 23, and the legislation seems ultra vires. Section 235. Some of the provisions in this section seem also to trench upon the criminal law. Section 237 provides that every punishment, by way of line or imprisonment, imposed by the Act shall be in addition to any punishment that may be inflicted by the parliament of Canada for the same offence. This section, in terms, acknowledges that some, at any rate, of the acts which are to be punished under the law, are crimes within the criminal law, and that the legislation is, therefore, ultra vires. The undersigned observes that prior legislation of the other provinces has, although objectionable in some of the particulars to which he has called attention, been suffered to pass without observation, and, upon the whole, he does not recommend the disallowance of this Act. There is, however, a growing tendency towards the invasion of the criminal law by local legislatures which is obviously objectiorable, and he suggests that the attention of the Lieutenant-Governor should be called to the Act now under consideration, with a request that he would move his government to recom- mend to the legislature a measure repealing such sections as trench upon the criminal law. Chapter 20. " An Act respecting the storage of Gunpowder inland near the incor- poratf^d Towns and Cities in the province." This Act involves some questions which have been raised with reference to other Acts left to their operation, and the undersigned recommends that the same course should be pursued with reference to this Act. Chapter 21. " An Act respecting Building Societies." The second section of this Act provides that : " Every such society may receive from any member any sum of money by way of bonus on any share for the privilege of receiving the same in advance, prior to its being realized, besides interest for the share so received or any part thereof, without being held thereby to contravene any law relating to usury." Section 1 1 authorizes loans or advances to members or other.", and the receipt of bonuses, besides interest, without being subject, on account thereof, to any forfeiture or penalty, and is open to the same objection. Section 16. This section provides that if any person having in his possession, by virtue of any oflice to which he is appointed by a society, any of its moneys or effects, becomes bankrupt or insolvent, his assigns or other persons having the legal right, shall, within fifteen days after demand, deliver offer all things belonging to the society, and pay out of the estate's assets or effects of the person, all sums of money remaining due, which such person received by virtue of his office before any of his other debts are paid or satisfied, and that all his assets, estates and effects shall be bound to the payment and discharge thereof accordingly, except that the same shall not be paid or satis*' td to the prejudice of mortgages or privileges on real estate, or of heirs or privileges on personal estate only, duly executed previous to the appointment of such officer. This section appears to affect the law of insolvency, and is on this gn>und objectionable. 802 MANITOBA LEGISLATION Section 17 provides that all property, etc., of the society shall, for all purposes of action or suit, civil or criminal, be taken to be the pi'operty of the society, and that the society may, by its n^me, Vjring criminal prosecution. This action appears objectionable, as trenching upon criminal law. Section 18 makes the secretary of the society a competent witness in all actions, suits and prosecutions to which the society is a party, and is objectionable on the same ground as the former section. The undersigned recommends that the attention of the Lieutenant-Governor of Manitoba should be called to these observations, with a view to the repeal of the objec- tionable clauses. Chapter 22, section 26, appears wide enough to empower the Lieutenant-Governor to authorize the removal from the province of a criminal confined in jail for crime, or sent after conviction to an asylum for the insane, and so is objectionable, as trenching on the criminal law. The undersigned recommends that the attention of the Lieutenant-Governor should be directed to this clause, with a view to its amend- ment. Chapter 27. "An Act to further amend the Act to establish a system of Education in this Province." Section 1 1 provides that if a school trustee or other person knowingly signs a false report, or if a teacher keeps a false school register, or makes a return, with a view of obtaining more than a just proportion of school moneys, he shall forfeit $20 and be liable to imprisonment in the common jail. This seems rather to trench upon the criminal law, as being an attempt to commit the crime of obtaining money under false pretenses, and would, of course, apply to a case in which that crime had been actually committed. Similar provision has, however, been permitted to pass without objection in the case of another province, and the undersigned, under the circumstances, recommends that the attention of the Lieutenant-Governor should be called to the section, with a view to its amendment. Chapter 30. " An Act to amend the Act of 1873, to regulate the sale and traffic of Intc.ioating Liquors." Some of the provisions of this statute may be open to the objections which have been taken in the case of an Act upon the same subject, passed by the legislature of Ontario. These objections are still suh jiidice, and the Act referred to having been left to its operation, the undersigned recommends that a similar course be taken in this case. Chapter 31. "An Act respecting Municipaiities." Section 20 exempts certain classes of real estate from municipal taxation. Amongst them is (subsection 1) " real estate vested in or held in trust for Her Majesty, or for the public uses of the province ; " and (subsection 5), " the following property of the Canadian Pacific Rail- way Company, the buildings, except the lands granted or to be granted by the govern- ment in aid of the said railway." It is presumed that this clause is not intended to apply to lands for the purpose of the grant in aid of the construction of tho work, and not yet granted. It would be objectionable to permit the taxation of tht' lands between the period of their appropriation and their grant to the company. Section 39. Subsection 12, appears to admit the transfer upon a ta.x sale to the purchaser, of the rights of the holder or other persons, in lands sold for taxos before the issuing of letters patent from the Crown granting the same. This would not be objectionable in cases in wlnfch the rights of the holder or other persons are recognized by the Crown to be transferable ; but if it is intended to extend to canes in which no right to transfer is recognized by the Crown, it might be objectionable. It is not presumed that such can h". the intention, and, upon inquiry from the Minisvjr of the Interior, it appears >hat the only possible evil which can arise is in cases of homestead entries, and as to these the law regulating them provides that all assignments and transfers are null and void, and are to be deemed evidence of the abandonment of the right. It appea,rs to the undersigned that the Crown can, notwithstanding the local Act, resume possessions of any land of which possession ihall, for aJl purposes of he society, and that the in appears objectionable, witness in all actions, jjectionable on the same Lieutenant-Governor of the repeal of the objec- le Lieutenant-Governor Hned in jail for crime, so is objectionable, as lids that the attention th a view to its amend- 3h a system of Education rson knowingly signs a makes a return, with a ys, he shall forfeit $20 > rather to trench upon obtaining money under h that crime had been ermitted to pass without u tider the circumstances. Id be called to the section, ite the sale and traffic of e objections which have id by the legislature of referred to having been ir course be taken in this on 20 exempts certain hem is (subsection 1) • the public uses of the e Canadian Pacific Rail- s granted by the govern- clause is not intended onstruction of th(i work, le taxation of tho lands e company. upon a tax sale to the ds sold for taxes before lame. This would not r or other persons are tided to extend to cafes might be objectionable, ipon inquiry from the evil which can arise is g them provides that all deemed evidence of the that the Crown can, nd of which possession 1 38 VICTORIA, 1875. 803 may be taken by a purchaser under colour of this clause, and he recommends that it should be left to its operation. Chapter 35. " An Act to amend the Registry Act." This Act recites that the 43rd section of the Act 36th Vic, chap. 18, does not express the true meaning of the legislature in that behalf, and that it js expedient to amend it. The 43rd section in question provides that "after any grant from the Crown of lands in Manitoba, and letters patent issued therefor, every instrument aflPecting the land?, or any part thereof, comprised in such grant, shall be adjudged fraudulent and void against any subsequent purchaser or mortgagee for valuable consideration, unless such instru- ment is registered in the manner herein directed, before the registering of the instru- ment under which such subsequent purchaser or mortgagee may claim." The amending clause provides that any instrument mentioned in the 17th clause of the original Act, registered in pursuance of the Act affecting any lands, whether there has been any grant from the Crown of such lands or not, shall be adjudged fraudulent and void against any subsequent purchaser, unless registered as in the Act provided. This ap- pears to be a direct interference with the devolution of title to lands before patents are issued. When the lands are the property of the Crown in the province, the legislation would be within the competence of the local legislature, and might be beneficial ; but the position of Manitoba is, in this respect, exceptional. The lands, until patents are issued, are the property of Canada, and the provisions as to assignments, itc, of un- patented lands, ought to he made by the Canadian parliament. The undersigned has called the attention of the Minister of the Interior to the (juestion of the practical oper- ation of the Act, and the minister is of opinion that, in the case of persons owning and transferring rights in unpatented lands, a provision such as that in the local Act, would be required for the protection of the purchaser ; and he points out that a person so purchasing, after registering his assignment, would, he presumes, send the same forward to his department, in order that the patent, if in time, might be issued in his name. The Act contains many other provisions, and its disallowance would probably be productive of confusion. Since its objects are such as the ministers would be prepared to recommend to the Canadian Parliament, the undersigned recommends that it should be left to its operation, the attention ot the Lieutenant-Governor being called to the diffi- culty, with the suggestion that the clause should be repealed, and an intimation that Parliament would be invited to legislate on the subject. Chapter 41. " An Act respecting County Municipalities." Some of the provisions of section 1 1 may be open to question as being ultra vires ; but similar legislation having alrjady taken place in another province, the undersigned does not recommend any interference. Section 24, subsection 1, requires persons challenged at the polls to make a declara- tion. Subsection 3 provides punishment for a false declaration so made. This seem to come within the criminal law, whereby declarations required by statute, if false, are punishable as forgery. The undersigned recommends that this section be called to the attention of the Lieutenant-Governor, with a view to its amendment. Section 172, subsection 12. This section is subject to the sa-ne objections which hr*ve heen already made with reference to chapter 31, section 39, subsection 12. Chapter 46. *' An Act to incorporate the Manitoba Western Railway Company." It is to be observed that the local legislature has no power to authorize the company to «nter, without the assent of the Crown, upon lands vested in the Crown. The Act does not, however, expressly purport to give such authority, and it seems unnecessary to do more than make this observation. Chapter 50. " An Act relative to the City of Winnipeg." To section 14 of this Act, several observations made upon chapter 2 are applicable. EDWARD BLAKE, Minister of Justice. -.., i 804 Manitoba legislation Report of the Jlonoiirable the Minister of Justice, approved by His Excellency the Governor General in Council, on the 7th October, 1876. Department of Justice, Ottawa, 7th October, 1876. Statutes of Manitoba passed in the year 1875, 38th Victoria : — Chapter 33. " An Act to afford facilities for the construction of a Bridge over the Assiniboine River, between the City of Winnipeg and St. Boniface West." This Act provides for the granting of a license for the construction of the proposed bridge, the license to extend over a period not exceeding twenty years. The third section provides that the Lieutentant-Governor may require the bridge to be constructed with a draw therein, po as to permit the passage of steam and other vessels in the River Assinilwine. The Act thus admits that the river is navigable, and that, under its provisions, navigation may be obstructed. In response to an application by the undersigned, the Minister of Public Works reports that the project has been so far entertained foi' making the Assiniboine a channel for reaching Manitoba Lake and the Saskatchewan River, as to send an engineer to examine the country between the said lake and the Assiniboine ; that the project is quite feasible, and could be accomplished at very little cost ; and that if accomplished, continuous navigation would be had by that route to all points on Red River and Lake Winnipeg. The minister is disposed to advise that under these circumstances the Act should be disallowed, and that any authority which may be required for bridging the Assiniboine at any point east of Portage la Prairie, should be obtained from the Dominion legislature. L'pon communication with the Lieutenant-Governor of Manitoba, it has been ascertained that no action has been taken by the government of that province upon the authority conferred by the Act. The Uiidersigned recommends that the Act in question be disallowed. Chapter 37. •' An Act to amend Cap. 46, Vic. 37, intituled : ' The Half-breed Land Grant Protection Act.'" The Act by this statute amended was reserved, and the assent was given by his Excellency in Council, in pursuance of a report of the then Minister of Justice, point- ing out that its operation was, on the whole, beneficial to the half-breeds . The present Act modifies the provisions of the fc^rmer one in some material particulars ; but not to the advantage of the half-breeds. It provides that when a half-breed, having sold his interest, and received therefor a consideration, shall return or tender to the purchaser the full consideration and the purchaser's expenses with interest at 12 per cent per annum, within three calendar months from the passing of the Act, the agreement shall not be binding ; otherwise the bargain, if in writing, shall be valid, and the half-breed shall assign the granted lands within three monthd after the receipt of the patent from the Crown. It repeals the second section of the former Act. It provides that notice of the passing of the Act shall be given in the Manitoba Gazette for three m nths after its being assented to by the Crown. The undersigned referred to the Minister of the Interior for his view of this Act, and his report is as follows : — " The undersigned having failed to find in Ottawa any evidence of compliance with the 3rd section of the Act, referred for information on this point to the Hon. Mr. Royal, Attorney-General of Manitoba, now here, who states that no notice of the passage of the Act in question was given, and that the same has not been concidered as in force in the province. " This notice was evidently intended for the information of the half-breeds who may have sold their claims in order that they might redeem them if so inclined, in manner as pointed out in section 1 of the Act ; but it was not given, Mr. Royal says, in consequence of a doubt on the part of himself and his colleagues, whether the Act would be allowed by the Governor General. 38 VICTORIA, 1875. 805 y His Excellency the 1876. th October, 1876. 1 of a Bridge over Lhe ce West." ruction of the proposed years. ay require the bridge ge of steam and other under its provisions, ster of Public Works :ing the Aasiniboine a ', as to send an engineer ine ; that the project is i that if accomplished, n Red River and Lake circumstances the Act lired for bridging the I be obtained from the Manitoba, it has been )f that province upon [sallowed. ' The Half-breed Land lent was given by his lister of Justice, point- ,lf-breeds . The present particulars ; but not to , and received therefor consideration and the within three calendar binding ; otherwise the jsign the granted lands Crown. It repeals the le passing of the Act jeing assented to by the ir his view of this Act, Bvidence of compliance point to the Hon. Mr. that no notice of the 1 not been considered as of the half-breeds who them if so inclined, in iven, Mr. Royal says, in ^ues, whether the Act " Under the circumstances the undersigned recommendn that the Act be disallowed, especially as in his opinion the original Act 37 Vic, chap. 46, alluded to, afforded all necessary protection to the purchase of half-breed land rights." Under the circumstances stated in thjs report, the undersigned concurs in the recommendation of the Minister of the Interior, that the Act should bo disallowed. Chapter 26. " An Act to amend the Act intituled : ' An Act for the protection of the Wood Ijands of the Province.' " This Act makes it an oHence punishable by a penalty not exceeding !g200, and in default of payment imprisonment not exceeding two months, to burn or set fire to any trees or timber on any lands in the province. The provisions being nmch more rigorous than those which had been enacted in the province of Quebec, or previously in the province of Manitoba, the undersigned caused inquiries to be made of the Minister of Public Works and of the Minister of the Interior as to their view of the operation of the statute with reference to the Dominion public works in the province, and to the settlement of Dominion lands in the province. The Minister of Public Works reports that most of the Pacific Railway proper, within the boundary of Manitoba, is on prairie land ; that the woodland portion is already cleared and burned ; and that it, therefore, does not seem necessary to object to the Act on account of any inconvenience which might result to contractors or others on the railway line, and that the measure cannot interfere with any other works now in progress or likely to be undertaken. The Minister of the Interior reports that if enforced by the province the law would prevent entirely the clearing up and bringing into cultivation any land covered with timber to market, that there are, perhaps, few, if any, parts of the province where heavy timber might not be sold more or less to advantage, but the effect of the local Act proposed would be to prevent, under any circumstances, the burning on the land of refuse timber or even perhaps of brush. No legal question is involved, and the undersigned submits these opinions for the consideration of Council as to the course to be taken with reference to this Act. EDWARD BLAKE, Minister of Justice. Orders in Council disallowing chapters 33 arid 37, published in (he Canada Gazette on the 14th day of October, 1875, Vol. X., No. 16, pages 487-484. 61 J' 806 HANITOUA LEGISLATION MANITOBA, 39th VICTORIA, 1876. 2nd Skssion — 2nd Pahliament. Lieiitenomt-Ooverncyr Mwris to the Hon. the Secretary oj State of Canada. Government House, Foht Garry, Man., J2th February, 1876. Sir, — I have the honour to inform you that an Act, having for its object the abo- lition of the upper House, has been passed by both branches of the legislature, and was assented to by me on the 4th instant. The first suggestion of this measure was made by yourself, in your despatch of the 8th May, 1874, addressed to the Honourable Thomas ioward and Joseph Royal, dele- gates from the Executive Council to confer with the Privy Council. Subsequently, on the formation of a new government by the Honourable M. A. Girard, in July, 1874, it was announced by him to the legislative assembly, when explaining the policy of the new government, that they designed to abolish the upper chamber. A bill was thereafter introduced, with that end in view, in 1874, and was adopted by the assembly without a division, but was rejected by the upper House by a vote of four to three. Shortly prior to the general election of 1875, the Honourable R. A. Davis was called upon to form a government, on the resignation of the Honourable Mr. Girard, and in his address to the electors of the city of Winnipeg, published in the newspapers of the province, an announcement of his determination to carry out the abolition of the upper chamber was mivde, while the general election was in progress. The measure was again introduced during the first session of the second legislature, in 1875, but was again defeated by a vote of the legislative council of four to three. Thus the matter remained, until the recent visit of Honourable Messrs. Davis and Royal to Ottawa,, to confer with the Privy Council respecting the financial position of the province. Amongst the results of that conference was the following suggestion made by the Honourable Edward Blake, Minister of Justice, in a memorandum dated the 25th of October, 1875, submitted to and adopted by the Privy Council on the 26th October, 1875, viz. : — " Even if more radical changes be made, it appears to the sub-committee that the present form of government should be simplified and cheapened by the abolition of the second'chamber, and the material reduction of the other expenses of government and legislation, and that (in case it is proposed to expend a sum larger than that which may be available from the Dominion) provision should be made for supplementing the revenue from local resources to the necessary extent, so as to avoid future deficits." This suggestion was accepted by the Honourable Messrs. Davis and Royal, by a letter dated 27th October, 1875, and in pursuance of the understanding thus arrived at, a meo&ure to abolish the legislative council was introduced in the legislative assembly at its recent session. The second reading was carried on the following division : — Yeas. — Messrs. Bird, Bourke, Brown, Cornish, Chenier, Cowan, Davis, Dick, Girard, Gunn, Lemay, Luxton, Lepine, McKay, Murray, McKenzie, Norquay, Nolin, Royal, Taylor.— 20. JVoy«. — Mr. Sutherland. — 1. The Honourable Mr. Howard was necessarily absent, but would have voted yea. Mr. Martin was absent from the province, and the speaker was in the chair, the whole House being thus accounted for. i76. State of Canada. th February, 1876. ig for its object the abo- the legislature, and was in your despatch of the and Joseph Royal, dele- ncil. the Honourable M. A. islative assembly, when ned to abolish the upper 1 1874, and was adopted pper House by a vote of durable R. A. Davis was Honourable Mr. Girard, lished in the newspapers rry out the abolition of progress. of the second legislature, uncil of four to three, irable Messrs. Davis and the financial position of suggestion made by the dum dated the 25th of !il on the 26th October, 9 sub-committee that the id by the abolition of the inses of government and ger than that which may ! for supplementing the void future deficits." 3. Davis and Royal, by a "Standing thus arrived at, the legislative assembly r. Cowan, Davis, Dick, Kenzie, Norquay, Nolin, t would have voted yea. %s in the chair, the whole 39 VICTORIA, 1876. 807 On reaching the upper House the Honourable Dr. O'Donnell moved the rejection of the bill at its third reading, with the following result ; — Yeas. — Honourable Messrs. O'Donnell, Hamelin, Dauphinais. — 3. Nays. — Honourable Messrs. Inkster, McKay, Gunn, Ogletree. — 4. The bill was thereafter passed, the Honourable Dr. O'Donnell entering a protest on the Journals. Having thus narrated the course taken during the past two years in relation to this Act, I now proceed to make some observations respecting it. 1 . I have felt much embarrassment in dealing with its sanction or reservation, as I um entirely without instructions as to my duty in assenting to or reserving bills. Apart from my personal opinion, which is, in view of practical experience of the past sessions, that the time had not yet fully come when the upper chamber could be prudently abolished, I had a legal difiiculty to consider, which I will hereafter state. But before passing to this, I would remark, that we have in the assembly no men of parliamentaiy training and experience ; that the population of the province is mixed, embracing the three elements of : Istly, English half-breeds and Selkirk settlers ; 2ndly, French half-breeds ; and 3rdly, the new settlers from Ontario, all of whose views and opinions are diverse. That the government has no attorney-general, and that there is danger of hasty and crude legislation being rapidly passed through a single chamber (constituted as that of Manitoba) which may lead to embarrassment and difiiculty. I am of opinion, therefore, that I should be instructed hereafter to reserve for the assent of his Excellency the Governor General, all bills that may involve any change of the constitution created by the Manitoba Act of 1870, and that I should also receive instructions as to any other class of bills which, in the judgment of His "Excellency in Council should be reserved. Hitherto, I have acted to the best of my judgment, con- ferring with my council, and endeavouring to examine the legislation, in the light of the British North America Act, with regard to the local and Dominion powers. 2. I now come to the legal question, which I had to consider, and with regard to which, not having come to any positive conclusion, and regarding the report of the Minister of Justice, adopted by the Privy Council, as an expression of their opinion on the general merits of the measure, I believed that my best course was to accede to the wishes of the Local and Dominion governments, and assent to the bill, respect- ing, however, my obligation to express, as I am now doing, my personal views with respect to it, and requesting the Privy Council and Minister of Justice to consider the question, when deciding whether the Act shall be left to its operation. Had I had to deal with the British North America Act alone, which, by the Manitoba Act, section 2, is incorporated therewith, I should have experienced no difficulty as to the constitutionality of an Act to abolish the upper House. As the 92nd section of the British North America Act, in defining the powers of the provincial legislatures, expres^y confers upon the legislature in each province " the exclusive right to make laws " in relation to the amendment, from time to time, notwithstanding anything in this Act, of the constitution of the province, except as regards the office of Lieutenant-Governor. The Manitoba Act of 1870 was, however, confirmed by the Imperial Act of 1871, 34 and 35 Vic, cap. 28, the 6th clause of which is in the following words : — " Except as provided by the third section of this Act, it shall not be competent for the Parliament of Canada to alter the provisions of the last-mentioned Act of the said Parliament, in so far as it relates to the province of Manitoba, or of any other Act hereafter establishing new provinces in the said Dominion, subject always to the right of the legislature of the province of Manitoba to alter, from time to time, the provisions of any law respecting the qualifications of electors and members of the legislative assembly, and to make laws respecting elections in the said province." The exception mentioned in this section is the power of enlargement or diminution of a province with its consent. The object of the section was evidently to place the constitution of Manitoba (it having been enacted by a Dominion Act) in the same position as the constitutions conferred on the other provinces, by the Imperial Confederation Act, so that it could only be altered by Imperial legislation, and not by Canadian. 51J 806 MANITOBA LKdlHLATIOV Hence, the positive derlaration that the Parliainont of Canada cannot alter the Manitoba Act, except in the cose of the enlarjjement or tliniiniition of the province ; following this declaration is, however, a reservation of powers to the Manitoba legis- lature, in the following words : — "Sul)jeut always to the right of the legislature of tlie provincf of Manitoba to alter from to time tho provisions of any laws respecting the qualification of electors and members of the legislative assen>bly, and to make laws respecting elections in the said province." In view of this exceptional declaration of jjower in the Manitoba legislatuie, to alter the Manitoba Act, the question of interpretation which arises is this : Does the section, above cited, granting anil specifying a particular power to and in the legislature of Manitoba, modify and exclude the general power to alter the constitution contained in the 92nd section of the British North America Act / It may be asked if tlm Uritish North America Act confers the general authority to deal there- with, why was the affirmative gmnt of the apeciid powers necessary to be inserted in the Act of i»7n The other aspect of the case would be to hold that the Acts of 1867 and 1871 are to be read as one, and that the conferring of the special authority above referred to, was a mere enumeration of the specified powers thereby conferred, and does not exclude the general power granted by section 92 of the Act of 1867. The question is rn interesting and important one, and being without the means of access to a legal library, I have not had the opportunity of fully studying it, but submit the views that have presented themselves to me, for the maturer consideration of the Minister of Justice, when, in the course of his official duties, he is called upon to report to the Privy Council whether the Act shall be left to its operation or not. In order to facilitate an early disposal of the matters, I inclose a iluly certified copy of the Act, and shall be glad to be advised of the decision of the Privy Council with regard thereto. I have, (fee, ' ALEX. MORRIS, Lieutenant-Governor. Lieutena7it-6overnor Morris to tlie Hon. the Secretary of State of Canada. Government House, Fort Garry, Man., 15th February, 1876. Sir, — I have the honour to inclose herewith, for the information of the Privy Council, a certified copy of an Act of the legislature of Manitoba, respecting the practice of the courts, which I assented to on the 4th inst. I am requested by the Executive Council of Manitoba to call your attention to the 14th section of the said Act, which is designed to lomedy difficulties, which have arisen as to the holding of the county courts. Before the arrival of the chief justice in Manitoba, an arrangement was come to between Judges McKeagney and fietournay, with my approval, that the two county courts in the French-speaking counties of Provencher and Marquette East, should be held by Judge Betourney. Of late, misunderstandings have arisen bet'.Vden tbr judges, as to the holding of the various county courts. They do not confer together and arrange who should hold them. As I failed in arriving at any arrangement otherwise, the council decided on regulating the matter by legislation, and hence the' clause in question was adopted, As, however, the appointing power, as to the judges, is in the Governor General in Council, and as possibly the directing them to hold particular courts might be held to interfere with that power, the exercise of the authority of direction, was made subject to the approval thereof by the Privy Council. ^-- 39 VICTORIA, 187C. 809 lumda cannot alter the lutiuti of the province to the Manitoba legis- ovincf of Manitoba to ification of electors and noting olectionH in tli hinitoba lefjislature, to st's is this )articuiar power tr) and power to alter the America Act? It may lutliority to deal thero- ry to be inserted in the ts of 1867 and 1871 are y above referred to, was nd does not exclude the f,' without the means of studying it, but submit rer consideration of the is called upon to report on or not. ose a rt of (he Hon. the Minister of Jnntice, n/iprored liy His Excellency the Governor General in Council, on tin' 2lHh April, 187(1. Defaktmknt of Justice, Ottawa, 15th April, 1876. The undersigned has liad under consi. — "An Act to provide for the appointment of a Fire Comminsioner for the cities and towns in Manitoba, and to deKne his powers and duties." Section !) appears to trench upon criminal procedure, and the attention of v.*ii Lieutenant-iiovernor should bo called to the ditKculty. Chapter 7. — " An Act to make better provision for the securing of order at muni- cipal elections and for other purposes." iSections 1, 2, 4 and 5 appear to trench upon criminal law and procedure, but similar provisions have been left to their operation in other cases, and the undersigned merely recommends that the attention of the Lieutenant-Governor should be called to them. Chapters. — " An Act to provide for the incorporation of Mutual Fire Insurance Companies in the Province of Manitoba." This Act does not, as clearly as might be wished in terms, confine the business within the range permissible to provincial companies, and, though the implication from the various provisions is, pei-haps, sufficiently strong, yet it might he better that express language shiiulfl be used limiting the business in a provincial business. Section 71. — This section applies the previous section to every fire insurance com- pany, by whatever authority incorporated, and now, or at any time liereafter, transact- ing fire insurance business in the province. The previous section requires companies afTectcd by it, to give very full returns of various matters affecting its business, and, further, when required to make prompt and explicit answer in reply to any inquiries in relation to its transactions which may be required by the Lieutonant-(iiovernor in Council. The undersigned submits for the consideration of council how far it is proper that the companies incorporated under the authority of the legislature of Canada, should be subject to these regulations ; and he recommends that the attention of the Lieutenant- Governor should be called to this point. Section 72. This appears objectionable, as being in effect a provision for a decla- ration of the insolvency of the company and for the winding-up of its affairs. The atten- tion of the Lieutenant-Governor should be directed to the Act, with a view to its amend- ment during the ensuing session, before the time for disallowance is reached. Chapter 9. — "An Act respecting the Public Works of Manitoba." Section 8 places under the provincial Department of Public Works, amongst other things, works for improving the navigation of any water, and other similar subjects. It exclude-i, however, such as may be undev the control of the Dominion Government, and this phrase, though not strictly accurate, probably obviates the necessity of objection to the clause. Section 31 prdvides that, whenever it is ascertained that there exists or has been constructed across any river, any boom, mill-dam, embankment or obstruction, obstruct- in;^ the navigation of the river, the minister shall have power to stop the obstruction. It would be well that this power should be so limited, as not to trench upon the authority of Canada. The undersigned suggests that the attention of the Lieutenant-Governor should be called to the section in this view. Chapter 10. — " An Act concerning the opening of certain Public Roads." The undersigned defers for the present his report on this Act. Chapter 11. — " An Act respecting the Bureau of Agriculture and Statistics." This Act creates a bureau of statistics. 812 MANITOBA LEGISLATION Observation has been made on former occaiiona upon t'le infringement by provin- cial legislation on the subject of statistics, but that infringement having been repeatedly permitted, the undersigned recommends that the same course should be pursued on this occasion. Chapter 12. — "An Act resp3cting the Legislative Assembly." The undersigned appends a copy of his report upon a similar Act recently passed by the legislature of Ontario, which report is applicable to the statute now under consider- ation. EDWARD BLAKE, Minister of Justice. Ontario Statute. Chapter 9. — " An Act i-especting the Legislative Assembly." (For copy of the extract alluded to, see page 146). Report oj the Hon. the Mitiisti',- of Justice, apjji'>vtdhy Els Ei-celh'twy thf Governor Gent.ral In f-.incil, ot>. the 9tii November, 1S76. Dei-aSTMENT of Justice, Ottawa, 4th November, 1876. With reference to chaptor 10 of the Act.s of the legislature of Manitoba, 39 Victoria, 1876, intituled: "An Act con- erning the opening of certain Public Roj,ds," the undersigned begs to report that this Act concerns the opening of certain public roads, and provides tor the opening of r^juna 'joi.wccn the surveyed townships, and any greafhighways, or any gr >at rivers. The undersigned has caused inquiry to be made of the Min's^ei of the Interior, ps to whether there is, in his opinion, any ohjection to leaving this statute to its operation. The opinion of the minister is, that there is no such objection, and the undersigned recommends tiiat the power of disallowance be not exercised. EDWARD BLAKE, Minister of Justice. Report of the Hon. the Minister of Justice, apprm'ed hy His Excellency the Governr- General in Council on the '^2nd May, 1877. Department OF Justice, Ottawa, 7th May, 1877. Referring to the rep^irt of the Minister of Justice, dated i8th October 1876, upon the statutes of the province of lilanitoba, 39th Victoria (1876), I hej, to report : That with regard to section 72 ci chapter 8, intituled : " An Act to provide for the incorporation of Mutual Fire In.-iurauc'i Companies in M" Jtoba," it was pointed out that such section was objectionable, as being in eflfect a provision for a declaration of the insolvency of the crfmpany, and for the winding-up of its affairs, and it was recommended that the attention of th^ Ijieutenant-Governor should l>e directed to the Act, with a view to its amendment during the ensuing session, before the time for disallowance was reached. No action having been taken by the legislature of the province with a view to repealing the objectionable clause, the Lieutenant-Governor was conmiunicated with on the 3rd instant, by the Secretary of State, by telegraph, as follows : — " Referring to letter and inclo^ures of 27th October last, was seventy-second section of Insurance Act amended as suggested in report of Ministrir of Justice ^ 39 VICTORIA, 1870. 813 e infringement by provin- snt having been repeatedly should be pursued on this ibly." ilar Act recently passed by atute now under consider- ARD BLAKE, Minister of Justice, " If not, do you propose to address any observation on subject before time for disallowance arrives ?" i i r n In reply, the Lieutenant-Governor, on the 5th instant, telegraphed as follows .— " Attorney General writes the section seven Insurance Act you cite was overlooked, but will be repealed next session, if Act not disallowed," and in a subsequent telegram from the Lieiit^nant-Governor, on his attention being called to the fact that the section mentioned in hia previous telegram was " seven," he says— " Section f eventy-two was the one referred to." , ^, ^ ^u Reiving U'jon the assurance of the Lieutenant-Governor, I recommend that the power of disalli wance be not exercised, but that the Act be left to its operation. A. J. SMITH, Acting for Minister of Justice. 3ly." Is Ei-celli'iK'y thf Gorcvnor 1S76. 4th November, 1876. egislature of Manitoba, 39 of certain Public Roj,ds," )ptning of certain public rveyed townships, and any lin'h^ei of the Interior, ps lis statute to its operation, ion, and the undersigned ID BLAKE, Minister of Justice. Excellency the Governr:' 877. DAWA, 7th May, 1877. ated i8th October 1876, ia (1876), I he£, to report : : " An Act to provide for M" Jtoba," it was pointed rovision for a declaration of its affairs, and it was - should l>e directed to the sion, before the time for by the legislature of the the Lieutenant-Governor J of State, by telegraph, last, was seventy-second linistrir of Justice ^ 814 MANITOBA LEGISLATION MANITOBA, 40th ^VICTORIA, 1877. 3rd Session — 2nd Parliament. Lieutenant-Governor Morris to the Secretary of State of Canada. Government House, Fort Garry, Man., 11th Feb., 1876. Sir, — I liave tho honour to inclose, herewith, a certified copy of a bill passed by the legislature of Manitoba, at its recent session, intituled : " An Act to incorporate the Manitoba Investment Association, Limited,' but which I reserved for the significa- tion of the pleasure of his Excellency the Governor General. My reasons for reserving this bill were, that it seemed to me that the powers con- ferred upon the association by the 5th section were beyond the authority of the local legislature to confer, inasmuch as the Parliament of Canada, by the British North America Act, has the exclusive legislative authority with regard to " banking ' and " interest," and it appeared to me that the bill contemplated that the association should carry on some of the branches of business usually regarded as banking. The section in question authorizes the association to borrow money at such rates of interest as the directors think proper, and for that purpose to make any mortgage, boml-i or other instruments, under the seal of the company, for sums not less than $500 each. It also authorizes the company to receive money on deposit for such period and at such rates of interest as may be agreed upon, such deposits and outstanding mort gages, bonds, or other instruments of the association, not to exceed at any one time the su'oscribed capital stock of the association, which the 13th section fixed at $5-^' ''00, whereof one-tenth was paid up before the transaction of business by the company The bill dM noi come under my inspection until the morning of the day that the :^^ s- laturp was prorogued, and as I had n(jt time for careful consideration of the effect of the provMwrins I have abovii referred to, I deemed it right to reserve the bill and I have, in consequence, tn request that the pleasure of his Excellency the Governoi' Gtneial with regard thereto rmy be signified in the usual manner. I have. iuuy be agreed on, provided that the aggregate amounts of such deposits, together with the amount of the mortgages, bonds or other instruments given by the association, remaining unpaid, shall not, at an)' time, exceed the amount of the subscribed capital stock of the association," — wera beyond the authority of the local legislature, having regard to the fact that by the British North America Act, 1867, the Parliament of Canada has exclusive authority with regard to banking and interest. The question thus raised is one of very great difficulty, and the undersigned can- not but observe that considerable complication and, perhaps, serious difficulties may arise from the course which has been pursued in more than one provincial Act on this subject ; but, having regard to the fact that many provincial Acts dealing with these subjects have been left t^^ their operation, the undersigned would have deemed it beyond his province, as Minister of Justice, to recommend that, upon the grounds stated by the Lieutenant-Governor, a f^iffersnt course should be pursued with reference to this Act had it been finally passed — since he conceives that a certain policy has been established by the course hitherto pursued — and that it is for council to determine whether, at this tjma, it is possible to reconsider the question, or to take a new departure upon such a subject. Amongst the Acts which have been left to their operation, ho may refer to the Ontario Acts, 1873, cap. 107 : — " An Act to incorporate the Toronto Financial Corporation, 1873, cap. 128.' " An Act to revive and amend the Act incorporating the Toronto House Building Association." 1868-9, chap. 68. "An Act to incorporate the Ontario Trust and Investment Company." 1868, chap. 63. "An Act to incorporate the Toronto Trust Company." But the undersigned feels bound to call attention of council to the fact that the Act now under consideration confers upon a provincial company, unlimited power to borrow, whereas, under the above Acts, the borrowing powers are limited to the amount of the company's paid-up capital, and the present policy of the Canadian Parliament, as evidenced by thk> mode in which private Acts for the incorporation of similar companies were dealt with last session, is to limit such powers. Yet, even here the undersigned is not met by the fact that, under the General Joint Stock Companies Act of Ontario, cap. 35 of the Statutes of 1874, which was left to its operation, provision was made for incor- porating companies for any purpose or objects to which the legislative authority of the legislature extends, except the construction and the working of railways and the busi- ness of insurance, and that, by the 25th section of the Act, power is g* ven to the directors of companies chartered thereunder, with the sanction of a certain proportion of the shareholders, to borrow money on the ctedit of the company, and issue bonds, deben- tures or other securities therefor. This power is unlimited, and, under this statute, a loan and investment company may be incorporated, and so obtain unlimited power to borrow ; and upon the whole, therefore, the impression of the undersigned would have been (had this bill come before him as an Act, with a view to his decision whether it should be disallowed or not) that it should be left to its operation, but this is not the question. The question is whether council should advise his Excellency to assent to this Act, which is a reserved bill. 816 MANITOBA LEGISLATION It appears to the undersigned tliat, as a general rule, the Lieutenant-Governor should himself act with the advice of ministers upon tlie question of assent. To tliis rule there will no doubt be, from time to time, exceptions, but the under- signed submits to council whether this bill comes within the exceptions. Upon the whole, considering the difficulties to which the undersigned has adverted, and the incon- veniences which might result from the Governor in Council being called upon to give vitality to provincial legislation of this description, the undersigned recommends that no action be taken upon the bill in question. If re-introduced into the local legislature, the local government will be able to coEsider the difficulties which have been stated, with a view to recommend such amendments as they may think expedient. EDWARD BLAKE, Minister of Justice. Report of the Honourable the Minister of Justice, approi^'ed by His Excellency the Go-vernor General in Council on the 19th February, 1878. Department of Justice, Ottawa, 15th January, 1878. I have the honour to report upon the statutes of the legislative assembly of the province of Manitoba, in the 40th year of Her Majesty's reign (1877), received by the Secretary of State on the 1 5th day of May, as follows : — Chapters 1 to 4. These Acts appear unobjectionable, and I recommend that they be left to their openition. Cap. 5. — " An Act to amend the Act passed in the thirty-seventh year of Her Majesty's reign, intituled : ' The Half-breed .Land Grant Protection Act.' " This Act will be reported upon at a future time. Cap. 6. — " An Act respecting County Municipalities." The 1 5th section of this Act provides that anj' person wilfully making a false declaration of his right to vote shall, on conviction thereof before any two or more justices of the peace, be subject to a line not greater than one hundred dollars, and in default of payment of such tine to bo levied by distress, or, in case of insufficient dis- tress, to imprisonment for a period not greater than forty days. This section seems to entrench upon the criminal law. The Act repecting perjury, being cap. 23, of 32 and 33 Vic. (1869), seems to make sufficient provision for the pun- ishment of a person making a false declaration in such a case. I recommend that the attention of the Lieutenant-Governor be called to these remarks. 1 think that so much of the 15th section as provides for the punishment of a person making a false declaration should be repealed before the time expires within which the Act may be disallowed. The 16th section gives the council of every municipality, power to pass by-laws in relation to matters coming within certain specified classes of subjects, among others by the 27th subsection, the imposing penalties for light weight or short count measure- ment in anything marketed. This seems to entrench upon the subject of weights and measures, which, by the 91st section of the British North America Act, 1867, comes within the exclusive legis- lative control of the Parliament of Canada. The inconvenience of a possible conflict between the laws of Canada and the by-laws of a municipality upon this subject is obvious. I recommend that the Lieutenant-Ciovernor's attention be called to these remarks. Section 17 empowers the cou^^icil to assess and levy, on the whole rateable property within its jurisdiction, a sufficient sum each year to pay all valid debts of the corpora- tion. The 20th section provides that the following real estate shall be < vmpt from taxation under this Act : — 40 vicTOiuA, 1877. «lf Lieutenant-Governor f assent. tions, but the under- ceptions. Upon the verted, and the incon- g called upon to give 1 recommends that no ;he local legislature, 1 have been stated, pedient. BLAKE, inister of Justice. His Excellency the 1878. 1 January, 1878. itive assembly of the 877), received by the jonimend that they be leventh year of Her »n Act.' " 'uUy making a false efore any two or more indred dollars, and in 36 of insufficient dis- ^ct repecting perjury, provision for the pun- Lor be called to these unishment of a person ires within which the ver to pass by-laws in Bcts, among others by short count measure- asures, which, by the 1 the exclusive legis- of a possible conflict upon this subject is led to these remarks, lole rateable property debts of the corpora- all he ov^-mpt from L Real estate vested in or held in trust for Her Majesty, or for the public use of the province. 2. Real estate vested in or held in trust for the municipality. 3. Real estate vested in oi- held in trust for any tribe or body of Indians. 4. Kvery jjlace of public worship, houses of religion, &c. By the 125th section of the British North America Act, 18G7, it is provirled that "no lands or propel ty belonging to Canada, or any other province, shall be liable to taxation." It cannot be said that the exemption contained in the 20th section is as wide as it should be, having reference to the provision of the British North America Act just alluded to, but as a previous Act respecting county municipalities, passed by tlie Manitoba legislature, ncniely, HBth Victoria (187.")), cap. 41, containing similar pro- visions, was allowed to go into operation, and as any attempt to tax, under this Act, any land or property belonging to Canada would bo useless I cannot recommend any interference with the Act, on account of the provisions of this clause. Had the Act been the first of its kind which had been ])assed in the province, 1 would have felt called upon to submit, for the consideration of council, the question whether or not the exeinf)tions from taxation should not be extended to the right of way and other propertv of an}' company which might be formed for the construction of the Canadian Pacific Railway ; but as the Act above mentioned, namely, 3tnuch as similar legislation has been allowed to go into operation in the province of Ontario, {See cap 27 of 39 Vic, 1875-76, Ontario,) I do not rettinnmend any interference with this Act. I recommflnd, however, that the atten- tion of the Lieutenant-Governor be called to these remarks. Cap. 16. — "An Act to amend "The Manitoba Election Act." ^Rn 40 VICTORIA, 1877. 819 ly of Her Majesty's Dominion of Canada ividence of such call, ety. 16 province. )rney in the province the Society, have served under and have conformed Majesty's superior or England, Scotland y or solicitor in the or diploma, and on hall see fit. Manitoba, intituled : 3a," and was reserved nor, in his despatch tances seemed to me wn in the way of any nitted to the practice ion of judges in any hey are, applicable to jre as to restrict the rsons as the existing important objection fees. Whether that try, there can be no bar of this province tenant-Governor, the LOW under considera- e previous bill, and '6 been only called to [uity, in any of the >f any attorney and [•ts of law of equity e Act be left to its itutions incorporated ition or corporation tain and Ireland, or esting moneys, may lovfnce of Manitoba, (to be fixed by the i)ted, ing of a license by nada, and which V)y lie various provinces, allowed to go into r5-76, Ontario,) I do Bver, that the atten- To this Act there appears to be no objection, and I recommend that it Ije left to its operation. Cap. 17. — "An Act to legalize the lists of the Parliamentary El'ctors of 1877 for the City of Winnipeg." The vord "parliamentary" which occurs in the title to this Act, and also in the first section, is objectionable. This was pointed out in the report of the Minister of Justice upon tho Manitoba legislation, dated 21st February, 1874, and also by the report of the Minister of Justice, dated 6th October, 1876. It is therefore unnecessary for me to do more than refer to those reports. I recommend that the attention of the Lieutenant-Governor be called to this Act, with a view to its amendment, so as to obviate the objection mentioned. Cap. 30. — " An Act respecting Companies for the establishment of Cemeteries in Manitoba." Section 28 provides, among other things, for the punishment by fine of any person who wilfully destroys, defaces, &c., any tomb, monument., &c., or any tree, shrub, or plant in a cemetery. This seems to entrench somewhat upon the criminal law relating to malicious injurious to property. (See cap. 22, of 32 and 33 Vic, 1869.) I do not, however, recommend the disallowance of this Act, but I recommend that the attention of the Lieutenant-Governor be called to its provisions. Cap. 34. — " An Act to amend the Acts relating to the sale and traflic of Intoxi- cating Liquors, and the granting of Licenses in this Province." The third section of this Act provides that any person wh ^ shall have obtained a license to sell intoxicating liquors by means of fraud, &c., or by cutting or inscribing, or causing to be put or inscribed, npon any of the documents refe red to in the section, the names of any persons without their consent or knowledge, sha I, upon conviction, be liable to a fine not exceeding $300. This provision seems somewhat to entrench upon the criminal law respecting forgery. I recommend that the attention of the Lieutenant-Governor be called to it. Cap. 35. — "An Act to amend an Act for the protection of Game in the Province of Manitoba." To this Act there appears to be no objection, and I 'ecommend that it be left to its operation. Cap. 36. — "An Act to repeal 34th Vic, cap. 21, to make better provision in reference to Dogs." In the first section of this Act, which provides for the killing of dogs which worry sheep, under a certain penalty, the amount of the penalty is left blank. Cap. 43 — "An Act to amend the amended Act respecting the incorporation of the City of Winnipeg." The sixth section of the Act seems to entrench upc i the subject of interest, which by the British North America Act comes under the exclusive legislative control of the Parliament of Canada. The 13th section is as follows : — "All fines and penalties imposed, levied and collected by the police magistrate appointed under this Act, .shall be, unless otherwise provided, paid into the city ex- chequer, and form a fund for the payment of the salary of the police magistrate and maintaining the police force of the said city." The province of British Columbia, in the year 1877, passed an Act authorizing "certain municipalities to retain and use the ourt fines, fees and forfeitures, as part of the civic revenue." The approve*! report upon this .subject contains the following remarks, viz. : — " Notwithstanding anything to the contrary contained in any Act, ordinance, or proclamation, it shall be lawful for every municipality paying the annual salary of a police magistrate, and maintaining a police fof*, to retain and use, as part of the municipal revenues, all police court fiii*s, fe«s and forfeitures." This provision is wide enough to cover not only fines and forfeitures incurred for breach or non-compliance with laws of thv province made in relation to matters coming I 820 MANITOBA LEGISLATION within the chisses of subjects over which the provincial legislature haa exclusive legis- lative authority, but also all fines and forfeitures, which may be imposed at the police court under the criminal law of Canada, or by reason of the breach of, or non-com- pliance with, the laws of Canada. The 102nd section of the British North America Act, 1867, provides that : — " All duties and revenues over which the respective legislatures of Canada, Nova Scotia and New Brunswick before and at the union had, and have power of appropria- tion, except such portions thereof as are by this Act reserved to the respective legisla- tures of the provinces, or are raised by them in accordance with the special powers con- ferred on them by this Act, shall form one consolidated revenue fund, to be appropri- ated for the public service of Canada, in the manner, and subject to the charges in this Act provided." " There does not appear to be any provision in the Act reserving to the provinces the revenues derived from tines or forfeitures under the criminal law, and as the Parliament of Canada has exclusive legislative authority over the criminal law (ex- cept the constitution of courts of criminal jurisdiction), and as the Parliament alone can alter the existing yriminal law under which fines and forfeitures are imposed, and can create new crimes punishable by tine or forfeiture, and alone increase or reduce the amounts of fines and forfeitures under the criminal law, or altogether abolish them, I am of opinion that the provision of this Act, so far as it attempts to control or dispose of fines and forfeitures imposed by the criminal law or by any of the other laws of Canada, is iiltra vires of the powers of the provincial legislature and I recommend that the attention of the I|ieutenant-Governor be called to this Act to the end that the same may at the next session of the provincial legislature be repealed, or so amended as to confine it to tines and forfeitures arising under laws of the province made in relation to matters coming within the exclusive legislative authority of the province, other- wise that it be disallowed." These reiftarks are applicable to the section now under consideration. I recom- mend that the same course be pursued with this section, as was pursued in the case of the Act of British Columbia. I concur. Z. A. LASH, Deputy Minister of Justice. R. LAFLAMME, Minister of Justice. lion. Attorney-General Royal to the Lieutenant-Governor of Manitoba. Attorney-Genebal'8 Office, Winnipeg, Man., 5th March, 1878. SiK^ — With reference to the letter of the Secretary of State of the 25th January last, transmitting a copy of a report of the Honourable the Minister of Justice upon the statutes of Manitoba, passed in the fortieth year of Her Majesty's reign, and to the letter of the said Secretary of State of the 20th February last, transmitting a copy of an Order in Council approving the above report, I beg to state that as the general statutes of the province are about to be consolidated, in virtue of a law passed this last session of the provincial legislature, the commissioners will be instructed to avail themselves of the suggestions contained in the above mentioned report. I have, &c. J. ROYAL, Provincial Secretary and Attorney-General. 40 VICTORIA, 1877. 821 ire haa exclusive legis- irnposed at the police ireach of, or non-coin- liritiah North America tures of Canada, Nova ve power of appropria- the respective legisla- the special powers con- > fund, to be appropri- to the charges in this rving to the provinces linal law, and as the the criminal law (ex- the Parliament alone ures are imposed, and increase or reduce the [ether abolish them, I ts to control or dispose of the other laws of and I recommend that the end that the same 1, or so amended as to ince made in relation f the province, other- nsideration. I recom- pursued in the case of t, Minister of Justice. of Manitoba. 5th March, 1878. 8 of the 25th January lister of Justice upon esty's reign, and to the transmitting a copy of ite that as the general e of a law passed this be instructed to avail report. A ttorney-G'enerat. Report of the Hon. the Minister of Justice, approved by His Excellency General in Council on the 2nd May, 187S. the Oovernor- Dbpahtment of Justice, Ottawa, 27th April, 1878. Referring to mv report, dated 15th January, 1878, upon the statutes passed by the legislative assembly of the province of Manitoba, in the year 1877, and in which certain objections were taken to certain provisions of those statutes, I b-g to report :— That a communication has been received from the Lieutenant-Governor, inclosing a letter fro^u Attorney-General Royal on beh ilf of the government, stating the intention of the government in reference to the objections taken. This letter referring to the report and to the Order in Council approving the same, states that as the general statutes of the province are about to be consolidated, pursuant to a law passed during the last session of the legislature, the commissioners will be instructed to follow the suggestions contained in the report. , , • • tu Relying upon the assurance contained in this letter that the objections to the statutes will be thus removed, I recommend that the various Acts to which objection has been taken, be left to their operation. Z. A. LASH, Deputy Minister of Justice. I concur. R. LAFLAMME, Minister of Justice. Report of the Hon. the Minister oj Justice, approved by His Excellency tlie Governor General in Council on the J^th May, 1878, Department of Justice, Ottawa, 3rd May, 1878. I have the honour now to report upon cap. 5 of the statutes passed by the legis- lature of the province of Manitoba in the year 1877, which chapter was omitted from the previ us rpport. It is intituled : " An Act to amend the Act passed in the 37th year of Her Majesty's reign, intituled : ' The Half-breed Land Grant Protection Act and amends the Half-breed Land Grant Protection Act, passed in the year 1874, reserved for the assent of the Governor General, reported upon by the Minister ot Justice on the 21st February, 1874, and assented to by his Excellency in Council on the 27th February, 1874. In the report which accompanied the reserved bill, the Lieutenant-Governor stated t'.at speculators had bought largely from half-breeds their claims to allotments at low prices, ranging as low in some cases as $15, the maximum being $50. Ihat the object of the bill was to cancel all these sales, and give the vendee an action to recover back the price. , . , . , ,. One of the reasons for passing the bill, as ment oned in the preamble, appears to have been that the half-breeds entitled to participate in the grant, made the agree- ments to sell their rights to speculat .rs, in evident ignorance of the value of their shares, accepting therefor only a tritling consideration. „ i^ i j In 1875, an Act was passed, being 38th Vic, cap. 37, to amend this Half-breed Land Grant Protection Act. It provided in effect that, If the nalf-l.reei who had sold his right returned or tendered to the purchaser the full consideration, and such expense as the purchaser had incurred in the transaction, with interest at 12 per cent per annum, within three months from the passing ..f this Act of 1874, the contract of sale should be void, otherwise, if in writing, that it should be valid, and ihat he should assign to the purchaser the lands granted to him within three months after the receipt 52 822 MANITOBA LEOISLATIOW by liiin of the patent from the Crown, and it was provided that notice of the passage of this Act of 1875 shouhl be given in the Manitoba Gazetln for three months immediately after its being assented to. This Act, upon the report of the Minister of Justice, was disallowed. It appears that no notice, as required was given in the Manitoba (Gazette, and that the Honourable Mr. Royal, then Attorney-General of Manitoba, who happened to bo in Ottawa at the time the Act was reported upon, stated that the notice was not given, in consequence of a doubt on the part of himself and his colleagues, whether the Act would be allowed by the Governor General, and that the Act had not been considered as in force in the province. The present Act provides that, "Any sale for a valid consideration, and duly made and executed by deed, after the coming into force of this Act, by any half-breed having legal right to a lot of land as such, out of the one million four hundred thousand acres of land in the province for half breeds, appropriated by the Dominion, of such lot shall be helu to be legal and eflfectual for all purposes whatsoever, and shall transfer to the purchaser the rights of the vendor thereto." Seven years have now passed since the land was appropriated for the half-breeds, and more than four years have elapsed since the passing of the original Half-breed Land Grant Protection Act ; during that time the half-breeds must, as a general rule, become well acquainted with the value of their interests in the lands. The circumstances therefore under which the original Act was passed have considerably changed since that time. As the legislature, which in the public interests passed the Act of 1874, have thought it expedient, in the public interests of 1876, under changed circumstances, to modify that Act, and as the present Act renders valid only such sales as are made for valid consideration by deed after the coming into force of the Act, and as the original Act as to the transactions affected by it, has not been interfered with, I think that the Act should be left to its operation, and I recommend accordingly. Z. A. LASH, Deputy Minister of Justice, I concur. R. LAFLAMME, Minister of Justice, 41 VICTORIA, 1878. 823 notice of the passage le for three months Oft of the Minister of itoha (iazftte, and that who happened to bo in otice \va8 not given, in whether the Act would been considered as in nsideration, and duly Vet, by any half-breed four hundred thousand a Dominion, of such lot r, and shall transfer to TG now passed since the jars have elapsed since let ; during that time with the value of their 1 the original Act was [islature, which in the i, in the public interests d as the present Act on by deed after the ransactions affected by left to its operation. Minister of Justice, MANITOBA, 41st VICTORIA, 1878. 4tii Session— 2nd Paiimament. Ri'port oftlu: I/uHOK ruble tin: Minister of Justice. Department of Justice, Ottawa, 23rd July, 1878. During the last session of the legislature of Manitoba an Act was passed inti- tuled • " An Act to create a fund for Educational Purposes." This Act imposes an annual tax of live cents per acre on all lands owned by u non-resident, and that whether improved or not, and a tax of one cent per aero on all lands owned by any resident or corporation in excess of 64U acres. Strong opposition has been made to this Act by the Hudson Bay Company, who claim that its provisions are an interference with terms of the deed of surrender under which that company surrendered to Her Majesty certain rights in Ruperts Land. The company have expressed their intention of presenting a petition to the Dominion Government, praying that the Act may be disallowed, and are now engaged in the preparation of their case in support of that petition. , , , ^, „ . As the questions involved are serious ones, I recommend that the Government of Manitoba be requested not to actively enforce the provisions of the Act unti the government has had an opportunity of determining whether or not the same should be ^^^* U^'LTlcTbeTdded that the government of Manitoba will be afforded facilities for replying to any objections which may be raised to the Act, on the part of the ijudson Bay Company, or others. R. LAFLAMME, Minister of Justice. was Note —No order in Council appears to have been passed in the above repor^ communicated by despatch to the Lieutenant-Governor of the province. » but the substance of it Copi, of a Report of a Committee of the Honourable the Privy Council, approved by Ili^ Excellency the Governor General in Council on the 3 1st July, ISJU. The Committee of Council have had under consideration a despatch dated 27th June, 1878, from the Right Honourable Sir M. E. Hicks-Beach to his Excellency the Governor General, transmitting a copy of a letter from the secretary of the Hudson Bay Company to the Under Secretary of State for the Colonies, bringing under the notice of Sir M. E. Hicks-Beach, the provisions of an Act passed m the last session of the legislature of Manitoba, intituled : "An Act to create a Fund for Educational Purposes " and alleging certain reasons why lands of the Hudson Bay Company, should not be classed as lands owned by the non-residents, or be subject to the taxation proposed to be levied under the provisions of the bill. , ^ ^^. , _, .... . .i,„. x^^ The committee recommend that Sir M. E. Hicks-Beach be informed that the question of the constitutional power of the legislature of Manitoba to enact such a law is under the consideration of the Minister of Justice, and should the Hudson Bay Company, through their legal advisers, think proper to offer any suggestion or argu- ments in favour of the view taken by them, they will receive the fullest consideration from the Minister of Justice, and in the meantime the government of Manitoba has been requested not to actively enforce the provisions of the Act until the government of Canada has had an opportunity of determining whether or not the law should be left to its operation. W. A. HIMSWORTH, p.(ji Clerk Privy Council, j^ .. iiriiMi 824 MANITOBA LEOISIiATIOW Report of the Honourable the Minister of Justice, approved liy His Urcellency the (Jovernor General in IJouncil, on the 1 Ith Ortohir, ISHO. Depahtment ok Justice, Ottawa, 8th October, 1880. I have the honour to report upon the statutes of Manitoba, passed in the forty-firHt year of Her Majesty's reign (1878), as follows : — I reoommend that the puwor of dis- allowance be not exercised in respect to these Acts : Chapters 1 to I "J, 15 to 38. Cap. 13. " An Act to create a fund for educational purposes." This Act was objected to by the Hudson Hay Company, as being an unconstitutional interference with their rights, and as in efl'ect imposing an exceptional tax upon their lands. The Act was held by the court of Manitoba to be unconstitutional, and was repealed in the next session of the legislature. No action was therefore necessary upon the Hudson Bay Company's petition. Cap. 14. "An Act to rej.-ulate the sale of intoxicating liquors and the granting of licenses in this province." This Act deals with licenses for the sale of intoxicating liquors, and some of its pro- visions may be held to entrench upon the powers of puniament with respect to the regulation of trade and commerce, but as pro\iaionsof a similar nature have been passed in most of the other provinces and left to th'^ir operation, and it has not yet been deter- mined how far the power to deal with licenses will authorize an interference witli trade in intoxicating liquors, the power of disallowance should not, I think, be exercised with respect to this Act. J AS. MoDONALD, Minister of Justice, MANITOBA, 42-43 VICTORIA, 1879. IsT Session — 3rd Parliament. Report of the Honourable the Minister of Justice, approved by His Excellency the Governor General in Council on the 11th October, 1880. Department of Justice, Ottawa, 8th October, 1880. I have the honour to report upon the statutes of Manitoba passed in the forty- second and forty -third years of Her Majesty's reign (1879), as follows : — Chapters 1 to 11, ai.d 13 to 37. I recommend that the power of disallowance be not exercised with respect to these Acts. Cap. 12. " An Act respecting grand and petit jurors and juries and to amend the Manitoba Jurors' Act." This Act is similar to one passed by the legislature of the province of Ontario, which has been left to its operation, and like the Ontario Act is not to come into force until a day is named by the Lieutenant-Governor by proclamation. If it be decided by the Supreme Cnurt that the power to legislate with respect to the number of grand jurors to find a bill or information, does not exist vn the local legislature, this Act will, of course, not be brought into operation. I recommend that the attention of the Lieutenant Governor be called to these remarks. JAS. Mcdonald, Minister of Justice. 4^. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 2.0 ISO 1.8 Photographic Sciences Corporation /- V. V ^ 1.25 ||U jl.6 "' " ■ ' ^ 6" ► 23 V^'^rST MAIN STREET WEB.>TFS,N.Y MS 80 (716) 87i';:03 CIHM/ICMH Microfiche Series. iTi CIHM/ICMH Collection de microfiches. Canadian Institute for Historical Microreprcductions / Instltut Canadian de microreproductlons historiques 43-44 VICTORIA, 1860-81. 825 ijiii ■w MANITOBA, 43rd VICTORIA, 1880. Note. — The Acts of 1880 were incorporated with the Consolidated Statutes of Manitoba of tliat year, and do not appear to have been reported upon. MANITOBA, 44th VICTORIA, 1881. 3rd Session — 4th Legislature. Petition of Mayor and Council of Winnipeg to His Excellency the Governor General. His Excellency the Right H mourable Sir John Douglas Sutherland Campbell, Marquis of, Lome, Knight of the Most Ancient and Most Noble Order of the Thistle, Knight Grand Cross of the Most Distinguished Order of St. Michael and St. G: orge, Governor General of Canada, and Vice-Admiral of the same, ifec, «fec., ifec, in Council. The memorial of the mayor and council of the city of Winnipeg respectfully sheweth : Your memorialists have heard with regret the rumours that efforts are being made by some interested parties to obtain from your Excellency thi^ disallowance of the Act of the legislature of Manitoba incorporating the Winnipeg South-eastern Railway Company. In view of the future prospects of this country and of the North-west, a future a'.'knowledged to be so great that the eyes of the world are now directed hither- ward, every possible facility for ingress and egress to and from our country is greatly to be desired, and any act of your Excellency's government tending to limit or check such facilities would delay the rapid development of our resources, would interfere in a serious measure with the settlement of our fertile plains, and would thus be damaging not only to our city and province, but to the whole Dominion. Your memorialists therefore cannot believe that the best interests of this city and province will /be sacri- ficed to benefit any one corporation or company, be they whom they may. Believing, as your memorialists do, that the Act incorporating the Winnipeg South-eastern Railway Company is strictly within the jurisdiction of the legislature of our province, we would most respectfully and earnestly urge upon your Excellency and council that the said Act be not disallowed in the true interests of our city, of this province, of the great North-west and of the Dominion at large. And your memorialists, as in duty bound, will ever pray, «fec., ic. Dated at Winnipeg, in the province of Manitoba, this sixteenth day of November. E. G. CON KLIN, Mayor. X. M. BROWN, City Clerk. Report of the Hon. the Minister of Railtuaya and Canals. Department of Railways and Canals, Ottawa, 2nd November, 1881. The undersigned has the honour to represent that at the last session of the legis- lature of the province of Manito'oa, the following Railway Acts were \ .^ased : — !■ " '. !■ I :i 826 M/NITOBA LEGISLATION 1. Cap. 37. " An Act to incorporate the Winnipeg South-eastern Railway Company." 2. Cap. 38. " An Act to incorporate the Manitoba Tramway Company." 3. Cap. 39. " An Act to incorporate the Emerson and Nortl^-western Railway Company." That by a letter dated the 18th ultimo, the Canadian Paci6c Railway Company have pointed out the eifects which the construction of these several lines will have upon the traffic which would legitimately appertain to their road ; calling attention to the fact that one of the most essential of the conditions upon which the work was undertaken ; and more particularly the eastern division of it, extending from the Thunder Bay Branch to Callander Station was, that no diversion of the traffic which the company might reasonably be expected to carry over that division, would be permitted by the construction of railways tending to tap the traffic of Manitoba and the North-west. That the chief engineer has thereupon reported that all these several charters conferred by the Act above cited, empower the respective companies to run to the boundary between the province of Manitoba and the state of Minnesota, a privilege which undoubtedly conflicts with the spirit of the Canadian Pacific Railway Act, section 15, of which reads as follows : — " For twenty years from the date hereof, no line of railway shall be authorized by the Dominion Parliament to be constructed south of the Canadian Pacific Railway, from any point at or near the Canadian Pacific Railway, except such line as shall run south-west or the westward of south-west, nor to within fifteen miles of latitude 49." The section being apparently placed in the agreement with the company, upon the consideration that it is most desirable, and altogether in the public interest, that the heavy traffic to be expected from the great North-west should pass directly to the sea-board, or to Eastern Canada by the national route, and over the Canadian system of railways, and that no facilities should be given which would tend to divert this traffic directly out of our own country, to find its way eastward by American railways. The engineer reports that if the Acts of incorporation referred to are allowed to become law, they will not only very much injure the carrying trade of Canada, but will in every way fjvcilitate the passing of the traffic in question direct))' into the United States, ancl its transportation eastward over American roads. In addition, the undersigned desires to state that during the session of 1880, when the government were carrying on the railways as a government woik, he was authori- zed by the government, after the fullest discussion of this question in all its bearings, to state to the committee of the House of Commons on Railways and Canals, that the government could not assent to the incorporation of any line running to the American frontier in an easterly direction, it being considered essential to the interests of the Dominion that the traffic of the North-west should, as far as possible, be retained on the Canadian Pacific Railway. That the policy of the government met with apparent approval from all parties, and the a|>plication made for a charter for the Emerson and Turtle Mountain Railway Company was refused. That while such was the view taken in 1880, the importance of this policy became doubly manifest in 1881, when arrangements were completed for the construction of through lines running to the north of Lake Superior, and the same policy was adhered to last session. For the reasons above stated he is of opinion that the interests of Canada would be imperilled by the construction of the proposed lines of rail communication, and submits that the Minister of Justice should be invited to report whether his Excellency the Governor General should not be advised to disallow the Acts of the legislature of the province of Manitoba, referred to, viz. : — 1. Act 44 Vic, cap. 37, intituled : " An Act to incorporate the Winnipeg South- eastern Railway Company." ^^ 44 VICTORIA, 1881. 827 m lailway 2. Act 44 Vic, cap. 38, intituled : "An Act to incorporate the Manitoba Tramway Company." 3. Act 44 Vic, cap. 39, intituled : "An Act to incorporate the Emerson and North- Western Railway Company." Respectfully submitted. CHARLES TUPPER, Minister of Railivaya and Canals. Act, Report of the Hon. the Minister of Justice, approved by His Excellency the Governor General in Council on the 12th January, 1882. Department of Justice, Ottawa, 4th January, 1882. To His Excellency the Administrator in Council : The undersigned has the honour to rep: 't that at the last session of the legislature of Manitoba the following Act (among others^ was passed and assented to by the Lieutenant-Governor, on the 25th day of May, 1881, viz., cap. 37, "An Act to incorpo- rate the Winnipeg South-eastern Railway Company." The line to be built by the company is thus defined by the third section of their charter : " 3. The said company and their servants and agents shall have full power and authority to lay out and construct, make, finish and operate a railway with single or double track and an electric telegraph along the same, such railway to commence from a point at or near the city of Winnipeg, thence running in a south-easterly direction to the boundary line between the province of Manitoba and the state of Minnesota aforesaid ; and the company shall have power and authority' to construct the different sections of the said railway in such order as they shall see fit, keeping in view the gene- ral direction as herein provided." In the contract dated 2l8t October, 1880, between the government of Canada and the Canadian Pacific Railway, which was approved and ratified by the Act of the Parliament of Canada assented to on the fifteenth day of February, 1881, the following clause is contained ; " (15.) For twenty years from the date hereof, no I'ne of railway shall be authori- zed by the Dominion Parliament to be constructed south of the Canadian Pacific Rail- way, from any point at or near the Canadian Pacific Railway, except such line as shall run south-west or to the westward of south-west ; nor to within fifteen miles of latitude 49, and on the establishment of any new province in the North-west Territories, provision shall be made for continuing such prohibition after such establishment, until the expiration of the said period." In the Act of the Parliament of Canada 44 Vic, (1881^, cap. 14, intituled : "An Act to provide for the extension of the boundaries of the Province of Manitoba," it is, by subsection 2, provided as follows : — " The said increased limit and territory thereby added to the province of Manitoba shall be subject to all such provisions as may nave been, or shall hereafter be enacted respecting the Canadian Pacific Railway and the lands to be granted in aid thereof." Under the powers conferred upon the South-eastern Railway Company, their line might he built so as to run to the boundary line, through part of the territory added to the province by the Act last above mentioned. The undersigned begs to call attention to the order of his Exof llency in Council of the 18th April, 1879, a copy of which was transmitted to the government of Manitoba on the 23rd of that month, and receipt of which was acknowledged by the Lieutenant-Governor on the 2nd of May following ; in that order the following language occurs, viz. : " That as respects the railway policy to be pursued in that province, it has been decided that the line of the Canadian Pacific Railway shall pass south of Lake \i\ m I Ii41l 828 MANITOBA LEGISLATION. Manitoba, and in accordance with the suggestion of Messrs. Norquay and Royal, the government will oppose the granting of a charter for the present session at least, for any railway in Manitoba other than the one recommended by them from Winnipeg south-westerly towards Rock Lake. The government think it very desirable that all railway legislation shall originate here, and that no charter for a line exclusively with- in the province of Manitoba should be granted by its legislature, without the Dominion government first assenting thereto." The undersigned is personally aware from the interview with Messrs. Norquay and Royal upon the subject, that these gentlemen (then members of the Manitoba govern- ment, Norquay being then, as now, premier), on behalf of their government agreed to the policy of this government as indicated by the above extract ff-om the Order in Council of 18th April, 1879. At no time since has the government of Manitoba, so far as the undersigned is aware, intimated that the assent of Messrs. Norquay and Royal abov3 referred to, was not binding upon them. The undersigned also '^alls attention to the provisions of subsection 10 of section 92 of the British North America Act under which the legislatures of the provinces derive their legislative authority, which is as follows: — "Local works and undertakings other than those such as are of the following classes : (a) Lines of steam or other ships, railways, canals, telegraphs and other works and undertakings connecting the province with any other or others of the provinces, or extending beyond the limits of the province. (b) Lines of steamships between the province and any British or foreign country. («) Such works as although wholly situate within the province, are before or after their execution declared by the Parliament of Canada to be for the general advantage of two or more of the provinces." It is not necessary to express any decided opinion with respect the authority vested in the provincial legislatures by this clause but the undersigned thinks it proper to call attention to the doubt which exists as to the power of a piovincial legislature to authorize the construction of a railway, the manifest intention of which is to connect the province with the United States, and practically to extend beyond the limH.s of the province. The undersigned begs to refer to the report of the Minister of Railways and Canals, dated the 2nd November last, and in view of all the foregoing facts, and because the Act now under consideration conflicts with the settled policy of the Dominion, as evidenced by the clause in the contract with the Canadian Pacific Rail- way Company above set out, which was ratified and adopted by Parliament, the under- signed recommends that the Act passed by the legislature of Manitoba in the year 1881, and int'tuled : " An Act to incorporate the Winnipeg South-eastern Railway Company," be disallowed. A. CAMPBELL, Minister of Justice. Order in Council disallotving the Act above mentioned, ptiblixhed in the " Caimda Gazette" on the 11th day of January, 1882, Vol. XV., No. 29, page 977. Report of the Hon. the Minister of Justice, approved by His Excellency the Governor General in Council, on the Srd NovembeH', 1882. Department op Justice, Ottawa, 31st October, 1882. To His Excellency the Governor General in Council : The undersigned has the honour to report : — '' That the contract, dated 21st October, 1880, made between the government of Canada and the Canadian Pacific Railway Company, contained the following clause- " 15. For twenty years from the date hereof, no line of railway shall be authorized by the Dominion Parliament to he constructed south of the Canadian Pacific Railway 44 vioroRiA, 1881. 8ro ■^ from any point at or near the Canadian Pacific Railway, except such line as shall run south-west or to the westward of south-west, nor to within 15 miles of latitude 49, and in the establishment of any new province in the North-west Territories, provision shall be made for continuing such prohibition after such establishment, until the expiration of the said period." This contract was approved and ratified by Parliament, by an Act assented to on the loth day of February, 1881, and the action of the government in regard to the direction and limits ot railway construction in the Territories of the Dominion became part of the legislation of Parliament, and of the settled policy of the country. By an Act of Parliament, 44 Vic, chap. 14, intituled : " An Act to provide for the extension of the boundaries of the province of Manitoba," and by an Act of the Legislature of Manitoba, 44 Vic, chap. 1, intituled : "An Act for the extension of the boundaries of the province of Manitoba," it is provided as follows : — "(1.) The said increased limit and territory thereby added to the province of Manitoba, shall be subject to all such provisions as may have been or shall hereafter be enacted respecting the Canadian Pacific Railway, and the lands to ue granted in aid thereof." The policy of the government, thus confirmed by Parliament, and acquiesced in by legislation in the province of Manitoba, is intended to prevent the diversion of the traffic of the North- West Territories to the railway system of the United States, and to endeavor by all means possible to secure it to Canadian railways. Two Acts in adiiition to one already disallowed were passed by the legislature of Manitoba, in the session of 1881, and one in the session of 1882, which are in conflict with the settled policy above referred to. By 44 Vic, chap. 38 (1881), Manitoba, intituled: "An Act to incorporate the Manitoba Tramway Company," power is given to the corporators to construct and operate cheap iron or wooden tramways along all or any of the public highways of the province, having first secured the consent of the municipality, within which the said public highway is situate. By section 15, subsection 4, power is given to make, complete, alter and keep in repair, the tramway, with one or more sets of rails or tracks, to be worked by the force and power of steam, or of tne atmosphere, or of animals, or by mechanical power, or by any combination of them, the corporators having substantially the power to build and operate a railway. By 44 Vic, (1881), chap. 30, Manitoba, intituled : "An Act to incorporate the Emerson and North-western Railway Company," the corpoiators are empowered to construct a railway from a point on the west side of the Red River, opposite the town of Emerson, in the province of Manitoba, to Mountain City or Nelsonville, in the said province, and thence north-west to a point on the western boundary of the said pro- vince, and also a branch line from Mountain City or Nelsonville, aforesaid, to the said boundary. Emerson is situated directly on or very near to the boundary of the United States, and Mountain City is situated within fifteen miles of the 49th parallel of latitude. This company, by its charter, could not only construct a line — crossing the Canadian Pacific Railway and running from it in a south-easterly direction to a point practically on the boundary, between Manitoba and the United States, but could also construct a line west from Mountain City, and wholly within fifteen miles of the 49th parallel. By 45 Vic, chap. 30, Manitoba, intituled : " An Act to encourage the building of Railways in Manitoba," power is given within the legislative authority of the province, for the incorporation, by letters patent, of any number of persons, not less than five, for the purpose of constructing, maintaining and operating railways for public use in the conveyance of persons and property in the province of Manitoba. The Act last mentioned was passed subsequent to the extension of the limits of Manitoba, but no provision is made in the Act to give effect to the terms and conditions upon which the boundaries of that province were enlarged, that is, there is nothing in it to prevent the corporators from exercising their powers within the added territory. This Act is, therefore, not only open to the objections pointed out in ^regard to the two IP ' ■', •it H) m HI 830 MANITOBA LEGISLATION. Acts passed during the session of 1881, but is capable of being used to contravene the terms in regard to the Canadian Pacific Railway, upon which the boundaries of the province of Manitoba were enlarged. Tn order that the Act should conform to the legislation of Parliament in regard to the Canadian Pacific Railway, provision should have been made that no company there- by incorporated should be authorized to construct a line of railway south of the Cana- dian Pacific Railway, from any point at or near that railway, unless the line ran south west, or to the westward of south-west, and terminated at a point distant at least fifteen miles from the 49th parallel of latitude. The undersigned, for the reasons above stated, humbly recommends that the said Acts, namely : 44th Vic, (1881), chap. .38, " An Act to Incorporate the Manitoba Tramway Company," 44th Vic, (1881), chap. 39, "An Act to incorporate the Emerson and North-western Railway Company," 45th Vic. (1882), chap. 30, "An Act to encourage the building of Railways in Manitoba," be disallowed. A. CAMPBELL, Minister of Justice. Order in Council disdlloiving the Acts above mentioned, ptiblished in the Canada Gazette on the 3rd day of November, 18S2. Vol. XVI, No. 18, page 744. Report of the Honourable the Minister of Justice, approved by His Excellency the Governor General in Council on the 6th March, 1883. Department of Justice, Ottawa, 3l8t January, 1883. To His Excellency the Governor General in Council : The undersigned havin.^ had under consideration the Act sof the legislature of the province of Manitoba, passed in the year 1881, begs leave to report as follows : — Chap. 37. " An Act to incorporate the Winnipeg South-eastern Railway Com- pany " was disallowed by Order in Council of the 12th January, 1882, and chap. 38, intituled : " An Act to incorporate the Manitoba Tramway Company," and chap. 39, intituled : " An Act to incorporate the Emerson and Noi th-western Railway Com- pany," were disallowed by Order in Council of the 3rd November, 1882. Chap. 2. " An >Act to bring into force and operation the Consolidated Statutes of Manitoba." Chap. 7. " An Act to protect Guide Posts along certain roads in this province." Chap. 16. "An Act respecting the Equity side of the Court of Queen's Bench." Chap. 28. " An Act for dividing the province of Manitoba into judicial districts and establishing courts therein." Chap. 33. " An Act to incorporate the Southern Manitoba Loan Company," and chap. 34, for the incorporation of the Winnipeg Suspension Bridge Company, are reserved for a separate report. In regard to the remaining Acts of the session, the chapters of which are herein- after enuuierated, the undersigned recommends that they be left to their operation, viz., chapters 1, 3, 4 to 6, 8 to 15, 17 to 32, 35, 36, 40 to 42. A. CAMPBELL, Minister of Justici. Report of the Hon. the Minister of Justice, approved by His Excellency the Governor General in Council on the 6th March, 1883. Department op Justice, Ottawa, 31st January, 1883. To His Excellency the Governor General in Council : The undersigned begs leave to report upon certain Acts passed by the legislature of the province of Manitoba in the session of 1881, reserved for a separate report : — 44 VICTORIA, 1881. m ene the of the sgard to y there- Cana- n south I* least 16 said anitoba Imerson Act to (I.) By chapter 2. the Consolidated Statutes of Manitoba are brought into force and operation. On referring to reports on the statutes included in his volume, it will be dis- covered that many provisions which were objected to have been re-enacted. The following instances are given : — (a) 34. Vic, chap. 9, sec. 2, giving the police magistrates all the powers possessed by two or more J. P.'s, is re-enacted by chapter 7, sec. 17, Con. Stats.; should be limited to matters within authority of the legislature. (6) 37 Vic, 1873, chap. 43, sec. 2, subsec. 1. The word "parliamentary" is objected to, and also the provisions about jurors on criminal trials. Re-enacted by chap. 55, sec. 1, subsec. 1, Con. Stats. (The whole Act is objectionable as legislation in regard to aliens. ) (r.) Chap. 18, sec. 53, constitutes certain offences misdemeanours. Act repealed, but this section re-enacted by chap. 60, Con. Stats., Sec. 50. (d) 38 Vic, 1874, chap. 15. Repeal was advised, as it might conflict with 31 Vic, chap. 48 (Canada), under which foreign insurance companies have been licensed to do business in any part of Canada. Re enacted by chap. 30 (sec. 2), Con. Stats., Manitoba. (It is objectionable a so in requiring license from companies incorporated by Parliament.) " The Election Act." (e) Chap. 3, Con. Stats., amends the word " parliamentary," but sees. 32, 185, 205, 206 and 235 objected to, as trenching on criminal law, appear to be re-enacted by chap. 3 of the Con. Stats. Administraticn of Justice. (/) Chap. 5. It was thought that sees. 58 to 60 should be repealed, but they are re-enacted by chap. 37, Con. Stats., sees. 95, 96 and 97. QucUiJications of J. i"s. (g) Chap. 9, sec. 16, deals with perjury. Re-enacted by chap. 7, Con. Stat-)., sec. 32. Building Societies, (h) Chap. 21. The provisions respecting interest, insolvency and criminal acts were objected to, but appear to be re-enacted by chap. 9 of the Con. Stats., excepting section 18, repealed. (i) Chap. 22. The power of the Lieutenant-Governor to remove an insane criminal from gaol to an asylum was objected to, but is re-enacted by Con. Stats., chap. 58, sec. 26. (j) Chap. 35. To amend the Registry Act. Section 1 objected to as interfering with the devolution of the title of lands before the issue of patents, is re-enacted by chap. 60, sec 40, Con. Stats. Jurors am* Juries, (k) 39 Vic, 1876, chap. 3. It was thought that the provi- sions as to the selection of French and English speaking jurors would require confirma- tory legislation by Canada, but no suggestion was made. This Act is chap. 36 of the Con. Stats. Fire Commissioners, (l) Chap. 5, sec. 9, objected to as trenching on criminal law, but re-enacted by chap. 7, Consolidated Statutes, sec. 94. (m) Chap. 8. Incorporation of Mutual Fiie Insurance Companies. Sections 70, 71, and 72 were objected to, but are re-enacted. (See chap. 9, Con- solidated Statutes, sees. 70, 71, and 72.) Respecting Public Works, (n) Chap. 9, sec. 31, objected to as a possible inter- ference with Dominion authority. Re-enacted by chap. 11, sec. 31, Consolidated Statutes. (o) 40 Vic, 1887, chap. 30. Cemeteries — Section 23 deals with malicious injuries to property. Re-enacted by chap. 9, sec. 92, Consolidated Statutes. 2. Chap. 7, intituled : " An Act to protect Guide Posts along certain roads in this Province," trenches upon the subject of criminal law. {See 32 and 33 Vic, chap. 22, subsecs. 59 and 60) 3. Chap. 16, intituled : " An Act respecting the Equity side of the Court of Queen's Bench," makes provision for the appointment of an officer to be called the referee in chambers, and the Queen's Bench is authorized to make rules conferring on him large powers ordinarily exercised by a judge. The power of the legislature to give to an officer of the court judicial powers is extremely doubtful. Hr|i Mi 832 MANITOBA LBQI8LATION. 4. Sees. 73, 75 and 77, of chap. 28, intituled : " An Act for dividing the province of Manitoba into judicial districts and establisliing Courts therein," deal with the empanelling of juries in criminal cases, and are nor, it is submitted, within the author- ity of the Legislature. 6. Sees. 2 and 15, of chap. 33. intituled: "An Act to incorporate the Southern Manitoba Loan Company," deal with the subject of interest. 6. By chap. 34, intituled : " For the incorporation of Bridge Company," a company is incorporated with power Assiniboine River, between Winnipeg and St. Boniface West. the bridge shall not be commenced until the plans and Governor General in Council. This is entirely in accordance with the Act of Parliament since passed, 45 Vic, chap. 37, and the Act can be left to its operation. The other Acts mentioned in this report, although objectionable in the particulars pointed out, do not, in the opinion of the undersigned, call for the exercise of the power of disallowance. They may, without injury to the public interests, be left for the consideration of the courts. He therefore, recommends that they be left to their operation ; and, further, that in case these observations are approved, they be com- municated to the Lieutenant-Governor of the province, for the information of his government, and for such action as they may think proper. the Winnipeg Suspension to build a bridge over the Section 14 provides that site are approved Ijy the A. CAMPBELL, Minister of Juatict, 46 vicToniA, 1882. 833 province il with the le author- Southern Suspension ;e over the vides that .•ed by the (d, 45 Vic, )articularR cise of the be left for (ft to their ly be cotn- tion of his Justice. MANITOBA, 45th VICTORIA, 1882. 4th Session — 4th Leoislature. Report of the Hon. the Minister of Justice, approved by His Excellency the Governor General in Council, on the fJth March, ISSS. Department of Justice, Ottawa, 14th February, 1883. I'o His Excellency the Governor General in Council : The undersigned, having had under consideration the petition of certain members of the Association of Provincial Land Sur\ ^vors in the province of Manitoba praying for the disallowance of the second clause i' ;he fifth section of 45 Victoria chapter 54, intituled : "An Act to amend 44 Victoria, cap. 29, intituled : 'An Act respecting the professi'in of Land Surveyors in the Province of Manitoba ;'" and the communication of the president of the Provincial Ijand Surveyors' Association of that province to your Excellency on the same subject, dated 6th September, 1882, begs leave to report : — By 44 Victoria, cap. 39, being "The Land Surveyors' Act, 1881," certain persons holding commissions as land surveyors were constituted an association of land sur- veyors. Among other things provision is made for the admission of articled pupils, after a course of study, and an examination similar to that prescribed by section 95 of the "Dominion Lands Act, 1879." It is material in this connection to note that by section 91 of the Act last-mentioned it is provided that : "Any person who, subsequently to the fourteenth day of April, one thousand eight hundred and seventy-two, shall have been duly qualified by certificate, diploma, or commission, to survey lands in any province of the Dominion, in which, in order to be so qualified, a course of study, including the subjects prescribed by section 95, is required by the law of such province, shall be entitled to obtain, without being subjected to any examination, other than as regards the system of survey of Dominion lands, a commission as Dominion land surveyor ; provided that it shall rest with the board of examiners to decide whether the qualifications required of a surveyor of crown lands in such province, are sufficiently similar to tliose set forth in the said sec- tion ninety-five of this Act, to entitle him, under the foregoing provisions, to such commission ; and provides further, that it must be shown that such province has recip- rocated ihe privilege hereby granted, by granting to Dominion land surveyors, on their application, and without subjecting them to an examination, except as regards a knowledge of the survey laws of such province, diplomas, certificates, or commissions, as the case may be, as surveyors of lands within such province. " Land surveyors holding diplomas, certificates, or commissions, for provinces of the Dominion, in which the qualifications required by law for surveyors are not similar to those prescribed by this Act, must undergo examination by the board, and satisfactorily pass the same in order to obtain commissions as Dominion land surveyors." By 45 Vic, cap. 54, sec. 5, subsec. 2, the clause to which the petitioners take objection, those land surveyors who, previously to the transfer to Canada, were duly authorized by the Council of Assiniboia, and those apprentices who had served their full term of three years with a regularly authorized surveyor from any of the provinces of the Dominion, previous to the passing of any Act of the legislature of Mani'obfl. respecting surveys and surveyors, shall, on application to the secretary of the association, and on proof of the above facts, and payment of the fee required by the rules of the association, be entitled to a commission to practise as a provincial land surveyor in Manitoba. 'ii^ll 834 MANITOBA LBOI8I,ATIOW The petitioners claim that this dftuse, not heinjj in the bill im it was drafted and accepted by the government of Manitoba, was inserted during its passage through the assetnbiy, without the committee of the association being consulted, and against their views. They allege that should the said clause become law, it would have the effect of lowering the standard of the said profession, by allowing ignorant and un(|ualiKed persons to become members of the said association, anil to practice as provincial land surveyors, thereby causing great injury and inconvenie ice to the public, and would have the effect of defeating the object for which the saif some of the chapters. The titles to chaps. 16 and 24 are the same. The use of the same titles to different chapters should be avoided. Chap. 35. "^An Act to incorporate the City of Brandon." Chap. 36. " Charter of the City of Winnipeg, Manitoba, consolidated from ' Th Act of incorporation of the City of Winnipeg.' " 45 VKJTQiiiA, 1882. 835 lafted and Ii'dukIi the liitist their ('(Teot of led j)er.sons 1 surveyors, h the effect |further, in wird, they :ititioti. liouH tu the \f the said (lit reason , of course, he Act in regard to the action the Lieu- d for such fuBtice. he. Governor 5, 1883. by the legis- 1," was con- imber, 1882, }t respecting onsidered in r^incial Land the 6th day hapters 1 to an, but in so le chapters, me titles to from 'Th Chapter 3(5 relates to the charter of the city of Winnipeg?, and is consolidated from the Act of ihcorpuriition of that city and the Acts in aiimiidnioMt thereof. Tiiese Acts, chaps. 3.") mid .'Wi, are inucli alike in their terms, and, with one or two exceptions, tlie observations in regard to one will a|)|)ly to the other. The 3rd subsection of the Htli section of each Act makes provision for trying and punishing a person who assaults or beats any voter. This is an offence against the criminal lasv, and the sections should be amended accordingly The Gist section of each Act imposes a penalty of .$1,000 upon the city cierk, or other person wilfully altering or falsifying any certilied voters' list or copy thereof. This clause trenches upon the criminal law as to forgery, and should be amended so as to refer only to cases where the alteration is not wilful, or if this is not desired, should be repealed. liy the 78th section of chapter 35, it is provided that debentures shall bo valid and recoverable to the full amount, notwithstanding their negotiation by the corporation at a rate less than par, or at a rate of interest greater than G per cent per annum. By section 81 it is provided that in case of default being made in payment of the taxes of any person, the same shall l)ear interest at the rate of 10 per cent per annum until paid, and arrears of taxes shall bear interest at that i. » until paid. By the 96th section the council is given power to reilm in any lands taken in execution and sold by the sheriff, within five years from sale, by paying the purchaser of the lands the amount paid by him, together with the i.iterest at the rate of 8 per cent per annum. Similar p»-ovisicm8 are contained in the 78th, 81st aiid 96th sections of chapter 36. The ./ . signed has before had occasion to express the ojinion that where local legislatures enact provisions relating tc interest, it is advisibL; Lhat this be so done as ti, ;cognize the legislative authority of Parliament in vnis respect. No objection is taken to the legislature giving a corporation power to pay any legal rate of interest that may be agreed upon, or any fixed rate within the maximuui at the time allowed by law. These sections go much further, the 81at section being especially open to objo?Lion. The 3rd subsection of the 97th section, giving the city council power to make by-laws for providing for the inspection of gas meters, and the 3, 4, 5, 8, 10, 12, 16, 17 and 21st subsections of the lOlst section giving power to make by by-laws on matters touching, more or less closely, the subject criminal law, are also open to objection. Similar provisions are found in the corresponding sections of chapter 36. The same kind of legislation is, however, to be found in similar Acts of other provinces, and has been allowed to go into operation without doing more than calling attention to them, as any by-laws made under thf-e provisions? will probably come before the courts for decision, and as great confusion will arise if the Acts be disallowed, the undersigned thinks it better that they be left to their operation, and to the judgments of the courts. By chapter 35, section 101, subsection 2, and by chapter 36, section 101, sub- section 2, and sections 105 and 106, provisions are made in regard to the sale of intoxicating liquors in excess of the powers of the legislature. Since these ^Vcts were passed the decision of the Privy Council in Russell vs. The Queen has been given, and Parliament has legislated on the sul ject. As, however, these provisions were enacted anterior to the action taken by Parliament, and will become inoperative with other provincial legislation on the same subject whenever they conflict with the laws, the undersigned is not compelled to recommend the dis- allowance of these Acts. If these observations are approved, the undersigned recommends that the sub- stance thereof be communicated to the L u tenant-Governor of Manitoba for the con- sideration of his government, and for such action as they think advisable. A. CAMPBELL, Minister of Justice. 'Itl'i p-i it MANITOBA, 4G-47 VICTORIA, 1883. IsT Session — f>Tn Legislature, Report of the Honourable the Minister of Justice, approved by His Excellency the Governor General in Council on the 18th Februaiy, 1884- Department op Justice, Ottawa, 4th February, 1884. To His Excellency the Governor General in Council: The undersigned having had under consideration the Acts of the legislature of the province of Manitoba passed in the year 1883, respectfully recommends that the Acts mentioned in the schedule hereto be left to their operation. The remaining Acts have been reserved for a separate report. A. CAMPBELL, Minister of Justice. Schedule. Cliapters 2 to 13, 15 to 18, 20 to 37, 39 to 46, 48 to 53, 60 to 77, 79, 82, 84 to 92. Hon. Attorney- General Miller to the Hon. the Minister of Justice. Winnipeg, 6th February, 1884. Sir, — I have the honour to request that, upon submission to you of the Acts of the provincial legislature of Manitoba, 46 and 47 Victoria, for your report, you may be pleased to direct the attention of his Excellency the Governor General to certain pro- visions of chapter 80 tliereof, which appear to be unconstitutional, and beyond the jurisdiction of our legislature, namely, subsections one, nine and fourteen of section 126 and 127 of the said chapter 80. The sections above referred to, undoubtedly repeal, in so far as the city of Emerson is concerned, section thirty of chapter four of the statutes of this province, passed in the 44th year of Her Majesty's reign, and are inconsistent with the principle of separate taxation of the different denominations for school purposes, ac provided for by the Manitoba Act and the Imperial Act. As I humbly submit that His Excellency in virtue of the authority in him vested in such oases, may, in his di'-?retion, disallow the said Act, chaptered 80 of the statutes of Manitoba in whole or in part, it is respectfully suggested that, in each case, his Excellency may be pleased to determine that the disallowance of the said Act is proper or expedient, in so far as the above mentioned subsections one, nine and fourteen of said section 126 and section 127 are concerned, the question may be relegated to the executive of this province before such disallowance may be made, to the end that the legislature of this province may be affordeH an opportunity of repealing any unconsti- tutional provisions of said Act ; and make such other constitutional amendments or alterations that may be advised. The object in bringing these facts especially under your notice is, that it would be advisable to have the amendments and t Iterations made to said Act, in such a manner as would not affect vested rights, which i;ave been acquired by third parties, under or in virtue of any of the provisions of the Act above referred to. I have, &c., JAMEb A. MILLER, A ttorney- General. y ike Governor iry, 1884. legislature of lends that the emaining Acts of Justice, ), 82, 84 to 92. hce. 1884. lary, the Acts of the pt, you may be to oeriain pro- ind beyond the teen of section ;ity of Emerson ?]nce, passed in ^he principle of 3ro"ided for by ' in him vested • of the statutes 1 each case, his d Act is proper and fourteen of elegated to the le end that the g any unconati- amendments or hat it would be such a manner irties, under or ly- General. 47 VICTORIA. 1884. 837 MANITOBA, 47th VICTORIA, 1884. 2nd Session — 5th Legislature. Report of the Honourable the Minister af Justice, approved by His Ejccellency the Governor General in Council on the 27th August, 1885. Department op Justice, Ottawa, 24th August, 1885. To His Excellency the Governor General in Council : The undersigned has the honour to report with respect to the Acts passed by the the legislature of the province of Manitoba held in the year 1884 (47 Victoria) of which chapters 1 to 54, both inclusive, were received by the Secretary of State on the 27th day of August, 1884, and the remaining Acts, chapters 55 to 79, having been re- ceived on the 28th day of March, 1885 ; Having carefully considered the Acts, the chapters of which are carefully given in the annexed schedule, the undersigned respectfully recommends that they be left to their operation. The other Acts of the session, the undersigned will make the subject of special reports. All of which is respectfully submitted. A. CAMPBELL, Minister of Justice. Schedule. Chapters 1 to 10, 12 to 25, 27 to 31, 34 to 77 and 79. Report of the Honourable the Minister of Justice, approved by His Excellency the Governor General in Council on the 27th August, 1885. Department of Justice, Ottawa, 25th August, 1 885. To His Excellency the Governor General in Council : The undersigned has the honour to report Upon chapters 11, 32, 33 and 78 of the Acts passed by the legislature of the province of Manitoba in the session held in the year 1894 (47th Victoria.) 1. Chapter 11, intituled : "An Actio amend and revive the Acts relating to Municipalities." In reporting upon Acts of a similar character to .this, the undersigned has had oc- casion frequently to observe that some of the powers given to municipal councils appear, if the language is constructed in its natural sense, to be in excess of those which a provincial legislature may confer. For instance, by section 111 of this Act the councils are given, among -ther things, powers to make by-laws for (4) the prevention of cruelty to animals ; (11) 'he prevention and removal of nuisances, (37) the suppression of gam- bling houses. These are points which come with the scope of the criminal law, and any by-law madt< by virtue of the powers recited, which conflict with the general criminal law, would be invalid. Probably, however, there are provisions in the nature of police regulations which a council could make under these powers which would be in aid of, and jiol in conflict with, the criminal laws of the land. So far as theue provisions may be considered an authority for the exercise of such limited powers as these, the undersignijd sees no objection to them. '^5 p ■11 '4\ 838 MANITOBA LEOISLATION 2. Chapter 32, intituled : " An Act respecting Liquor Licenses." Chapter 33, in- tituled : " An Act to provide for the Revocation and Cancellation of Liquor Licenses in certain cases." The question of the relative powers of parliament and the legislatures respecting the liquor traffic, being still before the courts, it is unnecessary, the undersigned thinks, to discuss these Acts. But in recommending that under existing circumstances they be left to their operation, he wishes to guard himself against any inference that he believes the Acts to be within the legislative authority of a provincial legislature. 3. Chapter 78, intituled : " An Act to consolidate and amend the several Acts of incorporation of the City of Winnipeg." By section 35, subsection 2, it is provided that the occupant of property held by, or in trust for Her Majesty, shall, where it is occupied by any person otherwise than in his official capacity, be assessed in respect thereof. So far as this provision may be understood as authorizing an assessment against the occupant, for any part of the Crown's interest in the property or, in other words, for any greater interest than the occupant possesses therein., the undersigned would be inclined to the opinion that it is in conflict with the provision of the British North America Act, 1867, which declares that "no lands or property belonging to Canada or any province shall be liable to taxation." By section 149 the powers of the city council to pass by-laws are defined, among which will be found powers similar to those discussed in connection with chapter 11, and others of a doubtful character. By section 192 the power of arresting without warrant is given in certain cases to members of the city police force, and by section 193 a penalty is provided for assault- ing police officers. These are matters already dealt with by the criminal law as enacted by parliament, and the two sections last mentioned should, in the opinion of the undersigned, be re- pealed by the legislature of Manitoba. The undersigned recommends, in case this report is approved of, that the Acts mentioned be left to their operation, but that the substance of the report be communi- cated to the Lieutenant-Governor of the province of Manitoba for the information of his government, and for such action as they shall think necessary. A. CAMPBELL, Minister of Justice, Report of the Honourable the Minister of Justice, approved by His Excellency the Governor General in Council on the 27th August, 1885. Department of Justice, Ottawa, 25th August, 1885. To His Excellency tJie Governor General in Council: The undersigned has the honour to report upon an Act passed by the legislature of Manitoba, in the session held in the year 1884 (47th Victoria), chapter 26, and intituled: " An Act respecting Escheats and Forfeitures and Estates of Intestates." By this Act the provincial authorities are given authority, among other things, to take possession of property, real and personal, which escheats to the Crown by reason of the person last seized thereof, or entitled thereto, dying intestate and without lawful heirs, or which becomes forfeited to the Crown for any cause except crime, and to ad- minister and make dispositions of such property. The right of the Province of Ontario to real estate escheated by reason of the person last seized thereof dying without heirs, was established, by the judgment of the Lords of the Judicial Oci^mittee of the Privy Council in the case of the Attorney- General of Ontario vs. Me?. 8, App. Cases, 767), but their lordships in that case based their opinion upon i t; leservation to the provinces contained in section 109 of the British North America Aot, 1867, whereby all lands, mines, minerals and royalties belonging to the several provinces of Canada, Nova Scotia and New Bruns- 47 VICTORIA, 1884. 839 ter 33, in- Licenses pecting the thinks, to Is they be le believes il Acts of py held by, trwise than ision may part of the 1st than the ion that it 867, which e shall be ned, among )ter 11, and ain cases to for assault- parliament, gned, be re- it the Acts 3e communi- formation of Justice. ccellency the t, 1885. sgislature of nd intituled: )ther things, vn by reason thout lawful , and to ad- sason of the ment of the le Attorney- lordships in 3d in section linerals and New Bruns- wick, at the union, were declared to belong to the several provinces of Ontario, Quebec, Nova Scotia and New Brunswick, in which the same were situate or arise. But their lordships distinctly guarded themselves against being understood as deciding whether the words " royalties," in section 109 of the British North America Act of 1867, extended or not to other royal rights, besides those connected with the province in which the property is, or the Dominion is entitled to personal property escheated for want of heirs. It is also evident, the undersigned thinks, that the decision of their lordships, before referred to, is not a decision in favour of Manitoba, with respect to real projierty escheating for want of heirs. Manitoba, when it became a province, was not possessed of any lands, mines or minerals, and it was provided by the 30th section of tlie Mani- toba Act (33 Vic, c. 3), that all ungranted or waste lands in the province should, from and after the date of the transfer, be vested in the Crown and administered by the government of Canada for the purposes of the L»ominion, subject to the conditions con- tained in the agreement for the surrender of Rupert's Land by the Hudson Bay Com- pany to Her Majesty ; from which it would appear to be clear that the 109th section of the British North America Act, 1867, is not applicable to that province. For these reasons the undersigned recommends that the Act under discussion, 47 Vic, chapter 28, intituled : " An Act respecting Escheats and Forfeitures and Estates of Intestates," be disallowed. At the same time the undersigned is of opinion that the Lieutenant-Governor of Manitoba should be informed that your Excellency's government is ready to join with- his government in submitting to the courts for their decision the question herein dis cussed, so far as they aflPect the province of Manitoba. All of which is respectfully submitted. A. CAMPBELL, Minister of Justice. Order in Council disallowing the Act above mentioned, p^iblished in the Canada Gazette on the 29th day of August, 1886, Vol. XIX., No. 9, page 326, Deputy Minister of Justice to Secretary Department of Railways and Canals. Department op Justice, Ottawa, 25th August, 1885. Sir, — I am directed by the Minister of Justice to call the attention of the Minister of Railways and Canals to the following Acts respecting railways, passed by the legis- lature of the province of Manitoba in the session holden at Winnipeg on 13th March, 1884, and closed by prorogation on the 3rd June following. 1. Chap. 66, intituled: "An Act to amend the Act to incorporate the Northern Junction Railway Company." The 2nd section of this Act is as follows : — 2. The 3rd section of the said Act of incorporation is hereby amended by striking thereout the words : " The terminus of the Canadian Pacific Railway at Stonewall " in the fourth and fifth lines thereof, and inserting therein in the place of the said words " the city of Winnipeg," and adding thereto the following : " Provided always that the said company is hereby authorized to construct and operate a branch line of railway from any part of their line between Stonewall and Shoal Lake to the town of Selkirk." The 3rd secMon of the Act of incorporation is further amended by chapter 67, intituled : " An Act to further amend the Act to incorporate the Northern Junction Railway Company." The 1st section of which is as follows : — 1. The 3rd section of the Act of incorporation is hereby repealed and the following substituted therefor : — " 3. The said company shall have full power and authority to locate, build, make, furnish, operate, alter anu keop in repair a railway with double or single track, and an electric telegraph along the same, commencing at or near the city 63i m 1 840 MANITOnA LEGISLATION of Winnipeg, and running thence north-westerly to the northern boundary of the province of Manitoba, with power to construct a branch line from any point on the main line to a point at or near the city of Brandon, and the company shall have power to construct the different sections of the said railway in such order as they see fit, keeping in view the general directions as herein provided." 2. Chap. PS, intituled : " An Act to incorporate the Emerson and North-western Railway Company." By the 2nd section the company have full power and authority to lay out, con- struct, complete and operate an iron or steel railway from a point in the city of Emerson, in a north-westerly direction, to the town of Portage la Prairie, also a branch line from some point on the said line north of the Pembina Mountain branch of the Canadian Pacific Railway, in a westerly or north-westerly direction to the western boundary of the province. Provided that nothing herein contained shall be held as authorizing the building of the road within 15 miles of the International boundary, in the territory lately added to the Province. 3. Chapter 69, intituled : " An Act to incorporate the Manitoba Central Railway Company." By this Act section, 2 of chapter 56 of 46-47 Victoria, intituled : " An Act to in- corporate the Manitoba Central Railway Company," is repealed, and the following substituted therefor : — " 2. The said company shall have full power and authority to lay out, construct and operate a railway with double or single iron or steel track, and an electric telegraph line or lines along thi same, such railway to commence at the town of Morris, thence running westerly or north-westerly to the western boundary of the province, and from the town of Morris northerly to the city of Winnipeg, and a branch of said railway running easterly or north-easterly from the town of Morris to the Lake of the Woods ; Provided always, that no line of railway constructed under the authority of this Act, shall nin within 15 miles of the international boundary line, in that portion of the province which was ceded by Acts of the Parliament of Canada, and of the legislature of Manitoba, in the year one thousand eight hundred and eighty-one. 4. Chapter 70, intituled : " An Act to amend an Act to incorporate the Manitoba Central Railway Company and amending Acts." By the Ist section of this Act the Act last mentioned (chapter 69) is amended as follows : " By adding after the word " Winnipeg," in the seventh line thereof, the following words, " and from the town of Morris southerly to the boundary line of the said province, between the Red River and the first principal meridian in the said province," and by adding the following words to said section : " Provided, also, that no portion of said railway shall be built in the portion of territory added to this province in the year 1881, in such a way as to contravene the terms on which such territory was ceded to the province." , „ • i m i.i 5. Chapter 71, intituled : "An Act to incorporate the Brandon, Souris and lurtle Mountain Railway." , , • By the 3rd section of this Act the company " shall have full power and authority to locate, lay out, construct, build, make, furnish, operate, alter and keep in repair, a railway with one or more sets of rails or tracks, commencing from a point at or near the city of Brandon, thence south-westerly to a point at or near Turtle Mountain, and westerly to the western boundary of the said province of Manitoba, with power to build bridges, and construct and operate an electric telegraph line along the said rail- way, and the company shall have power to construct the diflTerent sections of said railway in such order as they see fit, keeping in view the general directions as herein provided ; Provided always, that the said company shall not construct any portion of its lines within 15 miles of the international boundary line between this province and the United States." , „,. . , -kt .. 6. Chapter 72, intituled: "An Act to incorporate the Winnipeg and North- eastern Railway Company of Manitoba." 11 of the It on the ye power fit, see hwestern but, con- city of branch [h of the western 47 VICTORIA, 1884. 841. By the 2nd section the " company have full power to lay out, construct, com- plete, maintain and operate an iron or steel railway from a point at or near the town of East Selkirk, in a northerly direction, on the east side of Lake Winnipeg, to a poiiit within the province at or near ' Family Lake ' or Berens River, and from the first-mentioned point, southerly, to the city of Winnipeg, and thence westerly on the south side of the River Assiniboine to the town of Portage la Prairie, crossing the River Assiniboine at such point as may appear to the company to be best, also a branch line from the town of East Selkirk westerly to any point on the main line of the Canadian Pacific Railway, or upon the Manitoba and North-western Railway east of the W hite Mud River." 7. Chapter 73, intituled : " An Act to give the tov/n of Nelson certain powers for the construction of a railway." By the first section "the town of Nelson, hereinafter called 'the town,' shall be, and hereby is, authorized and empowered to lay out, construct, complete, equip and operate a line of railway and electric telegraph from any point within the town, to connect with the Pembina Mountain Branch of the Canadian Pacific Railway at or near Morden, a station on the said branch." I am to state that the Minister of Justice sees no objection to leaving these Acts to their operation, except there are objections touching the general railway policy of the Dominion, and so far as he is able to judge, there is no objection from this point of view, to leaving chapters 66, 67 and 71 to their operation, but with respect to this, as well as to the question as to how far the other chapters may be in accordance with the policy of the gr ernment respecting the granting of charters to railways in Manitoba and the North-west Territory, he would be glad to be favoured with the views of the Minister of Railways and Canals. I have, etc., GEO. W. BURBIDGE, Deputy Minister of Justice. Secretary of Department of Railways and Canals to Deputy Minister of Justice. Department op Railways and Canals, Ottawa, 20th February, 1886. Sir, — Replying to your letters of the 25th of August and 21st of January last, by which you ask to be informed as to the views of the minister of this department in respect of certain railway Acts passed by the legislature of the province of Manitoba in the session of 1884, I have the honour by direction to state that the charters so granted to the undermentioned railways should be disallowed, namely : — The Emerson and North-western Railways and the Manitoba Central Railway Company. With regard to the other lines enumerated, the minister does not consider that interference is necessary. I have, (fee, A. P. BRADLEY, Secretary. I • ' Report of the Hon. the Minister of Justice upon Chapters 68, 69 and 70, appi'oved by His Excellency the Governor General in Council, on the '22nd March, 1885, Department op Justice, Ottawa, 25th February, 1886. To His Excellency the Governor General in Council : The undersigned has the honour to report upon the Acts of the legislature of the rovince of Manitoba passed in the session held in the year 1884, which are mentioned n the annexed schedule, and which were reserved for a separate report. 842 MANITOUA LEGISLATION With the papers will be found correspondence between the Minister of Justice and the Ministerof Railways and Canals with respect to these Acts. From this correspond- ence it will be observed that the Minister of Railways and Canals is of opinion that the Acts relating to the Emerson and North-western Railway Company and the Manitoba Central Railway Company should be disallowed. The undersigned understands that the objection of the minister to these Acts is based upon an apprehension that tViereby the companies mentioned will be able to divert trade from the Canadian system of railways to the railways of the United States and that the objection applies to : — Chapter 68, intituled : " An Act to incorporate the Emerson and North-western Railway Company," and Chapter 70, intituled : " An Act to amend an Act of incorporate the Manitoba Central Railway Company," and amending Acts, but not to Chapter 69, intituled : " An Act to amend an Act to incorporate the Manitoba Central Railway Company." The undersigned has the honour respectfully to submit the correspondence for the consideration of your Excellency in Council. JNO. S. D. THOMPSON, Minister of Justice. Report of a Committee of the Honourable the Privy Council, approved by His Excellency the Governor General in Council, on the 22nd March, 1886. On a memorandum, dated 25th February, 1886, from the Minister of Justice sub mitting the correspondence with the Minister of Railways and Canals with respect co certain Acts of the legislature of the province of Manitoba passed in the session of 1884, and which were reserved for a separate report. The minister observes that it will be seen from this correspondence that the Minister of Railways and Canals is of opinion that the Acts relating to the Emerson and North- western Railway Company and the Manitoba Central Railway Company should be disallowed. The minister further observes that the objections of the Minister of Railways and Canals to these Acts is based upon an apprehension that thereby the companies mentioned will be able to divert trade from the Canadian system of railways to the railways of the United States, and that the objection applies to : Chapter 68, intituled, " An Act to incorporate the Emerson and North-western Railway Company," and chapter 70, intituled, " An Act to amend the Act to incorpo- rate the Manitoba Central Railway Company," and amending Acts, but not to Chapter 69, intituled, " An Act to amend an Act to incorporate the Manitoba Cen- tral Railway Company." The minister submits the correspondence for the consideration of your Excellency in Council. The committee advise that the Acts of the legislature of Manitoba passed in the session held in the year 1884 : Chapter 68, intituled, " An Act to incorporate the Emerson and North-western Railway Company, and Chapter 70, intituled, " An Act to amend an Act to incorporate the Manitoba Cen- tral Railway Compuny," and amending Acts, be disallowed accordingly ; but that the power of disallowance be not exercised with regard to the Act Chapter 69, intituled, "An Act to amend an Act to incorporate the Manitoba Cen- tral Railway Company." ^ JOHN J. McGEE, Clerk, Privy Council. Order in Council disalloiving chapter 68 and 70, published in the Canada Gazette on the 27th March, 1886, Vol. XIX., No. 39, page 1366. Jistice and [rrespond- that the [anitobs pe Acts is to divert States and Ih-westem ■Manitoba iManitoba ce for the slice. Excellency istice sub respect co n of 1884, e Minister nd North- should be Iways and nentioned ays of the h-western ) incorpo- toba Cen- xcellency id in the i-western oba Cen- that the ;oba Cen- tcil. te on ther 48 VICTORIA, 1885. 843 MANITOBA, 48th VICTORIA, 1885. 3rd Session — 5th Legislature. Petition from Residents of Manitoba with respect to Chapter 17, To His Fxcellency the Goiyrnor General in Council : The petition of the undersigned residents of Manitoba, representing the varied commercial and industrial interests of the province, humljly showeth : — Tha'u at the last session of the legislature of Manitoba, an Act was passed (chapter 17) entitled "An Act respecting the Administration of Justice," a copy of which, with a digest of a portion thereof, accompanies this petition. That certain ex- emption provisions embraced in said Act, while making radical changes in the relation- ship of debtor and creditor in this province, must, if allowed to remain in force, prove a barrier to the progre-s and settlement of Manitoba, a hardship upon its struggling settlers, and a great injustice to financial and commercial interests. Befoie referring to the objectionable provisions of the Act, let us state that previous to its passage the exemption law of Manitoba was much more liberal and generous to the debtor than that of any other province of the Dominion, and while affording an effectual protection of the homestead of the settler from a rapacious creditor, did not place the former beyond the reach of legal measures by which debts could be collected from him. Also, that the passing of the Act of the past session was accomplished by our local legislature in a hurried manner, and during a time of excitement over the out- break of rebellion in the adjacent territory of the Nor'.hwest, and consequently did not receive that carefu; consideration by the legislature, or opportunity for public considera- tion of its provisions which such an important measure was entitled to. And further, that pre\ious to its passage there had been no public cry against the then existing exemption law, no petition presented for any changes therein, and as far as the desires of the public were concerned there existed no necessity whatever for the passing of the Act against which your petitioners complain. Furthermore, previous to the passage of the Act, a deputation from the Winnipeg Board of Trade waited upon the members of the local government and the committee of the House, and after urging the withdrawal of the bill, and failing to secure the same, received from the members of said committee, promises as follows : — First. That the Act should not lie made retroactive, or to affect in any way debts contracted before its passing. Second. That while a homestead should be exempt from seizure and sale so long as the settler actually occupied and used the same, judgments should hold to the extent of preventing the sale or abandonment of same. Both of these promises have been disregarded, as the copy of the Act now fur- nished plainly tihows. Your petitioners wish first to draw attention to the injustice of the Act to credi- tors both in this and other provinces. By the terms of the same, agricultural residents have exempt from execution one hundred and sixty acres of land, while there is practi- cally no limit to the value of buildings, machinery and so forth thereon, which are also exempt. In cities and towns a debtor has exempt real estate to the value of twenty-five hundred dollars and personal property to the value of five hundred dollars, and no judg- ment obtained or registered against any debtor, can be placed as a lien against such real estate in either case, or in any way prevent the debtor from granting a clear title in case he wishes to sell or mortgage. There is therefore, an effectual cover provided for dis- honest debtors, who have increased the value of their exempt property by credit ob- tained, to sell out, pocket the proceeds of sale, put their creditors at defiance, and leave the province. 844 MANITOBA LEGISLATION But the greatest injustice of the Act lies in its being retroactive, in that it applies to debts contracted before, as well as after its passage. In this new province, which has naturally attracted a very considerable number of immigrants, many of whom have but limited means, the building up to a certain extent of a system of credit has been inevitable, and the aggregate of debts owed by the residents of the province is necess- arily large, and the retroaction of this law places a very large proportion of this in- debtedness beyond the possibility of collection by any process of law, although the obli- gations were incurred with all the privileges of the former law available to creditors. Thus the liberal creditor who has acted with leniency and generosity to his struggling neighbours, must now l)e the sufferer. The effect of the objectionable Act upon the progress and settlement of the province is another point well worthy of the consideration of your Excellency. The action of banks, loan companies, and other financial and commercial institutions, firms and indi- viduals will undoubtedly be to curtail greatly, and in some cases to entirely close down on credit except so far as the very objectionable system of chattel mortgage security is adopted. There is practically no other safe course open to them, and its adoption will be nothing short of a calamity to the whole province, and especially to that portion of our settlers who are not possessed of the means to carry on either trade or farming on a cash basis. While believing that the time is specially inopportune for the passing of such an Act in this province, your petitioners also venture to suggest, that the interests of trade in the Dominion at large forbid the passing of an Act in any local legislature, inter- fering so violently as this Act does with the rights of creditors. Your petitioners further beg to draw the attention of your Excellency to another Act passed in the same session of the Manitoba legislature, a copy of which is attached hereto, entitled " An Act to amend Chapter 37 of the Consolidated Statutes of Manitoba." This Act has been repealed by the Administration of Justice Act already referred to, but will again come into force by the disallowance of the last-mentioned Act. It therefore becomes necessary to draw your Excellency's attention to the provisions of this repealed Act. These provisions, your petitioners submit, are open to the same objection as the Administration of Justice Act, and should also be disallowed. After weighing carefully these and other considerations, as we rest assured, your Excellency will, your petitioners pray that your Excellency may be graciously pleased to disallow both of the Acts above referred to, and allow our province to return to the law in force before their passing, which furnished ample protection to the debtor against oppression, while causing no injustice to the creditor. And your petitioners as in duty bound will ever pray. Petition of Montreal Board of Trade. To His Excellency the Most Honourable Henry Charles Keith Petfy-Fitzmaurice, Marquis of Lansdoivne, &c., Governor General of the Dominion of Canada, in Council. The petition of the Montreal Board of Trade, and of merchants, manufacturers, bankers, tkc, of the city of Montreal, humbly showeth : — That your petitioners are informed that under the designation of " An Act for the better Administration of Justice, 1885," the legislature of the province of Manitoba has recently enacted a homestead exemption law, the essential provisions of which are of a comprehensive and extraordinary kind ; ' That your petitioners would not call in question the right of the legislature of Manitoba, or of any other province in the Dominion, to make adequate provision for the faithful administration of justice within its bounds, or to enact a fair and equitable homestead exemption law that would not only invite settlers, but which would assist in it applies ;e, which horn have hiis been i nocess- tliis in- the obli- creditors. itruygiing province action of and indi- ose down ecurity is Jtion will lortion of ' such an s of trade ire, inter- another i attached ;atutes of y referred Act. It )ns of this )n as the ired, your y pleased rn to the or against providing for the maintainance of the families of honest and industrious, but unfortu- nate settlers, who miglit become iinanoially embarrassed by the vicissitudes of trade ; That your petitioners have, however, been informed that the aforesaid homestead exemption law is retroactive in its action, and that it is believed hundreds of thousands of dollars will, in consequenc,:s, be taken from innocent creditors in other provinces who could not, at the time these debts were incurred, have anticipitated or protected them- selves from the intervention of such a statute as that herein mentioned, which is certain to be taken advantage of to prevent the payment of what is justly due to them, in consequence of credit extended aforetime to merchants, traders and others in the province of Manitoba ; r'^o^nSThat your petitioners, as well as many others elsewhere, have had extensive busi- ness connections with the people of tiie province of Manitoba, entered upon in good faith, and where the inteiests of creditors could not be imperilled by the unjustly broad exemption of the homesteo/d exem[)tion law in question ; That it appears to your petitioners, however, that the provisions of this unexpected homestead exemption law may now, at any moment, be invoked to prevent the payment of just debts arising out of business transactions which have heretofore taken place, so that confiding creditors in other provinces have unexpectedly had their just rights legislated away, by a so-called Act to provide for the better administration of justice. Wherefore your petitioners do most earnestly represent that there is pressing necessity for a full and careful examination into the character of the homestead exemption included in the aforesaid "Better Administration of Justice Act, 1885," of the province of Manitoba, with a view to disallowing it, at least so far as its provisions may be e.i; post facto and unconstitutional, or for fixing a future date at which its provi- sions might come into operation, so as to admit of existing transactions between debtors and ci editors in Manitoba being equitably arranged. And your petitioners, as in duty bound, will ever pray, kc, ifec. JOHN KERRY, President Montreal Board of Trade. Wm. J. PATTEnSON, Secretary. Montreal, 4th June, 1885. Petitions praying for a disallowance of the Act vera also received from the Cana- dian Binders Manufacturers' Association, from the principal loan companies, from the Boards of Trade of Brantford, St. Thomas, Hamilton and Toronto, from certain banks in the province of Quebec, from certain banks and merchants of the Maritime Provinces, and from residents and ratepayers of the province of Manitoba. , Marquis mail. facturers, 3t for the litoba has I are of a lature of vision for equitable assist in Hon. Mr. Torquay to tJie Hon. the Minister of Justice. Treasury Department, Winnipeg, Man., 28th July, 1885. My Dear Sir Alexander, — In reply to yours of the 9th July, informing me that you had been waited upon by a deputation partly from Hamilton,, Toronto, and Montreal, declaiming against the exemption provisions in our Administration of Justice Act, I beg to inclose you the opinion of the Deputy Attorney General in reference to the consequences that would result from a disallowance of the said Act. I may add that it is doubtful whether the judges will hold that the Act is re- troactive in effect, and I think I may safely say that if it should be declared so the same can be modified at the next session of the legislature. The gratuitous insinuations made by these gentlemen might better, in my opinion, have been omitted, for if anything would justify such action on behal(|)of the community, it is the rapacity of these same creditors, who, not satisfied with a lien upon the articles they dispose of, insist upon 846 MANITOUA LKCIIHLATION executions upon all the unfortunate debtors' chattels and real estate, to satisfy their judgments, rendering? it impossible for any man who has been unfortunate in businoHs to remain in the country, and compelling him to seek immunity from persecution by leaving the country. I remain faithfully yours, J. NORQUAY, Premier and Provincial Treanurer. Deputy Attorney General to Hon. Mr. Norqtiay, Deputy Attorney General, WiKNiPEfi, Man., 14th July, 1886. Sir, — I have th« honour to acknowlecge receipt of your letter of the 13th instant, and in reply I bei; to say that as all the arguments for and against the Act are ■well known to you, I can only add that, if the Act were disallowed at the present juncture, it would be a matter of very serious inconvenience in the courts ; because many little changes and amendments have been effected by the Act, as well as a great many impor- tant provisions introduced, which had been omitted in the former consolidation or had not been previously enacted. I might, for instance, mention the ixnprovement in the definition of the powers of the Court of Queen's Bench, and provisions relating to napias. The profession have no doubt acted, in many cej&ea, under the new provisions of tlie Act, and a return to the old system would cause trouble and inconvenience in almoftt every caRB, whilst, in some, it might happen that a remedy might be entirely lose. It is almost imposaible to say what complications might arise, each case would develop its own, and the operation of the machinery of justice being thus constantly interrupted, would prove a very serious inconvenience. The revival of the laws repealed by the Administration of Justice Act of last sesBion would, in many cases thus lead to confu- sion, and, perhaps, prove a greater evil in the end than allowing the Act to remain in force until another session, when it might be modified in such a manner as to remove the objections now taken to it. From M'hat I hear on the street, I should say that the people would be satisfied, as a rule, to have the Act to remain in force as it is ; but those who have suits pending, or judgments unsatisfied, are naturally discontented. It appears to me that an amendment to the effect that the exemptions should not efl'ect executions in suits pending at the time the Act came into force, or judgment,'! then standing unsatis- fied, would be but fair, and would give general satisfaction. Yours obediently, L. W. COUTLEE, Deputy Attorney General. Hon. Attorney General Hamilton to the Hon. Minister of Justice. Department of Attorney Generai., Winnipeo, Man., 27th November, 1885. Sir, — During the last session of the legislature of this province, we passed a law under the title of " The Administration of Justice Act," which among other things dealt with the question of exemption. The feeling in the House that a law should be made similar to that in the western states, was very strong. It was argued that it would affect the policy of immigration into this country, if v,'e did not give as liberal inducements as those of our neighbours. This view prevailed, and by section 117 of the Act I refer to, the exemptions were brought into force. There was a very strong feeling among the boards of trade here and in Ontario and Quebec against the law, the principal objection urged being its retroactive effect. An effort was made to have wn' ! 48 VICTORIA, 1886. 84/ «y their businoHH ition by K»'er. [885. instant, are well juncture, any little ny impor- on or had nt in the to liapian. i tlie Act, lost every 3st. It is levelop its t«rrupted, ad by the to confu- remain in to remove y that the ; but those It appears 3xecutions ig unsatis- leral. r, 1885. ised a law ler things should be ed that it as liberal on 117 of ry strong the law, e to have the Act disallowed at Ottawa. This in my opinion would be most unfortunnto, as it would create- a great deal of irritation in the province, and bo considered an lu'bitrary act on the part of the FtMlenvl (Government. I had an interview in Ottawa with your predecessor, Sir Alex. Campl^ell, on this matter, and suggested that, it would be better to let the Act stand, and introduce a bill at the next meeting of the legislature, declaring the Act not to be retroactive. The (jupstion has since risen in my mind whether it could l)e construed to have such an e'dect. I take it that the remedy afforded either party for the enforcement of the obligation of the ctmtract made, and entered into, formed a part of the contract to such an extent that it could not be destroyed or matevially allected by subsequent legislation, without impairing the obligation itself, and that no statute could be upheld which would go to this longth. There was a case, an American one. Swift vh Fletcher, 6 Minn. llep. 560, and another case, Skalack vs. Harmon, 6 Minn. 255, in which a statute undertook to compel a mortgagee to elect whether to proceed against the debtor, or seek satisfaction from the security, and in case of hi^ choosing the former, releasing the latt«r. This statute was held void for the reason that it deprived the creditor of the remedy given by the law at the date of the contract. When this Act of our legislature came into force on the 1st July, could it be said that contracts entered into prior to that date, for which certain remedies existed, namely, the right to fnllow certain properties of the debtor by execution, could be im- paired by the statute. The ideas of the validity of contract and the remedy are insepa- rable, and both are parts of the obligation. The American law on the subject seems to be: — " To render an interference with the remedy of such a charactijr as to amount to an impairment of the obligation, it is not essential that there should be an utter destruc- tion of the same. " If the law so changes the remedy that it does not leave a party any substantial means of enforcing the contract, according to the courts of justice as it existed at the time the contract was made, it is a law impairing the obligation." Any law of this nature there would be held to be unconstitutional. I may say concerning the present law that I have made very careful inquiry throughout the country to find if any prejudicial effect on the right of creditors has been caused by its enactment ; and I have found none. On the contrary, obligations have been met this present year with greater promptness than in the year preceding. The Act is generally commended by the whole farming community. I think your own experience will bear me out, that where a party does not intend to meet his obligations, he can easily find some method of placing his property beyond the control of his credi- tors; and that credit must rest mainly upon the personal honour of the man who obtains it. If the present Act curtails the credit system, I do not think the country will suffer any loss through it ; but even in thi.s direction I fail to find a single case where the extent of the exemptions has prevented any man from obtaining reasonable credit. By giving Bome measure of protection, farmers are enabled better to meet their obligations than formerly. I send you a copy of the Act, and you might discuss the matter with Sir Alex- ander Campbell. If you consider that the Act has a retroactive effect, and would affect remedies arising under contracts entered into prior to the time the Act came into force, and further consider that it would be wise to get rid of the retroactive effect, I will introduce a bill for that purpose s-t the coining session. I am, however, inclined to the opinion that the Act has not the effect ascribed to it. No case so far has been brought into our courts. I have, &c., C. E. HAMILTON, Attorney General. 848 Mj\MTOIIA LKtllHLATION The Hon. MimHler of Justice to Hon. Attorney General Ilatnilton, Dei'autmknt op Juhtice, Ottawa, 2nd Decemlwr, 1885. Sin, — I am in receipt of your letter of the 27tli ultimo, referring to an Act passed at the last KCHsion of the Manitoba legiHlature, under the title of chapter 17 : "An Act respecting the AdminiHtrution of .lu.stico." In Htating the position that a statute could not opeiate to impair existing obligations, and that otio having such an operation would be deemed voiil, I think you have not given due weight to the distinction which exists in that respect between the constitu- tion of the United States and that of Canada. The cases which you refer to, and many others in the same direction, depend upon the provision of the constitution of the United States, which restricts state legislatures from passing Acts having tendency to impair contractual fibligations. Such statutes are void in the United States ordy in conse([uence of that provision, which does not form pai't of our constitution. In my ojiinion the exemptions created by the Act in question would prevail against any process issued after its coming into force, but whether I am right in that view or not, and without conmiitting myself to any course in regard to the applicaticm for disallowance, I would like to express strongly the hope that the inti- mation which you gave to my predecessor would be carried out, and the exemptions made inapplicable to debts incurred prior to the passage of the Act in question. I have, i&c., JNO. S. D. THOMPSON, Minister of Jus e. Report of the Honourable the Minister of Justice, approved by His Excellency the Governor General, in Council on the 13th January, 1881. Department op Justice, Ottawa, 10th January, 1887. To His Excellency the Governor General in Council : The undersigned has the honour to submit his report upon the statutes passed by the legislature of the province of Manitoba in the session held in the year 1885. (1.) Chapter 15 is an Act respecting the Court of Queen's Bench. By the 9th section the court is given jurisdiction among other things to decree the issues of letters patent from the Crown to rightful claimants. This provision would be wholly unobjectionable if limited to the Crown in the right of the province of Manitoba, and perhaps that is the fair interpretation of it. It would appear to be in excess of the powers of the legislature of Manitolja, if intended to give the court authority to decree the issue of letters patent from the Crown in the right of the Dominion. By the 10th section the court is given jurisdiction in certain cases to decree alimony, and it might, the undersigned thinks, be contended that this was a matter incident to marriage and divorce, which is exclusively within the legislative authority of the Parliament of Canada. By section 14, the precedence and rank of the chief justice and the other judges of the court are prescribed, and by the 16th section the judges of the court are author- ized to exercise jurisdiction in the territories under authority of ^our Excellency, or of any Act of the Parliament of Canada. All the provisions to whicli attention has bt-en called are contained in previous statutes of Manitoba, and, having directed attention to them, the undersigned recom- mends that the Act be left to its operation. -' ihh:). |\t't piisHcd "An A(!t '>lij{uti()HH, liiivo not conntitu- pi'tuJ upon K'islatureH 111 Htatutes h does not 1(1 prevail > light in vd to the tt the inti- xeinptions •ellency (he 1887. passed by iecree the wn in the of it. It intended wn in the to decree a matter authority 3r judges e autlioi'- icy, or of previous id recora- 4H vicTOiiiA, JHKr». H49 i?, (2.) (!lia|)t(>r 17 in an Act respoctin^f the Adininistratioji of ilustice. iy the 1 17th Hcclion of this Ark proviHiun is niadn to tixcMiipt (K^rtain roal and per- sonal «statt»fioni sci/.uni undor writs of execution issiicd out of any court in the pi'o\ince. A large iiuinltorof petitions weni received praying for the disallowance of this Act, on account of the |)roviHions of this sectictn, it heing alleged that the excMiiptiotis were so great that the Act was unjust in its operation. Jt is clear, however, thai the .\ct in this res|)ect is within the legislative authority of the legislature of Manitoba, and as that legislature at its last session amended the section in (|uesti(.n, o that its provisions would not he retroactive, the undersigned is of opinion that the Act, so far as this section is concerned, should he hsft to its operation. Sections 1 Ki, 177, 184, 192, 191, 19(i, and 197 contain provisions respecting juries l)oth in civil and criniiiuil jjiocoedings. It has hitherto been the policy of th(» Parliament of Canada in its l(>gislation respecting the criminal law to adopt the legislation in each j)rovince respecting juries, so far lis the same is consistent with the .special legislation of the Parliament of Canada on that subject, and in view of this the undersigned does not think it necessary to examine too clo.sely into the provisions of the section referred to. If and so far as, they are inconsistent with the special legislation of the Parliament of Canada, they will have no force, and so far as they are consistent thereunto, they are recognized by the legislation of Caiunla. The undersigned therefore recommends that chapter 17, intituled: "An Act respecting the Administration of Justice," be left to its operation. (3) Chapter 18, intituled: "An Act to amend Chapter 37 of the Consolidated Statutes of Manitoba," relates to certain exemptions from execution in proceedings in equity, and stands in a position similar to that of section 117 of the Act last referred to. The undersigned rer mmends that this Act be left to its operation. (4.) Chapter 20 purports to be "An Act respecting Promissory Notes and Jiills of Exchange," but it is really an Act respecting evidence, and on that ground the under- signed recommends that it be left to its operation. It is, however, unfortunate that it should 1)1 entitled " An Act re.specting Promissory Notes and Bills of Exchange," in view of i .10 fact that this a stibject within the exclusive legislative authority of the Parliament of Canada. (5.) Chapter 20. " An Act to consolidate and amend the Acts relating to Town Corporations." In recommending that this Act be left to its operation, the undersigned desires to observe that as in similar cases, to which attention has frequently' been called, the legislature in defining the powers of corporations, has included some which are at least of doubtful authority. (6.) Chapter 28, " An Act respecting real property in the Province of Manitoba." Section 146 makes provision for the punishment of certain offences against the Act which in some respects appear to trench upon the criminal law. (7.) Chapter 41, " An Act to amend Chapter 58, Consolidated Statutes of Mani- toba, and Chapter 15 of 46 and 47 Victoria, of Statutes of Manitoba." By the 2nd section it is provided that the superintendent of the Manitoba asylum for the insane shall not be compelled in certain cases to obey the subpoena in any case, civil or criminal. So far as this affects procedure in criminal cases, it is ultra vires of the legislature of Manitoba. Section 5 also appears in some respects to trench somewhat upon the criminal law. (8.) The undersigned has submitted separate reports in respect of chapter 2, intituled : " An A.ct respecting the Lieutenant-Governor and his deputies ; " and chapter 45, intituled : " An Act to incorporr m the Rock Lake, Souris Valley and Brandon Railway Company." (9.) The undersigned having carefully considered the other Acts passed by the legislature of the province of Manitoba in the session held in the year 1885, chapters 1, 3 to 14, 16, 19, 21 to 25, 27, 29 to 40, 43, 44, 46 to 55, recommends that they be left to their operation. flji 4li \ The undersigned further recommends that the substance of this report, ii approved be communicated to the Lieutenant-Governor of Manitoba for the information of his advisers. Ail of which is respectfully submitted. JNO. S. D. THOMPSON, Minister of Justice. Report of the Hon. th of railway the Canadian , except such a thin 'fifteen B North-west ich establish- irnment, and •ed the view the essential ly Act, the le with that given to the Canals. i), published page 40S. Beport of the Hon. the Minister of Justice approvea by His Excellency tfie Governor General in Council on the 2nd October, 1888. Department of Justice, Ottawa, 2nd July 1888. To His Excellency the Governor General in Council : The undersigned has the honour further to report upon the the following Acts of the province of Manitoba passed in the year 1887, namely, chapters 8, 9, and 20. Chap. 8. An Act to amend cap. 45 of 49 Victoria. The original act of which this chapter is an amendment is, in the opinion of the undersigned, substantially an Insolvent Act, and many of its provisions are therefore, idtra vires of a provincial legislature. The original act, however, having been left to its operation and the question of its validity, as well as the passing of similar enactments in other provinces being now before the superior courts of the Dominion for adjudication, it is not necessary, in the opinion of the undersigned, that this amending act should be disallowed. The undersigned, therefore recommends that the same be left to its operation. Chap. 9. An Act respecting County Courts. Section 9 of this act makes provision for the appointment of a deputy in the event of the illness or the unavoidable absent of a county court judge, but the undersigned begs to call attention to this section and to state that in his opinion, a provincial legislature has no power to define or limit the qualifications of any county court judge, that being an infringement upon the appoint- ing power of the Governor General under the provisions of the British North America Act. Section 92 of the said Act provides as follows : " In case any person in any examination wilfully and corruptly swears (or aifirms) falsely in any matters where an oath affidavit or affirmation is required .or allowed in this Act, he shall be liable to be ordered into custody and to be prosecuted for the said offence according to law : " This section relates to a matter of criminal law, as it declares that a person com- mitting perjury may be proceeded against, which is not, in the opinion of the under- signed, within the competency of a provincial legislature. It seems, however, only to be declaratory of the existing laws. Section 231 of this Act provides for the punishment of persons assaulting officers of the law in the discharge of their duty. The offence referred to in this section is provided for by chapter 162 of the Revised Statutes of Canada. Section 34, and the section itself is in the opinion of the undersigned an infringement upon the powers of the parliament of Canada in this respect. The undersigned, however, is of opinion that the whole act may be left to its operation, but the attention of the Lieutenant-Governor of Manitoba should be called to the sections referred to with a view that his advisers may be moved to promote legislation respecting them. .it:iiM: 860 MANITOBA LEOIHLATION Chapter 20, an "Act respecting tho Treasury department an^l the Auditing of the Public Accounts." Section 55 of this Act provides as follows : " If any revenue olficor at any time refuses or fails to pay over or deliver up any chattel, money or valuable security belonging to Her Majesty, to any officer or person, who, being duly autliorized by the Lieutenant-Governor in council demanded the same, he shall for every such refusal or neglect incur a penalty of one thousand dollars, or in defdult of payment be liable to imprisonment for a period not exceeding twelve months." This section is in conflict with the provisions of chapter 164 of the Revised Statutes of Canada, section 35 : " The Larceny Act," and is an encroachment upon the criminal law. The undersigned, however, does not recommend that the power of dis- allowance 1)6 exercised in respect of the whole Act which is an Act very largely in the public interest, but that the attention of the Lieutenant-Governor be called thereto with a view to its repeal or appropriate legislation. Respectfully submitted, J NO. S. D. THOMPSON, Minister of Juxtici:, COBBESPONDENCE EXCHANGED WITH THE ImPERIAI. GOVERNMENT C WOERNING THE DISAL- LOWANCE OF THE Railway Acts of Manitoba. The Governor General to Secretary of State fur Cdoniea. Government House, Ottawa, 4th January, 1888, Sir, — I have the honour to inclose herewith copies of the following documents : — (1.) Despatch addressed by the Lieutenant-Governor of the province of Manitoba to the Dominion govprnment transmitting a memorial to Her Majesty in Council upon the subject of the disallowance of the Red River Valley Railway Act, and other rail- way charters ; the memorialists praying to be heard before Her Majesty in Council in reference to these disallowances. (2.) An approved report of the Privy Council of Canada inclosing a memorandum, which has been prepared by my ministers of the Interior and of Justice, upon the matters dealt with in the above mentioned memorial. I have, «kc., LANSDOWNE. Petition of Executive Council of Manitoba to Her Majesty the Queen. \ To Her Moat Excellent Majesty in Council : May it please Your Majesty, — The memorial of the Executive Council of the province of Manitoba, Dominion of Canada, humbly showeth : — 1. That it was amongst other things provided by the 16th section of "The British North America Act " that it should be lawful for the Queen, by and with the advice of Her Majesty's Most Honourable Privy Council, on addresses from the Houses of the Parliament of Canada, to admit Rupert's Land and the North-western Territory, or either of them into the union, on such terms and conditions in each case as are in the addresses and as the Queen thinks fit to approve, subject to tte provisions of said British North America Act. 2. That on address from the Houses of Parliament of Canada, the Queen, by and with the advice and consent of Her Majesty's Most Honourable Privy Council, under [iiig of the jer up any |or person, the same, I'lrs, or in months." \e Ilevised upon the i^er of diH K«'ly in the rfl tliereto IxflCfl, HE DlSAL- 1888. uments : — Manitoba uncil upon other rail- Council in lorandum, upon the ^NE. oil of the e British advice of IS of the ritory, or ■re in the I of said I, by and il, under the authority of the said 14()th section of "The Britisli North America Act, 1867," did, by Order in Council in that l)ehalf, iidniit Rupert's Lund and the North-westoi n Ter- ritory ii.to the union, or Dominion of Canada, and there was formed out of the same, the province of Manitoba, wliich theiuefortli oecamo one of the provinces of the Dominion of Canada, which province of Manitoba was then bounded us follows, tliat is to say : Commencing at the point where the meridian of ninety-six degrees west longi- tude from Greenwich intersects the parallel of forty nine degrees north latitude ; thence due west along the .said parallel of forty-nine degrees north latitude (which forms a portion of the boundary line l)etween the United States of America and the said North- western Territory) to the meridian of ninety-nine degrees of west longitude ; thence due north along the said meridian of ninety-nine di-grees west longitude to the intersection of the same with the parallel of fiftv degrees and thirty minutes north latitude ; thence due east alnng the said parallel of fifty degrees and thirty minutes north latitude to its intersection with the before mentioned meridian of ninety-six degrees west longitude ; thenco due south along the said meridian of ninety-six degrees west longitude to the place of the beginning. 3. That the tenns and conditions on which Manitoba was admitted into the union and became one of the provinces of tho Dominion of Canada are set forth in the Act of the parliament of Canada, 32 an 1 35 Victoria, chapter 3, and amending Acts, which Acts are styled and known as "The Manitoba Act." 4. That it is provided by the second section of " The Manitoba Act " that on, from and after tho said day on which the order of the Queen in Council shall take efl'ect as aforesaid, the provisions of the said British North America Act, 1867, shall, except those parts thereof which are in terms made, or by reasonable intendment may be held to be specially applicable to, or only to affect one or more, but not the whole of the provinces now comprising the Dominion, and except so far as the same may be varied by this Act, be applicable to the province of Manitoba in the same way and to the like extent as they apply to to the several provinces of Canada, and as if the province of Manitoba had been one of the provinces originally united by the said Act. 5. That it is amongst other things provided by the 92nd section of the British North America Act that in each province the legislature may exclusively make laws in relation to matters coming within the classes of subjects therein enumerated, and sub- sectioiis 10, 11 and 16 of said section 92 are in the words following : — * 10. Local works and undertakings other than such as are of the following classes : — "(a.) Lines of steam or other ships, railways, canals, telfgraphs and other works and undertakings connecting the province with any other or others of the provinces, or extending beyond the limits of the province ; " (b.) Lines of steamships between the province and any British or foreign country ; "(c.) Such works as, although wholly situate within the province, Jire, before or after their execution, declared by the parliament of Canada to be for the general advan- tage of Canada, or for the advantage of two or more of the provinces ; "(11.) The incorporation of companies with provincial objects; "(16.) Generally all matters of a merely local or private nature in the province." 6. That the legislature of the province of Manitoba by t le said in part recited Acts acquired and ever since has had the undoubted and exclusive power to charter and construct lines of railway situate wholly within the boundaries of Manitoba as above defined, and from any one point to any other point within the province. 7. That by Act of the parliament of Canada, 44 Victoria, chapter 1, intituled : " An Act respecting the Canadian Pacific Railway," a charter of incorporation was granted to " The Canadian Pacific Railway Company," on the terms and conditions in said Act fully set torth. 8. That the 15th clause of said charter is in the words and figures following : — " 15. For twenty years from the date hereof no line or railway shall be authorized by the Dominion parliament to be constructed south of the Canadian Pacific Railway, from any point at or near the Canadian Pacific Railway, except such line as shall run south-west or to the westward of south-west, nor to within fifteen miles of latitude 49. m 862 MANITOHA LKnifll.ATION And in the oHtahlishment of any new {)rovinco in the North-west Territories, provision shall be niadn for continuing such prohibition after Huch cdtablitthniont until the expira- tion of the said periotl. 9. That while the said Canadian Pacific Railway charter was being diHCUsaed, as aforesaid, in the Donunion Parliament, much alarm was occasioned in tl.is province, ami public meetings were held protesting against the granting of a m*)nopoly in the province of Manitnb i to the Canadian Pacific Railway, and the legislature of this pro- vince being then in session, the matter occupied much attention, and the following resolutions were introduced to and unanimously adopted by the legislature on the subject ; — Wkdnksdav, 22nd December, 1880. "The Hon. Mr. Norquay, seconded by the Hon. Mr. Oirard, moved the following : — "Whereas it appears from a telegram dated 18th December, 1880, addressed by the Tlight Hon. Sir John A. Macdonald, Premier of the government of Canada, to Thonr Scott, M.P. for Selkirk, that the Canadian Pacific Railway will have power to > a branch lines anywhere ; " And whereas it is further intended, as appears from the publication une terms on which the Canadian Pacific Railway Syndicate have agreed to construct, equip, niaint 'in and operate the said Canas within the province of Manitoba, connecting it with American railways to the south. I can give no better evidence to the House and to the country of the ad- vanced position which we consider this great enterprise of the Canadian Pacific Railway has attained, than when I say that I feel it is consistent with what we owe to the people of this country and to that great national work, that the government should not deem it incumbent on themselves to pursue the restrictive policy within the province of Ma- nitoba, which we have hitherto been obliged to maintain." 12. That after the passing of said Canadian Pacific Railway Act the legislature of the province did, according to its undoubted right (as hereinbefore referred to) by Acts of said legislature, charter divers railway companies for the purpose of constructing, maintaining and operating lines of railway wholly situate within the province as before defined, yet all of such Acts as chartered a line of railway to be constructed or operated to any point within fifteen miles of th3 interi;ational boundary line have been disallowed and vetoed by the Governor General of Canada in Council, and as the said Canadian Pacific Railway was then incomplete, such disallowance was submitted to rather than in any way impede the completion and rendering permanent of the Canadian Pacific Rail- way, the same being a national highway. 13. That the said Canadian Pacific Railway has been completed for upwards of 18 months, and has become permanent and probably tiie strongest railwa;, corporation on this continent. 14. That the province of Manitoba is separated from the markets of Eastern Canada by a distance of from 1,200 to 1,400 miles, and the province has only two out- lets, namely, one north of the chain of lakes by way of the main line of the Canadian Pacific Railw.iy, via Thunder Bay, and the other south cf Lakes Superior and Huron, by way of branches of the Canadian Pacific Railway to Gretna and Emerson, and thence by the St. Paul, Minneapolis and Manitoba Railway, south and east, with which last mentioned railway the Canadian Pn.''>ifin Railway is in close alliance, and consequently no relief can be expected ther from. 15. That there is no railway competition in the province, the Canadian Pacific Railway Company having a monopoly of the carrying trade of this province. 16. That the depression and discontent arising from lack of railway competition have become so great throughout the entire province that the population almost unani- mously demand that railway competition must be procured by the construction of an independent line of railway running from Winnipeg (the capital city of the province) to the southern limit of Manitoba within the province, as defined in " The Manitoba Act," where freight can be transferred to an ir dependent line of railway and thus com- petition procured. 17. That through an interview had with the Honourable Thciiitt. White, then and now Minister of the Interior, on the 4th of March, A. D. 1887, in the city of Winnipeg, which is reported in the Daily Manitohan of the 5th of March as follows : — " A deputation of representative Conservative citizens waited on Hon. Thomas White, Minister of the Interior, at the Dominion Lands Office, yesterday afternoon, vmi^nmim 1 50 VICTORIA, 1887. 865 Je of Mani- iresented by at by the |h line of the its own ad- [h it may be Irtion of the Ind torecon- jernment, as 'icific Rail- such is the je Canadian Lake Supe- the position le construc- railways to of the ad- ific Railway ) the people Id not deem nee of Ma- Jgislat'ire of to) by Acts onstructing, ce as before or operated n disallowed id Canadian ther than in Pacific Rail- wards of 18 [•poration on of Eastern nly two out- le Canadian and Huron, , and thence 1 which last onsequentJy lian Pacific competition Host unani- ictioa of an e province) B Manitoba i thus com- e. then and Winnipeg, >n. Thomas afternoon, and had a conference with him on the questijn of disallowance. Among the g*iutlemen composing the deputation were, G. F. Gait, \i. J. Whitla, F. B. Robertson, W. 13. Scarth, M.P., E. P. Lcacock, M.P.P., A. V. McLenaghen, J. S. Aikens, G. F. Carruthers, J. B. Mather, J. H. Brock. J Cosgrave, J. B. McKilligan, F. B. Ross, W. Hespeler, G. J. Maulson, C. Glass, T. Gilroy, H. S. Grotty, and J. R. O'Laughlin." "Mr. Scarth introduced the deputation to Mr. White, and in doin,< .so urged the discontinu.incc of the government's disallowance policy, and dwelt stiongly '>n the fact that he had been elected on a pledge to vote against the government on this (;uestion. " A desultory conversation then ensued, during which the sentiments of the depu- tation were expressed clearly to Mr. White. Mr. Whitla and Mr. Robertson were the principal spokesmen, and they pointed out how highly beneficial it would be to have competing lines of railway running in the country, that a more rapid development of the country would follow, that it would cause a confidence among the people, and give a renewed impetus to the various industries of the country. " All present were agreed that the time had arrived for the abolishment of dis- allowance within the old boundaries of Manitoba. "Mr. White pointed out that when the Act was passed and sent to Ottawa, he liad no doubt that the government would give it their attenticm and that from the strong expressions of opinion from Manitoba and the North-west, in which friends of the government were found to be most emphatic, the probabilities were that the law would be allowed to take its course. He quite appreciated the urgency of the ca>e, and had no doubt that the government would act promptly, when a measure, in the event of one being passed, was submitted to them, so that in the event of the policy of dis- allowance being abandoned there may be no delay in making the financial arrange- ments for carrying out the enterprise. "Mr. Carruthers said that it was expected the local legislature would meet about the 17th of the month, when a charter to build a line of railway to the boundary would be applied for, and as soon as it passed the House the special assent of the Lieutenant- Governor in Council would be requested. The charter would then be immediately trans- mitted to Ottawa with the request that the government would reply whether or not it would be allowed. Mr. Carruthers asked Mr. White how soon a reply might be ex- po-ted if this was done. " Mr. White replied that a reply would b^ given without delay. He thought that if the government intended to continue their disallowance policy the people should know at once. " The deputation then withdrew, feeling satisfied from the manner in which Mr. White expressed himself, that no further opposition may be apprehended from the gov- ernment in respect to allowing a railway to be built to the boundary." • And also through a speech delivered by the said Hon. Thomas White (then and now Minister of the Interior), in the city of Winnipeg, on the 7th day of March, 1887, in reply to an address presented to h- u by the Junior Conservative Association, in which amongst other things he said as follows : — " Your nddress refers to the question of dis.sallowance, and the elections which have recently occurred an'I the discussions to which they have given rise, have added additional interef.t to the question. As you are aware, the contract with the Canadian Pacific Railwa) in no way interferes vith the right of the legislature of Manitoba to grant charters within the boundaries of the province as they existed at that time. Th's was very clearly pointed oat during the debate in parliament, when the contract with the syndicat > and the charter to the company were granted. It wius important, how- fver, on eveiy ground, commercial as well as national, that the Canadian Pacific Rail- ,','ay should be an all-through line on Cnnadian terntory, and that wo should not be depenuv-ri*: n any WL^y upon American lines for our traffic with Manitoba and the orth-west. " The quostion now is, has the time arrived when the policy of disallowance may be safely abandoned 1 You will not, I am sure, expect me as an individual minister to answer that question. No decision upon it has been arrived at by the government that I am aware of, and until that decision har been arrived at it would be unfair to you 866 MANITOUA LEGISLATION and improper on my part to express a definite opinion. I have always regarded the policy as a temporary one. I have always regarded the statement of Sir Charles Tupper, when Minister of Railways, and when urging the thirty million dollar loan upon the acceptance of parliament, as embodying the views of the government. The statement wa.s that the granting of that loan would secure the completion of the railway some four or five years before the time fixed in the original contract, and thus render possible the abandonment of the policy of disallov/ance at an earlier period. But whether that peiiod has yet arrived must be left for iha determination of the government when the question comes formally before it. This I think I have a right to ask you to "sume, that the decision will be come to, not in the interests of any railway corporation, but in the interest of the country, including those of Manitoba and North-west Terri- tories. " Should the decision of the government be in the sense that the people of Manitoba evidently hope it may be, I am quite sure that the Cananian Pacific Railway will be able to hold its own in the competition to which it may be subjected. (Hear, hear.) It occupies a position of special advantage over any other possible line to the south of it. It is shorter in miletige, and it is for its entire length under one management, an advantage the influence of which can hardly be over estimated. Moreover, competition, resulting in creating a new interest in the development of Manitoba and the Territories, would soon create new and enlarge trade. That has been the result everywhere. In Ontario, for instance, where the Canadian Pacific Railway has invaded territory which the Grand Trunk Railway Company was disposed to regard as its exclusive possession, the result has been to enormously increase the general traffic, an increase in which the Grand Trunk has become a sharer. Every one must rejoice to see that the traffic returns of that railway, to which Canada has been so much indebted in the past, are showing a steady weekly increase, and I think I am right in saying that increase has come chiefly from Canadian freight and passengers. (Cheers.) There will be trade enough in Mani- toba and the North-west to afibrd profitable tralSc returns for both the Canadian Pacific and the Grand Trunk Railways, if the latter should find entrance here, and it would be no small advantage to the country as a whole to have the large interests connected with these two great corporations enlisted in the work of developing the great west instead of, as there is too much reason to fear has been the case in the past, as to one of them, devoted rather to the prevention of that development." The people of Manitoba were led to believe that the policy of disallowance of Man- itoba railway legislation would not be further continued. 18. That the legislature of Manitoba passed at the last session thereof (as herein- after more fully set forth), " An Act to incorporate the Manitoba Central Railway- Company," and " An Act to incorporate the Winnipeg and Southern Railway Com- pany," which were assented to on the 19th day of April, 1887, and were transmitted to the Secretary of State forthwith thereafter, with the '•equest that the Governor General in Council would pass upon them immediately, yet the Governor General in Council did not pass upon said two Acts until the 9th day of August, 1887. 19. That the legislative assembly of this province as a consequence were, in the meantime, led to believe that the representations made Vjy the said Hon. Thos. White, in Winnipeg, as aforesaid, were being adopted by the Dominion executive, and that the rights of the province to charter lines of railway within the old province of Manitoba, would not in future be interfered with. 20. That the legislature of this province in that belief, and in compliance with the urgent desire of the people throughout the province for the purpose of procuring railway competition by the construction of an independent line of railway, did, at the said last session of the said legislature (which session was held in the months of April, May and June, 1887), unanimously pass an Act, intituled : " An Act respecting the construction of the Red River Valley Railway," and being chapter 4 of the Acts of this province, passed in the fiftieth year of Her Majesty's reign, for the purpose ot con- structing, maintaining and operating a government line of railway from a point withir the city of Winnipeg, to a point within or near the town of West Lynne, within the province of Manitoba, such railway to be styled and known as " The Red River Valley ■cri- 50 VICTORIA, 1887. 867 rded the JTupper, jpon the itement lay some {possible ler that t'hen the "sume, lion, but k Terri- returns Railway," and to be a public work belonging to the province of Manitoba, and the construction of the railway and its management to be under the charge of the Rail- way Commissioner for Manitoba (an authentic copy of which last-mentioned Act is liere- unto annexed), and the said Act was assented to by his Honour tlie Lieutenant- Governor and became law on the first day of June, A.D. 1887. 21. That in pursuance of and under the authority of said " Red River Valley Rail- way Act," the Railway Commissioner for Manitoba did advertise for tenders for the construction and equipping of said Red River Valley Railway, and on the 29th day of June, A. D. 1887, did enter into a contract for the construction and equipping of said railway, and whereby the contractors became and are bound to construct and equip the said railway, whereby the province of Manitoba became and is bound to pay to the said contractors the sum of .$782,340.00 therefor. 22. That in pursuance of said " Red River Valley Railway Act " and of said con- tract, and prior to the 6th day of July, 1887, the said Railway Commissioner for Mani- toba had the line of said railway surveyed, and a large part of the right of way therefor purchased, and the contractors had sub-let by contract, part of the ',ork of construction and equipping of said railway, and the contractors and sub-contractors at once ontered upon their work and prosecuted, and were on and prior to the 6th of July, 1887, pro- secuting the same vigorously. 23. That the legislature of this province did at its last session pass a certain other Act, intituled : " An Act to amend the Public Works Act of Manitoba," by which Act the Minister of Public Works of the province was (amongst other things) given authority to construct any public work at the expense of the province, of which the construction is assigned to him by the Lieutenant-Governor in Council. 24. That the Governor General in Council did, by Order in Council and proclama- tion, dated the 6th day of July, A. D. 1887, disallow the said Act, intituled : "An Act respecting the construction of the Red River Valley Railway," and the said Act, inti- tuled : " An Act to amend the Public Works Act of Manitoba," on the general ground (as set forth in the report of the Minister of Justice to Council), that each of the Acts referred to was in conflict with that policy of the parliament and of the goverment of Canada, by which it is sought to prevent the diversion of trade from the railway sys- tem of Canada to the railways of the United States. 25. That the legislature of this province did at its said last session pass certain other Acts granting charters to railway companies, and amongst them an Act, intituled : " An Act to incorporate the Winnipeg and Southern Railway Company," by which Act the compiiu^ was given authority to construct a line of railway commencing at Winnepeg and running south or south-east to the international boundary of Canada and nol extending beyond the province of Manitoba, and an Act, intituled : " An Act to iii^>i; orate the JJmerson and North-western Railway Company," by which Act the com- p grant charters for such lines ; and in a bill introduced by the government in the sessioi ')f the Can.a- dian parliament of 1878 to promote the construction of colonization railw ,ys in Mani- toba and the North-west Territories, it was provided that no such railway should be authorized running within forty miles of the line of the Ci.nadian Pacific Railway. It will thus be seen how general was the conviction, and how fully it was acted upon, that if private capital was to be enlisted for the building of this railway, reasonable protec- tion against competition must be assured to that capital. In the autumn of 1878, as the result of a general election, mother cRange of ministry took place. The new administration undertook the prosecution of the work of cons- truction the Canadian Pacific Railway with great earnestness ; and as a result of its efforts, certain gentlemen, who afterwards became incorporated as the Canadiati Pacific Railway Company, made a proposal to the government for the construction of a railway from Port Arthur, on Lake Superior, through the Rocky Mountains, to the Pacific coast. Had that proposal been accepted there would have heen less necessity for providing against competition on the part of United States railways ; but it was felt that such a railway would not meet the requirements of the country ; that it would leave all that portion of Canada west of Lake Superior separated for six months of the year from the 874 MANITOBA LBOiaLATION thickly-settled provinces in the east, by a practically impassable barrier of over 600 miles of uninhabited country. To leave comniunication iwtween the portionH of Canada to the east and to the west respectively of fjnke Superior dependent for one-half of the year upon the railway systems of a foreign country, with all the contingencies involved in such a dependent, would, on commercial grounds, have been folly, and on national grounds little short of madness. It was with a view of avoiding this, and of securing a transcontinental line of railway on Canadian territory, that tlio stipulation was included in the contract with the Canadian Pacific Railway Company that for twenty years, or in other words, for ten years after the term fixed for the completion of the railway, namely, 1891, "no line of railway shall be authori/.ed by the Dominion parliament to be constructed south of the Canadian Pacific Railway, from any point at or near the Canadian Pacific Railway, except such line as shall run south-west or to the westward of south-west, nor within fifteen miles of latitude 49." The object to be attained by this provision, and without which it could not be attained, namely, the construction of that section of the railway running n;jrth of Lake Superior, fully ju8tifi'.id its inclusion in the contract ; and the motive, namely, that resisonable time should be allowed for giving direction to the trade of the great west, so as to build up the commerce of the ports of eastern Canada, was, on commercial grounds, a most natural one. It is argued that there is no i>inding legal obligation on the part of the govern- ment of Canada to protect the Canadian Pacific Railway by the exercise of the power of disallowance in respect of railways chartered by the legislature of Manitoba, and having their termini within the old boundaries of the province. Without discussing that (juestion, it is sufficient to repeat that the government of Manitoba, in tludr petition to Her Majesty, admit that that power was properly exercised during the period of construction, in view of the terms of the contract with the Canadian Pacific Railway Company, and it may be inferred therefrom that the same acquiescence would have been yielded to it until the completion of the railway, hjid that comple- tion been deferred until the period fixed in the contract, namely, 1891. The com- pany, by a display of great energy and at a greatly increased cost to its proprietors, completed the work of construction five years before the time fixed in the contract, thus giving to J.vnada the advantages of a through line of railway, on its own soil, at a much earlier period than the most sanguine among the promoters of the enter- prise li oved to be possible. The same energy which maiked the construction of the rai ly is being displayed in measures for the development of trade by it, from whicl uiada has already derived great, and in the near future must derive still great. .dvantage. Under these circumstances, the undersigned submit that it would be only reasonable that the company .should not be made to suffer because of the energy and increased expenditure they have contributed to give to Canada, in advance of the time stipulated in their contract, the advantages of this magnificent interoceanic high- way ; and that the same protection, which admittedly they were entitled to during the construction of the railway, should be extended to them at least for the period fixed in the contract for the completion of the railway, to enable thenj to carry on successfully the policy of traffic development which they are puisuing with so much success. The government of Manitoba quote, in their petition, a speech delivered by Sir Charles Tupper, then Minister of Railways, in the House of Commons in 1884, in which the belief was expressed that, by the more rapid completion of the railwpy, the early abandonment of the policy of disallowance might be possible. The undersigned, however, submit'that this speech cannot be interpreted as, in any sense, an arrangement or implied contract with the province of Manitoba. At that very time this question of disallowance was the subject of communication between the government of >(anitoba and that of the Dominion. The legislature of Manitoba had sent thret ^f its members, Messrs. Norquay, Murray and Miller, to confer wit.h the government of Canada on certain subjects, which were embraced in a memorandum submitted by them. Among the subjects included in this memorandum was the following : — " 4. The right of the province to charter lines of railway from any one point to another within the province, except so far as the same has been limited by the legisla- ture in the Extension Act of 1881." IfiOO miles Innadii to liilf of the involved i national fecurinx "■ I included years, or railway, (anient to near the J westward Itained by Iruction of inclusion llowed for rce of the e ^overn- the flower itoba, and discussing n thnir uiiug the an Pacific quiescence it coinple- The com- Toprietors, ccjntract, s own soil, the enter- ruction of )y it, from leiive still t it would he energy lice of the anic high- luring the d fixed in iccessfuUy s. ■ed by Sir 1884, in Iwp.y, the leraigned, mgement lestion of ^Canitoba members, anada on Among point to '■ legisla- 50 viCToniA, 1887. 876 The committee of council to whom this memorandum was referretl, after con- ference with the delegates, reported ; and upon this subject, after referring generally to the provisions in the t barter of the Canadian Paoifii; Railway Odiiipany, cuntiiiueil as follows ; — " Whatever the provisions of the Canadian Pacific Railway Act, the province of Manitoba had in advance assented to, in accepting an extension of hei- boundaiies, and an increase of ansa alxtut tenfold, under an Act which provided ' that the said increased limits and territory added to the province of Manitoba sKall be subject to all such p.'o- visiiins as may have been or shall hereafter be enacted respecting the (Innadian Pacific Railway, and the lands to be granted in aid thereof.' Having accepted the increased area upon the al)ove conditions, and knowing the long avowed policy of parliament to prevent the legitimate traile of the country, and the Canadian Pacific railway being fliveried to the United Htates, your sub-committee consider that no injustice will be done to the |>eople of Manitoba by the exercise of such supervision by the Dominion government over the railway charters sought from the Dominion jiarliament, or passed by the legislature of Manitoba, as will maintain this policy and th*; conditions of the Canadian Pacific Railway Act, until the expiry of the time named therein, or until the road is opened and trade established, ^hen it is believed it may be repealed or modified without injustice, and with the consent of the contracting parties." This statement was embodied in the minute of council which wa.'; forwarded to the Lieutenant-Uovernor of Manitoba, for the information of his government and of the legislature of the province. Large concessions were made to the province as a result of the conference between the provincial delegates and the sub-connnittee of the Privy Council, the terms of which were eml)odied in the same despatch ; and on the lOtli Ja'iuary, 1885, Mr. Norquay, premier and treasurer of the province, in a letter on the subject of this despatch said : — "Although not authorized by the legislature to accept any settlement, we are of opinion that the modifications suggested, leaving the other items of subsidy and con- cessions oflPered in the despatch of the 20th May last unchanged, would be favourably entertained by the legislature." They were so favourably entertained t ley were accepted by the legislature and emlwdied in an Act of that legislature, and this without any protest or remonstrance in respect of that part of the despatch quoted above which relates to the protection afforded by the exercise of the policy of disallowance to the Canadian Pacific Railway in its efforts to develop and direct the trade of the country served by it, for the benefit of Canada. Read in the light of the despatch to the Manitoba government of the 20th May, 1884, the speech of .Sir Charles Tupper, upon which the pwtitioneis rely to justify their appeal against the policy of the Dominion government, shewed that not only was it contemplated that the road should be completed before lUat policy was abandoned, but that a reiisouable opportunity should be afforded for the establishment and develop- ment of trade by it. It is most important on commercial as well as national grounds that this policy should be continued for some time longer. The Canadian Pacific Railway has already attracted a considerable trade between China and Japan and the Atlantic markets of this continent. It has attracted attention as the most valuable highwav, under British control, between the eastern and westei-n possessions of the Empire. The Imperial authorities have become so impressed with its importance that they have agreed to grant a subsidy of £15,000 sterling per annum towards . .o establishment of a line of steamers on the Pacific Ocean, to be run in connection a • uie Canadian Pacific Railway. In the struggle for this Pacific trade the railway has already be- come a most important factor, being regarded as in some respects the most important of the transcontinental lines. Its chief competitor, the Northern Pacific Railway Company of the Unit«d States, has been making great efforts to bear up against this new competion, and it is admitted that the efforts to strike the CantuJian Pacific Railway in its centre, by an extension of the Northern Pacific Railway system from the international boundary line to Winnipeg, is not with the object of affording com- petitive rates to the people of Manitoba, but to secure a weapon by which to control .■■!i> ! 876 MANITOfiA LRniHLATION t'ifi c'onipntition for tnins-contiruntal tnitHc from th<> I'ucitic coiiHt, now riipirily tinfl inj; its way over tin- Ciiiiatliaii route, and thus retain it for IJnitod States railways. It would b<4 a inoNi Huicidal policy on the part of C/anada to asMiHt a for»if(n railway corporation in ohlainin^ t'a/tt weapon, to hn used, an it must he used, in hampcrinu a trade from whose >,'rowth the husiiiess men of the country have so mu(;li to anti- cipate. The Huh-c-ouimittee do not unilero.stimate the importance of reasonably low rates of transportation for the jirovince of Manitolja and the Kreat west ; but they woukl point out' that ample provision has been made in the contract v\'ith the Canadian I'acilic Uailway C^nnpany and by the action of the j^overnmeriL to secure this objca-l. Under the enntract. the taiifl" of rates chargeable fin morchandis(» and passenjjers is to be llxed by Order of the (Joveruor (Jencual in Council, and to remain until the earnings of the road are sutficient to pay a dividend of 10 per cent on the ^haie ca|>ital of the company. Hut in order to aH'oril greater protection agaiiiHt excessive charges, the tarill ot :-iileH has, witii the concurrence of the tuimpany, been established only fr^m yeai' to year, thus bringing it unde<' the constant (control of the govern- ment. It is important to remark under these circumstances that no representations have ever been made to the government of Canildiv that thct rates, as thus approved frou) tinie to time, liavt, been excessive, unrcasoiialile or oppressivi^. Not one specitic complaint has ever been 'i"'"] before the Uailway Committee of the Privy Council, the tribunal specially charged with such matters by law ; wliile on the contrary the evidence furnished l)y the company has shown Inat its rates are not only reasonable, but that they are, in the main, unusually low, as compared wiuS those of other lines on this continent worked under similar conditions. The policy of the government of Canada, so far from being directed to secure for the Canadian Pacific Railway a monopoly of the carrying trade within the boun- daries of Manitobti has been most generous in aiding in the construction of inde- pendent local lines of railway. There are at this moment upwards of 200 miles of independent local railway lines in the province, not in any way controlled by the Canadian Pacific Uailway, and built by the aid of liberal grants of land made by the Dominion government. There are in addition over 200 miles of railway south of the main line of the Canadian Pacific Railway, t\> which subsidies in land were granted wh n they were in the hands of an independent company. Tliat c anpany was unable to enli:.. private capital in the construction of its lailway, and transferred it to the Canadian l^acific liailway Company, as a result of which the people of southern Manitoba have be.Mi aTorded ihe advantagti of railway communication, of which but for the liberal policy of he government of Canada and of the Canadian Pacific Railway Company, they would I ave be probably for a long time deprived. And although the Canadian Pacific Rail vay controls the only line leading directly to the Great Lakes and to Eastern Canada, and the two lines southward to the Intercolonial boundary, its rates on traffic to and from the province have, in the nature of things, always been largely affected, and must continue to be largely affected, by the competition of the United States railways. The sub-committee .>^ubmit that the statement in the petition that the policy of the Dominion government in preventing the construction of railways to connect with the United States railway system at the International boundary is calculated to deter immigrants from settling in the province and to prevent the investment of capital therein, is not justified by the facts. Other circumstances, entirely unconnected with this question, have, to a limited extent, produced these results, chief among which is the wild speculation so general in the province betwen the years 1881 and 1883, caused by the immense expenditure in the construction of the Canadian Pacific Railway among a small population, and the depression which necessarily followed the completion of the railway arj-.ong a small population, at the depression which neoessarilly followed the railway and the consequent cessation of expenditure. But in spite of these untoward events the progress of the province has been on the whole satisfactory. All experience shows that the early years of the settlement of new territories are always the most difficult; Dakota, during te;i years, from 1860 to 1870, increased only about nine -TTI 60 VICTOHIA, 188/ 877 I'i'ily find niilway.s, ri niilwuy 111 <•) anti- low rates [icy Would U'aiKulian lii.s ohjt'ct. |.S('n;,'ors is until the till' wed the ntoward perience ;he most lut nine thousand in its population ; Colorado, Ixitween Hve and six thousand during the same period ; Montana, Ifss than nine thtiusand between IHTOand l.SHO, and ho witli others of the states untl territories of the I'nitod .States. The oM-rtlow into the new territories is always slow at first, until the attractive inlluence ot the early settlement brings its natural result in the advent of old friends and neighliours. The progress of Manitoba, f/iirly rapid has it, has been, also suH'ertMl from otluu- oau>es. 'I"he agitation by the so- ealled l^'armers' I'nioii, wiiich although representing only an insignilicant minority of the people, was sutlitnently iniliiential tr) atl'ect the immigration intu the country; tin; Half-breed and Indian outbreak of 1885, although the seat of riisturbance was sovc il huiidrtMl miles from Manitoba, was used by foreign rival innnigration iigent^ies to deter immigrants from setling in the province ; and tiie vioienee of language indulged in by a portion of the pei^pie and pres^', in connection with the controversy which frtrms the subject of the petitioti of I lie Manitoba gov ■'•nment to Her Majesty, the foolish threats of armed resistance t(» the law which, to those ignorant of local conditions, were apt to be mistakerr for the general seniiment of the people ; and the untruthful statements published by the associated press as to the intentions of the government ui Cirnada in relation t(» this controversy, have all had some inlluence in deterring the growth of population, which, under other circiimslances, the splendid resources of the province would have certainly attracted. Measured by the conditioir of the settlers in other parts of the continent, those of Manitoba have e\ery reason to be satislled. Ten years irgo there was iK>t a lint* of rail- way in operation within the province ; now, as the result of the policy ot the govern- ment of Canada, largely as a r-esult of tli.ii feature of the government which forms the subject of complaint by the government of Manitoba, there are over one thousand miles in operation, and two t)thcT railwavs are under construction. Along the line of the Canadian Pacific Railway thfs farmers of Manitoba and the North-west Tirritories have been paid higher average prices for their grain th.ui at corresponding points along the line of the Northern Pacific Railway, a fact which must, the sub-committee submit, be accepted as the true test of the railway ser-vice in the two countries respectively. It is impossible that a policy which has produced these results, can be properly stated as calculatt^d to deter immigrants from setling in the province, or to prevent the invest- ment of capital therein. On the contrary, wlnle the policy of the government has been to afFord the fullest development to the resources atid industr'os of the province, it has bad in view to prevent the diversion of a large part of the trafKc of the province to a foreign country, by which the forces which have been most effective in building up the diflerent industries of the province and bringing settlers to it, would be seriously im- paired. The sub-committee deem it right, before concluding these remarks upon the peti- tion of the government of Manitoba to Her Majesty, to call attention to the great interest which the Canadian Pacific Railway company has in the growth and prosperity of Manitoba and the North-west Territories. The company are operating to-day, on their main line alone, the construction of which was the object of the contract entered into with the Canadian government, 2,562 miles of railway, along the whole extent of which the population does not exceed two hundred and forty thousand. Between the eastern boundaries of Manitoba and the Rocky Mountains, a distance of 1,063 miles it traverses the finest grain-producing and cattle-grazing country on the continent, and the development of its traffic and its dividend-producinij power is contingent upon the growth and prosperity of thes'^ two great industries. The companj', moreover, own about sixteen millions of acres of land, in the settlement of which they have the greatest interest. It is inconceivable, under these conditions, that a corporation which h.is so direct an interest in the prosperity of the country and in the settlement of larf,e immi- gration within its bounds, will adopt a policy calculated to retard that prosperity and that settlement. The sub-committee, therefore, are unable to recommend that there should lie an abandonment for the present of the policy of Canada, pursed by both political parties in the past, of preventing the trade of Manitoba and the great North-west from being diverted for the advantage of foreign railway corporations and foreign commerce, and of m. 878 MANITOBA LEGISLATION protnnting the great national interocea' lic highway for a reasonable time to permit permanent direction to be given to the traffic of the country. CanacJa has made great sacrifices to secure the construction of the Canadian Pacific Railway. Upwards of seventy -one millions of dollars and over eighteen millions of acres of land have been voted by parliament for that purpose. These generous subsidies have been voted under the conviction that the older provinces of tha Dominion would be greatly benefited by the increased trade which would flow down upon them as the result of the development of those portions of the Dominion lying west of Lake Superior ; and the unwillingness to forego these advantages, by permitting this great western trade to be diverted to United States railways for the advantage of the commerce of a foreign country, found its expre.ssion at the last session of parliament in *^he emphatic vote of the House of Com- mons, in which every province is represented, and which had just come from a general election, at which the question formed one of the leading subjects of discussion. That vote the sub-committee submit, must bo regarded not only as an endorsement of tht policy of the Canadian government in the past, but as a mandate to the government to continue that policy in the future. Under all these circun>stanceH the sub-committee bflieve that the wisdom and constitutional propriety of the policy pursued on this sub- ject will be fully recognized by Her Majesty's government, to which the government of Manitoba in their petition appeal. All of which is respectfully submitted. THOS. WHITE, Minister of the Interior. J. S. D. THOMPSON, Minister of Justice. Report of the Hon. the Minister of Justice, approved by His Excellency the Governor (Jfneral in Council on the 10th March, 1888. Department of Justice, Ottawa, 5th March, 1888. The undersigned has the honour to make the following observations on the pro- posal to refer to the Judicial Committee of the Privy Council, the memorial of the executive council of Manitoba to Her Majesty in Council on the subject of the disal- lowance of pr-^vincial statutes and the reports thereon of the subcommittee and com- mittee of the Privy Council of Canada, of which proposal ii+imation was given by the Right Honourable the Secretary of State for the Colonies t j j-our Excellency by tele gram dated the 16th day of February instant. In the opinion of the undersigned no sufficient reasoi exists for such rpierence. The memorial raised no question of law, on which the opinion of the judicial coni- mitee can be asked. It < mbodies a remonstrance against what the executive council seemed to c jnsider an arbitrary exercise of the power of disallowan 3e which is vested in your Excellency, and made no other suggestion of any legal question than is expressed in the followii.g general statemer^t • - "Our people feel that in being deprived of their undoubted rights under the British North America Act, they have not the full freedom of British subjects." In this allusion to the deprivation of " rights under the British North America Aet," it is apparent from the memorial that the executive council had reference to the rights conferred by that Act on the provincial legislatures to make enactments to authorize the construction of such v/orks as the Tied River Valley Railway. Th^ power which the British North America Act confers on the legislatures of the resp. Live pro- vinces to pass statutes relating to any matter is, however, expresslly made oubject by that Act to the power of disallowance by your Excellency, and the memorial nowhere states and the executive council o? Manitoba have never urged or suggested that dis- allowance has been exercised in any instance, beyond the power vested in your Excel- lency by the British North America Act. mm 50 VICTORIA, 1887. Bf9 le to permit rndde great I Upwards of Id have been ^ voted under J benefited by Idevelopment Inwillingness ed to United ry, found its Juse of Com- :>m a general ission. Tliat Jement of thb Jvernment to ib-eominittee on this sub- )vernment of Interior, ^ Justice, t/ic Governor 3h, 1888. 8 on the pro- norial of the of the disal- btee and com- given by the lency by tele- ich rel'erence. judicial com- itive council 1 is vested in. is expressed s under the ects." rth America rence to the actnients to Thf power ip- live pro- oubject by ■iai nowhere -ed that dia- your Excol- Sections 56 and 90 of that statute clearly confer that power on your Excellency, irrespective of any reasons which may induce its exercise, or of any reasons which may be urged against its exercise. In the reply which has been transmitted to the memorial of the executive? council of ManitoV)a, the sub-committee and committee of your Excellency's Privy Council, it is true, indicated that doubts exist as to the right ct the legislature of Manitolm to pass the enactments relating to the Red River Vclley Railway which were disallowed, inasmucli as that railway should not be regarded as a " local work and undertaking" within the meaning of section 92, subjection 10, of the British North America Act; but the validity of the disallowance in no way rested upon the soundness of any of the reasons which may have induced it or \/hich may have been piit forward to justify it, and the undersigned thinks he may fissumo that it is upon the validity of the disallow- ance alone that it is proposed that the Judicial Committee of the Privy Council should be called on to pass an opinion. As to any question of policy in i-egard to disallowance, the judicial committee has noo satisfactory means ot arriving at a decision and is not a tribunal to which resort can properly be had, or which Canada is bound to regard. The validity of your Excellency's veto in the cases complained of, the undersigned repeacs, is not and never has been in dispute, and no question of such vaiidity has ever been presented. In addition to the fact that there appears to be no sufficient reason why the pro- posed reference should be made, the undersigned ventures to submit that grave leasons exist why such a course would be most inexpedient and unjustifiable. One of these is that the reference has not been asked either by the eexecutive council of Manitoba or by your Excellency's advisers. The reference would, therefore, be made by Her Majesty's goveinment without the desire of either of the parties con- cerned in the controver.sy, and certainly without even the consent of one of the parties thereto. There is no reason for supposing that the executive council of Manitoba would acquiesce in a decision by the judicial committee that the exercise of th/ Junt'ne. WiNNiPKo, Man., 24tli June. 1889. Sir, — Your iettflr of the SSth Heptomber, 18H8, inclosing a copy of a petition adflrosscd to Jiis Excolloncy tlnj Uovernor (lonenil, by tlie C'all Printing Conipivny, praying for the iliNallowarico of Clip. !;< of the Acts of the legislative aHscnihly of iVlan- itoha, 18H8, intituled : "An Act respecting Public Printing," Iiiih been received. With regard to this matter, I take the position that tlie Act sought to be disallowed deals entirely v. i'.h nuitters of local concern, and in such a (ii.se I think the (Governor (Jeneral in Council should not interfere, whatever views may be entertained with regard to the expediency or justice of the legislation. If the legislation be bad, the pc^fiple of the province can surely be trusted by their votes at the proper time to punish its pro- moters. Any interference on the part of the Dominion authorities with Acts such as the one in (|Uestiun, would savour of paternal government in an exasperating form that was never contemplated by the Britisli North America Act. The Governnu^nt of Great I'ritain has not pursued nuch a course with regard to the Dominion legislation, and I would submit that the Dominion autliorities should deal with provincial Acts in the same broad-minded manner, that lias characterized the action of the home government respecting Dominion Acts. I would point out to you that it is provided by the statutes of Manitoba, 42 Vic, cap. 20, sec. 2. that " The Queen's Printer shall, within one month from the date of the passage of this Act (viz., 25th June, 1879), call for tenders (by advertising in all the newspapers in the province for the pericnl of one month) from persons willing to contract with the government for the printing recjuired by the government, not exceedinu' three years, and henceforth this shall Ije the manner in which similar contracts shall be miwle," an?' that this was the only Act with regard to public printing in force at the time the contract referred to in the sixth jtaragraph of the petition herein purported to be entered into between the Jlon. C. E. Hamilton, the then Attorney-Cieneral of Manitoba, and the Manitoban Printing Company, Limited, the executive of this province in enter- ing into this contract ignored the clear mandate of the legislature as expre-ssed in the said last-mentioned Act Tenders were not called for by advertising in all nor in any of the newspapers of the province for the period of one month nor for any other period. In addition to this the contract is for a period of four years, whereas the Act provides that such a contract should not exceed three years. Herewith I sent', you a letter clipped from a copy of "The Morning Call," of the 2nd June, 1888. It was written by Mr. Acton Burrows, editor of "The Call," to Mr. Luxton, editor of "The Free Press" ; also a letter in reply by Mr. Luxton. A perusal of these letters will, I think, convince you that a fraudulent and successful attempt was made to give the contract to a particular company, while keeping up the appearance of competition. The contract was awarded to the Manitoban Printing Company, Limited, at exorbitant figures, and for a period of four years. When the |»resent government came into power, having become aware of the above facts, they determined to promptly stop what they considered an illegal and impudent plundering of the slender resources of this province. In pursuance of this determination, the Act complained of was passed on the 18th May, 1888, tenders were asked for, and a contract entered into for a year at figures that will result in a great saving of the public funds. The above is probably sufficient to indies te the position of this government respecting this Act. I would again urge that it. is solely domestic in its nature and operation, and for that reason alone should not be interfered with by the exercise of the veto power. ^ I have, etc., JOSEPH MARTIN, Attorney General M^ 51 VICTORIA, 1888. 891 1889. petition |f'' /fin Exdllitncy the Governor General re Chapter 27. To HiH E.rcrlffiicy thi: liiyht llonouriible Sir Frcdirick Arthur Slitnli'if, Jhiron Sto.nley of I'ri'Htoii, Gowri'or (iviifral of Caitada and Virr Admirtd of th' siiinr. The humble petition of James Mulligan of the town of Oshawa in the province of Ontario, l*]s(juirf, Hhoweth oh follows :— 1. Your petitioner prior to the year If S2 wa'*, and he is still, the owner of a liirgo tract of land on the south side of the Assiniboine lliver oppiwito the terminus of Boundiiiy street in the city of Winnipeg at the bank on the nortli siile of tli(^ rixor. 2. I'rior to the year 1882 the said tiact •:( lanti was situated in the parisli of St. Boniface, and was separated from tins city of V innipeg by the Assiniboine itiver. 3. Haily in the said year negotiations were entered into betwct n the owners of land in the said parish an'! the council of the city of VVinni|)eg with u view to extending the city limits, so as to embrace the property of your petitioner undof other person^ in the said parish. •1. Thei'eupon an agreement was enteretl into l)etween the parties aforesaid for the extension of said limits upon certain terms. T). Afterwards at the re(|uest, and with the san ition of the said city and of the petitioner, and tlu^ other owneis of the said lamls, the 3aid agreernont was embodied in the charter of the city as contiiined in the statute known as 45 Victoria, chapter 30. 6. \\y the said statute the hind of your petitioner was included in the limits of the said city, and by various clauses the city was compelled to carry out the ccrms electric light service in this ward. For its assessment and population, no part of the city has been so liberally considered as the inhabited portion of this ward. In coiisidei'ation of these improve- ments the residents of the ward have never made known or represented any wish to have the bridge proceeded with. Indeed such a thing would have been absurd. 6. The petitioner has not been injured in respect of his taxation. He has not been assessed higher than he probably would have been had his property remained in the country municipality, separated only from the city bj the Assiniboine river. Besides lot 52 hereinafter referred to, he owned parish lots 43, 45 and 40 in St. Boniface West. This is the property in question, making a total of three hundred and sixty-nine and sixty-five hundredtlis acres. On the twenty-first '^ ry of December, iSSl, he sold this property for $184,675 receiving as appears by th< i^'ieement !j!2(),000 in cash and taking a mortgage for the balance. On the twelfth day of January, 1882, his purchn'ier sole it for $247,230. The mortgage to the petitioner being in default, he foreclosed it on tho ninth d.iy of September, 1887. His sale above mentioned was made several months before Ward One came into the city. For all the years beginning with 1883, that it has been assessed by the city, it has been assessed as so m.iny acres of farm lands. 894 MANITOBA LEGISLATION 7. In 1883, the 369 acrea were assessed for $75,000. In 1884, for $50,000. In 1885, for $37,000. In 1886 for $32,000. In 1887, for $28,300. In 1888 for $31,100. Probably the above amounts are higher than the sums which could have been obtained if the property had been thrown on the market, but this can be answered fully in two ways. 1st. It is notorious that property all over the province has been assessed beyond its selling price, and 2nd. The city has for some years avowedly tissessed real property above actual value, and to remove any legal doubts obtained legislation enabling them to do so "provided the assessment was fair and equitable." The assessment was placed high so as to keep the rate low, and though objection may be made to such a policy, yet as between own' -s in the same municipality, it is not unjust. The ci("y assessor has on oath on appeals, from his assessment, stated that so far as landed assessment throughout the city is concerned he assessed 50 per cent to 55 per cent above actual value, and neither the court of revision, or the judge on appeal from same has questioned his assessments on that ground. 8. Neither the petitioner nor the other owners of the property held by him as aforesaid have at any time since the union of Ward One with the city appealed against its assessment. 9. With the exception of about two hundred dollars ($200) and the taxes on about four acres sold in lots, neither the petitioner nor any other owners of said lands have paid any taxes whatever on said lands, parish lots 43, 45 and 46, (in all 369 acres) and with the exception aforesaid the city has not collected one cent of taxes on the same since it came into the city, but further the petitioner on the first day of October, 1888, filed his bill of complaint in the Court of Queen's Bench, equity side, against the city, praying that a threatened sale of the said lands for taxes might be enjoined and restrained on the ground that the rate charged on taxes in arrear since 1st January, 1887, 9 per cent per annum, was ultra vires of the local legislature, to authorize and also on the ground of irregularities in manner of assessment. This suit is still pending ; awaiting hearing, but to avoid legislation the city council has made an offer of settlement, still open, by which the city would rebate $1,023 of the taxes and pay the costs of suit. 10. The petitioner was not taken by surprise by the legislation of cap. 27, 51 Vic. His solicitors were duly notified in writing of the intention to ask for same, and counsel for him attended before the committee of the legislative assembly and argued same. The committee was unanimous in favour of the legislation, and no objection was made in committee of the whole, or in the house afterwards. Indeed the situation was obvious from the windows of the legislative building itself. 11. Even the petitioner's costs in his suit for damages have been provided for. See accompanying copy letter from the city solicitors to petitioner's solicitors, and these costs the city will pay so soon as bill of same is presented. 12. Search mad^ in the city of Winnipeg registry office shows — 1st. An agreement dated 24th June, 1887 (several months before the petitioner's suit against the city referred to in his petition) to sell all his remaining interests in said property to Mrs. Gilmour. Also, 2nd, his deed to her of 3rd October, 1888, showing that the agreement has been carried out, and the city of Winnipeg, therefore, charge that the petitioner has no locus standi or reason for pressing his said petition before the Governor General in Council. Previous to t'lie sale to Mrs. Gilmour, the petitioner sold and conveyed certain to*n lots, part of the above named parish lota to another purchaser. 13. So far as appears in the city assessor's, the city registry and the provincial land titles' offices, the petitioner owns no lands in Ward One. He did also own parish lot 52, but sold and transferred it on the 14th day of December, 1887, which also was piior to the legislation complained of, and prior to the bringing of the action instituted by the petitioner for damages. The cioy of Winnipeg therefore submits : — ^ 1. That the legislation agreement with Ward One has been substantially carried out and obeyed. 2. Tliat in any case the changed circumstances would justify a departure from the strict letter of the law. I! 51 VICTORIA, 1888. 895 000. In I $31,100. ive been ^rod fully assessed Issed real I enabling pnent was Yo such a m. The ks landed ent above Isame has py Inm as [igainst its on about ■nds have kcres) and the same ber, 1888, the city, lined and January, :e and also pending ; ttlement, is of suit, lap. 27, 51 ianie, and nd argued Jction was lation was for. See ■hese costs kgreement Ihe city y to Mrs. greement ioner has eneral in d certain cial land ih lot 52, prior to d by the ^ carried 'rom the 3. That it would be a gross departure from public policy, and the requirements of justice and would be a mere waste of the city's money, were the bridge to be built either voluntarily or by compulsion. 4. That no justice has been done to or injustice sufTered by the petitioner because long before the union of Ward One with the city he had sold his said lands, except parish lot 52, sold befon; the date of the legislation complained of, and at the time of the sale, the city was under no obligation to him except as to said lot 52. 5. That the fact of his since re-acquiring the legal title through foreclosure does not better his position in respect of lots 43, 45 and 46, .as he acquired it by virtue of his mortgage. Contract made before the city had agreed to build the bridge. 6. That he has not been unfairly dealt with in the matter of assessment which has been equitable and fair to all property owners, but on the contrary the city to avoid litigation has offered to treat him (or whoever is really the owner) most generously, by a rebate of .$1,023.90 on his taxes. 7. That the petitioner has no title or interest in Ward One which gives him a right of a.'; Jiind to petition tiie Governor General in Council, he having parted with his title to the said lands. 8. That the petitioner was duly notitied of the intended legislation and his counsel appeared before the connuittee of the legislative a.ssembly of Manitoba, and was given full opportunity for stating his objections to the legislation now complained off. 9. That the legislation complained of does not act as a perpetual bar, but only suspends the city's liability for five years. 10. That the petitioner's cost of the suit brought by him are safely provided for though not so stated in the Act of the legislature. 1 1 . That Ward One has by the several councHs of the city been compensated by other expenditures of public money. 12. That the residents and owners of property in Ward One do not desire the city to go to the expen.se of a useless bridge such as the one referred to would necessarily be for some time, in the present prospeci-ri of the city's growth. 13. That in a case where the rights and justice of the case are so obvious, it is clearly within the constitutional rights and powers of the local legislature to pass the act containing the tection complained of (section 57 of chapter 27 of Manitoba statutes, 51 Vic), and that the same ought not to be disallowed. All of which is respectfully submitted. In witness whereof the city of Winnipeg has caused its corporate seal to be affixed to these presents, and the signatures of its mayor and city clerk to be also hereto made, the eighteenth day of Febr'uary, A.D. 1889. THOMAS RYAN, Mayor. C. B. BROWN, City Clerk. Report of the Hon. the Minister of Justice, approved by His Excellency the Governor General in Conncil on the iind October, 1888, Department of Justice, Ottawa, 13th September, 1888. To His Excellency the Governor General in Covncil. The undersigned has the honour to report upon the Acts of the legislature of the province of Manitoba passed in the 1st session of the present year, 1888, (chap- ters 1 to 4, 7 to 12, 15 to 19, 21 to 26, 28 to 37, 39 to 46), and to recommend that such Acts be left to their operation. Respectfully submitted. JNO. S. D. THOMPSON, Minister of Jnstice, Note. — The Acta, chapters IS, 1^ and 27 do not ajipear to have been re2)orted upon. f;:. 896 MANITOBA LEGISLATION Report of the lion, the Minister of Justice, approved by His Excellency the Governor General in. Council on the 22nd October, 2888. Department of Justice, Ottawa, 13th Sept,, 1888. To His Excellency the Governor General in Council, The undersigned has the honour to report upon the following Acts passed by the legislature of Manitoba in the first session of the present year, 1888. Chapter 5 "An Act providing for the construction of certain Railway Lines." The purpose of this Act is, to regulate the building of railways by the province. Section 8 gives the commissioners powers, among other things, to enter into and upon any public lands and lands of Her Majesty, as well as to take pos.session of all lands, watercourses, &c., except navigable waters, the appropriation of which is in his judg- ment necessary for the railway. By subsection X of section 2 the expres.sion " lands " includes all granted or ungranted, wired or cleared, public or private lands and lands of Her Majesty, and there can be but little doubt that the intention of the legislature as herein expressed, is to enable the provincial government by its railway commissioners to expropriate the public Crown lands of Canada. In the opinion of the undersigned such legislation is beyond the powers of the provincial legislature. diaper 6 " An Act respecting Expropriation of Lands." This Act makes ptovisi(m for the expropriation of lands for the public works of Manitoba. Section 2, subsection 0, defining the meaning of the word "land" as used in the chapter and section 3, subsection 6, giving the minister power to enter upon any land, are subject to the same objection as the provision referred to in chapter 5. In each of these chapters there should be clear and unequivocal provisions to the effect that nothing therein contained should affect in any way any Crown lands, the property of Canada. Section ]2 is as follows ; — " In the case of Dominion lands taken under the provisions of this Act for any public work of the province, the value to be paid for any lands taken or for the com- pensation as aforesaid shall be settled and paid as may be mutually agreed between the government of Canada and the government of the province ; or the same way be de- termined under the provisions of the Revised Statutes of Canada, chapter 40, intituled, " An Act respecting the official arbitrators," "and when so determined the amount thereof shall be paid by the Provincial Treasurer to the Minister of Finance and Receiver General." In the opinion of the undersigned this provision is ultra vires of a provincial legislature. The government of Canada can not be coerced into parting with its lands in the way indicated, and the section should be repealed. Tlie undersigned does not at present intend to make a final report in respect to these two Acts, and inasmuch as a session of the legislature of the province of Manitoba may be held within the time limited by the British I^orth America Act for the tlisallowance of these statutes, and there is therefore no immediate necessity for final action by your Excellency in respect to them, (he undersigned respectfully recommends that in the meantime a copy of this report, if approved, be transmitted to to the Lieutenant-Governor of the province of Manitoba, with a suggestion that his advisers promote legislation so amending the statutes, by eliminating the provisions to which objection is herein made, tvs to bring them within t'j; provincial jurisdiction Respectfully submitted. JNO. S. D. THOMPSON, Minister oj Justice 51 VICTORIA, 1888. 897 yrovernor 1888. ^d hy the les." Iprovince. Jmd upon |all lands, lis judg- ' lands" lands of lature as noners to ned such 2r o. Report, of thi' Hon. /he MiniHter of Justice, approved by His Exrellency the Governor General in Council on the 2nd October, 188S. * Department of Justice, Ottawa, 13th Sept., 1888. To His Excellency the Governor General in Conncil : The undersigned has the honour to report upon the following Acts of the legislature of Manitoba, passed in the first session of the present year, 1888. Chapter 20 : " An Act to amend chapter 5, 50 Victoria." The original Act, of which this chapter is in amendment, relates more or less to the subject of insolvency, and has been commented on by the undersigned in previous reports. Chapter 38 : " An Act to amend chapter 47 of the Acts passed in the forty-sixth and forty-seventh years of her present Majesty's reign, being an Act to encourage the building of railways in Manitoba." Section 5, subsection 22, is legislation in reference to aliens, authorizing them, as well as British subjects, to be shareholders in the railway companies. The undersigned has frequently, in former reports bearing upon provincial legislation, called attention to the fact that the parliament of Canada has extensive legislative authority in respect to aliens, and legislation of this character by a province is an infringement of this power. Chapter 47. — "An Act to incorporate the Brandon and Rock Lake Railway Company. This Act purports to incorporate a company with powers to build a railway com- mencing at or near Brandon, thence running south-easterly to the international boundary with a branch extending to the western boundary of the province. This Act is one of a series of Acts incorporating railway companies in Manitoba for the purpose of erecting and operating railways, either to the international boundry between Manitoba and the United States, or to the western boundary of the province, or to both. The undersigned feels called upon to make the following observations in reference thereto : — " The British North America Act 1867" section 91, gives to the parliament of Canada exclusive legislative authority in respect to the regulation of trade and commerce, and also in relation to those classes of subjects which are, by section 92, assigned exclusively to the provincial legislatures. In the enumeration of classes of subjects assigned to the provincial legislatures by section 92, the following subject is excepted :— " Lines of railwiiy connecting the province with any other of the provinces, or extending beyond the limit of the province." The railway referred to in this Act would seem to be an undertaking within the meaning of this exception, and if it be so, the Act incorporating it is beyond the power of a provincial legislature. The policy of the framers of The British North America Act would appear — from a careful consideration of the subjects assigned to the Pailia- ment of Canada and to the legislatures, respectively— to have been to confine the latter to undertakings wholly within the province, and not touching or having any connection with either an adjoining province or adjoining foreign territory, and to leave all means of international ov interprovincial communication for Dominion legislation. Ferries between a province and any British or foreign country, or between two provinces, are regulated by the Dominion parliament ; so are lines of steamships between a province and any British or foreign country. There seems, therefore, to be some reason to doubt the power of the provincial legislature to authorize the construction of a railway to the boundary line, between the province and the United States, but the power to authorize the construction of a rail- way connecting the province with another province, is clearly in the Dominion parlia- 1 i 1 t'l a' '-■ .f^ t! ■( ■II u i'M -Jl).!! 898 MANITOBA LEGISLATION ment alone. In this instance the railways authorized will connect the province of Manitoba with the North-west Territories, and it would seem, therefore, that if the validity of such enactments can be established, it can only be done by relying on the technical difference between the territories and a province. Another question may arise in relation to the authority of the legislature of Mani- toba to pass these sta+^^utes, viz., whether such railways will connect with or cross the line of the Canadian Pacitic Railway ; for if they should, they are, by section 306 of The Riilway Act, 1888 (sections 121 of chapter 109 of the Revised Statutes) declared to be works for the general advantage of Canada, and section 92 of The British North America Act, subsection 10 (c) declares that works, although wholly situate within the province, which are before or after execution, declared by parliament to be for the gen- eral advantage of Canada, are excepted from the legislative jurisdiction of the province, and, consequently, i-emain within the sole jurisdiction of the Dominion parliament. Section 15 of this Act (chap. 47) relates to al'ens, and is in this respect subject to objection, as dealing with a mattef within the exclusive control of the Dominion Parlia- ment. Chapter 48, *' An Act to amend an act to incorporate the Brandon, Souris and Turtle Mountain Railway Company," and chapter 49, "An Act to incorporate the " Emerson and North-western Railway Company." The former of these Acts confers additional powers upon the company, and gives it the right to build and operate a line of railway from a point near Brandon, thence to the international boundary, and from a point on such main line to the western boun- dary of the province ; while the latter (chapter 49) purports to incorporate a company with power to build and operate a line of railway from Emerson to Portage la Prairie, and also a branch line from some point on the western boundary of the province of Manitoba, and a local e^ttension of such line of railway, eastward from Emerson to the Lake of the Woods. Both of these acts arc subject to the same observations already made in reference to the Act to incorporate the U^andon and Rock Kike Railway Company. Section 17 of the latter of the two Acts undsr consideration, viz. : chapter 49, provides that every mortgage deed given by the company shall be deposited in the office of the Secretary of State for Canada. The office of the Secretary of State is not in any way subject to the legislative authority of the provincial legislature, nor may duties or obligations be thereby imposed upon him. This provision is therefore nugatory. Chap. 50, " An Act to incorporate the Emerson, Souris and Brandon Railway Company." This act authorizes the construction of a railway from a point on the international boudary to the city of Brandon, and contains the provisions as to aliens before cited. It is, therefore, subject to the observations of the undersigned in reference to chapter 47. Section 3, of this Act provides as follows : " The company shall not commence any bridge over a navigable river, or any work thereunto appertaining, until the company shall have submitted to the Governor General of Canada in Council, plans of such bridge and of all the intend. J works thereunto appertaining, nor until the plan or site of such bridge shall have been approved by the said Governor in Council, and such conditions as he shall have thought fit for the public gooat if the on the ' of Mani- J cross the |on 306 of declared (ish North vifchin the |r the gen- province, bent. i'ubject to Ion Parlia- Souris and |)orate the 'd gives it I thence to tern boun- company ja Prairie, jrovince of ion to the reference [hapter 49, the office legislative •y imposed 1 Railway Jrnational ore cited, lapter 47. any work I" General ■hereunto )d by the ie public ''Jth, nor the per- impose." thorized •idges or ?islative ' one, as ■ided by Chapter 52. Company." Chapter 53. Company." The first of " Act to incorporate the Turtle Mountain and Manitoba Railway " An Act to incorporate the Winnipeg and South Eastern Railway these Acta (chapter 51) provides for tlie construction of a railway from ♦^he city of Winnipeg to the international boundary line, with branches extend- ing to the westerly boundary of the province of Manitoba. The second of these Acts (chapter 52) provides for the construction of a line of railway from the 49th parallel of latitude (the international boundary line) to the western boundary of the province. The third of these Acts (chapter 53) authorizes the construction of a railway from the city of Winnipeg to the international boundary line. These three last mentioned Acts (chapters 51, 52 and 53) are subject to the obser'ations already hereinbefore made on Acts incorporating railway oomp;.,nies. The undersigned has the honour to recommend, in reference to the Acts herein reported on, — notwithstanding the observations which he has felt called upon to make, that they be left to their operation. If their provisions are to be put into practice, abundant opportunities will be offered for testing their validity, and in the meantime no public interest seems to call for the exercise of your Excellency's power of disallow- ance. The undersigned would further recommend that a copy of this report, if approved, be transmitted to the Lieutenant-Governor of Manitoba, with a request that his honour's advisers may promote legislation, having in view the amendment of so many, of these enactments as may be made to conform to the powers of the legislature. Respectfully submitted. JNO, S. D. THOMPSON, Minister of Justice, ,rti 900 MANITOBA LEGISLATION. MANITOBA, 52nd VICTORIA, 1888-89. 1st Session, 7th Legislature, August 28 to October 15, 1888, Chaps. 1 — 14 and 49. 2nd Session, 7tii Legislature, January 31, to March 5, 1889, Chaps. 50 — 54. Petition of Pioneer Aasembly, Knights of Labour of Winnipeg, re Chaj?, 48, to Ilia Excellency the Governor General in Council. To the Right Honourable Sir Frederick Stanley, Baron Stanley of Preston, Governor General of Canada and Vice Admiral of tlve same (in Council) : May it Please Your Excellency. The humble petition of Pioneer Assembly, Knights of Labour of Winnipeg, province of Manitoba, humbly showeth : Whereas by the Manitoba Municipal Act of 1886, the several municipalities in the province are authorized to levy and collect taxes on all lands (other than those specially exempted). And whereas it has been customary, under the authority of the above mentioned Act, in the cases of rural municipalities, to impose an addition of ten per cent on all taxes in arrear, and in the case of the city of Winnipeg to impose, in cases of arrears, a charge at the rate of nine per cent. And whereas in a suit in which the Honourable John Schultz was plaintiff, and the city of Winnipeg were defendants, his lordship the Hon. Thomas Wardlaw Taylor, Chief Justice of the Court of Queen's Bench of Manitoba, granted to the plaintiff a perpetual injunction against the city of Winnipeg, forbidding their carrying out the proposed sale of the plaintiffs lands for arrears of taxes, on the ground that the city had no power to impose a charge or interest of nine per cent on taxes in arrears, or, if they had power, under the above mentioned Manitoba Municipal Act, such legislation was ultra vires of the Manitoba legislature. (Man. L. R. Vol. VI., j). 35.) And whereas the legislature of Manitoba, at their last session passed an Act, chap. 45, intituled : " An Act to further amend chapter 52 of 49 Victoria, being the Municipal Act of 1886 and amendments." And by section 22 of such amending Act it is provided that "no sale of any lands for arrears of taxes heretofore or hereafter made under the provisions of any statute of this province shall be impeached or set aside, or held to be invalid on the ground that a rate or percentage, whether by way of increase or interest or otherwise, was added to the original amount of taxes, and forms part of the claim for arrears for which the lands were sold. The Court of Queen's Bench for Manitoba shall not have jurisdiction to impeach any sale for alleged arrears of taxes on the ground set forth in this section. This section shall not apply to cases in which, prior to the 5th day of March, A.D., 1889, suits in equity were instituted affecting any such sale on the said grounds, or any of them." And whereas much hardship and injustice has been done to owners of real property in the city of Winnipeg and other parts of the province of Manitoba, in consequence of the arbitrary manner in which lands have been seized and sold for arrears of taxes, in many cases the owners having rpceived no notice of the intended sales, and not unfre- quently, being even ignorant of the facts till long after the sales hid been effected. And whereas considerable litigation, in connection with such sales has been com- menced and remains to be disposed Of, and especially as the ill effects of such litigation are more likely to be felt by the artizan and labouring classes, who can ill afford the 52 viCTOUiA, 1888-89. 901 M 49. )— 54. |8, to Uia Gover nor Vinnipeg, ies in the specially Qentioned nt on all arrears, and the Taylor, laintiff a g out the ' city had "•, if they ition was tct, chap, runicipal ny lands atute of Jnd that dded to tie lands lition to section. , A.D., , or any roperty ence of xes, in i unfre- d. 1 com- igation rd the heavy expense entailed by any appeals to the court of judicature, either for the purpose of prosecuting or defending their legal rights. And whereas it is held by many members of the legal profession, and other com- petent authorities, that legislation which assumes to give power to niunicipiil bodies to seize and sell lands for arrears of taxes, and to give deeds of title ff>r the same, without resort to legal process against the owners, and without the owners receiving due and legal notification of the same, or being afforded an opportunity of appealing in defence of their legal rights, is iiftra xnren of the Manitoba legislature. Your petitioners therefore pray that your Excellency in Council will be pleased to disallow the said Act passed at the last session of the Manitoba legislature, and to direct such other measures to be taken for the relief of your petitioners as may seem best to your wisdom. Signed on behalf of the Pioneer Assembly, Knights of Labour, and whose seal is hereto affixed, in this city of Winnipeg, this seventeenth day of April, A.D. 1889. Parliamentary Committee of Knights of Labour, Winnipeg. /W. Frank Linn, AhCHI). WKKillT, Jas. Hahuis, Henkv Feikiuhon, Mesarx. MacdonaJd, Tnpper, Phippen Jc Tupper to the Hon. the 3f in later of Justice, re chap. Jf5. WiNNiPEo, Ist June, 1889. Sir, — On behalf of a number of ratepayers in the province of Manitoba whose rights to their property have been destroyed by section 58 of 51 Vic, chap. 27, entitled " An Act to amend the Manitoba Municipal Act, 1886, and amendments," and section 22 of 52 Vic, chap. 45, entitled " An Act to further amend chap. 52 of 49 Vic, being the Mnnitoba Municipal Act, 1886, and amendments," we beg to submit for your con- sideration the justice of advising his Excellency the Governor General to di.sallow the legislation referred to. Section 58 of 51 Vic, ch. 27, which was assented to on the 18th day of May, 1888, provides that '' all assessments made and rates heretofore struck by the municipalities, are hereby confirmed and declared valid and binding upon all persons and corporations affected thereby, but this section shall not in any way affect any appeal or cases pend- ing at the time of the coming into force of this Act, where the validity of any such assess- ment or rate may have been questioned." You will observe that the legislation, which is retroactive, is of the most sweeping character, and no matter how illegal and unauthori7ed any past assessment may have been, the person or corporation to whom the property assessed belongs is powerless to dispute it. The atlministration of municipal law in Manitoba has always been characterized by the greatest possible looseness and inefficiBncy. In many cases the requirements of the Act relating to assessment of property have been almost entirely neglected. In some cases no notice of the assessment has been given ; in others the notice has been ser^red upon the wrong parties, and again property which is exempt from taxation has been constantly assessed. Until the clause in question was passed the owners of property, which had been thus improperly assessed could of course protect their property from confiscation, by an appeal to the courts on the ground that the assess nent was invalid. If, however, this clause is left to its operation they are absolutely without redress and by this retroactive legislation are forever deprived of their property. Section 22 of 52 Vic, chap. 45, which was assented to on the 5th of March, 1889 is, if possible, still more vicious legislation. 57 902 MANITOBA LEGISLATION It is OS follows : — " No Hale of any lands for arrears of taxeH heretofore or hereafter made under the provisions of any statute of this province shall be impeached or set aside or held to be invalid on the ground that a rate of percentage, whether by way of increase or interest or otherwise wiis added to the original amount of taxes, and form part of the claim for arrears (or which the lands were sold. The Court of Queen's Bench of Manitoba shall not have jurisdiction to impeach any sale for alleged arrears of taxes on the ground set forth in this section. This section shall niot apply in cases in which prior to the fifth day of March, A.D. 1889, suits in equity were instituted affecting any such sale on the said grounds or any of them." In the case of Schultz vs. the city of Winnipeg, the chief justice of Manitoba in November last granted an injunction restraining the sale of certain property in the city of Winnipeg on the ground that in the arrears for which the property was advertised to be sold was included a rate of ^ of one per cent per month on the overdue taxes — equal to 9 per cent per annum — which he held was interest and that .he local legislature had therefore no power to authorized the city of Winnipeg to chr.rge it, as interest if by subsection 19 of section 91 of The British North America Act one of the subjects over which the Dominion parliament has exclusive jurisdiction, and that parliament had fixed the legal rate of interest at six per cent in the absence of agreement Ijetween the parties. {Shultz vg. Winnipeg, Man. L. R., Vol., VI., p. 35.) The defendants appealed from this decision, and while the appeal was sub-judice the local legislature passed the above clause. On the 7th instant the Court of Queen's Bench for Manitoba gave judgment sus- taining the decision of the chief justice, Mr. Justice Killam dissenting. We inclose certified copies of the judgments. {Shultz vs. Winnipeg, Man. L. R., Vol. VI., p. ^2.) In delivering judgment, Mr. Justice Bain referred to the legislation in question in the following terms : — " This section, passed as it was, while the question wtis still sub-judice, seems to admit practically and frankly not only that the added rate was interest, but also that the legislature had exceeded its powers in imposing it, for if the addition had been legal aad valid there could be no object whatever in thus legislating in reference to it. And here I feel compelled to express my deep regret that the legislature should have allowed it«elf to be induced to grant such legislation. If, as has manifestily been assumed, the imposition of the rate was illegal, then the attempt has been made by this section to take away from those who have been arbitrarily and illegally dispossessed of their property, their right of applying to the court for redress. If the rights and securities of property are to be preserved, this is a right which cannot be lightly interfered with, and the existence of this section in the statutes, passed appar- ently as it has been in the interests of a few, and in derogation of the rights of citizens generally, is in my opinion a reproach to ^ province that claims to enjoy free institutions." And Mr. Justice Killam said : — " Having had the advantage of a perusal of the judgment about to be delivered by ny brother Bain, I desire to express my concurrence in his remarks upon the character of the legislation of the last session of the legislature, assuming at a stroke to take away rights of property which the chief justice had already in this very suit declared to exist." It is unnecessary for us to add anything to these strong judical expressions of dis- approval of this legislation, and in conclusion we venture to submit that for the reaeons we have given both the sections alluded to should be disallowed. We have, &c., MACDONALD, TUPPER, PHIPPEN & TUPPER. fi2 VICTORIA, 1888-89. 903 ^ tider the lilll to 1)0 interest H'li"! for ol)a shall found set J the fifth lie on the ub-judice lent 8U8- inclose P: 43.) lestion in r. seems to also that jeen legal I it. And '6 allowed imed, the ection to >esaed of ghts and tnnot be ed appar- f citizens »joy free vered by sharacter ike away lared to 18 of dis- reaeons IR. Measrs. Macdona/d, Tnpper, I'hipjifii A Tii/>/)i'r, fi> //c //(. .'>!!)). Under the provisions of our Municipal Act : unless land wlm.h has been sold for taxes is redeemed within two years from the date of the sale, a deed issued to the purchaser, which is declared by section 673 of 49 Victoria, liapter .*j2, as amended by section 52, of 50 Victoria, chapter 10, to bo "conclusive evidence of the validity of the sale," and it is further declared by that section that "no such tax sale deed shall be annulled or set aside except upon the following grounds and no other : " That the sale had not been conducted in a fair, open and proper manner ; or that there were no taxes due, and in arreai upon such land at the time of said sale, for which the same could be sold by such municipality." In the case of McCrao vs. Corbett (Man. L. R., vol. VI., p. 4^0). in which one of the grounds upon which it was sought to annul a tax deed, was that interest at the rate of ten per cent had been included in the arrears for which it was sold, the chief justice recently held that under the above section, a tax deed could not be questioned if at the time of sale there were any taxes du^ You will therefore see that if the legislation which Mt- Justice Killam has declared to be ultra vires of the local legislature, is not lOwed, the owners of property will be powerless to prevent their property being confiscated unless they pay an amount which the courts of this province have declared has been illegally demanded We have, (fee, MACDONALD, TUPPER, PHIPPEN & TUPPER Hon. Attorney General Martin to the. Depttty Minister oj Justice. Winnipeg, Man., 19th July, 1889. Sir, — Yours of the 9th inst., inclosing copies of correspondence re sec. 58 Vic, cap. 27 and sec. 22, 52 Vic, cap. 45. With regard to the first mentioned section I must say that I think the operation of the section is unfair. I have brought the matter before the government, and they have agreed to ask the House next session to repeal the section. With regard to sec. 22 of cap. 45, 52 Vic, I think that the action of the House was quite justifiable, although it must be admitted that it is very strong legislation. The court here has decided that the local legislature had no power to provide for the pay- ment of ten per cent, additional upon the taxes on a certain day in the year. This decision was a most unexpected one, and has upset the practice of the province in muni- cipal law for many years following the practice in Ontario. There is a very strong opinion amongst many lawyers here that the court is wrong on this question. I myself am very strong of the opinion that the decision is incorrect. The effect of the decision 57J 904 MANITOHA LKIIHI.ATION waH to eauHH alniowt iiu'Xtriciil)le oonfiisidn all over tho province. Tf it 8lK)iild turn out that tho court wcro wronx, a j;r»'iit ot>iit'usion would iij^aiii ho oauHod hy rovi-rtiiig to ilm old Htato of iillairs. Aft«r vory careful cousidoriition and a j{ro.il (hial of dixcuHHion, it wan decided that it would not bo unfair to pasM tho soction under discussion with a view to holding matters in nt(ia»'(l to coimider tim iiijustiw* doiio t(» our town's rif,'litH, mid liiive the said bill disallowed, and your petition«'rs an in duty bound will ever pray. H. TENNANT and 32 others. J'etiHon from Exfciitorif of EkIhIi- of lalf John MnrLnnii to lliit E.irellrncy th: G'orernor Gi'>u:ntl ill Coiiticil, n: ChajitKr J/J . To Ilia E.ifdleni'ij lln' Governor Gonfral in Council : The humlile petition of Janie.s MacLaren, of Huckinj^hain, it) Mio province of Que- bec, and William MacLaren, of 'J'oronto, in the province? of Ontario, executorM of the estate of John MacLaren, deceased, humbly complaining, showeth unto your Excellency as followN ; — Your petitioners are the duly appointed legal personal representatives of the said John MacLaren, now deceased. Under and by virtue of certain Acts and by-laws hensinafter recited, the town of Emerson caused public notice to be given in various newspapers, of which the following is a true copy : " PUBLIC NOTICE. " Sealed tenders addressed to the undersigned (secretary-treasurer of the corpora- tion of Emerson, province of Manitoba), and endorsed " Tenders for town debentures," will be received up to 8 o'clock p.m. on Wednesday, 15th September, 1880, for the pur- chase of $43,000 debentures of the town of Emerson, Manitoba. Tenders may be for part or for the whole amount. Population of town about 1,")00. No other indebtedness existing. The highest, or any tender, not necessarily accepted. " (Sgd.) G. F. Baldwin, 24th August, 1880. " Secret ary-Treaaiirer." Under and by virtue of the statutes of the province of Manitoba, known as 42 Victoria, chapter 3, sections 371, 374, and 37o, and 43 Victoria, chapter 30, -section 2, subsection 3, and by virtue of a by-law of the town of Emerson, entitled a by-law to raise $35,000 to be expended in the construction of an ordinary pa.ssenger and traffic bridge across the Red River at Emerson, and to authorize the issue of debentures of the town of Emer.son therefor. The said town of Emerson executed and sold to your petitioners, as such executors as aforesaid, thirty-five debentures of the said town for the amount of one thousand dollars each, which bonds ane dated the sixth day of September, one thousand eight hundred and eighty, and are payable on the sixth day of September, one thousand nine hundred, with interest at eight per cent half yearly on the first day of May and November in each year, and your petitioners have ever since the year one thousand eight hundred and eighty been, and still are, the owners of the said bonds. 4. Under and by viitue of the statutes aforesaid, and of another by-law of the said town of Emerson entitled : " A by-law to raise by way of loan the sum of $8,000 to be expended in payment of the purchase money for the steam fire engine heretofore purchased by the coui oil, and to authorize the issue of debentures of the town of Emer- son therefor," the said town executed and sold to your petitioners, eight debentures of the said town, for the sum of one thousand dollars each, which debentures are dated the sixth day of September, one thousand eight hundred and eighty, and are payable on the sixth day of September, one thousand nine hundred, with interest at eight per cent half yeail} on the first day of May and the first day of November in each year, and your petitioners have since the year one thousand eight hundred and eighty, remained and still are the owners of the said debentures. '^ ,J 906 MANITOBA LKGISLATION 5. No interest has been paid by the said town in respect of any of the said deben- tures since the first day of November> one thousand eight hundred and eighty-three. 6. At the tim« of the purchase by your petitioners of the said debentures, the said town of Emerson had no indebtedness, other than the indebtedness represented by the said debentures and the security of your petitioners was perfectly ample and satis- factory. 7. After the purchase by your petitioners of the said debentures, the said town of Emerson incurred other large debts, and became liable for very large amounts in respect of a railway bridge built across the Red P.. .'er at the town of Emerson, and for other purposes. 8. The total indebtedness of the said town, prior to the said Act next hereinafter mentioned, amounted to more than the sum of three hundred thousand dollars. 9. By an Act of the legislative assembly of the province of Manitoba assented to on the fifth day of March, one thousand eight hundred and eighty-nine, and known as 52 Victoria, chapter 47, and entitled " An Act respecting the town of Emerson," pro- vision is made for the issue by ti.e said town of Emerson of debentures to the amount of one hundred and twenty-five thousand dollars, payable in twenty j^r rs, with interest at thb rate of three p'^r cent per i .inum, payable ann"",lly. It is furi,lier provided by the said .statute that said debentures are to be delivered to the creditors of the said town pro rata, according to the amount of the claima of such creditors, which creditors thus receive the same p Tcentage of the amount of debentures issued as the amoi it of his claim is to the total indebtedness of the town, as shown by a statement to be prepared according to a certain method by the clerk and tr-" .surer of the town. 10. It is further provided by the said statute that it shall not be lawful, while this Act continues in force, for the sheriff, or bailifi', or any other otlicer, vO seize or make any levy upon the property of the said towi , or of the school board for the said district, nor shall any proceedings be taken against the said tow- or school board or the truat^-es of the said school district or council of the said t^- rt-n or against any officer or employee of the said school board or said council for the purpose of enforcing either against the property or revenues of said town or school district claims for debts incurred by said town or scho->l district prior to the passing of the said Act; or for interest thereon except so far as the said Act provides for payment of the same. 11. It is further provided by the said statute that the said Act should come into force upon the proclamation of the Lieutenant-Governor in Council. 1 2. The said Act has been proclaimed bj- the said J jeutenant-Governor in Counoil and is now in force. 1 3. Your petitioners are advised that the eficet of the said ^.tatute is to deprive your petitioners of any right of action in respect of the said debentures so held by them as aforesaid, and in fact to nullify the said debentures, and to relieve the said town of Emerson from payment thereof, your petitioners being compelled tc accept other deben- tures payable in twenty years with interest at three per cent per annum for an amount not exceeding twenty-five per cent of your petitioners claim. 14. Your petitioners are the persons referred to in the preamble to the said statute "as the one person ' who is unwilling to accept the tyrms of the said statute. Aro your petitioners opposed the passage of the said statute in every way in their power. 15. Your petitioners are perfectly satisfied with the security which they hold, if unafiiected by legislation, and have never taken any proceedings against the town either at law or otherwise. 16. Your petitioners, relying on the integrity of tho legislature of Manitoba in passing an Act authorizing the issue of said debentures — which Act subsequently received the sanction of his Excellency the Governor tjreneral in Council — invested trust funds, i" good faith, in the purchase of said Ijbentures by public tender at a premium, li.erefore, your petitioners respectfully submit that i£- the legislature of Manitoba is permitted to repudiate its solemn obligation in this regard, no prcvin.^ial authorization of any municipality or other debt can hereafter be looked upon other than as a trap for innocent investors, thereby elfectuilly destroying provincial credit. 52 VICTORIA, 1888-89. 907 Isaid deben- Jty-three. fes, the said (■esented by and satis- lid town of Is in respect Id for other I hereinafter Irs. I assented to known as feison," pro- > amount of inter.-'st at lideJ by the p said town fditors thus i of his be prepared while this ize or make id district, 'the trucl^-es 'f employee against the ■ed by said •est thereon come into in Counoil to deprive |d by them id town of her deben- an amount iid statute Ar"; your y hold, if wn either nitoba in 3fiquently -invested nder at a ature of rcvin.iial her than 17. Your petitioners further submit, that the provisions of the said Act are grossly unjust and are destructive of all faith and confidence in Manitoba securities, subversive of the best interests of our municipal institutions and contrary to the public policy. Your petitioners theretoi^ pray that the said Act may be disallowed. JAMES MACLAREN,! „ WM. MACLAREN.r^"'^"^^'''- Dated at Buckingham the tenth day of August, 1889. Petition Jrom property owners and former residents of Emerson to His Excellency the Governor General in Council, re chapter J/.?. To His Eicellency the Governor General in Council : The petition of the undersigned, property owners and former residents of Emerson, Manitoba, now residents of Vancouver, British Columbia, humbl}' showeth ; — 1. That they are interested in the town o. Emerson, Manitoba, as property owners and former residents, and anxious for the prop'.ity and success of said town. 2. That in 1879-80-81-82, Emerson was a prosperous town, doing a large business with the country west of Red River in Southern Manitoba as far as Turtle Mountain ; that iu order to facilitate this trade the town ^vent into debt to construct a free traffic bridge over Red River and to make othe'- public improvements ; that later, in order to hold this trade, a company was organized to construct a railway west from Emerson to the Turtle Mountain district, and application was made to the Dominion parliament for i) charter, but said application was refused, on the ground that the policy of the Domi- nion government was to make all railways in the Canadian North-west feeders to the main line of the Canadian Pacific Railway ; that later, a charter was secured from the provincial legislature for said railway, and several thousand dollars was expended in grading and the purchase of material, but the enterprise was killed by the disallowance of the Act by your Excellency's government ; that in consideration of the promoters of the enterprise not applying to the provincial legislature for a re-enactment of the charter, the Canadian Pacific Railway Company agreed to constiuct a line west from Emerson to a connection with their Pembina Mountain Branch, the town of Emerson, as a further consideration, to construct a railway and traffic bridge over Red River for the exclusive use of the Canadian Pacific Railway, that the promoters of the railway and the town of Emerson carried out this agreement, the town of Emerson, upon its part, constructing a bridge and acquiring right of way at a coso of over $225,000 ; that owing to the bridge not being completed at the date fixed upon in the agreement between the town and ♦^h? ' ! . laciian Pacific Railway Company, the latter took advantage of the fact and took up the rack it had laid and tore down the telegraph line it had erected, thus leaving' tiie town without western railway connection ; that owing to this fact and the huge i!')bt contracted by the town in its efforts to secure railways to the west and hold trade that had been built with the country west, and through the loss of said trade by the constructio of lines of railway south-west from Winnipeg, the town <>f Emerson began to go down, and your petitioners, among many others of its citizens, were obliged to go elsewlit'ie for a means of livelihood. 3. That with the huge debt (something over .^350,000), which has for years hung over the town, there wn no prospect and no possibility of its ever recovering, as people could not be induced to go in there and start business enterprises, with the prospect of paying high taxes and perliapt Ving sold out by the sheriff on judgments held by the creditors of the t(jwn, that for years the citizens of Emerson have been endeavouring to remove the incubus of this huge debt from the town, through a compromi.so with the creditors of the town, that legislation which would enable them to do this was secured from the legislature of Manitoba during the Norquay regime and again at the last 1 908 MANITOBA LEGISLATION session of the legislature, that under an Act passed at said session (1888) the towns of Emerson and "Wtst Lynne have been amalgamated under the title of the town of Emerson, and an arrangement has been eiFeeted by which all the creditors, except one, have agreed to coniproiiiise their claims at about 32 cents on the dollar, said compromise claims to be liquidated by the 'ssue of town bonds to the amount of $105,000, payable in 20 years and bearing interest at the rate of 3 per cent per annum, which interest is guaranteed by the provinc nl government. 4. That your petitioners learn with regret that Mr. MacLaren, of Ottawa, one of the creditors of the town, is the only creditor who has refused to accept this — under the circumstances — most favourable compromise, and that he has petitioned your Excellency's government to disallow the Act of the Manitoba government and legis- lature above referred to. 5. That unless the proposed compromise settlement is carried out, there is little possibility of any of the creditors of the towiTever recoveving anything, but the disal- lowance of t oo Act above referred to, would be a great Hardship to the property owners of Emerson, many of whom, like the undersigned, hope, under the proposed arrange- ment -by which the debt of the town is reduced to an amount which it will be able tu pay — to see the town recover from its present bankrupt and depressed condition, thereby enabling theui to either realize upon, or return to, property in which the savings of years have l)een invested, and homes upon which money and years of care and attention have been bestowed. Your petitioners, therefore, humbly pray, that your Excellency and honourable Mlvisers will not disallow the A.ct above referred to, but will permit it to remain in force. And your petitioners, as in duty bound, will ever- pray. DAVID EVANS, and 200 others. August, 1889. Honourable Attorney-General Martin to the J/onourable the Minister of Justice. Winnipeg, Man., 12th November, 1889. Sir, — I have received from your department a copy of a petition of H. Teiiaant and others, citiaens c/ West Lynn*' and of James MacLaren, praying for the disallow- ance of ca'(>. 47. 52 ^ ic. If you have not already repJ that Act, I would refer you to it You will find under it that the government here have assumed very considerable obligations in connection with the Uj^ci of Emerson. So far as the inhabitants of West Lynn are concerned, I am quite satisfied that they will receive no injury from the operation of the Act, and in fact quite the contrary. So far as Mr. Macfjaren is concerned, it s»vems to mo that unless this Act is allowed to take its course or some similar provision made, he will never realize anything upon his lx>nds. The town is hopelensly bankrajuf. Of course I need not repeat the arguments addressed to you St' often a.s to your right to interfere in connection with the statute, upon the ground of its being unfair. Ii. connection with this particular statute the question of its constitutionality may, however, be raised. I have been urged by a number of the creditors of West Lynne and Emerson, who ai-e most anxious that the Act should go into force, to write you and endeavour to get from you an expression of your intention as to tl.is Act. If it is to lie di. allowed, the government do not wish to allc" V)onds to be issued with their guarantee on them. On the other hand, it is a matter of serious inconvenience to the ;'reditor;; to be obliged to wait until the expiration of the year al- lowed for disallowances. If you would kindly decide Uie matter now you would confer upca those creditors and upon the townspeople generally, a great favour. I have, Ac, JOSEPH MARTIN, Attorney General. i»^ri2'^'ii ". ^iF«i M 'ir ^. - v^" 52 VICTORIA, 1888-89. 909 Jwns of town of |ept one, Jpromi.se [payable terest is one of -under hd your [id legis- is little Pe disal- owners irrange- able to J thereby (vings of ttention 3r«. Municipal Council of the Town of Einernoti, to the Hon. the Mii- inter oj Justice. Emersox, Man., 28th November, 1889. Sir, — By resolution of the council of the town of Emerson, we are directed to write you with a view to obtaining, if possible, an expression of intention of the Dominion government as regards tlie disallowiince of tiie Act passc^d i)y tlie legislature of this province, assented to in March last, ■'52 Victoria, chapter 47, under which this town was authorized to issue bonds for the purpose of compromising its corporate" indebtedness. In pursuance of such resolution we beg to present the following fac^s •— 1. Tlie town of Emerson and West Lynne had incurred a very large indebtedness, principally in con.structin<; a railway bridge across the Red River, in order to complete a line of railway constructed by the Canatlian Pacific Railway Company, connecting said towns with their Gretna branch with a view to enabling the said towns to still compete for the trade which the construction of said branch to CJretna had cut ofl' from them, but which bridge has never been used for railway purposes, owing to the refusal of the said company to operate said connecting line of railway. 2. Ill consequence the said towns have rapidly lost their commercial position and from a jonit population of 3,500, have become reduced to one at present not greater than 600, and those who still remain are principally property owners who have invested all their capital in taid towns, and are relying upon a settlement of said debt. 3. By an Act of the legislature of 'iiis province, 50 Victoria, chapter 39, it was p.-ovided that commissioner.? might bo appointed to inquire into the financial condition of certain municipalities therein named, amongst which were the towns of Emerson and West Lynne, and for the issue of debentures and a provincial guarantee of interest thereon, to he issued in extinguishment of the indebtedne.ss of such municipalities. At considerable txpense to the two towns, such commissioners' reports were obtained and adopted by ■ he unanimous vote of the people. 4. By the Act of last session, 52 Victoria, chapter 47, the two towns were united into one town and provision was therein specially made for the settlement of the joint indebtedness, by the issue of bonds of the new town, to an amount based upon the report of t he commissioners, the interest upon which bonds the province wasauthorized to guarantee, and by means of which it has become possible for the present town to extinguish its debt, upon procuring the .said provincial guarantee of interest. 5. This said Act, however, is still in suspense, as the government of this province, after a lapse of eight months, decline to grant the said provincial guarantee as to interest, until assured that it is not the intention of his Excellency the Governor General in Council to veto the said last mentioned Act. Meanwhile the whole municipal machinery is paralysed, the schools are in danger of being closed, as taxpayers are indifferent about meeting their assessments whilst the present uncertainty <>xists ; and, unless such an expression as above can be procured, the town will still be left to struggle under the indebtdness referred to, which it is utterly unable to pay, and the result niust be the early removal of the present population, and the total loss to a large number of persons of the moneys they have invested in the town. The corporation of the town of Emerson, therefore, respectfully urge upon you the, vital necessity to them, of having the Act dealt with without further delay. We pray most earnestly that, for the salvation of the town and to insure a fresh start in our history, you do cause the Act last mentioned to be allowed and that such allowance be communicated to the council of this town and to he provincial government at the earliest possible date. We have, &c., &c., W. W. Unsworth, Clerk. D. H. McFADDEN, Mayor. 910 MANITOBA LEGISLATION Beport of the Hon. the Minister of Justice, appiovied by His Excellency the Governor General in Council on the 8th March, 1890. Department op Justice, Ottawa, 1st March, 1890. To His Excellenry the Governor General in Council : The undersigned has the honour to report on chapter 45 of the Acts passed by the legislature of the province of Alanitoba held in the 52ud year of Her Majesty's reign (1888-89) a certified copy of which was received by the Secretary of State on the eleventh day of March, 1889, intituled: "An Act to further amend chapter 52 of 49 Victoria, being the Manitoba Municipal Act 1886, and amendment." Section 5 of this Act is as follows : — " Beginning with and during the year 1887 the city of Winnipeg had power to add to all arrears of taxes then due upon any land in the said city on the last day of each month 8 sum equal to three-fourths of one per cent of such arrears. ■' Ijpon and after the first day of January, 1888, and liereafter the said city had and has, and hereafter every other city shall have, power to add to all arrears of taxes then due and thereafter and hereafter due upon any lands in the said city on the first day of each month a sum equal to three-fourths of one cent per cent of such aiicars. " The taxes for any year hereafter sliall not be subject, however, to such additional charge until after the thirty-first day of December of the year in which the same is levied. " Section six hundred and twenty-six of said chapter fifty-two shall be read as if it always contained the declaration of intention hereinbefore set forth. " This section shall not afiect any pending suits." Section 22 is as follows ; — " No sale of any lands for arrears of taxes heretofore or hereafter made under the provisions of any statute of this province, shall be impeached or set aside or held to be invalid on the ground that a rate of percentage, whether by way of increase or interest or otherwise was added to the original amount of taxes, and form part of the claim for arrears for which the lands were sold. The Court of Queen's Bench of Manitoba shall not have jurisdiction to impeach any sale for alleged arrears of taxes on the ground set- forth in this section. This section shall ndt apply to cases in which prior to the fifth day of March, A.D. 1889, suits in equity were instituted, affecting any such sale on the said grounds or any of them." It appears that prior to the passing of this Act an action had been brought a{ ainst the city of Winnipeg, in the Court of Queen's Bench, Manitoba, for the purpose of obtaining a decree restraining the city of Winnipeg from selling certain property for taxes, upon the grounds that such addition as is authorized by the Act had been made under the authority of a previous Act of the province of Manitoba and that such addition was in reality an illegal charge for interest. It was claimed in that suit that the legislation authorizing such addition was nltra vires of the provincial legislature, inasmuch as it was legislation respecting interest, which by section 91, art 19, of "The British North America Act," is one of the subjects over which the Dominion parliament has exclusive jurisdiction, and that parliament had fixed the legal rate of interest at 6 per cent in the absence of agreement between parties. Th? case was heard before the chief justice of Manitoba in November, 1888, and an injunction was granted restraining the sale upon the ground that the legislation referred to was unauthorized. The Act now under review was passed to over-ride that dec'.sion. It will be observod that the Act expressly provided that the sections in question should not apply to cases in which suits in equity were then pending. The decision of the chief justice was appealed from and two days after the passage of the Act now under review,the Court of Queen's Bench gave judgment on the appeal tustaining the decision of the chief justice, Mr. Justice Killam dissenting. In delivering judgment, Mr. Justice Bain referred to the legislation .n question in the following terms ■ — 52 VICTORIA, 1888-89. 911 rovertior 390. [d by the |y's reign on the )2of 49 3r to add of each " This section passed, as it was while the question was still anb-judice, seems to have been practically and frankly not only that the added rate was interest, but also that the legislature had exceeded its powers in imposing it, for if the addition had been legal and valid, there could be no object whatever in thus legislating in reference to it, and here T feel compelled to express my deep regret that the legislature should have allowed itself to be induced to grant such legislation. If, as has manifestly been assumed, the imposi- tion of thfe rate was illegal, then the attempt has been made by this section to t.ake away from those who have been arbitarily and illegally dispossessed of their property their right of applying to the court for redress. If the rights and securities of property are to be preserved, this is a right which cannot be lightly interfered with, and the existence of this section in the statutes passed, apparontly as it has been passed, in the interest of a few and in derogation of the rights of citizens generally, is in my opinion a roproach to a province that claims to enjoy free institutions." Mr. Justice Killam, although disssenting from th*^ opinion of the court on the legal question involved in the appeal, said : — " Havin;:; had the advantage of a perussal of the judgment about to be delivered by my brother Bain, I desire to express my concurrence in his remark upon the character of the legislation of the last session of the legislature assuming that a stroke to take away rights of property which the chief justice had already in this very suit declared to exist." Since the delivery of this judgment applications have been made by various indi- viduals and associations, praying for the disallowance of the Act. It may now be assumed in consequence of the decision of the highest court in Mani- toba that the imposition of the additional percentage referred to in this section way uftra vires of the provincial legislature. If it be so, tlie subsequent enactment v^hioh is now under review, is open to the same objection and the legislature cannot make such legislation inii'a vires by prohibiting the courts from deciding on the question. In the opinion of th? undersigned it would tend to great confusion and injustice to have no tribunal in the province having jurisdiction to give protection to rights which the high- est court in the province has declared to exist. A provincial legislature cannot thus add to its powers or acquire control over subjects of legislation which are within the powers of the Canadian yarliament. In the view of the undersigned, this is a case in which the power of disallowance should be exercised. It is very much to be regretted that these sections above cited instead of forming an independent Act, are but sections of an Act comprising 23 other important sections affecting municipalities in Manitoba. The undersigned, notwithstanding this, feels bound to recommend that the Act in question be disallowed. Respectfully submitted, JNO. S. D. THOMPSON, Minister of Justice. Order in Council disallowing the Act above mentioned, published in the Canada Gazette on the 15th day of March, Vol. XXIIL, No. 87, po^e 1852. Eep. — Chap. 11 intituled; "An Act to amend tlie County Courts Act, 1887" does not appear to have been reported upon. Meport of the Honoiirable tlie Minister of Justice approved of by His E.tceUcncy the Governor General in Council on the 22nd May, 1890. Department of Justice, Ottawa, March 3, 1890. To His Excellency the Governor General in Council : The undersif;;ned has tiie honour to report on the following Acts passed by the legislature, of the province of Manitoba at its first and second sessions, seventh legisla- ture, held in the 52nd year of Her Majesty's reign (1888-89), a certified copy of which statutes was received by the Secretary of fetate on the 11th of March, 1889. Chapter 2. "An Act respecting thci Northern Pacific and Manitoba Railway Company." The principal object of this Act is to confirm an agreement, purported to be executed between Her Majesty acting through and represented by the railway commis- sioner for the pi-ovince, and the Northern Pacific and Manitoba Railway Company, and to confer certain powers upon such companj. Clause 4 of the Act purports to authorize the company to construct, maintain and operate certain railways in the province of Manitoba, and among other things the rail- way knowji as the Red River Valley Railway, located between the international boundary line and the city of Winnipeg. The agreement which the Act purports to ratify provides that the railway commis- sioner for the province shall conscruesi the Red River Valley Railway from the interna- tional boundary line at the nortbern Terminus of the Duluth and Manitoba Railway (a railway within the territory of the I'lated States) to the city of Winnipeg. Having in view the provisions cit section 92 of "The British North America Act," art. 10, which permits a province to enact laws in i espect to local works and under- takings, except lines of railway connecting the province with any other or others of the provinces, or extend l)eyond the limits (if the province, it is questionable whether a pro- vincial legislature may incorporate a company to build a railway such as the " Red River Valley Railway " appears to be. The Act, however, gives the company power to build other lines of railway, which acre clearly provincial or local undertakings, and the undersigned is of opinion that the Act should be left to its operation. Chapter 19. "An Act to provide for the crossing of one railway by another." Section 1 of this Act provides that "No railway company, whether incorporated by the parliament of Caaada or otherwise, shall cross, intersect, join or unite its railway with any railway subject to the legislative authority of the legislature of Manitoba without first obtaining the approval ot the railway (,ou.:nittee of the executive council of the provinci of Manitoba u^ t< the place and mode of crossing, intersection, junction or union propoHed. Ten days notice in 'iting of the application to such committee shall be given by the company to any such company affected by .sending the same by mail or otherwise to tilie address of the pr- sident, superintendent, general manager, managing director or secretary of such comp my." The undersigned entertains doubts as to whether a provincial legislature may by legislation of this character, interfere with the construction of a railway which isp 52 VICTORIA, 1888-89. 913 ized to be built by the parliament of Canada. The question, however, is a puiely legal one, anJ it does not appear to the undersigned, in view of the fact that it may b« with- out serious inconvenience, settled by the courts proper, that the right of disallowance should be exercised Chapter 39, " An Act to repeal chapter 40 of 50 Vic, being 'An Act to provide for the granting of aid to the Winnipeg and Hudson's Bay Railway and Steamship Company.' " By chapter 40 of the Acts of 1887, the governninent of Manitoba were author- ized to guarantee the bonds of the Winnipeg and Hudson's Bay Railway and Steamship Company, upon the terms and conditions mentioned in the Act. The Act prescribes the form of the guarantee, which form was < o be printed or written on each bond, and signed by the provincial treasurer. The Act now under consideration repeals chapter 40 above referred to. Representations have been made by a tirm of London solicitois that they represent certain bond holders of the railway company, who advanced money on the faith of the Manitoba government guarantee authorized by the repealed Act, and a I'equest has been made that the repealing Act should be disallowed. It is not alleged that any guarantee under the provisions of the Act was over in fact made, and it .seems that no bonds bearing such guarantee were ever issued. Under these circumstances it seems clear that the legislature of Manitoba had a right to withdraw from the executive the power to give the guarantee. The undersigned, therefore, recommends that the Act be left to its operation. Chapter 40 " An Act respecting the town of Minnedosa." Chapter 47 " An Act respecting the town of Emerson." These t^/o towns appear to hnve been in a state of insolvency, without any pros- pect whatever of being able to pay their liabilities in full. These Acts give the c jrpo- rations power to raise certain sums of money by the issue of debentures for the pur- pose of paying a certain portion of the liabilities of each town to its creditors, the government of the province guaranteeing the payment of such debentures at maturity. Before the Acts were passed, so far as the undersigned is aware, the principal creditors of both towns agreed to accept the proposed settlement. One creditor of the town of Emerson alone objected, and has asked for the disallowance of the Act 'n reference to that town, principallj on the ground that the Act is an interference with the law of contract, and, in so far as he is concerned, in effect an act of confiscation. But no sug- gestion has been made that the liabilities of these towns would by any possibility be en- forced in full, and the legislature of Manitoba seems to have considered it better that one of many creditore should suffer, than that all should be practically prevented from getting any payment whatever. Legislation of this character must prejudicially affect the credit of municipalities in Manitoba, by showing that the investment of capital in that province if more precarious than it has hitherto been in any other part of Canada. The legislature of Manitoba, has, no doubt, fully considered this phase of the question. It has the responsibility of legislation relating to municipalities within the province, and this enactment seems to be within its competence, under several of the subjects enumerated in the 92nd section of The British North America Act. The undersigned would, however, refer t.) the fact that section 23 of the Minnedosa Act, and section 28 of the Emerson Act, prohibits any sheriff or bailiff from making any levy on the property of the town, or any proctHsdings being taken against the town for the purpose of enforcing claims incurred prior to the pa,ssir3 of these Acts, and the undersigned would respectfully suggest, with a view to the ultimate protection of such creditors as have refused to accept the comprDmise provided for, that when the deben- tures are paid, and the claims of all assenting creditors thereby satisfied, the rights of non-assenting creditors to payment may revive in respect to a proportion of their claims, eqmul to that received by the assenting creditors. An amervlment of this character would remove in part 8on)e of the strongest objf!ctit)ns to tibe character of the legislation. The undersigned respectfully recommends that tkese two Acts be left to their operation. 914 MANITOBA LEQISLATION Chapter 51. — "An Act to incorporate ' The Selkirk Eastern and Western Coloniza- tion Railway Company.'" This Act authorizes the construction of a railway from the town of Selkirk running south-easterly to a point at the south-east corner of the province, and north-westerly to the north-west corner of the province. This is an undertaking to which the observations hereinbefore made in reference to the Red River Valley Railway may be applied with equal force. Section 3 of this .A.ct authorizes the company to construct bridges, not being bridges over any navigable river or water, having been authorized by an order of the Governor General in Council. This clause is also an infringement, in the opinion of the undersigned, upon the exclusive powers to legislate upon navigation, vested in the Dominion parliament.) As any proposal to construct any bridge over any navigable water will come before your Excellency in Council, and can then be checked, it would seem that no public interest necessitates the power of disallowance being exercised in respect to the Act. The undersigned would, therefore, respectfully recommend that the same be left to its operation. Respectfully submitted. JNO. S. D. THOMPSON, Minister of Justice. 53 VICTORIA, 1890. 915 MANITOBA, 53rd VICTORIA, 1890. 3bd Session, 7th Legislature. His Honour the Lieutenant-Governor to the Hon. the Secretary of State. Government House, Winnipeg, 2nd April, 1890. Sir, — I have the honour to inform you that on the 31st ultimo, before the proroga- tion of the third session of the seventh legislature, I reserved for the signification of the pleasure of his Excellency the Governor General, two bills, viz.; — A bill (No. 66) respecting Sales of Land for Taxes, and A bill (No. 75) aflfecting arrears of Taxes in the city of Winnipeg. The certified copies of these bills, received by me fron. the honourable the Pro- vincial Secretary, too late for transmission by the mail of yesterday, are herewith enclosed, and I beg to submit for his Excellency's consideration the following : — 1. That a comparison of the inclosed bills with the clause of cap. 45 of 52 Victoria, to which objection vas taken by the honourable the Minister of Justice in his report of Ist March, 1890, to his Excellency the Governor General in Council, shows them to be virtually and nearly word for word re-enactments of the clause of cap. 45 of 52 Victoria referred to. 2. That in the absence of any specific or general instruction, I should be guided as to the question of ultra or intra vires by the considerations which caused the disallow- ance of cap. 45, of 52 Victoria, as these are given in the report of the honourable the Minister of Justice, a copy of which is hereto annexed. 3. That, having regard to the report in question my assent to the inclosed bills might be construed as insulting to the highest Manitoba court, and a disregard of his Excellency's action taken upon the advice of his Privy Council, in the disallowance of cap. 45 of 52 Victoria. 4. Tha'- apart from these considerations, it seemed incumbent upon me to take into consideration the fact that the present is about the period of the municipal year when the assessment of the values of taxab'e property has been completed, and the considera- tion of probable revenue and expenditure begun, and that to allow the bills herewith inclosed to become law, even for a time, was calculated to lead to errors in the one, and extravagance in the other, with consequent confusion of municipal accounts, and injustice to individuals who would be debarred from redress in the courts of the province. Under those circumstances, and in the belief that my action was calculated to foster that respect for the decisions of our courts, so necessary in a comparatively new country, and that obedience to federal authority, without which the Dominion cannot prosper, and that moreover I was acting in the best interests of the province, I reserved assent to the inclosed bills. I have, Ac, JOHN SCHULTZ, Lieutenant-Governor. 916 MANITOBA LEGISLATION Memorial to IIIh E.ixeJh.ncy the Gomrnnr (iewral from tfi£ Municipal Council of the City of Winii.ipi'y. I'u J/is E.rceUi'.ncy Ihi; Right llimorahli'. Sir Fredfrick Arthur Stiinley uj I'rcxtim in the County of Laticnfttfr in the Peerage of Great Britain, (J.C.B., (iovernor General of Canada, d;c., (tc, itc, in Council. The ineinorial of the city council of the city of Winnipeg in council assembled- Humbly showeth. 1. That on the prorogation of the legislative assenibly of the province of Manitoba on the thirty-tirst day of March last, his Honour the Lieutenant-Governor reserved two bills which had been passed by the assembly for the consideration of his Excellency the Governor General in Coun.il, said bills being entitled one " An Act respecting sales of land for taxes" the other " An Actallecting arrears of taxes in the city of Winnipeg." 2. By the Manitoba Municipal Act 188G, section 62G, it was provided that on the first of March in each year there should be added to all arrears of taxes, ten per cent of the amount. This applied to rural municipalities. The city of Winnipeg chose to ask for what seemed a more reasonable method of charging interest, namely, by adding three fourths of one per cent to the taxes each month, thus making nine per cent per annum. This per annum. This percentage was not compounded, but was charged simply upon the amount of the taxes as they appeared when the rate was struck, and the city desired to follow this method, as it seemed not so harsh as the adding the whole per centage for a year at a fixed and arbitrary date. 3. In 1888 certain amendments to the Municipal Act were passed, one of them changing the time when the said three fourths of one per cent was to be charged, from the first to last day of each calender month, and by a construction of this clause over- looked at the time, it would appear that the city's right to charge interest beginning in Jannuary, 1887, was taken away from it, and possibly no .such right allowed until 1st January, 1889, it was to rectify this state of things that section 5, chapter 45, 52 Victoria, Manitoba, was passed by the legislature which, upon disallowance of the Act containing same, is contained in the bill " An Act affecting arrears of taxes in the city of Win- nipeg." 4. As to the other Act, jour memoriallists admit that the legislation may seem strained, but it was tor the purpose of avoiding the hopeless confusion which would otherwise result that it was asked for from and unanimously passed by the legislature. Gentlemen of the legislative assembly on both sides of the house explained that scarcely a single one of Manitoba's one hundred municipalities would escape diffi- culty and serious trouble, unless the power to charge interest could be exercised, and its exercise for the past three years be made valid and binding, and your memorialists are able to state with confidence that no dissenting voice or opinion on this subject was expressed, by any member of the legislative assembly. 5. Your memorialists also desire to point out that the corresponding clause oi chapter 45 (being section 22) of 1889 was not ultra vires. In observations of Sir John Thompson, Minister of Justice, on that Act, he did not declare it to be so, but pointed out the impropriety of legislation which prevented action by the courts. Your memo- rialists would respectfully urge that while as a general principle such legislation should be avoided, yet the urgency of the case in Manitoba required an efficient remedy. That the legislation is intra vires is supported by the fact that in June, 1889, his lordship, Mr. Justice Killam, held that the courts were bound by it, and refused a plaintiflF relief against tax sale. 6. Your memorialists further urge that the opinion of the court of Queen's bench for Manitoba as to percentages or penalties added to taxes, coming within the meaning of the word "interest" in subsection 19 of section 91 of the British North America Act as belonging to the Dominion parliament, was not a unanimous decision, one of the three judges of the full court holding that the power to impose such percentages was a necessary part of the working of municipal institutions in the province, which under ^3 VICTOHIA, 1890. 917 section 92 of said Act is given to the various local legisliitiires iin^l your memorialists are int'ornuMl that it is the opinion of eminent lawyers, iKttli in Uiis pt'ovince and in tli(» older pro\ince8, that u[)on a proper case beinj; carried to the hi^'hest tiil)iiiialR this viisw of the law would prevail. Your memorialists, however, feel that I hey are not in a jK)sit!on to submit a case unless at least the Act "An Act affectinj^ arre^irs of taxes in the city of Winnipeg "should he allowed to go into force, as otherwise it would he doubtful whether the legislature has purported to grant the powers asked for. 7. Your memorialists would further urg«( that the right of adding a pcrcf^iitago upon taxes to the amount afore8ai.J9 924 MANITOBA LEGISLATION to emljotly tb-^ provision in the Imperial Act. This is proposed by the Canadian government for fear an accident might arise subsequently ; and it was assented to by the deputation for each province that the use of the F.-ench language sliould form ^ oiif! of the. princijili'a upon ivhich the vonfede.ration ivoidd bf, enlaldinhi^d,' and that its use as at pieseiit should be guaranteed by the Imperial Act." The above having more special reference to the status of the two languages in I he Federal parliament, Hon. Attorney General (subsequently Sir) George Etienne Cartier, then made definite the interpretation of the same clause as to the use of the minority's language in the future legislature of Queliec, in these words : — " I will add, that t was also necessary to protect the English minority in Lower Canada with respect to the use of their language, because in the local parliament of Lower Canada, the majority will be composed of French Canadians. The members of the conference were desirous that it should not bo in the power of that majority to decree the abolition of the English language in the local legislature of Lower Canada, ' any more than it will be in the power of the Federal legislature to do so with respect to the use of the French language.' I will also add that the use of both languages will be secured in the Imperial Act to be founded on the resolutions." Three conclusions must necessary follow the above premises : — 1. That the English language and the French language were both declared official languages for and in the legislature and the courts of the province of Quebec, as well as in and for the parliament of Canada. 2. That the abolition of either of these languages as official languages, is not within the powers of the legislature of Quebec ; or, in the words of Sir George E. Cartier, that " it would not be in the power of the majority to decree the abolition of the English language." 3. That this privilege of the minority should not receive a narrow interpret.ition ; but rather, as Mr. Evanturel says " as placing ihe use of the two languages on an equal footing ; " or, in the words of Sir John A. Macdonald, as applying " to the prOL-edure in parliament, the printing of measures and everything of that kind." Section 133 of the British North America Act, 1867, and section 23 of the Mani- toba Act being practically identic il, the above three conclusions are also invoked in the present case, upon the ground that the same interpretation should attach to similar enactments. It may, however, be contendad that mere declarations of the intention of the legis- lature, as the above, cannot stand in the face of positive enactments to the effect contrary ; and upon that ground, section 92 of the British North America Ant, 1867, has been invoked as empowering provincial legislatures generally to amend their constitution, and the legislature of Quebec particularly to abolish either of its official languages. True, section 92 of the British North America Act empowers provincial legislatures to amend " the constitution of the province." But these last words shcJuld be taken as a clear reference to the heading, and the whole of the fifth division of the Act, being " V. Provincial Conntitution," upon the grounds of that sound rule of interpretation, that all matters contained in a chapter or division ai-e properly and sufficiently referred to, by quoting the heading or title of such division or chapter. This seems to be supported by the fact : That in all this division " V " of the British North America Act, 1867, not a single matter nor a single clause is to be found which it is not clearly in the power of provincial legislatures to amend (unless, of course, therein expressly reserved), — whilst, on the other hand, leaving out this division " V," not one single clau.se is to be found in the Act, which provincial legislatures can claim power to amend (unless of course that power be therein expressly conferred). It is then submitted as a general conclusion : — 1. That under the British North America Act, 1867, provincial legislatures are empowered to amend only those clauses which are enumerated in, and form part of division " V " of the Act ; Canadian I assented |o should I'd,' and |os in the Cartier, liinority's Jin Lower lament of pmhprs of lajority to Canada, th respect lages will •ed official as well as lot within rtier, that English le pretation ; n an equal ocedure in the Mani- )ked in the I to similar if the legis- the effect Ant, 1867, iiend their its official egislatures g, and the upon the chapter or tie of such V " of the 3 be found [unless, of lis division atures can rred). latures are m part of 53 VICTORIA, 1890. 925 2. That as clause 133 (the dual language clause) is not contained in and does not form part of said division " V," it is not within the powers of the legislature of Quebec to repeal nor amend the same. (D« arris, Maxwell, Ilardcastle, Headings, itc.) It is moipover submitted as apj)lying specially to the present case. That section 1*2 of the Biitish North America Act, 1867, whilst applying to the provincial legislature of Manitoba, only does so in the restricted sense herein alx)ve specified ; 2. That section 23 of the Manitoba Act should be read as if it were inserted in the British North America Act, 18(57, in the place of, or -ilongside with, section 133 of the said Act, and subject to the same reservations. It is moreover submitted that the repealing powers of the legislature of Manitoba in connection wiih official languages, are restricted, not only by the British North America Act, 1867, as herein above stated, but also Vjy 34-3.5 Victoiia. chapter 28 (Imp.), better known as "The British North America Act, 1871," section G of which is in the following terms : — " Except as provided by the third section of this Act, it shall not be competent for the parliament of Canada to alter the provisions of the last mentioned Act (the Manitoba Act) ; subject always to the right of the legislature of the province of Manitoba to alter from time to time the provisions of any law respecting "the (/na/ifiratio)! of I'lcHom and meinbfrs of the legishitivft asuembly, and to make, laws re»pevtmg elections in the said province." These last words seem to indicate to what extent the legislature of Manitoba has power to amend the Manitoba Act. Petition from Members representing the French population in Legislature of Manitoba to His Excellency the Governor General. To His E.Kccllency the Right Honourable Sir Frederick Arthur Stanley, Jiaron Stanley of Preston, Governor General and Vice-Adniiral of Canada : May it Please Youe Excellency. The petition of the members representing the French population in the legislature of Manitoba, humbly showeth : 1. Whereas the 23rd section of the Manitoba Act (1870), enacts as follows : — " 23. Either the English or the French language may be used by any person in the debates of the house of the legislature, and both those languages shall be used in the respective records and journals of those houses ; and either of those languages may be used by any per.son, or in any pleading or process, in or issuing from any court of Canada, established under the British North America Act, 1867, or in or from all or any of the courts of the province. The Acts of the legislature shall be printed in both those languages." 2. Whereas the French population of Manitoba ha", enjoyed the free exercise of the rights and privileges aforesaid for the space of eighteen years, until the year eifihteen hundred and ninety, without hindrance from the various administrations which have governed the province during that period ; and Whereas the Act, chapter 14, of the legislature of Manitoba, passed in the 53rd year of Her Majesty's reign, and sanctioned by the Lieutenant-Governor on the 31st March, 1890, enacts the abolition of the official use of the French language in the debates of the legislative assembly and in the courts of justice ; and Whereas in persuance of the said chapter 14, neither the records nor the journals of the legislature, nor even the statutes of the said year 1890, have been printed in French, to the detriment of our fellow nationalists and to the prejudice of their con- stitutional rights solemnly guaranteed both by the parliament of the Dominion alid by the Imperial parliament itself ; I'! \ I, 926 MANITOBA LEOI8LATIOX Wherefore, your petitioners pray your Excellency to graciously use your Excel- lency's Vice- Regal prerogative, and disallow the Act, chapter 14, of the said statutes of Manitoba. And your petitioners will ever pray, THOMAS GELLEY, A. F. MARTIN, M.P.P. for Cartier. M.P.P. for Morris. WM. LAGIMODIERE, ROGER MARION, M.P.P. for La Verandrye. M.P.P. for St. Boniface. MARTIN JEROME, xVI.P.P. for Carillon. Petition from Cardinal ArchhiKhop ofQuphec, and of Archhinhopn and Binhops of Roman Catholic Church in Canada. To I/is Excellency the Governor General in Council : — The Petition of the Cardinal Archbinhop of Quebec, and the Archbiahopn and Bishops of the Roman Catholic Church of the Dominion oj Canada, subjects of Her Gracious Majesty the Queen ; Respectfully showeth : That, in the third session of the seventh parliament of the province of Manitoba, a statute w.is enacted, intituled " An Act respecting the Department of Education," and another, intituled "The Public Schools Act," which .said enactments deprived the Roman Catiiolic minority of the said province of the rights and advantages which they formerly enjoyed in the matter of education ; That, in the same session of the same parliament, another statute was enacted, being the Act 53 Victoria, chai)ter 14, for the purpose of abolishing the official use of the French language in the parliament and the courts of justice of the said pro- vince. That these enactments are opposed to the interests of a considerable portion of the loyal subjects of Her Majesty ; That the said enactments cannot fail to grieve, and do in fact grieve, at least one- half of the devoted subjects of Her Majesty throughout the Dominion of Canada ; That these enactments are contrary to the assurance given in the name of Her Majesty to the people of Manitoba, at the time of the negotiations which led t j the entry of that province into confedration ; That the aforementioned enactments are a fl.i grant violation of the British North A'.ierica Act, 1867, of the Manitoba Act, 1870, and the British North America Act, 1871; That your petitioners are justly alarmed at the drawbacks and even dangers which may result from legislation which forces upon those who are its victims, the sad convic- tion tb<»t there is a violation in their case of public good faith ; and that advantage is taken of their numerical inferiority to violate the constitution, under the protection of which they think themselves fortunate to live ; Wherefore, your petitioners pray your Excellency in Council to remedy this most deplorable legislation by any means which you may deem most efiFective and most just. Wherefore, your petitioners, as in duty bound, will ever pray, &c., ifec. Report of the Hon. the Minister of Justice approved by His Excellency the Governor General in Council on the 4th April, IS'JJ. f Depahtment op Justice, Ottawa, 14th March, 1891. To His Excellency the Governor General in Council : The undersigned having considered the Acts passed by the legislature of the pro- vince of Manitoba in the session held in the year 1 890, the chapters of which are given 53 VICTORIA, 1890. 927 [our Excel- statutes of in the onnexed Nchedule, respectfully recomineiidb that they be left to tlieir operation, and that tlie Lieutenant-Governor of that province he informed thereof. (Keceived by the Hpcretary of State, 11th April, 1890). (Received by the Secretary of State, chapters 2 and 3, 2l8t April, 1890.) Respectfully submitted. JNO. S. D. THOMPSON, Minister of Jimtice. 8CIIEUUr-E. of Koman f CartHnal n Catholic the Queen; Manitoba, Education," e[)rived the which they as enacted, official use he said pro- Irtion of the it least one- nada ; ame of Her t J the entry itish North merica Act, igers which sad convic- d vantage is rotection of y this most I most just. e Governor 1891. )f the pro- 1 are given Nos. 1 to 6, 9 to 13, 16 to 19, 21, 22, 24 to 29, 33 to 36, 39 to 48, 50, 52 to 55, 58 to 63, 65 to 70. Report of the Hon. the Minister of Justice, appro^'Hd by His ExceUenry the Governor General in Coi'ncil, on the Jfth April, ISUl, Department op Justice, Ottawa, 18th March, 1891. To His Excellency tlie Governor General in Council : The undersigned has had referred to him a petition from the council of the city of Winnipeg, asking thiit provision may be made for the coming into force of two bills passed by the legislative assembly of the province of Manitoba at its last session. Cap. 56. — (1) entitled : "An Act respecting Sales of Laml for Taxes." Cap. 57. — (2) the other ; " An Act afl'ecting arrears of taxes in the cityof Winnipeg," which bills were reserved by his Honour the Lieutenant-Governor, under the provisions of the British North America Act, for the signification of the pleasure of your Excel- lency. The undersigned is of opinion that these bills might have been dealt with in the usual manner without having been reserved for your Excellency's assent, and subject to disallowance by your Excellency, and that it is not expedient that any action should Vje taken by your Excellency in respect to them. As to the first mentioned, at least, disallowance would have been necessary if it had been assented to, as it is a re-enactment of provisions which had already been disallowed. He respectfully recommends that the city council of Winnipeg be so informed. Respectfully submitted. JNO. S. D. THOMPSON, Minister of Justice. Report of the Hon. the Minister of Jiistice, approved by His Excellency the Governor General in Council, on the ^th day of April, 1891. Department op Justice, Ottawa, 21st March 1891. To His Excellency the Governor General in Council : — The undersigned has the honour to report upon the following Acts of the legis'ature of the province of Manitoba, passed in the session of 1890 and recei\ed by the honour- able the Secretary of State on the 11th of April last, as follows : — Cap. 7. --" An Act respecting the cancellation and amendment of plans." Cap. 8. — " An Act to amend the Act respecting the cancellation and amendment of plans, passed during the present session." Cap. 49. — "An Act to provide special surveys in any city, town or village." i I' 928 MAMTOIIA I.K(JIHI,ATION Hection 1 of tho first of those Acts provides, in effect, that where a plan, or sub- division of a plan, iilrcady tiled, of a town or village site, or any other division, accor- din;{ to tho original government survey, or any portion of land, has been registered under the provisions of iiny Act, and it is the desire of at least sixty per rent of the owners of the land to annul suih sublivision, in whole or in part, and enjoy such lands as if they had never been subdivided, any owner may make application to the county court judge that such plan may bi^ annulled and taken from the registry ollice, and varied or amended. The subse(|uent sections provide the machinery for giving effect to the applicati. )!,■ 53 vicTOKiA, 1890. 929 [Inn, or Hiih- fn'um, iicriir- rogintered cent of tin; suuh lands tho county nUiee, iind lin;,' cll'tjct to cases. Itinj? surveys unnot lo.^'iH- icludinj^ Iota nitoba were e plans and lie annnlled lipre may be the right of m would not the power of 'erred to the •y hia depart- vhich include the official ish language, p the province rt in the pro- sba need only diction so to of chapter 3, d by an Act a the Debates n the reapec- may be used rt of Canada or any of the published in n of the Ma- t under con- my person in he pleadings t is apparent shall be used of Manitoba the legal tri- »islation. A iCtory than a The undersigned, therefore, rocoinrnonds that the Act be left to its riperation. Cap. 1'). — " An Act respecting the Executive Administrii'ion of Tiaw.s of thi.s pro- vini'e." Tliis Act is a transcript of an Act passed by the legislature of Ontario in the year, IHHi), the CDiistitutiona ity of which i.i now being adjudicated upon in an action brought by the undiM'signed as Attorney (Ji^nerpl of Canada against the Attorney (Jeneral of Ontario. As the whole question is before the Courts, he recommends that this Act bo left to its operation. Cap. 20. — " An Act respecting Petty Tresjwusses." Section 1, of this Act is intended to provide pi^naltio against any person \v'no un- lawfully enters, or in any way trespasses ujion any inclosed land, the property of another person. This Act bears a close relation to the criminal law. but as it is similar in terms to statutes which have been left to their operation-in the; older provinces of Canada, ind as its constitutionality may be adjuy //in E.rc.eUency the Governor General in Vouwil on the ^th April, 1891. Department of Justick, Ottawa, 21st March, 1891. To His E.ireUe.nny thi> (,'orernor Genera/, in Council : The undersigned has the honour to report upon " An Act to authorize companies, institutions or corporations incorporated out of this province to transact busine.ss therein, " passed by the legislature of the province of Manitoba, at its session of 1890, being chapter 23, which Act was received by the Secretary of Stats on the 11th day of April last. Section 1 of this Act provides that : — " Any company, institution or corporation duly incorporated under the laws of Great Britain and Ireland, or of the Dominion of Canada, or of the late province of Canada, or any of the provinces of the Dominion of Canada, or of any state of the United States of America, or of any state or country of Europe, for the purpose of lend- ing or investing money, transacting any loaning business of any description in its corpo- rate name (except the business of banking), or for the transaction of any other business of a like nature, including the acquisition and sale of real estate and other object or purpose to which the legislative authority of Manitoba extends, except the business of insurance, or the build- ng and working of railways, may obtain a license from the Lieutenant-Governor in Council, authorizing it to carry on its liusiness within the province of Manitoba on compliance with the provision of the Act with regard to the issue of such license : " — It further provides thao "An insurance or railway company, or a l)ank incorporated as aforesaid may obtain a license under this section for all the above purpose.s, but not to carry on the business of insurance, railway building or oper- ratiiig or banking (as the case may be)." It would appear that this section was intended to supply to all companies incorpo- rated outside of the limits of Manitoba for any of the following purposes, namely : — (a.) Lending or investing money. (6.) Transacting any loaning business of any description except banking. (c.) Transacting any other business of a like nature, including the acquisition and sale of real estate or other object or purpose to which the legislative authority of Mani- toba extends, except the business of insurance or of building or working railways. (rf.) It is intended to apply also to railway companies and insurance companies and banks, in so far as they have corporate powers for the purpose named in " a," " b " and « c," Sections 2, 3, and 4 prescribe conditions to be complied with before the license can be obtained, and make provision with regard to the service of legal process on the com- panies which may apply for and obtain the license. Mf;^- «'»*ff'*^',^""*rtP.^TnWii (•42 MANITOIIA I-E(1IHI,ATI0N Section ') j^ivos cortaiii powers to licciiMed uonipaiiinH witli ivj^ard to tin- taking of mortgages and Ixituls as security for tliu money lent, and as to soiling and transferring such securities. Sections fl and 7 an^ na follows : - (5. " No such company, institution or corporatij)n shall liold any lands or any interest therein, for a longer period than ten years from the date when such lands or interest therein, are aci|uir(;d. Any lands or interests in lands, owned and not disposed of by any such company, within said peii(Ml, shall ho forfeited to, and l)e(;oin») vested in the Crown for th(^ use of the province of Manitoba. This section shall oidy apply to lands upi>n which any such company, institution or coi|ioration may hold a mortgage, after such mortgage lias been foreclosed, or after such land has been offered for sale after the coming into force of this Act, under the i)ower of sale in sui^h mortgage, or after the mortgagor has released to such eonipajiy, institution nr corporation his equity of redemption in such lands, provided that any lands or interest in lands, held by any such company, institution or corporation at the time of th(! coming into force of this Act may, notwithstanding this Act, be hold for a period of five years from the date this Act conuw into force. This section shall apply to lands or any interest therein, acquired before or after the corning into force of this Act, except as herein provided. 7. " The next preceding section shall apply to lands or any interest thei'oin held by any such company, in>*titution or corporation in the name of a trustee." Section 8 provides that the license may be revoked at any time by the Lieutenant- (tovernor in Council for violation of any of the provisions of the Act. Under section 1 1, the Lieutenant-Governor in C'ouncil may restrict a license in any manner that may .seem desirable ; and under section 12, the fee for a lioen.so shall be such sum as may be fixed by the Lieutenant-Governor in Council. Under section 14, licensed ooinj)iinies are required to transmit to the provincial department of agriculture certain annual returns; and .section 15 rejieals cert ti Acts having relation to the licensing of companies. Reviewing this Act, it is necessary to call attention to the Act of Manitol 'hapter 11, 40 Vic, section 4, which is not repealed. The section is as follows : • Xo com- pany, corporation or other institution, not incorporated under the provisions of the statutes of this province shall be capable of taking, holding or acquiring any real estate within the province unless under licen.se from tho Lieutenant-Governor in Council, under any statute of this province in that behalf." This section, taken in connection with the Act under review, indicates clearly, it is submitted, that the intention of the legislature was, and the probable interpretation of this Act, if it should have any force, would be to prevent any company not incorporati 1 or licensed under the laws of Manitoba from carrying on in Manitoba any business coming under any of the classes before enumerated under (a), (6), (c) and (d), even though power to do so had been conferred by the parliament of the United Kingdom or the parliament of Canada. Likewise that intention was, and the effect would be, to prevent any company of the classes befere enumerated under («), (h), (c) and (d) from holding real estate within the province, even though expressly authorized to do so, or even though the holding of real estate should be necessary for the objects and business of the company, and that prohibition extends to companies having that power conferred upon them by the parlia- ment of the United Kingdom or the parliament of Canada, legislating within its authority, unless by license from the provincial government, and then only for a limit- ed term of years, and with the result of the lands being forfeited to the province, if that term of years should be passed without the lands being disposed of. The enactment further purports to be retroactive so as to extend to companies in- corporated before its passage, and to lands held by companies before its passage, no matter what the considerations, terms or conditions may have' been on which the lands may have been obtained and held by the companies. On the 16th July 1887, the undersigned in reporting upon an Act of the legisla- ture of the province of Quebec, 49-50 Victoria, chapter 39, intituled " An Act to authorize certain corporations and individuals to loan and invest money in this province" n in taking of jiinsferrin^ tuls Of any icli IhikIh or lot (liHposed w vchIcmI in ly apply to a niortgajj;*', ir siilo after ii;t', or after s ecjuity of by any Huch li.s Act may, tt! thin Act lin, at-quiicd rein hekl by Lieutenant- uonse in any 1180 sliall be e provincial cert II Acts ;ol chapter '■ No com- isions of the n " the Act, the Executive Council of the province is invested with the absolute right to rtstrict the license to be granted under it in any manner how- soever, to exact fees for the license to an)' amount, and to revoke the license when the Council deems that the Act has been violated by the company holding it. Such legis- lation seems to be without a precedent. The protection of trade and commerce, as well as justice to those association^ which have been incorporated by the parliament of Can- ada and by other competent authorit}', would seem to require that safeguards and rea- sonable conditions should be prescribed by the legislature, and that your Excellency's government should have an opportunity of considering their sufficiency, before an Act of this character should be allowed to go into operation. 8. The Act under review has also to be considered with reference to its effect on the Canadian Pacific Railway Company and other railway companies incorporated by the parliament of Canada. Under a policy adopted by that parliament, the Canadian Pacific Railway was constructed in consideration of the payment of a subsidy in money and the grant of a subsidy in Dominion lands in Manitoba and elsewhere, and, for the purpose of enabling the company to utilize these lands as a means of getting money wherewith to build the railway, before they could possibly be sold, parliament fully empowered the company by its Act of incorporation and subsequent Acts, to receive, liold and dispose of these lands as it saw fit, and to issue bonds and other securities thereon. Under these powers the company has acted. It has issued bonds and other securities to a large amount on the security of a mortgage on these lauds. Parliament has also, in pursuance of a like policy, incorporated, as it had authority to do, other com- panies to build railways in and through Manitoba, and these companies have built their railways in consideration of Dominion land subsidies. Parliament has given them power to acquire, hold, and dispose of, and to issue bonds secured on such lands, in order that they might obtain money wherewith to construct the railways. Such companies have, on the securities of these lands and the right to acquire, hold or dispose of them as valuable assets, raised large sums of money which are still unpaid. In other cases, companies under the same circumstances, have their railways partially constructed, in other cases still, th.e railways are not yet built, and it is necessary that the powers con- ferred by parliament, as above mentioned, should still be enjoyed by the companies, in order that they may realize on their lanr's, and have the full benefit of the consideration which parliament agreed to give them, in order that they Aiay carry on the enterprise which they have undertaken. If the Act in question has validity and operation, the lands of all of these companies will be rendered of very much less value than when the respective companies made their engagements with the government, and with their fjmam:- 63 viCTOHiA, 1890. 945 which would fall )t on the part of the a large portion of mposed by the Act, litoba. The under- iiture for any of the itor, in this case the ont of Canada holds ited to the Canadian connected with the da, the government ly Company, and bondholders. The The Act in (|ues- re of the land.'j, com- y be, and by placing i unnecessary to add )n as a whole, nee is invested with any manner how- he license when the ling it. Such legis- id commerce, as well } parliament of Can- ; safeguards and rea- it your Excellency's iency, before an Act nee to its effect on mies incorporated by ment, the Canadian t a subsidy in money sewhere, and, for the 8 of getting money old, parliament fully ent Acts, to receive, I and other securities ed bonds and other lands. Parliament rity to do, other com- mies have built their nt has given them f uch lands, in order s. Such companies or dispose of them lid. In other cases, tially constructed, in that the powers con- by the companies, in ; of the consideraiion rry on the enterprise y and operation, the alue than when the ent, and with their creditors. The public faith of Canada should not be allowed by your Excellency''* government to be impaired by Act of a provincial legislature. 3. The Act in question specially efl'ects the rights of the Canadian P" oific Railway Company in regard to that portion of the province of Manitoba which wjis added to it under the provisions of 44 Victoria, chapter 14 (Canada). By the original agreement between th'^ government and that company, the government undertook to grant to the company a subsidy of 25,000,000 acres of land, to be selected, as far as possible out of every alternative section, for twenty-five miles, on each side of the line of railway. A portion of the company's land grant was therefore within the territory added in 1881 to the province of Manitoba. The government of the province of Manitoba has con- tended that under the Act under review, the Canadian Pacific Railway has no power to take, hold, sell or deal with lands in the added territory without taking out a license from the provincial government under this Act. One of tho terms of the Dominion Act by which the area of the province was increased provided that the said increased limit, and the territory thereby added to the province should be subject to all such provisions as were then, or should thereafter be enacted, respecting the Canadian Pacific Railway, and the lands to be granted in aid thereof. The assent of the legislature of the province of Manitoba to this extension,* and its terms, were given by the Act 44 Vic- toria (3rd section), chapters 1 and 6, assented to respectively on the 4th March .uid on 23rd of May, 1881. If the Act now under review operates according to its terms, it would eflfect a breach of the obligation of the p'. - /ince of Manitoba as contained in the Provincial Acts of 1881, just referred to, as w';!(. as of the obligations of the parliament of Canada. The undel-signed must add, in this connection, that by a late judgment of the Queen's Bench of Manitoba, delivered on the 11th of February last, the Act was held to be inoperative, as far as the land of the Canadian Pacific Railway Company, within the pdded provincial territory, is concerned, and was in fact vlira vires in respect thereto. No question as to the eflfect or validity of the Act in the territory originally comprising the province of Manitoba was before the court. 10. The Act also affects in a special manner the rights and the property of the Hudson Bay company. Previous to the acquisitioii of Rupert's Land by the Can- adian government, that company claimed to own, in fee simple, all the lands now com- prising the province ol Manitoba and the North-west Territories. Upon the Company surrendering its proprietory rights, the government of Canada agreed to grant to it two lots of land in each surveyed township in the fertile belt, as described in the agreement of surrender. This company has claimed the protection of your Excellency's government in the tsnioyment of its right, and in the possession of its property so acquired and assured to it. The charter of the province of Manitoba (the Manitoba Act), provided thai, nothing therein should in any way prejudice or affect the rights or properties oi t\.(i Hudson Bay Company, as contained in the condition under which that covck^xny surrendered Rupert's Land to Her Majesty. In the opinion of the company (un opin'\ u shared by the undersigned), the rights and property of the company would ue very materially prejudiced if this Act had effect. « The undersigned might point out other grounds of objection to this legislation, but the reasons aliove given, as well as those contained in his approved report to your Ex elloncy's predecessor of the 16th day of July, 1887, seem sufilicient to justify the recommendation of aisallowance which he has made herein. JNO. S. D. THOMPSON, Minister of Justice, Order in Council disallonnng the Act above mentioned, published in the Canada Gazette on the tlth April, lS9t, Vol. XXIV., No. 41, page ISSG. I ■ll %: s ! 946 MANITOBA LEGISLATION Report oj the Honourable the Minister of Justice, approved by His Excellency the Governor General in Council on the 4th April, 1991. Departmknt of Justice, Ottawa, March 2l8t, 1891. To His Excellency the Governor General in Council : Chapter 31. " An Act respecting the diseases of Animals." The undersigned has the honour to report upon the above named Act which was passed by the legislature of the province of Manitoba at its session of 1890, and which was received by the honourable the Secretary of State on the 11th April Inst. The object of the Act is to provide against the introduction of contagious diseases into the province of Manitoba, and for the prevention and cure of the same within the province itself. Section 14, provides among other things, that : " It shall be the duty of cattle or farm stock owners, and of every breeder of, or dealer in cattlt or other animals, and of every one bringing animals into the province " h, and imposes such orders as le province, of d quarantining , generally any ion of the Act. :il made under -ime, as to him ' the province, and who shall ices by which inarians by the 3rs in Council ! said Act. oba, and of all istody, at once lat such horses )a government, iportiiig horses jrted, notwith- iuly appointed ■ovisions of the I animals, and or from any the officers of the 53 VICTORIA, 1890. 947 cise same functions in regard to animals imported into the pruvince. Tt had therefore become necessary to ascertain the constitutional authority, which has the right to deal with matters of this character. Under the pi-ovisions of " Tne British North America Act " the regulation of trade and commerce, as well as matters relating to quarantine, come within the e.\clusive jurisdiction of the parliament of Canada. That parliament has already legislated in respect to both of these matters. Under the " Act respecting Quarantine " chap. 68, R. S. C, and " The Animals Contagious Diseases Act " chap. 69, R. S. C, sufficient regulations have been made, in the opinion of your Excellency's government, to prevent the importation of animals affected by contagious diseases into any province of Canada. Particular attention in this regard has been given to the province of Manitoba, and along the frontier, between that province and the United States, ther is an efficient service designed to protect the province of Manitoba against the introduction of contagious diseases. It is not in the public interest that importers of animals into the province of Manitoba should be subject, before being allowed to bring aniraais into the province, to observe the regulations which are made, not only by your Excellency's government under the authority of the Act of the Canadian parliament above referred to, but also those which have been made by the Manitoba government under the authority of the Act now in review, inasmuch as such an obligation would lead to great confusion and hardship and the useless imposition of fees. Legislation of the character of the Act in question is legislation affecting trade and commerce, a subject with which the provin- cial Legislature has nothing to do, although it would be quite possible for an Act on the subject, and seiving all the useful purposes which could be served by the Act under review, to be so framed, as not to interfere with trade and commerce, or with the Dominion enactment and regulations on the subject of " quarantine and contagious diseases among animals" but so as, on the contrary, to aid in the enforcement of such enactments and legislation, while at the same time providing internal regulations for the province, tending to promote vigilance and cautitm as regards the introduction and spread of disease. Such an enactment, within the powers of the legislature as regards "Property and Civil Rights" would not impose restrictions on pc^rsons entering the province, or importing goods into the province. The undersigned feels it to be his duty to recommend to your Excellency that this Act be disallowed, and he recommends accordingly. Respectfully submitted. JOHN S. D. THOMPSON, Minister of Justice. Order in Council disa/fowin;/ the Act abore vamed, published in the Canada. Gazette on the nth April, 189 J, Vol. XXIV., No. ^1, page 18S6. Report of the Honourable the Minister of Justice, approved by his Excellency the Governor General in Council on the 4th April, 1891. Department op Justice, Ottawa, March 21st, 1891. To His Rrcellency the Governor General in Council : The undersigned has the honour to report upon the two Acts of the following titles passed by tha legislature of the provnice of Mmitoba at it ^ session held inthe year 1890, which Acts were received by the Honourable the Secretary of State on the 11th April, 1890:— • „ j Cap. 37 : " An Act respecting the Department of Education, and Cap. 38 : "An Act respecting Public Schools." The tirstof these Acts creates a Department of Education, consisting of the execu- tive council, or a committee thereof, appointed by the Lieutenant-Governor in Council, a ■*'< 948 MANITOBA LEOISLATION and defines its powers. It also creates an advisory board, partly appointed by the Department of Education and partly elected by teachers, and defines its powers also. The " Act respecting Pul)lic Schools " is a consolidation and amendment of all previous legislation in respect to public schools. It repeals all legislation which created and authorized a system of separate schools for Protestants and Roman Cathoiics. Ry the Acts previously in force either Protestants or Roman Cathol.cs could establish a school in any school district, and Protestant ratepayers were exempted from contribution for the Catholic schools, and Catholic ratepayers were exempted from contribution for Protestant schools. The two Acts now under review purport to abolish these distinctions as to the schools and these exemptions as to ratepayers, and to establish instead, a system, under which public schools are to be organized in all the school districts, without regard to the religious views of the ratepayers. The right of the province of Manitoba to legislate on the subject of Education is conferred by the Act which created the province, viz., 32-33 Vic, chap. 3 (The Manitoba Act), sec. 22, which is as follows : — 22. " In and for the province of Manitoba the said legi.slature may exclusively make laws in relation to education, subject to and according to the following provisions : — " Nothing in any such law shall prejudicially affect any right or privilege with respect xm denominational schools which any class of persons may have by law or practice in the province at the union." (2.) "An appeitl shall lie to the Governor General in Council from an Act or deci- sion of the legislature tif the province, or any provincial authority, affecting any right or privilege of the Protestant or Roman Catholic minority of the Queen's subjects in rela- tion to education. (3) " In case any such provincial law, as from time to time seems to the Governor General in Council requisite for the due execution of the provisions of this section, is not made, or in case any decision of the Governor General in Council on any appeal under this section, is not duly executed by the proper provincial authority in that behalf, then, and in every such case, and, as ffir only as the circumstances of each case require, the parliament may make remedial laws for the due execution of the provisions of this sec- tion, and of any decision of the Governor General in Council under this section." In the year 1870, when the " Manitoba Act " was passed, there existed no system of education established or authorized by law ; but at the first session of the provincial legislature, in 1871, an "Act to establish a system of education in the province" was passed. By the Act the Lieutenant-Governor in Council was empowered to appoint not less than ten nor more than fourteen persons to be a board of education for the pro- vince, of whom one-half were to be Protestants and the other half Catholics, with one superintendent of Protestant and one superintendent of Catholic schools. The Board was divided into two sections, Protestant and Catholic, each section to have under its control and management the discipline of the schools of its faith, and to prescribe the books to be used in the schools under its care, which had reference to religion or morals. The moneys appropriated for education by the Legislature were to be divided equally, one moiety thereof to the support of Protestant schools, the other moiety to the support of Catholic schools. By an Act passed in 1875, the board was increased to 21 — 12 Protestants and 9 Roman Catholics, the moneys voted by the legislature were to be divided between the Protestants and Catholics in proportion to the number of children of school age in the schools under the care of the Protestant and Catholic sections of the board respectively. The Act of 1875, also provided that the establishment in a school district of a school of one denomination, should not prevent the establishment of a school of another denomination in the same district. Several questions have arisen as to the validity and effect of' the two statutes now under review ; among these are the following : — It being admitted that " no class of persons," (to use the expression of the Manitoba Act), had, "by law," at the time the province was established, "any right or privilege -L 53 VICTORIA, 1890, m ed by the ers also. ent of all ioh created Oiics. ol.cs could npted from pted from a as to the a system, lout regard lucafcioii is p. 3 (The exclusively ^visions : — 'ilege with by law or LCt or deci- ny right or icts in rela- e Governor ttion, is not )peal under ehalf, then, 'equire, the of this see- on." 10 system of provincial i^ince" was ippoint not »r the pro- s, with one The Board B under its ascribe the I or morals, ed equally, ihe support ;ant8 and 9 Btween the age in the ispectively. strict of a of another itutes now 3 Manitoba r privilege with respect to denominational " (or any other) " schools," had " any class of persons" " any such right or privileges with respect to denominational schools by practice " at that time 1 Did the existence of separate schools for Roman Catholic children, supported by Roman Catholic voluntary contributions, in which their religion might be taught, and in which text-books suitable for Roman Catholic s^chools were used, and the non-exist- ence of any system by which Roman Catholics, or any. ■ thers could be compelled to contribute for the support of schools, constituted a " right or privilege " for Roman Catholics " by practice," within the meaning of the Manitoba Act ? The former of these, as will at once be seen, was a question of fact, and the latter a question of law, based on the assumption which has since been proved to be well founded, that the existence of separate schools at the time of the " union," was the fact on which the Catholic population of Manitoba must rely, as establishing their *' right or privilege" "by practice." The remaining question was whether, assuming the foregoing questions, or either of them, to require an affirmative answer, the enactments now under review, or either of them, affected any such "right or privilege." It became apparent at the outset that these questions required the decision of the judicial tribunals, more especially as an investigation of facts was necessary to their determination. Proceedings were instituted, with a view to obtaining such a decision in the Court of Queen's Bench of Manitoba several months ago, and, in course of these proceedings, the facts have easily been ascertiiine'l, and the two latter of the three questions above stated were presented for the judgment of that court with the argu- ments of counsel for the Roman Catholics of Manitoba on the one side, and of counsel for the provincial government on the other. The court has practically decided, with one dissentient opinion, that the Acts now under review do not "prejudicially affect any right or privilege with respect to denominational schools " which Roman Catholics had by " practice at the time of the union," or, in brief, that the non-existence, at that time, of a system of public schools, and the consequent exemption from taxation for the support of public schools and the consequent freedom to establish and support separate or " denominational " schools, did not constitute a " right or privilege " " by practice " which these Acts took away. An appeal has been asserted, and the case is now before the Supreme Court of Canada, where it will, in all probability, be heard in the course of next month. If the appeal should be successful, these Acts will bo annulled by judicial decision, the Roman Catholic minority in Manitoba will receive protection and redres.s, the Acts purporting to be repealed will remain in operation, and those whose views have been represented by a majority of the legislature, cannot but recognize that the matter has been disposed of, with due regard to the constitutional rights of the province. If the legal controver^^y should result in the decision of the Court of Queen's Bench being sustained, the time will come for your Excellency to consider the petitions which have been presented by, and on behalf of, the Roman Catholics of Manitoba, for redress under sub-sections (2) and (3) of section 22 of the " Manitoba Act," quoted in the early part of this repot t, and which are analagous to the provisions made by " the British North America Act " in relation to the other provinces. Those subsections contain in effect the provisions which have been made as to all the provinces, and are obviously those under which the constitution intended that the government of the Dominion should proceed, if it should at any time become necessary that the federal power should be reported to for t!ie protection of a Protestant or Roman Catholic minority against any Act or decision of .the legislature of the province, or of any provincial authority, affecting any "right or privilege" of any such minority "in relation to education." Respectfully submitted. JNO. S. D. THOMPSON, Minister of Justice. 60 J. 950 MANITOnA LEGISLATION SUMMARY OF THE COKRESPONDENCE, PETITIONS, ORDERS IN COUNCIL, 4C., WITH RESPECT TO THE MANITOBA SCHOOL ACTS, 53 VICTORIA, 1890, CHAPTERS 37 AND 38. In the session held in the months of January-March, 1890, the legislature of Man- itoba passed two Acts intituled as follows : Chap. 37, " An Act respecting the Department of Education ;" And chap. 3**, " An Act respecting Public fjchools," which were assonted to on the 31st March, 1890. The first one, c. 37, abolished the board of education heretofore existing, and the office of superintendent of education, and creates a department of education which is to consist of the executive council or a committee thereof, appointed by the Lieuten- ant-Governor in Council, and also an advisory board composed of seven members, four of whom are to be appointed by the department of education, two by the teachers of the province, and one by the university council. Among the duties of the advisory board is the power " to examine and authorize text books and books of reference for the use of the pupils and school libraries ; to determine the qualification of teachers and inspectors for high and public schools ; to appoint examiners for the purpose of prepar- ing examination papers ; to prescribe the form of religious exercises to be used in schools." The next Act is the Public Schools Act, c. 38. It repeals all former statutes relating to education. It enacts, amongst other things, as follows : Section 3, " All Protestant and Catholic school districts, together with all elections and appointments to office, all agreements, contracts, assessments and rate bills heretofore duly made in relation lo Pi'otestant or Catholic schools, and existing when this Act comes into force, shall be subject 1<> the provisions of this Act." Section 4, " the term for which each school trustee holds office at the time this Act takes eflTect shall cc 'nue as if such term had been created by virtue of an election under this Act." Section 5, " All public schools shall b ^ free schools, and every person in rural municipalities between the age of five and sixteen years, and in cities, towns and villages between the age of six and sixteen shall have the right to attend some school." Section 6, " Religious exercises in public schools shall be conducted according to the regulations of the advisory board. The time for such religious exercises shall be just before the closing hour in the after- noon. In case the parent or guardian of any pupil notifies the teacher that he does not wish such pupil to attend such religious exercises, then such pupil shall be dismissed before such religious exercises take place." Section 7, " Religious exercises shall be held in a public school entirely at the option of the school trustees for the district, and upon receiving written authority from the trustees, it shall be the duty of the teacher to hold such religious exercises." Section 8, "The public schools shall be entirely non-sec- tarian, vnH no religious exercises shall be allowed therein except as above provided." It provides for the formation, alteration and union of school districts in rural municipalities and in cities, towns and villages, the election of school trustees and for levying a rate on the taxable property in each school district for school purposes. Section 92 enacts that " the municipal council of e'.ery city, to>vn and village shall levy and collect upon the taxable property within the municipality in the manner pro- vided in this Act and in the Municipal and Assessment Acts, such sums as may be required by the public school trustees for school purposes." Section 108, which provides for the legislative grant to schools, has the following sub-section : " (3) Any school not conducted according to all the provisions of this or any Act in force for the time being, or the regulations of the department of education, or the advisory board, shall not be deemed a public school within the meaning of the law, and shall not participate in the legislative grant." By section 143, "No teacher shall use or permit to be used as text books, any books in h model or public school, except such as ore authorized by the advisory board, and no portion of the legislative frant shall be paid to any schoal in which unauthorized books are used." By section 79, " In cases where, before the coming into force of this Act, Catholic school districts have been established as in the next preceding section mentioned (that is, covering the same terrikr) as any Protestant district), such Catholic school district shall, upon the Til H RESPECT TO 38. iture of Man- especting the ited to on the iting, and the ition which is the Lieuten- nembers, four le teachers of the advisory erence for the teachers and ose of prepar- ,o be used in •rmer statutes Ition 3, " All appointments duly made in aes into force, ir which each nue as if such », " All public tween the age ige of six and IS exercises in Ivisory board, r in the after- at he does not 1 be dismissed i shall be held rict, and upon eacher to hold tirely non-sec- provided." tricts in rural stees and for irposes. d village shall e manner pro- ns as may be the following ions of this or b of education, leaning of the "No teacher public school, the legislative ." By section school districts I, covering the hall, upon the 53 VICTORIA, 1890. 951 coming into force of this Act, cease to exist, and all the assets of such Catholic school district shall belong to, and all the liabilities thereof be paid by the public school district." f BARRETT VS. CITY OF WINNIPEO. In the month of November, 1890, proceedings were taken, in order to test the validity of the statutes just mentioned. These prceedings were by way of an appli- cation made by Dr. J. K. Barrett, of Winnipeg (who was a Catholic ratepayer), to quash by-laws Nos. 480 and 483 of the city of Winnipeg, which had been passed under authority of the statutes before mentioned. The application was made before Mr. Justice Killam, who dismissed the application, holding that the Acts in question were valid. (See Manitoba reptn-tn, vol. vii., p. 275.) From this judgment an appeal was taken to the court of Queen's Bench for Manitoba. Judgment was given on the 2nd February, 1891, dismissing the appeal. Chief Justice Taylor and Mr. Justice Bain holding that the legislation was intra vires of the legislation. From this judgment Mr. Justice Pubuc di .se'^ ted, he being of opinion that it was ultra vires, {See Manitoba Report, vol. vii., p. 304.) The apppal was carried to the Supreme Court of Canada, who gave judgment in October, 1891, unanimously holding that the Acts were ultra vires. {See Supreme Court Reports, vol. xix, p. 374.) The matter now came before the Judicial Committee of the Privy Council on the 30th July, 1892. Judgment was given, which decided that the legislation was valid thus reversing the judgment of the Supreme Court. {See L. R. App. cases, 1892, p. 445.\ LOGAN vs. THE CITY OP WINNIPEG. In December, 1891, similar proceedings to those in the case of Barrett vs. the City of Winnipeg, were instituted by Mr. Alex. Logan (an T^lpiscopalian). Judgment was given in December 1891, and following the decision of the Supreme Court, held that the acts in question were invalid. {See Manitoba Reports, vol. viii, p. 3.) This judgment was reversed by the Judicial Committee of the Privy Council on the 30th of July, 1892. {See L. R. App. cases, 1892,;). 445.) The following petitions, &c., were presented to his Excellency the Governor General in Council in respect to the said Acts. I. FROM MEMBERS OF THE ROMAN CATHOLIC CHURCH IN MANITOBA. To His Exccellency the Governor General in Council : The humble petition of the undersigned, members of the Roman Catholic Church, in the province of Manitoba, and dutiful subjects of Her most Gracious Majesty, doth hereby respectfully represent that : — The seventh legislature of the province of Manitoba, in its third session assembled, did pass, in the year eighteen hundred and ninety, an Act intituled " An Act respecting the Departmentof Education," andalso"Au Act respecting Public Schools," which deprive the Roman Catholic minority in the said province of Manitoba of the rights and privileges they enjoyed with regard to education, previous to and at the time of the union, and since that time up to the passing of the Acts aforesaid. That, subsequent to the passing of said Acts, and on behalf of the members of said Roman Catholic Church, the following ptstition has been laid before your Excellency in Council : — To His Excellency the Governor General in Council : The humble petition of the undersigned members of the Roman Catholic Church, in the province of Manitoba, presented on behalf of themselves and their co-religionists in the said province, showeth as follows ; — 60i ■fti if ):■. .^, r 952 MANITOBA LEGISLATION 1. Prior to the passage of the Act of the Dominion of Canada, passed in the thirty- third year of the reign of Her Majesty Queen Victoria, chapter three, known as the Manitoba Act, and prior to the Order in Council issued in pursuance thereof, there existed, in the territory now constituting the province of Manitoba, a number of eflFective schools for children. 2. These schools were denominational schools, some of them being regulated and controlled by the Roman Catholic Church, and others by various Protestant denomina- tions. 3. The means necessary for the support of the Roman Catholic schools were sup- plied to some extent by school fees paid by some of the parents of the children, who attended the schools, and the rest was paid out of the funds of the church contributed by its members. 4. During the period referred to, Roman Catholics had no interest in or control over the schools of the Protestant denominations, and the Protestant denominations had no interest in or control over the schools of the Hoinan Catholics. There were no public schools in the sense of state schools. The mt^mbers of the Roman Catholic Church supported the schools of their own church for tlie benefit of the Roman Catholic children, and were not under obligation to, and did not, contribute i,o the support of any other schools. 5. In the matter of education, therefore, during the period referred to, Roman Catholics were, at a matter of custom and practice separate, from tli»j rest of the com- munity. 6. Under the provisions of the Manitoba Act, it was provided thit the legislative assembly of the province should have the exclusive right to make laws in regard to education, subject to the following provisions : — (1.) Nothing in any such law shall prejudicially affect any right or privilege with respect to denominational schools which any class of person i have by law or practice in the province at the union. (2.) An appeal shall lie to the Governor General in Council from any Act or decision of the legislature of the province, or of any provincial authority affecting any right or privilege of the Protestant or Roman Catholic minority of the Queen's subjects in relation to education. (3.) In case any such provin ;ial law, as from time to time seems to the Governor General in Council requisite for the due execution of the provisions of this .section is not made, or in case any decision of the Governor General in Council, or any appeal under this section is not duly executed by the proper provincial authority in that l)ehalf, then, and in every such case, and as far only as the circumstances o each case require, the parliament of Canada may make remedial laws for the due execution of the provisions of this section, and of any decision of the Governor Gem-ral under this section. 7. During the first session of the legislative assembly of the province of Manitoba, an Act was passed relating to education, the effect of which was to continue to the Roman Cati'olics that separate condition with reference to education, which they had enjoyed previous to the erection of the province. 8. The effect of the statute, so far as the Roman Ca holies were ( oncerned, was merely to organize the eflTorts which the Roman Catholics a«l pr viously voluntari'y made for the education of their own children. It provided tor the continuaiice of schools under the sole control and management of Roman Catholics, and "f the erluca- ^ tion of their children, according to the methods by whicli n'one they believe children should be instructed. 9. Ever since the said legislatioti, and until tlu- ia^^t session of the legislative assembly, no attempt was made to encroach tipon the rijjiits i)f the Roman Catholics so confirmed to them as above mentioned, but during said session. st,atutes were passed (53 Vic, chaps. 37 and 38) the ef!ect of which was to deprive £he Roman Catholics alto- gether of their separate condition in regard to education ; to ineige their schools with those of the Protestant denominations ; aixl to lequire all members of the community, whether Roman Catholic or Protestant, to contribute, thiou;,'h taxation, to the support in the thirty- known a8 the thereof, there jer of eCFective regulated and ant denomina- lools were sup- children, who :h contributed ; in or control )mi nations had were no public tholic Church tholic children, t of any other •ed to, Roman >st of the com- . the legislative ■8 in regard to privilege with V or practice in m any Act or Y affecting any Queen's subjects 3 the Governor lis section is not ly appeal under lat Itehalr, then, ase require, the t the provisions section. ce of Manitoba, ontinue to the which they had (oncerned, was isly voluntari'y continuance of d "f the erluca- Delieve children the legislative lan Catholics so were pivssed (53 Catholics alto- >ir schools with the community, , to the support 53 VICTOHIA, 1890. 963 of what are therein calle 1 public schools, but which are in reality, a continuation of the Protestant schools. 10. There is a provision in the said Act for the appointment and election of an advisory board, and also for the election in each municipality of school trustees. There is also a provision that the said advi.sory board may prescribe religious exercises for use in schools, and that the said school trustees may, if they think fit, direct such religious exercises to be adopted in the schools in their respective districts. No further or other provision is made with reference to religious xercises, and there is none with reference to religious training. 11. Roman Catholics regard such schools as unfit for the purposes of education, and the children of Roman Catholic parents cannot and will not attend any such schools. Rather than countenance such schools, Roman Catholics will revert to the voluntary system in operation previous to the Manitoba Act, and will, at their own private expense, establish, support and maintain .schools in accordance with their principles and their faith, although by so doing they will have in addition thereto to contribute to the expense of the so-called puMic schools. 12. YT)ur petitioners suV^mit that the said Act of the legislative assembly of Mani- toba, is subversive of the rights of Roman Catholics guaranteed and confirmed to them by the statute erecting the province of Manitoba, and prejudicially affects the rights and privileges with respect to Rom-in Catholic schools which Roman Catholics had in the province at the time of its union with the Dominion of Canada. 13. The Roman Catholics are in minority in said province. 14. The Roman Catholics of the province of Manitoba therefore appeal from the said Act of the legislative assembly of Manitoba. Your petitioners therefore pray, — 1. That your Excellency the Governor General in Council may entertain the said appeal, and ma)' consider the same, and may make such provisions and give such directions for the hearing and consideration of the said appeal as may be thought proper. 2. That it may be declared that such provincial law does prejudicially affect the rights and privileges with regard to denominational schools which Roman Catholics had by law or practice in the province at the union. 3. That such directions may be given and provisions made for the relief of t^e Roman Catholics of the province of Manitoba as to Your Excellency in Council Ui ly seem fit. And your petitioners will ever pray. IAlex., Arch, of St. Boniface. Hknri F., Ev. d'Anemour. Joseph Messier, P.P. of St. Boniface. T. A. Bernier. J. DUBUC. L. A. Prud'iiomme. M. A. GiRARD. A. A. LaRiviere,M.P. James E. Prenderhast, Roger Marion, M.P.P., names. M.P.P. and 4,257 more II. memorandum dated march 28th, 1890, from .T. E. PRENDERfiAST, M.P.P., ON BEHALF OF HIMSELF AND THE MEMBERS FOR CARILLON, CABTIER, LE VERANDRY. MORRIS AND ST. BONIFACE, SOB.MITTINO THAT THE SAID ACTS ARE ultra vireS, FOR REASONS MORE FULLY SET OUT IN THE FOLLOWING MEMORANDUM. Memorandum respecting a bill intituled " An Act respecting the Department of Education ' and a bill intituled : " An Act respecting Public Schools." It is respectfully submitted thiit the bills al)ove mentioned are and constitute a gross and direct violation of the rights and privileges guaranteed to the Roman Catholic minority «i Her Majesty's subjects in the province of Manitoba, by section 93 of "The British North America Act, 1867," and section 22 of "The Manitoba Act." It is submitted that the first sub clause of said section 22 of " The Manitoba Act " recognizes the law or practice followed prior to the union, as a source of indefeasible rights and privileges with respect to denominational schools. t ...■»* 964 MANITOBA LEGISLATION By the practice followed, the Ilonian Catholic denomination, and in fact all the religious denominations known in the country then enjoyed the Tc'lowing privileges: — 1. They each had their denominational sch(wls, there being in fact then, no other schools than denominational schools in the country. 2. Each denomination (whetiier by their clergy, laymen or otherwise) had the pri- vilege of determining the curriculum of the course of studies to be followed in their respective schools, so that the convictions and consciences of the parents were nob violated in their children. 3. The practice, the general practice, was that each denomination supported its own schools. The above practice is perfectly supported and illustrated by letters from the respec- tive boards of the Roman Catholic, Episcopalian and Piesbytcrian denominations, as reproduced in Mr. H. T. Hind's report of the lied River Expedition, in the chapter concerning education. Whilst recognizing the supreme right of the legislative assembly of voting aids and subsidies, it is further submitted that, prior to union, the only moneys spent for public purposes, and which could in any sense be considered as public moneys, were those of the honourable the Hudson Bay Company, and that it was the practice for said company to grant yearly certain sums to the three denominations named for their mission work, a most important part of which was their educational work. It is respectfully submitted that the said bill respecting the department of educa- tion is, considered in its whole and more particularly by ser^tions, determining the powers of and creating the department of education and thu advisory board, in viola- tion of the rights and privileges above mentioned ; and so for the said bill respecting public schools, particularly by sections six, seven or eigl. , and by chapters headed " compulsory education," and " penalties and prohibitions " and " school assessment." It is further respectfully submitted that by sub-clause 3 of clause 93 of " The British North America Act, 1867," and by sub-clause 2 of clause 22 of " The Manitoba Act," all Acts passed after the union authorizing separate or denominational schools, are also recognized as a source of indefeasable rights and privileges. That the said bills passed during the present session are also in this respect in violation of such rights and privileges, is evident from the fact that the said bills expresslj- upset " The Manitoba School Act " now in force, and the denominational schools established thereunder, and substitute in lieu of the latter non-sectarian public common schools. All of which is most respectfully submitted. JAMES E. P. PRENDERGAST, M.P.P. for Woodlanda. III. PETITION FROM CATHOLIC SECTION OF THE MANITOBA BOARD OP RDUCATION, PRAYING FOR DISALLOWANCE OF THE ACTS, CHAPTERS 37 AND 38. To Hia Excellency the Governor General in Council : The petition of the Catholic section of the board of education in and for the province of Manitoba doth hereby most respectfully represent ; That Whereas previous to, and and at the time of the union, there existed by practice, in the territory which now forms the province of Manitoba, a system of denominational schools ; Whereas the maintenance of such system was made a condition of the union by clause 7 of the bill of rights, upon which such union was negotiated ; Whereas thereafter the legislature of the province of Manitoba has established a system of denominational schools, which has been in existence since the union up to this year, without being questioned or complained of. Whereas the existence of such a system of denominational schools by practice pre- vious to, and at the time of the union, and by law since the union, has created rights and privileges in matter of education to Catholic and Protestant denominations alike ; "fl 53 VICTORIA, 1890. Dnn a fact all the privileges :— let then, no Imd the pri- )we(l in their its were not lupported its (II the respec- ni nations, as the chapter i voting aids eys spent for noneys, were practice for med for their ent of educa- erniining the •ard, in viola- lill respecting pters headed assessment." 93 of "The ?he Manitoba ional schools, lis respect in :he said bills snominational itarian public wdlands. ION, PRAYING and for the I by practice, jiiominational the union by established a union up to practice pre- ireated rights bions alike ; Whereas apart of the protection afforded ti» all by (ilause 93 of the Uritish North America Act, ISOT, it has been enacted by clause "22 of the .Manitoba Act, that '2'1. In and for tlie piovinee, tiio said legislature may exelusively make laws in relation to education, subject and aceordinj; to the following provisions : — (1.) Nothing in any such law shall prejudieially etl'ect any ligiit or privilege, with respect to denominational schools, which any class of persons have by law or prac tice in the province at the union. (2.) An appeal shall lie to the (lovernor (Seneral in Council from any Act or decision of the legislature of the province or of any provincial authority, affc^-ting any right or privilege of the Protestant or llom;in Catholic minority of the (.iueun's subjects in re- lation to education. VVlit^roius, two bills respectively intituled " An Act respecting tin; Department of Education," and "An Act respecting Pui)lic Seiiools," have been adopted by the legis- lature of the province of .Manitoba at the session, closed on the 31st day of March, A.D. IS'.iO, and, whereas, such legislation has prejudicially affected the rigiits and privil- eges of the Catholic minority of this province with respect to Catholic schools, inas- much as by the said Act the said Catholic schools of this province are wiped out ; The Catholic section of the board of education in and for the province of Manitobl most respectfully and e/irnestly pray his Kxcellt^ncy the Governor General in Counca that said last mentioned Acts be disallowed to all intents and purposes. And your petitioners will ever pray. t ALEX., AIKIH. OF ST. BONIFACE, 0. M. /., Presidejit oj the. Catholic ticcfion of the Board of Editcation. T. A. BERNIEH, Superintendent of Education for the Catholic Section. Winnipeg, 7th of April, 1.^90. IV. PETITION FROM HIS GRACE THE ARCIIBISIIOP OF ST. UONIFACE, TO HIS EXCELLENCY THE GOVERNOR GENERAL. To the Right Honourable Sir Frederick Arthur Stanley, Baron Stanley of Preston, Governor General of Canada and Vice- Admiral of the same. 3fay it please Your Excellency : To allow the undersigned, Roman Catholic archbishop of Manitoba, to lay respectfully before your excellency the following observations and requests : Previous to the transfer of the North-west Territories to the Dominion of Canada, there prevailed a great uneasiness amongst the inhabitants of the said territories, with regard to the consequences of the transfer. The Catholic population especially, mostly of French origin, thought they had reason to foresee grievances on account of their language and their religion, if there were no special guarantee given as to what they considered their rights and privileges. Their apprehensions gave rise to such an excite- ment that they resorted to arms ; not through a want of loyalty to the Crown, but only through mere distrust towards Canadian authorities, which were considered as trespas- sing in the country, previous to their acquisition of the same. Misguided men joined together to prevent the entry of the would-be Lieutenant-Governor. The news of such an outburst was received with surprise and regret, both in England and Canada. All this took place in the autumn of 1870. I was in Rome at the time, and at the request of the Canadian authorities I left the oecumenical Council to come and help in the pacification of the country. On my way home, I spent a few days in Ottawa. I had the honour of several interviews with Sir John Young, then Governor General, and with his ministers. I was repeatedly assured that the rights of the people of Red River would be fully guarded under the 4 ■ 4 \1 95G MANITOItA LKdISLATION new rt''ginie ; that lK)th imperial and federal authoritieg would never permit the ne w comerH in t'le country to I'lu-rnach on tlic libertiefi of the old settlern ; that on the hanks of the lied Hiver, nn well as on tin; hanks <»f the Ht. Lawrence, the people would he at liberty to use their mother ton;{ue, to practise their relijjion, and to have their children broujjht up accordin<{ to their views. On the day of my (It-parture from Ottawa, his lixcellency handed me a letter, a copy of which 1 attach to this as AppiMidix A, and in which are repeat<(d some of the assurances j^iven verbally. "The people,'' says the letter, "may rely that respect and attention will bo extended to the difl'erent relijjious persuasions." The (lovernor (loneral, after mentioning the desire of Lord ,u we read : "Her Majesty commands me to state to you that she will be alwav ady, through me as her representative, to redress all well-founded grievances, an'' . y com- plaints that may be made, or desires that may be expressed to me as (u. nor General. " IJy Her Majesty's authority I do therefore assure j'ou that on your union with Canada, all your civil and religious rights and privileges will be respected." A delegation from Red River had been proposed as a good means of giving and receiving explanations conducive to the pacification of the country. The desirability of this step was ur^ed upon me as of the greatest importince, and the premier of Canada, in a letter I attach to this Appendix D, wrote to me : '* In case a delegation is appointed to proceed to Ottawa, you can assure them that they will be kindly received and their sugge.stions fully considered. Their expenses coA)ing here and returning and while staying in Ottawa will be defrayed by us." I left after having received the above-mentioned ins'^ructions and reached St. Boniface on the 9th of March, 1870. I communicated to the dissatisfied the assurances I had received, showing them the docum -nts above cited. This largely contributed to dispel fears am I to restore confidence. The delegation which had -been delayed was definitely decided upon. The delegates appointed several weeks before, received their commission afresh. They proceeded to Ottawa ; opened negotiations with the federal authorities, and with such result that on the 3rd of May, 1870, Sir John Young telegraphed to Lord (Jranville : "Negotiations with delegates closed satisfactorily " The negotiations provided that the denominational or separate schools would be guaranteed to the minority of the new province of Manitoba. The French language received such recognition that it was decided it would be used officially both in Parlia- ment and in the courts of Manitoba. The Manitoba Act was then passed by the jiTouse of Commons and Senate of Canada and sanctioned by the Governor General. The said Act received the supreme sanction nf the Imperial Parliament, which thus took under its own safeguard the rights and jirhil' ges conferred by it. I take the liberty to here cite most of ti.o two clauses relating to denominational schools and official use of the French language. Clause 22. " In and for the province, the said legi lature may exclusively make laws in relation to education, subject and according to the following : "(l.) Nothing in such law shall prejudically afiect any right or privilege with respect to denominational schools, which any class of persons have by law or practice in the province at the union. " (2.) An appeal shall lie to Governor General in Council from any Act or decision of the legislature of the province, or any other provincial authority afl^ecting any right or privilege of the Protestant or Roman Catholic minority of the Queen's subjects in relation to education." tll(! t\(: W le harik.s Id )>e at ■liiUlniji It'tter, a of the )<;ct 1111(1 avail of in most IJ, and lid take le wants, 53 viCTOiiiA, 1890. wt ClauHe 23. " Eitlier the KngliHli or the French language may Im used hy any pernon in the dehattis of the IloimeH of the li-giHlature, and botl. iIiono laiigua<^(^s Hliall Ix' iiNt'd in the roHpectivo records and journals of those Houses, and citliei- of these lim^ua^^i-H may be used by any person, or in any pleading or process in or issuing from any coiiit of Canada established under the British North America Act, 1867, or in or from all or any of the courts of the jirovincc. The Acts of the legislature shall lie printed and pul)li8hed in both these languages. " According to the provisions above mentioned; the legislature of Manitoba idways recognized the Catholic schools a^ an integral part of the educational system of the province. The use of the French language met with the same recognition, I'lverything wont on smoothly and harmoniously in that rtvspect since the establishment of the pre ince, until a few months ago. Without stating any fair reason for the change, and without ai'y jiuldii; movement to det(!rmine it, the provincial cabinet of Mr. (rieenway has brou;!ht before the legis- lature and secured the passing of Acts of such a radical characti^r against the French and the Catholics, that a decided Protestant influential newspaper has not hesitated to say; "That is not legislation, but persecution." I know that the laws I allude to are to be remitted to your Excellency along with this, so I do not add a copy of the same. I consider the laws just enacted by the legislature of Manitoba, to abolish the Catholic schools and the otiicial use of the French language, as an unwarranted violation of the promises raiwle before, and to secure the entry of this country into confederation. I consider such laws as a death blow t) the very constitution of this province. They are detrimental to some of the dearest interests of a portion of Her Majesty's most loyal subjects. If allowed to be put in force, they will be a cause of irritation, destroy the harmony whic. exists in the country, and leave the people under the painful and dangerous impression that they have been cruelly deceived, and because a minority, they are left without protection, antl that against the promise made 20 years ago by the thea immediate representative of Her Majesty : " Right shall be done in all cases." I, therefore, most respectfully and most earnestly pray thut your Excellency, as the representative of our most beloved Queen, should take such steps that in your wisdom would seem the best remerly against the evils that the above mentioned and recently enacted laws are preparing in this part of Her Majesty's domain With most profound respect and full confidence. I remain, etc., t ALEX., Arch, of St. Boniface, O.M.I. St. Boniface, 12th April, 1890. Letter to Bishop Tachd, from Sir John Young. Ottawa, 16th February, 1870. My Dear Lord Bishop, — I am anxiou.s to express to you, before you set out, the deep sense of obligation which I feel is due to you for giving up your residence at Rome, leaving the great and interesting affairs in which you were engaged there, and under- taking at this inclement season, the long voyage across the Atlantic and long journey across the continent, for the purpose of rendering service to Hei Majesty's Government, and engaging in a mission in the cause of peace and civilization. Lord Granville was anxious to avail of your valuable assistance from the outset, and I am hearti!)' glad that you have proved willing to afford it so promptly and generously. You are fully in possession of the views of my government, and the Imperial Government, as I informed you, is earnest in the desire to see the North-west Territory united to the Dominion on equitable conditions. .h.M 958 MANITOBA LEGISLATION I need not attempt to furnish you with any instructions for your guidance beyond those contained in the telegraphic message sent by Lord (jiranville on the part of the British cabinet, in the proclamation which I drew up in accordance with that message, and in the letters which I addressed to Governor McTavish, your vicar-general, and Mr. Smith. In tins last note, " all who have complaints to make " or wishes to express, are callt^d upon to address themselves to me, as Her Majesty's representative, and you may state with the utmost confidence that the Imperial Government has no intention of actinji, otherwise than in perfect good faith towards the inhabitants of the North-west, The people may rely that respsct and attention will be extended to the different religious persuasions ; that title to every description of property will be carefully guarded, and that all the franchises which have subsisted, or which the people may prove themselves qualified to exercise, shall be duly continued and liberally conferred. In declaring the desire and determination of Her Majesty's cabinet, you mav safely US" the terms of the ancient for formula, " Right shall be done in all cases." I wish you, dear lord bishop, a safe journey and success in your benevolent mission. Believe me, with all respect, faithfully yours, JOHN YOUNG. B Telegram sent by Lord Granville to Sir John Young, dated the 25th November, 1SG9. The Queen has learned wiHi regret and surprise tliat certain misguided men have joined together to resist the entry of her Lieutenant-Governor into Her Majesty's possessions in the Red River. The Queen does not distrust her subjects' loyalty in those settlements, and must ascribe their opposition to a change, plainly for their advantage, to misrepresentations or misunderstanding. She relies upon your government fur taking every care to explain where there is a misunderstanding, and to ascertain the wants and conciliate the good will of all the settlers of the Red River. But at the same time she authorizes you to tell them that she views with displeasure and sorrow their lawless, and unreasonable proceedings, and she expects that if they have any wish to express or complaints to make they will address themselves to the Governor of the Dominion of Canada, of which in a few days they will form a part. The Queen relies upon her representative being always ready on the one hand to give redress to well-founded grievances, and on the other to repress with the authority with which she has entrusted him any unlawful disturbance. 0. . PROCLAMATION, (V.R.) By His Excellency the Right Honourable Sir John Young, Baronet, a member Her Majesty's Most Honourable Privy Council, Knight Grand Cross of the Most Honourable Order of the Bath, Knight of the Most Distinguished Order of St. Michael and St. George, Governor General of Canada. To all and every the loyal subjects of Her Majesty the Queen, and to-- U to whom these presents shall come, — ' Greeting : The Queen has charged me, as her representative, co inform you that certain misguided persons in her settlements on the Red River have banded themselves together to oppose by force the entry into Her North-western Territories of the ofiicer ■" '^rfi'ic^'*'""" "^ 53 VICTORIA, 1890. 959 uidance beyond the part of the h that message, general, and Mr. to express, are e, and you may no intention of .he North-west, ifferent religious ly guarded, and rove themselves , you mav safely j 5es." your benevolent YOUNG. vember, 1S69. lided men have Her Majesty's nents, and must srepresentations ■ care to explain iciliate the good ithorizes you to id unreasonable r complaints to Canada, of which bhe one hand to h the authority net, a member •OSS of the Most jd Order of St. !1 to whom these C-REIiTING : JOM that certain ded themselves ies of the officer selected to administer, in her name, the government, when the territories are united to the Dominion of Canada, under the authority of the late Act of the Purliauient of the United Kingdom ; and that those parties have also forcibly, and with violence, prevent- ed others of her loyal subjects from ingress into the country. Her Majesty feels assured that she may rely upon the loyalty o( her suV)jects in the North-west, and behoves those men who have thus illegally join'jd together, have (lone so from some misrepresentation. The Queen is convinced that in sanctioning the union of the Norili-west Terri- tories with Canada, she is pnjmoting the best interests of the residents, and at the same time strengthening and consolidating Her North American pos.sessions as part of the British Empire. You may judge, then, of the sorrow and displeasure with which tlie Queen views the unreasonable and lawless proceedings which have occurred. H^r Majesty commands me to state to you, that she will always be 'eady through me, as her representative, to redress all well-founded grievmces, and any complaints that may be made, or desire.; that may be expressed to me as governor general. At the same time she has charged me to exercise all powers aad authority with which she has invested me in the support of order, and the suppression of unlawful disturbances. By Her Majesty's authority, I do therefore assure you that on the union with Canpda, all your civil and religious rights and privileges will be respected, your pro- perties secured to you, and that your country will be governed, as in the pr.st, under British laws, and in the spirit of British justice. I do further, under her authority, entreat and command those of you who are still assembled and banded together, in defiance of law, peaceably to disperse and return to your homes, under the penalties of the law in case of disobedience. And, I do lastly inform you, that in case of your immediate nnd peaceable obedience and dispersion, I shall order that no legal proceedings be taken against any parties implicated in these unfortunate breaches of the law. Given under my hand and seal at arms at Ottawa, this sixth day of December, in the year of our Lord one thousand eight hundred and sixty-nine, and in the thirty- second year of Her Majesty's reign. By command, JOHN YOUNG. H, L. Lanoevin, Secretary of State. D. (Private.) Department of Justice, Ottawa, 16th February, 1870. My Dear Lord, — Before you loave Ottawa on your mission of peace, I think it well to reduce to ^vriting thi, substance of a conversation I had the honour to have with you this morning. , . , u I mark Wvc letfii private in order that it may not be made a public document, to be called for by parliament prematurely ; but you are quite at liberty to use it in such a manner as you n.ny think Uiost ie asked to surrender his letter, and informed that he ought not to proceed upon it. The Canadian government will see that he is compen- sated for any expense that he has already incurred. In case a delegation is appointed to proceed to Ottawr, you can assure them that they will be kindly received, and their suggestions fully considered. Their expenses coming here and returning, and whilst ptaying in Ottawa, will be defrayed by us. You are authorized to state that the two years which the present tariff shall remain undisturbed will commence from the 1st January, 1871, instead of last January, as first proposed. Should the question arise as to the consumption of any stores or goods belonging to the Hudson Bay Companj* by the insui^euts, you are authorized to inform the leaders that if the ( ompany's government is restored, not only will there be a general amnesty granted, *^ut in case the company should claim the payment for such stores, that the Canadian government will stand l)etween the insurgents; and all harm. Wishing you a prosperous journey and happy results. I beg to remain, itc. JOHN A. MACDONALD. PETITION FROM MEMBERS OF THE LEGISLATIVE ASSEMBLY OF MANITOBA, TO UlS EXCELLENCY THE GOVERNOR GENERAL. To the Right Honourable Sir Frederick Arthur Stanley, Baron Stanley of Preston> Governor General of Canada, ifec, &c. May it please Your Excdlency ; The petition of the undersigned dutiful subjects of Her Most Gracious Majesty, and members of the legislative assembly of the province of Manitoba, most humbly sheweth ; — That the seventh legislature of the province of Manitoba, in its third session, which day of ojMjned on the 30th January, A. D. 1890, and prorogued on the 31st day of March of the same year, has pa.y us. lall remain ary, as first belonging inform the e a general uch stores. ALD. TO HIS of Prestoni ajesty, and st humbly sion, which y of March An Act re- Dominion )ls," B copy Iducation," ival of any of the members (whether of the Roman Catholic or Protestant persuasion) belonging to Her Majesty's loyal opposition in the said legislative assembly, as shown by a copy of the journals of the House, contai-.ied in Appendix " C " hereto attached, but, on the contrary, received the reproval of all the members of Her Majesty's said loyal opposi- tion, except that of Mr. Lagimodi^re, a Roman Catholic, and member for La Verand- rye, who was detained from his parliamentary duties through serious illness prevailing in his family ; and that the said Act, intituled : " An Act respecting Public Schools," although passed by the said legislative assembly as aforesaid, did not receive the approval of any of the members (whether of the Roman Catholic or Protestant persua- sion) belonging to Her Majesty's loyal opposition in the said legislative assembly, but on the contrary, receive ' '1.1 : Petek McIntyre, Bishop o otte- town ; Isidore Clut, O. M. I., Bishoj^ ; d'- Arindele ; L. F., Bishop of Three Rivers ; T. O'Mahony, Bishop of Eudocia ; J. Cameron, Bishop of Antigonish ; ^ Antoine, Bishop of Sherbrooke ; Paul Durieu, O.M.L, Bishop of New Westminster ; Montreal, 6th March, 1891. L. Z., Bishop of St. Hyacinthe ; N. Z^PiiiRiN, Bishop of Cythere Vic. Apo.st. of Pontiac ; ElphIige, Bishop of Nicolet ; Thomas Joseph Dowling, Bishop of Hamil- ton ; J. N. Lemv^^s, Bp. of Vancouver ; RiciiAHP A. O'Connor, Bp. of Peter- hf .0 ; Andr^ Albert, Bp. of St. Germain de Rimouski ; Alexander Macdonell, Bishop of Alex- andria ; J. C. McDonald, Tit. Bp. of Irina ; Dennis O'Connor, Bp. of Ix)ndon ; N. Doi'cet, Pte., V. G., Prot. Apost. Administrator of the Diocese of Chi- coutimi, during the absence of Mgr. Begin, in Europe. Report of the Hon. the Minister of Justice, approved by His Excellency the Governor General in Council on t/ie 4th April, 1891. Department of Justice, Ottawa, 2l8t March, 1891. To His Excellency tlie Governor General in Council : The undersigned has the honour to report upon the two Acts of the following titles, passed by the legislature of the province of Manitoba as its session held in the year 1890, which Acts were received by the Honoural)le the Secretary of State on the 11th April. 1890:— Chapter 37, " An Act respecting the department of education," and Chapter 38, " An Act respecting the Public Schools." The first of these Acts creates a department of education, consisting of the execu- tive council or a committee thereof appointed by the Lieutenant-Governor in Council, and defines its powers. It also creates an advisory board, partly appointed by the department of education and partly elected by teachers, and defines its powers. The " Act respecting Public Schools " is a consolidation and amendment of all previous legislation in respect to public schools. It repeals all legislation which created and authorized a system of separate schools for Protestants and Roman Catholics. By the Acts previously in force either Protestants or Roman Catholics could establibh a school in any school district, and Protestant ratepayers were exempted from contribution for the Catholic schools, and Catholic ratepayers were exempted from contribution for Protestant schools. -^ I igers which that public jrical weak- to afford a c eificaciouf Vic. Apost. p of Hamil- er; of Peter- rermain de ip of Alex- na ; n; at. Apost. Bse of Chi- ce of Mgr. e Governor , 1891. wing titles, in the year m the 11th Chapter 38, the exeou- in Council, ited by the srs. [lent of all lich created liolici. By establibh a ontribution 'ibution for 53 VICTORIA, 1890. 963 The two Acts now under review purport to abolish these distinctions as to the schools, and these exemptions as to ratepayers, and to establish instead a system under which public schools are to be organized in all the school districts, without regard to the religious views of the ratepayers. The right of the province of Manitoba to legislate on the subject of education is conferred by the Act which created the province, viz., 32-33 Vic, chap. 3 (Tlie Mani- toba Act), section 22, which is as follows : — " 22. In and for the province of Manitoba, the said legislature may exclusively make laws in relation to education, subject to the following provisions ; — " (1.) NothinjT in any such law shall prejudicially affect any right or privilege with respect to denominational schools which any class of persons have by law or practice in the province at the union. " (2 ) An appeal shall lie to the Governor General in Council from the Act or decision of the legislature of the province, or of any provincial authority affecting any right or privilege of the Protestant or Roman Catholic minority of the Queen's subjects in relation to education. " (3.) In case any such provincial law as from time to time seems to the Governor General in Council requisite for the due execution of the provisions of this section is not made, or in case any decision of the Governor in Council, on any appeal under this sec- tion, is not duly executed by the proper provincial authority in that behalf, then, and in every such case, and as far only as the circumstances of each case require, the Parlia- ment may make remedial laws for the due exeeution of the provisions of this section, and of any decision of the Governor General in Council under this section." In the year 1870, when the "Manitoba Act" was passed there existed no system of education established or authorized by law, but at the first session of the provincial legislature in 1871 an " Act to establish a System of Education in the Province " was pa.3sed. By that Act the Lieutenant-Governor in Council was empowered to appoint not less than ten nor more than fourteen to be a board of e'lucation for the province, of whom one-half were to be Protestants and the other half Catholics, with one superinten- dent of Protestant and one superintendent of Catholic schools. The board was divided into two sections, Protestant and Catholic, each section to have under its control and management, the discipline of the schools of its faith, and to prescribe the books to be used in the schools under its care which had reference to religion or morals. The moneys appropriated for education by the legislature were to be divided equally, one moiety thereof to the support of Protestant schools, and the other moiety to the support of Catholic schools. By an Act passed ir> 1875, the board was increased to twenty-one, twelve Protes- tants and nine Roman Catholics ; the moneys voted by the legislature were to be divided oetween the Protestant and Catholic schools in proportion to the number of children of school age in the schools under the care of Protestant and Catholic sections of the board respectively. The Act of 1875 also provided that the establishment in a school district of a school of one denomination should not prevent the establishment of a school of another denomination in the same district. Several questions have arisen as to the validity and effect of the two statutes now under review ; among these are the following : — It being admitted that " no class of persons " (to use the expression of the Manitoba Act) had " by law," at the time the province was established, " any right or privilege with respect to denominational (or any other) school, " had " any class of persons " any such right or privilege with respect to denominational schools " by practice " at that time ? Did the existence of separate schools for Roman Catholic children, supported by Roman Catholic voluntary contributions, in which their religiv-.n might be taught and in which text books suitable for Roman Catholic schools were used, and the non-exist- ence of any system by which Roman Catholics or any other could be compelled to con- tribute for the support of schools, constitute a " right or privilege " for Roman Catholics " by practice " within the meaning of the Manitoba Act 1 The former of these, as will at once be seen, was a question of fact and the latter a question of law, based on the 964 >iANITOBA LEQI8LATI0X assumption, which has since been proved to be well founded, that the existence of separate schools at the time of the " union " was the fact on which the Catholic population of Manitoba must rely as establishing their " right or privilege " " by practice." The remaining question was whether, assuming the foregoing questions, or either of them, to require an athrmative answer, the enactments now under review, or either of them, aflfected any such " right or privilege? " It became apparent at the outset that these questions required the decisions of the judicial tribunals, more especially as an investigation of facts was necessary to their determination. Proceedings were instituted with a view to obtaining such a decision in the Court of Queen's Bench of Manitoba several months ago, and in course of t^'ese pro- ceedings the facts have been easily ascertained, and the two latter of the three questions above stated were presented for the judgment of that court with t' t -"'^nts ''* counsel for the Roman Catholics of Manitoba on the one side, and of counsel iv^t- the provincial government on the other. The court has practically decided, with one dissentient opinion, that the Acts now under review do not "prejudically affect any right or privilege with respect to denomi- national schools" which Roman Catholics had by "practice at the time of the union," or, in brief, that the non-existence, at that time, of a system of public schools and the consequent exemption from taxation for the support of public schools and the consequent freedom to establish and support separate or "denominational" schools did not constitute a right or privilege " " by practice " which these Acts took away. An appeal has been asserted and the case is now before the Supreme Court of Canada, wh re it will, in all probability, be heard in the course of next month. If the appeal should be successful, these Acts will be annulled by judicial decision ; the Roman Catholic minority of Manitoba will receive protection and redress. The Acts purporting to be repealed will i^main in operation, and those whose views hn e been represented by a majority of the legislature cannot but recognize that the matter has been disposed of with due regard to thr constitutional rights of the province. If the legal controversy should result in the decisi' n of the Court of Queen's Bench being sustained, the time will come for your Excellency to consider the petitions which have been presented by and on behalf of the Roman Catholics of Manitoba for redress under subsections 2 and 3 of section 22 of the "Manitoba Act" quoted in the early part of this report, and which are analogous to the provisions made by the British North America Act, in relation to the other province s. Those subsections contain in effect the provisions which have been made as to all the provinces and ar^ obviously those under which the constitution intended that the government of the Dominion should proceed if it should at any time become necessary that the federal powers should be resorted to for the protection of a Protestant or Roman Catholic minority figainst any Act or decision of the Legislature of the province, or of any provincial authority, affecting any "right or privilege" of any such minority " in relation to education." Respectfully submitted, JNO S. D. THOMPSON, Minister of Justice. Subsequent to the passing of the Order in Council of the 4th April 1891, up n the report of the Hon. the Minister of Justice, the following petitions were presented, com- plaining of the Acts in (|uestion, and asking that the appeal of the Roman Catholics in Manitoba might be entertained and (onsidered. 1. Petition dated 20th September, 1892, from T. A. Bernier, acting president, and the members of the Executive Committee of the National Congress. 2. Petition I lated 22nd September, 1892, from the Most'Rev. Archbishop Tach6 of St. Boniface. 3. Petition dated November 1892 from the Most Rev. Archbishop Tach^ ; T. A. Bernier, president of the National Congress ; and J. E. P. Prendergast, mayor of St. Boniface, the very Rev. I. Allard, O.M.I , V.G., and 137 others. ill 53 VICTORIA, 1890. 965 I!. existence of ,he Catholic dlege " " by questions, or er review, or nsions of the sary to their a decision in of t^'ese pro- ree questions insei L^i the ihe Acts now st to denomi- t the union," lools and the le consequent lot constitute rt of Canada, cial decision ; •edress. The e views ha e it the matter »vince. jueen's Bench ititions which ba for redress the early part Iritish North nade as to all ided that the )me necessary Protestant or the province, such minority f Justice. 891, up n the esented, com- a Catholics in ^resident, and ibishop Tach^ Tach^ ; T. A. , mayor of St. 4. Memorandum from the Conservative lioague of Montreal, dated 30th November 1892. These petitions among other things alleged : — (a.) That the statutes complained of had deprived the Ttoinan Catholic minority, of the rights or privileges of a sep irate condition as regards education, and of a system of public education in the province, which they had persomiUy enjoyed by the Education Acts passed since the union. (h.) That their schools had been merged with th )se of Protestant denominations. (f.) That they were required to contribute, through taxation, to the support of schools which are called public schools, but are in substance a continuation of the old Protestant schools. (d.) That the religious exercises in the public schools are not acceptable to them, and praying that the Governor General in Council would, pursuant to the British North America Act 1867, section 93, subsection three, and ths Manitoba Act, section 22, sub- section 2, he ir and entertain the memorialists' appeal from the statutes complained of. The contentions of the memorialists were : — (1.) That the stitutes complained of had prejudicially affected rights and privileges in relation to education, which they had acquired since the union. (2.) That by subsection 2 of subsection 22 of the Manitoba Act, an appeal would lie to the Governor General in Council, from any Act of the provincial legislature, affecting such rights and privileges, even though the Acts were intra vires and constitutional. (3.) That by virtue of section 2 of the Manitoba Act ; subsection 3, of section 93, of the British North America Act, 1867, applied to Manitoba, and that a similar right of appeal was provided by that section. The above petitions were referred by the Governor General in Council to a sub- committee of Council for report, who met on the 28th November, 1892, to consider the same. Counsel (J. S. Ewart, Q C, of Winnipeg) for the petitioners was present, and having formally presented the petitions, addiessed the sub-committee in support thereof. The petitions having been considered the following report was made thereon, which was approved by his Excellency in Council, as follows : — Order in Council, approved by His Excellency the Governor General on the 29th of December, 1892. The committee of the Privy Council have had under consideration a report, hereto annexed, from a sub-committee of Council, to whom were refeired certain memorials to your Excellency, complaining of two statutes of the legislature of Manitoba, relating to education, passed in the session of 1890. The committee, concurring in tlie report of the sub-committee, submit the same for your Excellency's approval, and recommend that Saturday, the 21st day of January, 1893, at the chamber of the Privy Council, at Ottawa, be fixed as the day on which the parties concerned shall be heard with regard to the appeal in the matter of the said statutes. ^ The committee further advise tiiat a copy of this minute, if approved, together with a copy of t lie report of the sub-commiitee of Council, be transmitted to the Lieuteiiant-G' nor of Manitoba. JOHN J. McGEE, Clerk of the Privy Council. Rejort of the Sub-Committee of the Hon. the Privy Council, approved by His Excellency the Governor General in Council on the 29th December, 1892. Council Chamber, Ottawa, Dec, 1892. To His Excellency the Governor General in Council : The suh-committee to whom were referred certain memorials, addressed to your Excellency in Council, complaining of two statutes of the legislature of Manitoba, 61 'irr».T-.w 966 MANITOBA LEGISLATION relating to education, passed in the session of 1890, have the honour to make the fol- lowing report : — The first of these memorials is from the officers and executive committee of the *' National Congress," an organization which seems to have been established in June, 1890, in Manitoba. This memorial sets forth that two Acts of the legislature of Manitoba, passed in 1890, intituled respectively, " An Act respecting the Department of Education " and " An Act respecting Public Schools," deprive the Roman Catholic minority in Manitoba of rights and privileges which they enjoyed with regard to education, previous to the establishment of the province, and since that time down to the passing of the Acts afore- said, of 1890. The memorial calls attention to the fact that, soon after the passage of those Acts, (and in the year 1891) a petition was presented to your Excellency, signed by a large number of the Roman Catholic inh>ibitants of Manitoba, praying that your Excellency might entertain an appeal on l)ehalf of the Roman Catholic minority against the said Acts, and that it might be declared " that such Acts had a prejudicial effect on the rights and privileges, with regard to denominational schcols, which the Roman Catholics had by law or practice, in the province, at the union ; " also that directions might be given and provision made in the premises for the relief of the Roman Catholics of the province of Manitoba. The memorial of the " National Congress " recites, at length, the allegations of the petition last hereinbefore referred to, as having been laid before your Excellency in 1891. The substance of those allegations seems to be the following : That, before the passage of the Act constituting the province of Manitoba, known as the "Manitoba Act," there existed, in the territory now constituting the province, a number of effective schools for children, which schools were denominational, some of them being erected and controlled by the authorities of the Roman Catholic Church, and others by the authorities of various Protestant denominations ; that those schools were supported, to some extent by fees, and also by assistance from the funds contributed by the members of the church or denomi- nation under whose care the school was established ; that at that period the Roman Catholics had no interest in or" CDntrol over the schools of Protestant denominations, nor had Protestants any interest in or control over the schools of Roman Catholics ; that there were no public scliools in the province, in the sense of state schools ; that members of the Roman Catholic Church supported schools for their own children and for the benefit of Roman Catholic children, and were not under obligations to contribute to the support of any iher schools. The petitioii then asserted that, in consequence of this state of affairs, the Roman Catholics were separate from the rest of the community, in the matter of education, at the time of the passage of the Manitoba Act. Reference is then made to the provisions of the Manitoba Act by which the legis- lature was restricted from making any law on the subject of education which should have a prejudicial effect on the rights and privileges, with respect to denominational schools, " which any class of pei-sons had, by law or practice, in the provir ;e at the ' union.' " The petition th^n set forth that, during the first session of the legislative assembly of the province of Manitoba, an act was passed relating to education, the effect of which was to continue to the Roman Catholics the separate condition, with reference to educa- tion, which they had enjoyed previous to the union ; and that ever since that time, until the session of 1890, no attempt was made to encroach upon the rights of the Roman Catholics in that regard ; but that the two statutes referred to, passed in the sesnon of 1890, had the effect of depriving the Roman Catholics altogether of their separate con- dition with regard to education, and merged their schools with those of the Protestant denominations, as they required all members of the community, whether Roman Catholic or Protestant, to contribute to the support of what were therein' called " Public Schools," but what would be, the petitioners alleged, in reality a continuation of the Protestant schools. After setting forth the objections which Roman Catholics entertain to such a system of education as was established by the Acts of 1890, the petitioners declared 1 lake the fol- littee of the led in June, )a, passed in cation " and in Manitoba ivious to the e Actsafore- f those Acts, d by a large r Excellency nst the said on the rights Catholics had jht be given the province ations of the ncy in 1891. i the passage a Act," there /e schools for nd controlled ;ies of various t by fees, and h or denomi- the Roman fiinations, nor .tholics ; that that members and for the bribute to the s, the Roman education, at ich the legis- h should have ional schools, 5 ' union.' " tive assembly ffeat of which ence to educa- lat time, until I the Roman the sesjion of separate con- le Protestant )man Catholic iblit Schools," he Protestant ,in to such a )ners declared 63 VICTORIA, 1890. 967 that they appealed from the Acts complained of, and they presented the prayer for redress which is hereinbefore recited. The petition of the " Congress " then sets forth the minute of council, approved by your Excellency on the 4th April, 1891, adopting a report of the Minister of Justice, which set out the scope and effect of the legislation complained of, and also the pro- visions of the Manitoba Act with reference to education. That report stated that a question had arisen as to the validity and effect of the two statutes of 1890, reference to as the subject of the appeal, and intimated that those statutes would probably be held to be u/tra vivs of the legislature of Manitoba, if they were found to have prejudicially affected "any right or privilege with respect to denominational schools, which any class of persons had, by law or practice, in the province, at the union." The report suggested that (juestions of fact seemed to be raised by the petitions, which were then under consideration, as to the practice in Manitoba with regard to schools, at the time of the union, and also questions of law as to whether the state of facts then existing constituted a " right or privilege " of the Roman Catholics, within the meaning of the saving clauses in the Manitoba Act, and as to whether the Acts complained of (of 1890) had "prejudicially affected " such " right or privilege." The report set forth that these were obviously questions to be decided by a legal tribunal, before the appeal ivsserted by the petitioners could be taken up and dealt with, and that if the allegations of the petitioners and their contentions as to the law, were well founded, there woidd be no occasion for your Excellency to entertain or to act upon the appeal, as the courts would decide the Act to be ulfra vire.a. The report and the minute adopting it, were clearly based on the view that consideration of the complaints and appeal of the Roman Catholic minority, as set forth in the petitions, should be deferred until the legal controversy should be determined, as it would then be ascertained whether the appellants should find it necessary to press for consideration of their application for redress under the saving clauses of the British North America Act, and the Manitoba Act, which seemed, by their view of the law, to provide for protection of of the rights of a minority against legislation (within the competence of the legislature), which might interfere with rights which had been conferred on the minority, after the union. The memorial of the " Congress " goes on to state that the Judicial Committee of the Privy Council, in England, has upheld the validity of the Acts complained of, and the " memorial " asserts that the time has now come for your Excellency to consider the petitions which h ive been presented by and on behalf of the Roman Catholics of Manitoba, for redress under subsections 2 and 3 of section 22 of the Manitoba Act. There was also referred to the sub-committee a memorial from the Archbishop of Saint Boniface, complaining of the two Acts of 1890, before mentioned, and calling attention to former petitions on the same subject, from members of the Roman Catholic minority in the province. His Grace made reference, in this memorial, to assurances which were given by one of your Excellency's predecessors before the passage of the Manitoba Act, to redress all well-founded grievances, ar. 1 to respect the civil and religious rights and privileges of the people of the Red River 'erritory. His Grace then prayed that your Excellency should entertain the appeal of the Roman Catholics of Manitoba and might consider the same, and might make such directions for the hearing and consideration of the appeal as might be thought proper, and also give directions for the relief of the Roman Catholics of Manitoba. The sub-committee also had before them a memorandum made by the " Conserva- tive League " of Montreal, remonstrating against the (alleg3d) unfairness of the Acts of 1890, before referred to. Soon after the reference was made to the sub-committee, of the memorial of the " National Conp;res3, " and of the other merooiials just referred to, intimation was con- veyed to the sub-committee, by Mr. John S. Ewart, counsel for the Roman Catholic minority in Manitoba, that in his opinion, it was desirable that a further memorial, on behalf of that minority, should be presented, before the pending application should be dealt with, and action on the part of the sub-committee was therefore delayed until the further petition should come in. 61i i 9G8 MANITOBA LBOISLATION Late in November this supplementary memorial was received anfl referred to the sub-committee. It is signed by thH Archbishop of Saint Boniface, and by the president of the " National Congress," the Mayor of St. Boniface, and almut 137 others, and is presented in the name of the " Members of the Roman Catholic Church resident in the province of Manitoba." Its allegations are very similar to tho^te hereinbefore recited, as being contained in the memorial of congress, but there is a further contention that the two Acts of the legislative assembly of Manitoba, passed in 1890, on the subject of education, were " subversive of the rights and privileges of the Roman Catholic minority provided for by the statutes of Manitoba, prior to the passing of the said Acts of 1890, thereby violating both the British North America Act and the Manitoba Act." The last mentioned memorial urged : — (1.) That your Excellency might entertain the appeal and give directions for its proper consideration. (2.) That your Excellency should declare that the two Acts of 1890 (chapters 37 and 38), do prejudicially aftect the rights and privileges of the minority, with regard to denominational schools, which they had by law or practice, in the province, at the union. (3.) That it may be declared that the sai.l Acts affect the rights and privileges of Roman Catholics in relation to education. (4.) That a re-enactment may be ordered by your Excellency, of the statutes in force in Manitoba, prior to these Acts of 1890, in so far, at least, as may be necessary to secure for Roman Catholics in the province, the right to build, maintain, «kc., their schools, in the manner provided by such statutes, and to secure to them their propor- tionate share of any grant made out of public funds of the province for education, or to relieve such members of the Roman Catholic Church as contribute to such Roman Catholic schools, from payment or contribution to the support of any other schools ; or that these Acts of 1890 should be so amended as to effect that purpose. Then follows a general prayer for relief. In making their report the sub-committee will comment only upon the last me- morial presented, as it seems to contain, in effect, all the allegations embraced in the former petitions which call for their consideration, and is more specific as to the relief which is sought. < As to the request which the petitioners make in the second paragraph of their prayer, viz. : " That it may be declared that the said Acts (53 Vic, 37 and 38) do pre- judi( Uy affect the rights and privileges with regard to denominational schools which the 1 man Catholics had liy law or practice in the province of Manitoba at the time of th' ion," the sub-committee are of opinion that the judgment of the Judicial Commit- tee the Privy Council is conclusive as to the rights with regard to denominational schools which the Roman Catholics had at thf* time of the union, and as to the bearing thereon of the statutes complained of, and your Excellency is not, therefore, in the opinion of the sub-committee, properly called upon to hear an appeal based on those grounds. That judgment is as bind in;,' on your Excellency as it is on any of the parties to the litigation, and, therefore, if redress is sought on account of the state of affairs existing in the province at the time of the union, it must be sought elsewhere, and by other means than by way of appeal under the sections of the British North America Act and of the Manitoba Act, which are relied on by the petitioners as sustaining this appeal. The two Acts of 1890, which are complained of, must, according to the cpinion of the sub-committee, be regarded as within the powers of the legislature of Manitoba, but it remains to be considered whether the appeal should be entertained and heard, as an appeal against statutes which arf alleged to have encroached on rights and privileges with regard to denominational schools which were acquired by any class of persons in Munitoba, not at the time of the union, but after the union. The sub-committee were addressed by the coun>el for the petitioners as to the right to have the appeal heard, and from his arf;ument, as well as from the documents, it would seem that the following are the grounds of the appeal : — 53 VICTORIA, llj^O. 969 erred to the he president hers, and is ident in the contained in Acts of the oatiun, were )vided for by jhy violating ctions for its (chapters 37 ith regard to at the union, id privileges >e statutes in be necessary in, &o., their their propor- cation, or to duch Roman ir schools ; or the last me- araced in the to the relief [•aph of their id 38) do pre- schools which it the time of icial Commit- inominational o the bearing efore, in the sed on those jf the parties ;ate of affairs inhere, and by jrth America istaining this ;lie opinion of of Manitoba, and heard, as md privileges of persons in IS to the right documents, it A complete system of separate and denominational schools, i. «., a system providing for public Hchools and for separate Catholic schools, was, it is allegeci, established by statute of Manitoba in 1871 and by a series of subsequent Acts. The system was in operation until the two Acts of 1890 (chapters .'{7 and 38) were passed. The 93rd section of the British North America Act, in conferring power on the provincial legislatures, exclusively to make laws in relation to education, iniposeresented at the hearing, and they further recommend, with that view, that if this repci-t should be approved, a opy of any minute approving it, and of any minute fixing the date of the hearing with regard to thf^ appeal, be forwarded, together with copies of all the petitions referred to, to his Honour the Lieutenant- Governor of Manitoba, for the information of his Honour's advisers. In the opinion of the sub-committee, the attention of any j)erson who may attend on behalf of the petitioners, or on behalf of the provincial government, should be called to certain parliamentary questions which seem to arise with rfgard to the appeal. Among the questions which the sub-committee regard as preliminary are the following : — (1.) Whether this appeal is such an appeal as is contemplated by subsection 3 of section y3 of the British North America Act, or by subsection 2 of section 22 of the Manitoba Act. (?:) Whether the grounds set forth in the petitions are such as may be the subject of appu;>l under either of the subsections above referred to. (3.) Whether the decision of the Judicial Committee of the Privy Council in any way bears on th < application for redress based on the contention that the rights of the lloman Catholic mi. >ority which accrued to them after the union have been interferetl with by the two stat ates of 1 890 before referred to. (4.) Whether subsection 3 of section 93 of the British North America Act applies to Manitoba. (5.) Whether your Excellency in Council has power to grant such orders as are asked for by the petitioner, assuming the material facts to be as stated in the petition. (G.) Whether the Acts of Manitoba, pas.sed before the session of 1890, conferred on the minority a " right or privilege with respect to education," within the meaning of substfctiou 2 of section 22 of the Manitoba Act, or established " a system of separate or dissentient schools," within the meaning of subsection 3 of section 93 of the British North America Act, and if so, whether the two Acts of 1890, complained of, aflect "the right or privilege " of the minority in such a manner as to warrant the present appeal. Other questions of a like character may be suggested at the hearing, and it may be desirable that argum ;nts should be heard upon such preliminary points before any hearing shall take place on the merits of the appeal. ' Respectfully submitted. Jno. S. D. Thompson, J. A. Chapleau, M. BowELL, T. Mayne Daly, miitt.ee do piniun has ( kind, by I, no appli- ominion. •Ill a[iplica- II Council, present us rt of your ogardless to (lenonii- your Ex- Mtertained )eal can be Tlie 8ub- niceting to in addition itee advises ivith regard liould Iiave with that ; it, and of forwarded, jioutenant- y attend on 36 called to il. ry are the action 3 of 22 of the the subject in any way the lioman id with by A.ct applies derg as are I petition. )nferred on (leaning of leparate or ;he British iflect " the it appeal, it may be lefore any lAU, aa VICTORS, 1890. 971 Pursuant to the teriim of the Order in Council of the SOth DoconilMM', 1892, the appeal to the (lovernor Oentiral in Council was hoard on the 2lHt January, 1891!, in the Privy ('ouncil cliainbet. No rofiresentative whs present on Ixsliidf of the govciiinH'iit of Manitoba. Mr. J. S. Kwart, Q.C., counsel for the Most Hev. Archbishop ThcIu's and the Koinan Catholic minority of Manitoba, was heard upmi the points nientiijiicd in the report of the sub committee of Council, which was based upon the arguments addressed to them on l'6th November, 1892. The appeal having l)eeii considced by his Excellency in Council, the following Order was .ipproved on the l'2nd February, 1893. Order in Council, 22nd Fehrtiary, 1893. The Conniiittee of the the Privy Council, having considered the arguments advan- ced by Mr. Ewart on behalf on the petitioners in Manitoba who have requested redress from your Excellency with respect to certain statutes of that j)rovince relating to education, are of opinion that the important questions of law which were suggested in the report of the sub-committee, to whom said petitions wei'e referred, should be author- itatively settled before the appeal, which has lieen a.sserted by said petitions, be further proceeded with. The Committee, therefore advise that a case be prepared on this subject in accord- ance with the provisions of the Act, .'')4-55 Vic, chapter 25, and they recommend that if this report be approved, a copy their, t' be transmitted by telegraph to his Honour the Lieutenant-CTOvernor of Manitoba, and to John S. Ewart, Q.C., counsel for the petitioners, in order that, if they be so disposed, the government of Manitoba and the said counsel may ofibr suggestions as to the preparation of such a case, and as to the qu».:stions which should be embraced therein. JOHN J. M. GEE, C/irk of the Privy Council. in compliance with the terms of the Order in Council above mentioned, the follow- ing " Cajse," approved by order of His Excellency the Governor General in Council, dated 8th July, 1893, was, by Order in Council of the 31st J.vnuary, 1893, re.'erred to the Supreme Court for hearing and determination. Report of a Committee oj the UoHournble the I'rivi/ Council, approved by J/is Excllency the Governor (reneral in Council, on the Sth July, JS9S. On a report dated 7th July, 1893, from the Acting Minister of Justice, submitting that in conformity with an order of your Excellency in Council, dated 22nd April 1893, a draft case prepared for reference to the Supreme Court of Canada, touching certain statutes of the province of Manitoba i elating to education, and the memorials of certain petitioners in Manitoba complaining thereof, was communicated to the Lieuten- ant-Governor of Manitoba, and to Air. John S. Ewart, Q. C, counsel for the petitioners, for such suggestions and observations as they might respectively desire to make in relation to such case, and the (juestions which should be embraced therein. No reply has been received from the Lieutenant-Governor of Manitoba. Mr. Ewart, under date 4th May, 1893, has made certain observations and suggestions which he, the Minister, has had under consideration. The minister upon such consideration has made some amendments to the draft case which he submits for your Excellency's approval. The minister recouimends that the case asa^nended, copy of which is herewith sub- mitted, be approved by your Excellency, and thai copies thereof be transmitted to the Lieutenant-Governor of Manitoba and to Mr. Ewart, with the information that the 972 MANITOBA LEGISLATION SB'jie is the case which it is proposed hts of the Roman Catholic minority, which accrued to them after the ui ion under the statutes of the province, have bee i interfered with by the two statutes of 1890, complained of in the said |jetitions and memorials 1 (4.) Does subsection 3 of section 93 of the British North America Act, 1867, apply to Manitoba? (5.) Has his Excellency the Governor General in Council power to mak<^ the declarations or remedial orders which are asked for in the said memorials and petitions, assuming tlwe material facts to be as .stated therein, or has his Excellency the Governor General in Council any other jurisdiction in the premises? (6.) Did the Acts of Manitoba relating to education, passed prior to the session of 1890, confer on or continue to the minority a ' right or privilege in relation t'; education " within the meaning of subsection 2 of section 22 of the Manitoba Act, o establish a system of separate or dissentient schools within the meaning of subsection 3 of section 93 of the British North America Act, 1867, if said section 93 be found to be apf)licable to Manitoba; and if so, did tiie two Acts of 1890 complained of, or either of them, m^n IJanada touching vy Council. July, 1893. y the Governor utes of Canada, jhequer Courts," I Canada, passed I Act to amend ing the Supreme leral in Council, littee of Council f the legislature QiRmorials there- by made jtart of mperial, in any d all profeedings upreme Court of )f Barrett vh. the ns or judgments d to accordingly, of Canada being il above referred ns, and asserted 13 of the British mitoba Act, 33 as may be the to. or either of ticil in the ca?es ig, di-|)ose of, or le rij^hts of the the statutes of lomplaiiied of in rica Act, 1867, er to makii the Is and petitions, vj the Governor to the session of >nt'i education" , o establish a tion 3 of section to be applicable either of them, 53 VICTORIA, 1890. ;.3 aifect any right or privilege of the minority in such a manner that an appeal will lie thereunder to the Governor General in Council ? The case was presented to the court on the 4th October. 1893, and on the 17l.h it was argued by counsel on behalf of appellants, and other Roman Catholic inhabitants of the province of Manitoba. Counsel for Manitoba npneared, but did not address the court. At the request of the court, Mr. Chri«;copher Rooinson, Q.C., argued the case as to the interest of Manitoba. After hearng and consideration, the judges certified to the Governor General in Council their opinion on the questions as referred to the court, with their reasons therefor. The majority t>f the court were of opinion that no appeal would lie to the Governor General in Council from the statutes complained of. For the judgment of the Supreme Court see In Re certain statvtr.-^ of the province of Mwi- toba relating to education. Sup. C'l. Repts., Vol. XXII, p. 577. The appellants thereupon, o:i behalf of themselves and the rest of the Roman Catholic minority in Manitoba, presented a petition to the Queen in Council for special leave to appeal from this decision of the Supreme Court. Such special leave haying been granted, the appeal vas heard by the Judicial Committee of the Privy Council on the 11th December, 1894, and following days. Mr. Edward Blake Q.C., M.P., and ^''r. J. S. Evvart, Q.C., appeared as Counsel for the appellants (the Roman Catholic min- roity) and Mr. Cozens K -'dy, Q.C., M.P., Mr. Haldane, Q.C., M.P., and Mr. Reginald Bray, as counsel for the respondent (The Attorney General of Manitoba.) On the 29th day of January, 189.5, the Lord's of the Judicial Committee delivered judgment, allowing the appeal and reversing the opinion of the Supreme Court of Can- ada. {For Copy of judgment, see Brophy el at ; vs. Attorney General, Manitoba. App. Cases 1895, p. 202.) IMPERIAL ORDER IN COUNCIL. At the Court at Osborne House, Isle of Wight, The 2nd day of February, 1895. Present : The Queen's Most Excellent Majesty. L. R. Lord President, Marquess of Ripon, Lord Chuiiioeriain, liord Ken.sington, Mr. Cecil Rhodes. WHEREAS there was this day read at the board a report from the Judicial Com- mittee of the Privy Council, dated the 29th January, 1895, in the words following, viz. : — "Your Majesty having been pleased by yo'ir General Order in Council of the 23id November, 1893, to refer unto this committee the matter of an Appeal from the Supreme Court of Canada, between Gerald F. Brophy, Noe Chevrier, Henry Napoleon Boire, Roger Goulet, Patrick O'Connor, Francis McPhillips, Frank J. Clark, Joseph Lecomte, Michael Hughes, Henry Brownrigg, Frank Brownrigg, Theophilus Tessier, L. Arthu; Leveque, Edmond Trudel, Jo.seph Honore Octavien Lambert, Jean Baptiste Poirier, George Couture, J. Ernest Cyr, Fran(;uis Jean David Dussault, Charle^ Fdouard Masse, Fran(;ois Hardis, Joseph Buron, Louis Fournier, Phileas Trudeau, Edouf ,d Guilbault, Romuald Gilbrault, Alphonse Phaneuf, W. Cleophas Gcrnifin, Edward " '.loyd, Louis Laventure and Louis J. Collin, all of the province of Manitoba, in tin I-'iiiinion of Canada, on behalf of themselves, and of all oi;.fr per.sor)s forming the Roman Catholic minoiity of Her Majesty's subjects in the said province, appellants, and the Attorney General of Jlani- tobii, respondent, and likewise the humble petition of the above named apjwllants netting forth that this is an appeal from cetrain opinions pronounced by the judges of the Supreme Court of Canada, on the 20th February, 1894 ; tliat the case in reference to which such opinions were rendered, was on the 7th July, 1893, referred by the Gov- „ 974 MANITOBA LEGISLATION ernor General of Canada in Council to the Supreme Court of Canada for hearing and consideration, pursuant to the provisions of an Act intituled " An Act respecting the Supreme and Exchequer Courts " (Revised Statutes of Canada, cap. 135) as amended by an Act of Canada, passed in 1891 (54-55 Vic, cap 25) : that,the questions involved in the case, and in this appeal turn upon the construction of certain sections of " The British North America Act, 1867 " and of "The Manitoba Act 1870" and upon the eflfect of certain statutes of the province of Manitoba, in relation to education in that province ; that tlie following questions were by the said case submitted for the opinion of the Supreme Court : — "(I.) Is the appeal referred to in the said memorials and petitions, and asserted thereby, such an appeal as is admissable by subsection 3, of section 93, of the British North America Act, 18G7, or by subsection 2 of section 22 of the Manitoba Act, 33 Victoria (1870), cap. 3, Canada? " " (2.) Are the grounds set foi th in the petitions and memorials such as may be the subject of appeal under the authority of the subsections above referred to, or either of them " 1 " (f'v) Does the decision of the Judicial Committee of the Privy Council in the cases of Barrett tw. The City of Winnipeg, and Logan vs. The City ot Winnipeg, dispose of or conclude the application for redress, based on the contention tiiat the rights of the Roman Catholic minority, which accrued to them after the union, under the statutes of the province, have been interfered with by the two statutes of 1890, complained of in the said petitions and memorials " ? "(4.) Does subsection 3 of section 93 of the British North America Act, 1867> apply to Manitoba " 1 "(5.) Has his Excellency the Governor General in Council power to make the declarations or remedial orders which are asked for in the said memorials and petitions, assummg the material facts to be as stated therein, or has his Excellency the Governor General in Council any other jurisdiction in the premises ' 1 " (6.) Did the Acts of Manitoba relating to education, passed prior to the session of 1890. confer on or continue 'o the minority a ' right or privilege in relation to educa- tion ' within the meaning of subsection 2 of section 22 of the Manitoba Act, or establish a system of separate or dissentient schools within the meaning of subsection 3 of section 9^ of the British North America Act, 1867,' if said section 93 lie found to be applicable to Manitoba ; and if so, did the two Act* of \890 complained of, or either of them, effect any right or privilege of the minority in such a manner that an appeal will lie therennder t'O the Governor General in Council ? thiit, connse.l for the appellants and for other Roman Catholic subjects of Her Majesty in the province of Manitoba and counsel for the province of Manitoba appeared before the Supreme Court, as did also the Solicitor General of Canada, who appeared to submit the case on behalf of Her Majesty's Crown : that the counsel for the province of Manitoba not desiring to be heard, the Supreme Court pursuant to section 4 of the Act of 1891, hereinbefore referred to, re- quested counsel to argue the case in the interest of the said province and counsel there- upon appeared and argued the case for the said province as did also counsel for the appellants and other Roman Catholics as aforesaid, but the Solicitor General for Canada did not desire to bo heard : that the case came on for argument before five judges of the Supremo Court who on the 20th February, 1894, delivered their opinions thereon in the manner provided by the statute : that in the result the opinions of the judges of the Supreme Court showed a majority of three judges out of five for a negative answer to all the six questions submitted for the opinion of the Supreme Court : that the appellants feeling aggrieved by the said opinions presented a petition to your Majestv in Council, praying for special leave to appeal therefrom to your Majesty in Council and by your Majesty's Order in Council of the 27th June, 1894, leave to appeal was granted accordingly upon condition that the appellants should deposit the sum of X300 sterling in the registry of the Privy Council, as security for costs : that the said sum was deposited accordingly, and humbly praying that your Majesty in Council, will be pleased to take their said appeal into consideration, and that the said opinions of 53 VICTORIA, 1890. 975 earing and pecting the IS amended ns involved ns of "The i upon the ion in that the opinioa nd asserted the British iba Act, 33 may be the o, or either in the cases ;, dispose of ghts of the lie statutes raplained of Act, 1867, to make the d petitions, le Governor the session in to educa- or establish 3 of section le applicable ler of them, ppeal will lie nellants and anitoba and did also the 5r Majesty's 3 heard, the ^rred to, re- unsel there- asel for the jreiiet-al for before five eir opinioiis ions of the ' a negative ;.'ourt : that ion to your AInjesty in .'e to appeal ' the sum of mt the said Council, will opinions of judges of the Supreme Court of Canada of the 20th February, 1894, may be reversed or varied, or for other relief in the premises." Tiie lords of the committee in obedience to your Majesty's said general order of reference, have taken the said humble petition and appeal into consideration, and having heard counsel for the parties on both sides, their lordships do this day agree humbly to report to your Majesty as their opinion that the said questions hereinbefore set forth ought to be answered as follows : (1.) In answer to the first question : — That the appeal referred to in the said memorials and petitions, and asserted thereby is such an appeal as is admissible under subsection 2 of section 22 of the Manitoba Act, 33 Vict. (1870), c. 3, Canada. (2.) In answer to the second question; — That grounds are set forth in the petitions and memorials, such as may be the subject of appeal under the authority of the sub- section of the Manitoba Act immediately above referred to. (3.) In answer to the third question : — That the decision of the Judicial Com- mittee of the Privy Council in the cases of Barrett v. The City of Winnipeg, and Logan v. The C'ifi/ of Wiiiniptfj/ does not dispose of, or conclude, the application for redress based on the contention that the rights of the Roman Catholic minority, which accrued to them after the union under the statutes of the province, have been in- terfered with by the two statutes of 1890 complained of in the said petitions and memorials. ('t.) In answer to the fourth question : — That subsection 3 of section 93 of the British North America Act, 186r, does not apply to Manitoba. (5.) In answer to the fifth question : — That the Governor General in Council has jurisdiction, and the appeal is well founded, but that tiie particular course to be pursued must be determined by the authorities to whom it has been committed by the statute ; that the general character of the steps to be taken is sufficiently defined by subsection 3 of section 22 of the Manitoba Act, 1870. (6.) In answer to the sixth question ; — That the Acts of Manitoba relating to education passed prior to the session of 1890 did confer on the minority a right or privilege in relation to education within the meaning of subsection 2 of section 22 of the Manitoba Act, which alone applies ; that the two Acts of 1890 complained of did afiect a right or privilege of the minority in such a manner, that an appeal will lie there- under to the Governor General in Council. And in case your Majesty should be pleased to approve of this report, then their lordships do direct that the parties do beai' their own costs of this appeal, and that the sum of X300 sterling so deposited by the appellant' as nt'oresaid, be repaid to them." Her Majesty having taken the said report i ■ con.fideration, was pleased by and with the advice of Her Privy Council to approve lliereof and to order as it is hereliy ordered that the recommendations and directions therein contained be punctually observed, obeyed, and carried into effect in each and every jiaiticular. Whereof the Governor General of the Dominion of Canada for the time hi iiig, and all oihei persons whom it may concern are to take notice and govern themselves accordingly. C. L. PEEL. After the hearing and determination of the said questions by Hn Majesty in Council, the appeal of the Roman Catholic minority of the Queen's subjects, in the province of Manitoba, against the two statutes complained of, was heard iiefore His Excellency the Governor General in Council, of the 20th February and on the 5tli, 6th and 7th of March, 1895, counsel for the Roman Catholic minority and for the juovince of Manitoba having been heard, and the appeal considered, the following Kemedial Order in Council was approved by his Excellency : — .^ 976 MANITOBA LEGISLATION REMEDIAL ORDER IN COUNCIL. At the Government House at Ottawa, Tuesday, the 19th day of March, 1895. Present : His Excellency the Governor General in Council. The committee of the Privy Council have the honour to report that by the Act passed by the parliament of Canada in the thirty-third year of Her Maje.sty's reign, chapter three, intituled : " An Act to amend and continue the Act 32 and 33 Victoria, chapter 3, and to establish and provide for the government of the province of Manitoba (commonly called and hereinafter cited as the Manitoba Act") which Act was confirmed by "The British North America Act, 1871 " (34-35 Vic, chap. 28, Imp.) it is provided that: " In and for the province of Manitoba the said legislature of the province may exclusively make laws in relation to education, subject and according to the following provisions : 1. " Nothing in any such law shall prejudicially aifect any right or privilege with respect to denominational schools which any class of persons have by law or practice in the province at the union. 2. " An Appeal shall lie to the Governor General in Council from any Act or c^ecision of the legislature of the province or of any provincial authority, aflecting any right or p?ivilege of the Protestant or Roman Catholic minority of the Queen's subjects in relation to education. 3. " In case any such provincial law as from time to time seems to the Governor General in Council requisite for the due execution of the provisions of this section, is not duly executed by the proper provincial authoiity in that behalf, then and in every such case, and as far only as the circumstances of each case require, the parliament of Can.ada may make remedial laws for the due execution of the provisions of this section, and of any decision of the Governor General in Council under this section." That by certain Acts of the legislature: of the province of Manitoba passed after the Union, and by an Act passed by the said legislature in the forty-fourth year of Her Majesty's reign, chapter four, which may be cited as "The Manitoba School Act" and by the Acts amending the same, the Roman Catholic minority of Her Majesty's subjects in Manitoba acquired the rights and privileges in relation to education thereby conferred upon them, including the rights to build, maintain, equip, manage, conduct and support Ronan Catholic schools in the manner provided by the said statutes, the right to a proportionate share of any grant made out of the public funds for the purpose of education, and the right of exemption of such members of the Roman Catholic Church, as contribute to such Roman Catholic schools from all payments or contributions to the support of any other schools. ^ That subsequently in the fifty-third year of Her Majesty's reign two statutes were passed by the legislature of the province of Manitoba relating to education, which statutes came into force on the first day of May, 1890, and aii' intituled respectively " An Act respecting the Departuient of Education" and " An Act respecting Public Schools. That the Roman Catholic minority of Her Majesty's subjects in Manitoba considered , that by the two statutes last mentioned, the aforesaid rights and privileges were afl'ected, and that such minority was thereby deprived of said rights and privileges. That the said Roman Catholic minority thereupon appealed from the said two statutes last mentioned to the Governor General in Council, and by a petitiqn presented on the 26th day of November, 1892, after .sotting out the facts of the case, prayed as follows : — " That his Excellency the Governor General in Council might entertain the appeal, and might consider the same, and might make such provision and gi \ e gucli directions for the hearing and consideration of the said appeal as might be thought proper. 53 VICTORIA, 1890. 977 b}' the Act jesty's reign, er 3, and to monly called The British »rovince may he following rivilege with r practice in t or decision any right or 3 subjects in he Governor ection, is not n every such it of Canixda ;tion, and of passed after urth year of School Act' er Majesty's .tion thereby age, conduct statutes, the ■ the purpose lolic Church, itions to the tatutes were hich statutes ly " An Act Schools, a considered ^ere afi'ected, s. That the itatntes last on the 26th lows : — I the appeal, lirections for 2. " That it might be declared that the said Acts (53 Victoria, chapters 37 and 38) do prejudically affect the rights and privileges with regard to denominational schools, which Roman Catholics had by law or practice in the province at the union. 3. " That it might be declared that the said last mentioned Acts do affect the rights and privileges of the Roman Catholic minority of the Queen's subjects in relation to education. 4. " That it might be declared that to his Excellency the Governor General in Council, it seems requisite that the provisions of the statutes in force in the province of Manitoba, prior to the passage of the said Acts, should be re-enacted in so far at least as may be necessary to secure to the Roman Catholics in the said province the right to build, maintain, equip, manage, conduct and support these schools in the manner provided for by the said statutes, to secure to them their proportionate share of any grant maae out of the public funds for the purposes of education, and to relieve such members of the Roman Catholic Church as contribute to such Roman Catholic schools, from all payment or contribution to the support of any other schools, or that the said Acts of 1890 should be so modified or amended as to efiect such purposes. 5. " And that such further or othei- declaration or order might be made, as to his Excellency the Governor General in Council might, under the circumstances, seem proper, and that such direction might be given, provisions made and all things done in the premises, for the purpose of affording relief to the said Roman Catholic minority in the said province, as to his Excellency the Governor General in Council might seem meet." That the said petition was referred by the Governor General in Council to a sub- committee of Council. The sub-committee sat on the 26th day of November, 1892, when Mr. Ewart, Q.C., on behalf of the Roman Catholic minority, presented the said petition and stated reasons in support of the right of appeal. That the report of the sub-committee thereon was approved by order of his Excellency in Council on the 29th day of December, 1892, and the 21st day of January, 1893, was then fixed as the day on which the parties concerned should be heard, with regard to the appeal. In the said report of the sub-committee, it is stated as follows : — As to the request which the p'titioners make in the second paragraph of their prayer, viz. : — "That it may be declared that the said Acts (53 Vic, chapters 37 and 38) do prejudicially affect the rights and privileges with regard to denominational schools which the Roman Catholics hfid by law or practice in the province of Manit^jba at the time of the union," the sub-committee are of opinion that the judgment of the Judicial Committee of the Privy Council is conclusive as to the rights with regard to denomina- tional schools wiiich the Roijirtn Catholicy had at the time of the union, and as to the bearing thereon of the statutes complained of, and your Excellency is not, therefore, in the opinion of the sub-comniittee, properly called upon to hear an appeal based on those grounds. That judgment is as binding on your Excellency as it is on any of the parties to the litigation, and, therefore, if redress is sought on account of the state of affairs existing in the province at the time of the union, it must be sought elsewhere, and by other means than by way of appeal under the sections of the British North America Act and of the Manitoba Act, which are relied on by the petitioners as sustain- ing this appeal. The two Acts of 1890, which are complained of, must, according to the opinion of the sub-committee, be regarded as within the powers of the legislature of Manito' a, but it remains to be considered whether the appeal should be entertained anu heaid as an appeal against statutes wnich are alleged to h ive encroached on rights and privileges with regard to denominational scbools which were acquired by any class of persons in Manitoba, not at the time of the union, but after the union. The subcommittee were addressed by counsel for the petitioners as to the right to have the appeal heard, and from his argument, as well as from the documents, it would seem that the following are the grounds of the appeal. A complete system of separate and denominational schools, i.e. a system providing for public schools and for separate Catholic schools, was, it is alleged, established by statute of Manitoba in 1871 and by a series of subsequent Acts. That system was in operation until the two Acts of 1869 (chapters 37 and 38) were passed. 978 MANITOBA LEGISLATIOX The 93nl section of the British North America Act, in conferring power on the provincial legislatures, exclusively, to make laws in relation to education, imposed on that power certain restrictions, one of which was (subsection 1) to preserve the right with respect to denominational schools, which any class of persons had by law in the province at the union. As to this restriction it seems to impose a condition on the validity of any Act relating to educatitm, and the sub-committee have already observed that no question, it seems to them, can arise, since the decision of the Judicial Cjm- mittee of the Privy Council. The third subsection, however, is as follows : — " Where in any province a system of separate or dissentient schools exists by law at the union, or is thereafter established by the legislature of the province, an appeal shall lie lo the Governor General in Council, from any Act or decision of any provincial authority, affectini? any right or privilege of the Protestant or Roman Catholic minority of the Queen's ^ubjects in relation to education." The Manitoba Act passed in 1870, by which the province of Manitoba was constituted, contains the following provisions, as regards that province : — By section 22 the power is conferred on the legislature, exclusively, to make laws in relation to education, but subject to the following restrictions : 1. " Nothing in any such law shall prejudicially affect any right or privilege with respect to denominational schools which any class of persons have, by law or practice, in the province, at the union." This restriction, the sub-committee again observe, has been dealt with by the judgment of the Judicial Committee of the Privy Council. Then follows : — 2. " All appeal shall lie to the Governor General in Council from any Act or decision of the legislature of the province, or of any provincial authority, affecting any right or privilege of the Protestant or Roman Catholic minority of the Queen's subjects in relation to education." It will be observed that the restriction contained in subsection 3, is not identical with the restriction of subsection 3 of the 93rd section of the British North America Act, and questions are suggested, in view of this difference, as to whether subsection 3, of section 93 of the British North America Act. applies to the Manitoba Act, and if not, whether subsection 2, of section 22 of the Manitoba Act, is sufficient to sustain the case of the appellants ; or, in other words, whether in regard to Manitoba, the minority has the same protection against laws which the legislature of the province has power to pass, as the minorities in other provinces have under the subsection before quoted from the British North America Act, as to separate or denominational schools estab- lished after the union. The argument presented by counsel on behalf of the petitioners was, that the present appeal comes before your Excellency in Canada, not as a request to review the decision of the J udicial Committee of the Privy Council, but as a logical consequence and result of that decision, inasmuch as the remedy now sought is provided by the British North America Act, and the Manitoba Act, not as a remedy to the minority against statutes which interfere with the rights which the minority had at the time of the union, but as a remedy against statutes which interfere with rights acquired by the minority after the union. The remedy, therefore, which is sought, is against Acts which are hitra vires of the provincial legislature. His argument is also that the appeal does not ask your Excellency to interfere with any rights or powers of the leg- islature of Manitoba, inasmuch as the power to legislate on the subject of education has only V)een conferred on that legislature, with the distinct reservation that your Excellency in Council shall have power to make remedial orders against any such legis- lation which infringes on the rights acquired after the union by any Protestant or Roman Catholic minority in relation to separate or dissentient schools, f Upon the various questions which arise on these petitions the sub-committee do not feel called upon to express an opinion, and so far as they are awaro, no opinion has been expressed, on any previous occasion in this case or any other of a like kind, by lower on the , imposed on •ve the right )y law in the lition on tlie vdy observed udicial Cjin- xists by law e, an appeal ly provincial lie minority anitoba was o make laws rivilege with or practice, with by the any Act or iffecting any en's subjects not identical rth America subsection 3, t, and if not, ;ain the case the minority ce has powor efore quoted chools estab- •■as, that the 3 review the consequence ided by the ihe minority the time of lired by the ?ainst Acts so that the of the leg- ucation has that your ' such legis- t or Roman mmittee do opinion has :e kind, by your Excellency's government or any other government of Canada. Indeed, no appli- cation of a parallel character has been made since the establishment of the Dominion. The application comes before your Excellency in a manner differing from appli- cations which are ordinarily made, under the constitution, to your Excellency in Council. In the opinion of the aub-committee, the application is not to be dealt with at present as a matter jf a political character, or involving political action on the part of your Excellency's advisers. It is to be deidt with by your Excellency in Council, regardles.x of the personal views which your Excellency's advisers may hold with regard to deno- minational schools, and without the political action of any of the members of your Ex- cellency's Council being considei-ed, as pledged by the fact of the appeal being enter- tained and heard. If the contention of tlie petitioners be correct, that such an appeal can be sustained, the inquiry will be rather of a judicial than a political character. The sub-committee have so treated it in hearing counsel, and in permitting their only meet- ing to be open to the public. It is apparent thiit several other (juestions will arise, in addition to those which were discussed by counsel at that meetinL', and the sub-com- mittee advise that a date be fixed, at which the petitioners, or their counsel, may he heard with regard to the appeal, according to their first request. The snb-com;nittee think it proper that the govei nment of Manitoba should have an opportunity to be represented at the hearing, and they further recommend, with that view, that if this report should be approved, a copy of any minute approving it, and of any minute fixing the date of the hearing with regard to the appeal, be forwarded, to- gether with copies of all the petitions referred to, to his Honour the Lieutenant- Governor of jNlanitoba, for the information of his honour's advisers. In the opinion, of the sub committee, the attention of any person who may attend on behalf of the petitioners, or on behalf the piovinoial government, should be called to certain preliminary questions which seem to arise with regard to the appeal. Among the questions which the sub-committee regard as prelimiuary are the fol- lowing : — (1.) Whether this appeal is such an appeal as is contemplated by subsection 3 of section 93 of the British North America Act, or by subsection 2 of section 22 of the Manitoba Act. (2.) Whether the grounds set forth in the petitions are such as may be the subject of appeal under either of the subsections above referred to. (3.) Whether the decision of the Judicial Committee of the Privy Council in any way bears on the applicalion for redress, based on the contention that the rights of the Roman Catholic minority which accrued to them after the union, have been interfered •with by the two statutes of 1890 before referred to. (4.) Whether subsection 3 of section 93 of the British North America Act applies to Manitoba. (5.) Whether your Excellency in Council has power to grant such orders as are asked for by the petitioner, assuming the material facts to be as stated in the petition. (6.) Whether the Acts of Manitoba, passed before the session of 1890, conferred on the minority a " right or privilege with respect to education," within the meaning of subsection 2 of section 22 of the Manitoba Act, or established "a system of separate or dissentient schools," within the meaning of subsection 3 of section 93 of the British North America Act, and if so, whether the two Acts of 1890, complained of, affect " the right or privilege " of the minority in such a manner as to warrant ihe present appeal. Other questions of a like character may be suggested at the hearing, and it may he desirable that arguments should be heard upon such preliminary points before any hear- ing shall take place on the merits of the appeal. That such appeal accordingly came on for hearing before the Governor General in Council on the 21st day of January, 1893, '\. the presence of counsel for the Roman Catholic minority, the province of Man'*- ',&, though duly notified, not appearing and when after hearing what was alleged cu behalf of the Roman Catholic minoritv, it was considered that certain questions of law arising upon the appeal should be referred to the Supreme Court of Canada for hearing and consideration, pursuant to the Supreme and Exchequer Courts Act (Revised Statut-^s pi Canada, chapter 135) as amended by vjfl' 980 MANITOBA LEGISLATION the Act of 1891 (54-55 Victoria, cap. 25), and that the further hearing should be adjourned until the advice of the court had been obtained thereon. That pursuant to the Supreme and Exchequer Court Acts as so amended, the fol- lowing questions were therefore referred to the Supreme Court of Canada by the Gov- ernor General in Council, namely : — (1.) "Is the appeal referred to in the said memorials and petitions and asserted thereby, such an appeal as is admiss ble by subsection 3 of section 93 of ' The British Ncith America Act, 1867,' or by subsection 2 of section 22 of *The Manitoba Act,' 33 Victoria (1870), chapter 3 of Canada 1 (2.) " Are the grounds set forth in the petitions and memorials such as may be the subject of appeal under the authority of the subsections above referred to, or either of them ?" (3.) " Does the decision of the Judicial Committee of the Privy Council, in the case of Barret vs. The City of Winnipeg, and Logan vn. The City of Winnipeg, dispose of or conclude the application for redress based on the contention that the rights of the Roman Catholic minority which accrued to them after the union, under the statutes of the province, have been interfered with by the two statutes of 1890, complained of in the said petitions and memorials ?" (4.) " Does the subsection 3 of section 93 of ' The British North America Act, 1867,' apply to Manitoba?" (5.) "Has his Excellency the Governor General in Council power to make the declarations or remedial orders which are asked for in the said memorials and petitions, assuming the m iterial facts to be as stated therein, or has his Excellency the Governor General in Council any other jurisdiction in the premises? (6.) " Did the Acts of Manitoba relating to education, passed prior to the session of 1890, confer on or continue to the minority a "right or privilejje in relation to educa- tion " within the meaning of subsection 2 of section 22 of ' The Manitoba Act,' or estab- lish a system of separate or dissentient schools within the meaning of subsection 3 of section 93 of 'The British North America Act, 1867,' if said section 93 be found to be applicable to Manitoba ; and if so, did the two Acts of 1890 complained of, or either of them, affect any right or privilege of the minority in such manner that an appeal will lie thereunder to the Governor General in Council ? " That upon the hearing of the said reference b''fore the Supreme Court of Canada, counsel for the Roman Catholic minority of Her Majesty's subjects in the province or" Manitolja, and counsel for the province ot Manitoba appeared before the Supreme Court, as did also the Solicitor General for Canada, who appeared to submit the case on behalf of Her Majesty's Crown ; that the counsel for the province of Manitoba not desiring to be heard, the Supreme Court pursuant to section 4 of the Act of 1891, hereinbefore referred to requested counsel to argue the case in the interest of the said province, and counsel thereupon appeared and argued the case for the said province as did also counsel for the Roman Catholic minority as aforesaid. That the case came on for argument before five judges of the Supreme Court, who on the 20th February, 1894, delivered their opinions thereon in the manner provided by the statutes : That in the result the opinions of the judges of the Supreme Court showed a majority of three judges out of five for a negative answer to all the six questions submitted for the opinion of the Supreme Court : That the Roman Citholic minority foiling aggrieved by the said opinions, presented a petition to Her Majesty in Council, praying for special leave to appeal therefrom to Her Majesty in Council and Her Majesty's Order in Council of the 27th June, 1894, leave to appeal was granted accordingly. That such appeal to Her Majesty in Council was duly perfected, and was heard before the Judicial Committee of Her Mijesty's Privy Council on 1 1th, 12th and 13th days of December, 1894, counsel being then heard both on behalf of the appellants and the province of Manitoba, and on the 29th day of January following, the lords of the Judicial Committee delivered judgment allowing the appeal, and reversing the opinion of the Supreme Court of Car ada, their lordships stating that they were unable to see how the question as to whether a right or privilege which the Roman Catholic minority pre- ig should be ded, the fol- hy the Gov- and asserted ' The British mitoba Act,' may be the or either of 1, in the case ispose of or ights of the e statutes of ned of ill the Lmerica Act, make tlie nd petitions, he Governor ihe session of >n to educa- LCt,' orestab- section 3 of found to be or either of ppeal will lie t of Canada, 1 province of areme Court, ise on behalf not desiring hereinbefore irovince, and also counsel 3r argument 4, delivered le result the dges out of inion of the by the said icial leave to n Council of I was heard th and 13th pellants and lords of the le opinion of ? to see how linority pre*- viously enjoyed had been affected by the legislation of 1 890, could receive any but an iirtirmative answer, and added : "Contrast the position of the Roman Catholics prior and subsequent to the Acts from which they appeal. Before these passed into law, there existed denominational schools of which the control and management were in the hands of Roman Catholics, who could select the books to be used and determine the character of the religious teach- ings. These schools received their proportionate share of the money contributed for school purposes out of the general taxation of the province, and the money raised for those purposes by local assessment was, so far as it fell upon Catholics, ap{)lied only towards the support of Catholic schools. What is the position of the Roman Catholic minority under the Acts of 1890 ? Schools of their own denomination, conducted accord- ing to their views, will receive no aid from the state. They must depend entirely for their support upon the contributions of the Roman Catholic community, while the taxes out of which state aid is granted to the schools provided for by the statute, fall alike on Catholics and Protestants. Moreover, while Catholic inhabitants remain liable to local assessment for school purpo'ses, the proceeds of that assesment are no longer destined to any extent for the support of Catholic schools, but afford the means of maintaining schools, which they regard as no more suitable for the education of Catholic children, than if they were distinctly Protestant in their character. « " In view of this comparison, it does not seem possible to say that the rights and privileges of the Roman Catholic minority in relation to education which existed prior to 1890, have not been affected." Their lordships also stated : — " As a matter of fact the objection of Roman Catholics to schools such as alone receive state aid under the Act of 1890, is conscientious and deeply rooted. If this had not been so, if there had been a system of public education acceptable to Catholics and Protestants alike, the elaborate enactments which have been the subject of so much controversy and consideration, would have been unnecessary. It is notorious that there were acute differences of opinion between Catholics and Protestants on the education question prior to 1870. This is recognized and emphasized in almost every line of those enactments. There is no doubt either what the points of difference were, and it is in the light of these that the 22nd section of * The Manitoba Act' of 1870, which was in truth a parliamentary compact, must be read." And in conclusion their lordships added : — *' For the reasons which have been given, their lordships are of opinion that the 2nd subsection of section 22 of ' The Manitoba Act ' is the governing enactment, and that appeal to the Governor General in Council was admissible by virtue of that enactment, on the ground set forth in the memoiials and petitions, inasmuch as the Acts of 1890 affected rights or privileges of the Roman Catholic minority in. relation to education within the meaning of tnat subsection. The further question i } submitted whether the Governor General in Council has power to make the declara^.ious or remedial orders asked for in the memorials or petitions, or has any other juriadi^tion in the premises. Their lordships have decided that the Governor General in Council has jurisdiciiion, and that the appeal is well founded, but the particular course to be pursued must be determined by the authorities, to whom it has been committed by the statute. It is not for this tribunal to intimate the precise steps to be taken. Their general character is sffiuciently defined by the 3rd subsection of section 22 of ' The Manitoba Act.' " It is certainly not essential that the statutes repealed by the Act of 1890 should be re-enacted, or that the precise provisions of these statutes should again be made law. The system of education embodied in the Acts of 1890 no doubt oommends itself, to and adequately supplies the wants of the great majority of the inhabitants of the province. All legitimate ground of complaint would be removed if that .system were supplemented by provisions, which would remove the grievance upon which tha appeal is founded, and were modified so far as might be necessary to give effect to these provisions." The Lords of the Committee thereupon reported to Her Majesty that the said ques- tions hereinbefore set forth ought to be answered as follows : — 62 982 MANITOHA LECII8LAT10N I 1. "In answer to the first question : That the appeu. referred to in the said mem- orials and petitions and asserted thereby, is sucii an appeal as is admissible under sub- section 2 of section 22 of 'The Manitoba Act,' 33 Victoria (1870) chapter 3, Canada. 2. " In answer to the second (juestion : That grounds are set forth in the petitions and memorials such as may be the subject of appeal under the authority of the sub- section of ' The Manitoba Act ' above referred to. 3. " In answer to the third question : That the decision of the Judicial Committee of the Privy Council in the cases of Barrett vs. The City of Winnipeg and Logan vs. The City of Winnipeg, does not dispose of or conclude the application for redress, based on the contention that the rights of the Roman Catholic minority, which accrued to them after the union under the statutes of the province, have been interfered with by the two statutes of 1890, complained of in the said petition and memorials. 4. *' In answer to the fourth question : That subsection 3 of section 93 of ' The British North American Act 1867,' did not apply to Manitoba. 5. " In answer to the fifth question : That the Governor General in Council has jurisdiction and the appeal is well founded, but that the particular course to he pursued must be determined by the authorities to whom it has l)een committed by the statute ; that the general character of the steps to be taken is sufficiently defined by subsection 3 of section 28 of 'The Manitoba Act' of 1870. 6. "In answer to the sixth question : That the Acts of Manitoba relating to education pa»ssed prior to the session of 1890, did confer on the minority a right or privilege in relation to education within the meaning of subsection 2 of section 22 of ' The Manitoba Act ' which alone applies ; that the two Acts of 1890 complained of did affect a right or privilege of the minority in such a manner that an appeal will lie thereunder to the Governor General in Council." And Her Majesty at the court at Osborne House in the Isle of Wight, on the 2nd day of February, 1895, after taking the said report into consideration was pleased, by ant' with the advice of Her Majesty's Privy Council to approve of the said report of the Lords of the Committee, and to order that the " recommendation and directions therein contained be punctually observed, obeyed and carried into effect in each and every particular, whereof the Governor General of the Dominion of Canada for the time being and all other persons whom it may concern, are required to take notice and govern themselves accordingly," That, after the determination of the said questions by Her Majesty in Council, as aforesaid, the said appeal of the Roman Catholic minority of Her Majesty's subjects in Manitoba from the two statutes of the legislature of the province of Manitoba herein- before mentioned came on for further hearing before your Excellency in Council on the 26th day of February, and the 5th, 6th and 7th days of March, 1895, in the presence of counsel both for the Roman Catholic minority of Her Majesty's subjects in the province of Manitoba and for the said province ; and the committee having heard and considered what was alleged by counsel on both sides as well as the judgment of their lordships of the Judicial Committee of the Privy Council is of opinion that effect should be given to the said appeal, and that the said appeal should be allowed, in so far as it relates to rights acquired by the said Roman Catholic minority under legislation of the province of Manitoba, passed subsequently to the union of the province with the Dominion of Canada. The committee therefore recommend that the said appeal be allowed, and that your Excellency in Council do adjudge and decide that, by the two Acts passed the legisla- ture of the province of Manitoba on the 1st day of May, 1890, intituled respectively " An Act respecting the Department of Education," and " An Act respecting the Public Schools," the rights or privileges of the Roman Catholic minority of the said province in relation to education, prior to the 1st day of May, 1890, have been affected, by depriv- ing' the Roman Catholic minority of the following rights and privileges, which previous to and until the 1st day of May, 1890, such minority had, viz. : (a.) The right to build, maintain, equip, manage, conduct and support Roman Catholic schools in the mannei provided for by the said statutes, which w.n-e repealed by the two Acts of 1890 aforesaid. said mem- under 8ub> 3, Canada, e petitions of the Hul> Committee I Logan vs. ress, based accrued to with by )d 13 of Council has be pursued he statute ; subsection ;o education 3rivilege in le Manitoba ect a riglit ider to the on the 2nd pleased, by report of Id directions In each and for the time 9 and govern Council, as i subjects in toba lierein- uncil on the he presence jects in the g heard and 3nt of their jflFect should I so far as it lation of the e with the id that your the legisla- respectively g the Public id province , by depriv- ich previous port Roman 're repealed 53 vicTOiUA, 1890. 983 (/>.) The right to share proportionately in any grant made out of the pu)>Iic funds for the purposes of education. (c.) The right of exemption of such Uoman Catholics as contribute to lloinan Catholic schools, front all payment or contribution to the support of any other schools. And the committee also recommended that your Kxcellency in Council do further declare and decide tliat for the due execution of the provisions of section 22 of " Tlie Manitoba Act," it seems requisite that the system of education etnbodied in the two Acts of 1890 aforesaid should be supplemented by a Provincial Actor Acts which would restore to the Roman Catholictminority the said rights and privileges, of which such minority has been so deprived as aforesaid, and which would mcxlify the said Acts (jf 1890 so far, and so far only, as may lie necessary to give effect to the provisions restoring the rights and privileges in paragraphs (a), (b) and (c) heroin before mentioned. The committee desire to add that : Their lordships of the Judicial Committee state in tlieir judgment : — " Bearing in mind the circumstances which existed in 1870, it does not appear to their lordships an extravagant notion, that in creating a legislature for the province with limited powers, it should have been thought expedient in case either Catholics or Protestants became predonderant, and rights which had come into existence under different circumstances were interfered with, to give the Dominion Parliament power to legislate upon matters of education, so far as was necessary to protect the Protestant or Catholic minority as the case might be." In the opinion of the committee, " The Manitoba Act " as construed with regard to the present case by the Judicial Committee of Her Majesty's Privy Council, so clearly points to a duty devolving upon your Excellency in Council, that no course is open con- sistent with both the letter and the spirit of the constitution, other than that recom- mended. To dismiss this appeal would be, not only to deny to the Roman Catholic minority rights substantially guaranteed to them under the constitution of Canada, but in truth such a course might involve the declaration on the part of your Excellency in Council that this provision of the constitution for the protection of the rights of certain of Her Majesty's subjects in Manitoba should not, in any case, be acted upon ; and further, the committee do not perceive upon what principle, consistently with a declara- tion that effect is to be given to this appeal, the Protestant or Roman Catholic minority in Quebec or Ontario could invoke the corresponding provision of section 93 of " The British North America Act," in case of any Provincial Act or decision affecting their rights or privileges. If your Excellency should see fit to approve of the foregoing recommendation, the Committee desire to state that it follows, that refusal or neglect on the part of the legis- lature of Manitoba to enact remedial legislation which to your Excellency in Council seems requisite, will confer upon parliament authority to pass such a law. In this connection, it was urged by counsel on behalf of the province that, should parliament legislate under these circumstances, its enactment would be absolute and irrevocable, so far as both parliament and the provincial legislature are conceined. The committee, without necessarily adopting this view, observe that section 22 of " The Manitoba Act " may admit of that construction. The committee, therefore, recommend that the provincial legislature be requested to consider whether its action, upon the decision of your Excellency in Council, should be permitted to be such as while refusing to redress a grievance, which the highest court in the empire has declared to exist, may compel parliament to give the relief of which, under the constitution, the provincial legislature is the proper and primary source, thereby according to this view, permanently divesting itself in a very large measure of its authority, and so establishing in the province an educational system which no matter what changes may take plac«j in the circumstances of the country, or the views of the people, cannot be altered or jepealed by any legislative body in Canada. The committee further, and for the reasons hereinbefore stated, recommend that if your Excellency in Council should be pleased to approve of this report, your Excellency in Council do make an order in the premises in the form and to the effect as set forth hereunto submitted, and that a certified copy of this minute and of the said order be 62i J 984 MANMTOIIA I,K(il8LATI0N. transmitted to his Honour the Linutenant-CJovornor of Manitoba for his int'orination, and that of hi.s ^'ov»>rninent and provincial le){iHlature, alHO that a oei titled copy of this minute of the said order he transmitted to Mr. Ewari, Q.O., of Winnipeg, as repre- senting tlie llonuiii Catholic minority of Her Majesty's subjects \fi Manitoba. All of which is respectfully s bmitted for your Excellency's approval. JOHN J. McCJEE. Clerk of the Queen's I'riiyy Council for Canada. ABERDEEN. Privy At the Govkrnment House at Ottawa, Thursday, the 21st day of March, 1895. Present : His Exf'ELIENCY THE (iOVERNOR GENERAL. The Honourable Sir Mackenzie Howell. The Honourable J. A. Ouimet. Sir Adolphe P. Oa'-on. T. Mayne Daly. John Costigan. A. R. Angers. George E. Foster. W. B. Ives, Sir Charles Hibbert Tupper. A. R. Dickey. John Haggart. W. H. Montague. In Council. Whereas, on the 26th day of November, 1892, a petition by way of appeal under the provision of section 22 of chapter 3 of the Acts of the Parliament of Canada, passed in the 33rd year of Her Majesty's reign, and intitutled, " An Act to amend and continue the Act 32-33 Victoria, chapter 3, and to establish and provide for the Government of the province of Manitoba (commonly called 'The Manitoba Act') and confirmed by 'The British North America Act, 1871,' '" was presented to his Excellency the Governor General of Canada in Council, by and on behalf of the Roman Catholic minority of Her Majesty's subjects, in the province of Manitoba, which petition, among other things, alleged in effect that by certain Acts of the legislature of the province of Manitoba, passed after the union, and by an Act passed by the said legislature in the 44th year of Her Majesty's reign, chapter 4, which may be cited aa " The Manitoba School Act," and by the Acts amending the same, the Roman Catholic minority of Her Majesty's subjects in Mani- toba acquired the rights and privileges in relation to education, thereby conferred upon them, including the right to build, maintain, equip, manage, conduct and support Roman Catholic schools in the manner provided by the said statutes, the right to a proportion- ate share of any grant made out of the public funds for the purposes of education, and the right of exemption of such members of the Roman Catholic Church, as contribute to such Roman Catholic schools, from all payments or contributions to the support of any other schools. That subsequently, in the 53rd year of Her Majesty's reign, two statutes were passed by the legislature of the province of Manitoba, relating to education, which statutes came into force on the first day of May, 1890, and are intituled respectively "All Act respecting the Department of Education," and "An Act respecting Public Schools," and that the effect of the two last named statutes was to repeal the previous Acts of the province of Manitoba in relation to education, and to deprive the Roman Catholic minority of the rights and privileges which it had acquired under such previous statutes ; and by the said petition, the said Roman Catholic minority prayed among other things : — That it might be declared that the said last mentioned Acts did affect the rights and privileges of the said Roman Catholic minority of the Queen's subjects in relation to education : — ft3 VICTOHIA, 1890. !)85 iiifonnfttion, il copy of this I'g, as repre- >l ii)ii. Canadd. larch, 1895. t. Illy. rs. 'y- tague. Council. appeal under Danmla, passed d and continue jtovernment of firmed by 'The vernoiGtineral Her Majesty's igs, alleged in 1, passed after Her Majesty's I by the Acts )jects in Mani- jonferred upon lupport Roman i a proportion- aducation, and as contribute he support of > statutes were ication, which d respectively pecting Public il the previous ve the Roman • such previous prayed among Feet the rights >cts in relation That it might he declart'd that to his Excellency the (lovornor (Joneral in Council, it seems requisite that the provisions of the statutes in force in the province of Manitolta, prior to the passage of the said Acts, should l)o re-enacted in so far, at least, as may be necessary to secure to the Roman Catholics in the said province, the right to build, maintain, equip, numage, conduct, and support thoir schools in the manner provided for by said statutes, to secure to them their proportionate share of any grant made out of the public funds for the purposes of education, and to relieve such members of the Roman Catholic Church, as contribute to such Roman Catholic schools, from all pay- ment or contribution to the support of any other schools ; or that the said Acts of 1890, should be so modified or amended as to ellect such purposes ; — And that such further or other declaration or order might l)e made as lo his Ex- cellency the Governor General in Council should, under the circumstances, seem proper, and that such directions might be given, pr-ivisions made, and all things done in the premises, for the purpose of affording relief to the said Roman Catholic minority in the province, as to His Excellency in Council might seem meet. And whereas the 26th day of February, 1895, having been appointed for the hear- ing of the said appeal, and the same coming on to be heard on that day, and on the 5tli, Gth and 7th days of March, 1895, in the presence of counsel for the petitioners (the said Homan Catholic minority of Her Majesty's subjects in the province of Manitoba) and as well for the province of Manitoba, upon reading the said petition and the statutes therein referred to and upon hearing what was alleged by counsel on both sides, his Excellency the (lovernor General in Council was pleased to order and adjudge, and it is hereby ordered and adjudged, that the said appeal be, and the same is hereby allowed, in so far as it relates to rights acquired by the said Roman Catholic minority under legislation of the province of Manitoba, passed subsequent to the union of that province with the Dominion of Canada, and his Excellency the Governor General in Council was pleased to adjudge and declare, and it is hereby adjudged and declared that by the two Acts passed by the legislature of the province of Manitoba, en the first day of May, 1890, intituled respectively "An Act respecting the Department of Education," and "An Act respecting Public Schools," the rights and privileges of the Roman Catholic minori- ty of the said province, in relation to education, prior to the Ist day of May, 1890, have been affected by depriving the Roman Catholic minority of the following rights and privileges, which, previous to and until the first day of May, 1890, such minority had, viz. ; — (a) The right to build, maintain, equip, manage, conduct and support Roman Catholic schools, in the manner provided for by the said statutes which were repealed by the two Acts of 1890 aforesaid. (b) The right to share proportionately in any grant made out of the public funds for the purposes of education. (c) The right of exception of such Roman Catholics, as contribute to Roman Catholic schools, from all payment or contribution to the support of any other schools. And his Excellency the Governor General in Council was further pleased to de- clare and decide, and it is hereby declared that it seems requisite that the system of education embodied in the two Acts of 1890, aforesaid, shall be supplemented by a provincial Act or Acts which will restore to the Roman Catholic minority the said rights and privileges of which such minority has been so deprived as aforesaid, and which will modify the said Acts of 1 890, so far and so far only as may be necessary to give effect to tlie provisions restoring the rights and privileges in paragraphs (a),(6),(c), hereinbefore mentioned. Whereof i;he Lieutenant Governoi of the province of Manitoba for the time being, and the legislature of the said province, and all persons whom it may concern, are to take notice and govern themselves accordingly. JOHN J. McGEE, Clerk of the Queen's Privy Council for Canada. J 986 MANITOBA LEGISLATI 6n AddresH of Legislative Assetnbly of Manitoba in reply to the Remedial Order in Council. To His Honour the Honourable Sir John Christian Schultz, K.C.M.G., Lieutenant Gomrnor of Manitoba, May it Please Your Honour : We, Her Majesty's dutiful and loyal subjects, the legislative assembly of Manitoba, in legislature assembled, beg to present to your honour, for transmission to his Excel- lency the '^overnor General in Council, the memorial adopted by the legislature of Manitoba 'a the 19th day of June last, in reply to the remedial order accompanying your honour's message dated the 25th day of March, 1895. FINLAY M. YOUNG, Speaker. To His Excellency the Governor General of Canada in Council : The memorial of the legislative assembly of the province of Manitoba humbly showeth : — We have received through his honour the Lieutenant Governor the order which your Excellency in Council was pleased to make upon the twenty-first day of March, 1895, after hearing the appeal of the Roman Catholic minority of this province, which order is in the words following : — {Here folloivs copy of Order in Council of 21st March, 1S95.) The privileges which by the said order we are commanded to restore to our Koman Catholic fellow-citizens are substantially the same privileges which they enjoyed pre- viously to the year 1890. Compliance with the terms of the order would restore Catholic separate schools, with no more satisfactory guarantees for their efficiency than existed prior to the said date. The educational policy embodied in our present statutes was adopted after an ex- amination of the results of the policy theretofore follow -id under which the separate Roman Catholic schools (now sought to be restored) had existed for a period of upwards of 19 years. The said schools were found to be inefficient. As conducted under the Ronaan Catholic section of the board of education they did not possess the attributes of efficient modt-rn public schools. Their conduct, management and regulation were defective ; as a result of leaving a large section of rhe population ".vith no better mean'? of education than was thus supplied, many people grew up in a state of illiteracy. So far as we are aware there has never been an attempt made to defend these » hools on their merits, and we do not know of any ground upon which the expenditure of public money in their support could be justified. We are therefore compelled to respectfully statu to your Excellency in Council that we cannot accept the responsibility of carrying into effect the terms of the reme- dial order. Objections upon principle may be taken to any modification of our educational statutes which would result in the establishment of more sets of separate schools. Apart, however, from the objections upon principle, there are serious objections from a practical educational standpoint. Some of these objections may be briefly indicated : We labour under great difficulties in maintaining an efficient system of primary education. The school taxes bear heavily upon our people. The large anount of land which is free from school taxes and the great extent of country over w'lich our small population is scattered present obstacles to efficiency and progress. The reforms effected in 1890 have given a strong impetus to educational work, but the difficulties which are inherent in our circumstances have constantly to be met. It will be obvious that the establishment of a set of Roman Catholic schools, followed by a set of Anglican schools and possibly Mennonite, Icelandic and other schools, would so impair our present system that any approach to even our present general standard of efficiency would be quite impossible. We contemplate the inauguration of such a, state 1 53 VICTORIA, 1890. 987 ■' fiedia/ Order IV. G., Lieutenant ibly of Manitoba, Ion to his Excel- jthe legislature of ler accompanying leaker. klanitoba humbly vernor the order wenty-first day of of this province, Wo.) )re to our Roman they enjoyed pre- er would restore eir efficiency than jpted after an ex- lich the separate period of upwards lucted under the less the attributes regulation were 1 no better means of illiteracy. So these s hoold on mditure of public illency in Council IDS of the reme- ' our educational separate schools. 3bjections from a jfly indicated : y^stem of primary s anount of land wliich our small tional work, but y to be met. It ools, followed by r schools, would leral standard of a of such dk state of affairs with very grave apprehension. We have no hesiLition in saying that there cannot be suggested any measure which, to our minds, would more seriously imperil the development of our province. We l)elieve that when the remedial order was made, there was not availaVjle then to your Excellency in Council full and accurate information as to the working of our former system of schools. We also believe that there was lacking the means of forming a correct Judgnieni as to the eli'ect upon the province of changes in the direction indicated in the order. Being impressed with this view, we ••espectfully submit that it is not yet too late to made a full and deliberate investigation of the whole subject. Should such a course bf» adopted, we shall cheerfully assist in affording the most coraplfte information available. An investigation of such a kind would furnish a subscantial basis of fact upon which conr.iusionr could be formed with a reasonable degree of certainty. It is urged most strongly that upon so important a metter, involving, as it does, Ihe religious feelings and ■ onvictions of different classes of the people of Canada and the educational interests of a province which is expected to become one of the most important in the Dominion, no hasty action should be taken, but that, on the contrary, the greatest care and deliberation should be exercised and a full and thorough inve.sti- gation made. While we do not think it proper to enter upon a lef;al argument in this memorial, we deem it our duty to briefly call attention to some of the legal and constitutional difficulties which surround the case. It is held by fsome authorities that any action taken by the Parliament of Canada upon the subject, will be irrevocable. While this opinion mt.y or may not be held to be sound, it is in our judgment only necessary to point out that there are substantial grounds for entertaining such an opinion, in order to emphasize the necessity for acquiring a most ample knowledge of the facts before any suggestion of parliamentary action is made. It will be admitted that the two essentials of any effective and substantial restor- ation of Roman Catholic privileges are : 1. The right to levy school taxes ; 2. The right to participate in the legislative school grant ; without these privileges the separate .schools cannot be properly carried ou, and without them therefore, any professed restoration of privileges would be illusory. It may bo held that the power to collect taxes for school purposes conferred upon school boards of our former educational statutes was conferred by virtue of the pro- visions of subsection (2) of section 92 of the Biitish North America Act, and not i)y virtue of the provisions of section 22 of thf Manitoba Act. If this view be well founded, then that portion of the Act of 1890 which abolishbd the said right to collect taxes is not subject to appeal to your Excellency in Council, and the remedial order and any subsecjuent legislative act of the Parliament of Canada (in .so far as they may purport to restore the said right) will be idfra vires. As to the legislative grant we hold that it is entirely within the control of the legislature of the province that no part of the public funds of the province could be made available for the support of separate schools without the voluntary action of the legislature. It would appear, therefore, that any action of the Parliament of Canada looking to the restoration of Roman Catholic privilej^os must, to be of real and substantial benefit, be supplemented by the 'oluntary action of the provincial legislature. If this be the case, nothing could be more unfortunate from the standpoint of the Roman Catholic people themselves, than any Imsty or peremptory .-.'•tlon on the part of the Parliament of Canada, bcjcause such action • luld prolmbiy produce strained velations and tend to prevent the possibility of restoring harmony. We respoctfully suggest to your Excellency in Council that all of the above :-on- siderations call most strongly for full and careful deliberation, and for such a course of action as will avoid iriit vting complications. We deem it proper also to call attention to the fact that it is only a few months since the latest decision upon the subject was given by the Judicial Committee of the 4 'i 988 MANITOBA tEGISLATION Privy Council. Previously to that time a majority of the members of the Legislative Assembly of Manitoba had either expressly or impliedly given pledges to their consti- tuents which they feel in honour bound loyally to fulfil. We understand that it has been lately suggested that private funds of the Roman Catholic Church and people had been invested in school buildings and land that are now appropriated for public school purposes. No evidence of such fact has ever been laid before us, so far as we can ascertain, but we profess ourselves willing if any such injustice can be established, to make full and fair compensation therefor. In conclusion we beg respectfully to place on record our continued loyalty to Her Gracious Majesty, and to the laws which the Parliament of Great Britain has in its wisdom seen fit to enact for t ' o good government of Canada. FINLAY M. Legislative Assembly, Winnipeg, 1 9th June, 1895. YOUNG, Speaker. iCgislative »ir consti- le Koman i that are ever been any such ty to Her has in its aker. MANITOBA— 54th VICTORIA, 1891. 4th Session, 7th Legislature. His Honour the Lieutenant Governor to the Hon. the Secretai-y of State. Government House, Winnipeg, 18th April, 1891. Sir, — I have the honour to inform you that on the 18th instant, before proroguing the fourth session of the seventh legislature of the province of Manitoba, I reserved for the signification of the pleasure of his Excellency the Governor General the ful lowing l^'U passed during the session referred to : — No. 8, ■ ' An Act to authorize companies, institutions or corporations incorporated out of this province, to transact business therein." The certified copy of this bill, received to-day, I herewith inclose, and have the honour to submit for his Excellency's consideration the follow ng : — 1. That a comparison of the inclosed bill (No. 3,) with chapter 23 of 53 Victoria, to which objcv-tion was taken by the honourable the Minister of Justice in his report of 31st March, 1891, to his Excellency the Governor General in Council, as given in your despatch, of date 6th instant, will show tha'u the bill No. 38, inclosed, is a virtual re- enactment of cap. 23, 53 Vic, proclamation of the disallowance of which Act was made by his Excellency the Governor General in Council on the fourth day of the present month, conveyed to me by message to the legislative assembly of this province on the sixth instant and communicated to my government with a ctjpy of despatch of the 6th instant from the honourable the Secretary of State, together with a copy of the report of the honourable the Minister of Justice dated 31st March, 1891, and the order of his Excellency the Governor General in Council of the 4th instant, on the 10th ii stant. 2. That while some minor alterations affecting church property were made in the bill (No. 38,) yet it seemed to me that nearly all the clauses declared to be objectionable in the report of the honourable the Minister of Justice, recommending the disallowance of the Act (cap. 23 of 53 Vic), were re-enacted in the inclosed bill, and that moreover sec. 4 of cap. 11, 49 Vic, ("No company, corporation or other institution not incorporated under the provisions of the statutes of this province shall be capable of taking, holding or acquiring any real estate within this province unless under license from the Lieute- nant-Governor in Council under any statute of thts province in that behalf ") to which reference was made in the report of the Minister of Justice, remained unrepealed in the enclosed or M»any other bill passed during the present session (1891). 3. That though my assent to the enclosed bill, although seeming t ) disregard of the action of his Excellency the Governor General in Council, based upon the report and recommendation of the honourable the Minister of Justice, might have been given, leaving it again to be dealt with by his Excellncy in Council, if the bill had been passed in the winter, when its conditions did not so much affect immigration and other inte- rests, yet having regard to the peculiar conditions obtaining in this province at the present time, viz. (a.) The present and succeeding month are special seasons of immigration, because they admit in many cases of the immediate planting of root and other crops, even upon lands just homesteaded. (b.) A considerable number ui" immigrants from the arid districts to the south and and south-west of this province and from other foreign countries are alxjut to come, and indeed are now coming, to this province. (c.) The greater number of the first-named immigrants, although skilled agricul- turists, have been ruined by successive droughts ; and, apart from its other advantages have been induced to come to this part of Canada by the loans they expect at once to 990 MANITOBA LEOISLATION receive from the loan companies (affected by the bill in question) on the security of their homesteads and other lands. (d.) While such assistance is calculated to make them successful settlers here, and so promote a rapid increase of such immigration, yet without it they would be simply stranded iipon the homesteads they occupy. (e.) Any legislation calculated to create a feeling of insecurity among such cor- porations, would seriously impair the immigration prospects of the province by causing the restrictici or entire refusal of such loans, as well as of loans for the extension and improvement oi the property of settlers already here. I therefore reserved the bill No. 38 (herewith transmitted), for the signification of the pleasure of his Excellency the Governor General thereupon. I have, &c., JOHN SCHULTZ, Lieutenant Governor. Report of the Hon. the Minister of Justice approved by His Excellency the Governor General in Council on the 21st April 1892. t Department of Justice, Ottawa, 20th April 1892. To His Excellency the Governor in Council : The undersigned has the honour to report on the statutes passed by the legislature of the province of Manitoba in the year 1891, chapters 1 to 27, 29 to 32, 34 to 37, and he respectfully recomends that the same be left to their operation. JNO. S. D. THOMPSON, Jlinister of Justice. Note — C) ap. 28 doen not appear to liave been reported upon. Report of the Hon. the Minister of Justice approved by His Excellency the Governor General in Council on the 2l8t April 1892. Department of Justice, Ottawa, 2.0th April, 1892. To His Excellency the Got>ernor in Council. The undersigned has the honour to represent that by a report bearing even date with this he has recommended that an Act, cap. 25 passed by the legisl^ve assembly of the province of JIanitoba, on the 18th of April, 1891, intituled — " An Act respect- ing the Revised Statutes of Manitoba " be left to its operation. That Act recites in effect that a commission had been appointed, empowering certain commissioners to revise and consolidate the statute law of that province ;— and th«,c the commissioners had reported such revision and consolidation, marking the same with a letter " A." The statute thereupon proceefled to enact that the commissioners might incorporate in such consolidation the legislation of the session of 1891, and what thereupon the Lieute- nant Governor in Council might cause a correct printed roll thereof duly authenticated to be deposited in the office of the clerk of the legislative assembly, and that after such deposit the Lieutenant Governor in Council might b; proclamation declare the time on, from and after which uhe samr> should come into force, and have effect as law by the designation of "The Revised Statutes of Manitoba." The undei;signed further represents that a certified copy of the statute was received by the honourable the secretary of state on the 22nd day of April, 1891, and that under the provisions of "The British North America Act," the time for the disallowance of the same will expire on the 22nd of April, instant. Up to the present time neither your Excellency nor aiiy department ''fjri :urity of their lers here, and luld be simply ang such cor- ce by causing extension and ignification of JYZ, [r'overnor. e Governor )ril 1892. she legislature 34 to 37, and f Justice. e Governor ril, 1892. •ing even date l^ve assembly Act respect- ^ct recites in imissioners to commissioners a letter " A." ncorporate in on the Lieute- authenticated lat after such e the time on, s law by the her represents I secretary of " The British e on the 22nd ly department 54 VICTORIA, 1891. 991 of the government of Canada has been furnished witli a copy of the consolidation above referred to, although the undersigned is informed, and he has nn doubt as to the fact, that everything has now been done that is necessary to enable the issue of the procla- mation bringing the revision into force. The undersigned is of opinion that in the absence of any understanding or con- vention with a provincial governement in respect thereto. Acts of this character, provid ing for the bringing into force by proclamation of revised or consolidated statutes, they should not be allowed to go into operation until your Excellency has had an oppor- tunity of examining the contents of the consolidation to which they relate. In this particular case he would have recommenced its disallowance had it not been that in pursuance of a suggestion which he took the liberty of giving to the honourable the attorney general af the province of Manitoba, the Act was repealed during the session of the legislature which was closed on the day of the date of this report ; and the undersigned was given to understand that there will be ample opportunity given for the proper examination of the contents of the consolidation in question, before it becomes law. The undersigned submits foregoing facts for the information of your Excellency. Respectfully submitted, JNO. S. D. THOMPSON, Minister of Justice. Report of the Hoy,, the Minister of Justice, approved by His Excellence/ the Governor General in Council, on tlie 2Ist April, 1892. Department op Justice, Ottawa, 20th April, 1892. To His Excellency the Governor General in Council : The undersigned has the honour to report upon the following Acts of the province of Manitoba, passed in the year 1891, (a copy of which Act was received by the Honourable the Secretary of State on the 22nd day of April, 1891). Cap. 33, " An Act to incorporate the Norwood Bridge Company." This Act incorporates a company for the purpose of constructing and maintaining a bridge across the F 3d River between the city of Winnipeg and the town of St. Boniface. By section 14 the company is authorized to erect, make and sink such piers, abutments, blocks and erections in the Red River, as may he deemed necessary for the construction of the bridge, and for its protection against ice and freshets. Clause 20 directs that the bridge be provided with draws, or springs, so cons- tructed as to allow for the passage of steam I'^ats and other vessels, and section 16 provides that the company shall not commence operations until the plans of the bridge and its site have been submitted to, and approved of, by your Excellency in Council. In so far as this Act purports to give corporate functions to the promoters it is vvlthiii the powers of the legislative assembly. In so far, however, as it seeks to authorize the construction of a bridge over the Red River, a river which is, without question, a navigable river, it is beyond the competency of such legislature. Inasmuch, hov/ever, as the corporation cannot, irrespective of its cliarter, legally interfere with the free navigation of the river, unless and until it has obtaiaed the necessary authority therefor, from the parliament of Canada, or under the provisions of Canadian statutory law, and having in view also the fact that by the terms of the Act itself, no work can be performed, until your Excellency in Council has first approved of the same, there does not appear to be any necessity for the exercise of the power of disallowance in this particular case. The undersigned, therefore, recommends that it be left to its operation Respectfully submitted. JNO. S. D. THOMPSON, Minister oj Justice. 992 MANITOBA LEGISLATION. MANITOBA— 55th VICTORIA, 1892. 5th Session, 7th Legislature. Report of the Hon. the Acting Minister of Justice, ap]n-oved by His Excellency the Governor General in Council, on the 25th April, 1893. Department of Justice, Ottawa, 17th April, 1893. To His H.vcellency the Governor General in Council : The undersigned has the honour to report that he has examined the Acts passed by the legislature of the province of Manitoba in the 55th year of Her Majesty's reign (1892), received by the Secretary of State on the 25th April, 1892, chapters 1 to 58, and he is of opinion that they are unobjectionable and may be left to their operation. Respectfully submitted, T. MAYNE DALY, Acting Minister of Justice. m^ MANITOBA— 56th VICTORIA, 1893. 1st Session, 8th Legislature. Report of the Hon. the Minister cf Justice, ai)provf wilfully oveable of an twenty Petroleum ily breaks her works laid, or in Qarrassing procuring ig twenty ling three ing to the elating to I could be es of the lishrnent. 57 VICTOHIA, 1894. 995 The remaining sections of the two statutes under consideration are, however, not open to objection, and in the view of the undersigned tlie public interest would be served by leaving these statutes to their operation. The undersigned observes that individuals affected by the sections referred to would have their remedy in the courts. The undersigned, therefore, recommends that these statutes be left to their ojjera- tion, and that a copy of this report, if approved, be sent to the Lieutenant Governoi* of the province for the information of his government. Respectfully submitted, JNO. S. D. THOMPSON, Minister of Juntice. Petition of Hix Eminence Cardinal Taxcherean, the Arrhhiahops and liinhopa of the Roman Catholic Church in Canada on the subject oj Education, aiid prai/ing for disallowance of chaptT 28. To His Excellency the (Jovernor General of Canada in Council : May it please Youh Excellency : The petition of the undersigned, his Eminence the Cardinal Archbishop of Quebec, the most Reverend Archbishops, and the right Reverend the Bishops of the Roman Catholic Church in the Dominion of Canada, devoted subjects of Her Most Gracious Majesty the Queen, humbly showeth : — 1. Since the establishment of the province of Manitoba until 1890, the public schools of the province, as established by law, were either Protestant or Catholic 8 hools. They all enjoyed the same rights and received respectively their legitimate share of legislative grants. They were independent one from another, being conducted and directed and supported by the respective sections of the population for which they were established. The system gave such satisfaction that it was the cause of no com- plaint, and the two sections of the population, with their respective schools, lived in peace, concord, harmony and mutual good will. 2. In 1890 laws were passed changing the school system and replacing it by other enactments which are, for a portion of the community, a source of grief, regret and hardship. Practically, and in spite of all assertions to the contrary, the result of the new system is purely and simply the legal suppression of all Catholic schools and the maintenance of all Protestant schools, with all the rights and privileges they enjoyed previous to the school laws of 1890. Catholic schools are abolished by law, while Protestant schools have nothing to suffer from the new enactment; nay, they gain by it, as the Catholic ratepayers have now to help to the support of Protestant schools, which are exactly what thev were, and to which, naturally, Catholic parents cannot consci- entiously send their children. 3. The Public Schools Act of 1890, being 53 Vic, cap. 38, now cap. 127 of Revised Statutes of 1891, decrees in sections 241-242, that "in cases where, before the coming into force of this Act, Catholic school districts have been established, covering the same territory as any Protestant school district, such Catholic school districts shall cease to exist." The law has been put into force wheresoever it could be applied, for instance, in Winnipeg, Brandon, &c. There the Catholic trustees have ceased to be recognized since the Ist of May, 1890, while the IVotestant trustees remained in office, and caused taxes to be levied on Catholic as well as Protestant parents, notwithstanding the fact that no Catholic children are attending the said Protestant schools. 4. Section 192 says : " Religious exercises in the public schools shall be conducted according to the regulations of the advisory board." It is therefore lawful to have prayers and religious exercises in the public schools of Manitoba, provided the same are fixed and determined by the advisory board. Just now, all the members of the said JL .ifc*' 996 MANITOBA LROiaLATION Vjoard are Protesifvnts, and owinj^ to rJie condition of country it is clear that Catholics will never have l)Ut very little influence', if any, in tiie said IxMU'd. Therefore Protestant children will be allowed to pray according to their parents' desire, while Catholic children are deprived of the same lihei'ty, and this under the ?>enalty of forfeiting their legitimate share of public money, l)ecause in order to secure to his or her sc ool, the government grant, the teacher must declare undei' oatii that no pr lyer nor religious exercise, except as prescribed Ijy the advisory board, has been used in the school. Suppose a school attended exclusively by Catholic children, with a Ca- tholic teacher the said school would be deprived of the legislative grant, should tlie teacher or the pupils cross rtiemselves or make use of the " Hail Mary." ■"). Religious instruction is not prohibited in the public sciiools of Manitoba ; in that respect and under the heading of morals, the regulationif framed under tiie old sys- by the Protestants section of the board, are retained under the new system ; " Stories, memory, gems, sentiments in the school lessons, examination of motives, didactic talks, teacinng • he ten commandments, Ac, are means to be employed. " All this of course is to be used from a Protestant point of view, so much so that the actual chairman of the advisory board, who had always been the chairman of the Protestant section of the board of education, and who is no less a personage than the Archbishop of Rupert's Land, declared before his synod, in 1 893, that the above quoted privileges are not small things in themselves, but they are doubly important because they carry with them for the teacher a degree of liberty in his teaching, of what may come before the classes in their literature and otherwise," and his Grace adds ; " The teachers who ignore these exercises can hardly be realizing their position as Christian men." The liberty above mentioned is naturally for Protestants alone, because it is enacted that those public schools are *' non-sectarian," that is to say, that no Catholic teaching can be permitted while facilities are afforded to zealous and intelligent Protest- ant teachers to impress upon their pupils their own religious convictions. See Appendix A, pamphlet by Archbishop Tache, April, 1893, and Appendix B, Dr. J. R. Morrison's paper read before the Junior Liberal Conservative Association of St. John, N.B., 13th February, 1894. 6. For the last four years the Catholics of Manitoba have been subjected to the unfair and unjust treatment resulting from the change in the school laws in 1890. They asked in vain for relief ; instead of a remedy, they have been made the victims of a fresh injustice in the new Manitoba law, 57 Vic, cap. 28, assented to on 2nd March, 1894. The clause 151 of the Public School Act of 1890 reads as follows : " Any school not conducted according to all the provisions of this or any Act in force for the time being, or the regulations of the Department of Education or the advisory board, shall not be deemed a public school within the meaning of the law, and such schools shall not participate in the legislative grant." To this provision, in force since 1890, has been added this year, the section 4 of the new law which reads as follows : — " Section 151 of chapter 127 is hereby amended by adding thereto the following words : nor the municipal grant, * ♦ * nor shall any school assessment be levied or school taxes be collected for the benelit of such schools." The consequences of this new enactment, is that no municipality, even one exclu- sively Catholic, without a single Protestant in its limits, has any power to levy a single dollar for Catholic schools, while a Catholic municipality where there are ten Protestant children, is obliged by law, to levy on all the Catholics, as well as on the parents of ten Protestant children, the money required for the education of the p-iid ten Protestant children. 7. The same law of 1894 goes further, and decrees the confiscation of all school property in all the districts which do not submit their schools to the new law,^ and it says in section 2 : — " In every case in which the organization of a school district fails to be continued, the council of the municipality in which such school distriot lies, shall have full power and authority, and it shall be the duty of the said council to take charge of all the property of such school district, real and personal, and to administer the same for the benefit of the creditors of such school district, if any." mb Catholics leir |iareuts' is undm- tin? lei- to secure Mitli thiit no IS been used with a C'a- shouhl the fanitoba ; in the old sys- 11 ; " Stories, dac'tic talks, J of course is rnian of the ction of the > of Rupert's ire not small th them for /he classes in ignore tliese ecause it is no Catholic ;ent Protest- Appendix B, elation of .St. jected to the aws in 1890. !ie victims of 2nd March, ' Any school for the time board, shall schools shall tion 4 of the imended by lOr shall any ich schools." n one exclu- 3vy a single 1 Protestant rents of ten 1 Protestant jf all school law,^ and it district fails et lies, shall take charge ier the same 57 vici'OHiA, 1894. 991 Such is the real position of the Catholics of Manitoba, thou(,'h all their school j)roperty has been acquired with their own money, without any help from Prote.stant purse, or from public fund, and in Protestant municipalities the Catholic schot)ls property, real or personal, goes to the benefit of Protestants. 8. The example given in Manitoba has been partly followed in the North-west Territories. There the Catholic separate schools have lieen retained, but, in virtue of the ordinance No. 22 A.D. 1392, they are deprived of their liberty of action, and of the character which distinguishes them from other schctols. So that, in reality, the Catholics of the North-west are reduced, partly at least, to the hardships imposed upon their brethren of Manitoba. In Iwth cases the result is very detrimental to the cause of education and really has in both cases, created bad feelings, dissensions, and the most deplorable v ults. See Appendix (>, memorial of Archbishop Tacln', ^farch, 1H94. 9. The undersigned take the liberty to attirm that they deeply regret the condition of affairs above mentioned. The painful cxperiencf? of tlm Catholics of Manitoba and of the North-west Territories, is also resented by all the Catholics of the Dominicm. The undersigned have no hesitation in stating that a similar feeling certainly exists among many Protestants w lo, though .separated by faith, are un d with the Catholics in a sentiment of justice, fair play, and the desire of the prosperity of their common country. The undersigned appreciate the political advantages enjoyed by Canada, and have no desire for any other regime, satisfied that there is, in the institutions of the country, and in the spirit of justice and conciliation which prevails among its inhabitants, a remedy against what, just now, is the subject of their complaints. The Canadian con- stitution acknowledges equal rights for all citizens and for all classes of citizens. There- fore, Canadians should not be oppressed, because they are Catholics. 10. The undersigned cannot shut tfieir eyes to a fact closely connected with the history of their country. Catholic missionaries have not waited for the facilities and material advantages, now offered by Canada, to bring thereto the light of Christian civilization. On the contrary, they were the first pioneers of the sacred cause, and they sealed their missions with their lalood. Witiiout fear or hesitation they buried their existence among the most barbarous savages, whom they tamed and induced to peace- ably hand over their own country to the Canadian authorities, '"^he Catholic mission- aries accomplished that noble task on the banks of the Saskati ht uan and Red Rivers, as well as on those of the St. Lawrence, and the Ottawa, and they did this, when, alongside of the crosses they planted, they fondly rested their gaze on the fleur de lis flag. Everyone knows that the same missionaries, while their eyes were yet moist vith the tears they naturally shed, when they had to sever the ties by which their whole existence had hitherto been bound up, were as faithful to British dominion, as they had been to the banner of the land of their origin. It is well known that it is largely due to the fidelity of Canadian Catholic apostles, that England owes the quiet possession of the noble colony, which France had planted on the St. Lawrence and its tributaries. What then happened among the inhabitants oi' La Nouvelle France was possible, solely because its inhabitants were Catholics, and because England had respected their religious convictions. The knowledge of what they allude to, renders more incompre- hensible to the undersigned the fact that the Catholics of Manitoba and of the North- west are badly treated because they are Catholics. n. Catholics believe in the necessity of religious instruction in schools. This con- viction imposes upon them conscientious obligations, and these obligations gave them rights of which they cannot be deprived. They cannot be satisfied by the saying : — Others do not believe as you do, therefore you must change your convictions ; others are satisfied and even wish that their children should be brought up and educated in such and such a way : therefore, you C.itholics, you cannot stand aside, or if you do, do so at your own expense. Such an argument is neither fair nor just. The undersigned, pastors of souls, are at one with their Hocks in insisting on the rights they claim, and they are fully determined to preserve them in their integrity. 63 >(ilp (ill 098 MANITOBA LKUIHLATION, There is in this a (juestion of justice, of natunvl o(|uity, of jirudfnre and of social (tconoiny, elosoly conndcteci with the fuiidimiuntal int«'reHt8 of tiie country. The Catliolics, l)eing unrh-r the obligations of educating their chil(h-en according to their faith and the religir)UM principles they profess, have, in our free country, the right of estahlishing their sepiirate sirhools, and that right they must b<> iiiloweil to exercise without being forced to the burden of double school taxes. The undersigned also take the liberty to stat«! that the federal parliament has (imply because this class of citizens adheres to its religious convictions, and wishes to comply with conscientious obligations? S(w Appendix 1>, " A page of the history of the schools of Manitoba," by Archbis- hop Tachi!. 12. The undersigned petitioners are fully aware that Manitoba and the North- west Territories were received into Confederation, after promises, made to the first in habitants of that vast country, in the name, and by the authority of Her Majesty. The innnediate representative of our beloved Queen assured them, that " respect and atten- tion would be extended to the difl'erent religious ])ersuasions and that, on their union with Canada, all their civil and religious rights and privileges would bt; respected." In the estimation of Catholics, their religious rights are not respected, and their religious per- suations are not treated with respect and attention, when there are difliculties thrown, by law, in the wa}' of securing to their children an education, conducted in accordance with their religious convictions. 1.'$. The undersigned, while petitioning as they ilo, repudiatt; the idea of inter- ference with political parties, or with the direction of affairs, purely political or temporal. Their sole object is to secure, for the Catholics, a protection, needed for the accomplish- ment of their religious obligations, and it is in that view and in that view only, that they petition his Excellency the (Jovern r General in Council and ask the honourable members of t\w Senate and of the Commons of Canada, of whatsoever party they may be, to help in a fair settlement of the actual difficulties. Therefore, your petitioners humbly pray his Excellency the Governor General in Council : 1. To disallow the Act of Manitoba 57 Vic. Ch. 28 (1894) and intituled "An Act to amend the Public School Act." 2. To give such directions, and make such provisions for the relief of the Roman Catholics of the province of Manitoba, as to his Excellency in Council may seem fit, with regard to the Manitoba School laws of 1890. 3. To communicate with the Lieutenant-Governor of the North-west Territories, in order tliat, by amending ordinances, redress should be given to meet the grievances of which the Catholics of the North-west complain on account of the Ordinance No. 22, assented to at Regina, on the 31st of December 1892. And your petitioners, as in duty bound, will ever pray. tE. A. Cardinal Tascueheau, Archbishop of Quebec. tALEXANDEK Taciie, Archbishop of St. Boniface, O.M.I. tC. O'Brien, Archbishop of Halifax. tEowARD Charles, Archbishop of Montreal. tJ. Thomas Duhamel, Archbishop of Ottawa. fJoHN Walsh, Archbishop of Toronto, and 25 Bishops of R. C. Church. Petitions praying for the disallowance of the Act in question, 47 Victoria (Man.), 1894, were also received from 1. J. Israel Tarte, M.P., and others, dated 15th October, 1894. 2. J. Alph. Pelletier, Ptre., and others, dated 10th January, 1896. and of 8<>c'iiil acodidin;; to try, tliti rij^ht ul to cxeri'isc uliiunent has lit), ill assigii- Tliose lands ) (leprivo the ed from sucli victions, and by Archbis- 1 tlie North- It thf Mrst in- Majcsty. The :t and atten- n tlieir union spectt'd." In • religious per- Ities thrown, a accordance dea of inter- .1 or temporal. B accompli.sh- nly, that they iible members ay be, to help >r General in led " An Act f the Roman may seem fit, it Territories, he grievances iiauco No. 22, toria (Man.), 67 VICTORIA, 1894. 999 Report of the Committvi' of the Ilonintrahh- the Privy Council, approvi-d hy His Excellftivi/ on the :.'6th July, JS'J^, The Committee of the Privy Council have had under consideration a memorial addressed to your Kxcellency in Council by his Eminence Cardinal Taschereau, Areli- i)ishop of (Quebec, and by the Roman Catholic archbishops and bishops in Canada on th(! subject of the laws relating to education in the province of Manitoba and in the North-west Territories. The memorial sets forth the condition of the public schools in the province of Manitoba from the establishment of that province until 1890 and proceeds to state that ; " In 181)0 laws were passed changing the school system and replacing it by other enact- ments which are, for a portion of the community, a source (»f grief, regret and hardship." The memorial asserts that: "The result of the new s\ stem is purely and simply the legal suppression of all Catholic schools and the maintenance of all Protestant .schools, with all the rights and privileges they enjoyed previous to the school laws of 1890,' and that the " Catholic ratepayers have now to help to the support of Protestant schools which are exactly what they were, and to which, naturally, ('atholic parents cannot conscientiously send their children." The memorial proceeds to state, in detail, some of the provisions of the enactments of Manitoba of 1890, which are claimed to have the effect previously stated. It further states that " for the last four years the Catholics of Manitoba have been subjected to the unfair and unjust treatment resulting from the change in the school laws of 1890"; that "They asked in vain for relief; instead of a remedy they have been made the victims of a fresh injustice in the new Manitoba law, iil Yictorin, chapter 28, assented to on March 2nd, 1894," one of the provisions of which forbids aid be given by any municipality to any school not conducted according to the school system adopted in 1890. The effect of this enactment is stated by the memorialists to bo " That no municipality, even one exclusively Catholic, without a single Protestant in its limits, has any power to levy a single dollar for Catholic schools, while a Catholic municipality where there are ten Protestant children is obliged by law to levy on all the Catholics, as well as on the parents of the ten Protestant children, the money re- quired for the education of the ten Protestant children." The memorial complains also that the enactment of 1894 " decrees the confiscation of all school property in all the districts which do not submit their schools to the new law " even though the school property may have been acquired by Catholics with their own money. The memorial further states that in the North-west Territories, " The Catholic separate schools have been retained, but in virtue of the Ordinance number 22, of 1892, they are deprived of their liberty of action and of the character which distinguishes them from other schools," and that there, as well as in Manitoba, the result is very detrimental to the cause of education and really has, in both cases, created bad feelings, dissensions, and the most deplorable results." It adds that " The painful experience of the Catholics of Manitoba and of the North-west Territories is also resented by all the Catholics of the Dominion," and has excited sympathy " among many Protestants who, though separated by faith are united with the Catholics in a sentiment of justice add fair-play, and the desire of the prosperity of their common country. ' The memorialists make reference to the many claims to gratitude which Catholic missionaries have established by their work in times past, in connection with Christian missions, and in spreading civilization as well as religion throughout what are now the British possessions in North America, and in encouraging sentiments of loyalty to British rule and British institutions when those possessions came under the British flag ; and they seem (properly in the view of the committee) to consider that these circumstances give a strong claim for generous recognition of the rights of Catholics in Manitoba and the North-west. They also refer to the fact : " That the federal parliament has endowed 63J 1000 MANITOBA LEGISLATION the schools of Manitoba and the North-west with a large domain, in assigning to the support of such schools the eighveenth part of all public lands." They cite the promise made to the inhabitants of Marltoba and the North-west Territories when Bupert's Land was acquired by Canada, in the name and by the authority of Her Ma- jesty, that " respect and attention would be extended to the different religious persua- sions, and that on their union with Car.ada, all their civil and religious rights and pri- vileges would be resnected." The memorialists add that " In the estimation of Catho- lics their religious rights are ai't respected and their religious persuasions are not treated with respect and attention when these difficulties thrown, by law, in the way of securing to their children an education conducted in accordance with their religious convictions." The memorialists "repudiate the ida of interference with political parties, or with the direction of affairs purely political or temporal." They state that " their sole object is to secure for Catholics a protecti(m needed for the accomplishment of their religious obligations," and that " It is in thai vi3w, and in that view only, that they petition his Excellency the Governor Genera,l in Council and >isV. the honourable members of the Senate and of the Commons of Canada, of whatsoever party they may be, to help in a fair settlement of the actual difficulties ;" and they pray : First — For the disallowance of the Manitoba School Ac' of 1894. Second —To give such directions ar! make such provisions for the relief of the Roman Catholics of the province of Manitoba as youi' Excellency in Council may see fit, with regard to the Manitoba School Lavys of 1890. Third — To communicate with the Taeutenant-Governor of the ]S orth-west Terri- tories in order that, by amending ordinances, redress should be given to meet the grie- vances of which the Catholics of the North- est Territories complain on account of the Ordinance No. 22 of 18'J2. The committee having taken all these matters into consideration, have the honour to recommend that a copy of the memorial above referred to, and also of thif^ report, if approved, be transmitted to the Lieutenant-G"- ^ >-nor of Manitoba, with a request that he will )aj the same before his advisers ana before the legislature of that province, and that copies of the same be also sent to the Lieutenant-Governor of the North-west '"er- ritcries with the request that he will lay thorn before the executive committee of the Territories, and the legislature thereof. The committee beg to oijserve to your Excellency that the statements which are contained in this memorial are matters of deep concern and solicitude in the interests of the Dominion at large, and that it is a matter of the utmost importance to the people of Canada that the laws which prevail in any portion of the Dominion should not be such as to occasion complaint of o;jpression or injustice to any class uT portion of the people, bul; should be recognized as establishing perfect freedom anu equality, especially in all natters relating to religion and religions belief and practice ; and the committee there- fore humbly advise that your Excellency may join with them in expressing the most earnest hope that the legislar.iires of Manitoba and of the North-west Territories res- pefitively, may take into consideratio- ;vt the earliest possible moment the complaint? which are set forth in this petition, and which are siid to create dissatisfaction among Roman Catholics, not only in Manitoba and the North-west Territories, but likewise throughout Canada, and n^y take speedy nuasures to give redress in all tlw matters in relation to which any well founded complaint or grievance be ascertained to exist The committee also advise that a copy of this report be sent to each of the memo- rialists. All of which is respectfully submitted for jour Excellency's approval. JOHN J. McGEE, Clerk of the Privy Council. , in assigning to ." They cite the Territories when )rity of Her Ma- religious persua- s rights and pri- onation of Catho- ns are not treated le way of securing ious convictions." -1 parties, or with ' their sole object of their religious they petition his members of the Y be, to help in a r the relief of the Council may see Korth-west Terri- to meet the grie- on p.ccount of the have the honour of thin report, if bh a request that [lat province, and e North-west '"er- committee of the iments which are in the interests of ce to the people of lould not be such ion of the people, especially in all committee there- )ressing the most it Territories res- it the complaintf atisfaction among >ries, but likewise all tlw matters in ittd to exist ach of the raemo- )val. rivy Council. 57 VICTORIA, 1894. 1001 Hi8 Honour the Lieutenant-Governor of Manitoba to the Hon. tJm Secretary of State. Government House, Winnipeg, 26th October, 1894. SiR,_Referring to your communication, of the 30th July inst, transmitting to me the copy of a memorial add essed to his Excellency the governor General in Council b^ hi Eminence Cardinal Tacl ereau, the archbishop of Quebec, and by the Roman Catholic a^chbTDps and bishops i. Canada, on the subject of the laws relating to eaucation in the province of Manitoba and in the North-west Territories, and also the copy of an Orde'rof hTs E^ellency the Governor General in Council, approved by ^is ExceUency on the •26th of July inst., in regard thereto, and requesting me to lay the memorial befl my advisersLd before the legislature of the province --^^^^^y.^^^'^^^^^ I bee to say that, having transmitted to my government a copy of your despatcti, to maintenance of all Protestant schools, with the rights and privileges they^njoyed previous to the school laws of 1890. The Catholic ratepayers have now to help to support the Protestant schools, which are exactly what they were, and to whicli, naturally. Catholic parents cannot conscientiously send their children. Tlie second statement of fact is as follows : — That for the last four years, the Catholics of Manitoba have been subjected to the unfair and unjust treatment resulting from the change in the school laws in 1890 ; that they have asked in vain for relief, and that instead of a remedy, they have been made the victims if a fresh injustice in the new M mitoba law, 57 Victoria, chapter 28, assented to on '2nd March, 1894. one of the provibions of which forbids aid to be given by any municipality, to any school not conducted according to the school system adopted in 1890. The effect of this enactment is stated by the ro.emorialists to be, that no munici- pality, even one exclusively Catholic without a single Protestant in its limits, has any power to levy a single dollar for Catholic scliools, while a Catholic municipality, where there are ten Protestant t:liildren, is obliged by law to levy on all the Catholics, as well as on the parents of the ten Protestant children, the money required for the education of the ten Protestant children. It is also stated that the Act of 1894 decrees the confiscation of all -chool pro- perty ill ail tl»«- -^lisiricts whi^h do not submit their schools to the new law, even although the school proj^rty iriay have been acquired by Catholics with their own money The true facts may be briefly stated as follows :— Previously to the year 1890 'licre had been two sets of schools, Pro'estant and Catholic, and provision wan niaue by law for their maintenance and government. The maintenance was effected by a special school rate, levied upon each district for its own purposes, a general municipal rate, levied by the municipality, and divided among the school district- in the municipality, and a grant from the government, which came out of the provincial tr'^sury. In 1890 the above system was entirely changed, and a ••ingle «*^ of schooi<^ was established. These schools are maintained by rates and grants as above set forth. They are non-sectarian public schoclo. The law makes no distinc tion between Catholics and Protestants, or betv een denominations of any kind. It is true tliat orrect statement of the fact is that all tax payers contribute to the education of all children, whose parents °Giid them to the public schools. All taxable property is assessed for public school purposes, and all citizens have tiie same right to make use of public schools. The Catholic people have the same power to avail themselves of the advantage of the schools as the Protestant people. The religious exercises are non-sectarian, and are not used, except with the sanction and with the direction of the trustees, elected by all rate payers without dis- tinction of creed. If a Catholic refuses to make advantage o* the public school, and decides voluntarily to maintain another school, he is exercising his own judgment in the same way as any person who prefers to send his children to a private school, to the support of which he contributes. Neither of such persons, however, by so doing, gains any immunity from the payment of school rates. As '.o the ([uestion of confiscation of school property, it is to be observed, that the same (juestion wfis the subject of argument before the judicial committee of the f riv Council, in the case of Barrett jersiis Winnipeg, and that tribunal expressed the opinion that the Roman Catholics were somewhat better treated than the Protestant people, in regard to the disposition of school property under the Act of 1890. In so far as the Act of 1894 is concerned, there is no ground for the statement attributed to the memorial, that it decrees the confiscation of school property in the districts whicli had not submit*,ed their schools to the new law. The Act of 1894 has reference to the dis- tribution of grants of money raised by taxation upon all taxable property. It deals with the public school system, and in no way affects the ownership of any property of a school district, which does not submit to the Public School Act, and which is therefore not a public ochool. The questions which are raised by the report now under consideration have been the subject if most voluminous discussion in the legislature of Manitoba during the past four years. All of the statements made in the memorial addressed to his Excellency the Governor General and many others, have been repeatedly made to, and considered by the legislature. That body has advisedly enacted educational legislation, which gives to every citizen equal rights and equal privileges, and makes no distinction respect- ing nationality and rolifiion. After a harassing legal contest, the highest court in the British dominions had decid: i that the legislature, in enacting the law of 1890, was within its constitutional powers, and that the subject of education is one committed to the charge of the provincial legislature. Under these circumstances, the executive of the province see no reason for recommending the legislature to alter the principles of the legislation complained of. It has been made clear that there is no grievance, except it be a grievance that the legislature lefuses to subsidize particular creeds out of the public funds, and the legislature can hardly be held to be responsible for the fac*. that their refu.sal to violate what seems to be a sound a'ld just principle of government, creates, in the words of the report, dissatisfaction amongst Roman Catholics, not only in Manitoba and the North-west Territories, but likewise throughout Canada. It is further to be observed that, inasmuch as the Public Schools Act of 1890 has been held to be within the jurisdiction of the provincial legislature, and the Act of 1894 is but the amendment of the Act of 189U, made for t\\^ purpose of more fully carrying out the plain intention and policy of the first Act, it is suificiently clear that the Act of 1894 is within the jurisdiction of the legislature and deals with a subject which the provincial authority has power to regulate. Disallowance of the Act of 1894, as sug gested by the memorialists, would be a most unjustifiable attempt to prevent the legis lature from performing that duty which has been judicit'ly declared to appertain to it and it may be assumed that such di.sallowance would call forth an emphatic protest. 1004 MANITOBA LEGISLATION The government and legislative assembly would unitedly resist by every constitu- tional means any such attempt to interfere with their provincial autonomy. On the recommendation of the honourable the Attorney General, — Committee advise that the foregoing report of the honourable the Attorney General be approvetl. Respectfully submitted, THOS. GREENWAY, Chairman. Executive Council Chamber, 20th October, 1894. Report of the lion, the Minister of Justice, appy'oved by His Excellency the Governor General in Council on the 6th March, 1895. Department of Justice, Ottawa, 5th February, 1895. To His Excellency the Governor General in Council : The undersigned has the honour to report that certain correspondence and peti- tions have been referred to him concerning chapter 28 of the statutes of the province of Manitoba, passed in the 57th year of Her Majesty's reign (1894) intituled : " An Act to amend the Public Schools Act," which Act was assented to on the 2nd of March, 1894, and received by the Secretary of State for Canad-.v, on the 6th of March, 1894. The correspondence and petitions include the following : — 1. A petition of his Eminence the Cardinal, Archbishop of Quebec, the Most Reverend Archbishops and the Right Reverend the Bishops of the Roman Catholic Church of Canada, and others. These petitions having regard to the statute in question, seek the exercise of the power of disallowance. The undersigned observes that, while the enactment of the amending statute is made the occasion for the submission of these petitions, the grounds of complaint are mainly directed to the principal legislation of 1890, rather than the amending Act now under consideration, and so far as any grounds are urged against the validit}' of the latter Act, they do not differ in character from those which have been previously set up, and are still being pressed with regard to the statute of which it is an amendment. It appears to the undersigned, and the petitioners have not attempted to controvert the view, that any question which might be raised as to the validity of this amendment, has been set at rest by the decision of the judicial committee or the Privy CouncU in the case of " Barrett vs. The City of Winnipeg,>in which the principal legislation >'^a8 held to be intra vires of the provincial legislature. If the petitioners were to contend that the amending legislation is of a different character, and does consistently with what has been decided " prejudicially affect any right or privilege with respect to denominational schools which any class of persons had by law or practice i:i the province at the union," the question could be raised in the courts, where the matter would be judicially determined, and the Act declared invalid, if a sufficient case were established. In so far as the petitioners seek the exercise of the authority which under section 22, of the Manitoba Act, is vested in your Excellency in Council by way of appeal, it appears to the undersigned that in view of the circumstp.nccs now existing, it is unnecess- ary to deal with this feature of the petition in this report. The undersigned, therefore, in accordance wi'^h the policy adopted respecting the Act of 1890, recommends that the statute in question be left to its operation, and that a copy of this report, if approved, be transmitted to the Lieutei>ant-Governor of Mani- toba for the information of liis government, and that a copy be also transmitted to Mr. Ewart, Q.C., of Winnipeg, ilie solicitor of the petitioners. Respectfully submitted. CHARLES HIBBERT TUPPER. Minister of Justice. ■ life >ry constitu- e Attorney irnian. 'ic Governor 1895. ce and peti- ihe province d: id to on the <^^he 6th of , the Most lan Catholic srcise of the ig statute is mplaiiit are ng Act now lidity of the )U8ly set up, idment. It itrovert the idment, has unc'l in the an \ ras held t a different Y affect any persons had lised in the red invalid, der section f ajipeal, it is unnecess- Decting the I, and that f Manitoba, 53 Victoria, chapter 23, intituled " An Act to authorize companies, institutions or corporations incorporated out of this pro- vince to transact business herein," it appears to the undersigned that the statute in question is ultra vires, so far !is it relates <"-( companies incorporated by the Parliament of the United Kingdom or of Canada, also that if it could have any operation as to companies incorporated by the Par lament of Canada, it might prove prejudicial to the general interests of Canada, havinr -egard to the disposal of land in Manitoba, owned by the Crown in the rijrhf. of C*nfi.,«i, and otherwise. The undersigneti wwild. ther<-r(>re, recommend that a communication be addressed to the Lieutenant Govemo • of the province with a copy of this report (if approved) requesting his lionoui to state the reasons, if any, upon which he is advised that the Act should not be disallowed. Ilespectfully submitted. CHARLES HIRBERT TUPPER, Minister of Justice. Report of the Hon. tJie Minister of Jw^fiee, approved by His E.vcellency the Govenuyr (r^neral in Council on the (ith November, 1895. Dep\btment of Justice, Ottawa, 23rtl October, 1895. To hits E.rceli 'ncy thf Governdr in neral in Council : The undersigned ha.s the honour t' submit his report upoft an Act passed at the last session of the l«giHlature of the province of Manitolia, "iS and 59 Victoria (1895). CliApter 6, intituled : "An A''t respffting the constitution and practice of the Court of Queen's Bench, which was assented to on the 29th March, 1895, and received by the Secretary of Stat* for Canada on the 6th April, 1895. ^' 58-59 VICTORIA, 1895, 1007 e and hold money on in the pro- 1 privileges ince, which ompetence rliament of n Council in the pro- jrovince or the legisla- lich might or by the le province, that none consent of lorn cannot signed, it is vhich have .uthority of e Minister uly, 1887, tuled " An ley in this decessor in passed by tuled "An of this pro- e statute in Parliament ation as to cial to the oba, owned e addressed f approved) ed that the uatice. e GoveriMr 1895. ased at the iria (1H95). -ice of the id received By section 85 it is enacted that the judges of the several county courts other than the judges of the county court for the eastern judicial district, or any portion thereof, shall be judges of the Court of Queen's Bench for Manitoba, for the purposes of their jurisdiction in connection with the Court of Queen's Bench, and that in the exercise of such jurisdiction they may be styled local judges of the court, and by rule 31 of the rules of court appended to the statute, it is provided that the county court judge of every judicial district, other than the eastern judicial district, or parts thereof, shall in all actions brought in his judicial district be a local judge of the court. This legislation, in the opinion of the undersigned, so far as it intends to constitute and appoint judges of the county court, as local judges of the Court of Queen's Bench, is ultra vires. It appears to the undersigned, however, that these pr visions may he construed as constituting the office and jurisdiction of local judge, and declaring judges of the county court eligible for appointment, in which view, if commissions were issued by your Excellency appointing the county court judges as local judges of the high court within their respective judicial districts, no doubt could exist as to the validity of such appointments. The undersigned, therefore, recommends that the Act be left to its operation, and that a copy of this report, if approved, be transmitted to the Lieutenant- Governor of the province for the information of his government. Respectfully submitted, CHARLES HIBBERT TUPPER, Minister of Justice. Copy of a report of a Committee of the Executive Council re Cliapter J^ approvi d by His Honour the Lieutenant-Governor on 7th February, 1890. On the recommendation of the honourable the Attorney-General, the committee advise that report of the honourable the Attorney-General annexed, hereto, be approved. Certified, C. GRAYBURN, Clerk, Execntive Council. Report of the Hon. the Attorney General of Manitoba. Winnipeg, Man., 7th February, 1896. The undersigned has the honour to report that he had under consideration the Order in Council of the 8th of November submitted by his honour the Lieutenant- Governor for the consi.leradon of his government and relating to a statute of the pro- vince of Manitoba passed in the fifty -eighth year of Her Majesty's reign, 1895, intituled " An Act respecting Cor[)orations incorporated out of Manitob," assented to on the 28th day cf March, A.D. 1895, and received by the Secretary of State for Canada, on the 6th day of April, A.D. 1895. As stated in the said Order in Council the said Act contained among others the following provisions : — Section 2. " Any company, institution or corporation duly incorporated under the laws of Great Britain or Ireland or of the Dominion of Canada, or of the late province of Canada, or of any state of the United States of America, or of any other foreign state or country duly authorized to carry out or effect any of the purposes or objects to which the legislative authority of the legislature of Manitoba extends, may obtain a license from the Lieutenant-Governor in Council, auihorizin^ it to carry on its business within the province of Manitoba, on ctimplianct* with the jirovisions of this Act, and said company, institution or corporation, shall theretpon have the same powers and privileges in Manitoba as if the same were incorporate- under the provisions of a statute 1008 MANITOBA LEGISLATION llli^ of the province of Manitoba; Provided however, that the Lieutenant-Governor in Council may restrict such license in any manner that may seem desirable." Section 9. " No company, institution or corporation, not incorporated under the provisions of the statutes of this province and not having obtained a license under this Act, except those mentioned in subsection 2, of section 2 of this Act, shall be capable of taking, holding, or acquiring any real estate within this province, or of exercising the powers mentioned in section 1 1 of this Act." Section 11. " Such company, institution or corporation so licensed, may take and hold any mortgages or real estate and any railway, municipal or other bonds of any kind whatsoever, and on the security thereof may lend its money, whether the bonds form a charge on real estate within the province or not, and may hold such mortgage in its corporate name, and may sell and transfer the same at its pleasure, and in all respects shall have and enjoy the same powers and privileges with regard to lending its moneys and transacting its business within the said province as a private individual might have and enjoy, so far as may be within its corporate powers and within the competence of the legislature of Manitoba to grant : " Provided however, that save as provided in section 10, of this Act, " such com- pany, institution or corporation shall oell or dispose of any real estate to which it may acquire a title in fee simple, by foreclosure, by the release of the equity of the redemp- tion therein, or in any other way whatsoever, within twelve years from the date of acquiring title as aforesaid ; " and " Provided also, that if any such company, institution or corporation shall hold the personal covenant of any mortgagor for the mortgage, debt and interest, or shall have recovered judgment therefor, or a personal order for payment of the amount, the said company, institution or corporation may, upon discharging the mortgagor or his executors administrators and assignee, from such covenant, debt or order, hold the said real estate for a further term of five years ; but such discharge shall be given prior to the expiration of the term of twelve years above mentioned, and evidence thereof shall be filed with the provincial secretary." 46 and 47 V., c. 33, s. 5 part ; 49 V., c. 42, s. 5 ; 52 V., c. 35, s. 30. The order in council declares the Act in question, in the opinion of the honourable the Minister of Justice to be ultra vires of the legislature of Manitoba, and it is desired that if any reasons exist why same should not be disallowed, such reasons should be made known. The Act was passed at the last session of the legislature of Manitoba, largely for the purpose of consolidating the law upon the subject of foreign corporations. It was not intended by the legislature to incorporate any important new principle into the statute law upon the subject, nor in the opinion of the undersigned has any such principle been so incorporated. The principle of the above section 9, which is the portion of the Act particularly complained of, has been clearly laid down in the statute law of Manitoba since the year 1886, It is in effect a re-enactment of section 13, of chapter 24, of the revised statutes of Manitoba which in turn was taken from section 4, of chapter 11 of the statutes of 1886. Although the wording of section 9 of the Act in question is slightly different from the wordihg of the former sections, the principle is not altered, and the extension of the operation of the principle would appear, from a careful exami- nation, to be very limited in practical effect. The section quoted from the Revised Statutes, chapter 24, section 13, forbids the holding or acquiring of any real estate in the province by a foreign corporation except under license from the provincial authority. This prohibition would prevent the effec- tive exercise of most, if not all, of the powers mentioned in section 1 1 of the present Act. The section complained of, therefore, as a matter of fact, introduces no new principle into the statute la v of the province, and if it extends the operation of a principle already recognized, the extension is extremely limited in effect. It is sub- mitted that the fact of the section in question being merely a re-enactment of a statu- tory provision, which had been enacted and permitted to stand for years, and which has never been attacked in the courts of this province, is itself a sufiicient reason why the Act in question should not be disallowed, except special reasons can be assigned there- for, or except legal authority for declaring the clause to be unconstitutional has arisen ij,'^^ 58-59 VICTORIA, 1895. 1009 avernor in under the [under this I be capable prcising the take and Ids of any the bonds mortgage and in all lending its 1 individual irithin the such com- ch it may le redemp- e date of institution ;gage, debt or payment arging the nt, debt or harge shall ;ioned, and v., c. 33, s. honourable t is desired lid be made gely for the [t was not the statute nciple been •f the Act f Manitoba 24, of the ipter 11 of [uestion is lOt altered, ful exami- 'orbids the ion except t the effec- ■esent Act. s no new 'ation of a It is sub- jf a statu- which has 1 why the led there- has arisen in the meantime. No special reasons aie assigned, and it is not thought that any legal authority has arisen indicating tho Act to be unconstitutional. It is also submitted as a conclusive reason why the Act should not be disallowed, that such disallowance will not operate to remove the provision complained of from the statute law of the province, because it will revive chapter 24 of the Revised Statutes of Manitoba, which contains, as above stated, an almost exactly similar provision. If there is any difference in effect in the two sections, the difference is very slight, and it may be affirmed with certainty that the principle of the two sections is precisely the same. Upon the general principle of the section in question, it is submitted with all deference, in opposition to the view of the honourable the Minister of Justice, that the said section is not ultra vires of the legislature. The powers conferred by the Imperial parliament and the Dominion parliament upon such companies as may be affected by the Act, are not conferred in derogation of the power of the legislature of the province to legislate upon the suV)jects of property and civil rights. While the Acts or charters of incorporation may be perfectly valid and are so recognized, it is submitted that it is perfectly competent for the legislature to make provision as to the conditions, under which such companies shall transact business affecting property and civil rights in the province. The cases of the Citizens' Insurance Company of Canada, and the Queen's Insur- ance Company, of Canada, vs. Parsons, 7 Appeal Cases, 9G, and the Colonial Building and Investment Association vs. the Attorney General of Quebec, 9 Appeal Cases, 157, clearly lay down the principle above affirmed, and following these cases it is submitted that the enactment here complained of would be held to be intra vires, if submitted to the courts. If the Act, therefore, be intra vires, and of a purely local nature, seeking only to make regulations affecting the transaction of business within the province which are in ilo way prohibitive, vexatious or difficult to comply with, it is submitted that there is no valid reason why the Act should be disallowed. All of which is respectfully submitted, CLIFFORD SIFTON, Attorney General. Report of the Hoii, the Minister of Justice, apjiroved by His Excellency the Governor General in Council on the 25th March, 1890. Department of Justice, Ottawa, 12th March, 1896. To His Excellency the Governor General in Council : The undersigned has the honour to refer to the report of his predecessor, dated the 24th of October last, which was approved by your Excellency in Council on the 8th of November last, touching a statute of the province of Manitoba, passed in the fifty-eighth year of Her Majesty's reign (189.^) intituled "An Act respecting Corporations incor porated oat of Manitoba," and to the observati(jns thereon of the honourable the Attor ney General for the province of Manitoba as set forth in a copy of a report of a commit- tee of the Executive Council of that province, approved by his honour the Lieutenant- Governor on the 7th February last, which report has been referred to the undersigned by your Excellency in Council. The undersigned is unablf* to concur in the sufficiency of the reasons urged by the Attorney General in support of the enactment in question. It is doubtless true that the Act is intended to consolidate the Foreign Corporations Act of Manitoba, as amended by the provincial statutes, 55 Victoria, chapter 4, and 56 Victoria, chapter 5, but it is ilso in- tended to enlarge the s ope of previous legislation in a manner which the undersigned con- ceives to be ultravires of the legislature, and prejudicial to the general interests of danada. The previous statutes appear to have been left to their operation without remark, and it is not necessary at present, nor would it be useful to consider whether those statutes are up- held by the dictum of the judicial committee of the Privy Council in the caseof TheCitizens' 1010 MANITOIU LEGISLATION, 58-59 VICTORIA, 1895. Insurance Company of Canada w. Parsons, L. R. 7, Appeal Cases 90, as re-stated and affirmed in the case of the Colonial Building and Investment Association rn. The At- torney (Jeneral of Quebec, L. R. 9 Appeal Cases, 157. If that question were now pre- sented, it would be necessary to inquire how far, in view of the later decisions of the Judicial Committee in the cases of Tenant V8. The Union Bank of Canada, and the At- torney General of Ontario vs. The Attorney General of Canada, Appeal Cases, 1894, 31 and 189, effect would be given to the dictum as affecting Dominion corporations in the exercise of powers conferred upon them by parliament and strictly relating to the sub- jects of legislation enumerated in section 91 of "The British North America Act." The principal ground upon which the statute is stated to be iiftra viren in the report, which was approved by your Excellency on the 8th November last, is the incompet- ency of a provincial legislature to prohibit the exercise of powers conferred either by the parliament of the United Kingdom, or within the scope of subjects enumerated in section 91 of "The British North America Act," by the Parliament of Canada. The undersigned cannot agree in the statement that such legislation can be sup- ported upon the principle (wl ich he does not concede to haVe been established by the judicial committee) that authority to hold land conferred upon a corporation by the Dominion parliament, would be limited in each province by the laws respecting mort- main prevailing there. The undersigned apprehends that it has been held by the two last mentioned decisions of the committee that the legislative powers of the parliament of Canada, depending upon section 91 may be fully exercised, although with the efifectof modifying civil rights in the province ; also that the Dominion Parliament, in legislating with regard to a subject enumerated in section 91, has power to enact ancillary provisions, relating to the enumerated subjects, and aftecting rights, which but for the enactment of such provisions by parliament would have been within the legitimate range of provin- cial legislation. It is evident that the authority thus possessed by parliament would be illusory and not capable of effective use, if the operation of a Dominion statute, enacted in pursuance of such authority, may be limited by a provincial legislature in the manner in which it is now sought to limit the exercise of rights competently conferred by par- liament. These considerations, in the opinion of the undersigned, constitute special reasons for the disallowance of the statute, notwithstanding the fact that it contains other provisions which derived effect from previous legislation, which has been repealed by the Act in question. No attempt has been made to justify the Act as a measure of taxation. To the undersigned it appears that its object is rather to control the business of corporations not incorporated by the legislature of the province, than for the purpose of revenue, because, among other reasons, the Lieutenant-Governor is given power to restrict the license in any manner that may seem desirable, and the extent of land which any company licensed may hold in perpetuity in any city, town or village, is also limited by the statute to one acre, notwithstanding that the company's charter may empower it to hold more land. The undersigned fails to recognize any reason arising out of this view of the case, which should influence the conclusion to which he has arrived, upon the grounds already adverted to, that the general interest requires the disallowance of the Act. The undersigned, therefore, and for the additional reasons stated, and referred to in the approved report of the 8th November last, recommends that the Act be disal- lowed. The undersigned further recommends that a copy of this report, if approved, be transmitted to the Lieutenant-Governor of the province^for the information of his gov- ernment. Respectfully submitted, A. R. DICKEY, Mi'nister of Justice Order in Council disallowing the Act above mentioned, published in the Canada Gazette on the 11th of Ai^ril, 1896, Vol. XXIX., No. U, page 1879. 36 VICTORIA, 1872. ion BRITISH COLUMBIA, 35th VICTORIA, 1872. 1st Skssion— 1st Parliament. Rer>ort of the Honourable the Minister of Mce^ ^P--^,/^/ "^' ^"''^^''"'y "" nepon oj g^^^^^^or Gemral on the mh September, 18 <^. Department of Justice, Ottawa, 18th September, 1872. 1 u 1 c(\ oTi.l flntPfl the 11th May last, from the Lieutenant- ,. .s rr.i ^H5uir rruntTctet sta,i:t,ai^^ franchise, in respect to ihe ^^S f ^J ^^^l.^'^J'^'^j^^^^ instructions furnished to gov- tl^J^^Z^^^^:^^^^^ Act, 1867, section 01, sub- '''*Xot the first point the undersigned is of opinion that the Imperial iuftructions ......iiT^::::jo^ colonic -^-^i^-:ns;i:i^s=^rr,:;:::trs the Queen, are .^^^ ^PPl^'^'^^^^ *? *„^' '^'''^he q^^^^^^^ under the great seal Canada, who receive their commions from the Oo^^^^^^^ ^^^^^^^ ^^^^^ :L'„^iir'^^^^ "^' - '^-"^'^ -' -'-'-' of the council. , , » u„ „„:^ fr. tho terms of instructions which had Upon the second P«-J. .^ ^^^^^e" t^^ to state that he as it has been exercised in this instance the undersignear ^^bsection 24, which is of opinion that the ^^-^^^tl^^^e^^^^.f-^ Ihe prrUament of Canada, indians t:rLTZTSt:rJ^^Z'^Zl to leglsLon connected with Indians g— e\Tdtr':/rhfQre;tc^^^^^^^^^ which British Columbia was admitted to the union, is section 13, as follows :— i ILI 1012 UniTISII COLUMUIA LEOI8LATI0N " The chnrf^o of the Indians, and the trusteeship and arrangement of the lands reserved for their usti and benefit, sliiill ho assumed by the Dominion Government, and a policy as liberal as that hitherto pursued by the Hritish Columbian Oovernment, shall be continued by the Dominion government after the union." But by section 10 of that Order in Council, the provisions of the British North Anierica Act, 1867, "shall, except, &c., be applicable to British Columbia, in the sivme way, and to the like extent, as they apply to the other provinces of the Dominion, and as if the colony of British Columbia had been one of the provinces originally united by the said Act," and ly section 14, "the constitution of the executive authority, and of the legislature of British Columbia, shall, sul)ject to the provisions of the British North America Act, 18(57, continue as existing at the time of the union, until altered under the authority of the said," &c. % Now it is by the "British North Act, 18G7," section 92, enacted that in each pro- vince the legislature may exclusively make laws in relation to, amongst other classes, th(! following, viz. : — " The amendment, from time to time, notwithstanding anything in this Act, of the constitution of the province, except as regards the office of lieutenant- governor." This, it is apprehended, confers on each province the right of legislating as to ita franchise. It may be mentioned that this right has been exercised by the province of Ontario in respect to the right of Indians to vote in the district of Algoma at elections of mem- bers of the legislative assembly of that province, by 3.3 Victoria, chapter 25, section 34, which excepts from the rights of franchise " Indians belonging to tribes and Indians in receipt of government aid or bounty." Under these circumstances, the undersigned is of opinion that the legislature of British Columbia have authority to legislate in their own discretion as to parties by whom the right of franchise in respect of the legislative assembly may be exercised. The undersigned has, therefore, the honour to report that, in his opinion, this Act may receive the assent of the Governor General. The undersigned recommends, however, that the attention of the Lieutenant- Governor of British Columbia be called to the 10th section of the Act, which provides a substituted section for section 3 of the Act which it proposes to amend. By this section it is provided who shall have the right to vote at elections of mem- bers of the legislative assembly, and amongst other requisites is one that the voter shall be entitled to the privilege of a natural born British subject, &c. But it is pro- vided " that no natural-born IBritish subject who has removed his allegiance, or sworn allegiance to any foreign state, or become the citizen of any foreign state, shall be entitled to be registered under the provisions of this Act, until he shall have taken the oath of allegiance to Her Majesty, before some judge of the supreme or county court, magistrate or justice of the peace in this province which oath such judge, magistrate or justice of the peace is hereby authorized to administer," ifec. Upon the principle before suggested, that it is within the legislative authority of the province to regulate by whom the franchise shall he exercised, it is within their authority to provide, if they so desire, that aliens shall not have the right to vote ; but if this proviso be intended to have the effect of naturalizing, as a British subject, any person who has remove 1 his allegiance, or sworn allegiance to, or become the citizen of any foreign state, &c., it is recommended that the legislature of British Columbia be invited to repeal the proviso, as the subject of the naturalization of aliens is one which by the " British North America Act, 1867, ' section 91, subsection 25, is left exclusively to the legislative jurisdiction of the Parliament of Canada, and Acts have been passed accordingly — 31 Victoria, chapter 66, and 34 Victoria, chapter 22 — and reference may further be had on this subject to the Acts of the Imperial Par- liament of the 33rd Victoria, chapters 14 and 102, as amended further by an Act of 1872, in respect to the modes by which British nationality may, under certain circum- stances, be resumed. H. BERNARD, I concur in this report. Deputy Minister of Justice. JOHN A. MACDONALD. . i t r . ^ t^mt m -^ tn iT-' ' ■ '"■ -' ^^- %. % V^. ^ •^^' «0. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I ^m iiM 1^ lU III 2.2 12.0 1.8 IL25 IIIIII.4 nil 1.6 Photographic Sciences Corporation 4 // ^ /. \ ;v ^ % A R' !> •'^ \\ ^\ '4^1'^. ^ 23 WEST MAIN STREET WrrST^EIl, .>I.Y. 14580 (/ t») 872-4503 Mt$«n9^««n>aAiin^n^ CIHM/!CMH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadian Institute for Historical MIcroreproductlons / Instltut canadlen de mlcroreproductlons historlques "» 35 VICTORIA, 1872. 1013 Report of the Hon. the Minister of Justice, approved by His Excellency the Governor General in Council, on the 30th September, 1872. Department op Justice, Ottawa, 25th September, 1872. Upon a despatch (No. 60) dated the 11th of May last, from the Lieutenant- Governor of British Columbia, transmitting certain bills passed by the legislative assembly of that province during its then recent session, which had been reserved for the signification of the pleasure of the Governor General, and transmitting, also a copy of the report of the Attorney General, the undersigned has the honour to report as follows : — "An Act to amend the Military and Naval Settlers' Act, 1863." The object of this Act is to enlarge the facilities for the acquirement of land in British Columbia by military and naval settlers, having regard to certain provisions of No. 43 of the Revised Statutes of 1871, which it is proposed to amend and extend in its operation. The undersigned is of opinion that the operation of this Act would be in conflict with the 11th section of the terms of union of British Columbia with Canada, and he recommends, therefore, that the assent of the Governor General be withheld therefrom. I concur. H. BERNARD, Deputy Minister of Justice. JOHN A. MACDONALD. Report of the Hon. the Minister of Justice, approved hy His Excellency the Governor General in Council, on the 12th October, 1872. Department of Justice, Ottawa, 8th October, 1872. Upon a despatch (No. 60, dated the 1 1 th May), from the Lieutenant-Governor of British Columbia, transmitting certain bills passed by the legislative assembly of that province during its then recent session, which had been reserved for the significa- tion of the pleasure of the Governor General, and transmitting, also, a copy of the report of the Attorney General, the undersigned has the honour to report as follows : — " An Act to impose a Wild Land Tax." This Act imposes a tax of four cents an acre upon all lands, with certain exceptions. By subsection a of the first clause of this bill, lands vested in, or held in trust for Her Majesty, or for the public uses of the province, are exempt from the tax. Although, under this exemption, the lands to be conveyed in trust by the Govern- ment of British Columbia to that of the Dominion under the 1 1th section of the terms of union between British Columbia and the Dominion, will be free from the tax, it is clear that whenever these lands are conveyed to any company incorporated for the pur- pose of the construction of the Pacific Railway, the exception will cease. Now the imposition of so heavy a tax as 4 cents an acre upon this large tract of wild land will render it practically valueless. The Government of Canada are taking active steps to endeavour to induce capitalists to engage in the great undertaking of constructing a railway to connect the two oceans. The chief inducement to such capitalists is the promise of a large grant of land in aid of the enterprise, and the imposition of such a tax upon these railway lands would greatly diminish the prospect of a company being formed. The Attorney General seems to agree with the undersigned in this opinion. Under the circumstances, therefore, the undersigned begs respectfully to recommend that the assent of your Excellency be withheld from this bill. 64 i •mm ■-^,^^.^,,^sy^,y,>^.-y.y«M^ . «.., >w-v wffw'^^ .»jn i-^ P # y ^f s y w! M ^ uwr i B P ; ^ ■ ■; ;■ - ' ."i,M ' 'i-y8M{ W iay w w; i iiy S!> ' ^.fi f y!. '!f r ■ 1014 BRITISH COLUMBIA LEGISLATION He also bews leave to suggest that the Lieutenant-Governor of British Columljia be instructed to press upon his government, the expediency of exempting these railway lands in any Act that may be hereafter passed imposing a land tax. He would further suggest, to prevent the possibility of a doubt, that subsection a, above referred to, should in any new Act l)e amended, by exempting lands now or at any time hereafter vested in or held in trust for Her Majesty, t All of which, &c., JOHN A. MACDONALD. Report of the Hon. the Minister of Justice, approved by Ilis Excellency the Governor General on tlie 2Srd December, 1872. Department of Justice, Ottawa, 18th December, 1872. With reference to an Act passed by the legislature of the province of British Columbia at its first session, 35th Victoria, No. 4 : " An Act to define the privileges, immunities, and powers of the legislative assem- bly, and to give summary protection to persons employed in the publication of Sessional The undersigned has the honour to report that the same is objectionable. TheAct in question appears to be a transcript of the Act of the province of Ontario, 32nd Vic, cap. 3, 1868. Upon the last mentioned Act, the undersigned had the hoMOi.r to report that it was objectionable, and that it appeared to him that it w as in e:.ccis of the power of the provincial legislature. ^ „. . r xl The report of the undersigned was transmitted to the Secretary ot state tor the Colonies, and by him referred to the law officers of the Crown in England, and the Attorney General and Solicitor General advised that, having considered the Act, they were of opinion that it was not competent for the legislature of the province of Ontario to pass it, and that it was inconsistent with the provisions of sections 92 and 96 of the "British North America Act, 1867." Under these circumstances, the Act of Ontario in question, was disallowed by proclamation of his Excellency the Governor General. The undersigned has, therefore, the honour to recommend that communication be had with the Lieutenant-Governor of British Columbia to the above effect, and suggest- in" whether, under the circumstances, it is not advisable that the Act in question should be^repealed during the second session of the legislature of that province. JOHN A. MACDONALD, Minister of Justice. Note.— Repealed by Act oj British Columbia, 1873, 86th Victoria, cap. 35. Report of the Honourable the Minister of Justice, approved by His Excellency the Governor General iji Council on the J^th January, 1873. Department of Justice, Ottawa, 2nd January, 1873. The undersigned, to whom were referred certified copies of the Acts passed by the legislature of British Columbia, in the 35th year of Her Majesty's reign, and assented to by the Lieutenant-Governor on the 11th of April last, has the honour to report.- — ^olumljia be lese railway subsection ids tioiv or iLD. he Governor ber, 1872. se of British ative assem- of Sessional le. TheAct , 32nd Vic, t that it was Dower of the State for the nd, and the e Act, they se of Ontario nd 96 of the lisallowed by unication be and suifgest- estion should ■ Justice. 35. ' the Governor ry, 1873. passed by the and assented o report ; — \ » 35 vicTOKiA, 1872. 1015 That he has examined carefully the said Acts, and with the exception of those underaientioned, finds them unobjectionable and such as could properly be passed by the legislature. The Acts to which exception is taken are as follows : — No. 4. " An Act to define immunities, privileges and powers of the Legislative Assembly, (fee." A separate report has been made on this Act. No. 12. " An Act to make provision for inquiries respecting Public Matters." The second clause of this Act is objectionable, inasmuch as it declares any wilfully false statement made by a witness on oath, to be a misdemeanour, punishable in the Same manner as wilful and corrupt perjury. This is legislation respecting criminal law, which by the Union Act, is vested in the parliament of Canada. No, 31. "An Act to amend the Land Ordinance, 1870." The fourth clause of this Act is objectionable for the same reason as above given with respect to Act No. 1 2. No. 35. " An Act respecting Municipalities." The 18th clause of this Act is also objectionable for the same reason. The attention of the government of British Columbia should be called to the three last mentioned Acts with a view to the repeal of the objectionable clauses during the present session of their legislature, and the undersigned would take the liberty of suggesting, that by the 15th paragraph of the 92nd clause of the " British North America Act, 1867," a local legislature can er^fnrce laws, by fine, penalty or imprisonment, without declaring any breach of those laws to be a crime. No. 26. " An Act respecting the registration of births, deaths and marriages in the province of British Columbia." The undersigned, while he recommends that this Act should be allowed to go into operation, desires to call attention to the fact that the power of the local legislature to pass the same may be questioned, as being connected with statistics, which by the 91st section of the " British North America Act, 1867," paragraph 6, is a matter within the jurisdiction of the parliament of Canada. No. 36. " An Act to make provision for the registration in British Columbia of certain Foreign Companies." While also recommending that this Act be allowed to go into operation, the undersigned would, at the same time, express his opinion that no foreign company, having other than provincial objects, " can legally be registered under this Act." SiK " British North America Act, 1867," section 92, paragraph 11. The undersigned has, therefore, the honour to recommend that all the said Acts be left to their operation, except Nos. 4 (already reported upon) 1 2, 31, 35. JOHN A. MACDONALD, Minister of Justice. Lieutenant-Governor Trutch to the Hon. the Sicretary o/ State for Canada. GovERNMENr HousE, BRITISH COLUMBIA, 31st January, 1873. Sir, — With reference to your despatch, No. 134, and No. 1, the contents of which I duly communicated to my ministers, T have the honour to inclose herewith, for the information of his Excellency the Governor General, a minute of the Executive Council of this province, expressing the concurrence of this government with the suggestions conveyed in your said despatches, for the repeal of Act No. 4 of the last session of the legislature of British Columbia, and for certain amendments of Acts No. 12, No. 31, and No. 35 ; and I have further to state that the bills to carry those suggestions into eflTect, have been laid before the legislative assembly. I have, (fee, ' JOSEPH W. TRUTCH, - Lieutenant-Governor. 64i :m A _!-ir{S;^lf >-;!■? »,.V1--|-. ■■ v < frt ^i^M i ^vvii>r vw ^^»^ t ^ rcr 1016 BRITISH COLUMBIA LEGISLATION Copy of a Report of a Committee of the Honourable the Execxitive Council, approved by Ilia Honour the Lieutenant-Governor in Council on the 27th January, 1873. On a memorandum dated 27th January, 1873, from the Honourable the Attorney- General, reporting that it is advisable to repeal Act No. 4 of last session, " The Legis- lative Assembly Privileges Act, 1872," the same having been declared unconstitutional by the lav/ officers of the Crown in England, to whom a similar Act passed in Ontario, in 1.S68, was referred for their opinion. Also, that Act No. 12, "The Public Inquiries Aid Act, 1872," be amended by striking out that part of section 2 constituting a false statement a crime, by the use of the word "misdemeanour." »-" RI-, «i That Act No. 31, "The Land Ordinance Amendment Act, 1872," be amended in section 4 by striking out " shall be guilty of a misdemeanour and," and that a clause to that effect be inserted in the Land Amendment Act, 1873. That Act No. 35, "The Municipality Act, 1872," be amended in section 18 by striking out the words " be guilty of a misdemeanour and," and that a clause to that effect be inserted in the Municipality Amendment Act, 1873," The Secretary of State for the provinces has suggested the said repeal and said amendments. The Attorney General recommends the changes. The committee advise that the repeal and amendments in the different Acts be approved. J AS. JUDSON YOUNG, Clerk Executive Council. 36 VICTORIA, 1872-73. 1017 proved by His 1873. ihe Attorney- , " The Legis- 3onstitutional id in Ontario, amended by by the use of 16 amended in lat a clause to section 18 by clause to that jpeal and said imittee advise Council. BRITISH COLUMBIA, 3Gth VICTORIA, 1872-73. 2nd Session — 1st Parliament. Lieutenant-Governor Trntch to the Hon. the Secretary of State for the Provincea. Government House, British Columbia, 5th March, 1873. Sir —I have the honour to inclose herewith a minute of the Executive Council expressing the opinion that it is advisable, in the interests of this province that the " Aliens Ordinance, 1867," of British Columbia, should be so amended tiiat aliens may, at any time, upon making a declaration before a justice of the peace, of their intention to become British subjects, be entitled to the privileges oi citizenship, as far as availing themselves of the rights of pre-emption, under the land law of the province, subject to the fulfilment subsequently of the requirement of the Act as to their taking the oath ot allecriance in the Supreme Court of British Columbia, before a crown grant ot any land pre-empted by them shall be issued ; and requesting me to urge the Dominion government to take steps towards the passage of such a measure by the parliament ot ''^'^Ibeg therefore, that you will lay this despatch and its inclosure before his Ex- cellency the Governor General, and commend the desire of this government to his Excellency's favourable consideration. I have, &c., JOSEPH W. TRUTCH, Lieutenant-Governor. Copy of a repcrt of a Committee of the Honourable the Executive Council, approved by His Honour the Lieutenant-Governor in Council on the 28th February, 1873. On a memorandum, dated 17th February, from the Honourable the Chief Commis- sioner of Land and Works, reporting that application is constantly being made by ahens now resident in other countries, for information as to the terms upon which they can pre-empt land in British Columbia, and that the present law compelling such parties to reside one year in the province before allowing them to pre-empt virtually prohibits their settlement in this province ; and recommending that his Honour the Lieuten- ant-Governor be requested to urge upon the Dominion government the advisability ot amending the present Alien Act of British Columbia, so that aliens who may signify their intention, before a justice of the peace, to become British subjects, may be able to pre-empt land within this province, immediately after their having made such declaration. , . i j The committee advise that the recommendation be approved. ( JAS. JUDSON YOUNG, Chrk Executive Council. Report oj the Honourable the Minister of .Justice, approved by His Excellency the Gov- Governor General in Council on the 7th June, 1873. Department of Justice, 3rd June, 1873. The undersigned, to whom was referred the letter of his Honour the Lieutenant- Governor of British Columbia of 5th March, 1873, requesting that the Dominion ■*'f r^.|,^.4St3ssf^'y.-^*ii!R'■•»^rt^'Jvy ,\hij1;g',';'^t?>,*!:K<-t^^S^/^,'-« ■ H I. M i j i^ , , . |M ,^. y . np. .iy f. |. j j- | ^f ^,_«J |. 1018 BRITISH COLUMBIA LEGISLATION government would take steps for the passage of ar Act by its legislature, amending and extending the "Aliens Ordinance Act, 1867," of that province, has the honour to report that by the terms of the British North America Act, 1867, as applied to British Columbia, the jurisdiction over property and civil rights is vested in the pro- vincial legislatures exclusively, who by law can determine the terms upon which aliens may become entitled to pre-empt land within the province. The right of legislating upon naturalization possessed by the Dominion legislatures, extends only to conferring "political status." JOHN A. MACDONALD, Minister of Justice. Lieutenant-Governor Trutch to the Hon. the Secretary of State of Canada. Government House, British Columbia, 27th February, 1873. Sir, — I have the honour to transmit herewith, for such action as his Excellency the Governor General may be pleased to take in reference thereto, an authenticated copy of a bill, chapter 43, intituled : "An Act to render children born out of lawful wedlock, whose parents now are, or may hereafter, under certain restrictions, be married," which was passed by the legislative assembly during its recent session, but has been reserved by me for the signification of his Excellency the Governor General's pleasure in regard thereto. I also inclose, for his Excellency's consideration, a copy of the report of my Attorney General on the bill. I have, r of Justice, approved by His Governor General in Council on the 13th March, 1874- Excellency llie I)epartmi:nt of Justice, Ottawa, 9th March, 1874. Upon the despatch of the Lieutinant-Governor of British Columbia, dated •_'7th February, 1873, received by the Secretary of State on the 14th March the undersigned has the honour to report, tliat the 2nd chapter, intituled : " An Act to auth— ize one Justice of the Peace to do any act, matter or tiling heretofore to be done by two Justices of the Peace, and to give an Appeal to Courts of General or Quarter Sessions," provides that one Justice of the Peace may act in place of two, and also as to the validity of war- rants ; and that any person who shall feel himself aggrieved by the judgment of any justice or juatices adjudicating, or before whom he was convicted, may appeal to the next court of general or quarter sessions of the peace. The undersigned has the honour to state that this is legislation respecting the law of criminal procedure, which appertains solely to the parliament f)f the Dominion, and the undersigned recommends, therefore, t!"^ 'he Act in question be disallowed. A. A. DORION, Minister of Justice. Order in Council disallowimj the Act abovi ntioned, publisheil in the Canada Gazette on the 14th day 0/ March, 1874. Vol. ''II., So. 37, page 11 89. Report of the Honourable the Minister of Justice, approved by His Excellency the Governor General in Council on tuc 15th March, 1874- Department of Justice, Ottawa, 9th March, 1874. In further report upon the despatch of the Lieutenant-Governor of British Columbia, transmitting the Acts passed by the legislature of that province in its second session, the undersigned has to report upon the following Acts ; — Chap. 1. " An Act to amend the Land Ordinance Act, 1870." Chap. 3. " An Act to amend the Mineral Ordinance, 1869." Chap. 4. " An Act to amend the Gold Mining Ordinance, 1867, and the Gold Mining Amendment Act, 1872.'' These Acts are respectively reserved as to their operation, either by express enact- ment or in effect, until the 2 Ist day of Jnly, 1873, and that date is evidently fixed as being at the expiration of the period of two years, by which, under the terms under which British Columbia entered the union, land was to be reserved Ijy the government of British Columbia from sale, with a view to setting apart such lands as are requisite for the Canadian Pacific Kail way. As such period of two years expired on the 21st July, 1873, the province had po.ver to pass laws and make other arrangements for the sale of their land,s, and there is, therefore, no objection to the passage of these Acts ; and the undersigned has the honour to recommend, therefore, that they be left to their operation. ^ u • • u But he suggests that communication be had with the Lieutenant-Governor of British Columbia, calling his attention to the practical inconvenience which must ensue to the government of Canada and British Columbia, if land be sold by the province on any portion of the line which may hereafter be selected as that of the Canadian Pacific Rail- way, and that his consideration be requested to the propriety of withholding from sale, or rights of pre emption, lands which, in so far as surveys have been heretofore made, can possibly be contiguous to the line of railwa;, if any one of such surveys be adopted. A. A. DORION, Minister of Justice. -JH^lUP 1024 BRITISH COLUMBIA LEGISLATION BRITISH COLUMBIA, 37th VICTORIA, 1873-74. 3rd Session — 1st Parliament. , Report oj the Honourable the Minister of Justice, apjrroved by His Excellency tJie Governor General in Conncil on the 2Srd January, 1875. Department of Justice, Ottawa, 19th January, 1875. Tlie undersigned, to whom is referred copies of the statutes of the legislature of British Columbia, passed in the session held in the 37th year of Her Majesty's reign, has the honour to report : — That the following Acts appear unobjectionable, and he recommends that they be left to their operation, viz. : — Noa. 1,3, 5 to 8, 10, 11, 13 to 25. H. BERNARD, Deputy Minister of Justice. I concur. ' -- ' T. FOURNIER, Minister of Justice. Bejwrt of tlie Honourable the Minister of Justice, approved by His Excellency the Governor General in Council on the 23rd January, 1875. Department OP Justice, Ottawa, 19th January, 1875. The undersigned has the honour to report : — That the Act passed by the legislature of the province of British Columbia, in the 37th year of Her Majesty's reign, and assented to on the 2nd March, 1874, is the following : — No, 2, intituled ; " An Act to amend and consolidate the laws affecting Crown Lands in British Columbia." Tlie title of the Act explains its object. It is a consolidation of the laws relating to the recording and pre-emption of lands, the surveying and sale of them ; the regulation of miners' rights, &c. By its concluding section, the Act is not to come into force, until the Lieutenant- Governor's assent thereto has been proclaimed by notice in the British Columbia Gazette. The 2nd, or interpretation clause, defines that the words " Crown lands " shall " meun all lands of this province held by the Crown in free and common soccage " It is probably through inadvertence that this definition has been made, and that the tenure of free and common soccage, which is that of freehold under grant from the Crown, is made applicable to lands of the Crown held as such by the Crown as lord of the .soil. Were it an intentional definition, it could only then mean a recognition of the Indian sovereignty therein, and that Her Majesty is tenant by freehold. Abandoning, therefore, th s statutable definition, which is inapplicable, the words " Crown lands," may, for the \ urpose of this memorandum, be considered to mean all lands in the province vested in the Crown of which no grant had been made. A distinction is made between "unsurveyed land " and " surveyed land." As to " unsurveyed land," it provides that any person qualified under that section may record any tract of unoccupied, unsurveyed and unreserved Crown lands (not being an Indian uetttlement) not exceeding the extent mentioned ; itoBKaii 74. 'y the Governor iry, 1875. legislature of ajesty's reign, s that they be )/ Justice. cy the Governor lary, 1875. oluinbia, in the ch, 1874, is the laws affecting le laws relating ; the regulation he Lieutenant- lumbia Gazette. n lands " shall soccage " tiade, and that grant from the own as lord of ognition of the ible, the words red to mean all lade. ^nd." er that section iwn lands (not 37 VICTORIA, 1873-74. 1025 " Provided that such right shall not be held to extend to any of the aborigines of this continent, except to such as shall have obtained permission in writing to so record by a special order of the Lieutenant-Governor in Council." The record is done by stating and marking out the boundaries of claim, and making a declaration in respect thereof. As to " surveyed land," it is defined by 23rd section. A provision is made by the 24th section as to who may pre empt any tract of surveyed, unreserved, unoccupied and unrecorded land (not being an Indian settlement), and a similar proviso to that above mentioned prohibits the aborigines of the continent the right of pre-emption, except as before mentioned. Such persons as pre-empt are known as "home settlers." The undersigned deems it proper to notice that there is not in this Act any reservation of lands in favour of the Indians or Indian tribes of British Columbia ; nor are the latter theieby accorded any rights or privileges in respect to lands, or reserves, or settlements. On the contrary, the right to record unsurveyed land, or to pre-empt surveyed land, is expressly enacted not to extend to any of the aborigines, except such as shall have obtained permission in writing of the Lieutenant-Governor in Council. Nor can the undersigned find that there is any legislation in force in British Columbia which provides reservations of lands for the Indians, the only ordinance in that respect being one of the 15th March, 1869, which speaks of Crown lands in the colony being Indian reserves or settlements. The undersigned refers to the Order in Council, under which the province of British Columbia was admitted into the Dominion, and particularly the 13th section as to the Indians, which is as follows : — " The charge of the Indians, and the trusteeship and management of the lands reserved for their use and benefit, shall be assumt d by the Dominion government, and a policy as liberal as that hitherto pursued by the British Columbia government shall be continued by the Dominion government after the union. To c-.rry out such policy, tracts of land of such extent as it has hitherto been the practice of the British Columbia government to appropriate for that purpose, shall from time to time be conveyed by the local government to the Dominion government in trust for the use and benefit of the Indians on application of the Dominion government ; and in case of disagreement between two governments respecting the quantity of such tracts of land to be so granted, the matter shall be referred for the decision of the Secretary of State for the Colonies." The question as to the provision which has been made of reserves for the Indians, has been the subject of an Order of the Governor General in Council, dated 4th November, 1874, and it is not necessary, therefore, to enter upon a discussion of the merits of the case. But having regard to the known, existing and increasing dissatisfaction of the Indian tribes of British Columbia at the absence of adequate reservation of lands for their use, and at the liberal appropriation for those in other parts of Canada upon sur- render by treaty of their territorial rij;hts, and th*^ difficulties, which may aiisefrom the not improbable assertion of that dissatisfaction by hostilities on their part, the under- signed deems it right to call attention to the legal position of the public lands of the province. The undersigned believes that he is correct in t^tating, that with one slight exception a^ to land in Vancouver Island surrendered to the Hudson Bay Company, which makes the absenct' of others the more remarkable, no surrender ot lands in that province has eve'- been obtained from the Indian tribes inhabiting it, and that any reservations which have been made, have been arbitrary on the part of the government, and wiihout tie assent of the Indians themselves, and though iho policy of obtaining surrenders at this laijse of time and under the altered circumstances of tlie province, may be questionable, yet the undersigned feels it his duty to assert such legal or equitable claim as n ay be found to exist on the part of the Indians. it .w "l-jr-TK^fc '7-1 *-,-'T*V34-'-5« ^ 1026 BRITISH COLUMBIA LEGISLATION There is not a shadow of doubt, that from the earliest times, England has always felt it imperative to meet the Indians in council, and to obtain surrenders of tracts of Canada, as from time to time such were required for the purposes of settlements. The 40th article of the treaty of capitulation of the city of Montreal, dated 8th September, 1760, is to the effect that, "The savages or Indian allies of His Most Christian Majesty shall be maintained in the lands they inhabit if they chose to remain there." The proclamation of King George III., 1763, erecting within the countries and islands ceded and confirmed to Great Britain by the treaty of the 10th February, 1763, four distinct governnients, styled Quebec, East Florida, West Florida and Grenada, contains the following clauses : — " And whereas, it is just and reasonable and essential to our interests and the security of our colonies, that the several nations or tribes of Indians with whom we are connected, and who live under our protection, should not be molested or disturbed in the possession of such pirts of our dominions and territories, as not having been ceded to us, aie reserved to them, or any of them as their hunting grounds ; we do, therefore, with the advice of our Privy Council, declare it to be our royal will and pleasure that no governor or commander-in-chief, in any of our colonies of Quebec, East Florida or We.st Florida, do presume upon any pretense whatever to grant warrants of survey or pass any patents for lands beyond the boundaries of their respective governments, as described in their commissions ; as also, that no governor or commander-in-chief of our other co'onies or plantations in America, do presume for the pre-ent and until our future pleasure be known, to grant warrants of survey or pass any patents for lands beyond the heads or sources of any of the rivers which fall into the Atlantic Ocean from the west or north-west ; or upon any lands what- ever which, not having been ceded to oi purchased by us, as aforesaid, are reserved to the said Indians, or any of them ; and we do further declare it to be our royal will and pleasure, for the present, as aforesaid, to reserve unier our sovereignty, pro- tection and dominion, for the use of the said Indians, all the land and territories not included within the limits, and territory granted to the Hudson Bay Company ; as also all the land and territories laying to the westward of the sources of the rivers which fall into the sea from the wesc and north-west as aforesaid ; and we do hereby strictly forbid, on pain of our displeasure, all our loving subjects from making any purchases or settlements whatsoever, or taking possession of any of the lands above reserved without our special leave and license for that purpose first obtained. And we do further strictly enjoin and require all persons whatsoever, who have either wilfully or inadvertently seated themselves upon any land within the countries above described, or upon any other lands, which not having been ceded to or purchased by us, are still reserved 'o the said Indians as aforesaid, forthwith to remove themselves from such settlements. " And whereas great frauds and abuses have been committed in the purchasing lands of the Indians, to the great prejudice of our interests, and to the great dissatis- faction of the said Indians ; in order, therefore, to prevent such irregularities for the future, and to the end that the Indians may be convinced of our justice and determined resolution to rtMuove all reasonable cause of discontent, we do, with the advice of our Privy Council, strictly enjoin and require that no private person do presume to make any purchase from the said Indians of any lands reserved to the said Indians, within those parts of our colonies where we had thought proper to allow settlements ; but if at any time any of the said Indians should be inclined to dispose of the said lands, the same shall be purchased only for us, in our name, at some public meeting or assembly of the said Indians, to be held for that purpose by the governor or commander-in-chief of our colony, respectively, within which they shall be ; and in case they shall be within the limits of any proprietaries, conformable to such directions dnd instructions as we or they shall think proper to give for that purpose ; and we do, by the advice of our Privy Council, declare and enjoin that the trade with the said Indians shall be free and open to all our subjects whatever ; provided that every person who may incline to trade with the said Indians do take out a license for carrying on such trade from the governor or I 1 has always I of tracts of ents. li, dated 8th 3 maintained juntries and )ruary, 1763, nd Grenada, ests and the vhom we are disturbed in been ceded lo, therefore, ileasure that it Florida or of survey or ernments, as nder-in-chief the pre-eut vey or pass ivers which lands what- are reserved royal reignty, pro- rritories not Company ; as of the rivers i^e do hereby making any lands above ained. And have either le countries or purchased '^e themselves 3 purchasing reat dissatis- ■ities for the I determined dvice of our me to make Uans, within Bnts ; but if id lands, the assembly of ir-in-chief of II be within ons as we or of our Privy •ee and open 3 trade with governor or 37 VICTORIA, 1873-74. 1027 commander-in-chief of any of our colonies, respectively, where such person shall reside, and also give security to observe such regulations as we shall at any time think tit, by ourselves or commissaries to be appointed for this purpose, to direct and appoint for the benefit of the said trade ; and we do hereby authorize, enjoin and require the governors and commanders-in-chief of all our colonies, resptfctively, as well as those under our immediate government, as those under the government and direction of proprietaries, to grant such licenses withoMt fee or reward, taking special care to insert therein a con- dition that such license shall be void, and the security forfeited, in case the person to whom the same is granted shall retuse or neglect to observe such regulations as we shall think proper to prescribe as aforesaid. " And we do further expressly enjoin and require all officers whatever, as well military as those employed in the management and direction of the Indian affairs within the territories reserved, as aforesaid, for the use of the said Indians, to seize and appre- hend all persons whatever, who standing charged with treason, misprision of treason, murder or other felonies or misdemeanors, shall Hy from justice and take refuge in the said territoi-y, and to send them under a proper guard to the colony where the crime was committed, of which they shall stand accused, in orvler to take their trial for the same." It is not necessary now to inquire whether the lands to the west of the Rocky Mountains and bordering on the Pacific Ocean, form part of the lands claimed by France, and which, if such claim were correct, would have passed by cession to England, under the Treaty of 1 763, or whether the title of England rests on any other ground, nor is it necessary to consider whether that proclamation covered the land now known as British Columbia. It is sufficient, for the present purposes, to ascertain the policy of England in respect to the acquisition of the Indian territorial rights, and how entirely that policy has been followed to the present time, except in the instance of British Columbia. It is true, a' so, that the proclamation of 1763, to which allusion has been made, was repealed by the Imperial Statute 14 George III., chapter 83, known as "The Quebec Act ; " but that statute merely, so far (us regards the present case, annuls the proclamation, " so far as the same relates to the province of Quebec, and the commis- sion and the authority thereof, under the authority whereof the government of the said province is at present administered," and the Act was passed for tlie purpose of effecting a change in the mode of the civil government of the administration of justice in the province of Quebec. The Imperial Act, 1821, 1st and 2nd George IV., chapter 66, for regulating the fur trade, and establishing a criminal and civil jurisdiction within certain part3 of Nor ih America, legislates expressly in respect to the portion of this continent which is therein spoken of as "the Indian territories," and by the Imperial Act, 1849, 12 and 13 Vic- toria, chapter 48, " An Act to provide for the administration in Vancouver's Island." The last-mentioned Act is recited, and it is added on recital that "for the purpose of the colonization of that part of the said Indian territories called Vancouver's Island, it is expedient that further provision should be made for the administration of justice therein." The Imperial Act, 1858, 21 and 22 Victoria, chapter 98, '• An Act to provide for the government of British Columbia," recites, " that divers of Her Majesty's subjects and others have, by the license and consent of Her Majesty, resorted to and settled on certain wild and unoccupied territories on the north-west coast of North America, now known as ' New Caledonia,' fiom and after the passing of the Act to be named British Columbia, and the islands adjacent," etc. The determination of England, as expressed in the proclamation of 1763, that the Indians should not be mole.sted in the possession of such parts of the dominions and territories of England as, not having bo«n ceded to the King, and reserved to them, and which extended also to the prohibition of purchase of lands from the Indians, except only to the Crown itself — at a pub"c meeting or assembly of the said Indians to be held by the governor or commander-in ;hief — has, with slight alterations, been continued down to the present time, either as the settled policy of Canada, or by legislative 1 ,.i.. , , m li I 1028 BRITISH COLUMBIA LEGISLATION provision of Canada to that efifect, and it may be mentioned that in furtherance of that pohcy, so lately as in the year 1874, treaties were made with various tribes of Indians in the North-west Territories, and large tracts of lands lying between the province of Manitoba and the Rocky Mountains were ceded and surrendered to the Crown, upon conditions of which the reservation of large tracts for the Indians, and the granting of annuities and gifts annually, formed and important consideration ; and in various parts of Canada, from the Atlantic to the Rocky Mountains, large and valuable tracts ot land are now reserved for the Indians as part of their consideration of their ceding and yielding to the Crown their territorial rights in other portions of the Dominion. Considering, then, these several features of the case, that no surrender or cession of their territorial rights, whether the same be of a legal or equitable nature, has been ever executed by the Indian tribes of the province — that they alledge that the reservations of land made by the Government for their use, have been arbitrarily so made, and are totally inadequate to their support and requirements, and without their assent — that they are not averse to hostilities in order to enforce rights which it is impossible to deny them, and that the Act under consideration not only ignores those rights, but expressly prohibits the Indians from enjoying the rights of recording or pre-empting lands, except by consent of the Lieutenant-Governor ; — the undersigned teels that he cannot do other- Avise than advise that the Act in question is objectionable, as tending to deal with lands which are assumed to be the absolute property of the province, an assumption which completely ignores, as applicable to the Indians of British Columbia, the honour and good faith with which the Crown has, in all other cases, since its sovereignity of the territories in North America, dealt with their various Indian tribes. The undersigned would also refer to the British North America Act, 1867, section 109, applicable to British Columbia, which enacts in effect that all lands belonging to the province shall belong to the province, " subject to any trust existing in respect thereof, and to any interest, other than that of the province, in the same." That which has been ordinarily spoken of as the " Indian title " must, of necessity, consist of some species of interest in the lands of British Columbia. If it is conceded that they have not a freehold in the soil, but that they have an usufruct, a right of occupation or possession of the same for their own use, then it would seem that these lands of British Columbia are subject, if not to a " trust existing in respect thereof," at least " to an interest other than that of the province alone." The undersigned, therefore, feels it incumbent on him to recommend that this Act should be disallowed, but suggests that such disallowance be postponed until the last day at which such can take place, with a view of communication on the subject with the Lieutenant Governor of British Columbia. It may bo anticipated that no practical inconvenience can arise from its disallow- ance, should such be necessary, as the previously existing Crown Land Act will probably suffice to enable the province to continue, in the meantime, disposal of lands. The undersigned, whilst commenting on this Act,, deems it also expedient to call attention to that provision of the Order in Council under which the province of British Columbia entered confederation, which refers to the conveyance by the province to the Dominion government, in trust, of public lands along the line of the Pacific Railway, throughout the entire length of British Columbia. Ic may, of course, be argued that there has been no actual commencement, within two years of the date of the Union, of the Canadian Pacific Railway ; but having regard to the practical commencement of that work in the surveys which have been made along different portions of the contemplated route, the undersigned deems it his duty to note that no reservations are made in the Act now under consideration, and that, without tliem, the recording and pre-emption of lands under this Act might be the subject of great embarrassment to the government of Canada, in the construction of the line or in the granting of any contracts for construc- tion of portions of it. He suggests, therefore, that this is a further subject on which it is desirable that communication should be had with the Lieutenant-Governor of British Columbia. I concur, H. BERNARD, T. FOURNIER, Minister of Justice. Deputy Minister of Justice. I srance of that of Indians in » province of Crown, upon le granting of various parts tracts ot land r ceding and inion. " or cession of has been ever Bservations of ade, and are assent — that ssible to deny but expressly lands, except nnot do other- eal with lands option which nour and good he territories 1867, section s belonging to ig in respect t, of necessity, they have an then it would ist existing in ,lone." that this Act antil the last ibject with the its disallow-' will probably ds. 3dient to call ince of British irovince to the Lcific Railway, •e argued that I Union, of the it of that work naplated route, 1 the Act now tion of lands ;overnment of s for construc- desirable that iluinbia. if Justice. 37 VICTORIA, 1873-74. 102^ Report of the Honourable the Minister of Justice, approved bij I/is Excellency the Governor General in Council on the 16th March, 1875. Department of Justice, Ottawa, 11th March, 1875. The undersigned has the honour to report, with reference to the Order in Council of the 23rd January last, upon the subject of an Act passed by the legislature of the province of British Columbia as to the crown lands of that province, and to the pro- posed disallowance of that Act, that the time has come when it is necessary to taxe the step proposed. . /-, -i i The undersigned has, therefore, for reasons stated in that Order in Council, the honour to recommend that the Act of the legislature of British Columbia, passed^ in the 37th year of Her Majesty's reign, and assented to on the 2nd March, 1874, and intituled : " An Act to amend and consolidate the laws affecting Crown lands in British Columbia," be disallowed by your Excellency in Council. ^ T. FOURNIER, . Minister of Justice. Order in Cotmcil disallotving the Act above mentioned, published in the Canada Gazette on tlie 20th day of March, A. D. 1875, Vol VIII., No. 38, page 1134- Report of the Honourable the Minister of Justice, approved by His Excellency the Governor General in Conncil on t/ie 16th March, 1875. Department op Justice, Ottawa, 20th January, 1875. Upon the Acts passed by the legislature of British Columbia in the 37th year (1874) of Her Majesty's reign, the undersigned has the honour further to report as follows : No. 4 "An Act to extend the provisions of the 'Coroners' Jury Act, 1866,' to the mainland of British Columbia." This Act extends over the whole of the province of British Columbia— the " Coroners' Jury Act, 1866," passed in the late colony of Vancouver Island. Having reference to that Act, it is found to give power to any coroner to impanel a jury of not less than six, for the purposes of any inquisition, their powers and verdict being to all intents and purposes as eflfectual as if found by a jury consisting of twelve or more. The undersigned is somewhat doubtful whether this may not be a branch of criminal procedure, and as such, within the sole legislative competence of the Parlia ment of Canada. He does not propose, however, to do more than make this suggestion No. 12. " An Act to make better provisions for the Qualification and Registration of Voters." , . , . Section 15 speaks of a conviction of an "ofiFence." This seems to imply a crime and, therefore, a subject of criminal law In this view, it may be desirable to avoid the use of the word " offence." H. BERNARD, Deputy Minister oj Justice, I concur, T. FOURNIER, Minister oj Justice. 66 II m ■ii-W^^'f*S1»1>3^'*^f ^- y ^ ^^=1^ f •p»*>ir^pj"<.* r:'\ •* 1030 BRITISH COLUMBIA LEGISLATION Mr. Pemherton to the Hon. the Minister of Justice. V' Victoria, British Columbia, 23rd April, 1874. Sir, I have the honour to forward herewith, a memorial from the county court judges of British Columbia, with a request from them that you will be good enough to lay it before his Excellency the Governor General. It has been signed by all the judges, except Mr. Saunders, who is absent on leave. I have, (fee, A. F. PEMBERTON, County Court Judge. Memorial of the County Court Judges. To His Excellency the Right Honourable the Earl of Dufferin, K.P., K.C.B., Governor General of the Dominion of Canada, d:c. The humble memorial of the county court judges in the province of British Columbia, — Showeth : That in view of the reference made to his Excellency the Governor General, of the question as to the position and proper duties of the county court judges of British Columbia by the govermrent of this province, and with particular reference to the report (therewith transmitted) of the opinion of the Attorney General on this subject, published in the Government Gazette of the 2nd of August, 1873, and further, with regard to the Act of last session, intituled : " The County Courts Extension Act, 1874 " the county court judges deem it due to themselves to make the following representations, which they beg most respectfully to submit for the consideration of his Excellency the Governor General : — That the services in the colony averaged over twelve years before the Confedera- tion of the province with the Dominion, in July, 1871, as has been most particularly detailed in reports from each county court judge, forwarded by his Honour the Lieutenant-Governor to the Secretary of State for the Provinces, in 1872 ; That Confederation was purely a government measure, and that the above officers formed a Ip.rge proportion of the members of the legislative council; thai; without their votes that measure could not have been passed ; that they were led to vote for that measure solely at ti; > instance of the then governor, Mr. Musgrave, on the distinct and repeated assurance from him, as the representative of the Queen, that under the terms of confederation they would be placed in the permanei.t service of the Dominion government as county court judges, and be totally independent of, and without the control of the provincial government ; That Mr. Musgrave further assured them that in the event of their positions being filled by barristers, pensions, at the rate of two-thirds of their salaries, or appointments of equivalent positions and emoluments would be granted to them ; That a memorial from these officers to the Secretary of State was withdrawn, after repeated assurances having been given to them by Governor Musgrave to the above efifect ; That Mr. Musgrave stated to your memorialists that, in his despatch of the 22nd November, 1870, to the Dominion government, he had distinctly laid down the position to be held by the county court judges after union to the above eflfect, and that the same had been confirmed by the Secretary of State for the Colonies, Lord Kimberley, as binding on the Dominion government, in his despatch of the 3rd of June, 1871 ; That Mr. Musgrave told them that they might be expected to continue for a while to perform the various duties hitherto discharged by them in their respective dis- tricts, during the transitiim of the provinces from the colonial to the provincial •il, 1874. county court od enough to id by all the 3N, rt Judge. '.£., Governor ice of British )r Genera], of rt judges of liar reference neral on this , and further, xtension Act, the following isideration of he Confedera- it particularly Honour the j above officers thab without led to vote for n the distinct ihat under the the Dominion [ without the )Ositions being appointments thdrawn, after to the above 1 of the 22nd '^n the position and that the rd Kimberley, une, 1871 ; lue for a while respective dis- the provincial 37 vicTOKiA, 1873-74. 1031 system of government, and in the session of 1872 provision was accordingly made for the appointment of certain officers, entitled clerks of the bench, and that such officers, were, in the spring of that year, appointed, and relieved the county court judges from their local functions, taking over their books of account, cash balances, ifec. ; That they were always informed that the Dominion government objected to their officers doing local work ; ^ ,,.,.,, u That the other officers whose positions were affected by confederation had the option of retiring or taking office under the Dominion, whereas the county court judges had no such opinion ; That, in regard to the County Court Extension Act, 1874, they respectfully submit that, under section 92, subsection 15, of the British North America Act, 1867, the local legislature had not jurisdiction to pass a measure authorizing the local government to require that any particular county court judge should reside in any particular place, or even that he should hold any particular court, inasmuch as all are county court judges having jurisdiction over the entire province. If the local legislature have the power to which they lay claim, it would follow that they have in substance power to appoint that any of the county court judges of the province, shall be the county court judge for a particular district, a power of appointment which belongs alone to the Governor General ; and an inspection of section 92 subsection 14, and section 96 of British North America Act, shows that the local legislature have jurisdiction only over courts, but have no authority in reference to the appointment of the judges who sit in those courts ; it may be that such power of control by the local government over the individual judges of the county court carrying with it the power of rewarding such judges as may be favoured by the Ministry, of the day, by transferring them to more agreable or advantageous posts, or visiting displeasure upon others by ordering them to the more rugged and inhospitable districts of the interior, thus assuming, in fact, a patronage, which cannot be properly intended to be conferred on them, is incompatible v. ith a continued faithful and unbiassed dis- charge by the county court judges of their judicial functions ; That such power would in no way secure a more efficient performance of the county court business, or affijrd any further facilities to suitors than are already given ; the only effect intended to be obtained would seem to be the presence of county court judges in the more remote parts of the province to afford moral support to the main- tenance of law and order, a responsibility specially attached to the provincial govern- ment, but of which they would thus be relieved at the expense of the Dominion ; That in many instances it will be difficult for a county court judge to discharge his duties with satisfaction to the Dominion government, if, at the same time, he is subject to the order of the Lieutenant Governor, as regards local duties, even as representing the federal authority ; that officer may find himself in the anomalous position of having to refuse to act on the advice of his responsible ministers in the often recurring case of the county court judge being asked to discharge local duties, which they may consider incompatible with their federal duties. It is needless to observe that there will be a constant tendency in a local government, for their own convenience, to require such officers to discharge duties, by no means compatible with the position of a county court That it is submitted, in no other instance, and in no portion of the Dominion, can a federal officer be asked to discharge merely local duties, and the late govern- ment of British Columbia made provision for the discharge of the local duties accord- ingly, by the appointment of clerks of the bench. And your memorialists, as in duty bound, will ever pray, &c. Henry Maynard Ball, A. F, Pemberton, James R. Spalding. P. O'Reilly, Arthur T. Bushba, Victoria, British Columbia, 23rd April, 1874. ^ J5i 1032 BRITISH COLUMBIA LEGISLATION Report of the Hon. the Minister of Justice, approved by His Evcellency the Governor General in Council on the 16th March, 1875, I > i Department of Justice, Ottawa, 9th March, 1875. Upon an Act passed by the legislature of British Columbia on the 2nd March 1874, chapter 9, intituled : "An Act to make provision for the better administration of justice," the undersigned has the honour to report : — That this Act enables the Lieutenant-Governor in Council from time to time, to appoint the times and places at which county courts shall be held, and to order any county court judge to hold such court, at such times and places as may be appointed, and to appoint the places at which such county court judge shall reside from time to time. A petition is presented against this Act by the several county court judges. The petition sets forth at length the circumstances connected with their position. It is not, however, necessary to enter upon the consideration of the statements further than upon the following point : — The petitijners submit that under section 92, subsection 14, of the British North America Act, 1867, the local legislature had not jurisdiction to pass a measure authorizing the local government to require that any particular county court judge should reside in any particular place, or even that he should hold any particular court, inasmuch as all are county court judges, having jurisdiction over the entire province. They further allege that that Act, in substance, confers on the local legislature power to appoint any county court judge for a particular district, a power of appoint- ment which belongs alone to the Governor General, and that any such power of control by the local legislature carries with i^ the power of rewarding such judges as may be favourer! by the ministry of the day, o;^ transferring them to more agreeable posts, or visiting displeasure upon vhem, by ordering them to the inhospitable districts of the interior ; all which is incompatible with a continued faithful and unbiassed discharge by the county oourt judges of their judicial functions. They urge that in no other portion of the Dominion, can a federal officer be asked to discharge merely local duties. The question, therefore, for consideration is as to the competency of the legislature of British Columbia to pass the law to which reference is now made. The position of the county court judges appears to be this : An ordinance was passed in 1867, under which the Governor of British Columbia might appoint any stipendiary magistrate or justice of the peace in the colony, to be a county court judge, either for the whole colony, or for such parts thereof as he shall from time to time in that behalf direct or appoint ; a provision which was repealed by "the County Court Judges Appointment Act, 1872," but which repeal does not affect the county court judges in question, or their jurisdiction. In a despatch of March, 1872, Lieutenant-Governor Trutch stated that an address of the assembly asked him to move the government of Canada, to appoint, barristers or other legal men as county court judges, in place of the then incumbents of those offices, who were not professionaly qualified, and the minute of the executive council asked the Dominion government to appoint not less than three competent county court judges for the province as soon as practicable. In November, 1872, Lieutenant-Governor Trutch alluding to an Act just then passed, called "the County Court Judges Appointment Act, 1872," expressed the views of his government, that the province should be divided into five county court districts, as defined in the minute and map of British Columbia, which was inclosed, and that a duly qualified member of the legal profession should be appcrinted for each such district. No action however was taken upon it, the division of county court districts not being the duty of Canada. The condition of matters as existing, prior and up to confederation, has since been and still is in force, except as modified by the local Act of 1872. • mm^ the Governor ^arch, 1875. B 2nd March idministration me to time, to 1 to order any be appointed, B time to time. 3. The petition ,he statements der section 92, lature had not squire that any 3r even that he judges, having )cal legislature ver of appoint- 3wer of control dges as may be eeable posts, or districts of the ed discharge by Beer be asked to : the legislature ritish Columbia le colony, to be reof as he shall was repealed by . does not affect that an address int, barristers or of those offices, ouncil asked the ity court judges 1 Act just then iressed the views T court districts, osed, and that a ich such district, urt districts not I, has since been 37 VICTORIA, 1873-74. 1033 In 1876, the Civil List Act of Canada was amended by 35th Vic, chap. 3, which provided for the salaries in respect of these stipendiary magistrates or county court judges, as follows ; the sums being those of which they were in receipt as their annual salaries at the time of confederation, namely : — One stipendiary magistrate for Victoria $2,250 per annum • ' " New Westminster .,. . 2,425 " « » Cariboo 3,400 »« " Yale 3,000 « «« Lillooet and Clinton . . 2,400 « «t Nanaimo and Coast. . . 2.250 " so long as each of the stipendiary magistrates, respectively, retains the office of county judge." An Act now under consideration has three features : 1st. That the Lieutenant Governor in Council may from time to time appoint the times and places at which county courts shall be held, and may, 2nd. Order any county court judge to hold such court, and at such time and places as may be appointed, and 3rd. May appoint the places at which such county court judge shall reside trom time to time. i • • To the first of these, there appears to be no objection ; it concerns the admniistration of justice, and is part of the constitution of a provincial court, and, therefore, within local legislative competence. As to the second, it may be remarked that so long as the county court judges, as is the case with the present incumbents, have jurisdiction over the whole of the province, there can be no objection to the temporary performance of duties, by the Judge assigned to one district, of those of another district ; but unless any special and good cause be shown to the government of Canada, for such temporary transfer of duty, the under- signed considers that the Dominion cannot be required to pay travelling expenses so incurred. It may, however be doubted whether the words "any county court judge" would be applicable to any future appointments, which would probably be made for special districts, when laid out by the local government. The Act under consideration must always be viewed in respect to travelling allow- No fixed sum has been set apart for such purposes, but such as have been incurred, have been paid. u- i. e The subject of these travelling allowances will form, it is proposed, the subject ot a separate memorandum, but the undersigned may here remark that he is of the opinion that such should be guided by this rule, viz., that, taking the name of the judge in con- nection with the district for which he was acting as judge at the time of the union, with reference also to his place of residence in such district, or, if not resident therein, then that of such place as would reasonably be his place of residence, travelling allow- ances be given, as from thence to the courts in his district, either at a fixed scale per diem, or an annual sum. As to the third point, the undersigned feels much difficulty. The appointment of a judge is vested in the Governor General. To authorize such an appointment, there must be a duly constituted court, or due provisions made for the administration of justice, and these may, by local enactment, from time to time, be varied. m 1034 BRITISH COLUMBIA LEGISLATION As to the position of these county court judges at the time of confederation, they appear to stand as follows : — Name. A. T. Bushby W. R. Hnalding . . T. O'Reilly A. T. Pemberton.. A. E. H. Saundera, H. M. Ball Date of Appoint- ment. Name of preaent DiBtnct. April, 1870. June, 1807. do 1871. do 1858. do 1859. do 1870. New Westminster Nanaimo and Coiriux Northern (Jold Mines, to Omi mica (i.e. Yale) Victoria Lillooet Cariboo Salary. $ cts. 2,425 OO 2,250 00 3,000 00 2,260 00 2 400 00 3,400 00 By reference to the Act of Canada of 1872, 35 Vic, chap. 20, salaries were assigned in different proportions to the stipendiary magistrates (otherwise county court judges) for certain districts by name, being thun above mentioned. It appears, therefore, that the county court judges, though, having under their original appointment, jurisdiction over the whole province, have been hitherto assigned and appointed to certain specific districts, being in fact the electoral districts of the province. So long, therefore, as there is no legislation by British Columbia altering the limits of these particular districts, the undersigned is of opinion that the position of these gentlemen as county court judges (so called) is unaltered from that at the time of con- federation. Being now, therefore, in effect county court judges for particular districts, the undersigned is of opinion that the third provision of the act, authorizing the Lieuten- ant-Governor to appoint the places at which such county court judges shall reside from time to time, is practically assuming a power of appointment of judges, and he advises that the Act of the legislature of the province of British Columbia passed on the 2nd of March, 1874, intituled, "An Act to make provision for the better administration of justice," be, therefore, disallowed by your Excellency in Council. T. FOURNIER, Minister of Justice. Order in Council disallowing the Act above mentioned, published in the Canada Gazette on tfie 16th day of March, 1875, Vol. VIII., No. 39, page 1160. Report of the Hotiourable the Minister of Justice, approved by His Excellency the Governor General in Council on the 18th March, 1875. Department of Justice, Ottawa, 9th March, 1875. Upon a petition presented by several county court judges of British Columbia, praying for the disallowance by the Governor General of an Act passed by the legisla- ture of that province on the 2nd March, 1874, intituled : " An Act to make provision for the better administration of justice "; The undersigned is of opinion that, upon due consideration of the circumstances of the case, the condition of the county judges is in no way changed by confederation, except in that their duties have been diminished. At the time of confederation, in addition to the duties attached to the office of county court judge, they appear to have acted as gold commissioners and Indian agents, aration, they Salary. 9 cts, 2,425 00 2,250 00 3,0(X) 00 2,250 00 2 400 00 3,400 00 'ere assigned ourt judges) under their irto assigned tricts of the ig the limits ion of these time of con- listricts, the the Lieuten- reside from i he advises n the 2nd of listration of R, Justice. nada Gazette dlency the i, 1875. 1 Columbia, the legiala- ,ke provision imstances of )nfederation, the office of idian agents, 37 VICTORIA, 1873-74. 1036 in respect of which two latter offices they have not since been called upon to act, and it seems not improbable that there were other duties imposed upon them, which they do not now fulfil. The undersigned cannot see, therefore, that in this respect the county court judges have any reason for complaint. But in respect to the provision of the Act in question which gives the Lieutenant- Governor power to appoint the places, at which such county court judge ahall reside from time to time, the undersigned, in a repr.rt upon the Act itself, has expressed the opinion that, as there are now in effect six particular districts, the third provision of the Act in question is practically assuming a power of appointment of judges, and he has therefore recommended that the Act should be di-sallowed. He recommends that the contents of this memorandum be communicated to Mr. Pemberton, acting on behalf of the county judges. " T. FOURNIER, Minister of Justice. ■rWf. ■vi7i.:3^';;a^.:\iP'--v^G:^~^i^etit^»n>i^.f>^rjiif^tv\ 1036 IIRITI3II COLUMBIA LEOIBLATION BRITISH COLUMBIA— 38th VICTORIA, 1876. 4th Session, Ist Pauliament. Report of the Honourahli- the Minister of Justice, approved by His Excellency the Governor , - General in Council on the 2Cth October, 1875, * Department of Justice, Ottawa, 20th October, 1875. Upon the Acts passed by tlie legislature of the province of British Colunibiii, and assented tn by th'i Lioutenant-Oovernor on the 22nd April, 1875, the undersigned has the honour to report that the right of disallowance ought not to exercised in respect to the following Acts, and he, therefore, recommends that they be left to their operation, viz., chapters 1, 3, 4 5, 7 to 12, 14 to 17 and 19. I EDWARD BLAKE, Minister of Justice. I Report of llie Honourable the Minister of Justice, approved by His Excellency the Governor General in Council on the 10th November, 1875. Department op Justice, Ottawa, 30th ' tober, 1875. With reference to the Act passed by the legishiture of Britisii lumbia, assented to 22nd April, 1875, intituled : cap. 5. "An Act to amend and i .isolidate the laws affecting Crown lands in British Columbia," the undersigned has the honour to report that this Act is identical with that passed by the .same legislature, and assented to on the 2nd March, 1874, under the same title with the following exceptions : 1st. It repeals thi^ Land Act of 1874 ; 2nd. The definition of crown lands is altered, the words 'in fee simple" being substituted for the words " in free and common soccage " ; 3rd. The 60th section provides as follows ; — " The Lieutenant-Governor in council shall at any time, by notice signed by the Chief Connnissioner of Lands and Works, and published in the British Columbia Gazette, reserve any lands not lawfully held by record, pre-emption, purchase, lease or Crown grant, for the purpose of conveying the same to the Dominion Government, in trust, for the use and benefit of the Indians, or for railway purposes as mentioned in article 11 of the terms of union, or for such other purposes as may be deemed advisable ; " in lieu of the same section of the former Act which reads as .ollows : — " The Lieutenant-Governor in Council shall, at any time and for such purposes as may be deemed advisable, reserve, by notice published in the British Columbia Gazette, any lands not lawfully held by record, pre-emption, purchase, lease or crown grant." 4th. The provision in the former Act as to the Act not coming into force until pro- clamation. The undersigned begs leave to refer to the approved report of his predecessor upon the subject of the former Act, dated 19th January, 1875, upon which, by Order in Council, dated 11th March 1875, the Act was disallowed. The grave questions arising in that '■eport, and those under discussion between the two governments as to the mode of dealing with the Indians, are still unsettled ; and it appears to the undersigned that the alterations made in this Act are not such as to meet the difficulties which resulted in the disallowance of the former Act. It may perhaps be hoped that before the time within which the power of disallow- ance must be exercised, this question will be settled ; but should that be otherwise, it appears to the undersigned, that the policy and line of agreement, which led to the dis- allowance of the former Act, roust lead to the disallowance of this one also. 38 VICTORIA,, 1875. 1037 The underHigned recoimnonds that, beyond the communicntion of t,ho views of Council to the government of British Colunil)ia, no cction sliould he taken in roferonco to this Act, until the last day at which didallowanco may take place. EDWARD 15LAKE, Minister of Justice. I the Governor "V" ter, 1875. iJolumbiii, and idersigned has I in ic'spect to leir operation, KE, f Justice. y the Governor )er, 1875. nbia, assented idate the laws lour to report ssented to on simple " being signed by the umbia Gazette, ease or Crown it, in trust, for 1 in article 11 able ; " in lieu ih purposes as ambia Gazette, )wn grant." :orce until pro- sdecessor upon h, by Order in •n between the msettled ; and lot such as to er of disallow- 5 otherwise, it led to the dis- Report of tlie Honourable the Minister oj Justice, ap)yroved by His Excellency the Governor General in Council on the 7th January, 1876. Department OP Justice, Ottawa, 5th January, 187G. Upon an Act passed by tlio legislature of the province of British Colunbia, assented to on the 22nd April 1875, chapter 18, intituled : " An Act to make powers of attorney valid in certain cases," the undersigned begs to report ; — This Act recites that " difficulties f recjuently arise as to titles to lands and other property, by reason of its conveyances, oi' other instruments, inil Acts effecting the the same," in certain cases. After dealing with these cases, and providing for the registration generally of powers of attorney, of declarations of the death, bankruptcy, insolvency or marriage of the principal or the revocation of any such power of attorney, the 7th section provides that "any person who shall wilfully efface, deface, mutilate or destroy any power of attorney, declaration or notice, respectively, which shall have been filed under the provisions of this Act, shall, upon conviction thereof, be imprisoned with or without hard labo- ., for any term not exceeding two years." This section appears to trench upon the provisions of the criminal law, and the undersigned suggests that t!ie attention of the government of British Columbia should be invited to this difficulty, with a view to their considering whether the Act should not be amended before the period arrives for determining as to its disallowance. EDWARD BLAKE, Minister of Justice. Report of the Honourable the Minister of Justice, approved by His Excellency the Governor General in Council, on the 10th October, 1875. Department of Justice, Ottawa, 13th October, 1875. Upon an Act passed by the legislature of British Columbia, on the 22nd April, 1875, chapter 5, intituled : "An Act to make provision for the better administration of Justice," the undersigned has the honour to report, that this Aet enables the Lieutenant- Governor in council to divide the province into as many districts as he may think fit, such districts to be called county court districts, and to define the boundaries thereof, and from time to time to alter and vary the same, and from time to time to appoint the times and places at which county courts shall be held in such districts. An Act upon the same subject was passed by the same legislature on the 2nd March, 1874, and disallowed under an approved report by the predecessor of the undersigned, dated 9th March, 1875. To that report the undersigned refers. It appears to the undersigned to be important that the province should be divided for the purposes of county courts, \nto districts, but having regard for the views expressed in the said approved report, and considering that the consetiuence of permitting the Act now under consideration to go into operation, would be to permit the Lieutenant-Governor in Council to arrange the boundaries of these districts and to alter them at his pleasure, and so practically to determine at his pleasure the places within which the county court judges should have jurisdiction. It appears to the undersigned that the Act is objec- tionable, as the alterations thereby authorized might practically result in the appointment by the local government, of a county court judge to a new district or judgeship, vhus transferring to the local government a part of the power of appointment vested in ■ii .iftw-'iiw-''' ft^^, ijliwWuji"^ ^i^TtviirVT ■ _1m» J . i.- .. ,4, i ji. . -,j.. i u ji.. . 1 »., • I uu . if »s-' 't. ' A ii J- 1- ;'*' ' !)y^ i '« w»gy»!giii»yj « j'?iiW" 1038 BRITISH COLUMBIA LEGISLATION this government under the constitution. So long as the local legislature keeps within its own hands the division of the districts and the alteration of their boundaries, this government has, by virtue of the power of disallowance, some measure of control over such action ; but should this Act go into operation, no such control could thereafter be exercised here. The undersigned has been led to believe th«vt it may be important iu the peculiar circumstances of the country, to make provision for the holding of courts at places where, owing to the influx of miners and others, a population is suddenly brought together, and, in this view, he thinks it would not be objectionable that the local legislature should give "power to the Lieutenant-Governor in council from dme to time, to appoint the times and places at which the county courts shall be held in the districts. The undersigned recommends that it should be suggested to the Government of British Columbia to repeal the Act, and to effect any division of the province into districts, and any defmition of the boundaries of such districts, which they may think desirable, by legislation, instead of by the machinery proposed by the Act. EDWARD BLAKE, Minister of Justice. Lieutenant-Governor Trutch to the Hon. the Secretary of State cf Canada. Government House, British Columbia, 27th April, 1876. Sir, — I have the honour to inclose herewith a minute of my executive council, together with a transcript of a telegraphic despatch which, in accordance therewith, I have this day addressed to you in reply to your telegram to me of the 13th April, and stating the views of thi.i government as to the several Acts of the last set sion of the legislature of this province therein referred to. I have, (fee, JOSEPH W. TRUTCH, Lieutenant-Governor. Report of a Committee of the Honourable the Executive Council, approved by His Honour the Lieutenant-Governor in Council on the 20th day of April, 1876. Referring to the telegram from the Secretary of State for Canada of the 13th inst., submitted by your Excellency for consideration in executive council, the committee of council respectfully request that you will be pleased to reply thereto by telegraph to the following effect : — " That this government concurs in the disallowance of the ' Act for the better Adminstration of Justice ' ; that the general question involved therein is under consider- ation, and if time admit, a bill reorganizing the system will be submitted to the legis- lative assembly. "That the objections to the Act. amending the Crown Lands Act, are considered to be removed by the agreement for the settlement of the Indiai; land question by com- missionerf, and that the Power of Attorney Act will be immediately amended so as to remove objections to section 7." T. BASIL HUMPHREYS, Minister of Finance and Clerk of Executive Council. Report of the Hon. the Minister of Justice, approved by His Excellency the Governor General ir. Council on the 6th May, 1876. Department of Justice, Ottawa, 28th April, 1876. With reference to the Acts of British Columbia assented to on the 22nd April, 1875, the time for action upon which will expire on the 8th May next, the undersigned begs to report as follows : 38 VICTORIA, 1875. 1039 ire keeps within aoundaries, this jontrol over such d thereafter be ill the peculiar :ourts at places ddenly brought 5 that the local jm dme to time, in the districts. Government of B province into they may think LCt. KE, of Justice. ' Canada. A.pril, 1876. tecutive council, ace therewith, I 13th April, and st sef sion of the rit-Governor. pproved by His pril, 1876. of the 13th inst., le committee of by telegraph to 3t for the better is under consider- bed to the legis- are considered to [uestion by com- amended so as to live Council. acy the Governor April, 1876. \ the 22nd April, , the undersigned 1. By minute in council of the 16th October, 1875, the report of the undersigned upon the Act chapter 5, intituled : " An Act to make provision for the better Admin- istration of Justice, " was approved. <. t. ■ • , A copy of that minute was transmitted to the Lieutenant Governor of British Columbia. , . , • j The views of the government of British Columbia not having been communicated to his Excellency, the Secretary of State recently asked for a telegraphic communication upon the subject. , c ^ e By telegraph, dated 27th April, from the Lieutenant-Governor to the Secretary ot State, he is informed that the government of British Columbia concurs in the disallow- ance of the Act for the better Administration of Justice ; that the general question in- volved therein is now under consideration, and a bill reorganizing the system will, if time admit, be submitted to the legislature. The report of the undersigned proposed that it should be suggested to the gov ernment of British Columbia to repeal the Act, and to eflfect the division of the pro- vince into districts, &c., by legislation, instead of by the machinery proposed by the Act. As the provincial government suggests the exercise of the power of disallowance, and it is not certain whether amendatory legislation will be held this session, the un- dersigned recommends that the said Act be disallowed. 2. By minute in council of the 10th November, 1875, the report of the under- signed upon the Act, intituled : "An V;t to amend and consolidate the Laws respecting Crown Lands in British Columbia," Vad approved. The same steps were subsequer ;.ly taken tipon this subject, as those detailed with reference to the subject treated of in the iirst paragraph. The Lieutenant-Governor's communication upon this Act state.' that the objections taken by council to it are considered to be removed by the agreement for a settlement of the Indian land question by commissioners. Although the undersigned cannot concur in the view that the objections taken are entirely removed by the action referred to ; and, though he is of opinion that, accord- ing to the determination of council upon the previous Crown Lands Act, there remains serious question as to whether the Act now under consideration is within the com- petence of the provincial legislature, yet since, according to the information of the undersigned, the statute under consideration has been acted upon, and is being acted upon largely in British Columbia, and great inconvenience and confusion inight result from its disallowance; and, considering that the condition of the question at issue between the two governments is very much improved since the date of his report, the undersigned is of opinion that it would be the better course to leave the Act to its operation . . , It is to be observed that this procedure neither expresses nor impliedly waives any rig'iti of the government of Canada to insist that any of the provisions of the Act are boyo'id the competence of the Local Legislature, and are consequently inoperative. The undersigned recommends that the Act be left to its operation, 3. By minute in council of the 7th January, 1876, the report of the undersigned respecting an Act, intituled : " An Act to make Powers of Attorney valid in certain ;ases," was approved. j -i j uu The same steps were subsequently taken upon this subject as those detailed with reference tc the subjects treated of in the first paragraph. The Lieutenant-Governor's communication upon this Act states that it will be immediately amended, to remove the objections taken to section 7, which was the only clause objected to. Upon this assurance of the government of British Columbia, the undersigned recommends that the Act be left to its operation. EDWARD BLAKE, Minister of Justice. Order in Council disallotving the Act above rmntioned published in the Canada Gazdtte on th". 6th day of May, 1876, Vol. IX., No. Jfi, page U57. % 1040 BRITISH COLUMBIA LEGISLATION I I I I I 11 BRITISH COLUMBIA, 89th VICTORIA, 1876. 1st Session — 2nd Parliament. Report of the Hoiiotirable the Minister of Justice, approved by His Excellency the Governor General in. Council on the ^(h November, 1876. Department op Justice, Ottawa, 11th October, 1876. With reference to the Acts of the legislature of British Columbia, passed in the first session of the second legislature, 39th Victoria, 1876, the undersigned begs to report s follows, viz., chapters 4, 6, 7, 9, 10, 13 to 29. He recommends that these be left to t.'eir operation. With reference to chapter 1. " An Act to amend the Municipality Act, 1872, and Amendments thereto." This Act contains several provisions with reference to licenses, with respect to which the power of local legislatures is in controversy. The undersigned recommends that the course hitherto pursued should be continued, and the Act left to its operation. ^ ^^ Chapter 2. " An Act to amend and consolidate the ' Public Schools Acts.' Section 43, both by the character of the Acts with which it deals, and by the term which applies to these Acts, namely, " offence^," appears to trench upon the criminal law, and the undersigned recommends tliat the attention of tha Lieutenant-Governor should be called to this section, with a view to its amendment. Chapter 3. " An Act to provide for the maintenance of the Wagon Road from Yale to Cariboo." This Act repeals the " Tolls Exemption Ordinince, 1865 ;" the " Tolls Exemption Ordinance, 1865, amendment Act ; " the " Tolls Exemption Act, 1871 ; " the " Thompson Bridge Act, 1864," and the "Thompson Bridge Ordinance, 1868." It establishes a toll of half a cent for every pound avoirdupois of goods, merchan- dise, stores, productions and chattels, other than those hereinafter excepted, which shall respectively be carried over or across the Ale.Nandra Suspension Bridge or the Fraser River, within a distance of ten miles from the bridge, or carried froui Clinton in the direction of Cariboo. The 3rd section exempts from tolls, good", merchandise, stores, productions or chattels passing o"er the bridge, from the direction of Cariboo towards Yale. It exempts, also, mining machinery, farming implements, wheat, beans', pease, oats, barley and grain of all kinds, hay, roots, vegetable^ and other agricultural produce, the growth of the province, and all flour and meal manufactured in the province from wheat, beans, peas, oats, barley and grain of all kinds grown in the piovince, and all cattle, and all articles and things coming in the direct'on of the s^eaboaid from the interior of the province, whether intended for export or hoi le consumption, for the purpose of manu- facture in the province, or any other purpose whatsoever. The repealed ordinance." 1865, exempted from road and ferry tolls in British Columbia, on the ground that it was expedient to exempt agricultural produce of home growth from road tolls, all agricultural produce in an unprepared state, the growth of the colony. The repealed ordinance of 1871 extended the exemption to flour and meal manu- factured from grain of all kinds, the growth of the colony, The repealed exemption ordinance of 1871 recited that it was desirable to en- courage the transmission of articles of export from the interior of the colony, and exempted all articles and things coming in the direction of the seaboard from the interior, whether intended for export or home consumption, or for any other purpose, from liability to tolls. 39 VICTORIA, 1876. 1041 Excellency the ler, 1876. Dassed in the ligned begs to that these be ^ct, 1872, and ith respect to be continued, Acts.' " d by the term the criminal nant-Governor •n Road from ills Exemption 16 "Thompson ods, merchan- Lcepted, which Bridge or the roiii Clinton in productions or ■ds Yale. It 3e, oats, barley ice, the growth n wheat, beans, cattle, and all interior of the •pose of manu- olls in British ■oduce of home the growth of id meal manu- esirable to en- the colony, and )oard from the other purpose. It is obvious, therefore, that the Act now under consideration is in furtherance of a policy which has been pursued in British Columbia for several years : but the under- signed feels it his duty to call the attention of council to this legislation, which, in eflFect, places upon the consumers of imported goods, the chief burden of maintaining the public roads which are established, as well for the transport of articles of home production. '_ The undersigned does not recommend the disallowance of this Act, but he must point out that its principle might be so extended, as to render it necessary to con- sider the question whether such legislation does not trench on the regulation of trade and commerce. Chapter 5. " An Act to make better provision for the qualification and registration of voters." Section 13 appears to trench upon the criminal law, and the undersigned recom- mends that the attention of the Lieutenant-Governor be called to it. Chapter 8. "An Act to assess, levy and collect taxes on property in British Columbia." The British Columbia Assembly passed, in its session of 1872, an Act to impose a wild land tax, which was reserved. Upon that Act the following observations were made by the then Minister of Justice, viz. : — " This Act imposes a tax of four cents per acre upon all lands, with certain exceptions. " By subsection a of the first clause of this bill, lands ve.sted in or held in trust for Her Majesty, or for the public uses of the province, are exempted from the tax. Although, under this exemption, the lands to be conveyed in trust by the government of Briti'sh Columbia to that of the Dominion, under the 1 1 th section of the terms of the union between British Columbia and the Dominion, will be free from the tax, it is clear that whenever these lands are conveyed to any company incorporated for the purpose of the construction of the Pacific Railway, the exemption will cease. " Now, the imposition of so heavy a tax as 4 cents an acre upon this large tract of wild lands, will render it practically valueless. " The government of Canada are taking active steps to endeavour to induce capi- talists to engage in the great undertaking of constructing a railway to connect the two oceans. The chief inducement to such capitalists is the promise of a large grant of land in aid of the enterprise, and the imposition of such a tax upon these railway lands, would greatly diminish the prospect of a company being formed." " The Attorney General of British Columbia seems to agree with the undersigned in this opinion. Under the circumstances, therefore, the undersigned begs respectfully to recommend that the assent of your Excellency be withheld from this bill. " He also begs leave to suggest that the Lieutenant-Governor of British Columbia be instructed to press upon his government the expediency of exempting these railway liinds in any Act that may be hereafter passed imposing a land tax. " He would further suggest, to prevent the possibility of a doubt, that subsection a, above referred to, should, in any new Act, be amended, by exempting lands now or at any time hereafter vested in, or held in trust for Her Majesty." The Act was not assented to. In 1873 the British Columbia legislature passed an Act to impose a wild land tax, by which an annual land tax of 1 per cent upon the value per acre, was assessed and levied upon all land, save as therein exempted. The first exemption is " land now or at any time hereafter vested in or held in trust for Her Majesty, or for the public uses of the province." This Act was left to its operation. It is, by the Act now under consideration, repealed, and the following provisions are enacted :— Section 8. " All land and personal property and income, in the province of British Columbia shall be liable to taxation, subject to the following exemptions, that is to say : — (1.) All property now or hereafter to be vested in, or held in trust for Her Majesty, or now or hereafter to be held as Dominion railway lands, and all lands to be conveyed to the Dominion government under the 11th section of the terms of union, or other- 1042 BRITISH COLUMBIA LEGISLATION 11 wise, or held by Her Majesty, or vested in any public body or body corporate, oflScer, or person, or in trust for Her Majesty, or for the public uses of the province ; and also all property vested in or held by Her Majesty, or any other person or body corporate, in trust, or for the use of any tribe or body of Indians, and either unoccupied or occupied by some person in an oHicial capacity. Section 9. "There shall be assessed, levied and collected from every person, and paid to Her Majesty, her heirs and successors, the sums following, that is to say : — " One-third of one per cent on the assessed value of real estate. Section 10. "In addition to the tax hereby imposed on real estate, an annual tax of five cents per acre shall be levied upon all unoccupied land in the province ; provided that no such tax shall be levied or collected in respect of the following land : — (2.) "Land now, or at any time hereafter, vested in, or held in trust for Her Majesty, or for the public uses of the province. (3.) " Land held for the benefit of any tribe or body of Indians." The words " unoccupied land " mean land on which there shall not be existing im- provements to the amount of $5 per acre on each parcel of land. It will be observed that the exemption from the fixed tax of five cents on unoccu- pied land, is not as extensive as the exemption from the tax on the assessed value ; and it might be argued to include lands " held as Dominion railway lands, or to be conveyed to the Dominion government under the 11th section of the terms of the union," which are exempted from the operation of the 8th section. The undersigned presumes that this cannot have been intended, and he suggests that the attention of the Lieutenant-Governor be called to this) difficulty, with a view to the amendment of the section, before the period arrives for determining whether the Act should be disallowed. Section 38 appears to trench upon the criminal law, and this fact should be sug- gested to the Lieutenant-Governor. Section 13, schedule B'. These provisions trench on the subject of census and statistics ; but provincial legislation of a similar character has been repeatedly left to its operation, and the undersigned cannot recommend interference with this Act on that ground. Chapter 11. " An Act to amend the ' Licenses Ordinance, 1867.' " The Licenses Ordinance, 1867, prohibited the carrying on of various descriptions of business, save under licenses, for which various sums were payable. The Act now under consideration provides that certain licenses must be taken out, in addition to the licenses required to be taken out by the persons following the several trades, occupations, professions or businesses mentioned, and set forth in schedule A of the License Act, 1867. The continuing validity of that ordinance is asserted, though the question whether it be wholly valid, depends upon the question as to the regulation of trade, to which the undersigned has referred as in controversy. But the new Act raises an additional and very serious question. It requires that there shall be paid, by way of license, the following sums, that is to say : — (p.) " By every person following the occupation of a commercial traveller, who is not a permanent resident of the province, and is engaged in the business of selling merchandise, or of soliciting orders therefor by sample or otherwise, the sum of two hundred dollars, in advance, every year. (q.) " By every person, not being a permanent resident in British Columbia, and not being a commercial traveller, who trades or sells any goods whatsoever in the province, one hundred and fifty dollars, in advance, every year. Provided, that in the electoral district of Kootenay the sum of one per cent only shall be paid by any person engaged in the business of packing, on the gross value of the cargo. (r.) " By every person engaged in peddling or hawking any goods whatsoever in any part of British Columbia, not being farming produce of home growth, or home manufacture of any description, or fish or game, one hundred and fifty dollars, in advance, every year." 39 VICTORIA, 1876. 1043 porate, officer, 3 ; and also all orate, in trust, ■ occupied by ■y person, and to sav : — an annual tax ince ; provided id:— trust for Her )e existing im- nts on unoccu- led value ; and bo be conveyed union," which id he suggests y, with a view g whether the should be sug- of census and ;edly left to its lis Act on that IS descriptions The Act now it, in addition several trades, iule A of the estion whether B, to which the .t requires that raveller, who is iness of selling le sum of two Columbia, and ,tsoever in the led, that in the by any person whatsoever in 5wth, or home irs, in advance, It further requires that these sums shall be paid, in addition to any sums that may be imposed and collected by any municipality under any by-law passed for the same purposes. Looking to the three sections, it deems sufficiently obvious that they are directed to, and will have the effect of laying a duty or charge upon the sale, chiefly, if not exclusively, of imported goods, when effected by persons not permanent residents of the province. Section "»•" expressly imposes a tax of $150 on persons engaged in peddling or hawking any goods, not being farming produce of home growth, or home manufacture, or fish or game. Section "/ Justice. 40 viCTOKiA, 1877. 1045 . BRITISH COLUMBIA, 40th VICTORIA, 1877. 2nd Session — 2nd Parliament. Lieutenant-Governor 0/ British Columbia to the Hon. the Secretary 0/ State. Government House, British Columbia, 10th May, 1877. Sir, — I have the honour to transmit to you herewith, for the information of his Excellency the Governor General of Canada, a certified copy of all the Acts passed at the last session of the legislative assembly of this province, and to which I assented in Her Majesty's name, on the 18th day of April last. Also a certified copy of a bill No. 35 passed at the said session, intituled : " An Act to amend the Gold Mining Amendment Act, 1872," to which I did not assent, but which I reserved for the signification of the pleasure of his Excellency the Governor General of Canada. Also, a copy of the repoi t of the Attorney-General of the province upon the said bill reserved, together with a list of the said Acts and bills. I have, &c., A. N. RICHARDS, Lieutenant- Governor. Report of Hon. Mr. Attorney-General Elliott. Attorney-General's Office, 16th April, 1877. Sir, — I have the honour to report upon an Act passed during the present session of the legislature, intituled : " An Act to amend the Gold Mining Amendment Act, 1872." This Act gives jurisdiction in all personal actions to the gold commissioners in Kootenay and Cassiar, and appears to trench upon the provisions of the 96th section of the British North America Act, which vests the appointment of the supreme and county court judges in the Governor General alone ; inasmuch as it provides that the paid employes of the local government, in the districts aforesaid, shall have and exercise almost as much power as a supreme court judge. As I think the legislature has not the power, in effect, to make these appointments, I would suggest that the Act be reserved for the consideration of his Excellency the Governor General. I have, (fee, A. C. ELLIOTT, A ttorney-General. Report of the Honourable the Minister of Justice approved by His Excellency the Governor General in Council on the 12th October, 1877. Department of Justice, Ottawa, 29th September, 1877. I beg to report upon the Acts passed by the legislature of the province of British Columbia in the fortieth year of Her Majesty's reign, being the year 1877 — received by the Secretary of State on the 22nd May, 1877. Nos. 1 to 4, 7, 8, 12, 16, 17, 20, 21, 23, 25 to 29, 31 and 34. 66 ij M 1046 BRITISH COLUMBIA LEGISLATION To these Acts t'l^re appears to be no objection, and I recominend that they be left to their operation. No. 5. — " An Act respecting the qualifications for the Offices of Mayor and Coun- cillors in certain Municipalities." Section 4 provides that " any candidate wilfully making a false declaration of his qualification for the office of city councillor or mayor shall, on conviction thereof, upon information under oath, in a summary way, before any justice of the peace, be liable to imprisonment for any period not exceeding three months, or to a fine, ed by His Excellency the Governor Oeneral in Council on the 28th February, 1878. Department op Justice, Ottawa, 2l8t February, 1878. I have now the honour to report upon two Acts passed by tho legislature of British Columbia in the session of 1877, which have have not yet been reported upon, namely : — No. 22. — " An Act to provide for the better Administration of Justice." This Act comes into operation only upon the proclamation of the Lieutenant Governor in Council published in the British Columbia Gazette. It has not, so far as I can ascertain, been yet proclaimed. It establishes county courts for certain districts in the province and provides by section 9, that each court shall he holden before a judge to be called the judge of tho county court of (as the case may be). That each such judge shall be appoint- \muM 40 VICTORIA, 1877. 1055 imbia, a Bill 1872," which itioa of the jllows : — . jurisdiction, irict, and the •a to enforce on 12 of the y have effect ce known as e Lieutenant missioners in section of the e and county hat the paid and exercise ture has not the Act be rith the :)'h ab')'!". alliu-,.'' 8 reii ■ I that or tLa liction should and Cassiar, upreme court ing an assize, ould mention, supreme court s. TTpon the a to this bill, selves. of Justice. f the Governor ary, 1878. ture of British 'eported upon, ice." the Lieutenant not, so far as I d provides by ; judge of the all be appoint- ed by the Governor General of Canada, and shall hold office during the pleasure of the Governor General. Upon this provision I may remark that in other provinces where county court judges have been appointed, the tenure of their office has been declared to be during good behaviour, but in the present state of the county courts in the province of British Columbia, it is probably better that the judges of the county court should, as de- clared by this Act, hold office during the pleasure of the Governor General. The only other provision of this Act which calls for special remark is section 27, which is as follows, viz.: — "And whereas, the Governor General of Canada, on the 27th day of April 1871, referred the question of retiring allowances of certain officers in British Columbia, to the decision of Her Majesty's Secretary of State for the Colonies who, on the 30th June, 1871, gave his decision, stating that the present incumbents of the county court bench should not be removed, unless and until they received from the Dominion government, either suitable employment of at least equal value, or an annual allowance of two-thirds of five hundred pounds ; th'.refore, it is provided that the present incumbents of the county court bench shall not be removed, except on the terms aforesaid, for the purpose of appointing professional men." One of the provisions in the terms agreed upon for the confederation of the pro- vince of British Co uinbia is as follows : — " Suitable provisions, such as shall be approved of by Her Majesty's government, shall be provided by the government of the Dominion for those of Her Majesty's servants in the colony, whose position and emoluments derived therefrom would be affected by political changes in the admission of this colony into the Dominion of Canada." • • r u It seems to be necessary to a proper understanding of the position ot the present ir-^umbents of the county court bench, to refer to the documents connected with the question of retiring allowances of certain officers in British Columbia, including the county court judges, in respect of which communicatior was had with Her Majesty's Secretary of State for the Colonies. ^ t> • • u On the 6th February, 1871, the executive council of the province of British Columbia passed a minute which was transmitted to the Governor General of Canada by Governor Musgrave of British Columbia, by despatch of the 9th February, 1871. This minute of council refers to the cases of 1. The colonial secretary. 4. The collector of customs. 2. The attorney-general, 5. The auditor-general. 3. The commissioner of lands and works. 6. The six stipendiary magistrates. And states " that the committee gather that the Canadian government are pre- pared to retain Nos. 3 to 6 in their present situations or similar ones." The minute further states that '= inasmuch as by the minute of the Privy Council of Canada two-thirds of the present emoluments have been mentioned, the committee would suggest that a sum not exceeding two-thirds the actual salary of the officer should be fixed, in order to compensate such officer for any other emoluments of which he might be deprived, namely ; — Colonial secretary Ti ^600 per annum Commissioner of lands and works 600 do Collector of customs 600 do Six stipendiary magistrates 350 do Auditor-general 350 do On the 26th April, 1871, a report from the honourable the Minister of Finance, dated 24th April, 1871, upon the subject, was approved by the Governor General in Council, and the recommendations therein submitted adopted. This report was made upon a despatch from Governor ^Musgrave, dated 9th February, 1871. The Minister of Finance in his report dealt with the case of the several officers in the employment of the British Columbia government. As to the case of 8tip«ndiary J 1056 BRITISH COLUMBIA LEGISLATION magistrates, the minister remarked : " It appears that no difficulty exists as to the stipendiary magistrates, who are ti continue to serve at their present salaries." And in concluding his report the minister recommended that the papers and despatches bear- ing upon the subject should be transmitted to Her Majesty's Principal Secretary of State for the Colonies : " With a request that Her Majesty's government 'aUI decide how the officers in British Columbia are to be dealt with, under the 6th section of the termsof confederation with British Columbia." On the 27th April, 1871, the Governor General accordingly transmitted to the Secretary of State for the Colonies the papers referred to, and on the 3rd June, 1871, the Secretary of State replied, and in reference to the stipendiary magistrates wrote as follows : — "Your Privy Council remark that no difficulty appears to exist as to the stipen- diary magistrates, who are to continue to serve at their present salaries. I understand from this that your Government concur in, and accept the proposals of Governor Mus- grave, as contained in paragraphs 3 to 8 of b' u^-ipatch No. 30, of 22nd November last, and that whenever, from any cause, any o'' them ceases to hold his present employment, he will receive either suitable employment of at least equal value, or an annual allow- ance of two-thirds o' i'lOO. I do not, however, consider that the stipendiary magis- trates have the saL; ' "'r as the other superior officers of the' Government, to the option of retiring at I' r pon a pension. I look upon them, to use Governor Mus- grave's words, ' as a clast i-t,' whose position is not necessarily affected by political ch inges on the admission oi British Columbia into the union." It will be observed that the recital in the section now under consideration as to the decision of the Secretary of State for the Colonies is inaccurate, and were the section, in providing " that the present incumbents of the county court bench should not be removed except on the terms aforesaid, for the purpose of appointing professional men," within the powers of the provincial legislature, the inaccuracy in the recital of the decision of the Secretary of State for the Colonies, would be a sufficient reason for dis- allowing the Act were it not amended, but I am of opinion that the enactment is ultra vires of the provincial legis'ature, inasmuch as it assumes to limit the power of the Dominion government, in respect of the retirement or removal of officers appointed, paid by, and holding office during the pleasure of the government of Canada. I say nothing as to the implied want of confidence in the good faith of the Dominion government contained in the section, as it is unnecessary to deal with it upon that ground. I recommend that the attention of the Lieutenant-Governor be called to these remarks, and that he be asked to request his government to promote, at the present ses- sion of the legislature, the repeal of the section. I recommend further that unless the section be repealed before the time for disal- lowance of the Act expires, the Act be disallowed. Cap. 24 — " An Act to consolidate the laws reiating to the legal profession in this province." The provisions of this Act place certain restrictions, which did not previously exist, iipon the admission of barristers and attorneys to practice in the courts of the province, and although the wisdom of these restrictions, in the present limited state of the legal profes^iion in British Columbia, may be questioned, yet, as the subject matter of the Act comes within the legislative authority of the provincial legislature, the power of disal- lowance could not properly be exercised in respect of the Act, unless some Dominion interests were prejudiced thereby. The only way in which it could be said that Dom- inion interests would be prejudicetl by the Act, would be in reference to the appoint- ment of judges to the courts of the provinces, if those judges had to be selected from the bar of the province. After carefully considering the provisions of the British North America Act, as made applicable to British Columbia, by the terms upon which that province entered confederation, I am of opinion that the selection of judges for British Columbia is not confined to the bar of that province. This, no doul t, was the opinion of the Minister of Justice at the time that Mr. Justice Gray, of the New Brunswick bar, was appointed a Iff sts as to the aries." And spatches bear- Secretary of t 'A ill decide section of the litted to the i June, 1871, ■ates wrote as to the stipen- I understand overnor Mus- ovember last, ; employment, annual allow- idiary magis- nment, to the overnor Mus- l by political ition as to the the section, in ihould not be )asional men," recital of the •eason for dis- bment is ultra power of the !rs appointed, da. the Dominion it upon that ailed to these le present ses- }ime for disal- ifession in this eviously exist, : the province, te of the legal iter of the Act ower of disel- ime Dominion lid that Dom- the appoint- lected from the nierica Act, as )vince entered olumbia is not the Minister as appointed a 40 VICTORIA, 1877. 1057 judge of the Supreme Court of British Columbia, and such being the case, the Act appears to me to be one which should be left to its operation, and I recommend accordingly. Z. A. LASH, Deputy Minister of Justice. I concur, R. LAFLAMME, Minister of Justice. Report of the Hon. the Minister of Justice approved by His Excellency the Governor General in Council on the 16th May, 1878. Department op Justice, Ottawa, 15th May, 1878. I have the honour to report : — That by my reports of the 29th September, 1877, and 21st February, 1878, res- pecting the Statutes passed by the legislature of the province of British Columbia, in the year 1877, objections to certain Acts were taken, and the attention of the Lieute nant-Governor called thereto, with the request that the objections might be removed by repeal or amendment, before the time for disalowance expired. Not having received a copy of the statutes passed by the legislature of the province duiing the session which lately closed, and not having been informed by the Lieutenant- Governor as to the action (if any) which had been taken with respect to the objectiona- ble Acts, and the time for disallowance expiring on the 2l8t May, inst., the following telegram was transmitted by the Secretary of State to the Lieutenant-Governor on the 30th April, last, viz.: — " Please state what action (if any) has been taken in reference to objections made to certain provisions of certain statutes passed by your Legislature last year. Time for disallowance expires 22nd May. Reply first mail." " Nothing done towards repealing objectionable clause. Copy of Acts passed last Session mailed to you on the 24th ultimo. Have writen." On the 8th May, instant, certified copies of the statutes of British Columbia of last session were received. On examining them T find, that with the exception of the following Acts, viz. : — No. 22. " An Act to provide for the better Administration of Justice," No. 32. " An Act to incorporate the Alexandra Company, Limited." No. 33. "An Act to incorporate the British Columbia Insurance Company, Limited," All the objections to the Acts of 1877 have been removed by legislation. The letter referred to by the Lieutenant-Governor in his telegram of the 2nd instant, has not yet been received, and the time for action being so short, I think it imprudent to wait any longer, as the Acts last referred to are very objectionable, and exceed the powers of the local legislature, and must, in acoordance with the suggestion contained in the approved reports upon them, be disallowed. No great inconvenience will result from the disallowance of Act No. 22, inasmuch as it lias not yet been brought into force ; and the other two Acts, Nos. 32 and 33, being for ■ incorporation of private companies, it is not likely that much inconvenience will result from their disallowance, especially as many of the powers assumed to be conferred upon these companies, are already beyond the authority of a local legislature. I recommend, therefore, that the Acts, viz. : — No. 22. " An Act to provide for the better Administration of Justice," No. 32. " An Act to incorporate the Alexandra Company, Limited," No. 33. "An Act to incorporate the British Columbia Insurance Company, Limited," passed by the legislative assembly of the province of British Columbia, in ... 1058 BRITISH COLUMBIA LEGISLATION the fortieth year of Her Majesty's reign, A.D. 1877, be disallowed by your Excellency in Council, and that the necessary proclamation in that behalf be issued. Z. A. LASH, Deputy Minister of Justice. I concur. R. LAFLAMME, Minister of Justice, Order in Council disallowing the Acts 22, S2 and 33, above me. - .... '':.,.«« in the Canada Gazette on the 18th day of May, 1878, vol. XL, No. 4.6, page 1188. 41 VICTORIA, 1878. 1059 ir Excellency Justice. ''-j/tBct in the e 1188. BRITISH COLUMBIA, 41st VICTORIA, 1878. 3bd Session, 2nd Parliament. Report of the Honourable 'the Minister of Justice, approved by His Excellency the Governor General in Council, on the 1st August, 1879. Department op Justice, Ottawa, 2nd July, 1879. I have the honour to report upon eighteen Acts passed by the legislature of the province of British Columbia, during the session held in the spring of 1878, the titles of which are as follows : — o-c > » "An Act to amend the ' Power of Attorney Act, 18< 5. ^ ^^ "An Act to amend the ' Qualification and Registration of Voters Act, 1876. "An Act to amend the 'Coal Mines Regulation Act, 1877.' " "An Act to amend certain Acts relating to Municipalities (cap. 129 of the Con- solidated Statutes of British Columbia)." ^^ "An Act to encourage the mining of Gold-bearing Quartz. "An Act to amend the 'Ballot Act, 1877.'" . , n i u- » "An Act for the protection of certain Animals and Birds in British Columbia. "An Act relating to Corporations." , , « j "An Act for dyking and reclaiming certain lands at Chilli whack, bumass and Matsqui." , . ^^ ^ » "An Act to incorporate the British Columbia Express Company. "An Act to incorporate the Moodyville Saw Mill Company, Limited." "An Act to incorporate the British Columbia Milling and Mining Company." ^^ "An Act for the better regulation of traffic on the highways of British Columbia.' "An Act to amend the 'Consolidated Public School Act, 1876,' cap. 142. Con. Stat. 1877." , , ^ J . , , • A ^ "An Act relating to Minerals, other than coal, found in lodes or veins, and to amend the Gold Mining Ordinance, 1867." (Con. Stat., cap. 123.) "An Act to amend the ' School Tax Act, 1875.' " (Con. Stat., cap. 43.) "An Act to amend the ' SherifiFs Act, 1873.' " "An Act for granting certain sums of money required for defraying the expenses of Civil Government for the half-year ending 30th June, 1878, and for other purposes.' With the exception of the Act intituled : "An Act for dyking and reclaiming certain lands at Chilliwhack, Sumass and Matsqui," the above Acts appear unobjectionable, and should be left to their operation. , .^ ,,. • . « .u t ^ • *i, * *i,» I was given to understand by the deputy of the Minister of the Interior, that the provisions of the Act last mentioned conflicted with an understanding entered into bj the partment of the Interior with the British Columbia Government. The Act was therefore sent to him for his remarks. After communication with the Indian agent in British Columbia, and Vith the British Columbia government, the objections to the Act have, I am informed, been removed, and the Department of the Interior has reported that the Act may be left to its operation. , , , . I recommend, therefore, that the eighteen Acts above mentioned be left to their operation. Z. A. LASH. Deputy Minister of Justice. I concur. JAMES McDonald, Minister of Justice. 4i _J» 1060 BRITISH COLUMBIA LEGISLATION [H BRITISH COLUMBIA, 42nd VICTORIA, 1878. 1st Session, 3rd Parliament. Report of the Honourable the Minister of Justice, approved by His Excellency the Governor General in Council on the 17th March, 1879. Department op Justice, Ottawa, 13th March, 1879. Referring to the Act (No. 20) parsed by the legislature of the province of British Columbia, in the year 1878, known as " The Better Administration of Justice Act, 1878," I have the honour to report .■ — That, having considered the same, I recommend that it be left to its operation. JAMES McDonald, Minister of Jiistice. Mr. Collector Haniley to the Lieutenant-Governor British Columbia. Custom House, Victoria, 2nd September, 1878. Sir, — In the report of the proceedings in the House of Assembly on Friday last, Mr. Galbraith is stated to have said that the bill to disfranchise Custom officers and others, was brought forward in accordance with the wishes of those persons themselves. As far as the custom house is concerned, no statement could be more inconsistent with the truth. I have never spoken a word to Mr. Galbraith, or to any other member of the House, on the subject, nor has any one employed in the custom house here, and to prevent misunderstanding in a matter that may at some future time be of import- ance, 1 hall be glad if you will be so good as to forward this letter, with the bill, for the consideration of the Canadian government. I have, &c.. W. HAMLEY, Collector of Customs. Petition from Go'vernment officials at Victoria, B.C., to Governor General. To His Excellency the Right Honourable Sir Frederick Temple Hamilton Blackwood, Earl of Dufferin, Governor General of Canada and Vice Admiral of the same : 9 May it please Your Excellency : — We, the undersigned, residing in Victoria, British Columbia, for ourselves, and for others resident in other parts of the province, and holding office under the government of the Dominioii of Canaida, beg most respectfully to pray that your Excellency will be graciously pleased to take into consideration, with a view to the relief of your memorial- ists, the Act recently passed by the legislature of this province,, and assented to by his Honour the Lieutenant Governor, intituled : " The Qualification and Registration of Voters Act (1876) Amendment Act, 1878," upon the following grounds : — 1. That the civil rights of the officers of the Dominion government in this province are seriously aflected by this Act. xcelUncy the h, 1879. ce of British e Act, 1878," tperation. Jiiatice. ibia. >r, 1878. Friday last, 1 officers and ) themselves, nsistent with r member of here, and to oe of import- the bill, for Customs. '■neral. I Blackwood, 'le same : jlves, and for ) government llency will be >ur memorial- ed to by his igistration of this province 42 VICTORIA, 1878. 1061 2. That it is arbitrary and unjust, if not unconstitutional, for the provincial legis- lature to deprive the officers of the Dominion government in this province, of the right to vote at the election of members to serve in the Dominion or provinciiil parliaments, and that it is a Hagrant outrage upon their common rights us British subjects to make the mere expression of opinion, or intimation of feeling, a penal oflence punishable by fine or imprisonftient. .3. That we were astonished to hear, and most emphatically deny the allegation made by the introducer of the bill in the legislature (Mr. Galbraith) to the eflect that we desired to be deprived of the franchise. 4. That practically manhood suffrage obtains in this province, that many of us have large landed interests in the country, and have enjoyed and exercised in it, for more than twenty years, the right of voting at elections for members of parliament, and that we now find ourselves disfranchised by the passage of this Act. And your memorialists will ever pray. R. F. McDoNELL, R. B. McMicking, District Store-keeper, Gen. Sup. Dom. Gov. Telegraphs in B.C., Tuos. Westoarth, Alex. C. Anderson, Steamboat Inspector, Inspector of Fisheries, British Columbia. And others. By Telegraph from Victoria, B.C., to the Secretary of State. Victoria, B.C., 10th August, 1878. Leijislature has imposed poll tax forty dollars on all Chinamen in province. Tax not payable by other foreigners. Believed to be unconstitutional. Chinese merchants here pray that the Lieutenant-Governor be instructed to withhold assent, and reserve bill for consideration of Governor General. Petition, &c., will be forwarded. A. R. ROBERTSON. Mr. A. R. Robertson to Secretary of State. Victoria, British Columbia, 30th August, 1878. SiRj T have the honour to forward herewith for the consideration of his Excellency the Governor General, a petition from several Chinese firms in this city, with respect to a bill recently passed by the legislative assembly of British Columbia, imposing a special tax on the Chinese of this province. I have, «fec., A. ROCKE ROBERTSON. Petition of Chinese Merchants to His Excellency the Governor General. To His Excellency the Governor General of the Dominion of Canada : The petition of the undersigned Chinese merchants residing in the city of Victoria, in the province of British Columbia, in the Dominion of Canada : Humbly showeth : 1. That your petitioners are doing business in the city of Victoria aforesaid. 2. That the annexed bill, intituled : " An Act to provide for the better collection of provincial taxes from Chinese " passed its third reading in the legislative assembly of British Columbia on the ninth day of August, A.D, 1878. 67 l\ 1062 BRITISH COLUMBIA LEGISLATION 3. Your petitioners are informed and believe that the said legislative assembly will be prorogued in the course of the present week, when the said Act will be assented to and become binding on your petitioners and their fellow-countrymen in British Columbia. „ „ , . , ,1.11. Your petitioners humbly represent for your Excellency s consideration the following facts, namely : t^ ■ /-, , 1 . • • . 1 1 There are many Chinese mercantile houses in British Columbia, which have been established in British Columbia for upwards of fifteen years, and during that period the said houses have contributed large amounts to the public revenue. Under the laws now in force in British Columbia, all Chinamen residing in the said province above eighteen years of age, are compelled to pay a road tax and a school tax, equal to the amounts paid by other residents of the province, and are in all other respects taxed in the same way by both the provincial and municipal governments, as other residents are taxed. The said school tax and road tax for the present year have been already largely collected from the Chinese in the said province. Although the Act referred to in the several paragraphs of this petition does away with the application of the " Assessment Act, 1876," and of the " School Tax Act, 1876," to Chinese, it substituted a tax which is much more oppressive, inasmuch as : — 1. It is payable by children above twelve years of age. 2. It is a large and arbitrary amount payable by poor and rich alike, and not based upon property or income. 3. It applies to Chinese alone, many of whom are British subjects. Your petitioners humbly submit that such a tax is inconsistent with, and repugnant to, the treaties existing between Her Majesty the Queen and the Emperor of China. Your petitioners humbly pray that your Excellency will be pleased to disallow the said Act. Sing Lee Cham, Wing Chong & Co., Wo Chin & Co., Tai Loon & Co., KwoNG Kong Sing, Victoria, B.C., 29th Augu.st, 1878. Hie Lee, Tai Yum, Dong Song & Co., Tay Chong Yuen, Kong Lee & Co. Petition of Canners of Salmon to the Governor General. To His Excellency the Earl of Dufferin, K.P., K.C.B., Governor General of Canada : The memorial of the undersigned proprietors of establishments for the canning of salmon on the Eraser River in the vicinity of New Westminster, B.C., Humbly shwoeth : That your memorialists respectfully request that ycur Excellency will be pleased to disallow "The Chinese Tax Act, 1878," recently passed by the legislative assembly of British Columbia, for thb following reasons : — 1. We believe the said Act to be at variance with the British constitution, in this, that it imposes a tax upon persons simply on account of nationality ; that it conflicts with existing treaties, made by the imperial government, and that in many instances it would tax persons who are British subjects, simply because they are Chinese. 2. We believe that it is impolitic, in that it will destroy many industries, which are now being established, and are yet in their infancy, among them is the canning of salmon. Chinese labour is, at present, the only labour available for the prosecution of this business. The short period of time during which the fish run (frequently but one month out of the year) prevents other classes of labourers from seeking employ- ment in canneries, except in the procuring of fish which is entirely done by white men ative assembly vill be assented men in British m the following hich have been that period the ding in the said id a school tax, 11 other respects aents, as other yrear have been ition does away Tax Act, 1876," h as : — e, and not based 1, and repugnant 'or of China. I to disallow the M, !0NG »fe Co., lONG Yuen, jEE & Co. ,1 of Canada : r the canning of (vill be pleased to itive assembly of 1 constitution, in l-ionality ; that it id that in many lecause they are industries, which u is the canning ' the prosecution 1 (frequently but 1 seeking employ- ne by white men 42 VICTORIA, 1878. 1063 and Indians. Frequently the whole amount of money earned in a season by a China- man is less than the annual tax demanded by this Act. Should the Act he enforced it will virtually compel all the canneries on the Fraser River to close, and absolutely ruin those who have invested their capital in the business. 3. We re.spectfully submit that this Act is opposed to natural justice and common sense, in demanding, as it does, from the employer, a penalty foi- the fault committed Uy the employee, thus introducing a new and vicious principle into English law, whereby an innocent man, against his will, is miwle answerable for the fault of a wrong-doer. 4. The number of Chinese who are now in this colony is not so great as to inter- fere with white men, or to crowd them out of employment. On the contrary, the fact that Chinamen can be obtained for canneries, gives room for over fifteen hundred whites and Indians, who are engaged in fishing, and who would be at once thrown out of em- ployment if the canneries should be forced to close. 5. The popular cry against Chinese proceeds from a class who have nothing at stake in the country, and we believe is not in accordance with the opinions of the most intel- ligent and better class of our population. Your memorialists, therefore, pray that for these various reasons your Excellency will be graciously pleased to withhold your Excellency's assent from and disallow the said Act, and your memorialists as in duty bound will ever pray. A. HoLBROOK, Cfiairman, Kino & Co., Lane, Pikk & Nelson, Delta Cannin(} Co., FiNDLAY, Durham & Brodie, 6th September, 1878. Enolish ik Co., EwEN ik Wise, British Columhia Packing Co., R. J. Finlavson, Jun. Lieutenant-Governor of British Columbui to the Hon. the Secretary of State, Government House, Victoria, B.C., 3rd September, 1878. Sir, — I have the honour to inclose you herewith, for the information of his Excel- lency the Governor General of Canada, a copy of " An Act to provide for the better Collection of Provincial Taxes from Chinese," to which I, yesterday, assented in Her Majesty's name. I beg to inform you that I shall forward, in due course, copies of all Acts passed at the late session, with the usual report, and only forward the inclosed copy in advance, as the question involved in it is one of importance. I have, hic notice aj)j)ear<'(l in tlic l/>ndoti papers to th(» ellect that the Supreme (Jourt of tlie province had dechirtMl the Act ille- gal. I shall be gla«l to he furnished with any information at your command upon tlie latter statement. I have, (tc, M. E. HICKS-BEACH. Till' /'hreign Oj/icf to the Colonial Oj/icf. Foreign Office, 18th November, 1878. Sir, — T am directed by the M'irquis of Salisbury to transmit t^t you to be laid before Her Majesty's Secretary of State for the Colonies, the accompanying; copy of a letter from the Chinese minister at this court, representing that by a bill recently passed by the i^giwlature of British Columbia, Chinese merchants and others resident in that colony, are subjected to a poll tax of .S40 per annum, from which they petition to lie relifvt d, and i am to request laat in laying this letter before Sir M. E. Hicks- Beach you will move him to inform Lord Salisbury "hat reply should be given to Kno Ta Jeu's representation. I am, ikc, T. V. LISTER. The Chinese Minister to the Marquis of Salisbury. Chinese Legation, 2nd November, 1878. My Lord Marquis, — I have the honour to inform your lordship that I have just received a joint petition from the merchants and labourers of the Chinese firms Kwang li Tai, Yuan Lung, Sciang Tai Suou Chung, Tai-chang Yuan and Sin Yee, of Victoria, British Columbia. The statement and the petition is as follows : — " We, the merchants and labourers are the natives of China. We have been for many years in Victoria, in the British Dominion of Canada, North America, either as merchants importing and selling goods, or as labourers undertaking manual works. In the spring of this year we heard that the new legislature would pass a bill levying an oppressive tax on the Chinese, but thought it was a rumour, and could by no means become a fact ; as the English people in China are not taxed in any way, there is no reason why the Chinese people in the British Dominion should be taxed. It was in the sixth month of this year that the rumour became true, and a bill was passed that every man was to be taxed $40 a year ; but the Governor of Victoria has not yet signed it ; Therefore, we went in haste to see the authorities of Victoria, and requested them not to jign the bill. The authorities informed us that this was a matter to be decided on by the Governor General of Canada. If no instructions stopping the passing of the bill v/ere received, the Victoria authorities could not do otherwise than to sign it. We ".mnjediately laid the matter before the Governor General of Canada by a telegram, and received from his Excellency a reply stating that his Excellency could hot decide until examination had been instituted after the receipt of petitions. We at once en- gaged a lawyer named Si Pa Chin to draw up a petition, which was sent to Canada on the fourth of the eighth month, biSt up to this time no reply has yet been received. On the 11th day official messengers who came to urge the payment of siiay-yiu were brought to us — the English words for siiay-yiu are tax silver. The official mes- sengers holding tax papers in their hand, declared that they received instructions from the high functionaries to collect taxes for the government, that every man should every jrDught umlei- in thu London the Act ille- lund upon the VCH. iber, 1878. » you to be laid fin^i copy of a a l)ill recently others resident 1 they petition • M. E. Hicka- 8 given to Kno nber, 1878. hat I have just 36 firms Kwang fee, of Victoria, e have been for nerica, either as lual works. In I a bill levying uld by no means way, there is no I. It was in the lassed that every ot yet signed it ; I requested them ter to be decided he passing of the than to sign it. a by a telegram, ;ould hot decide We at once en- it to Canada on sen received, nent of siiay-yiu The oflScial mes- instructions from nan should every 42 vicTOHiA, 1878. 1065 year pay a tax of forty dollars, which were to be paid quarterly, and that if no tax were paid in accordance with the regulations, the oiUcial messengers would come in the course of next week to remove their goods ui»d conticate the same. The same statement found expression in the newspapers here. At the time we endeavoured to put otl the payment of the tax, but among the labourers, the employers of some have alnNidy deducted the taxes of the employed to pay the said tax. If such usuage prevails, the merchants who make but very slight profit cannot bear the burden of taxation. Indeed, it is very much more unbearable for the ptwr ialwurers to be thus taxed ; moreover, there are people who are without any employment, for them it is extremely dithcult even to get their daily bread. If such persons were equally taxed, their position would be intolerable to an extreme degree. . i i i The poi)ular feelings are so excited that serious distuibance u to be apprehended. Considering that it is of very great consequence to the general orde. of things we lay before your Excellency our causes of complaints, and beg your Excellency to protect and secure our interests. We do not aim at any extra favourable treatment from thr British government. What we hope for is that we may be so fortunate as to receive the same kind of treatment as the i)eople of other nations do. While drawing up this despatch, I received from his Excellency Chin, his Imperial Majesty's minister to the United States of America, Spain and Peru, a letter acquaint- ing me that the said merchants and labourers sent a similar petition to him, and re- questing me to communicate with the British government, and to request thom to ex- empt the said merchants and others from the above mentioned taxation. I beg to remark that in the British colonies the people of different countries are always treated without any partiality whatever. In the case of the merchants of the Chinese firms, Kranz Li Tai, Juan Lwig and others, if there had been found in them anything unsuitable to the colony, the coui • of proceeding should have been to di.scuss the merits and demerits of the matter of t;u t ; it is certainly an extremely inexpedient measure to impose such a burdensome tax on every one of them. I am of opinion that the Lieutenant-Governor of British Columl)ia cannot fail, in consulting with the Secre- tary of State for the Colonies, to adopt measures prohibitory of such taxation, in accord- ance with the existing general regulations. I beg to request the Secretary of State tor the Colonies, through your lordship, to cause instructions to be sent to the Lieutenant- Governor of British Columbia directing htm to reconsider the case, and order the exemption of the above mentioned tax, so as to secure the safety of the interests ot the people concerned. I have, &c., KNO-LUNG-TOO. Heport of the Honourable the Minister of Justice, approved by Ilis^Excellency the Governor General in Council on the i28th October, 1S79. Department of Justice, Ottawa, 1 5th August, 1879. I have the honour to report upon certain Acts passed by the legislature of the province of British Columbia in the year 1878 (42 Vic.) and assented to in the month of September of that year. -,„„-,,, Cap 19— "An Act to amend the 'Constitution Act, 1871,' by creating a new Electoral District and providing for a redistribution of seats in the districts of Nanaimo, Cowichan and Kootenay." - - This Act should be left to its operation. » t • » Cap. 20.—" An Act to make further provision for the Administration ot Justice. This Act has already been, by Order in Council, left to its operation. Cap. 21.— "An Act to enable the Lieutenant-Governor in Council to establish a tariff of costs in the Supreme and "Jounty Courts." \ 1066 BRITISH COLUMBIA HGI8LATI0N This Act is doubtless A^ithin the legislative powers of the provincial legislature, and as it does not interfere with Imperial or Dominion interests, the po>ver of disal- lowance should not be exercised with respect to it. The wisfiom and expediency of its provisions are, however, open to serious question. Cap. 22. — "An Act to amend the Qualification and Registration of Voters' Act, 1876." This Act is with the legisJative authority of the provincial legislature, and should be left to its operation. The verj stringent provisions of the fourth section against certain persons directly or indirectly influencing voters at provincial elections will, I fear, prove to be very difficult to enforce. Cap. 23. — " An Act relating to the protection of Game." Cap. 24.— "An Act to amend the ' Highways Nuisances Removal Act, 1^78.' " These two Acts should be left to their operation. Cap. 25. — " An Act relating to the Crown Lands in British Columbia." The provisions of this statute are of a startling nature. The first section casts upon persons who had purchased Crown lands before the Act was passed, and upon persons who held leases or ferry charters, a liability never contemplated by them when the purchases or leases were made. The section declares that from and after the passing of the Act, all moneys due in respect of such purchases, leases or charters shall bear interest at twenty-four per cent per annum until paid. The second section empowers the Chief Commissioner of Lands and Works, without further notice to the j^^urchiiser of Crown lands than a mere notice in the British Columbia GazMf, to cancel " all or any records or agreements concerning su'jh lands, and in euch uase the right of such person therein or thereto, and rioney paid by him thereon shall be absolutely forfeited, and he shall have no further right at- law or in equity to the land so partially paid for." If the whole subject matter of tLis Act were within the exclusive legislative con- trol of the British Columbia legislature, I would feel some difficulty in recommending that the Vet be disallowed, merely because its provisions did not accord with my views of justice. I recognize fully the importance of allowing the local legislature to be the judges of the wisdom and expediency of any Act falling within their exclusive legislative authority. This Act, however, seems to me to atte.npt to deal with a subject assigned by the British North America Act exclusively to the parliament of Canada, viz.; — The subject "f interest. The case of Ross vs. Torrance. The city of Montreal, claimants, reported in vol. 2 of the Moptreal Legal JYetvs, page 18( , decides that a statute of the Quebec Legislature (41 Vic, cap. 27). which assumes tc authorize the corporation of Montreal, by by-law, to re-act an increase addition or p malty of ten per ^ent on all arrears of assessments not paid within a certain day, is unc institutional and void, as being beyond the powers of a provincial legislature. The coui*; held that the attempt to authorize the re-actior of an " increase addition or penalty " was an interference with the subject of interest. The case referred to is a clear authorit) against the constitutionality of the Act now under consideration, and in view of the fact that the government of the province are not in th° jame position as a private individual would be under similar circumstances, and that the purchaser of Crown lands, or the holder of a lease or ferry charter, could not readily test the validity of the Act in the courts as he could do were his opponent a subject, whom he could bring into court in an ordinary action ; in view, also, of the nature of the Act itself. I have less hesitation in recommending its dis- allowance, I recommend, therefore, that the said Act, being chapter 25 of the Statutes of British Columbia, passed in the forty-second year of Her Majesty's reign, A.D. 1878, and intitutled : — "An Act relating to the Crown Lands i' British Columbia," be disallowed. Cap. 26. — " An Act relating to certain Ordinances and Acts." Cap. 27. — " An Act to amend the law respecting retail Liquor Licenses." Cap. 28.—" An Act relating to the British Coluuibia Loan Acts, 1874 and 1876." 1 ncial legislature, iie power of disal- expediency of its I of Voters' Act, ature, and should ri persons directly prove to be very 1 Act, ns.'" mbia," first section casts passed, and upon ed by them when after the passing barters shall bear id Works, without ;o in the British ruing su'jh lands, jney paid by him right at' law or in ^'e legislative con- in recommending ird with my views e to be the judges elusive legislative ct assigned by the viz.; — The subject uants, reported in ute of fche Quebec tion of Montreal, b on all arrears of I, as being beyond iempt to authorize e with the subject onstitutionality of government of the I be under similar of a lease or ferry 3 he could do were y action ; in view, mmauding its dis- 5 of the Statutes iesty's reign, A.D. tish Columbia," be jicenses. i, 1874 and 1876 42 VICTORIA, 1878. 1067 Cap. 29.—" An Act to amend the Mineral Act, 1878." Cap. 30. — " An Act to provide for employing Prisoners without the walls of Common Jails." Cap. 31. — " An Act to amend the law relating to the Legal Profession." Cap. 32.—" An Act to amend the School Tar Act, 1876." Cap. 33. — " An Act for granting oerLain sums of money required for defraying the expenses of civil government for thf half-year ending 31st December, 1878, and for other pui'poses." Cap. 34. — " An Act for granting certain further sums of money required for de- fraying expenses of the civil government for the half-year ending 31st December, 1878, and for other purposes." The above Acts should be left to their operation. Cap. 35. — " An Act to provide for the better collection of Provincial Taxes from Chinese." This Act has boen held by the Supreme Court of British Columbia to be uncon- stitutional and void. The judgment has not been appealed from, and must be taken to be the law. As it is clearly the duty of this government not to allow an Act of this nature, which has been declared by the court to be idtra vires, to remain on the statute- book, I think it al.ould be formally disallowed. I recommend, therefore, that the Act of the j)rovince of British Columbia, passed in the forty-second year of Her Majesty's reign, A.D. 1878, cap. 35, and intitutled : — "An Act for the better collection of Pro- vincial Taxes from Chinese," be disallowed. Cap. 36. — "An Act to amend the Assessment Act, 1876." This Act contains many detail provisions which no doubt will be found useful in connection with the collection of taxes, some of its provisions are very stringent and may work hardships, but so long as they are within the legislative authority of the province, their nature is not such as to call for an exercise of the power of disallowance. There are, however, certain provisions in the Act which call for remark, as being ultra vires of the provincial legislature. The 10th section enacts that when taxes are delinquent {i.e., unpaid for a certain specified time), twenty-five per cent thereof shall be ci'arged thereon and added thereto, and shall form part of such delinquent tax, and interest/ shall at once attach thereon at the rate of 18 per cent per annum. Pro- visions then fellow for the collection of the amount by sale of the land, &c. According to the decision in the case of Ross v. Torrance, above referred to, the attempt to add the 25 per cent and the 18 per cent interest to be unpaid taxes, is void. Were the statute now under consideration of a nature similar to the " Act relating to the Crown Lands in British Columbia," which has been recommended to be disallowed, T would feel called upon to make the same reci.>mmendation with respect to it. The objection to this Act, however, from a constitutional point of view, relates to the provisions which affect the amount merely of the tax ; the other pi-ovisions, though in some respects stringent, are within the powers of the provincial legislature, and it must bo presumed that they have been found necessary in the public interests, and they are not of such a nature aa to call for interference therewith by the Dominion government. Any person desiring to test the legality of tlie claim for the 25 per cent addition, and the 18 per cent interest, will have a convenient way of doing 'O by proceeding against the collector to restrain a seizure or sale, by testing the validity of the sale with the purchaser. In this respect the Act differs materially from the one which has been recommended for disallowance. Under all the > rcumstances, I think the better course will be to leave the Act to its operation, at ii same time calling the attention of the British Columbia government to the above , p .rks, and to the case of Ross v. Torrance above referred to, in order that they may con.dder the advisability of the public interests of amending the Act next session in such a manner as will remove the constitutional objections thereto, and at the same time prevent the litigation and feeling of insecurity with respect to tax titles, which will undoubtedly arise if tne Act be attempted to be enforced in its present shape. I recommend, therefore, that this course be followed. Cap. 37. — " An Act to amend the Cariboo Wagon Itload Tolls Act, 1876." This Act will be reported on at a future time. J 1068 BRITISH COLUMBIA LEGISLATION Cap. 38. " An Act to amend an Act to afford Owners and Occupiers of land a summary remedy in certain cases of Trespass." This Act is unobjectionable, and should be left to its operation. Z. A. LiSSH, Deputy Minister of Jnstic'i. I concur, JAS. Mcdonald, Minister of Justice. Orders in Council disallowing the Acts, chapters 2-5 and 35, publwhed in the Canada Gazette on thr 30th day of August, 1879, Vol. XIII., No. 9, page 384. Report oj the Hon. the Minister of Justice, approved by His Excellency the Governor General in Council on the 2nd October, 1879. Department of'Justice, Ottawa, 24th September, 1879. I have now the honour to report upon the Act passed by the legislature of British Columbia in the year 1878, cap. 37, and intituled : " An Act to amend the 'Cariboo Wagon Road Tolls Act, 1876.' " " The Act is as follows : " Section 2 of the "Cariboo Wagon Road Tolls Act, 1876," shall be and the same is hereby repealed, and in lieu thereof the following shall be substituted : — " There shall be levied and paid from and after the passing of this Act unto and to the use of Her Majesty, her heirs and successors, from all persons whomsoever by way of toll the sums following, that is to say : — "For e/ery pound avoirdupois of goods, merchandise, stores, productions and chattels, other than those hereinafter excepted, which shall respectively be carried from Yale in the direction of Cariboo, the sum of one cent. " 2. Provided that all plant and material used in the construction of the Canadian Pacific Railway shall be exempted from such toll under and subject to such regulations as the Lieutenant-Governor in Council may prescribe. " 3. This Act may be cited as the ' Cariboo Wagon Road Tolls Amendment Act, 1878.'" Section 2 of the Cariboo Wagon Road Tolls Act, 1876, repealed by the Act now under consideration is as follows : — " There shall be levied and paid from and after the fifteenth day of May, next, unto and to the use of Her Majesty, her heirs and successors from all persons whomsoever by way of toll, the sums following, that is to say : — " For every pound, avoirdupois, of goods, merchandise, stores, productions and chattels, other than those hereinafter excepted, which shall respectively be carried over or across the Alexandria Suspension Bridge, or over or acro;,s the Fraser River, within a distance of ten miles above and ten miles below the said bridge, the sum of half a cent." "For every pound, avoirdupois, of goods, merchandise, stores, productions and chattels, other than those hereinafter excepted, which shnll respectively be carried from Clinton, in the direction of Cariboo, the sum of half a cent." And section 3 of that Act, which has not been repealed, is as follows : — " Provided that no tolls shall be demanded of, or from, or paid by any person in respect of mining machinery, farming implements, wheat, beans, pease, barley and grain of all kinds, hay, roots, vegetables and other agricultural produce, the growth of the province, and all fiour and meal manufactured in this province from wheat, beans, pease, oats, barley and grain of all kinds grown in the province, and all cattle and all articles and things coming in the direction of the seaboard from the interior of the province, J of Justice. in the Canada fe 2S4. the Governor (iber, 1879. ature of British ■>, and the same Act unto and to isoever by way )roductions and be carried from of the Canadian such regulations Amendment Act, by the Act now May, next, unto ons whomsoever productions and ively be carried tie Fraser River, idge, the sum of productions and f be carried from by any person in barley and grain he growth of the leat, beans, pease, e and all articles ' of the province. 42 VICTOKIA, 1878. 1069 whether intended for export or home consumption, for the purposes of manufacture in the province, or any other purpose whatsoever." The Minister of Justice, Mr. Blake, in reporting upon the Act passed in 1876, after referring to its provisions and to the provisions of the Act repealed by it, makes use of the following language : — " It is obvious, therefore, that the Act now under consideration is in furtherance of a policy which has been pursued in British Columbia for several years, but the undersigned feels it his duty to call the attention of council to this legislation, which, in effect, places upon the consumers of imported goods the chief burden of maintaining the public^ roads which are established as well for the transport of articles of home productions." " The undersigned does not recommend the disallowance of this Act, but he must point out that its principle might be so extended as to render it necessary to consider the question whether such legislation does not trench on the regulation of trade and commerce." It will be observed that the section repealed imposes a tax upon such goods only as were carried over or across the Alexandria Suspension Bridge, or over or across the Fraser River within a certain distance of that bridge, or which are carried from Clinton in the direction of Cariboo, the toll being but one-half cent per pound ; whereas, the Act now under consideration imposes a toll of one cent per pound upon goods carried from Yale in the direction of Cariboo. I have the honour to submit that the question raised by the Minister of Justice in his report upon the Act, 1876, namely : Whether this Act dors not trench on the regulation of trade and commerce to an injurious degree, should now be considered by council. . Should council determine that the Act should not be disallowed by reason of being an interference with the regulation of trade and commerce, another serious question with reference thereto should be considered. It will be observed that the Act exempts only the plant and material used in the construction of the Canadian Pacific Railway, under and subject to such regulations as the Lieutenant-Governor in Council may prescribe. Contractors' supplies, &c., are not exempt. When this Bill was first introduced it did not contain the exemption clause now in it, and on the 9th August, 1878, Mr. John Robson, paymaster and surveyor of Canadian Pacific Railway Survey, addressed to the Hon. G. A. Walkem, Attorney- Oeneral of British Columbia, the followii communication : Canadian Pacific Railway Survey, Victoria, B.C., 9th August, ll<78. Dear Sir, — In looking over the ' Cariboo Wagon Rosul Tolls Amendment Act, 1878 ' (which I saw for the first time to-day), and construing it with th.; principal Act it appears to me that its provisions are likely seriously to affect the railway interests of the country. According to the railway policy of the Dominion government, the w(nk of cons- truction will be commenced at Yale next summer, and contintu'd upwards, thence through the tianyona of the Fraser. It appears to me, railway materials and supplies, machinery and appliances essential to railway construction, passing out of Yale to any point beyond the loll-gate, would Ikj liable to the toll imposed by tho above recited Act. When it is mentioned that work — and the heaviest pait i the work — is intended to be commenced almost imftiediately, beyond the toU-giUo, it must he seen at once that such an impost, meeting railway construction at the very threshold, cannot fail seriously to operate against it, — if, indeed, it would not render such works practi- cally impossible. Respectfully submitting the matter to your consideration, I beg to request, that, should the assumption that the toll in question would apply to railway material, &c., be 1070 BRITISH COLUMBIA LEGISLATION correct, you will be good enough to have a provision inserted in Act exempting such railway material, ifec. " I have, (fee, "John Robson, "Paymaster and Purveyor, C.P.E.S." To w'.,ich the following reply was received : — 11th August, 1878. " In reply to your letter of the 9th inst., recommending the incon enience of applying the Road Tolls Act to railway plant, or material passing the Yale toll gate, I have to assure you that whenever construction is commenced, the government will afford every facility for its being carried on expeditiously, and so far as they are con- cerned, as cheaply as possible, arrangements just to the Dominion and province, can then be made." On the 13th August, Mr. Robson addressed to Mr. "Walkera the following : — " I have the honour to acknowledge the receipt of your letter of Sunday last, replying to mine of the 9th inst,, and I regret that its contents do not appear to be altogether satisfactory. " It is known to be the intention of the Dominion government to place a section of that portion of the Canadian Pacific Railway lying within British Columbia, under contract as soon as possible after the parliament meets next February, and, with that view, it is proposed to seek tenders for the same before the present year is out. Should the Act under discussion become law meanwhile, it is obvious that it must exert a most serious influence upon the tenders, inasmuch as intending contractors would undoubtedly make allowance for the toll in question, in estimating the value of the work ; and it seems scarcely necessary that a toll of one cent a pound on all the railway plant and supplies necessary for such heavy works as are contemplated, must amount to something enormous ; nor does it seem to be just, seeing only a very short portion indeed of the road in respect of which it is proposed to levy the toll, will be used in transporting such material. " I beg, therefore, most respectfully to submit that however willing your gov- ernment might be to meet the Dominion government in a fair and liberal spirit, ' whenever construction is commenced,' the remedy would come too late, as the tenders would have been sent in and the contract awarded at the greatly increased price, or what is far more likely to happen, the tenders would be rejected on account of undue appreciation in prices thus occasioned, and instead of the province ' making a haul,' out of the Dominion, its interests and revenues would sufier on account of conse- quent delay in railway construction." " I would, therefore, respectfully but most earnestly repeat the suggestion that a provision be yet inserted in the Act referred to, exempting materials and supplies used in railway construction. " I have, »fec., "Jno. Robson, "Paymaster and Purveyor, C. P. R. S." On the 17th August copies of the correspondence with Mr. Walkem were sent by Mr. Robson to the Department of Public Works, and, on the 4th September, Mr. Robson wrote to the Department of Public Works, as follows : — "Adverting to my letter of the 17th ult., referring to 'a bill passed through the provincial legislature, and inc'osing correspondence between the Hon. Mr. Walkem and myself there-anent, I have further to report that the point contended for, was sub- sequently conceded, and the bill sent back to the House for insertion of exemption clause." >^^j ii - i njn . ^ i| i fc , i i i [gestion that a [ supplies used P. R. S." m were sent by )er, Mr. Robson (d through the . Mr. Walkem d for, was sub- i of exemption 42 VICTORIA, 1878. 1071 C.P.S.S." ust, 1878. con enience of ale toll gate, I vernment will they are con- province, can owing : — f Sunday last, t appear to be place a section Dlumbia, under and, with that is out. Should it exert a most Id undoubtedly I work ; and it way plant and it to something I indeed of the lusporting such ling your gov- liberal spirit, late, as the 3atly increased 1 on account of ice ' making a iount of conse- " I now beg to point out what appears to me objectionable features of the amended bill, a copy of which is inclosed herewith." " J. The exemption is only partial, not including supplies employed and consumed in railway construction, a toll of twenty dollars a ton on which seems not only enor- mous but unjust, when it is considered that railway works to the value of several mil- lions will have bo be constructed almost within the shadow of the toll gate. It seems impossible to doubt that such an impost will exert a serious influence upon the tenders for the work," II. It will be observed that the modicum of relief given in the Act is made con- tingent on a revocable Order in Council — rather insecure ground it is to be apprehended, for contractors to go upon in tendering for the work." " There seems reason to fear that the measure under consideration is calculated to operate very prejudicially as against railway construction in the particular locality re- ferred to, by causing the tenders now invited to be much higher than they would other- wise be, and it may, therefore, be matter for consideration whether the Dominion gov- ernment would not be justified in disallowing the Act in question." And on the 8th October, 1878, Mr. Robson wrote as follows : — " I have the honour to acknowledge your letter of the 28th, and to report thereon as follows : — " The fact that the words ' and supplies ' had been erased from the exemption clause when it came before the legislature, taken in connection with the further fact that the point was fully discussed in the House, and a decision arrived at, not to exempt supplies," affords the most conclusive evidence that the words used in the Act referred to are not intended to cover supplies of all descriptions. " A reference to files of the Victoria newspapers will sufiiciently establish the above mentioned facts." In my opinion supplies or articles of food, &c., for the use of those engaged in the construction of the Canadian Pacific Railway, do not come within the exemption clause of the Act. I have the honour to recommend that for the two reasons above referred to, viz.: — (1.) The interference with the regulation of trade and commerce, and, (2.) The possible imposition of unfair charges upon the Dominion Exchequer, the said Act passed by the legislature of British Columbia, and intituled: "An Act to amend the Cariboo Wagon Road Toll Act, 1876," be disallowed. JAS. Mcdonald, Minister of Justice. Order in Council disallowing the Act, C/mpter 37, published in the Canada Gazette on the 4th day of October, 1879, Vol. XIII., No. U, Page 471. 1072 KKITISII COLUMBIA LEGISLATION ' BRITISH COLUMBIA, 42nd VICl^ORIA, 1879. 2nd Session — 3rd Parliament. Lieutenant-Gorernar British Columbia to Secretary of State. Government House, Victoria^ B.C., 3id July, 1879. Sir, — I have the honour to inclose to you herewith a petition addressed to his Excellency the Governor General in Council, by Mr. E. L. Derby, and which I have been requested to forward. I have, (kc, A. N. RICHARDS, Lieutenant-Governor, Petition of Mr. E. L. Derby to His Excellency the Got^ernor General. To His Excellency the Most Noble t/ie Marquis of Lome, Governor General of Canada, in Council Assembled : — The humble petition of Ellis Luther Derby, of Riverside, British Columbia, — Slioweth : That your petitioner, in 1878, obtained the passage of an Act through the House of Assembly of British Columbia, intituled : " An Act for dyking and reclaiming certain lands at Chilliwhack, Sumass and Matsqui." By that Act certain dying works were to be carried out, and the costs of preparing plans and specifications, in pursuance of the said Act, were to be paid by your petitioner. The said Act was brought in as a private Act, and all expenses connected there- with were paid by your petitioner, in pursuance of the Standing Orders of the House of Assembly of British Columbia. Your petitioner immediately, on the passage of the said Act, commenced work, and has expended a large amount of money in carrying out the objects and intention of the said Act. On the 29th day of April, 1879, an Act was passed by the legislative assembly, without any intimation or notice to your petitioner, intituled : " An Act respecting the Sumass Dyking Act, 1878." By this Act, under section 1, your petitioner is compelled to pay additional costs of survey over those contemplated by him, when he first undertook the work ; and by the 3rd section, in the event of your petitioner failing or refusing to refund the costs of surveys, or to carry out the instructions of the chief commissioner in the construction of the dyking works, the Governor in Council shall have power to onfiscate the whole of the works. The government of British Columbia now claim from your petitioner, andf the provisions of the last mentioned Act, certain expenses incurred by the government prior to the plans and specifications referred to in the first mentioned Act, and the govern- ment further claims the right to impose burdens on your petitioner, never contemplated by him, when he commenced the said works. Your petitioner, therefore, prays your Excellency, that assent may be refused to the said Act. And your petitioner will ever pray. ELLIS LUTHER DEHBY. 1 uly, 1879. idressed to his which I have RDS, -Governor. leral. I of Canada, in olumbia, — ough the House jlaiming certain sts of preparing your petitioner. ;onnected there- of the House of mmenced work, md intention of ilative assembly, !t respecting the additional costs B work ; and by •efund the costs the construction Sscate the whole ioner, undf the [overnment prior and the govern- rer contemplated ly be refused to R DEHBY. 42 VICTORIA, 1879. 1073 Lieutenant-Governor Richarda to tlie Hon. the Secretary of State. Government House, Victoria, November 19, 1879. Sth, Referring to a despatch from the Under Secretary of State, of the 10th SeptemVjer last, inclosing a copy of a petition fromfMr. E. L. Derby, addressed to his Excellency the Governor General, praying for the disallowance of the " Sumass Dyking Act, 1878," I have now the honour to inclose, according to the request put forth in the said despatch, a copy of a minute of my Executive Council, together with other documents therein referred to, by which it will be seen that my Executive Council respectfully request that the said Act may be allowed to take its course, and that the prajJ^er of Mr. Derby's petition be refused. I have, ikc, A. N. RICHARDS, Lieutenant- Governor. Report of Hon. Attorney-General Walkein approved by His Honour Governor in Council on th^, 11th November, 1879. the Lieutenant- ViCTORiA, B.C., 11th November, 1879. The undersigned, to whom has been referred a copy of a petition forwarded by Mr. E. L. Derby to his Excellency the Governor General, praying that " An Act respecting the Sumass Dyking Act, 1878," should be disallowed, has the honour to make the fol- lowing report upon the statements contained in the petition : — The above mentioned Act was passed by the legislative assembly in 1879, without a division, and with the support and unqualified approbation of the members of the city and district of New Westminster, whose constituents were and are mo&t immedi- ately and deeply interested in Mr. Derby's success. The scheme of reclaiming and dyking the inundated lands of New Westminster district, was first practically considered by the government in 1876, when they spent $900 on surveys and plans of the work. No portion of this outlay has ever been charged to or claimed from Mr. Derby, although he reaped the advantage of it. Subsequently, Mr. Derby applied for a charter for the work, alleging that he had *the means to carry out the project. Further surveys were made, and elaborate plans prepared at his request and on his behalf, under the supervision of the Lands and Works Department, Mr. Derby having first agreed to pay for them. The agreement is embodied in section 36 of Mr. Derby's Act of 1878, and has not been changed. The amending Act of 1879 simply gives the government more specific pov/ers for collecting the money, as Mr. Derby had repeatedly endeavoured to evade its payment. Both the late and present government, as well as the committee on private bills, were united in opinion upon Mr. Derby's liability. The qrestion is, however, now set at rest, as Mr. Derby paid the amount in dispute some weeks ago. The further provisions in the Act of 1879, which confer upon the Lieutenant- Governor in Council the power of cancelling Mr. Derby's charter, in the event of his neglecting or refusing to comply with its conditions, do not differ from the provisions of section 34 of the Act of 1878. It wil' be seen that under this section it is enacted that, on failure of Mr. Derby to carry c the agreement contained in the Act (of 1878), the Lieutenant-Governor in Council aay cancel it, and transfer all of Mr. Derby's privileges to any other person, with a view of securing the completion of the works. The principal conditions of ;h.? agreement are set forth in sections 11, 12 and 13 of this Act, whereby Mr. Derby agreed o effectually dyke certain lands mentioned, according to the plans approved of by the government, and to perform the work aa appears in the last sentence of section 13, under the supervision of the Lands and f 1074 BRITISH COLUMBIA LEOISLATIOX Works Department, or its engineer, whose expenses were and are to be paid by Mr. Derby. Soon after the commencemont of the work by Mr. Derby, complaints of delay, neglect and defiance of the orders of the superintending engineer, were frequently made against hiir, by settlers interested in the scheme, and by the engineer himself. Annexed are extracts from some of the numerous letters and reports of the latter, which will show the extent, and in some cases, the disastrous result of Mr. Derby's mismanagement, as well as the almost habitual disregard with which he treated the engineer's directions, and the orders of the Lands and Works Department. Ample reasons for the cancella- tion of the charter were from time to time placed before the Governmenl, but considera- tion for those who had been induced by Mr. Derby to invest their means in the enterprise, influenced the chief commissioner against recommeiiding such a step. As a milder and more lenient alternative, the Act of 1879 was submitted to, and unanimously approved of by the House, in order that Mr. Derby might clearly under- stand the duties he had undertaken to perform. The only real difference between the two Acts is, that by the first the government are invested with the power of cancelling Mr. Derby's charter and transferring its privileges to others ; while by the .second they are entitled to cancel, and take the benefit of the charter themselves. Such a difference could not possibly affect Mr. Derby in the event of his loss of the charter, and can therefore form no ground of complaint on his part. It may be further observed that at the present time Mr. Derby has, owing to his own negligence, as the superintending engineer states, been obliged to apply for an extension of the period fixed, viz., July, 1880, for the completion of his work. Since the passing of the Act of 1879. more diligence and earnestness have been shown in the prosecution of the work ; and it may be remarked that had the work received during 1878 anything approaching the same attention as it now receives, the legislature would not in all probability have been moved to interfere in the matter. The Act complained of will directly benefit the Dominion government, as any vacant or reclaimed Crown lands within the proposed lines of dykes becomes their property, as part of the Canadian Pacific Railway belt. The only interest the province now has in the scheme is to see, on behalf of the settlers in the dyking district, that Mr. Derby carries on his agreement in good faith. The statement made in Mr. Derby's petition that the Act of 1879 imposes new burdens, is manifestly incorrect, and is refuted by the Act itself. The undersignrfd, therefore, recommends that his Excellency the Governor General be respectfully moved to refuse the prayer of Mr. Derby's petition and allow the Act of 1879 to take its course. GEO. A. WALKEM, Chief Oomr., and Attorney General. Report of the lion, the Minister of Justice, approved by His Excellency the Governor General in Council on the 15th May, 1880. Department op Justice, Ottawa, 8th May, 1880. I have the honour to report upon the statutes passed by the legislature of British Columbia in the year 1879, received by the Hon. the Secretary of State on the 2nd day of July, 1879, as follows :— Cap. 1. — "An Act to further amend the Bills of Sale Ordinance, 1870." This Act requires no special observation ; I recommend that it be left to its operation. Cap. 2. — " An Act to enable the Lieutenant-Governor in Council to grant Charters for the erection of Toll Bridges." It appears from a communication sent to the Hon. the Minister of the Interior, from certain inhabitants of Victoria, B.C., that certain persons had applied to the 1 e paid by Mr. ints of delay, (quently made lelf. Annexed lich will show magement, as r's directions, r the cancella- aut considera- means in the a, step. nitted to, and clearly under- e between the of cancelling le .second they eh a difference rter, and can , owing to his I apply for an ork. ess have been had the work ' receives, the n the matter, any vacant or r property, as 30 now has in lat Mr. Derby ) imposes new pernor General ow the Act of f General. he Governor ay, 1880. ture of British n the 2nd day 70." be left to its grant Charters f the Interior, .pplied to the 42 VICTORIA, 1879. 1075 Lieutenant-Governor in Council for a charter giving them authority to build a bridge over a part of the Victoria harbour, and a strong protest was made against the building oi any such bridge. The Premier of British Columbi;i, the Hon. G. A. Walkem, while here in February last, informed me that his government had done nothing towards granting the application, and that, as the waters of the harbour where the bri(lge was proposed to be built were navigable, he did not claim for his government the power to authorize the erection of the bridge. It will be observed that the Act is expressly confined to such bridges, as are under the control of the legislature of British Columbia. The statute does not even assume to empower the provincial government to authorize the construction of a bridge which might interfere with navigation, and it is quite clear that express words in the statute assuming to give such authority would be of no effect, as any person attempting to obstruct by a bridge, otherwise, without the authority of the parliament of Canada, the navigation of any river, harbour, bay, arm of the sea, or other navigable water, could be prev ented by injunction from causing the obstruction, and in certain events the obstruction if created, might, as any other nuisance, be abated by the public without process of law. I recommend that the Act be left to its operation. Cap. 9. — "An Act respecting Coroners." I recommend that this Act be left to its operation as Acts of a similar nature in other provinces have not been interfered with. I desire to point out, however, that the right of a provincial legislature to legislate respecting coroners has, in certain respects, been questioned as entrenching upon the subject of criminal law and criminal procedure. Cap. 12 and cap. 13. — (These Acts have been reported upon separately.) Cap. 15. — " An Act respecting the Sumass Dyking Act, 1878." This Act will be reported upon hereafter. Cap. 33 — " An Act to amend the ' Licenses Ordinance, 1867.'" This Act will be reported upon at another time. Cap. 30.— "The Public School Act, 1879." Section 25 of this Act is clearly beyond the power of the legislature to pass, as it expressly assumes to make a person wilfully making a false declaration of his right to vote at the election of the school trustees guilty of a misdemeanour. The provisions of the section were evidently overlooked when passing through the House. I recommend that the attention of the Lieutenant Governor be called thereto, with a request that his government will in due time promotes the repeal of the section. Meantime, I recommend that the Act be left to its operation. I recommend that the several Acts, chapters 4 to 8, 10, 11, 14, 16 to 22, 24 to 29, 31 to 37, be left to their operation. JAMES McDonald, Minister oj^ Justice. Report of the Hon. the Minister of Justice approved hy His Excellency the Governor General in Council on the 15th May, 18S0. Department of Justice, Ottawa, 8th May, 1880. I have the honour to report upon two Acts passed by the Lggislature of the pro- vince of British Columbia, in the year 1879, received by the Hon. the Secretary of State, on the 2nd day of July, 1879, as follows : — Cap. 12. — " An Act to amend the Practice and Procedure of the Supreme Court of British Coluir.bia, and for other purposes relating to the better Administratica of Jus- tice." 107G IIIUTISil COLUMUIV LEGISLATION A very strong protest against this Act, by reason (if the provisions of the 17th section, has been received frcin the three judges of the Supremo Court at Britisli Columbia. The 17th section empowers the Lieutenant-CJovernor, by Order in Council, to make rules to be styled " rules of court," for carrying the Act into force, for regulating the sittings of the court, iI'd., for pleading, practice and procedure, duties of ollictirs, rights of counsel, S:c. The judges in effect contend that they are by this section placed more under the control of the local government than they should be, claiming that they are Dominion otRcers, and thii.t their independence as judges may be interfered with by the powers given to the Lieutenant-Governor in Council under the 17tli section of the Act. With the e.xception of the 14th section, to which reference will be made below, the judges do not make any other objection to the Act, and from the correspondence transmitted, it appears that, with the exception of the 14th and 17th sections, the Act was substantially fi-amed by the judges themselves. The legislative authority over the administration of justice in the province, in- cluding the constitution, maintenance and organization of provincial courts, both of civil and criminal jurisdiction, and including procedure in civil matters in those court-^, which is vested in the provincial legislatures, sjems clearly to authorize the making of the provisions contained in the 17th section, and unless there be grave reason to the contrary, the course which has been adopted by this government, heretofore, in dealing with provincial legislation, would seem to require that provisions so clearly within the powers of the local legislature, should be left to their operation, notwithstamling that they, or sojne of them, may not accord with the views which will be entertained respect- ing the expediency of such provisions. Had the provincial legislature seen fit to confer on the judges themselves the power of making the rules of court, as has been done in England, in Ontario and other provinces, and as was done by the parliament of Canada when establishing supreme and exchequer courts, such a course would, I think, have been more satisfactary The Attorney-General of British Columbia has, however, made a report setting out the reasons why power was given to the Governor in Council instead of judges, to make the rules of court. A copy of this report was transmitted by the Lieutenant-Governor to this government. The 14th section is as follows : — Courts of assize and nisi prius, or of oyer and terminer and general jail delivery, may bo held, with or without commissions, at such time and places as the Lieutenant-Governor may direct ; and when no commissions are issued the said courts, or either of them, sha,ll be presided over by the chief justice, or one of the other judges of the said supreme court, either of whom, as the case may be, may, in civil proceedings reserve the giving of this final decision on questions raised at the trial, and this decision, whenever given, shall be considered as if given at the time of the trial. The judges are of opinion, that so far as this section assumes to change the present practice of holding courts for the trial of criminal cases, it is beyond the powers of the provincial legislature, as affecting procedure in criminal matters. In the case of the Queen vs Amer, reported in 42 Q. B. Reports of Ontario, page 391, Mr. Justice, now Chief Justice Adam Wilson, expresses opinions which go far to show that the provisions of the section now under consideration are within the compe- tency of a provincial legislature. The matter is by no means so clear as to warrant me in recommanding the disal- lowance of the Act. On the whole, therefore, I recommend that the Act be left to its operation. Cap. 13.— "Judicial District Act, 1879." This Act has aU;o been protested against by the judges. Their proti st is against three Acts which th^y declare should be taken as one piece of legi.'afcion, namely : — " The Better Administration of Justice Act, 1878." " The Judicature Act, 1879," (being cap. 12 above referred to) .and " The Judicial District Act, r79." 42 vicTOKiA, 1879. 1077 IS of the 17th lurt at BritisI ouiic'il, to miike rp<;ulatinf( the (.tlicurs, rights nore under the aro Dominion by the jMtwers le Act. e niado below, correspondence tions, the Act e province, in- couits, both of in those court", the making of reason to the 'ore, in dealing rly within the .hstantling that •tained respect- themselves the ;ario and other shing supreme isfactary The out the reasons uake the rules rovernor to this )r of oyer and lissions, at such commissions are ihief justice, or le case may be, stions raised at ven at the time nge the present 1 powers of the E Ontario, page i^hich go far to ihin the compe- ding the disal- it be left to its )tt 3t is against , namely : — . « The Judicial Their protest is dated in Victoria, B.C., "iOth April, 1879, and was not, of course, received here until the month of May, 1879. " The Better Administration of Justice Act, 1878," was left to its operation by Order in Council dated 17ih March, 1879, therefore the protest, so far as it refers to that Act, cannot now be considered. " The Judicial District Act, 1879," seems to bo a necessary adjunct to "The Better Administration of Justice Act, 1878," and as the policy of that Act has been adopted by the parliament of Canada, and provision has been made for the salaries of the two additional judges provided for by that Act, no other course seems open than to leave tlie Act now under consideration to its operation, and I recommend accordingly. JAS. McDonald, , Minister of Justice. Report of the lion, the Minister of Justice apprmifd hy His Excellency the Governor General in Council on the 30th June, 1880. Department OF Justice, OrrAWA, 23rd June, 1880. I have the honour to report upon the three Acts of the legislature of the province of British Columbia reserved in my last report, namely : — Cap. 3. — " An Act to protect Winter Stock Ranges." I recoumiend that this Act be left to its operation. Cap. 15. — "An Act respecting the ' Sumass Dyking Act, 1878.'" The dis- allowance of this Act was prayed for by Mr. E. L. Derby, on the ground that it was an interference with his rights. It is not necessary to pass any opinion upon the fairness or unfairness of the provisions of the statute, because, as I think, it is clearly within the legislative authority of the provincial legislature, and as no Dominion or Imperial interests are involved, it should be left to its operation. I re- commend accordingly. Cap. 23. "An Act to amend the 'Licenses Ordinance, 1867.'" The report upon this Act was delayed, as the question whetlier it was not an interference with the regulations of tnde and commerce seemed to require considerat on. I think, however, that it should be left to its operation, as it would S'em to come within the powers of the provincial legislature, as given by sub.section 9 of section 92, of the British North America Act, 1867, namely, the power respecting shop, saloon, tavern, auctioneer, and othor 1 censes. Even if there be doubts upon the subject, the course which has hitherto been pursued with re.'spect to similar enactments would not warrant a disallowance of the Act, and would require that it should be left to its operation, leaving any person who may question its constitutionality, to test the matter in the usual way before the courts. JAS. McDonald, Minister of Justice. 68 1078 BRITISH OOLUMUIA LBQIBLATIOK niUTISH COLUMBIA, 43rd VICTORIA, 1880. 3kd Session — 3nD Pauliamknt. Report of the lion, the Minister of Justice approved by His Ilonmir the Deputy o/ th> Governor General in Council on the ,i'Jth July, 1881, Depahtmj;nt of Justice, OrrAWA, 27th July, 1881. I have the honour to report with respect to the Acts passed by the legishiture of British Columbiu, in the year 1880, hs follows : — I recommend tha», this power of di iil owance be not exercised with respect to the following, viz., chapters 1 to 27 inclusive, 30, 31 and 32. With reference to c^hapter 4, intituled ; "An Act toalwlish priority of and amongst execution creditors," I would romiirk that the Act is similar to an Act passed by tli legislature of Ontario in the year 1880, which has been left to its operation. I append hereto an extract from the report of the Minister of Ju>^tice upon the Ontario Act, and recommend that the attention of the Lieutenant-Governor of British Columbia be called thereto. Chapter 10, intituled : "An Act respecting the fraudulent preference of creditors by persons in insolvent circumstances," seems to entrench upon the subject matter of insolvency, but tie question is doubtful, and no inconvenience can arise by leaving the Act to its operation. Chapter 28, intituled : " An Act to amend the Cariboo Wagon Road Tolls Act, 1876," is precisely the same as the Act pas- ed by the legislature of British Columliia with the same title in the year 1878, and which was disallowed upon the recomr iv dation of the Minister of Justice, and for the reasons set forth in his rep irt to councn dated 24th September, 1879. A copy of that report has already been transmitted to the Lieutenant-Governor of the province. The reasons for the disallowance of the previous Act apply to the p esent one, which should, I think, also be disallowed. Chapter 29, intituled : "An Act respecting tolls on the Cariboo Wagon Road," is as follows : — " (1.) Notwithstanding any Act to the contrary, there shall be levied and paid unto and to the use of Her Majesty, her heirs and successors, from all persons whomsoever, by way of toll ; upon every pound avoirdupois of rice carried from Yale in the direction of Cariboo, a sum of two cents per pound in lieu of one cent per pound." " (2.) This Act shall not come into force until a day fixed by proclamation by the Lieutenant-Governor." The reasons for the disallowance of the above mentioned Act apply also to this one, which, I think, should also be disallowed. I, therefoie, recommend that the Acts passed by the legislature of British Columbia, in the year 1880, chaptered twenty-eight and twenty-nine, intituled respectively : "An Act to amend the Cariboo Wagon Road Tolls Act, 1876," and " An Act respecting tolls on the Cariboo Wagon Road," be disallowed. A. CAMPBELL, Minister of Justice. Extract from the Report of Minister of Justice, dated 11th March, 1881, upon Cap. 10, of Acts of Ontario, 1880, referred to in foregoing report. Taking this Act, section by section, much can be said in favour of the view that its provisions are within the legislative authority of the provincial legislature, but, taking 43 VICTORIA, 1880—44 victoria, 1881. 1079 the Deputy of tin r_ th July, 1881. y the legislature of with respect to thp irity of and amongst Act passed by th Deration. I append le Ontario Act, ami ritish Columbia be rence of creditors by 1 subject matter of arise by leaving the on Road Tolls Act, f British Columliia apon the recomr a lis rep )rt to councn been transmitted to disallowance of the )e disallowed, iboo Wagon Road, " levied and paid unto persons whomsoever, yale in the direction und." proclamation by the ,pply also to this one. mend that the Acts iptered twenty-eight ;^ariboo Wagon Road Wagon Road," be BELL, ■nister of Justice, 1881, upon Ca23. 10, of )ort. ir of the view that its (gislature, but, taking its etlect, as a whole, much can be said in Hupport of the contention that it entrenches uj)()n the subject of l)ankrupt(;y and insolvency, over which the parliament of Canada has exclusive legislative authority. Tn view of the doubts which exist with respect to the matter ; in view also of the fact that the insolvency laws ot the Doininio!i have boon repealed ; in view also of the provisions of section 28 of the A ct v.hich provides that it is not intended to interfere with the insolvency laws which may, from time to time, be in force, but is intended to be subject to such laws, and subject, as afonssaiil, to apply to all debtors, whether solvent or not ; in view also of the fact that if the power of disallowance be not exercised any per.on wishing to test the constitu I u nality of the Act in any of the courts will be at liberty to do so. I recommend that the power of^disallowance be not exercised with respect to the said Act. JAS. Mcdonald, , • Minister of Justice. Order in Couvxil disa/lowinr/ C/inpters 28 and 39, published in the Canada Gazette on the 30th day of July, 1881, Vol XV., No. 5, page 143. BRITISH COLUMBIA, 44th VICTORIA, 1881. 4th Session — 3ru Parliament. Report oftlie Hon. the Minister of Justice, approved by His Excellency the Governor ' General in Council on the 27th June, 1882. Department of Justice, Ottawa, 13th June, 1882. To His Excellency the Governor General in Council ; The undersigned has the honour to report that he has examined the following Acts passed by the legislature of British Columbia, in the year 1881, 44th Victoria, received by the Secretary of State of Canada on the 21st June, 1881, and is of opinion that they are unobjectionable, and may be left to their operation, viz., chapters 1 to 14, 16 to 28. With reference to the Act, chapter 1, intituled : "An Act to carry out the objects of the better Administration of the Justice Act, 1878," and "The Judicial District Act, 1879," the undersigned would observe that the provisions of this Act have been objected to by the judges of British Columbia, but in view of the fact that your Excel- lency has already sanctioned an Order in Council, under section 7, of the Act, the exer- cise of the power of disallowance has in effect been decided against, and this Act should therefore be left to its operation. Upon the remaining Act, chapter 15, intituled : " An Act to amend the Gold Mininw and Mineral Acts," the undersigned has the honour to report that objections have been taken by the judges of British Columbia to the provisions of section 10, but while not expressing the opinion that the provisions of that section are entirely free from objection, the undersigned thinks that those provisions are so clearly connected with the administration of justice in the province, and the jurisdiction of a provincial court, that the power of disallowance should not be exercised with reference to this Act, and recom- mends accordingly. > A. CAMPBELL, Minister of Justice. 68i 1080 BRITISH COLUMBIA LEGISLATION BRITISH COLUMBIA, 45th VICTORIA, 1882. 5th Session — 3rd Parliament. Report of the Hon. the Minister of Justice approved by His Excellency the Governor General in Council on the 12th May, 1883. Department of Justice, Ottawa, 8th May, 1883. To His Excellency the Governor General in Council : The undersigned has had under consideration the Acts passed by the legislature of the province of British Columbia, in the session of 1882, which are chaptered and inti- tuled as follows, viz., chapters 1 to 7 and 9 to 18. The undersigned respectfully recommends that the Acts mentioned be left to their operation, save as regards chapter 8, which, for reasons given in a separate report, the undersigned recommends be disallowed. A. CAMPBELL, Minister of Justice. Report of the Hon. the Minisfpr of Justice approved by His Excellency the Governor General in Council on the 12th May, 188S. Department of Justice, Ottawa, 8th May, 1883. The undersigned would resoectfully call attention to chapter 8, intituled : " An Act to consolidate and amend the La^vs relating to Gold and other Minerals, excepting Coal," passed by the legislature of British Columbia in 1882, 45th Vict., the undersigned observes that by section 4 of this Act the Lieutcr-?n«^^-Governor is authorized to appoint such persons as he may deem proper a? gold commissioners or assistant gold commis- sioners, either for the whole province, or for any particular districts therein. By section 5 there purports to be established a court or courts in mining districtfl, to be presided over by a gold commissioner or assistant commissioner, and by section 6 it is declared that each of those courts " shall be a court of record, and shall have juris- diction as a court of law and equity, to hear and determine all mining disputes arising in the district or ocality in which it is appointed to be held, includinjr actions arising upon contracts between any free miners and other persons, relating to the supply to such free miners, of goods, merchandise, materials, or implements used in mining, or in con- nection therewith, and the gold commissioner shall have power in such disputes or actions, to give such judgment as he may deem just, and to enforce the same according to the practice of the supreme court or any superior court, by writ of execution, process of contempt, proceedings tor attachment of debts or other process, or by any means pro- vided by this Act." By other sections of the Act the jurisdiction of the mining court may be exercised by every county court, and appeals are allowed from the mining court to the supreme court, or any superior courl, sitting in the judicial district within which the mining court appealed from may be situated. It will be seen, therefore, that by this Act the appointment of a judge performing judicial functions, whose appointment under "The British North America Act, 1867." should be made by the Governor ir. Council, is in eflfect to be made by the Lieutenant- Govoi-nor of British Columbia. 45 VICTORIA, 1882. 1081 882. icy the Governor h May, 1883. Y the legislature of jhaptered and inti- aed be left to their jparate report, the 5LL, Mer of Jiistice. ncy the Governor th May, 1883. itituled : " An Act Vlinerals, excepting ct., the undersigned thorized to appoint istant gold commis- therein. in mining districts, r, and by section 6 ,nd shall have juris- ng disputes arising dinjr actions arising o the supply to such mining, or in con- in such disputes or the same according •£ execution, process r by any means pro- irt may be exercised irt to the supreme ich the mining court ' a judge performing America Act, 1867." 3 by the Lieutenant- The undersigned is of opinion that legislation thus offending against the consti- tutional principles laid down by the British North America Act, 1867, should not be allowed to go into operation, and he humbly advises that the Act in question be dis allowed. A. CAMPBELL, Minister of Justice. Order in Council disallowing the Act mentioned, pvMished in the Canada Gazette on the 19th day of May, 1883, Vol. XVl'., No. W,page 191 J^. Report of the Hon. the Minister of Justice approved by His Excellency the Governor General in Council on the loth May, 1883. Department op Justice, Ottawa, 14th May, 1883. To His Excellency the Governor General in Council : ' The undersigned respectfully recommends tbit the annexed case, respecting the status of the supreme court of British Columbi'i, and the powers of the legislature of that province to legislate in respect of procedure in that court, and the reiiidences of the judges thereof, be referred to the Supreuie Court for hearing and consideration, and that the court may hear and consider the same, and certify to the Governor in council their opinions upon the questions submitted, and that if your Excellency approve of thib report, a copy thereof and of the said case, be transmitted to the registrar of the Supreme Court. A. CAMPBELL, • Minister of Justice. ^ • ' ill* -■.id 1082 BRITISH COLUMBIA LEGISLATION BRITISH COLUMBIA, 46th VICTORIA, 1883. 1st Session — 4th Parliament. Report of the Hon. the Minister of Justice, approved by His Excellency the Governor General in Council on the 17th October, 1883. Department of Justice, Ottawa, 25th September, 1883. To His Excellency the Governor General in Council : The undersigned begs leave to report i;hat he has had under consideration the following Acts passed by the legislature of tBe province of British Columbia, namely :— 46 Vic. (1883), chap. 26, an Act intituled : "An Act to incorporate the Fraser River Railway Company," and chapter 27, intituled : "An Act to incorporate the New West- minster Southern Railway Company." The 9th section of the Act incorporating the Fraser River Railway Company is as follows : — " 9. The company may lay out, construct, acquire, equip, maintain and work a continuous line of railway, with double or single track, of iron or steel, and uniform gauge of four feet and eight and one-half inches from the 49th parallel, north latitude, at a point between Seiniahends Bay and the eastern line of township 22, New Westminster district, to some point on the Canadian Pacific Railway between the eastern line of township 27, New Westminster district, and the western terminus of the Canadian Pacific Railway, and from that point, or some point west of that point on the said Canadian Pacific Railway to the city of New Westminster." The 10th section of the Act incorporating the New Westminster Southern Railway Company is as follows : — " 10. The company and their agents or servants shall have full power under this Act to construct a railway with double or single track, of four feet eight and one-half inches gauge from some point near the 49th parallel of north latitude, between Seinia- hends Bay and township 16, in the district of New Westminster, to the city of New Westminster and to some point on Burrard Inlet, and to construct all necessary bridges over rivers crossing the said line between the above points, but so as not to impede navigation." By reference to the report of the chief engineer of government railways, dated 2nd June, 1S83, with maps A and B annexed to this report, the area within which the two companies may construct railways will be seen. Each company is given power to construct a railway from the boundary of the province, to points within the province. It is possible that the undertakings come within exception (a) of the 10th para- graph of the 92nd section of the British North America Act, 1867, by which local works and undertakings of the following class, namely : " Lines of steam and other ships, railways, canals, telegraph and other works and undertakings connecting the province with any other or others of the provinces or extending beyond the limits of the province," are declared not to be within the legis- lative authority of the legislatures of the provinces. However, it is unnecessary to consider whether these Acts are or are not within the legislative authority of the province of British Columbia, for it is clear from them that the objects which the corporations have in view are contrary to the legislation of parliament and to the settled policy of the country. There can be no doubt that in case these railways are constructed they will direct trade from Canada to the United States, and from the Canadian system of railways to the United States system of railways. 3. 'Me Governor jmber, 1883. isideration the bia, namely ; — e Fraser River }he New West- Company is as in and work a and uniform rth latitude, at w Westminster eastern line of the Canadian int on the said ithern Railway wer under this ht and one-half between Seinia- he city of New scessary bridges not to impede railways, dated - within which ipany is given nts within the the 10th para- lich local works ther works and le provinces or 'ithin the legis- aro not within ear from them e legislation of » doubt that in to the United iates system of 46 VICTORIA, 1883. 1083 The policy of the Government in this behalf, confirmed by parliament, was given expression to in the following clause of the contract between the government of Canada and the Canadian Pacific Railway Company, dated 21st October, 1880 : — " 15. For twenty years from the d ite hereof, no line of railway shall be authorized by the Dominion parliament to be constructed south of the Canadian Pacific Railway, from any point at or near the Canadian Pacific Railway, except such line as shall run south-west or to the westward of .south-west ; nor to within fifteen miles of latitude 40, and in the establishment of any new province in the North-west Territory, provision shall be made for continuing such prohibition after such establishment until the expi- ration of the said period." For these reasons, which the undersigned has had occasion previously to state more fully than it is now necessary to do, he respectfully recommends that the said Acts, chapter 2G, "An Act to incorporate the Fraser River Railway Company," and chapter lT, "An Act to incorporate the New Westminster Southern Railway ( Vunpany," be disallowed. A. CAMPBELL, Minister of Justice. Order in Council disaffowitu/ the Acta above mentioned published in the Canada Gazette on the 20th day of October, 18S 3, Vol. XVII., No. 16, paye 58J!f. Mr. Theodore Davie to the Hon. the Minister of Justice. Ottawa, 14th June, 1883. Sir, — A petition to His Excellency the Governor General will shortly be forwarded, signed by the settle is of the Matsijui Prairie, British Columbia, praying for the disal- lowance of a private Act passed during the last session of the British Columbia legis- lature — No. 22 — and intituled : "An Act to amend the ' Sumass Dyking Act, 1878.' " An informally drawn petition has already been received by me for presentation, and is now in my possession, signed by all the settlers in the district excepting one, but as three or four weeks will elapse before the new and regularly drawn petition, which I have sent for, will have been signed and have reached its destination, I desire, on behalf of the settlers of the Matsijui Prairie, to at once state the grounds of their objection to a measure which, if allowed to pass int) law, will cause the loss to many of their homesteads, and very seriously distress them all. The settlers and the promoter of the objectionable bill are the only parties whose interests are affected by the measure, yet the same was passed by the House of Assembly against the unanimous protest of the settlers. The settlers denounce the amendment as contrary to reason and natural justice and equity, and on this ground — and the same having been passed against their protest — base their claim to its disallowance by his Excellency. I respectfully quote the remarks of Chief Justice Draper in the case " re Goodhue," 19 Grant's Chancery Reports. At page 382 he says : "♦ * Private Acts of parliament are upheld as common modes of assurance, being founded upon the actual or implied assent of those whoso interests are affected. * * * But this power of binding private rights by Acts of parliament is, as Sir William Blackstone suggests, to be used with due caution." And at page 384 (19 Grant) the same learned judge says ; " In regard to the absence of a second chamber, it may be further observed, so far at least as estate or private bills are concerned, that as such bills involve ordi')u.rily no mere party political consideration, all those whose interests are or may be touched, have a right, in the first place, to expect a careful exa- mination of their contents on the part of the provincial executive, and a witholding of the royal assent, if it is found that the promoters of the bill aie seeking advantages at the expense of others, whose interests are as well grounded as their own. And further if from oversight, or any other cause, provisions should be inserted of an objec- tionable character, such as the deprivation of innocent parties, of actual, or even possible i J 1084 BRITISH COLUMBIA LEGISLATION interests, by retroactive legislation, such bills are still subject to the consideration of the Governor General, who, as representative of the sovereign., is intrusted with authority, — to which a corresponding duty attaches, to disallow any law contrai-y to reason or natural justice and equity " * * * " it " (private legislation) " does not become law until the Lieutenant-Governor announces his assent, after which it is subject to dis- allowance by the Governor General," and at page 385, in speaking of the limit which the constitution applies to the legislature, when acting within the scope of its authority, the same learned judge continues "It does provide checks, for the Lieutenant-Governor may withhold the necessary assent, or the Governor General may disallow Acts to which his subordinate has assented." So much of the learned judge's judgment as I has quoted is concurred in by the court, and see per Morrison, J., at page 427. The "Sumass Dyking Amendment Act, 1883," revives rights of action and advantages to the promoter of the Bii!, which his failure to comply with the principal Act had forfeited, and therefore we say is e.n post facto and unjust. If it be suggested that the promoter has complied with the former Act, or has rights under that Act, then we reply, let him pursue those rights, and what is the need of this amendment which is so objectionable to the settlers 1 The former or principal Act (^ e. the Sum iss Dyking Act, of 1878), as to section 12, was the embodiment of a contract between the promoter, Mr. Derby, and the Matsqui settlers, to dyke their farms. The scheme was an adventure from which in the event of success, the promoter would reap a handsome return, in the shape of assessments to be levied upon tne settlers' lands, augmented by a government grant of several thou- sands of acres of land. The Act contemplated the dyking of other lands of the Fraser River also (vide sections 11 and 13), but no attempt was made to dyke any other than the Matsqui portion. It will be observed that as a protection 'to the settlers, section 12 contemplates three conditions to the promoter enjoying the benefits of the Act. 1. Effectual dyking. 2. Dyking agreeably to plans and specifications then in the office of the Com- missioner of crown lands and works. 3. Absolute protection from the overflow of the Fraser River. Under no less stringent terms would the settlers consent to countonance and pay for a dyke, which, under section 31 of the Act, for all time, they would be bound to maintain and keep in repair. The criterion of effectual dyking, mentioned in Dhe original written articles sub- mitted l)y Mr. C. B. Sword, on behalf of the promoter of the original Bill, to the settlers, and accepted by them, was that the dyke should withstand a similar risf> to that which took place in 1876, being the highest water upon record. This same criterion is also incorporated in the Act, section 8, which says : " In ascertaining whether any particular piece of land is now liable to overflow from the Fraser River, the height to which the water reiiched in the summer of 1876 shall be the criterion." Although the Sumass Dyking Act of 1878 varied from the written proposal sub- mitted by Mr. Sword to the settlers — by extending the time contemplated for completion (vide section 13) until the 1st July, 1880, — stiil the settlers waived any ground of com- plaint on that score. After the passage of the Act (1878), some show was made by the promoter of an attempt to carry out his obligations, but soon disposed of the whole of his privileges under the Act to Mr. C. B. Sword. Work of a certain class was continued at intervals, but the specifications were ignored in essential particulars, and in everything pertaining to the work wilful negligence and inability v» ^ve displayed, coupled with gross carelessness. The accuracy of this statement is abundantly proved by the oihcial reports which are to be found in the British Columbia sessional papers for 1880, pages 298 to 302. The consequence was an entire failure to reclaim the land, which has since been overflowed the same as before any attempt at dyking was made. One fatal deviation from the specifications condemned the attempted dyke beyond remedy, and that was a change in the location of the levee, which levee was placed from 50 to 100 feet nearer the river than the plans and specifications called for, demonstrating, from the inroads 46 VICTORIA, 1883. 1085 consideration of d with authority, rary to reason or s not become law subject to dis- the limit which of its authority, iteiiant-Governor )w Acts to which foment as I has |t27. of action and ith the principal f it be sug<^ested under that Act, this amendment 8), as to section Dei'by, and the rom which in the ,pe of assessments b of several thou- tids of the Fraser any other than 12 contemplates )ffice of the Com- itonance and pay aid be bound to itten articles sub- ginal Bill, to the 1 similar risf to his same criterion ing whether any er, the height to ten proposal sub- ed for completion J ground of com- e promote!' of an of his privileges lued at intervals, rthing pertaining ;ro8s carelessness, 3rts which are to K)302. ih has since been I fatal deviation , and that was a 100 feet nearer rom the inroads which the river is continually making upon its banks, the facts that the dyke cannot last, that it is only a question of time for the whole concern to be washed into the river. ( Viili' the reports quoted above). However, the government made the promoter the land grant which the principal Act provided, in the event of his fulfilling the terms of the Act. That the government were deceived in their grant, the reports of the engineers show and the solicitation for the amendment admits. It is acknowledged that Mr. Sword has expended some capital in the dyking scheme, but it is not just that the settlers should be called upon to recoup Mr. 8word for his useless outlay, which has been of no benefit to the settlers, but which might have been otherwise had the dyke been located in the right place and the speci- fications followed. I have the honour to enclose printed statement of facts prepared by the settlers in February, 1882, also copy of one of the numerous protests against the way in which the dyke aflair was being carried on. In the commencement of 1882, Mr. Sword mortgaged to Messrs. M. W. T. Drake and R. E. Jackson the lands granted by the Government under the Act, and all interest which he had or claimed under the " Sumass Dyking Act, 1878," and about the time, Messrs. Drake and Jackson, as such mortgagees, commenced suit in the Supreme Court of British Columbia against several of the settlers, to recover an instalment of the assess- ments claimed to be payable under the Act, with interest. The actions were based upon the alleged acceptance of the work by the government and their grant of the land, and were defended on the ground that the action of the government (even if they had accepted the work, which was denied) afforded no right of suit, and that the promoter of the "Sumass Dyking Act, 1878," had failed to carry out the terms of the Act. Upon the settlers pressing the actions to hearing, Messrs. Drake and Jackson discontinued the same, paid the costs, and brought in and carried through their private bill — the amend- ment now complained of. Section 1 of the amendment limits the responsibility of the promoters to protecting the lands from overflow for any two consecutive years, whereas the original bargain was for absolute protection — the high water of 1876 was to be the criterion ; now there is to be no criterion at all. Apart from the objection that this is an alteration of a contract against the will of one of the parties to it, this new provision is palpably unjust in view of the fact that the high water in different seasons varies, — during some exceptional years there is practically no high water at all — and this state of things may last for two or more consecutive seasons. It is thus quite obvious that a very imperfect dyke — in fact none at all — might, during exceptional seasons— which time is bound to bring about — fill all the require- ments of the amendment, and so complete the liability of the settlers ; imposing more- over upon them, under the combined effect of section 8 of the amendment and section 31 of the principal Act, and sections there incorporated, the more serious future respon- sibility of maintaining and supporting what might be, and, in view of the entire depar- ture from plans and specifications added to misplacement of the line of levee, must cer- tainly be —an utterly useless work. But the injustice of the " Sumass Dyking Amendment Act" does not rest even here, for under section 9, in conjunction with Section 1 2, of the principal Act, the pro- moter is now allowed to collect four years' interest moneys from the unfortunate settlers, i.e. interest from the 1st July, 1878, to 1st July, 1882, at the rate of eight per cent per annum, upon the amounts for which their lands, in the event of successful dyking, would ultimately be liable — and this irrespective of whether the promoter dykes, or tries to dyke, the land or not ; my last advices from the settlers inform me that demands have already, since the passage of the amendment, been made upon them by Messrs. Drake and Jackson for immediate payment of this interest money ; and finally, section 10 of the amendment allows the promoter to make any deviation from the line of dyke, and to construct the same in such manner as he may think proper. The proviso for arbitration afforcis no protection, for the promoter is at liberty to call successive arbitrations from time to time, until time and repeated efforts shall have at length affoi"ded him a favorable award, whatever the condition of his work may be. 1036 BRITISH COLUMBIA LEGISLATION Section 11, which says that the expenses of the arbitrators or umpire shall be borne by the promoter, is mischievous. A tribunal mainly constituted and wholly paid by one party to a controversy, is not pre-eminently calculated to accord the otlier side justice. The British Columbia legislature, which consists of twentj'-five members only, in allowing this bill (i. e. the amendment) to pass, which it did by a narrow majority, acted upon very imperfect information, and to show how entirely misunderstood the aim of the amendment was, it is only necessary to refer to its manifest injustice, and to the further fact that Mr. M. W. T. Drake, who chanced to be a member of the House and a member of the Government likewise, the mortagee of the privileges conferred by the original Dyking Act, and of those sought by the amendment, and who is now demanding the interest moneys from the settlers, was allowed to and did vote for his own measure, and his vote and advocacy it was, which procured the passage of the amendment, not- withstanding the rules and orders, which inhibit any person who has a direct pecuniary inteiest in any question, from voting. Upon the ground that the amendment is an alteration without their consent, and against their protest, of the bargain formulated by the "Sumass Dyking Act of 1878 ;" that it is ex post facto and retroactive in its operation ; that its provisions are tyrannical and unfair, and that it is a private Act, introduced into and carried through the House of Assembly by the vote of its promoter, the settlers submit that they have made out a just case to warrant His Excellency's disallowance of the "Sumass Dyking Amendment Act, 1883." I have, &c., THEODORE DAVIE. Petition of settler's of Mataqui Prairie to His Excellency the Governor General. To His Excellency the Governor Getieral of Canada : The humble petitir)n of the undersigned settlers of the Matsqui Prairie, in the pro- vince of British Columbia, showeth : — 1. That your petitioners are settlers and the owners of several portions of a con- tract of land, situate on the bank of the Frf,ser River : and such land is subject to period- ical overflows of the said river. 2. That in the year 1878, one Ellis Luther Derby made a proposition to your peti- tioners, the settlers, to dyke their said lands ; and consequently an agreement was entered into between the said Ellis Luther Derby and the settlers, under which Mr. Derby agreed to effectually dyke your petitioners' said lands, and so as to successfully resist the highest overflow which had at that time been known, viz., an unusual overflow which had occurred in the summer of 1876 ; and such dyke was to be successfully com- pleted on the 1st June, 1878 ; and in consideration there ^, the settlers' lands were to stand with charged payment of $4.00 and f2.50 per acre, according to location. 3. The terms of the above agreement were submitted by Mr. C. B. Sword, herein- after mentioned, as agent for the said Ellis Luther Derby, to the settlers, in writing, and were accepted by them. 4. In pursuance of the said agreement, the said E. L. Derby then applied to, and obtained from the legislative assembly of British Columbia, a private Act of Parlia- ment known as the "Sumass Dyking Act, 1878," embodj'ing, inter alia, the terms of the said agreement, excepting as to the time limit for completion of the work, which was extended to July, 1880 ; and your petitioners crave leave to refer to the said Act, with the terms of which, so far as it binds them, your petitioners are and have always been ready to abide. .5. The promoter of the bill did not comply with the terms of the same ; but, after the passage of the Act, disposed of his interest therein to the said Mr. O. B. Sword, and certain dykage works of an inferior kind were commenced and carried on, but not i ■ 46 vicTOKiA, 1883. 1087 )e borne by )aid by one lide justice, ers only, in w majority, ood the aim and to the House and •red by the demanding wn measure, idmeiit, not- ct pecuniary onsent, and of 1878 ;" re tyrannical h the House made out a Amendment E. Geimral. !, ill the pro- ns of a con- ect to period- bo your peti- ;reement was [• which Mr. ) successfully siial overflow jssfully com- mds were to ion. word, herein- , in writing, plied to, and t of Parlia- ihe terms of work, which tie said Act, have always 3 ; but, after 0. B. Sword, I on, but not in any way according to plans aud specifications, or in compliance with the terms of the Act. 0. The settlers, your petitioners, from time to time protested against the improper manner in which the dyking works were proceeding, and at length, the time contcnr- plated by the Act for the complete construction of the works havmg expired, and their lands remaining undyked, and continuing to be overflowed as before, withdrew their assent from further continuance of the dykage scheme. 7. Matters continued thus until the year 1883, when the said C. B. Sword, having previously mortgaged all his interest under the " Sumass Dyking Act, 1878," to Messis. M. W. T. Drake and R. E. Jackson, applied to the legislature to amend the " Sumass Dyking Act, 1878," aforesaid, and the legislature, of which the said Mr. M. W. T. Drake was a member, and who voted for and carried through the amendment, did amend the same, accordingly, in such a manner as relieves the promoter from effectually dyking the land : authorizes him to construct the dyke in such manner as he sees fit while still collecting the assessment and interest from the settlers ; is otherwise a flagrant violation of the original compact, and generally unjust and inequitable in its provision, and your petitioners crave leave to refer to the said amendment which is numbered 22, amongst the statutes of British Columbia for 1883, and for greater particularity as to the unjust provisions of the " Sumass Dyking Amendment Act, 1883," and otherwise in relation thereto, your petitioners humbly crave leave to further refer to a letter w itten on behalf of your petitioners by their solicitor, Mr. Theodore Davie, to the Honourable the Minis- ter of Justice, and dated the 14th June, 1883. Your petitioners humbly pray that your Excellency will be pleased to disallow the said " Sumass Dyking Amendment Act, 1883," and your petitioners will ever pray. EDWARD M. S. HARRIS, and others. Report of a Com.mittee of the Ilonorahle the Privy Council, approved hy His Excellency the Governor General in Council on the 14 the Canadian Pacific Railway, while under construction, almost wholly in the hands of American traders and farmers, who would thus obtain a control of the trade of th" south-eastern portion of the province, which it would be hard to recover from them. The chief engineer, therefore, considers that the carrying out of the scheme wou d entail consequences prejudicial to the interests of the people of British Columbia, the extent of which it is at present impossible to estimate. The minister desires to express his entire concurrence in the view of this matter taken by the chief engineer as above stated, and to submit the question for conside- ration. The committee recommend that advantage be taken of the intended visit of Sir Alexander Campbell to British C )lumbia, to authorize him to make full enquiry into this subject, to confer with the government of the province, and to report thereon with all convenient speed. JOHN McGEE, Clerk of the Privy Council. Report of the Hon. tlie MiniMer of Justine, approved by His Excellency the Governor General in Council on the 19th October 1883. Department of Justice, Ottawa, 25th September, 1883. To His Excelletwy the Governor General in Couttcil : The undersigned ha< the honour respectfully to report that he has had under consi- deration an Act passed by the legislature of the province of British Columbia, at its last session, 46th Vic. (1883) chap. 25, intituled : " An Act to incorporate the Columbia and Kootenay Railway and Transportation Company." The objects which the company h.ive in view, and the powers given to them, which are material to the consideration of this Act, are defined in the 9th, 10th and 12th sec- tions of the Act. These sections are as follows : — Section 9. " The company shall acquire, build, equip and maintain a line of steamers and other vessels for the purpose of carrying freight and passengers to and fro from that point on Kootenay River where the southern bLiundary line of British Columbia inter- sects the said river, thence down the said river to Kootenay Lake and through and throughout th-? said lake and its navigable tril utnries. 10. " The company shall lay out, construct, acquire build, equip, maintain and work a continuous line of railway from the outlet of Kootenay Lake through the Selkirk Rang i of mountains to a point on the Columbia River as near as practicable to the junction of the Kootenay with the Columbia River in British Columbia, and such railway shall be built either upon the broad or narrow g&uge, and be known as the Columbia and Kootenay Railway. 12. "The company shall acquire, build, equip, maintain, run and navigate a line of steamers suitable for passengers and freight traflic and other vessels upon the Columbia River to and fro from the point on the Cohmibia River where the Columbia and 46 VICTORIA, 1883. 1089 >ort dated the orward in the 16 powers and Uy of Ameri- adu that the way, and thus for communi- would, in all That mean- )le, by placing construction, thus obtain a would be liard scheme wou'd Columbia, the of tliis matter 1 for cons id e- ed visit of Sir 1 enquiry into . thereon with vy Council. vernor General ber, 1883. d under conai- tlumbia, at its i the Columbia ;o them, which and 12th sce- ne of steamers 1 fro from that blumbia inter- through and maint'un nnd I through the as practicable Columbia, and known as the lavigate a line L the Columbia [yolumbia and Kootenaj Railway from Kootenay Lake terminates, to the point on the west bank of the Columbia River where the Canadian Pacific Railway shall strike the said river, and cross the same near the Eagle Pass ; or, in the event of the Canadian Pacific Rail- way not crossing the Columbia River to the point where a wagon road or railway from Shuswap I^ke to the Columbia River may terminate thereon." At a public meeting held on the 28th April last in the City Hall, Victoria, reso- lutions were adopted in which certain objections to the undertaking were stated. These are fully set out in an Order in Council of the 14th June last, by which the undersigned was authorized to make full inquiries into the subject, and during his visit to British Columbia to confer with the government of this province and report on the matter with all convenient speed. In accordance with the terms of the Order in Council, the undersigned conferred with the British Columbia government, and made full inquiry into the subject. Careful consideration has been given not only to the statements made in favour of the undertaking by the promoters and those friendly to it, but also to the statements of those opposed to the undertaking, that its completion will tend to divert the trade of British Columbia to the United States. So far as the construction of the proposed line of railway is concerned, no exception can be taken to the undertaking in itself as to the power of the legislature to give the company authority for its completion. In regard to the power given to the company to establish a line of steamships, two questions arise for consideration : — (1) Will the company, by means of the line of steamships, divert trade from Canadian railways and territory, to United States railways and territory ? and (2) Does the Act authorize the company to establish a line of steamships between the province of British Columbia and a foreign country 1 The British Columbia government have expressed their willingness to ask the legis- lature to amend the Act, so as to make it clear that the company have not the power to establish a line of ships between the province and the United States. That amendment being made, the undersigned is of opinion that the Act may safely be left to its operation. The undersigned, therefore, respectfully recommends that the British Columbia government be invited to amend the Act in that direction, by providing that nothing therein contained shall authorize the company to establish a line of steamships between the province of British Columbia and any British or foreign country, and that further action in regard to the Act be, for the present, deferred. The undersigned further recommends that if this report is approved the substance of it be communicated to the Lieutenant-Governor of British Columbia for the infor- mation of his government. A. CAMPBELL, M'mister of Justice Eeport of the Hon. the Minister of Justice approved by Ilis Excellency tJie Governor General in Council on the 25th February, ISSJf. Department of Justice, Ottawa, 10th January, 1884. To His Excellency the Governor General in Council : The undersigned begs leave respectfully to report upon the Acts passed by the legislature of the province of British Columbia during the first session of 1883 • Chap. 5. " An Act relating to county courts," establishes county courts for the several districts therein named, and defines the jurisdiction of the courts. This Act was probably suggested by the difliculties which arose in regard to the districting of the superior court judges. 1090 BRITISH COLUMBIA LEfflSLATIOX The Act assigning the districts of the judges of tlie supreme court of the province, having been pronounced within the powers of the legislature of British (Jolunil)ia, tlie undersigned, when in ISritish Columbia, last year, arranged, with the government of that province, that Mr. Justice ]\lcCreiglit should be assigned to the district of New Westminster, and Mr. Justice Walkem to the district of Kamloops,* and also that an otHcer, to be at the same time county court judge and stipendiary magistrate for Cariboo and Lillooet, should be appointed by the two governments, the l^ominion paying his salary jus judge, and the province of British Columbia, his salary as stipendiary magis- trate. For the present it is, therefore, only necessary to make provision for the salary of the judge of the county court of Cariboo. A tjuestion arose as to whether inconvenience in the administration of justice might not be occasioned by the existence of this Act, ir» view of the fact, that the new county court judges were not appointed, but by reference to sec. 34, it will be seen that it is provided that in all cases where, from any cause, the office of a county court judge in any district shall be vacant or not filled up, it shall be lawful for any judge of the supreme court to perform the duties of a county court judge in such district, and he shall have all the powers of a county court judge for such a purpose ; and any judge of the supreme court, when in the electoral district of Cassiar, may hold a county court there." In view of these facts the undersigned respectfully recommends that this Act be left to its operation. Chap. 10. " An Act to amend the Sumass Dyking Act, 1878." Certain settlers at Matsqui interested in the reclamation of lands referred to in this Act, petitioned for its disallowance on the ground that it is an alteration without their consent and against their protest of the bargain formulated by the Sumass Dyking Act, 1878, that it is ex fost facto and retroactive in it operations, that its provisions are unfair and tyrannical, and that it is a private Act introduced and carried through the house of assembly by the vote of its promoter. The undersigned, when in Bi'itish Columbia, had the advantage of learning per- sonally from the promoter of the Act, and from those opposed to it, their representa- tions in support to their respective views. In addition, Mr. Sword, the promoter of the Act, put his reply in writing. From the papers and from all that was said, the undersigned is not prepared to state that the petitioners have sustained the grounds taken in their petition, but without expressing an opinion in respect of the merits of the case, the undersigned is of opinion that the Act is within the authority of the legislature of British Columbia, and he respectfully recommends that it be left to its operation. Chap. 14. " An Act relating to the Island Railway, the Graving Dock and Railway Lands of the Province," has been repealed, and a new Act in accordance with the arrangement made between the undersigned, for the government of Canada and the British Columbia government, substituted in lieu thereof. Chap. 25. " An Act to incorporate the Columbia and Kootenay Railway and Transportation Company," was reported upon, on the 25th September, 1883. In that report the undersigned recommended that the British Columbia gover- ment be invited to ask the legislature to amend the Act by providing that nothing therein contained should authorize the company to establish a line of steamships between the province of British Columbia and any foreign country, and that further action in regard to the Act be deferred. This recommendation was approved by Order in Council, 19th October, 1883. The undersigned has lately received a telegram from Mr. Smythe, stating that a bill, embodying the amendments to this Act suggested in that report, had been passed, without division. The undersigned, therefore, recommends that this Act be left to its operation. Chap. 26. " An Act to incorporate the Fraser River Railway Company," was re- ported upon the 25th day of September, 1883, and was, by Order in Council of the 17th day of October, A. D. 1883, disallowed. 4G VICTORIA, 1883. 10!) I f the province, Colunil>ia, the i^oveinment of strict of New id also that an ate for Cariboo ion payinj; his endiary niagis- •r the salary of tion of justice , that the new it will be seen . county court I for any judge h district, and and any judge k county court lat this Act be Chai. 27. "An Act to incorporate the " New Westniinstnr Southern Railway Com- pany " was reported upon on the 25th day of September, A. D. 188:?, and was, by Order in Council of the 17th day of October, A. I). 188.'}, disallowed. The undersigned respectfully recommends that the remaining Acts of the said ses- sion, the chapters of which are as f(jlluw, be left to their operation, namely ;— Chapters 1 to 4, C to 9, 12, 13, 15 to 24, 28 to 37. A. CAMPBELL, Minister of Justict. \ referred to in ration without Jumass Dyking provisions are i through the »f learning per- jir representa- 'iting. lot prepared to m, but without i is of opinion umbia, and he k and Railway ance with the bnada and the Railway and 83. ilumbia gover- f that nothing Dships between ther action in ler, 1883. stating that a 1 been passed, operation. Dany," was re- icil of the 17th 'i, 1092 IIUITISH fOLUMllIA LKlilHLATION BRITISH COLUMHIA, 47th VICTORIA, 1884. 2nd Session — 4tii Parliament. Report of the Hon. the Minister of Justice approvnl hy 11 In E.icelhncy the Governor General in Conncil on the Sth April, ISSJf. Department OK Justice, OrrAWA, 7th April, 1884. To Ilia Excellency the Governor General in Council ; The undersigned has had under consideration an Act passed during the last session of the legislature of British C(»luinlna, No, 15, intituled : " An Act to prevent the im- migration of Chinese." The 2nd section makes it unlawful for any Chinese to come into the province of British Columbia, or any part thereof, and imposes a penalty upon those Chinamen who do so, and provides that they may be arrested without warrant. By the 3rd section it is provided that anyone who brings or assists in bringing into British Columbia, any Chinese, or who in any way assists any Chinese in coming into British Columbia, is liable to a penalty of $200, and in default of payment, to imprison- ment for six months for each Chinaman so brought in or assisted. By the 4th section it is provided that offenders against the 3rd section may be arrested, without warrant, by any constable, and brought before any justice of the peace, to b*' dealt with according to law. The preamble to the Act is as follows ; — " Whereas by the British North America Act, 1867, section 95, it is enacted as follows : — " In each province the legislature may make laws in relation to agriculture in the province and to immigration into the province, and it is hereby declared that the Par- liament of Canada may, from time to time, make laws in relation to agriculture in all or any of the provinces, and to immigration into any or all of the provinces ; and any law of the legislature of a province relative to agriculture or to immigration shall have effect, in and for the province, as long and as far only, as it is not repugnant to any Act of the Parliament of Canada. " And whereas it is expedient to prevent the immigration of Chinese into British Columbia." Having reference to the condition of Canada at the time of the union of the pro- vinces, the undersigned is of opinion that the authority given by the 95th section of the British North America Act is an authority to regulate and promote immigration into the province and not an authority to prohibit immigration. A law which prevents the people of any country from coming into a province, can- not be said to be of a local or private nature. On the contrary, it is one involving Dominion and possibly imperial interests. But without coming at present to a definite conclusion as to whether the Act in question is one within the legislative authority of parliament or of the legislature, the undersigned is clearly of opinion that it is an Act that ought not to be put into operation, without due consideration, and without correspondence with the imperial authorities. If the legislature had followed the same course with respect to this Act that it followed with respect to Act number fourteen, intituled : '' An Act to regulate the Chinese population of British Columbia," and provided that it should not come into force until one year after its passage, time would have been given for necessary conside- ration and correspondence, but by the Sth section of the Act under consideration, it came into operation on the 31st March last. 47 VICTORIA, 1884. 1093 I Governor il, 1884. e last session vent the iin- e province of linamen who bringing into L coming into to iraprison- tion may be of the peace, is enacted as ulture in the hat the Par- ulture in all es ; and any n shall have it to any Act into British I of the pi'O- jection of the ligration into )rovince, can- iterests. But n question is > undersigned tion, without 58. is Act that it I regulate the ot come into 3sary conside- ation, it came As tlio \.t cl.Mirlv (liMTiniinatPs against the Chinese, and an it imposes great penal- ties upon Chinai.K-n .•.'.ming into i'.rilish ("..luinlmi, and ujM.n ihos,. vvl... assist ( h.nan.en to i-oL into i5,itish C.iun.l.ia. and as at least great .loubts must l.e ent.-rtauiod a.s to the authority of the legislature to pass the Aet, the undersigned rospe.ttully recommends that it be disallowed. CVMl'nKlli • Minister of Jimtice. ' Ordn-iii Council disallowing the Art above mentioned /mhlished in the Canada Oazdte oj the ml day of April, 1S8.'„ Vol. XVII., No J, I, jm<('. The Earl of Dn-bi/ to //is E-rcoH' iiq/ the Govrnor Gnieral. DowNiNii SrnKKT, .Tlst May, 1884. Afv Lord— M'ith reference to youi' lordship's despateh, No. fi'J, of the 15th ultimo, inclosing a copy of a repoit of a Committee of the Privy Coun.il, upon an Act tor pro- venting the immigration of Chinese, recently passed l.y the legislature o i.r.t.sh Columbia, in accordance with which report you had disallowed the Act, I have the honour to inform you that Her Majesty has not ))een advised to disallow Acts passed in the Australian colonies, restricting by very severe provisions, the immigration or introduction of Chinese. . „« +v.„„- I shall be happy to transmit for your lordship s information copies of some ot these Acts if they are not already in the Parliamentary Library at Ottawa. Her Majesty's government have not held that the relations of this country with China require them to interfere with the Australian legislation, on international .^rounds, and it has been treated as a matter of internal administration with which a responsible colonial government is competent to deal. When, therefore, the »oniinion Ministers advise your lordship with regard to these Acts, you may understand that the question is not held to invoh e imperial interests and that you should deal with it as a Canadian question only. ^, . :^™; I do not undertand that your lordship invites me to state whether Chinese immi- gration into British Columbia is placed by the British ^orth Americ.i Act ot 1867, under the control of the Dominion, or of the provincial legislature, but I may say that is a point on which I am not prepared to give an opinion. I have, ifcc, DERBY. Report of the Hon. the Minister of Justice, approved by His Excellency the Governor General in Council on the .iVth March, 1885. Depart.mp:nt of Justice, Ottawa, •2nd March, 1885. To His Excellency the Governor General in Council : The undersigned begs leave to report upon the Acts passed by the legiHlativo assembly of the province of British Columbia, in the session commencing on the 3rd ot December, 1883, and ending on the I8th of February, 1884 Having carefully considered the Acts, chapters 1, 5 to 9, 11 to 3o, the undersigned, respecfuUy recommends that they be left to their operation. p, • „,„ „ ,^„, a-,„ Chapter 3, intituled : " An Act to prevent the Immigration of Ch nese, was dis- allowed by ordLr in council on the 8th of April last. The Right Honoumble the Principal Secretary of State for the Colonies, referring to the disal owance of this^Vct, '" a des- patch to his Excellency, under date of the 31st of May last, states that Her Majesty 69 « - '^■- .3 4^' 1094 BRITISH COLUMBIA LEGISLATION. has not been advised to disallow Acts passed in the Australian colonies, restricting, by very severe provisiorib, the imniigration or introduction of Chinese and that Her Majesty's Government have not held that tht relations of the United Kingdom with China required them to interfei'e with the Australian legislation on international grounds, and it has been treated as a matter of internal administration, with which a responsible colonial government is competent to de.^l. Chaptc " 2, intituled ; " An Act to prevent Chinese from acquiring Crown lands, " makes it unlawful for 1:he commissioner of Crown lands, or any other person, to issue a pie-emption record of any C-own land, or sell any portion thereof to any Chinese, or to grant authority under the " Land Act, 1884," (B.C.), to any Chinese to record or divert any water from the natural channel of any stream, lake or river in the province. Chapter 4. " An Act to regulate the Chinese population of British Columbia,"' imposes an annual tax of ten dollars on every Chinese o^er the age of 14 years and makes other stringent and special provisions for the regulation of the Chinese population of the province. No questioj? in the opinion of the undersigned arises under chapter 2, with respect to the relative authority of the parliament of C^rada and the legislature of B-'itish Columbia. A question may arise as to whether o< not the Acts applying only to a poi uion and not to the whole of ( 'm population of the province, are constitutional, but this is a question which, if it arises, can be most conveniently dealt with bj' the courts. A further question will probably be raised as to whether cr nob the legislature, in the exei cise of its powers to impose l direct tax, can so impose it as to limit or restrict that intercourse among people of dili'erent natior s, which constitutes one of the elements of commerce, but that question is alsc one which, in the opinion of the undersigned, can best be considered and dealt with by a judici.i,.' L. i}^"nal, as happened in the case of an Act of the legislature of British Columbia, passed in 1878, for the better collection of taxes from Chinese, which was held unconstitutional, and the coUei^t'on of taxes there- vnder restrained by the courts, and "oi tliese reasons the undersigned I'ecommends that the Acts be left to their operation. Chapter 10. " An Act oo consolidate and amend the laws relating to Gold and other minerals, excepting coal." Q'his Act does not contain the provisions respecting the appointment and jurisdic- tion of the gold commissioners, which were contained in 45 Vic, chap. 8, and on account of which that Act was disallowed, and there is, therefore, in the opinion of the uiider- signed, no objection to leaving the Act to its opei-ation. If this report is cpproved the \indersigned respectfully recommends that the Lieutenant Governor of ISritish C'oluml)ia be in^'onnod that it is the intention of his Excellency to leave to their operation the Acts mentioned in the schedule thereto, and also the Acts chaptered 2, 4 and 10 hereinbefore referred to. All of which is respectfully submitted. A. CAMPBELL, Minister of Jw lice. Mr. Stanhope to Officer Administering the Government of Canada. DowNixfi Street, 21st August, 1886. HiH, — With reference to my despatch No. 181 of the 5th instant, relating to an Act passed by the Legislature of British Columbia in 1884, intituled : " An Act to i-egulate the Chinese population of British Columbia," I have the honour to transmit to you for your information, and for th"t, of you'' government, a copy of a letter from the Privy Council Ortice with its inclosures on the subject. , I have, &c., EDWARD HTANHOPE. 47 VICTORIA, 1884. 1095 lies, restricting, by that Her Majesty's kfith China required grounds, and it has responsible colonial ■ing Crown lands, " :• person, to issue a any Chinese, or to to record or divert le province. British Columbia,"' ge of 14 years and Chinese population pter 2, with respect gislature of British ipplying only to a constitutional, but with bj' the courts, e legislature, in the mit or restrict that i of the elements of e undersigned, can ed in the case of an better collection of 't'on of taxes there- d I'ecommends that elating to Gold and tment and jurisdic- p. 8, and on account oinion of the uiider- omniends that the the intention of hi? aedule thereto, and BELI^ ■ister of Ju: lice. Canada. August, 1886. ;, relating to an Act An Act to iegulate transmit to you for tter froui the Privy STANHOPE. Privy Council Office to Colonial Office. Whitehall, 13th August, 1880. Sir, — I am di 'ected by the Lord President of the Council to inform you in reply to your letter of the nth inst., relating to the treatment of Chinese subjects in British Columbia, and req\ esting to know the present position of the appeal of Bull versus Wing Choiig from the Supreme Court of that colon)', that Her Majesty in Council was I)leased to admit the appellant, Bull (who represented the Attorney General of the colony), to enter and prosecute iiis appeal from a decree of Mr. Justice Crease, who held that the Chinese llegulation Act of 1884 was ultra vires the legislative a«sembly of the province. No ste[)^ were taken for tlie prosecution of this appeal, and on the 22nd July this department was informed that the Attorney General for British Columbia does not intend to proceed with the appeal. In consequence of this intimation Her Majesty was advised by the Lords of the Judicial Committee to cancel and di? jharge the order of the 3rd of April, 1886, granting leave to appeal, and Her Majesty was j'.eased on the 3rd of August to rescind that order accordingly. There is, therefore, no appeal from the decision of Mr. Justice Ci'case now in existence, and it follows that the Chinese llegulation Act of 1884 is held to be e.rtra vires the legislative assembly of the province of British Columbia, and has not the force of law. T am, kc, HENRY REEVE, Jieffistrar Privy Council. Report of the Hon. the Minister of Justice approved hy IJin Excellency the Administrator of the Government in Council, on the 17th September, ISSG. Department op Justice, Ottawa, 11th September, 1880. To His Excellency the Administrator cf the Government in Council : L^pon the reference of the despatch of the 21st ultimo, from the Right Honourable the Prhicipal Secretary of State for the Colonies to your Excellency, transmitting copy of a letter from the Privy Conncil, with its inclosures, on the subject of the Act passed l>y the legM ur" of British Columbia in 1884, intituled ; "An Act to regulate the Chinese po^ul tion of British Columbia," the undersigned has the honour to reconnnend that a copy of the despatch and of its inclosures be transmitted to the Ijieutenant Go '^rnor of British Columbia for his information. JNO. S. D. TH0Mr.-50N, Minister of Justice. 6'4 .'§ RP AtjTvai 1096 BRITISH COLUMBIA LEGISLATION BRITISH COLUMBIA— 48th VICTORIA, 1885. 3ed Sesbion— 4th Parliament. Report oj the Hon. the Minister oj Justice on Chapter 9, approved by J/is Excellency th< Governor General in Council on the 10th March, 1886. Department of Justice, Ottawa, 11th March, 1886. To His Excellency the Governor General in Council : With reference to the Act of the legislative assembly of British Columbia, 48th Victoria (1885), chapter 9, intituled : " An Act to amend the Sumas Dyking Act, 1 878," and a memorandum upon which, prepared by the Minister of the Interior, which has been referred to the undersigned by your Excellency in Council, the undersigned has the honoui- to report as follows : The first section of the Act in question provided as follows : — " 1. When, and as soon as the Lieutenant Governor in Council shall have cancelled the agreement for the dyking and reclaii.iing of the lands in Chilliwack and Sunuis, as provided in the Sumas Dyking Act, 1878 and amending Acts, it shall be lawful for the chief commissioner i)f lands .-ind works, by notice in the British Columbia Ga~ette, to offer, from lime to time, for sale, in accordance with the provisions of the ' Land Act, 1 884,' 45,000 acres of the lands held at the passage of this Act by the Crown, in townshp.s 16, 19, 20, 22, 23, 25, 26, 27, 29 and 30 of New Westminster district; Provided alwt -•« that the mono^s derived from the sale of the said lands shall be paid into the treasui ,, to the credit of an account to be called the " Chilliwack and Sumas Dyking Fund.' " Tb*' Minister of the Interior in his memorandum points out that all the townships menti(med in this section are in the r.alway belt on the mainland of the province, and clalrr -^ that the pwblie lands in them are now vested ia the Dominion government, and that lie Act undei- consideration is thefore ultra vires of the provincial legislature. The undersigned observes that the terms of the grant of the railway belt irtmi the provincial to the I>)miiiio'i government as finally settled, are contained in the British Columbia Act, 47 Victoria, chapter 14, section 2, upon reference to which it y[\i be seen that the grant is of the public lands along the line of the railway, wherever it may be finally )of>ated, to a width of twenty miles on each side of the said line, as provided in the Order in Council (section 11) admitting the province of British Columbia into confefler»tion. Th*" undertaking of the province contained in the 11th section of the Order in CouncU is as general in its terms, and i.= qUc^Hfi^d, so far as the class of the lands to be comprised in the grant is concerned, o.ily by the proviso that the quantity of land which may be held under pre-emption vight or by Crown grant, within the limits of the tract if land in British Columliia to be so conveyed to the Dominion government, shall be made good to the Dominion from contiguous public lands. It would appear, thercf^ji-e, that the grant to the Dominio.i. "as of all public lands in the railway belt, and that "public lands " here means, in efiFect, all lands which had not., at the date of the grant, been alienated by Crown grant, or were not then under pre-emption light. If this definition of " public lands" be accepted, it is- clear that there is nothing in the "Sumas Dyking Act" or in its amendments, or in the reservation, by the pro- vincial government of the vacant lands in the townships in question, to take such vacant lands out of that category, and they passed to the Dominioii government with l-he other public lands in the railway belt, liy virtue of the Act, 47th Victoria, cliapter 14. a*i!>.i. mm "*i*fe.^ 48 vicTOKiA, 1885. 1097 885. 'is Excellency tin Harch, 1886. Columbia, 48th 'king Act, ] 878," terior, wliich has undersigned has all have cancelled ck and Sunias, as be lawful for the ia Oa~.ette, to offer. Land Act, ] 884,' \vn, in towns! j Provided alwr -v |into the treasui > , y king Fund.'" all the townships ;he province, and government, and U legislature, ^vay belt iruni the led in the British which it .vill be , wherever it may 1 line, as provided sh Columbia into n of the Order in f the lands to be tity of land which limits of the tract eruraent, shall be f all public lands lands which had 6 not then under l;ere is nothing in ation, by the pro- ) take such vacant mt with ^ne other chapter 14. The undersigned is therefore disposed to agree with the conclusion arrived at by the Minister of the Interior that the Act of last session, chapter 9, is in conllict with the grant made to the Dominion government by the Act 47th Victoria ; and he recom- mends that the said Act, namely, "An Act to amend the Sumas Dyking Act, 1878," be disallowed. All of which is respectfully submitted. JNO. S. D. THOMPSON, iliiiister of Justice. Department of the Interior, Ottawa, 18th December, 1885. Memorandum. The undersigned begs to report that his attention has been called to the passage by the legislature of the province of British Columbia at its last session, of an Act (chapter 9, 1885) intituled : " An Act to amend the Humas Dyking Act, 1878 " which purports to deal with lands lying within the railway belt, and which the undersigned is of the opinion were conveyed to the Dominion by the said province, by the settle- mtnt Act. This Act of the British Columbia legislature above alluded to, authorizes the chief ommissioner of lands and work'i to offer for sale from time to time, in accordance with the Provincial Land Act 1884, forty-five thousand acres of land in townships 16, 19, 20, 21, 22, 2.3, 25, 26, 27, 29 and 30, New Westminster district, and directs the purchase money therefor to be paid into the Provincial Treasury, to the credit of an account, to be called the " Ciiilliwack and Sumas Dyking Fund." Section 13 or the Sumas Dyking Act, 1878, provides that the dyking contractor, Mi, E. L. Derby, should, subject to the conditions of the Act, be entitled to receive, in respect to the dyking to be effected by him, 45,000 aci-es of land in the before niem- tioned townships, including in this acreage the lake known as Sumas Lake ; and section 34 provides that in the event of the failure of Derby to carry out the conditions, agree- ments and stipulations in the said Act contained, it should be lawful for the Lieutenant Governor in Council to cancel the said several agreements, and to give as far as possible, the like rights and privileges to some other person, so that the lands mentioned or any part thereof, might be dyked and reclaimed in manner provided by the Act. The lands in the township above mentioned were reserved for dyking purposes by the provincial government by notice in the Government Gazette of the 13th day of April, 1878, which reservation has never been revoked. The whole of these lauds lie within the i-ailway belt, which was by chapter 11 of 1880 of British Colum*;ia, section one, conveyed to the Dominion for railway purposes, subject only to the conditions of the eleventh section of the terms of union as to pre- emption Rights. By clause 3 of the Act of British Columbia of 1880, alluded to in the last preceding paragraph, it is provided that the rights of the public with respect to the common and public highways, are not to be affected by that xVct. These are the only rights reserved in the conveyance of the railway lands by this statute, there is no exceptio.i or reserva- tion of lands reserved by the provincial goverr ment for special nr general purposes, and, therefore, the lands reserved for dyking puposes by the above mentioned notice, not being lands held by Crown grant or under pre-emption right within the mean- ing of the eleventh section of the terms of tiie union, and not having been e.vcepted in the statutory conveyance to the Dominion, made by chapter 11, 1880, nor by the sub- sequent conveyance, chapter 14, 1883, known as the " Settlement Act," and "Six: E. L. Derby having failed to carry out the dyking contract (he having in fact, as the under- .signed is informed and believes, relinquished the enterprise, and left the province of l^ritish Columbia, long since) and the provincial government not having before the passage of the statutory conveyance of 1880 and 1883, exercised the powers reserved under section 34 of the " Dyking Act, 1878," of gr .nting to any other person the like rights and privileges, as were conceded to Derby, it is submitted that it may be justly '4; contended that that these last mentioned Acts of 1880 and 1883, or one of them, in effect cancelled the Derby agreement, and revoked the powers reserved by said section 34, and that thereby these lands have passed to the Dominion for railway purposes, free from the dyking trusts. And if such is not the effect of the statutory conveyances above quoted it may still be contended that under these statutory conveyances these lands have passed in fee to the Dominion, as trustees for the purposes of the Dyking Act, and consequently that as trustees of the fee any grant to any cotitractor of any portion of the 45,000 acres to be selected out of the said reserved "lands, under the Dyking Act, must be made by the Dominion government, or in case of any conversion of the trust estate, the Dominion government, as the legal trustees of the corpus, and not the provincial government, would be entitled to hold for the contractor, the fund arising from such conversion, until such time as the contractor should have dyked the lands, in accordan^'e with the Act. And if the Act in question is not legally objectionable on any of the above grounds, it is submitted that it is still subject to disallowance on the ground that, by its passage, the provincial government have virtually admitted that all the Crown lands within the dyking reserve, have passed to the Dominion, except 45,000 acres. Thes ■ 45,000 acres must, therefore, be the whole undivided interest in this reserve that E. L. Derby would have been entitled to receive on completion of his contract, and as this undivided interest, is stated in section 13 of the Dyking Act, as includiag the unascertained area of Sumas Lake, the Act now under consideration should, to be in accord with the Dyeing Act, have provided that the unascertained area of Sumas Lake should be included in, and form part of, the 45,000 acres purported to be authorized by this Act to be sold from time to time by the commissioner of lands and works. And finally the Act in question is prima J'acir inconsistent and invalid, as it sets forth that on the 9th day of March, 1885, the date of its passing, these 45,000 acres were Crown lands on thnt date, and if those lands were Crown lands on that date, they were Crown lands on the date of the passage of the .Settlement Bill, and passed thereunder to the Dominion, no legislation or action of the provincial government affecting these lands having been effected intermediately between those dates. The undersigned begs to recommend that the papers in this case mentioned in the schedule hereto, be referred to the Honourable the IMinister of Justice for report as to whether the Act of the legislature of British Columbia, chapter 9, 1885 intituled " An Act to amend the Sumas Dyking Act, 1878," should not be disallowed. Respectfully submitted. THOS. WHITE. Miiiister of the Interior, Order in Council disallowing Chaj)ter 9, published in the Canada Gazette on the 29th day cj May, 188o, vol. XIX., No. 48, page 1687. Legislative Assembly of British Columbia to His Excellency the Governor General. Victoria, B.C., 3rd March, 1885. To His Excellency the Governor General in Council : We, the legislative assembly of the province of British Columbia, extremely regret the disallowance of the Act for prevention of the immigration of Chinese passed at this last session. The disallowance of the Act according to the correspondence, did not proceed from a view of its being unconstitutional, but because the Act was ri 4,;u-ded as inexpedient. We see nothing to change the carefully considered representations and opinions which have heretofore been expressed on the Chinese question, and which hntva J 43 VICTORIA, 1885. 1099 one of them, in by said section y purposes, free Dted it may still passed in fee to quently that as ,000 acres to be be made by the the Dominion government, ich conversion, ccordanoe with above grounds, by its passage, n lands within Thes' 45,000 at E. L. Derby I this undivided iScertained area ifcord with the Lake should be :1 by this Act to ivalid, as it sets ese 45,000 acres s on that date. Bill, and passed cial government ! dates. iientioncd in the I for report as to ) intituled " An E. he Interior. Gazette on the nor General. arch, 1885. xtreraely regret ? passed at this idence. did not was II 4,;uded as esentations and and which fn»in time to time have been communicated to, and urged upon the Dominion government. Brieily they may be summed up as follows : — 1. The Chinese are alien in settlement (nic) and habits '1. They do not become settlers in any sense of that word. They have no intention of pernuinently settlitig in this country, but come for the purpose of trading and labouring, in order to return to their native country with the nieims to pass the remainder of their days in ease. The Chine.se population chieHy consists of mali- adults, and thus without the responsibility of providing for a family, they come in unfair I'om- petition with white labour. They are the slaves or coolies of the Chinese! race, accus- tomed to live on the poorest fare and in the meanest manner, and hence their presence tends to the degradation of the white labouring classes. Their presence exerts a lianeful influence in resti-icting the immigi'ation of white labour, and especially in the class of house servants, wlio will not l)e brought into contact with this i-ace. They have a system of secret socic^ties, vvhicli encourages crime anio.ig themselves, and which prevents the administraiion of justice. The use of opium has extended throughout the |)rovince to the demoralization of the native races, aiul the Chinese encourage the use of this drug amongst others of our own rising population, and we ui gently reijuest that souie res- trictive legislation be passed, to prevent our province from being completely over- run by Chinese. . J. A. MARA, Speaker. Report of the Hon. t/ie Minister of Jufstlre, appi-oved hi/ His Excellency the Governor General on the ',J7th March, lS8o. Department of Justice, Ottawa, 26th March, 1885. To His Excellency the Governor (Jeaeral in Council : Tiie under.signed has the honour to rept)rt upon an xVct, bill No. 21, chapter 13, passed liy the legislature of British Columbia, intituled: "An Act to jirevent the immigration of Chinese,' which came into force on the i'th instant, and of which an authenticated copy was received b)' the Secretary of .State on the 2.'5rd instant. This Act contains the same provisions as tho. THOMPSON, Minister oj Justice. Order in Coxmicil disallowing chapter IS, published in tlie Canada Gazette on the 29th day of May, 1886, vol. XIX., No. Ji8, jnge 1686. Secretary's Depm-tmen* of th> Interior to Deputy Minisfr of Justice. Department of the Txterior, Ottawa, ITth November, 1885. Sir— I am directed by the Minister of the Interior to send you, for your infor- mation 'the inclosed copy of a letter from the Hon Joseph Trutch, agent of the govern- ment for British Columbia, and a copy of the Act of th« legislature of that province to which he refers, 48tii Victoria, chapter 16. I have, J Jimtice vpon ehaptry /i;, npprovpd by Hia Ex- ' ceUency the Governor General in Council on the lUth Murr/i, /,S'iS'6'. Department OK Justice, Ottawa, 11th March, 1886. To His E-ri-dhnry the Governor General in Council : The undersigned has the honour to report with reference to the Act pa-ssed by the legislature of the province of British Columbia in tlie session held in the year 188.'), chapter 16, intituled : " An Act to amend the Land Act, 1884." sections 1 and 2 of this Act make amendments in the Land Act of 1884, and then it is provided by the ."Ird section that "all sales heretofore made of reserved lands, and of town, city or suburban lots in the cities of Victoria or New Westminster and the town of Hastings, are declared to be valid." In a communication, under date r)th (September last from Mr. Tiutch, the Dominion government agent for British Columbia, to the Ministei of the Intei'ior, by whom it was transferred to the Minister of Justic€', attention is called to the 3rd section of this Act. Mr. Trutcli observes that the pi-ovision is open to serious objection, and shoukl not, in his opinion, be allowed to continue in force, for the reason that the {)r(>vision whether so intended or not may be held to confirm and make valid, call .sales made by the government of British Columbia, pieviously to the passage of this Act, of any lands in British Columbia which had been reserved for any i)urj)Ose whatever, including mili- tary, naval and Indian reservations, as well as the sales made just before the date of the passage of the Act, of lands within the limits of the railway belt which had been con- veyed to the Dominion by the British Columbia Act, 47th Victoria, chapter 14, jiassed on the 19th December, 1883, and intituled : " An Act relating to the Island Bailway and (iraving Dock and the Railway Lands of the Province," to the sales of which la.st mentioned lands, and the issue of Crown grants i f the lands so sold, by the government of British Columbia, he had called attention in his letter of the iJ^th February, 1884, as having been rnada in contravention of the statute last mentioned, and to the prejudice of Dominion rights under that statute. The (juestion of the validity of the grants so made by the government of British Columbia, and to which Mr. Trutch calls attention, is now before the courts, and in the opinion of the undersigned, pending the decision of that ijuestion, no Act of the legis- ture of the province of British Columbia, should left to its operation which will have the effect of confirming the grants so called into question. It might po.ssibly be urged that the 3rd section of the Act under consideration is intended to confirm sales theretofore made of reserved lands in the cities of Victoria and New Westminster and the town of Hasting.s, but the undersigned thinks it is open to the larger construction which Mr. Trutch has placed upon it, and that the effect of such a construction might be to confirm the grants which the government of British Colum- bia has made of lands within the railway belt in that province. The undersigned therefore recommends that chapter 16, intituled: "An Act to amend the Land Act, 1884,'* be disallowed. All of which is respectfully submitted. JNO. S. D. THOMPSON, Minister oj Jus/ice. Order in Council disnlloicinq chapter 16, publLihed in the Canada Cazette on the 29th day of May, 1886, Vol. Xl'X., Xo. 48, page 1687. 1104 IIHITIHII COI.UMIUA LEOISLATION Report of the Hon. the Minister oj Justice, approved In/ Tlin E.iriilency the Governor General in Council, on the Kith March, 1S8H. Department of Justice, Ottawa, 11th March, 1886. To I/is Excellency the Governor General in Council ; The undersigned having had under consideration the Acts of the legishiture of the province of Britisli Colunibiii, passed in the session held in the year 1885, ciiapters 1 to 8, 10 to 12, 14, 15, 17 to 24, 29 to 21, and b(iing of opinion tiiat there is no objection to such a course, respectfully recommends that they be left to their operation. By the 51 St section of chapter 25, intituled: "An Act to consolidate the Public School Acts,'' it is provided that any person wilfully making a false declaration of his right to vote shall be guilty of misdemeanour, and, on a summary conviction thereof before any justice of the peace, shall be sentenced therefor to imprisonment for any period not exceeding three months, or to a tine not greater than one hundred dollars. The same provision was contained in " The Public School Act, 1879," and attention was called to it in the report of the Minister of Justice of 8th May, 1880. By the 1st section of chapter 26, intituled : "An Act to authorize the appointment of a coirimission of incjuiry concerning the genuineness of an alleged transfer, dated 23rd June, 1884, from certain Indians to one J. M. M. Spinks," it is provided that any witness who, on the investigation therein mentioned, shall make any false statement on oath or solemn affirmation, shall incur a penalty of $500. Both of these provisions in the opinion of the undersigned, are open to objection. The first by purporting to create amisdemfmnour, and the second by providing a penalty for an offence, which, l)y the Act of the Parliament of Canada, 32 and 33 Victoria, chapter 23, section 2, is declared to be wilful and corrupt perjury, and to be punishable accordingly. Tiie undersigned, however, recommends that the Acts to be left to their operation, but that the attention of the Lieutenant Governor of the province of British Columbia be called to the matter, with a view to the necessary amendments being made. By the 1st section of chapter 28, intituled : "An Act for the abolition of certain tolls," "An Act to amend the Cariboo Wagon Road Tolls Act, 1876 (47 Victoria chapter 33) and "An Act to amend the Cariboo Wagon Road Tolls Act, 1876" (43 Victoria, chapter 28) and "The Cariboo Wagon Road Tolls Act. 1876," are hereby repealed. By the 2nd section it is provided that, " From and after the passing of this Act, there shall be levied and paid unto and to the use of Her Majesty, her heirs and successors, from all persons whomsoever, by way of toll, the sums following, that is to say : — " For every piound avoirdupois of goods, merchandise, stores, productions and chattels, other than those hereinafter excepted which shall respectively be carried from Cliiiton in the direction of Cariboo, the sum of half a cent." By the 3rd section it is provided, "that such tolls shall not be demanded of, or from, or paid by, any person in respect of mining machinery, farming implements, wheat, beans, peas, oats, barley and grain of all kinds, hay, roots, vegetables and other agricul- tural produce, the growth of the province, and all flour and meal manufactured in this province from wheat, beans, peas, oats, barley, and grain of all kinds grown in the province." The Minister of Justice in his report of the 11th October, 1876, upon the "Cariboo Wagon Tolls Act, 1876," while not recommending the disallowance of the Act, pointed out that its principle might be so extended, as to render it necessary to consider the question whether such legis'ation does not trench on the regulation of trade and commerce. The Act last mentioned, with ( xceptions similar to those contained in the third section of the Act under consideration, established a toll of half a cent for every pound avoirdupois of goods, merchandise, stores, productions and chattels, which should 48 VICTOIUA, 188"). 1105 the. Governor ch, 1886. islature of the chapters 1 to s no objection ion. te the Public laration of his /iction thereof luent for any ndred dollars, and attention e appointment 'er, dated 23rd ded that any i statement on 1 to objection. (ling a penalty 1 33 Victoria, be punishable heir operation, tish Columbia made. tion of certain (47 Victoria Let, 1876 " (43 S,'' are hereby paid unto and whomsoever, by be canned over or across the Aloxa.idra Suspension Bridge or the Frnser Uiver, within a .listance of ten miles from the bridge, or carried from Clinton in the direction of ^''"'iri878 the legislature of P.ritish Columbia amended the Cariboo Wagon Road Tolls .\ct, 1870, and established a toll of one cent per pound on all goo.ls ..a.T.e.l from Yale in the direction of Canboo, with the exception of plant an.l mate.-.al tor the con- struction of the Canadian Pacific Railway. • , .i . , « t was objected, h<.wever, that this exemption was only partial that a tax of one cent per pound on all the supplies which would pass over the road to be used in the con tSon of the Canadian Pacific Railway was enormous and unjust, and that ho oTw^s calculated to cause the tendens for that work, then invited to >•-;-';';«-;; than they would otherwise be. For this reason, as well as that given by the Ministei r.f Tii^tipp in 18"() the Act was disallowed. ..,,,,. a .. Inl88 ,for hename reason, the 43rd Victoria, chapter 28 intituled "An Act to amend the 'Cariboo Wagon Tolls Act, 1876,'" now repealed by the Act under ^"" Lri884;:ile^lcrl passed to amend the " Cariboo Waggon Road Tolls Act, 1876" The toll, which was fixed at half a cent per pound, ^.^ ^^^^^^^^^f "P^!" f^T/''^ carHed upon the Cariboo Wagon Road from Yale, in the direction of the oOth Mile Post in the direction of Spence% Bridge or Clinton, and upon goods earned rom Clm on h^ the di ection of Cariboo, and it was provided that no tolls should be lev.ed on supplies or mateHals required for and used in the construction of the Canadian Pacihc Railway, I,,, +i,f. f.nntr-ict,nrs This Act was left to its operation. ^ By te Act of 188.?, ntw under consideration the tolls are abolished, excepting the toll of a half cent per pound leviable, with certain exceptions, on goods carried from Clinton in the directioii of Cariboo, and the exemption in favour of supplies and mate- rials for the Canadian Pacific Railway, is omitted. . ,.,.,„ .l„ As the Canadian Pacific Railway is practically ^^^^^ed, he undersigned thinks the consideration of this Act can be limited to the question of its interference with trade Td commerce, and that question is one which, in his opinion can be tried out in the courts bv any person who is affected by the provisions ot the Act. , , . i «-« _ BeS^ of opinion that the course adopted with reference to the Act of 18 6 re- ferred to should be followed in respect of this Act, he respectfully recommends that it '^ ^ W?tVt£nclTo chapters 9, 13 and 16, not referred to in this report, the under- signed desires to observe that he has made them the subject of separate reports. All of which is respectfully submitted. JNO. S. D. THOMPSON, Minister of Justice. ' •oductions and 36 carried from smanded of, or lements, wheat, :l other agricul- 'actured in this s grown in the n the " Cariboo e of the Act, sary to consider )n of trade and ontained in the . cent for every s, which should ^"« mLSKuM HOG HBITISII COLUMDIA LKdISLATION J BRirrSIT COLUMHIA— 4nTH VrOTORIA, 188G. 4Tn Heshion — 1th Pakliamknt. ■ ' ^ .. ■ ■ ' Liauleaanl. irovunior to Secrdary < if Slate. GOVEKNMENT HoUSE, VICTORIA, B.C., 8th April, 188G. Siii, — T liave the honour to forward herewith certified copies of tlie Acts passed during tlie reci^nt session of tlie le^^islutivM! assembly of this province, and assented to by nio on the (ith instant, together with the report of the honourable Attorney General thereupon. T do not see that any of tlie Acts require comment from me, with the exception that I wish to draw your attention to the clau-ios intrf)duced into all the private Acts, with reference to the employment of Cliinose. Tlios(> clauses exijrcssly .state that "this Act is passed upon the expre-s understanding that th(» company shall not, directly or imhrectly, employ any tJliinesc in or about or concertiing any work or service authorized by this Act or recjuired by the company to be done or performed," and go on to impose penalties for such employmcint, kc. Unwise and extraordinary as such pro visions may appear, I confiiss that they appear to me to be within the competency of tlie provincial legislature. When they appear separately in privfite Acts, it is evident that they are in.sei'ted with the consent of the promoters, and although such clauses might be tiltra vire?. if they had a general and universal application, in the present in- stances they are part and parcel of the contracts mad ebetween the legislature, and those to whose benefit the Acts are supposed to enure, and do not .seem to be illegal. An example of their eH'ect has already been given. The Canada Pacific Railway agreed to construct a branch line of railway from Vancouver to New Westminster on certain terms. When the government subsidy of §.37,000 was voted in tlie House the other day, a clause of the character referierl to above was inserted. On learning this, orders immediately came from the manager of the company to stop all work and prepa- rations on the branch line, unless the time for completion were extended, and unless the company were reimbursed for the difference in cost between White and Chinese labour ! The way in which memVjers of the legislature are influenced on this Chinese question as it is called, is very remarkable. In addition to habitual agitators, there is only a portion of any class in the community which troubles itself in the matter. That of course is the labouring class — all others, shopkeeper.s, tradesmen, merchants, mechanics, farmers, itc, take quite a diflFerent view of it, but it is evident that to secure the few votes thus to be influenced, the representatives of the people are ready to go all lengths. All classes agree to this extent, that it would be far preferable that whites should do the work now done l)y Chinese ; but the whites are not forthcoming, and the work must be done, or the country must suffer, and consequently all not immediately and personally affected, prefer the absolutely necessary presence of Chinese in the province. The Dominion Restric- tion Act is quite enough to prevent the further advent of any number of Chinese, but the awkwardness of the question, with reference to those now in the province, is very patent. Time will solve it, but it will be well if we can escape any such outrage as has latterly disgraced the neighbouring states. I have, (fee, , CLEMENT F. CORNWALL, Lieutenant Governor, i.t^iii..aL-.fa»ftT-. ^'^n IMAGE EVALUATION TEST TARGET (MT-3) 7i V n it uiaken for i^JHliiture, and as your Excellency [T the power of ritish Columbia this report, and Kootenay Lake iiovisions of the the parliament This objection, lis Act by your ,tion. ind Navigation of constructing lear the junction ding, equipping a River, and it I of steamers and it point on the ver, thence down nd its navigable yr is incorporated 92 of the British irticle 10 of that be incorporated icularly affecting aunal as may bo ould necessitate e, the honour to JON, of Justice. 62 VICTORIA, 1889. 1117 BRITISH COLUMHIA— r)2ND VICTORIA, 1889. 3rd Session — Stii LKdisLATUHE. Report oj the J/onourah/n the Minixter of Justire, approved by Ilia Excellency the Governor General in Council on the iiSth June, 1890, Department OF Justice, Ottawa, Slst May, 1890. To J/in Excellency the Governor General in Council : The undersigned has the honour to recommend that the Acts mentioned in the schedule hereto annexed, passed by the legishiture of the province of British Columbia in the session held during the months of January, February, March and April, 1889 — a certified copy of which was received by the Department of the Secretary of State on the 13th day of June, 1889,— be left to their operation. JNO. S. J THOMPSON, Minister of Justice, SCHEDULE I. Chaps. 1 to 17, 19 to 23, 30 to 32, 37 t>j :.9 aaU 41. Report of the Honourable the Minister of Justice, approved by Hia Excellency the Governor General in Council on the 6th July, 1890, Department of Justice, Ottawa, 31st May, loDO. To His Excellency the Governor General in Council : The undersigned has the honour to submit for consideration his report on the follow- ing Acts passed by the legislature of the province of British Columbia in the session of 1889 : n , ^1 Chap. 18. "An Act to amend the law relating to municipalities, and to repeal 51 Vic, cap. 88, intituled ' An Act respecting Municipalities,' in Volume one of the Con- solidated Acts, 1888." The undersigned, in recommending that this Act should be left to its operation, deems it unnecessary to point out at length the many objections which may be taken to the powers which this Act purports to give to municipal councils, inasmuch as in a report bearing even date with this on Quebec legislation, he has dealt fully with the question regarding the same powers, which by provincial legislation, are assumed to be given to the city of Montreal. ^ Chap. 29. "An Act to prevent trespass on inclosed grounds." This Act purports to impose a penalty upon persons trespassing upon inclosed land, and provides machinery for the trial of "such offence. In this respect it touches the criminal law, and it may be at variance with the provisions of the Canadian statute respecting malicious injury to property. The question, however, is one which may, without detriment to the public interest, be left to the courts for decision, and the under- signed therefore recommends that the \ct be left to its operation. Chapter 33. "An Act to amend tii- New Westminster Act, 1888." In his report upon the British Columbia legislation of 1888, the undersigned pointed out dfertain doubtful provisions in the New Weatnnster Act of 1888. Some of the vri*t f 1118 BRITISH COLUMBIA LEGISLATION same objections are applicable to the present Act, and particularly to section 30, which enlarges the city council's power of making by-laws. For the reasons which induced him to recommend that th- original Act should be left to its operation, the undersigned also recommends that this Act be also allowed to go into force. Chapter 34. " An Act to incorporate the Canadian Western Central Railway Company." Section 30 of this Act authorizes this company to issue bills of exchange and promissory notes, a provision which .nay be an infringement upon the legislative authority of parliament, but in view of the Act of the last session of parliament, having reference to such instruments, giving power to companies, under certain restrictions, to issue negotiable instruments, the undersigned recommends that this Act be left to its operation. Chapter 35. "An Act to incorporate the Columbia and Kootenay Railway and Navigation Company." This Act authorizes the company thereby incorporated, to build and operate a line of railway between two points in British Columbia and is so far within the competency of a provincial legislature. It, however, authorizes the company to operate a steamship line to and fro, from a point where the Kootenay River intersects the international boundary line to the Kootenay Lake, and through and throughout it and its navigable tributaries. This latter undertaking is within the spirit, if no'; within the exact letter of section 92, subsection 10 of the British North America Act, which prohibits a pro- vincial legislature from legislating in respect to lines of steamships between the province and any British or foreign country. Nor does the undersigned think that section 18 of the Act, which was inserted in it with the obvious intention of removing any doubts as to its legality, withdraws the objection. The undersigned, however, recommends that the Act be left to its operation. Chapter 36. " An Act to amend the New Westminster Southern Railway Company Act." Under the original Act, chapter 36 of 1887, the company were authorized (sec. 2) to construct a railway from some point near the international boundary to some point on the south bank of the Fraser River, opposite the city of New Westminster. Section 1 of this Act purports to change the northern terminus of the railway, and to fix it on the north bank of the Fraser River, and to give power to construct all neces- sary bridges crossing the line between the terminal points, and it goes on to declare as follows : " but no bridge over a navigable steam shall be constructed, until such construc- tion shall have been approved of by the Governor General in Council." So far as this amendment purports to authorize and empower a provincial railway company to bridge a navigable stream, it is an interference with the powers of parlia- ment, which alone can legalize any interference with, or obstruction to navigation, whether upon rivers or elsewhere. A provincial legislature may authorize a company to build a railway between two points in a province, on a line crossing which there may be a navigable stream, but the parliament of Canada alone can legalize the erection of a bridge across such stream. The undersigned is informed that the Fraser River at the point in question, is navigable, and if this information be correct, clause 1 of the Act in question is ultra viren of the legislature. The Act, however, contains other provisions, which are doubtless of great importance to the company, and, inasmuch as the officers of your Excellency's government, charged with the protection of navigation, will doubtless look after the public interest should any erection be attempted to be made over the river in question, under the provisions of this Act, and as, therefore, no public interest would be subserved by the disallowance of th( whole Act, the undersigned recommends that it be left to its operation. Chapter 40. " An Ar.i to amend the ' Vancouver Incorporation Act, 1886,' and the ' Vancouver Incorporation amendment Act, 1887.' " This Act, among other things, extends the powers of the city council of Vancouver to make bv-laws. 52 VICTORIA, 1889. 1119 til! to section 30, which sons which induced ion, the undersigned n Central Railway Is of exchange and pon the legislative ssion of parliament, tiies, under certain ommends that this Kootenay Railway d and operate a line ;hin the competency operate a steamship ts the international it and its navigable &hin the exact letter lich prohibits a pro- letween the province ik that section 18 of lOving any doubts as r, recommends that n Railway Company 3 authorized (sec. 2) ndary to some point estniinster. i of the railway, and construct ail neces- »oes on to declare as until such construc- ;il." a provincial railway lie powers of parlia- ction to navigation, luthorize a company ing which there may jalize the erection of point in question, is in question is ultra Dvisions, which are the officers of your 1, will doubtless look de over the river in lublic interest would i recommends that tion Act, 1886,' and iouncil of Vancouver The undersigned, in recommending that it be left to its operation, would express his doubts as to the power of a provincial legislature to authorize a municipal council to pass by-laws upon several of the subjects mentioned in the Act. He has, however, dealt more fully with this subject in a report bearing even date herewith upon Quebec legislation for the year 1889. (Sue page 435 mite.) Respectfully submitted. JNO. S. D. THOMPSON, Minister of Justice. 1120 BRITISH COLUMBIA LEGISLATION BRITISH COLUMBIA— 53rd VICTORIA, 1890. 4th Session — 5th Legislature. Report of the Hon. tJie Minister oj Justice approved by His Excellency the Governor General in Council on tlie 21st April, 1891. Department of Justice, Ottawa, 21st March, 1891. To His Excellency the Governor General in Council : The undersigned, having considered the Acts passed by the legislature of the province of British Columbia in the session held in the year 1890. Nos. 1, 2, 4, 6 to 11 13, 15, 17 to 19, 21, 23 to 30, 32, 34 to 40, 43 to 51, 53, 56, 57, 59, to 67, 69 to 77, 79 and 80, which were received by the Honourable the Secretary of State on the 3rd day of July 1890, respectfully recommends that they be left to their operation, and that the Lieutenant Governor of that province be so informed . The undersigned observes that the Acts contained in the printed volume of statutes for the year 1890, certified by the Honourable the Secretary of State as having been re- ceived by him from the government of British Columbia, under the provisions of " The British North America Act," are not chaptered or numbered in consecutive order, there being no Acts in the volume, chaptered or numbered as follows :— 14, 22, 31, 33, 41, 42, 52, 54, 55, 58, and 78. The undersigned understands the explanation to be, that the bills corresponding to the numbers left out, did not pass the legislature. Respectfully submitted. JNO. S. D. THOMPSON, Minister of Justice. Report of the Honourable the Minister of Justice approved by His Excellency the Governor General in Council on the 21st April, 1891. Department OF Justice, Ottawa, 21st March, 1891. To His Excellency the Governor General in Couucil. The undersigned has the honour to report upon the following Acts passed by the legislature of the province of British Columbia at its session in the year 1890, which Acts were received by the Secretary of State on the 3rd day of July 1890, as follows :— Chapters. "An Act for establishing a Juvenile Reformatory." Section 4 of this Act provides that any boy confined in one of the common jails of the province under sentence of imprisonment for any offence may, by warrant signed by the provincial secretary, be transferred from such common jail, to the reformatory established by the Act. The undersigned is of opinion that as to any prisoner convicted under any other authority than thtt of an Act of the provincial legislature, such legislation is rdtra vires of a provincial leginlature. It is for the parliament of Canada alone to decide the character of the punishment to be undergone for a violation of the criminal law, and the legislature cannot authorize its executive officers to interfere with, or alter a sentence, or change the place where it is being undergone, unless the sentence has Ijeen imposed under the authority of the provincial legislature only. If it should be necessary to do so the undersigned can cause the question to be raised, if the removal should be attemp- ted of a prisoner to whom the Act under consideration cannot lawfully be applied, but J 1!!' Iti 53 VICTORIA, 1890. 1121 the Governor ih, 1891. slature of the ,2, 4, 6 to 11 , 69 to 77, 79 he 3rd day of and that the lie of statutes iving been re- ions of " The 6 order, there U, 33, 41, 42, , that the bills / Jusfdce. '.ellency the •ch, 1891. passed by the ir 1890, which , as follows ; — ommon jails of varrant signed le reformatory nder any other lation is ultra lone to decide minal law, and iter a sentence, s Ijeen imposed .ecessary to do )uld be attemp- be applied, but he is confident that the provincial authorities, on this matter being brought to their attention, will cause the section above cited to be amended, so as to make the limitation of the application clear, and thus avoid confusion or mistake, and he recommends that in the meantime the Act be left to its operation. Chapter 5. "An Act to amend the New Westminster Act." This Act has been passed in pursuance of a suggestion contained in the approved report of the undersigned on the New Westminster Act of 1888, dated the 1st day of June, 1889. Chapter 12. "An Act to amend the Game Protection Act." Section 7 of this Act provides in effect that "no one shall at any time purchase or have in his possession with intent to export, or cause to be exported or carried out of the limits of the province, any animals or birds mentioned in the Game Protection Act, in their raw state." The undersigned is inclined to the opinion that the legislation operates directly as a restriction on trade and commerce, and that the Dominion parliament alone, under its general powers of legislation, and under its particular powers in connection with the regulation of trade and commerce, may declare what goods may, or may not be exported from Canada. In pursuance of this authority the Dominion parliament has already legislated in respect to the exportation of game from Canada (See chapter 33, R.S.C., sec. 7.) The Act may, however, be left to its operation, leaving the question as to the con- stitutionality of this provision to be adjudicated upon, should occasion arise to have it tested, and the undersigned recommends accordingly. Chapter 1 6. " An Act to incorporate the Columbia and Kootenay Railway and Navigation Company." The undersigned begs to call attention to section 12 of this Act, which authorizes the company to maintain a line for the purpose of carrying freight and passengers to and fro from that point on Kootenay River, where the southern boundary line of British Columbia intersects the said river, thence down the said river to Kootenay Lake. This provision is conclusive evidence that the objects of the company, notwithstand- ing section 20 of the Act, are not provincial, but international. The parliament of Canada, however, at its last session (53 Vict., chapter 87) de- clared the railway to be a work for the general advantage of Canada, and otherwise con- firmed the company's charter. The Act may therefore be left to its operation. The undersigned recommends the same accordingly. Chapter 20. " An Act to incorporate the New Westminster Electric Light and Motor Power Company." This is an Act incorporating certain persons as a company, for the purposes of erecting in the city of New Westminster, " electric light and other apparatus connected therewith, and their appurtenances and other instruments used in connection with the business of the electric light and motor power." Section 27 provides, that in the event of "any Chinese being employed by the com- pany, th^ company shall be liable upon summary conviction to a penalty not exceeding twenty-five dollars nor less than ten dollars for every Chinese employed," and that in the event of ' any Chinese being employed by any of the company's contractors or sub- contractor, any such contractor or sub-contractor shall be liable upon summary convic- tion, to a penalty not exceeding twenty five dollars, ntir less than tea dollars for every Chinese employed.' Also, that ' any director or officer of the company, who causes or procures any Chinese to be employed, or permits or connives at such employment, shall be liable to the like penalties.' " The validity of these provisions seems open to question, on the ground that it is for the parliament of Canada to legislate respecting aliens, and, therefore, to prescribe their rights and disabilities. The constitutionality of the section referred to, may, however, be left to the courts to decide, should any person be proceeded against under its provisons. The undersigned, therefore, recomc^ndt; thtt the Act be left to its operation. i ' »«M;-^C*f*-T* f.'VfrTi:-,;a>J!- r r i" 1122 BRITISH COLUMBIA LEGISLATION Chapter 68 " An Act to regulate the clearing of rivers and streams." This Act authorizes the Lieutenant Governor in Council to empower any person to clear and remove obstructions from any lake, river, creek or stream, and to make the same fit for rafting and driving logs timber and lumber thereon. It makes provision for compensation to the owners of private property for all damage to lands taken or injuriously afifected. The Act, as a whole would, seem to be intended to apply to all rivers in British Columbia, irrespective of the ownership of such rivers. In the view of the undersigned, the interest of Canada in the rivers in question has not been duly protected. It Is claimed by Canada that, under " The British North America Act ' (3rd schedule), the beds of all rivers ungranted at the time of the passing of the Act, are the property of Canada, and that a local legislature may not in any way interfere with such property. The Act may, however, have operation in regard to such rivers, if any, as have, previously to the union of British Columbia with Canada, been granted to private individuals, and to that extent is intra vires of the legislature. The undersigned, therefore, reserves to the government of Canada the right, at any time hereafter, to deal in any way it may think fit with all the rivers of British Columbia which are the property of the Crown, including all rivers in the Crown lands of the province, as well as all rivers within the railway belt in British Columbia, granted to Canada under the Act of union. With this reservation the undersigned recommends that the Act be left to its operation. Respectfully submitted. JNO. S. D. THOMPSON, Minister oj Justice. 54 VICTORIA, 1891. 1123 my person to to make the )perty for all ;rs in British question has Jritish North )f the passing ot in any way egard to such Canada, been ilature. ) right, at any tish Columbia lands of the ia, granted to be left to its / Justice. BRITISH COLUMBIA— 54th VICTORIA, 1891. 1st Session — 6th Legislate re. Copy of resohuions passed nt public meeting held at Nelson, B.C., on 28th May, 1891, I'espectinff chapter 58. Whereas, it is currently reported that interested parties are exerting their influence witli the Dominion government to procure the disallowance of chapter 58 intituled "The Nelson and Fort Sheppard Railway Act, 1891 " ; and Whereas, the southern portion of Kootenay district — one of the most promising mineral regions in the entire Dominion — is retarded in its development by lack of a transportation route that can be operated during the winter , as well as during the summer ; and Whereas, for want of all the year transporation facilities, the owners of our mines are compelled not only to pay exhorbitant, if not prohibitive, freight rates on the output of their mines, but are unable to get their output to a market for 6 months in the year ; and Whereas, the Canadian Pacific Railway Company is either unable to discover a practicable route for a railway from the Kootenay Lake country to its main line, or unwilling to build a railway if a route has been found ; and Whereas, the people of the western portion of the province have been allowed to construct railways that give them competitive transportation facilities, as well as con- nection with the" railway systems of the United States, as have also the people of Alberta, Manitoba, Ontario, Quebec and the maritime provinces ; and Whereas, the bill chartering the Nelson and Fort Sheppard Railway Co npany was passed by the legislative assembly by a vote of 23 yeas to 4 nays, notwithstanding the active opposition of the Canadian Pacific company, who appeared by counsel before the railway committee of the assembly ; Therefore, be it Resolved, that the people of the Southern Kootenay earnestly protest against the disallowance of the "Nelson and Fort Sheppard Railway Act, 1891," by the Dominion government, deeming such action, if it occurs, to be not only an injustice to the people of the district, and an interference with provincial rights, but a monstrously unfair pro- position to make an entire section of country a preserve, for the benefit of a single rail- way corporation ; and further, Resolved, that we assert the right of the people of the district to construct railways in any direction which their interests may require, and that we declare our fixed deter- mination to maintain such right at any and all cost ; and further. Resolved, that the provincial government be requested to make an earnest protest against any such disahowance, and to make the most strenuous efforts to urge upon the . dominion government the great injastice, and the bad financial policy of such action ; and further, Rf>solved, that a copy of these re.solutions be forwarded to the Honourable John Robson, Premier of the province, and a copy also sent to Mr. Mara, our member in the Dominion House of Commons, with the request that he use his influence against the disallowance of the Act and lay these resolutions before Sir John A. Macdonald, Pre- mier of Canada, and Minister of Railways and Canals. JOHN HOUSTON, Secy, of Meeting. I 1124 BRITISH COLUMBIA LEGISLATION Beport of the Hon. the Minister of Justice, approved by His Excellency the Governor '^ '' General in Council, on the >ilst July, 1891. Department of Justice, Ottawa, 21st July, 1891. To His Excellency the Governor General in Council : The undemgned has the honour to report upon an Act passed ^^ the last session of the legislature of British Columbia intituled : " An Act to incorporate the Nelson and ^^^^Ss^lSL^Zntlde that it .ould be for the benefit of the company, and iX puSnterest, that the pleasure of your Excellency in regard to said Act, shoulS be made known at as early a date as possible. There does not appear to be any reason wh^the Act in question should not be left to its operation, and the undersigned, therefore, recommends the same accordingly. Respectfully submitted. JNO. S. D. THOMPSON, Minister of Justice. Beport of the Hon. the Minister of Justice, aj>}yroved hy His Excellency the Governor ^ " General in Council, on the 11th May, 1S92. Department of Justice, Ottawa, 10th May, 1892. To his Excellency the Governor General in Council : Z7Z:Z"^^^Trio'^'t .'o^Mo' to 57.59 U, f. be.it to thei. operation. The remaining Acts have been reserved for a separate report. JNO S. D. THOMPSON, Minister of Justice. Bevort of the Hon. the Minister of Justice, approved by his Excellency the Governor ^^ ' in Council on the 11th May, 1892. Department of Justice, Ottawa, 10th May, 1892. To His Excellency the Governor General in Council. The undersigned has the honour to report on the Acts of the legislature of British Columbia passed in the year 1891, certified copies of which Acts were received by the '""cStlT •' In A:t'for't5fe*^'i;rotecUon of Cattle." This Ac. purports to subject ,.„Uwav comoanies under the jurisdiction of the parliament of Canada to the obligations Ini rSuTrZer;f The ProviLial Fence Act, thereby extending the obligations of such companies beyond those imposed upon them by the Railways Act of Canada, companies oeyon ^^ ^p^^^ j^ ^^^^^^^ ^^^ ^^^ ^^.^^ new obligations upon these railway companies is within the powers of a provincial legislature, but as nnnP of the companies likely to be affected by it have called it m question the under- rred dies noTcZider that any public interest would suffer by permitting it to be left to its operation, and he recommer>ds accordingly. 54 VICTORIA, 1891. 1125 the Governor ruly, 1891. e last session of the Nelson and >£ the company, rd to said 'Act, ppear to be any he undersigned. PSON, c of Justice. I the Governor May, 1892. Bgislatureof the ecommends that 9 their operation. PSON, r of Justice. ncy the Governor L May, 1892. islature of British I received by the iirports to subject to the obligations bligations of such Canada. g new obligations egislature, but as estion, the under- irmitting it to be Horses Chapter 6. " An Act to prevent the spread of Contagious Diseases amon}^ and other domestic animals." Section 14 of this Act authorizes the Lieutenant-Governor in Council to prohibit the iuif ortation of diseased animals into the province. The undersigned considers that this provision is an infringement on the exclusive powers of the parliament of Canada to legislate in respect of quarantine, and may also be an infringement upon its exclusive right to legislate in respect to trade and commerce. The object of the whole Act is eminently beneficial, and, in the view of the undersigned it may safely be left to its operation, the Lieutenant-Governor of the province, however, being' informed that, in the viesvofyoor Excellency's advisers, he cannot legally exercise th-" special power purported to be confened upon him by the section referred to. The undersigned respectfully recommends accordingly. Chapter 14. — "An Act to further amend the 'Jurors' Act.'" Tlie sections of this Act, 8 to 15 inclusive, deal with the subject of juries in con- nection with the trial of criminal cases. In the view of the undersigned, those provisions have to do exclusively with procedure in criminal matters, as distinguished from the constitution of courts of criminal jurisdiction, and are therefore beyond the provincial jurisdiction. Your Excellency's government, however, is now promoting Icislation in parliament in relation to criminal law, containing substantially the same provisions as those referred to, and, as no conflict of legislation is likely to arise in prac- tice, the undersigned, having in view the other beneficial provisions of the Act in question, respectfully recommends that the Act be left to its operation. Chapter 29. — "An Act to consolidate and amend the 'Municipal Acts.'" In recommending that this Act be left to its operation, the undersigned does not assent to the proposition that a provincial legislature has authority to give a municipal council all the powers specified in section 96 of the Act. Any (juestions, however, as to the sufficiency of by-laws made in pursuance of this authority may be fairly raised in the courts, and the undersigned would, therefore, recommend that the Act be left to its operation. Chapter 58.— " An Act to incorporate the Nelson and Port Sheppard Railway Company." The undersigned has dealt with this Act in a separate report dated 21st July, 1891, which report has already been approved by your Excellency. Respectfully submitted. JNO. S. D. THOMPSON, Minister o/Jiiatice, 71 1126 BRITISH COLUMBIA LEGISLATION 1 imiTISH COLUMBIA— 55th VICTORIA, 1892. 2nd Session — 6th Lecislature. Petition from the Municipal Councif of the District of Surrey, B.C., re Chapter (JO. To Ilia E.vcellency the Governor General of Canada in Council : The humble petition of the municipal council of the district municipality of Surrey, in the province of British Columbia, ahoweth : — 1. That by the British Columbia Municipal Act, 1889, section 98, municipal councils were empowered to construct works for the deepening of streams, ifec, and draining of certain localities, and to charge the cost upon the owners of lands intended to be benefited by such works, conditionally upon receipt of a petition to thu u eflfect, signed by a majority of such landowners. 2. That on the 29th May, 1889, a petition was presented to the municipal council of Surrey, praying for the draining and dyking of certain lands in the valley of the Serpentine River. 3. That on the 10th August, 1889, a by-law was passed by the said municipal council, for the dykinij and draining of certain lands mentioned in a schedule attached to said by-law, notwithstanding the facts that : — (rt.) The petition aforesaid did not contain the names of a majority of the owners of of lands mentioned in the said schedule: — (b.) The Municipal Act then in force, did not authorize dyking. 4. That the legislative assembly of British Cblumbia did on the 26th April, 1890, pass an Act to amend the Municipal Act 1889 and : — (a ) Added the word " dyking " to the word " draining " whenever it occurs in section 98 of the said Act : — (6.) Made the same amendments retroactive so far as relates to the raising of moneys to defray the costs of works already constructed under a by-law, before the pas- sing of the Act of 1889 (6th April 1889 and therefore not applicable to Surrey.) (c.) And authorized municipalities, to raise money on debentures to provide funds for payment of cost of such works. 5. That in November, 1890, another by-law was passed by the municipal council of Surrey, amending the beforementi(med by-law of 1889, and authorizing the issue of de- bentures amounting to $25,000, upon the credit of the whole municipality, but charging the repayment of the same and the payment of interest, upon the same lands as those mentioned and described in the schedule of the said by-law of 1889. 6. That the legislative assembly of British Columbia in the Municipal Act 1891, empowered municipal councils to pass by-laws with the consent of the electors, to redeem and validate debentures and securities of doubtful validity, issued at any time prior to the passing of that Act. 7. That in January, 1892, the Surrey dyking by-law 1890 above mentioned, was quashed in the Supreme Court of British Columbia, on the suit of E. M. Wiltshire, representing the owners of lands mentioned in the schedule of the said by-law, for rea- sons stated in the judgment delivered by the Hon. Mr. Justice Drake, a copy of which judgment accompanies this petition. 8. Tiiat on the 23rd April, 1892, the legislative assembly of British Columbia passed a private Act, entitled, " The Surrey Dyking Act," which, notwithstanding that the said by-law was quashed by the Supreme Court of British Columbia, validates or claims to validate the debentures " purporting " to be issued under the said by-law ; and charges the principal and interest partly to the lands described in the schedule before mentioned, and partly to the whole municipality. A copy of the said Act accompanies this petition and is marked " B." \ •e Chapter 00. municipality of unicipal councils and draining of d to be benefited ed by a majority municipal council e valley of the said municipal ;hedule attached of the owners of 16th April, 1890, ver it occurs in bo the raising of f/, before the pas- o Surrey.) to provide funds micipal council of g the issue of de- iity, but charging ue lands as those nicipal Act 1891, lectors, to redeem any time prior to 'e mentioned, was E. M. Wiltshire, id by-law, for rea- !, a copy of which Briti-ih Columbia withstanding that nbia, validates or r the said by-law ; d in the schedule y of the said Act 55 VICTORIA, 1892. 1127 9. That the before mentioned lawless Acts of the municipal council of Surrey, in past years, have been contrary to the wishes of the electors. 10. That on the 14th May, 1892, the reeve of Surrey, by virtue of the British Columbia Municipal Act, 1892, section 21, subseciicm (/>), published a message to the municipal council, pointing out grave doubts of the constitutionality of the siiid Surrey Dyking Act, and the great injury done to the municipality and to all Her Majesty's faithful subjects l)y the said retrospective and r troactive l-jgislation pissed by the legislative assembly of British Columbia. A copy of which message accompanies this petition. Your petitioners therefore humbly pray that your Excellency will be pleased to disallow and veto, or suspend awaiting an expression of Her Majesty's pleasure, the said Surrey Dyking Act, 1892, passed by the legislative assembly of British Columbia, for the following reasons, amongst others ; — 1. That retroactive legislation of this kind is dangerous, and not to the public interes!. » o, /-i 2. That the Act virtually upsets a decision of the Supreme Court, obtained at areat cost by a section of the ratepayers of Surrey, and deprives them of the protection which, in otiier colonies, is afforded by the courts of law. 3. That the security of public and private rights in property is thereby destroyed. 4. That the said Act in the preamble states that the Surrey Dyking By-law was quashed by the Supreme Court " for the omission by the said corporation to > aus6 the same to be advertised, and for other alleged irregularities," which is untrue, the real reasons being given by the Hon. Mr. Justice Drake in the publishod judgment ; and moreover, your p.'titioners are of the opinion that Her Majesty's judges in the Supreme Court d ■ not bae of Surrey. 65 VICTORIA, 1892. 1129 Deputy Altornni/ (Icneial to tli<; llo nun ruble thf MiniHter of Just ire. .Vttoiinkv (Jkni;hai,'h Okkick, Victoiua, B.C., 6th .January, 189M. Re Surrey Dyking Act, 1892 (chapter 60). Sir, — Keferring again to your (;ominunication of the .'hd Novonil)er ult., I luivo the honour, by direction, to place before you the following facts, which may be of ser- vice to you in the consideration of the course to be adopted in reference to the petition of the municipal council of Surrey, praying for the; disallowance of the above Act. Some of the more prominent facts connected with the matter are as follows ;, — The Surrey council in 1889, at the request of persons interested in reclaiming certain lands in the municipality, made provisions by a by-law for reclaiming these lands, and to carry out the purposes of the by-law, borrowed upon the ordinary revenue of the municipality for that year, the sum of $12,000, which said sum was to have been paid out of the said ordinary revenue. The contract was then let to dyke the lands, but the work was performed by the contractor in so ursatisfactory a manner, that, in order to save the work done from destruction, anci obtain the benefit of the money expended, it became necessary to raise a further sum of $8,000 without delay. This sum of $8,000, like the former sum of $12,000, was borrowed by the then council from the liank of Montreal upon the ordinary revenue of the municipality, and it should have been repaid out of the said ordinary I'evenue. So far the transaction is one (juite within the powers of the corporation, and the bank seems to have been of the same opinion, and avanced the money borrowed by the corporation in perfect good faith. Afterwards, in order to complete the works, reduce the rate of interest, ard spread the repayment of the money over a term of years, the impeached by-law was passed. The manager of the bank, relying on the legality of the first advances and assur- ances of the council, did not insist, as he might have done, on the immediate repayment of the sum of $20,000 so advanced as aforesaid, but, in order to assist the corporation, accepted the debentures issued under the impeached by-law, in satisfaction of the prior loan, and also advanced, upon the same delienturos, the further sum of $5,000. Soon after the debentures were issued, some of the residents of the municipality conceived the idea of contesting the by-law, in order that they, having got the benefit to be derived from the borrowing of the money and construction of the dyke, might be relieved from the repayment of the moneys advanced by the bank. The facts above referred to will be found set out in the petition of Mr, G. D. Brymner to the House at its last session, herewith inclosed. Upon the application to quash the by-law before Mr. Justice Drake, the discussion was of course limited to the technical validity of the by-law itself, without reference to the facts above set out. The real merits were not discussed before him, or any justice. A careful perusal of his judgment will, I think, show that the chief grounds upon which the by-law was quashed, was the want of publication. I am tilso informed that this is a matter upon which most stress was laid in the argument, and the one that seemed to most influence the mind of the judge, and it is no doubt fatal. Instead of instituting legal proceeding to recover the moneys, the bank thought fit to apply for a private bill to validate the debentures, by which courae the expense of prolonged litigation was avoided, advantageously to all concerned. A notice was accordingly inserted in the Gazette and the local press, of the inten- tion to apply, and in due course a petition, of which I inclose a copy, was piesented for a private bill for the purposes aforesaid. This petition was supported by another also inclosed, which last named petition was signed by a large majority of the largest and most influential land owners in the municipality, whose chief motive, all the facts of the case being known to them, was to save the municipality from the disgrace which would attach to the repudiation of a just obligation, and the consequent deterioration of its credit. -« I 1130 UUITIHII COLUMBIA LtOIHLATION Pending tho meetiuy of thn Houro, n now council was »»!ect."8 in tlio cloctioa and <|iuilitiniti()n of Hointt of tli<> candidatoM, wIki worn in favour of nu'Otitig the (>i>ligationH of t\w t'ormci' ('iiurii'il, u majority hostiio to such u course and in favour (»f repudiation, was Hocured. Counter (Xftition."., iid'nwith iiu'Ioncd, were pmsiuitcd by tlio last iuinii'r-e licanl on The Itiil, afl ■fully anionded. >1(^ wa'i proveii, (ctiusr with tho lly ('nj;{a^'ed for Tond rna(lin>{ of ion as tho coin- to rpjiuftpf.*:Tt'.tiSC^»^*'.-\>- i^ \ i 1132 BRITISH COLUMBIA LKGISLATION by-laws autliorizing the borrowing thereof, but delayed such action to enable the council to complete the passage of the by-law hereinbefore mentioned, authorizing the issue of debentures providing for the whole of the said indebtedness : That the said last-mentioned by-law was accordingly passed by the said council ard published, and the debentures thereby authorized were issued and delivered by your said petitioner for the Bank of Montreal, upon account, and for the purpose of wiping out the indebtedness then existing, as aforesaid : That the said by-law was quashed by a ji dge of the Supreme Court of British Columbia for a defect in the publication thereof, and for other alleged irregularities : That before the quashing of the said bj'-law the debentures thereby authorized to be issued had been made and issued and applied as aforesaid. Your petitioner says that, the acts of the said council, in borrowing the said money from the Bank of Montreal, and in expending the same, and in seeking to provide for the said indebtedness by authorizing the issue of the said debentures, were done publicly, and were well known to the ratepayers because of the same having been discussed and sanctioned by the council at public meetings thereof, and by the publica- tion of the said by-laws, as aforesaid, and by the default of the contractors in not perform! ig their contract for the construction of the said works, which was the subject of much and frequent d-^^oussion in the council, and among the ratepayers. Moreover, Oiie of l. a principal objectors to the relief which your petition asks, being an accountant, was employed by the said council to prepare the schedule to the said by-law, which your petitioner hereby asks to have confirmed. Your petitioner states that, notwithstanding what is set forth in the last preceding paragraph no objection was mrde to the loaning by the Bank of Montreal of the said moneys, or any part thereof, nor was any notice given to the Bank of Montreal or to you petitioner objecting to any such loan, nor was any objection made to the said council in relation thereto. Your petitioner submits that, under the circumstances, it would be most inequit- able and unjust that the corporation of the district of Surrey, who received the said moneys and expended the same, and the persons benefited by such expenditure should, notwithstanding, be allowed to repudiate their obligations to repay the same. Your petitioner, therefore, humbly prays that your honourable House will be pleased to pass an Act to make the debentures, issued as aforesaid, a good and valid security for the moneys advanced thereon, and to pr vide for the payment of the interest and principal of the said deben Aires. And your petitioner, as in duty bound, will ever pray. GEO. D. BRYMNER, Manage?; Bank of Montreal, New Westminster. Petition of Ratepayers oj Corporation oj" District oj" Surrey. To the Honourable the Speaker and Members of the Legislative Assembly of t/i^ Province of British Columbia : The petition of the undersigned, ratepayers of the corporation of the district of Surrey, humbly showeth : — 1. That your petitioners, on the 10th day of August, A.D. 1889, passed a by-law to provide for dyking and draining part of the lands situated within the municipality. 2. That your petitioners aftersvards in the month of November, A.D. 1890, passed another by-law, to provide means for obtaining money to carry out the work contempla- ted by the by-law passed in August, 1889, and some further necessary improvements. 3. That your petitioners, believing that the by-law passed as aforesaid, in Nov- ember, 1890, was a good and valid by-law, obtained from the Bank of Montreal the sum of $25,000.01, and issued debentures for tiie said sum payable in twenty years, and bearing interest at the rale of six per cent per annum. tMfa^l 55 VICTORIA, 1892. 1133 ion to enable the led, authorizing the ihe said council and 1 delivered by your ) purpose of wiping ne Court of British ed irregularities : ereby authorized to nng the said money sking to provide for entures, were done same having been and by the publica- ! contractors in not lich was the subject payers. your petition asks, the schedule to the in the last preceding Montreal of the said k of Montreal or to n made to the said uld be most inequit- 'ho received the said expenditure should, the same. able House will be id, a good and valid the payment of the rMNER, ew Wentmitister. turret/. iblyqfthe Province of ion of the district of 1889, passed a by-law ihin the municipality, ar, A.D. 1890, passed ■j the work contempla- lessary improvements, as aforesaid, in Nov- : of Montreal the sum in twenty years, and 4. That the said bank, upon the security of the said by-law, and tho good standing and credit of the municipality of the district of Surrey, advanced the said sum in good faith and upon reasonable terms. 5. That the said by-law, so pa«sed in November, 1890, as aforesaid, has been de- clared by the Supreme Court of British Columbia to bo invalid, and by an order of the said court, the same has been quashed for want of proper advertising, and other defects. 6. That your petitioners are justly and truly indebted to the said Bank in the sum aforesaid, with the interest thereon, but in consequence of the said by-law having been quashed as aforesaid, your petitioners are unable lawfully to meet their just and legitimate obligations. 7. That your petitioners are desirous of meeting their legitimate obligations, and maintaining the credit and honour of the municipality aud the good faith and reputa- tion of the inhabitants thereof. 8. Tliat your petitioners, while admitting their liability to the said bank, submit that the payment of the principal and interest should be borne by the persons and lands intended to be benefited by the expenditure of the said sum so borrowed. Your petitioners, therefore, humbly pray that your honourable House will be pleased to grant leave to introduce and pass an Act, to make the debentures so issued by your petitioners as aforesaid a good and valid se;-- • rity for the moneys advanced by the said Bank, and the interest thereon, and to er.i'Ae your petitioners to provide means for paying the interest on the said debenture ;, and the principal sum when the same shall become due, and for levying a rate upon the persons for whose benefit the dyke was constructed. • British Columbia Mills, Timber AND Trading Co., Royal City Branch, John Hkndky, General Manager, And 31 others. [A similar petition, signed by Johann Wulffsohn and 23 others.] Petition of Psieimyers and Land Owners iipon the Serpentiae River, (B.C.) To the Honourable the Speaker and the Members of the Legislative Assembly of the Pro- vi.'ce of Britic\ Columbia : The humbli petition of the undersigned ratepayeis and land-owners upon the Ser- pentine River, vbo were proposed to be assessed under the Surrey Dyking By-Lav/, 1890, showeth :— That your petitioners view with alarm a notice in tho British Columbia Gazette, dated the 13th day of January, 1892, of an application to be made lo your honourable House • for a private bill to validate the debentures issued by the corporation of the district of Surrey, to j)rovide for the payment of the interest thereon, and a sinking fund for their redemption," which notice was first published in the said Gazette on the 14th day of January, 1892, and in the Daily Cohunbian and The Ledger, two local newspapers, on the :^2nd day of January, 1892. That as your honourable House meets on the 28th day of January, 1892, and the last day for receiving petitions for private bills is Thursday, the 18th day of February, 1892, very little time is given to your petitioners to protect their interests, the latter date being five weeks from the first notice in the Gazette, and only four weeks from its first publication in the local papers. That the wording of the said notice is false, no debentures ever having been issued by the corporation of Surrey. Tiiat certain so-called dobenture.s, now we believe in the custody of the Bank of Montreal, are not debentures of the corporation of the district of Surrey, inasmuch, as : — 1134 BRITISH COLUMBIA LK0I8LATI0N (1.) The by-law under which it was proposed to iasue debentures was never sub- mitted to the ratepayers of Surrey for their approval ; (2.) The said by-law was quashed by the Supreme Court for that reason, amongst others ; (3.) The said so-called debentures were not signed by the reeve of the municipality of Surrey, but by Mr. James Punch, after he had ceased to be reeve of Surrey (Mr. Henry T. Thrift, or other person, being then reeve of Surrey) and after the council of the said municipality had refused to authorize their issue. That the f^aid municipal council of Surrey, on the 18th day of January, 1892, by resolution, repudiated the said so-called Vbentures, or any claim uiider them, and respectfully requested your honourable House not to entertain the .said bill, or any legislation of a like nature. That whereas, under the " Municipalities Act," municipal councils are empowered to tax lands fo local improvements, subject to the consent of a majority of the land- owners, it wouU be a hardship for your honourable House to pa.ss a private Act which would raise municipal taxes contrary to the legislative decision of the municipal council, and al.so would virtually mortgage lands without the consent of their owners. That your petitioners have reaped no benefit by the dyking of the Serpentine River, the works being partially destroyed on account of bad construction or other reasons. That your petitioners believe the said private bill is for the relief of the Bank of Montreal, and to condone the negligence of its officers ; your said petitioners being guided hereby by the judgment of the Supremo Court, which states, in reply to the pleadings of the bank's counsel : — " A person lending money on debentures is in no better position than a mortgagee lending money on a worthless security. He is bound to s^ee that the debentures are properly issued, and that the proceedings are all regular and in order. If he does not, he takes the risk. He c^innot say that because the corporation did not know their duty, he is free from blame, and ought to be protected ; he has no one to blame but himself." Your petitioners, therefore, beg your honourable House to reject the said bill, and any proposed legisbition of a like nature, and they will ever pray, as in duty bound, etc., etc. WALTER J. WALKER, and 36 others. Report of the Hon. the Minister of Justice, approved by His E.vcellency the Governor General in Council on the l^th July, 1892. Department of Justice, Ottawa, 2nd July, 1892. To His E.wellency the Governor General in CouncU : The undersigned has the honour to state tha^ reports have been made to him that^ it would be in the public interests, if the view of y> ur Excellency in respect to an Act passed at the last session (1892) of the British Columbia I^egislature, No. 74, intituled : " An Act to authorize the granting of a certain land subsidy for and in aid of the Nelson and Fort Sheppard Railway were immediately declared. The undersigned has carefully examined tbs Act in question and has found nothing therein calling for the exercise of any powers vested in your Excellency in respect thereto, and he recommends that the same be left to its operation. Respectfully submitted. JNO. S: D. THOMPSON, Minister of Justice. was never sub- eason, amongst he municipality reeve of Surrey rrey) and after heir issue, luary, 1892, by iider them, and aid bill, or any are empowered ity of the land- vate Act which inicipal council, trners. the Serpentine uction or other of the Bank of etitioners being in reply to the han a mortgagee > debentures are If he does not, know their duty, me but himself." bhe said bill, and in duty bound, d 36 others. y the Governor . July, 1892. made to him that respect to an Act 1^0. 74, intituled : md in aid of the las found nothing lency in respect IPSON, !er o/ Justice. Report of tlie Hon. the Minister of Justice, approved by His Excellency the Governor General irt Council on the 12th June, 1S!)3. Department of Justice, Ottawa, 8th May, 1893. To His Excellency the Governor Genera/, in Council : The undersigned has the honour to report that he has examined the Acts passed by the legislature of the province of British Columbia in the fifty-fifth year of Her Majesty's reign (1892), chapters 1 to 19, 21 to 32, 34 to 47, 49 to 59, 60, 61 to 67, received by the Secretary of State on the 30th day of o'une, 1892, and he is of opinion that they are unobjectionable and may be left to their operation. Respectfully submitted. J. ALDRIC OUIMET, Acting Minister of Justice. Report of the Hon. the Minister of Justice, approved by His Excellency the Governor General in Council on the 12th June, 1893. Department of Justice, Ottawa, 18th May, 1893. To His Excellency the Governor General in Council : The undersigned has the honour to report upon the following Acts of the Legis- lature of the province of British Columbia passed in the fifty-fifth year of Her Majesty's reign (1892), certified copies of which Acts were received by the Secretary of State on the thirtieth day of June, 1892. Chap. 20. — " An Act to amend and consolidate the Acts for the protection of certain Animals, Birds and Fishes." Section 8 of this Act provides that no person shall purchase or have in his posses- sion with intent to export, or cause to be exported out of the limits of the province, any portion of the animals or birds mentioned in the Act, in their raw state. The undersigned has doubts as to whether a provincial legislature has power to prohibit the export of any articles which may be produced in the province, but as that question may, without inconvenience, be raised in a court having authority to deal with it, and as the provisions of the Act, as a whole, are for the public benefit, the undersigned recommends that the Act be left to its operation. Chap. 33.—" The Municipal Act of 1892." In reccmmending that this Act be left to its operation, the undersigned must not be understood as indicating that all the powers and authority which by it are conferred upon municipal institutions in respect to their power of passing by-laws, is within the legislative competency of the provincial legislature. Chap. 48. — "An Act to incorporate the Canadian Northern Railway." The preamble of this Act recites that a petition had been presented for the incor- poration of a company, for the purpose of constructing and operating a railway, from a point Oil the eastern boundary of the province to the northern terminus of the Esqui- :;ialt and Nanaimo Railway ; and section 1 6 of the Act authorizes the construction of a railway from some convenient point near the eastern boundary of the province, to the northern terminus of such railway. It would appear to the undersigned that a provincial legislature has not power to incorporate a company of this character, inasmuch as it is, in effect, a line of railway between two provinces. The question is one which, should it arise, may conveniently be left for judicial decision, and the undersigned respectfully recommends that the Act be left to its operation. Chap. 60. — " An Act relating to certain Public Works in the District of Surrey." i ;. '7' Kjf'n,- Awwss'" 1186 BRITISH COLUMBIA LEGISLATION This is an Act confirming a certain by-law, passed by the corporation of the distri^ct of Surrey aTtht^ing the borrowing of certain money for the purpose of dykmg the marsh lands in the district petitioned your Excellency to against pubhc -tejf • .^ undoubtedly within the competency of the provincial thrrightB of prfvate individuals, ^nd that the Act in question was not on the whole a propef one to^ pass. The undersigned, therefore, recommends that it be left to its operation. t'espectfully submitted. J. ALDRIC OUIMET. Acting Minister of Justice. El 56 vicToniA, 1893. 1137 of the district of dyking the Excellency to hts are thereby dangerous and the provincial face, are incon- ndersigned con- therewith, that legislature with on the whole a , be left to its of Justice. BRITISH COLUMBIA— 51JTH VICTORIA, 1893. 3rd Session— 6tu Lkoislature. Petition from inhabitants of Province oj" British Columbia, j))'ayiug for the disaUoi ranee of Chapter JJ. To the Eight Honourable Sir Frederick Arthur Stanley, G.C.B., Earl of Derby, Btiroi* Stanley if Preston, (Tovernor General of Canada, etc., etc., etc., and to His U.ccellency the (jovernor General in Council. May it please Your Excellency : , ' The petition of the undersigned people of British Columbia humbly showeth : That all rural districts, without regard to their political leanings, are crying out for larger appropriations for work of development ; That the estimates submitted to the legislature at its last session show revenue and expenditure as follows: — Receipts (in round numbers) from : Dominion subsidies $242,000 Land sales 175,000 Timber and mining revenue 97,000 Miscellaneous, including interest and reimbursements. . . . 122,000 i Taxes, and charges in nature of taxes 424,000 Total provincial revenue , . . $1,060,000 And Expenditures (in round numbers) for: Charges of government and maintenance, other than works of development , |1,011,000 Surveys 50,000 Roads, streets, bridges and wharfs 215,000 Total estimated expenditure $1,276,000 Thus showing a deficit of $216,000 to be made up from borrowed money, in order to carry on the ordinary work of the country. And the petition of the undersigned further showeth : That with full knowledge of the facts above set forth, and while protesting its inability to meet the demands of all sections of the province for larger expenditures on works of development, the government has, by an Act entitled " An Act to provide for the erection of new buildings for the accommodation of the Provincial Legislature and the Public Departments," taken power to borrow the sum of six hundred thousand dollars to meet the first estimate of the cost of said buildings : That the present public buildings could, with small additions, be made to serve the purposes of the province for many years to come. That the proposed expenditure cannot be justified upon any ground of necessity or expediency, and that it will involve an addition to the debt of the province which will seriously cuitail its ability to provide for necessary works of development. That the government has, further, promised consideration to a demand made upon the province for financial aid, by the promoters of a new trans-continental railway, to be called the British Pacific Railway, and has, by a government Act, extended the time limit of the charter of said railway, pending consideration of said demand, the promo- ters asserting that said railway cannot be constructed without such aid. r 1138 BRITISH COLUMBIA LEGISLATION I I i I That said demand is for a guarantee of interest, at four per cent per annum, upon bonds of the said railway, to the amount of $6,000,000. And the petition of the undersigned further showeth : That, owing to the rapid increase in the papulation of certain parts of British Columbia since the opening of the Canadian Pf jific Railway, the legislative assfjmbly of the province has not been, for many years, representative of the people of the pro- vince. That the said assembly is non-representative to an extent entirely subversive of the principle of responsible government, as the subjoined statements from the returns of the last general election will show. The mainland, with 9,025 registered voters, returned 17 members: The island, with 6,535 registered voters, returned 16 members ; The province is divided into 18 constituencies, with a total registered vote of 15,560. Of these voters 12,691 are registered in seven constituencies, which elect 16 members, and the remaining 2,869 voters are registered in eleven constituencies, which elect 17 members ; At the last general election, the seven constituencies registering 12,691 voters leturned only four members as supporters of the government, while eleven small constituencies, having 2,869 voters, returned sixteen government supporters, and one of the four government supporters elected by a large constituency having resigned before the meeting of the House, his place was supplied by an opponent of the government. At a meeting of the House, therefoie, we had (giving each member his proportion of the votes registered in his constituency), nineteen members who were supporters of government, representing 4,576 registered voters ; fourteen membe'*s who were not supporters of government, representing 10,984 registered voters. And the petition of the undersi£ \ed further showeth. That at various times before and since the last general election, and particularly in the speech of his Honour the Lieutenant-Governor at the opening of the House in January last, a measure providing for a just redistribution of representation has been promised, the words of his honour's speech being ; " The time has arrived when the altered conditions of the province demand a change in the method of popular represent- ation in the legislative assembly, and a measure of redistribution will, therefore, be submitted to you." That this often repeated promise has not been fulfilled And the petition of the undersigned further showeth. That the mainland portion of British Columbia, according to the census of 1891 has an area of 366,300 square miles, whereas the island portion embraces 16,002 square miles only; that said mainland portion has, therefore, the greater need of expenditure upon works of development ; that the said mainland portion contributed over two thirds of the total revenue collected within the province, and has, by the census of 1891, a population of 61,406 as against 36,767 on the island ; and that the natural resources, from the development of which the prosperity of the country must come, lie largely on the mainland. That tlierefore, the people of the said mainland portion of British Columbia object most strongly to the squandering of the provincial resources in non-productive under- takings, by the vote of a non-representative House, and are now advocating the separ- ation of the mainland from the island, as the surest means of relief from the evils under which they at present suffer. Your petitioners, therefore, having within their power no constitutional means of redress, pray that your Excellency may be pleased to veto the aforesaid Parliament Buildings Construction Act, so that the same may have no force or effect until, and unless, it be absented to by a majority of the members of a logisljiture, properly representative of the people of the province. And your petitioner will ever pray, «kc. 56 VICTORIA, 1893. 1139 er annum, upon )arts of British dative assembly jople of tlie pro- ly subversive of )m the returns of Bffistered vote of s, which elect IG itituencies, which ing 12,691 voters lile eleven small )orters, and one of g resigned before e government, er his proportion ere supporters of '"s who were not nd the petition of nd particularly in of the House in mtation has been arrived when the popular represent- will, therefore, be bhe petition of the lie census of 1891 •aces 16,002 square >ed of expenditure ted over two thirds 3 census of 1891, a natural resources, 9me, lie largely on ih Columbia object [i-productive under- ocatin'j; the separ- rom the evils under titutional means of oresaid Parliament ct until, and unless, erly representative Coj^y of a Jieport of a Committee of the Honourable the E.vecutive Counril, approved by His Honour the Lieutenant-Govertior on the ;Jnd d(ty of September, 18i>o. The Committee of Council have had under consideration a communication from the Deputy Minister of Justice to the lion, the Atto'ney General, dated 1 7th July, 1893, inclosing copy of a petition, praying that hia Excellency the Governor General might be pleased to veto an Act of the legislature of list session, intituled ; "An Act to pro- vide for the erection of new buildings for the accommodation of the Provincial Legisla- ture and the Public Departments," and submitting a series of statements in support of the prayer of such petition : The report of the hon. the Attorney General, to whom the matter v/as referred, remarks that whilst under the British North America Act, 1867, in each province the legislature has the exclusivoright of legislation, amongst other things, upon the subjects of (n) the amendment of the constitution, except as regards the oltice of Lieutenant- Governor, {h) the borrowing of money on the sole credit of the piovince, and (c) local works and undertakings, and the complnint of the petitioners is as to matters coming under one or other of the exclusive subjects of jurisdiction just mentioned, yet that the attention of his Excellency the Governor General in Council should be drawn to the facts hereinafter stated. As to so much of the petition as alleges that the estimates submitted to the legis- lature at its last session show an estimated expenditure of .$1,276,000 00 as against an estimated revenue of $1,060,000.00, "thus showing a deficit of .$216,000.00 to be made up from borrowed money in order to carry on the ordinary work of the country," the minister remarks that the quoted statement is misleading and untruthful, as implying that the sum of $216,000 is to bp made up from money to be borrowed for that purpose — the fact, on the contrary, being that in the year 1891 it was decided by the legislature to raise a loan of $1,000,000.00 for the purpose of undertaking works of public utility throughout the province ; that the money was borrowed accordingly, and had been only partially expended at the time of the voting oi the estimates alluded to, when there remained in the treasury the sum of nearly $500,000.00, and that in pursuance of the purpose for which the said .$1,000,000.00 loan was raised, the estimated expenditure was mcide to exceed the estimated revenue, the surplus to be taken out of the balance of the loan so remaining in the treasury : that the total estimated expenditure was not $1,276,- 000.00, as alleged in the petition, but was .$1,277,157.00, of which sum, so far from the charges of government and maintenance, other than works* if development, amounting to $1,011,000.00, as alleged in the petition, the sum of $185,855.00 was voted for the pur- poses of education, exclusive of school buildings, the sum of $129,500.00 for buildings, schools, &c., the sum of $50,000.00 for surveys throufjhout the province, the sum of $215,500.00 for roads, bridges and wharfs, and $88,498.00 for miscellaneous expenditure. That the finances of the province are in a sound and healthy condition, its inscribed stock ranking third amongst colonial securities, the Dominion of Canada being first, the colony of Ceylon > econd, and the province of British Columbia third : that the province has recently become the highway of a profitable trade, which has s( rung up between Canada, and the Australias and the Orient, and that Victoria, the capital of thn pro- vince, is the first port of call in the province, for vessels engaged in that trade : that the buildings for the use of the public offices and legislature of the province, erected in the very early colonial days when British Columbia was isolated from the rest of the world, have now become unfitted for the purposes of the province, and are moreover in a very dilapidated condition, and that in view of the necessity that exists for new public build- ings, the legislature at its last session resolved to expend the sum of $600,000.00 in the erection of a suitable structure. The inference of the petition, apparently, is that more than $600,000.00 is to be expended in the work, whereas the intention of the Act is to limit the expenditure within that amount. As to so much of the petition as asserts that the legislative assembly is and has been for years non-representative of the people of the province, the minister observes 1140 BRITISH COLUMBIA LEGISLATIOli that, with certain nddilions to tho number of members, the basis of representation is the same as that which existed at the time of the confederation, when the white popuhition of the island of Vancouver hirgely exceeded that of tlie mainland. The number of members being then 25 for the entire province, was apportioned, notwithstamJing the ine([uality in population, by giving 13 to the mainland and 12 to the island, and the same ratio has been kept up ever since. The last decennial census showed that the mainland had a total population of 61,- 406, and the island of 36,767, unci acting upon this basis the government concluded to bring down a bill for redistributing the seats in the legislative assembly, but upon analyzing the census returns, and deducting the Chinese and Indians, who are not voters, it appenred that the white population on Vancouver Island was still in excess of that of the mainland of British Columbia. The correspondence upon the subject of the census returns, and which correspon- dence took place during the session of the last legislature was, as follows : — 26th February, 1893. Hon. J. II. Turner to Di'pitty Minigfer At/ririiltu7->', Ottaica. Please wire total of Indians on Mainland, B.C. Also total Indians on Vancouver Island. 27th February, 1893. Deputy Minister Aff7'indture, to Hon. J. H. Turner : Total Indians on Mainland, 29,460. On Vancouver Island, 5,742. 27th February, 1893. Hon. J. II. Turner to J. Lowe, Ottaiva : Does total population of B. C. given in Bulletin 5, include Indians ? 28th February, 1893. J. Lowe, Ottaim, to J. H. Turner : Population in Census Bulletin relative B. C. includes Indians. lion. J. II. Turner, Ottawa, to J. Lowe : Please wire number of Indians in the 5 B. C. district ? February 28th, 1893. Ist Marcli, 1873. J. Lowe, to Hon. J. II. Turner : Following subdivisions by agencies, Indian population slightly in excess of figures given. West Coast, 2,864; Cowichan, 2,048; Kerakeweth, 1,905; Okanagan, 878; Williams Lake, 1,803; Fraser River, 4,338 ; Kamloops, 2,401 ; Kootenay, 696; North- west Coast, 4,001 ; Babine, 2,645 ; bands not under agency, 11,796. 24th March, 1893. Hon. J. H. Turner to J. Lowe, Ottawa : Your telegram of 27th February gives total Indians, mainland, 29,460 ; island, 5,742. Bulletin gives total population B.C., 98,173. Deducting Indians?, this leaves white population B. C, 62,971. Is this correct? State how many whites on island and how many on mainland. Please wire reply as soon as possible. J. Lowe, Ottaiva, to Hon. J. H. Turner: Whites on island, 31,025 ; on mainland, 31,946. 25th March, 1893. 56 VICTORIA, 1893. 1141 isentation is the hite population The number of ithstandins the island, and the ipulation of 61,- nt concluded to nbly, but upon la, wlio are not still in excess of which correspon- vs : — ruaiy, 1893. ns on Vancouver ruary, 1893. iruary, 1893. )ruary, 1893. y 28th, 1893. March, 1873. n excess of figures ; Okanagan, 878 ; 3nay, G96 ; North- March, 1893. d, 29,460; island, Indians, this leaves f whites on island March, 1893. The accuracy of thpse figures seeming to be open to grave doubt, the government concluded to postpone the introduction of the redistribution measure until corrected returns could be had, and, after the legislature had risen, the following correspondence ensued between the premier of the province and the Department of Agriculture : — 13th April, 1893. The Hon. Theo, Davie, Premier, to J. Lowe, Ottawa: In your telegram to Hon. Mr. Turner, dated 25th March, you give whites on island thirty-one thousand and twenty-five, and on mainland thirty-one thousand nine hundred and forty-six. Do these include Chinese ; if so, how many on mainland and island, respectively 1 Please consult Mr. Johnson, the statistician, as to the results wired by you to Mr. Turner, and ask him to wire me comprehensively following infor- mation based upon the census : — Total population province, including Chinese and Indians ; apportionment total population between mainland and island ; ho)«r many Indians on mainland ; how many on island ; how many Chinese, mainland ; how many Chinese on island ; bow many whites on island, exclusive of Indians and Chinese ; how many whites on mainland, exclusive of Indians and Chinese. 18th April, 1893. J, LouM, Ottawa, to Hon. Theo. Davie, Premier : Population British Columbia absolutely as follows : Vancouver Island — Indiana, 5,325; Chinese, 3,183; whites, 28,259; total, 36,767. Mainland— Indians, 29,634; Chinese, 5,727 ; whites, 26,045 ; total, 61,406. That, since the date of the last communication abovt set out, the census schedules in the department at Ottawa have been scrutinized, and, as a result, instead of placing the white population of Vancouver Island at 28,259, and of the mainland at 26,045, as shown by the Department of Agriculture, the whit'e population appears to be distributed as between the mainland and island, as follows, viz :— On the mainland, 37,293, and on Vancouver Island, 27,997. It will thus readily be seen that, unless the government were prepared at the time of the session of the legislature, to accept as a basis of its promised redistribution measure, a population of whites upon Vancouver Island in excess of those upon the mainland, it was not in a position, in view of the information received from the De- partment of Agriculture, to introduce the redistribution measure at that time, and that consequently, if the census returns were to be a governing feature in framing the bill, nothing else could reasonably be done than to postpone the measure, which was accord- ingly done. As to su much of the petition as states that the province is divided into eighteen constituencies, with a total registered vote of 15,560, and that of these voters 12,691 are registered in seven constituencies, which elect sixteen members, and the remaining 2,869 voters are registered in eleven constituencies, which elect seventeen members, the minister remarks that the number of registered voters in any particular constituency is not by any means an accurate indication of the number of persons who are eligible for the franchise in such constituency, inasmuch as no scrutiny has hitherto been made of the claims of persons applying to be registered as voters, and in some constituencies apathy and indifference in the registration of voters has been the rule, whilst in other constituencies a determined and persistent effort has been made to place names upon the register of voters. The minister, moreover, remarks that population naturally flows to the cities, which, in point of population, largely outnumber the outlying districts, including those districts where the principal industries of the country, such as farming, mining and lumbering, are carried on. That it has always been the policy of this province to accord the outlying districts just representation, and it is noteworthy that the real complaint of the petitioners seems to be that the cities are not accorded all, or nearly all, of the representation. That as to so much of the petition as asserts that the main- 72 1142 BRITISH COLUMBIA LE1I8LATI0X land has an area of 366,300 square miles, whereas Vancouver Island embraces 16,002 square miles only ; that the mainland portion has, therefore, the greater need of ex- penditure upon works of development, and that the said mainland portion contributes over two-thirds of the total revenue collected within the province, the minister observes that the principle has always been recognized by successive legislatures that, on account of its larger area, the mainland has greater need of expenditure upon works of develop- ment, and that, acting upon such principle, 3Von in years when the revenue of the mainland did not equal that of Vancouver Island, larger expenditures in works of development were made upon the mainland than upon Vancouver Island, and ever since confederation, the proportionate expenditure for such works upon the mainland has largely exceeded what would have been its share, in proportion to population, and to the contribution of the mainland towards the revenue. The increase of population upon the mainland has been of modern growth, but, as in the past, so at present, the appropriations for works of development largely exceed either its quota of population or its contribution towards the revenue, as a consideration of the public accounts for the last fiscaj year abundantly shows. For instance, the grant for roads, streets and bridges upon the mainland was $159,500, and upon Van- couver Island was $56,000. For buildings and schools, the mainland grant was $81,300, and upon Vancouver Island $16,900. For surveys, the mainland estimate was $48,000, and the island $2,000. Upon education, the mainland grai ^, was $101,920, and upon Vancouver Island was $73,220. Upon hospitals and asylums, the mainland grant was $41,550, and the island $16,300 — showing total grants under these heads, upon the mainland, $432,270, and upon Vancouver Island, $164,4jO. Taking the census return of 98,173 as the entire population of the province, the total appropriations under the above headings, for mainland and island ($596,690), if equally apportioned on the per capita basis, would give $6.08 per head, which, according to the distribution of population as between the mainland and island (mainland, 61,406 ; island, 36,767) would entitle the mainland to $373,348, and the island to $223,342, instead of the existing division of $432,270 upon the mainland and $164,420 upon the island. But if the expenditures are to be divided according to the population, other than Indians and Chinese (Indians especially, and Chinese, contribute but little towards provincial revenue), the advantage given to the mainland is made still more apparent. The last amended census returns give 37,293 as the mainland white popula- tion, and 27,997 as the island white population. This would give, out of the total appropriation of $596,690, a per capita allowance of $9.14, or $340,858 to the mainland and $255,832 to the island, and assuming with the petition (but which is not the casej that the people of the mainland now contribute two-thirds of the revenue, it is shown that the island by no means receives one-third of the appropriations granted by the legislature for works of development. As to so much of the petition as asserts that at the last general election seven con- Btitutercies registering 12,691 voters (it omits mention of the number of votes actually polled) returned only four members as supporters of the government, while eleven small constitutencies having 2,869 voters returned sixteen government supporters, and that one of the four government supporters elected by a large constituency having resigned before the meeting of the House, his place was supplied by an opponent of the govern- ment, the minister draws attention to the fact that, of opponents to the government, at the last general election, there were only five returned to the legislature ; the remain- ing members were returned either as supporters of the government, or else as independent of either the government or its opponents : that the menjber to fill the vacant seat alluded to, was not elected as an opponent, and that the number of votes actually polled at the general election for candidates avowedly supporting the government, was equal to the number of votes polled for both oppenents and independents combined. The minister further remarks that three of the five members returned in opposition to the government, were from the city of Victoria, which constituency returns four members, the fourth candidate returned being a government supporter. The highest vote polled in that constituency by the three members returned in opposition to the government was that of the senior member, who received 1,226 votes, the fourth or junior member 56 VICTORIA, 1893. 1143 inbraces 16,002 ;er need of ex- ion contributes linister observes that, on account orks of deveU»p- rovenue of the ■es in workb of aland, and ever (n the mainland population, and 1 growth, but, as t largely exceed 18 a consideration or instance, the , and upon Van- •antwas $81,300, ate was $48,000, )1,920, and upon inland grant was heads, upon the the province, the nd ($596,690), if which, according island (mainland, ,nd the island to and and $164,420 to the population, ntribute but little is made still more land white popula- , out of the total 8 to the mainland ch is not the case^ jvenue, it is shown as granted by the election seven con- er of votes actually while eleven small ipporters, and that oy having resigned nent of the govern- to the government, lature ; the remain- • else as independent fill the vacant seat kTotes actually polled rernment, was equal its combined. The in opposition to the burns four members, highest vote polled to the government bh or junior member receiving 851 votes ; the other members in opposition to the government wore returnoti, one as the junior member for Yale, anil the other as the junior member for Nanaiino district, the one receiving 396 votes, and the other 157 votes. The vote of tlie country was therefore overwhelmingly in favour of the government, and those wlio wore pledged to deal with the government independently of its supporters or opponents. As to so much of the petition as alleges that the governinoiit has promised con- sideration to a demand for financial aid to a new transcontinental railway, and that such demand is for a guarantee of interest at four per cent per annum upon bonds of the railway to the amount of $6,000,000, the minister observes that no demand for any such guarantee has been made upon the province, but that the province lias proinisotl, and is prepared to accord, fair consideration to any proposition for financial aid, which may be within the capacity of and of advantage to tiio province. The committee, concurring in the report of the Honourable the Attorney General, recommend that copies of this minute (if approved) be forwarded to the Honourable the Secretary of 8tiite, and the Minister of Justice, for the information of his Excellency the Governor General in Council. Certified, A. CAMPBELL REDDIE, Deputy Clerk, Executive Comicil, Mr. J. Twigg, Chairman Citizens' Committee, to His Excellency the Governor General. Yancouvkr, 6th November, 1893. Sir, — With reference to my letter dated 11th August, 1893, I have the honour to forward to your Excellency the last instalment of the petition of (he people of the mainland of British Columbia praying for the veto of the Parliament Buildings Construction Act, B. C, 1893, the earlier instalments with an aggregate of 6,268 signatures were forwarded on various dates to his Excellency the Earl of Derby. The present instalment brings the total number of signatures up to 6,326, a number exceeding that of two-thirds of the registered voters of the mainland, at the time the petition was circulated. In the margin of the unsigned petition form, hereto attached, are inserted the authorities for the statements made in the body of the petition. I am requested by the committee to indicate to your Excellency the following considerations as those upon which it is hoped that the veto power may be exercised. 1. The British North America Act places the finances of the province under the control of the provincial legislature. 2. Accoiding to the heading of the statutes of British Columbia, Her Majesty the Queen is an integral part of the British Columbia legislature, and also the enacting part of the legislature, 3. Aa appeal to Her Majesty for veto is thus an appeal to an integral part of our provincial legislature, and to the enacting factor of that legislature, the petition is therefore an appeal to the representative of Her Majesty in Canada, and to the same in Council. The veto power is generally supposed to exist for the protection of minorities, the number of signatures subscribed to this petition, however, indicates that the exercise of the veto is desired by the majority of the people. The present legislature of British Columbia being non-representative, in a degree which constitutes a denial of responsible government, the exercise of the veto would give effect to the popular will, and in exercising it the Governor General would defend provincial autonomy. In the terms of confederation, it was stated that the Dominion government would readily consent to the introduction of responsible government, when desired by the inhabitants of British Columbia. 72^ I* f 1144 IIHITIHII COLUMUIA LEdlHLATION It is hoped («,) that your Kxcellency will take the view that, by reHporiHible governmont, ought to be utulerHtood a j{Overninent in reality representative of, and, therefore, responsible to the people of the province. (6.) That your Excellency will also take the view that responsible government having been consented to, the people of the province are entitled to its preservation and enforcement without being driven to assert it, by extreme means. The prayer of the petition is not for absolute veto, but for veto of the Act until, and unless assented to by a legislative majority properly representative of the people. I have, py of the saii;e. jnant-Governor ON, of Justice. Excellency the ober, 1894. 1 statutes of the Majesty's reign th day of April, ;ation of Lands." Ifully injure any r every offence a ! recovered upon ing injury other y and Lighting sstroy any of the to a penalty not io im,,risonment 3 by the Criminal h offences. The within the scope of criminal legislation, and enactments of the character in question would, therefore, appear not to be within the power of the provincial legislature. The undersigned apprehends, however, that no serious mischief could ensue from leaving these provisions to their operation. The courts having jurisdiction to declare the sections ultra vires, at the suit of any person who might be prejudiced thereby. Chapter 18. "An Act to amend the ' Game Protection Act, 1892 ' and amending Act." , . , Section 3 provides that no person shall use or employ any net, seine, drag net or other engine, nor use salmon roe as bait, for the purpose of taking or capturing fish in any lake, pond, or standing water in this province, under a penalty not exceeding two hundred and fifty dollars, to be recovered in a summary manner before any justice of the peacet It appears to the undersigned that such a provision would fall within the powers of parliament as it may appertain to sea-coast and inland fisheri' J, and that it could not, therefore, be enacted by a province. The several questions which have arisen relating to the conflict of jurisdiction upon this subject between parliament and the provincial legislatures, having been referred by your Excellency in Council to the Supreme Court of Canada for determination, the undersigned would consider it proper that this statute should not now be disallowed. It is anticipated that the decision of the court upon the reference in question, will set at rest all doubts which should be raised with regard to the validity of enactments such as the above, and if such decision should be in accord- ance with the view of the undersigned, as above expressed, it is assumed that this section, together with other provincial statutes which may be held to go beyond the limit of provincial powers, would be repealed. Chapter 33. " An Act to amend the < Placer Mining Act, 1891.'" Section 10 provides that " it shall be lawful for the gold commissioners, with the sanction of the Lieutenant Governor in Council, to grant a lease for any term not exceed- ing twenty years, of the bed of any river below low water mark for dredging purposes, for a distance not exceeding five miles, upon such terms as he shall think fit ; provided always that every such lease shall reserve the right to every free miner, to run his tailings into such river at any point thereon, also to mine two feet below the surface of the water at low water mark by putting in wingdams, and whether such free miner shall locate before or after the date of such lease." Chapter 62, " An Act to authorize certain Dyking and Drainage Works in the District of New Westminster." Section 1 enacts that the commissioners shall have power to widen, straighten, ueepen, divert, dam, scour, or cleanse any river, stream, drain, brook, pool, lake or water- i"U/ ^e upon, or lunning through such lands, and to make, open, and cut, in or upon the diwoe, any new water-course, side-cut, ditch or drain, and at any time to repair, alter or v^i Jove any bank, sluice, flood-gate, dam, tunnel, or other part of the undertaking. Sections and 7 are as follows : — •' (6.) The commissioners shall have full power and authority to divert the waters -iowl. ;is the Chilliwhack River, by changing the course of the said waters (as at present i; V, ing) so as to cause the same to flow from a point at or near Summit Lake into the Fraser River above Sheam." " (7.) The commissioners are hereby authorized and empowered to take and divert, at such point or points on the Chilliwhack River as they may judge suitable and proper, and to appropriate and use for the purpose of generating electricity, so much of the waters of the stream as to the commissioners may seem necessary for the purpose of the works, or for any purpose connected with the works hereby authorized, with power to the commissioners to construct and maintain all erections, weirs, wheels, dams, race- ways, flumes or other works necesssary for making the water power available, with the right to improve and increase the same." The undersigned observes that rivers having been declared by " The British North Auierica Act " to be part of the public property of Canada, the sections quoted would be ultra vires of the provincial legislature, as applied to rivers which belonged to the province at the time it entered the union. In so far as this view is controverted by the I 1150 BRITISH COLUMBIA LEGISLATION province, it is hoped that a judicial determination of the question may be reached upon the reference to the Supreme Court above referred to, and in the meantime should any practical difficulty arise, as between the Dominion and the province, or in reference to individual rights as to tlie application or validity of thes'! sections, the question rould, if necessary, be brought before the courts in an ordinary action. The undersigned therefore roconmiends that the several statutes mentioned in this report be left to their operation, and that a copy of this report, if approved, be trans- mitted to the honourable the Lieutenant-Governor of the province of British Columbia for the information of his government. Respectfully submitted, JNO. S. D. THOMPSON, Minister of Justice. ■ 58 VICTORIA, 1895 1151 be reached upon intime should any or in reference to le question rould, mentioned in this iproved, be trans- British Columbia ON, ter of Justice. BRITISH COLUMBIA— 5«TH VICTORIA, 1895. IsT Session — 7tii Legislature. Report of the Honourable the Minister of Justice, approved by His Excellency the Governor Generalin Cotmcil, on the SJrcl of December, 1895. Department of Justice, Ottawa, 23rd December, 1895. To His Excellency the Governor General in Council : The undersigned has the honour to report that he has examined the Acts passed by the legislature of the province of British Columbia, in the fifty-eighth year of Her Maiesty's reign, 1895, received by the Secretary of State for Canada on the second day of March, 1895, chapters 1 to 17, 19 to 22, 24 to 61, 64 to 66 ; and he is of opinion that they are unobjectianable, and may be left to their operation. ^ The remaining Acts (chapters 18, 23, 62, 63, 67, 68 and 69) have been reserved for a ^®P*5^^g®^^^P°V^gjj recommends that, if this report be approved, a copy of the same, with a copy of the schedule of the titles of the Acts, be sent to the Lieutenant Governor of the province for the information of his government. Respectfully submitted. CHARLES HIBBERT TUPPER, Minister of Justice. Report of the Honourable the Minister of Justice, approved by His Excellency the Governor General in Council on the 23rd December, 1895. Department of Justice, Ottawa, 3rd December, 1895. Tc His Excellency the Governor General in Council : The undersigned has the honour to report upon the following Acts passed by the legislature of the province of British Columbia in the 58th year of Her Majesty s reign (1895) and received by the Secretary of State on the 2nd day of March, 1895, as ^ ^Chapter 18— "An Act respecting lands granted to the Dominion Government." Section 4 provides that it shall be lawful for the Lieutenant-Governor, by order in council, to make such provisions as he may think proper, for defining and causing the title of the Dominion government to be registered under the land registry laws of the province, and section 7 provides that any order in council, made by the Lieutentant- Governor under authority of the Act, shall have the same force and effect as if enacted by statute of ♦^^ho legislature of British Columbia. . t- x ^ The undersigned assumes that it is not intended to authorize the Lieutenant- Governor to make an order in council, which would have the effect -* impairing, in any wise, the title of the Dominion government in caee it were not registered. Such legis- lation would, of course, be wiira utVea. _ ., -x • e A It appears to the undersigned that by the section in question, authority is conferred upon the Lieutenant-Governor, which may be exercised with the scope of provincial legislative authority, and the undersigned does not consider it necessary to do more than call attention to the larger construction, which might possibly be urged and which, in his opinion, both as a matter of intent and as a matter of law, should be excluded. ...aIH 1162 BRITISH COLUMBIA LEGISLATION Chapter 23. — "An Act to amend and consolidate the Acts for the protection of cer- tain animals, birds and fishes." Section 7 makes it unlawful to export game out of the province. The undersigned would consider this provision beyond the provincial authority, but inasmuch as it has in view the preservation of the game of the province, and similar provisions having been left to their operation in other provinces, he does not consider that it is a case for the exercise of the power of disallowance. Chapter 62.—" An Act for the supply of water to the City of Nanaimo." Chapter 63. — "An Act respecting the amendment of the 'I' '' '"Vo*- -/ks Act, 1895,' and amending Acts." Chapter 67. — " An Act respecting the incorporation of the Stave River Electric and Power Company, limited liability." These chapters contain provisious which appear to assume the right of the provin- cial legislature to legislate with regard to rivers. The undersigned has several times previously had occasion to comment upon similar legislation which is objectionable from the Dominion point of view. The question in difference upon this point between the Dominion and the provincial authorities is await- ing the determination of the courts, and pending the decision, the undersigned consid- ers that these statutes might be left to their operation. Chapter 67 also contains a provision stating that shareholders in the company whether British subjects or aliens, whether resident in Canada or elsewhere, shall have the right to hold stock in the company, and shall be eligible to office in the company. Chapter 69, intituled " An A.ct to incorporate the Victoria Consolidated H} raulic Mining Company, Limited," contains a similar provision afl'ecting aliens. The undersigned would consider that these sections must fail in their object, in so far as they intend to confer rights upon aliens, because that subject is committed to the legislative authority of parliament. The undersigned does not, however, consider this objection of such a character as to call for the exercise of the power of disallowance. Chapter 68 — " An Act respecting the 'Vancouver Incorporation Act' and amend- ment Acts." The powers which are conferred upon the municipality of the city of Vancouver to make by-laws, are apparently in some ciises in excess of those which could be granted by the legislature. A construction may, however, be adopted, which would limit the powers so conferred to purposes within provincial authority, and if, in framing the by- laws, a broader and objectionable construction should be acted upon, the courts would afford redress to any individual prejudiced thereby. For the reasons stated, the undersigned recommends that the several Acts men- tioned in this report be left to their operation, and that a copy of this report, if approved, be transmitted to the Lieutenant Governor for the information of his government. Respectfully submitted, CHARLES HIBBERT TUPPER, Minister of Justice. e protection of cer- icial authority, but viiice, and similar does not consider anaimo. ""Vof— \,.ks River Electric and Lght of the provin- mment upon similar '. The question in authorities is await- undersigned consid- rs in the company Isewhere, shall have ! in the company. solidated H} laulic iens. n their object, in so is committed to the such a character as n Act ' and amend- ity of Vancouver to could be granted by ch would limit the I, in framing the by- n, the courts would le several Acts men- i report, if approved, is government. rUPPER, lister of Justice. PRINCE EDWARD ISLAND, 37th VICTORIA, 1874. 2nd Session — 26th General Assembly. Report of the Hon. the Minister of Justice, approved by His Excellency the Governor General in Council, on the 3rd April, 1874. Department op Justice, Ottawa, 25th March, 1874. To His Excellency the Governor General in Council : A despatch of the Secretary of State for the Colonies to the Governor General is submitted, expressing, in effect, the assent of the Crown to certain statutes This despatch should be communicated to the Lieutenant-Governor of Prince Edward Island. But reference is made to a bill which is spoken of as a reserved bill, chapter 30, which is an Act to vest a certain portion, forty acres, of Government house farm, in the city of Charlottetown, for the purpose of a park and pleasure ground for the use of the ^" The obiect of this reference by the Colonial Secretary is on account of the Act havin- been passed on the 14th June, 1873, whereas the addresses of legislative council and assembly of Prince Edward Island, expressing their desire to enter into the Dominion are dated 28th May, 1873, and the transfer of any public property after that date would clearly be incorrect, as regards its subsequently becoming a province of the Dominion. Equitably, therefore, the property in question, being part of the government house farm, and thus an adjunct of public buildings, and, as such, coming within the desig- nation of section 8 of the 3rd schedule of the British North America Act, 1867. was part of the property of the Dominion, and only required an order lu council bringing Prince Edward Island into the confederation, to vest it legally in the Crown for the government of Canada. It is true that is has been the custom for the government of Canada to make over, by order in council, to the province such portion of the public property as they thought fit and appropriate for the use of the provincial legislatures and government, but it appears doubtful whether the legislature of Prince Edward Island could properly pass an Act i.i respect to property which equitably had already become that of the Dominion, and could thus dispose of it as they have done The question, however, submitted by the Colonial Secretary is as to whether the government of Canada think that Her Majesty may be properly advised to assent to it. With the remarks hereinbefore made, the undersigned has the honour to submit the matter for consideration of Council. A. A. DORION, Minister of Justice. m-»far!tnv^*'>f- ■ 1154 PRINCE EDWARD ISLAND LEGISLATION. The Eight Hon. Secretary of State for the Colonies to tlie Governor General. DowNiNo Street, 28th April, 1874. My Lord, — T have the honour to acknowledge the receipt of your despatch, of the 8th instant, inclosing a copy of an approved report of a committee of the Privy Council, recommending, for the reasons stated, that Her Majesty should not be advised to assent to the bill passed in June, 1873, by the legislature of Prince Edward Island, but reserved by the late Lieutenant-Governor, intituled : "An Act to vest a certain portion of Gov- ernment House Farm in the city of Charlottetown for purposes therein mentioned." In accordance with the recommendation of your government, I shall not advise the Queen to assent to this Act, which will not, therefore, come into operation. I request that you will so inform the Lieutenant-Governor of Prince Edward Island and that you will forward to him a copy of the report of the Privy Council. I have, (fee, CARNARVON. Report of the Hon. the Minister qf Justice, apjrroved by His Excellency the Governor General in Council, on the 26th December, 1874- Department of Justice, Ottawa, 23rd December, 1874. The undersigned has the honour to report that at the session of the legislature of Prince Edward Island held in the early part of this present year, a bill was passed by both Houses, intituled : " The Land Purchase Act, 1874," which was reserved by the Lieutenant-Governor for the signification of your Excellency's pleasure. Its objects are foreshadowed in the recitals thereto, which are : — First : " That the leasehold tenures of this island have long been a subject of con- templation, and have proved seriously detrimental to the prosperity of this province and to the <"utentment and happiness of its people." Se( ndly : " That it appears, from correspondence which has recently taken place between the government of this island and certain proprietors, that there is no reason- able hope of the latter voluntarily selling their township lands to the government at moderate prices. Thirdly : " That it is very desirable to convert the leasehold tenures into freehold estates, on terms just and equitable to the tenants as well as to the proprietors." It provides that the Colonial Secretary shall notify any proprietor owning five hundred acres of land, or upwards, that the government oi the province intend to pur- chase his land under the provisions of the Act, after which the government and pro- prietor shall each nominate a commissioner to award the amount of money, and they are jointly to nominate a third commissioner. The Act provides the necessary machinery for carrying such arbitration into effect, and provides further, as follows : — Section 23. — " After hearing the evidence adduced before them, the commissioners, or any two of them, shall award the sum due to such proprietors as compensation or price, to which he shall be entitled by reason of his being divested of his land and all interests therein and thereto." Section 24. — " The fact oi the purchase or sale of the lands of any proprietors being compulsory, and not voluntary, shall not entitle any such proprietor to any com- pensation by reason of such compulsory purchase or sale, the object of this Act being to pay every proprietor a fair indemnity or equivalent for the value of his interest, and no more ; and by the 25th section are regulated the circumstances which are to be taken into consideration by the commissioners in estimating the amount of compensation to be paid to the proprietors." 37 vicTouiA, 1874. 1156 oernor General. }8th April, 1874. your despatch, of tlie of the Privy Council, t be advised to assent Island, but reserved irtain portion of Gov- erein mentioned." shall not advise the operation. I request Island and that you CARNARVON. •cellency the Governor ■4- December, 1874. a of the legislature of a bill was passed by was reserved by the isure. B : — been a subject of con- ;y of this province and \ recently taken place at there is no reason- o the government at tenures into freehold le proprietors." jroprietor owning five 3vince intend to pur- governmont and pro- i money, and they are arbitration into eflfect, m, the commissioners, i as compensation or )d of his land &nd all Is of any proprietors oprietor to any com- t of this Act being to f his interest, and no ich are to be taken of compen&iation to be Under the 29th section the Lieutenant-Governor in Council is to nominate a public trustee, who, when the purchase money of the property shall have Ijeen paid into the treasury, is to execute a conveyance of the estate of the proprietor to the commissioner of public lands, which shall thereby vest in the commissioner of public lands an absolute and indefeasible estate of fee simple, free from all encumbrances of every dt'scription, and siiall be held and disposed of by him as public lands, and shall also vest in the commissioner of public lands all arrears of rent duo upon the said lands. It further provides : Section 34. — "When the full sum for any lands shall have been paid into the treasury, and the conveyance executed by the public trustee to the commissioner of public lands, the government shall be absolutely exonerated from all liability to any person or persons whomsoever, who may claim estate so conveyed as aforesaid, or any interest therein, except as is mentioned in the next section." Section 44. — " After tho passing of this Act, no action at law shall be maintained by any proprietor for the recovery of more than the current and subsequent year's rent, and in case any such action is brought against any such tenant by any proprietor, such tenant may plead this Act in bar of such action, nor shall any execution issue on any judgment recovered or to be recovered for rent by any proprietor against any tenant in this island, excepting the current and subsequent accruing year's rent, antl in case any such execution is issued, the supreme court, or a judge thereof, shall, on appli- cation, stay any such execution until the award of the said commissioners shall be made." 2. In transmitting this reserved bill the LieutenantrGovernor forwards therewith certain documents. The reasons which induced the Lieutenant-Governor to reserve the bill are given by him as follows : — " The Act in question, affecting private rights, by enforcing a compulsory sale by proprietors of five hundred acres of land, or upwards, at prices to be determined under a system of arbitration, to which they are thereby compelled to be parties, I deemed it to be my duty to reserve it for the consideration of his Excellency the Governor General. •' For upwards of half a century 'The Land Question,' so called, has agitated the minds of the people of this province, and repeated attempts have been, from time to time, made by the local legislature to get rid of the leasehold system prevalent here, and the aid of the Imperial government has been frequently invoked for the purpose, by endeavoring to obtain its sanction to the establishment of a court of escheat, on the ground of the non-fulfilment by the grantees of the conditions of their grants from the Crown, but to which Her Majesty's government invariably refused to accede. " In 1860 three commissioners were appointed to enquire into and adjust ' the diffe- rences between landlord and tenant.' The then proprietors, or a mpjor part of them, were assenting parties to this commission. One commissioner was selec ad by the Secre- tary of State lor the Colonies ; a second by the proprietors, and a third by the local legis- lature. Their report and award, characterized by the late Duke of Newcastle, then Secretary of State for the Colonies, as ' able and impartial,' was set aside, because the commissioners thereby devolved the duty of assigning the value of township lands, which they should have performed themselves, upon other parties not recognized by the commission. A copy of the commissioners' report and award accompanies the reasons of the Attorney-General, marked No. 1, and to this I bag to refer his Excellency the Governor General, affording, as it does, a complete history of the land question from the year 1767 to the date of the report. " The desire finally to extinguish the leasehold system, so far as relates to lands still in the hands of the proprietors, continues unabated ; in fact it has received a fresh impetus since confederation, in view of the sum of eight hundred thousand dollars, appropriated by the Dominion government for the purchase of the proprietory rights in this province." The report of Mr. Attorney-General Brecken, briefly referring to the same matters aa mentioned in the despatch of the Lieutenant-Governor, quotes particularly from the 1156 PRINCE EDWARD ISLAND LEOI8LATION despatch of the 13th March, 1869, from the then Secretary of State for the Colonies to the eflfect that, if confederation of Prince Edward Island with Canada were to ensue, the land question should be left as far as possible for the decision of those who, under the altered circumstances of the colony, would have to carry into execution any measures connected with it. The Attorney-General further adds that the local government is led to believe that there is no reasonable prospect of some of the owners of township lands voluntarily dis- posing of their estates at moderate prices, and that others of them are not at all desirous of permitting their tenants to become freeholders. Impelled by the peculiar circumstances of the case, and strengthened by the despatch of Earl Granville above alluded to, the legislature had passed the Act with the hope that it might be the means of settling forever this long agitated question, on terms just and liberal, as well to the proprietors as to the tenants. The Lieutenant-Governor also transmits copies of correspondence between the local government and certain proprietors of lands and their agents on this subject. The views of the diflFerent proprietors, as to parting with their property vary, but the tenor shows generally an indisposition ou the pai-t of the proprietors to dispose of their properties, whilst in some instances, they ask that a definite offer should be made to them. There is also a statement submitted showing the names of th(t proprietors, their residences and number of acres owned by each, and the quantity of land owned by small freeholders, the former being 381,720 acres, and the latter 222,000 acres. There is also a statement showing the quantity of land already purchased under the authority of a previous Loan Act, being in the aggregate 457,270 acres, at an aggregate amount of $517,951 ; and a further purchase under an Act passed in 28th Vic, of nearly 7,000 acres. These purchases, however, appear to have been all made with the assent of the proprietors. With the Lieutenant-Governor's despatch are certain memorials of proprietors, pray- ing that the Act may not be allowed. These have been since supplemented by memorials furnished either to the Secretary of State for the Colonies and transmitted by him, or direct to your Excellency. 3. The documents transmitted by Mr. Attorney-General Brecken show the tr; ismission by the Duke of Newcastle in February, 1862, to the Lieutenant-Gover- Ti , of a copy of a report of the commissioners appointed to inquire into the land ares of Prince Edward Island, together with the copy of the report which embraces a sory full consideration of the whole circumstances, the same bearing date, 18th July, 1861. As before mentioned, however, nothing was done upon this report. In 1864, a deputation from the government of Prince Edward Island proceeded to England, when certain correspondenca ensued between the Duke of Newcastle and them- selves, and it appears that Sir Samuel Cunard proposed terms, and submitted a draft bill which he thought would bear out the matter. These, however, equally led to the absence of any result. In 1868, the matter was again brought forward by the Lieutenant-Governor, sub- mitting a minute of the Executive Council, and praying the sai;ction of the Secretary of State to the measure which might obtain a settlement of this question ; in reply to which the Duke of Buckingham and Chandos stated that he " fully recognized the pro- priety of the course which the Executive Council have taken in seeking to obtain the sanction of the Secretary of State, before introducing a measure, which would naturally tend to raise, in the minds of the people, expectations with which, in the result, it might be deemed inexpedient to comply." " I make the recognition the more fully, because, after a careful consideration of the whole case, and of the grounds now . put forward by the Executive Council in sup- port of a law for the compulsory sale of the land of those proprietors, who were not parties to the Act of 1864, I am not prepared to advise Her Majesty to sanction such a measure. 37 VICTORIA, 1874. 1157 r the Colonies to la were to ensue, those who, under ion any measures id to believe that voluntarily dis- aot at all desirous d by the despatch ith the hope that >n terms just and between the local ubject. ■operty vary, but itors to dispose of r should be made proprietors, their id owned by small res. rchased under the H, at an aggregate Sth Vic, of nearly ivith the assent of proprietors, pray- »r to the Secretary tcellency. •ecken show the Lieu tenant-Go ver- ire into the land rt which embraces I date, 18th July, b. iland proceeded to wcastle and them- submitted a draft mt-Governor, sub- n of the Secretary istion ; in reply to ecognized the pro- dng to obtain the h would naturally he result, it might 1 consideration of ve Council in sup- ors, who were not to sanction such a " The views of former secretaries of state upon the subject, and the grounds upon which such views were based, have been so clearly explained in prior correspondence, that it appears to me unnecessary to do more now than to state that I find no special reason assigned on the minute of council, which, in my opinion, would justify, on the ground of public policy, the proposed direct appropriation of private property." In February, 18(j9, correspondence was renewed between the Lieutenant-Gover- nor of Prince Edward Island and the Imperial government, which led to the remarks of Lord Granville previously quoted, to the effect that decision as to the land (|U(>stion should be left to those who, under the altered circumstances of the colony by confede- ration, if it were carried out, would have to carry into exjcution any measures connected with it. 4. Several petitions are presented against the allowance of this bill ; some as above stated, having been sent to the Secretary of State for the Colonies, and others direct to your Excellency. In transmitting one presented in England, Lord Carnarvon requests the careful consideration of your Excellency's ministers in repect to it. They submit that the proposed Act ia subversive of the rights of property, and that it will prove most ruinous to proprietors in this colony, and a dangerous precedent to establish as a mtxle of allaying popular agitation. After entering upon details of the past, they submit that the Act is without a precedent in the history of legislation, and that even if it were called for, as constitutional as respects its objects, the mode of pro- cedure adopted by it would prove most ruinous and harassing to the owners of property in that island. They allege that the government, which is practically irresponsible, as it cannot be sued in a court of law, might hold this Act over the unfortunate proprietn'*, who cannot force on the prxjceedings when once commenced, nor obtain compensation or costs when such proceedings have been abandoned ; and they dispute the recitals to the Act and pray for disallowance of the same. The other petitions allege various reasons in respect to which they, as proprietors and British subjects, would be much injured and damnified if the Act passed. The allegations in these petitions are very forcibly urged, and represent features which cannot but be regarded as contrary to the principles of legislation in respect to private rights and property. The undersigned is of opinion that the Act is objectionable, in that it does not provide for an impartial arbitration, in which the proprietoi-s would have a representation, for arriving at a decision on the nature of the rights and value of the property involved, and also for securing a speedy determination and settlement of the matters in dispute. Under all the circumstances of the case, the undersigned has the honour to recommend that the bill so reserved, intituled: "The Land Purchase Act, 1874," do not receive the assent of your Excellency in Council. H. BERNARD, Deputy Minigter of Justice. I concur. FOURNIER, Minister of Justice, Report of the Honourable the Minister of Justice, approved by His Excellency the Governor General in Council on the. 15th January, 1875. Department of Justice, Ottawa, 2nd January, 1875. Upon reference of a despatch from the Lieut'nant-Governor of Prince Edward Island, and t he Aci s thereunder transmitted by him authenticated under the provincial seal, and being the Acts of the general assembly of the province enacted in the year 1874, the undersigned has the honour to report : — 73 !■ 1. 1^ f 1158 PRINCE EOWAHI) ISLAND LEGISLATION That the Aama iippear to him unobjectionable, and he recommends, therefore, that the sttmi) respectively should be loft to their operation, viz. : chapters L', 4, fi to 7, 9 to 12, 14 to 20, 22 and 2:1. H. BKHNARD, Deputy MinisUr of Justice. I concur. T. FOURNIER, Ministi'r ofJitnticfi. Report of the Hon. the Mininter of Justice approved by His Ercellency General in Counril on the 11th January, 187'>. '.he L overnor Department op Justick, Ottawa, 2nd January, 1875. Upon the despatch of the Lieutenant-Governor of Prince Edward Island, of the 6th .September, 1874, transmitting certain Acts of the general assembly of that pro- vince, enacted in tb? '":".cion hehl in the year 1874, the undersigned lias the honour to report as follows : — Chapter 1. "An Act io amend the Aci passed in the thirty-sixth year of the reign of Iler Majesty, Queen Victoria, intituled : ' An Act to establish county courts of judi- cature in this Island.' " Section 29 authorizes any county court judge to commit any person guilty of perjury before him or other officers of the court, to direct such person to be prosecuted for perjury, and t'/ commit him or to take bail for his appearance. The undersigned is of opinion that this is a matter of criminal law and procedure, and as such not witliin the competence of the legislature of Prince Edward Island. T suggests, tlierefore, that the legislature of the province should repeal the same. A clause of similar purport is to be found in the statutes of Canada, 32 an Vic, chap. 23, sec. 6, which, when the criminal laws of Canada are made applicable to that province, will answer the purpose intended by the 24th section above mentioned, aod recommended to be repealed. Chapter 8. "An Act to consolidate and amend the laws enabling the Supreme Couri of Judicature to order the examination of witnesses upon interrogatories and other\ ise." S jction 5 provides for the taking of examination upon oath, of witnesses in matters of the Supreme Court of Juilicature, but it proceeds further, and enacts that if false evidence should be wilfully and corruptly given, every such person so offending shall be deemed guilty of perjury, and may be indicted as therein mentioned. This section, in the opinion of the undersigned, partakes of the nature of crimiual law and procedure, and is therefore not within the legislative competence of the legis- lature of that province. Tiie undersigned, therefore, recommends that the Lieutenant-Governor of Prince Edward Island should be invited to repeal the same. A provision to the same effect is made by the statute of Canada, 32 and 33 Victoria, chapter 23, which, when made applicable to Prince Edward Island, will attain the object desired by this clause. Chap. 13. "An Act to incorporate the Prince Edward Island chamber of com- merce." This Act purports to establish an incorporated company " The Chamber of Com- merce in Prince Edward Island," the objects of the same as defined by the second clause, are for such purposes only, as may be calculated to promote and extend the lawful trade and commerce of Prince Edward Island. The question of incorporation of a company for such purpose was under the con- sideration of the Government in 1868, when the propriety of legislation of that province in a similar manner T^as doubted, and since that time it has been generally conceded that, as the regulation of trade and commerce is expressly committed to the parliament ! 37 vicTOiUA, 1874. 1159 therefore, that 4, n to 7, 9 to of Justice. ' the Covemor luary, 1875. id Island, of the ably of that pro- las the honour to year of the reign ity courts of judi- 1 guilty of perjury be prosecuted for iw and procedure, Iward Island. ^ ,he same. :)anada, 32 an nade applicable to above mentioned, iling the Supreme nterrogatories and itnesses in matters enacts that if false > offending shall be nature of criminal etence of the legis- Grovernor of Prince ) the same effect is which, when made ' this clause, ad chamber of com- B Chamber of Com- ly the second clause, ind the lawful trade was under the con- ion of that province generally conceded id to the parliament of the Dominion of Canada by the British North America Act, 1867, it is not within the competency of a i.ocal Legislature to pass sucli ii measure. A provision has iMJtm made generally for the incorporation of various boards of trade in the Dominion, by the Act of 1874, 37 Victoria, chap. ")1, and that Act being applicable to Prince Edward Island, will enable the inercantile community of Prince I'Idward Island to obtain the incorporation desired. The undersigned recommends, therefore, tiiat the government of Prince E.'.vard Islam 1 .should be invited to repeal this Act. It may also be mentioned that section 21 constitutes the crimi> of perjury. For the reasons given in a similar case, above, the undersigned is of opinion that, being criminal law, it is not within the competence of a local legislature. This point, however, is merged in the broader one above stated, upon which the repeal of t^his Act is suggested. Chapter 21. "An Act for amending the law relating to Controverted Elections of Members to serve in the General Assembly of Prince Edward Island, and for providing more effectually for the prevention of corrupt practices at elections." Section 3G provides as to the subpo'naiiig and swearing of witnesses, and adds that they shall be subject to the same penalties for perjury. This clause is taken from the Controverted Elections Act of Canada, 1874,37th Vic, chap. 10, sec. 49, the provision in respect to perjury being within the competence of parliament. It is suggested, however, that the enactment which thus provides penalties as to perjury is criminal law, and therefore not within the legislative competence of a local legislature. The undersigned suggests, therefore, the proprit^ty of the words " and shall be subject to the same penalties for perjury " being repi led. H. BERNARD, Deputi/ Minister of Justice. I concur. T. FOURNIER, Minister of Justice. n 1 ;' 73J 1160 PRINCE EDWARD ISLAND LEGISLATION PRINCE EDWARD iSLAND, 38th VICTORIA, 1875. 3rd Session — 26th General Assembly. Lieutenant-Governor Hodgson to the Secretary of State of Canada. Province op Prince Edward Island, Government House, 19th May, 1875. Sir, — I have the honour to transmit in triplicate two Acts passed in the late session of the general assembly, chaptered 5 and 6 respectively, and noted in the margin. Chap. 5: "An Act to ^hich were assented to by me, under the usual opinion from the Attorney General, that I might constitutionally do so. These Acts, I am infci-med, were introduced and prssed rather hurriedly, just previous co the close of the session, and it now appears some doubts have arisen whether the subjects dealt with by them, are within the constitutional jurisdiction of the looal iugislature under the terms of the Act of Confederation so called. I also transmit the Attorney General's reasons for their passing, and explana- tory f them, from which it will be seen, under the circumstances stated by him, how necessary some such measures are. I ^eg respectfully to press upon the attention of the government the necessity of as early a decision as possible upon the Acts in question ; one adverse to the right of the local legislalu'-3 to deal with the subjects involved in them, must inevitably lead to most disastrous and ruinous consequences, as regards the aflfairs and future well-being of the municipality of the city of Charlottetown. apjKtint a Stipendiary Magi trate for the City of Charlottetown. " Chap. 6: "An \ct to amend the Act to extend the Criminal Ju- risdiction of the Police Court in the City c' Charlottetown." I have, obviate this difticulty, this Act -/as passed. It, in effect, merely transfers the jurisdiction formerly held by the m^yovs court and the police court of this city, to a stipe'idiary magistnite, giving him only the same powers and uthorities as were former y exercised by the said two several courts. These courts, prior to this act, exercised ail the ordinary powers of a justice of the peace, besides having a fsummary jurisdiction in assaults and batteries, petty larcenies,! trespasses and breaches of the peace within the limits of fhe city, with power to punisliT by fine not exceedin'j; ten poundt; island currency, equal to .153144 Dominion currency] or by imprisonment not exceeding thirty days in some cases, and in others not exceed! ing six months. )RIA, 1875. of Canada, 19th May, 1875. laased in the lato session noted in the margin, usual opinion from the nally do so. introduced and pc'ised 1 of the session, and it ther the subjects dealt jnal jurisdiction of the A-ct of Confederation so r passing, and explana- stances stated by him, •nment the necessity of Iverse to the right of the must inevitably lead to s and future well-being DDGSON, Aeutenant-Governor. cken. .1., 19th May, .875. for tho city of Char!otte- ce (Doivning vs. City of of the city ut Charlotte- t oBences, arising under Dns who are judges under it was deemed illegal and ise. BFect, merely transfers the ce court of this city, to a and athorities as were powers of a justice of the jatteries, petty larcenies, ity, with power to punish 2.44 Dominion currency, ind in others not exceed- 38 VICTORIA, 1875. 1161 The salary of the magistrate is, by this Act, made payable, by the mayor and council, or t of the funds of the city. This /(V.ct is forwarded at this time, as it is greatly to be desired that it should go into operation at once, if not beyond the powers of our local legislature. Chap. 6. — " An Act to amend the Act to ex i end the Criminal Jurisdiction of the police court of Charlottetown." This Act was passed for the p'arpose of substituting a stipendiary magistrate fpi the police court. It deprives tho stipendiary magistrate of the power of punishing persons convicted of larcenies by lines, «hich Imth liitherto been the law. Experience has proved that it is desirable t<) amend the law in this respect. This Act is consequent on the Act, chap. 5, which accompanies it. FREDERICK J3RECKEN, Attorney General. ■■».■:• Renort of the Hon. the Minister of Justice, approved hy Ilii ExcpUency the Governor ^^•neral in Council on the IJ/th June, 1S70. Department of Justice, Ottawa, 26th May, 1875. The undersigned has the honour to report : That at the last session of the legis- ture of Prince Edward Island, a bill was passed by both houses, intituled : " The Lfind Purchase Act, 1874," which has been reserved by the Lieutenant-Governor for the signi- cation of the pleasure of your Excellencj' in Council. The objects in this bill are the same as those contemplated in the bill passed during the previous session, intituled: "The Land Purchase Act, 1874," which was also reserved for the signification of your Excellency's pleasure, which was not assented to bv your Excellency, for reasons contained in a report of the Minister of Justice of the 23rd December, 1874. By referring to this report, it will be observed that the reason a.lduced Tor withholding your Excellency's assent, was chiefly, that no provision was n'ade for an impartial arbitration, or in which the proprietors would have a representa- tion, in arriving at the value of their property, neither did it seem to provide for a speedy determination of the matters in dispute between the parties interested. In the Bill which is now referred, those objections have been removed, and a fair representation of the interests of all parties concerned has been provided for, and an impartial tribunal has been insured to each proprieter ; the bill providing for the appointment of three arbitrators, one to be named by the land proprietors, another to be named by the Lieutenant-Governor in Council, and the third by your Excellency in Council. The undersigned is of opinion, that the subject dealt with in the bill is one com- ing within the competence of a provincial legislature, and inasmuch as the objectionable features of the previous bill, have been removed, the undersigned recommends that the reserved bill, intituled: "The I.rfind Purchase Act, 1875," receive the assent of your Excellency in Council. T. FOURNIER, Acting Minister of Justice. Order in Co}tncil giving Assent to the Act abo-"" umntioned, ^mbfishedin the Canada Gazette on the '26th day of June, lS7o, Vol. VII ., '^o. 52, page 1712. Report of the Honourable the Minister of Justice, apjn-oved by His Excellency the Governor General in Council on the 23rd Novcmb'r, lS7o. Department op Justice, Oitawa, 28th October, 1875. Upon the Acts passed by the general assembly of the province of Prince Edward Island at its session held in the 38th year of Her Majesty's leign, being the third ses- - ; : ( 1162 PRINCE EDWARD ISLAND LEGISLATION sion of the twenty-sixth general assembly convened in the said island, the undersigned has the honour to report that the right of disallowance ought not to be exercised in respect of the following Acts, and he, therefore, recommends that they be left to their operation, chapters 2 to 5, and 7 to 31 inclusive. EDWARD BLAKE, Minister of Justice. Report of the Hon. the Minister of Justice, approved by His E.vcellency the Governor Genera, in Council on the 30th October, 1875. Department of Justice, Ottawa, 27th October, 1875. With reference to the statutes of the province of Prince Edward Island passed in the session of 1875, the undersigned begs respectfully to report as follows : — Chap. 1. "An Act to incorporate the Merchants, Marine Insurance Company of Prince Edward Island." By tliis statute certain persons are incorporated under the above title. By the 2nd section it is provided that the company shall have power to make with any person or persons, all insurances connected with marine risks against loss or damage, either by fire or by peril of navigation of or to any vessel, &c., either seagoing, or navi- gating upon the lakes, rivers or navigable waters. It appears to the undersigned that U'^der the express language of this clause it is attempted to give the company power to do an insurance business with persons not residents of the provinces, in respect of risks on vessels, not touching provincial ports, in a word to do a universal insurance business. The power of provincial legislatures to incorporate insurance companies is to be found, if at all, in the elc'enth subsection of the 92nd section, British North America Act, 1867, which gives to the local legislatures authority to make laws for the incorporation of companies with provincial objects. It appears to the undersigned that the powers attempted to be conferred on this company are beyond any fair construction of these words ; and he recommends that the attention of the government of Prince Edward Island be called to the Act, with a view to its amendment, by such a limitation of the powers of the company, as may obviate this objection. Chap. 6. " An Act to amend the Act to extend the Criminal Jurisdiction of the Police Court in the city of Charlottetown." This Act is in amendment of 22 Vic, chap. 3, of the statutes of Prince Edward Island, intituled : " An Act to extend the Criminal Jurisdiction of the Police Court in the city of Charlottetown." By that Act it was provided that the police court of the city of Charlottetown should have power to hear and ostermine in a summary manner, certain larcenies and the receiving of stolen goods within certain limits, and to punish the offender by fine Eot exceeding ten[pounds, or by imprisonment with or without hard labour not exceeding six months. By tiie Act now under consideration it is provided that the stipendiary magistrate shfill have the power so conferred upon the police court ; and by the 2nd and 3rd sec- tions it is provided that the penalty for the crimes shall be altered by striking out the words " by fine not exceeding ten pounds." It appears to the undersigned that this Intter amendment is an interference with the criminal law, beyond the competence of the local legislature, and that the attention of the Government of the island should be called to this Act, with a view of so amending it as to obviate this objection. EDWARD BLAKE, Minister of Justice, the undersigned be exercised in be left to their y AKE, ter of Justice. cy the Governor )ctober, 1875. Island passed in 0W8 : — I ranee Company of I title. )wer to make with nst loss or damage, seagoing, or navi- undersigned that jorapany power to 1 respect of risks on nsurance business, nies is to be found, lorth America Act, r the incorporation I conferred on this icommends that the le Act, with a view as may obviate this Jurisdiction of the of Prince Edward he Police Court in r of Charlottetown ertain larcenies and he offender by fine ■tbour not exceeding lendiary magistrate 3 2nd and 3rd sec- )y striking out the I interference with 1 that the attention view of so amending }/ Justice, 39 vicroRiA, 1876. 1163 ' PRINCE EDWARD ISLAND, 39th VICTORIA, 1876. 4th Session — 26tu General Assembly. The Lieutenant-Governor to the Hon. the Secretary of State for Canada. Government House, Prince Edward Island, 12th May, 1876. Sir, — I have the honour to transmit herewith for the consideration and approval of his Excellency the Governor General two Acts passed in the late session of the legis- lature of this province ; one intituled : " An Act to amend the Land Purchase Act, 1875 " ; the other intituled : " An Act relating to certain departments of the Public Service." The first named is in triplicate, s aled and certified in the usual manner, and accompany- ing it are the reasons, in duplicate, assigned by the Attorney General for its passing ; the second is in duplicate, also duly sealed and certified, and, likewise, accompanied with the reasons in duplicate, assigned by that officer for its passing. The Act amending the Land Purchase Act, 1875, was reserved by me for the signi- fication of his Excellency's pleasure thereon. To the Act relating to certain departments of the public service, my a.ssent was given. I beg respectfully to call his Excellency's attention to the Attorney General's report, and to his reasons therein stated, fur the passing of the Act amending the Land Pur- chase Act, 1875, in which I concur, and which appear to me so pertinent and cogent, and I think so clearly show how necessary its provisions are to the effectual working of the Act alluded to, as to call for no particular observations on my part, beyond expressing my hope that it will receive his Excellency's favourable consideration. The Act relating to certain public service departments, passed with the view of rendering them more efficient, will, I trust, have the desired effect, and claims, in my opinion, his Excellency's favourable consideration. The land commissioners' court standing adjourned till the 1st day of July next, it is very desirable to know his Excellency's pleasure as regards the Act amending the Land Purchase Act previous to that period. It will be perceived that the Act relatii. to the public service assented to by me, expressly declares that it shall come into operation on the first dcay of July next, and the complications would be serious if, after the changes conlemplated thereby have been carried out, his Excellency should think fit to refuse his a sent to it ; and, 1 therefore venture to express a hope that it may be convenient for iiis Kxcellency t signify his pleasure in relation to this Act also before the day specified. I have, ic, R. HODGSON, Lieutenu nt-Governor. Report of Hon. Attorney General, setting forth reasons for the 2:xissing of the Act to amend " The Land Purchase Act, 1S75." .Attorney General's Office, Charlottetown, 6th May, 1876. This Act wa'i passed by the legislature of this province last session for the purpose of removing doubts as to the meaning and construction of some of the provisions of " The Land Purchase Act, 1875," and to extend its powers. By the 28th section and subsections of said Act, it is provided that the commis- sioners appointed thereunder, in estimating the amount of compensation to be paid to a proprietor for his estate, should take into consideration the price at which other pro- prietors had heretofore sold their lands to the government, the number of acres under lease, the length of leases, the rent reserved, the arrears, the years over which they extend, and the probability of their being recovered, the number of acres unleased and their value, the gross rental actually paid for the previous six years, with the expenses incident to their collection, the number of acres held adversely, the reii unable proba- bilities of the pr'^prietor sustaining his claim against squatters and theexpei, es attending thereon, tlie performance or non-performance of tiie conditions in the original grants from the crown, the effect of such non-performance, and how far the several despatches from the English Colonial Secretaries to the Lieutenant-Governor of this island, or o^.her action of the Crown or government have operated as waivers of any forfeituies, the vjuit rents reserved in the original grants and how far the payments of the same have been waived or remitted by the Crown. Proceedings have been taken in many cases under " The Land Purchase Act, 1875," by the commissioner of public lands, for the purchase of the estates of propiietors, and awards have been made by the commissioners appointed to adjudicate thereon. The awards made in those cases adjudicated upon by the commissioners, of whom the Right Honourable Hugh Culling Eardiy Childers was chairman, were on the face of them silent as to the matters set forth in the sections 28 and its subsections, although, in fact, they were as fully investigated and inquired into by the commissioners, as the nature of the several cases would permit of, and were taken into their consideration in estimating the value of the landr,. This section was looked upon and construed as merely directory of the matters they were to consider in forming their conclusions as to the nature of the proprietor's estates. It never was contemplated as enacting matters which the commissioners should be bound specifically to set out on the face of their awards, such a construction as that would operate to defeat the object of the Act entirely, inasmuch as no specific award could be made on some of the points, such for instance as the boundaries of the land held by each squatter without endless trouble and expense. The awards were drawn in general terms, simply stating the sum awarded to the proprietor, giving no description of the land or the acreage, and making no reference to the matters mentioned in section 28. A large number of the proprietors whose estates were thus awarded for, have not appealed from the awards ; but the decision of the supreme court has thrown doubts upon the validity of these awards, which doubts it is essential should be removed. Applications were made in two cases on })ehalf of the proprietors (Miss Sullivan and the Honourable Ponsonby Fane) to n strain the public trustee from executing a coveyance of their estates under section 54 of the main Act, and to set .ude the awards on the grounds that they did not expressly find and determine on their face the matters mentioned in said section 28 and subsections ; 'and that they were uncertain, inasmuch that they did not describe the lands by metes and bounds nor give the acreage. The supreme court of this province has decided in favour of these objections, and has quashed the awards in both of the cases argued before them. The commissioner of public lands has appealed Miss Sullivan's case to the Supreme Court at Ottawa ; nej^otiations for a peaceful settlement of the Fane estate are pending. I have no hesitation in stating that the intention of the legislature was, that the facts and circumstances set forth in the said section 28 and subsections were merely to be taken into consideration by the commiss'oners in valuing the land, and not that the finding on each fact and circumstance should be specifically set forth in their awards. Indeed, it would seem, from the very matters themselves, that they were intended more as guides to the commissioners in making their awards, than subjects for any specific finding : such, for instance, as the probabilities of proprietors recovering land from squatters, and the effect of despatches from the Colonial Office relative to the performance and non-performance of the conditions, under which this island was originally granted away by the Crown. For the purpose of carrying out the intention of the local legislature, this Act provides that no awards heretofore made, or hereafter to 1)e made, shall be void by 39 vicToniA, 1876. 1165 which other pro- of acres under )ver which they es unleased and ath the expenses eii unable proba- p«ii^es attendinf^ ) original grants 3veral despatches s island, or oUier rfeitures, the vjuit B same have been chase Act, 1 875," ' proprietors, and •e thereon. The whom the Right he face of them ions, although, in inissioners, as the consideration in : the matters they oprietor's estates, sioners should be /ion as that would )ific award could the land held by m awarded to the ig no reference to tors whose estates le decision of the which doubts it is on liehalf of the ••strain the public ji the main Act, Lpressly find and subsections ; and mds by metes aud !se objections, and se to the Supreme state are pending, ture was, that the ms were merely to , and not that the in their awards, ley were intended subjects for any s recovering land Bee relative to the and was originally islature, this Act , shall be void by reason of the said facts and circumstances not being expressly found in such awards, but still retains to the Supreme Court the power of remitting them back to the commission- ers, in cases where they do not contain descriptions of the estates, and also power to restrain the public trustee from executing a conveyance of such estates, until a descrip- tion shall be settled by the court. It also extinguishes all quit rents and arrears thereof due on all estates adjudicated on, and releases the proprietors from all liability on account thereof. The Act also makes provision to meet the case of James E. Montgomery, Esq., who made an application to the Supreme Court to have the award in his case remitted back to the commissioners to correct an alleged omission. It appears that between the time of making the award and the order to remit it back, the Right Honourable Hugh Culling Eardley Childers, the commissioner appointed by his Excellency the Governor General, resigned his position and left this province ; doubts were conse- quently entertained whether the court as constituted after that gentleman's vacancy had been filled up, would be competent to review the matters taken in consideration by the commissioners who made the award. The Act gives Mr. Montgomery power to appoint a new commissioner, and pro- vides for the mode of procedure ; it also empowers the commissioners, if they think fit, to make a new award, and they are not to be tied down to the sum named in the award so remitted to them. These provisions and powers are not to be confined to Mr. Montgomery's case, but are to be general in their application, and are intended to apply to any similar case that may arise in working out the Land Purchase Act. The Act also makes provisions to meet the case of the estate of John Winsloe, a lunatic. The Master of the Rolls declined to appoint a commissioner to act on behalf of the proprietors, deciding tha). the provisions of the Land Purchase Act did not provide for such a case. This Act supplies this defect by declaring that the law shall extend to such cases. This estate of John Winsloe is the only estate owned by a lunatic proprietor, and as the lands surrounding it have been purchased under the Compulsory Act, it is thought necessary to make the law plain enough to embrace John Winsloe's estate. There is also provision made that, where notices for hearing cases have been given under section 14 of the principal Act, and such hearings from some cause or other have not taken place, that the proceedings are not to abate on that account, but that fresh notices may be given. There is a necessity for this amendment. The Act also extends the time stipulated in section 2 of the main Act for notify- ing proprietors of the government's intention to purchase their estates. There are one or two small estates that will elude the operation of this Act, if this amendment is not sanctioned. It is proposed to extend the time for a further period of sixty days from the publication of his Excellency the Governor General's assent to this Act. Provision ij also made to meet the case of a commissioner, who may be disqualified to act, on account of relationship to a proprietor, by authorizing the appointment of a new commissioner, ad hoc — a case has arisen which has rendered this provision necessary. The -deed from the T^ublic trustee to the Commi.'-sioner of Public Lands, on its production in any court of law or ecjuity in the province, is to be received as prima facie evidence that the proceedings taken under the Land Act have been regularly complied with ; this provision is, in my opinion, very necessary ; without it, it will be difficult to jirotect the interests of the government of this province, and will not, I think, work injustice to individuals. Proprietors, under this Act, will be required, before receiving the amount of their award, to deposit with the government their muniments of title, leases and plniis. Without this provision it will be difficult, if not impossible, for the Commissioner of Public Lands to carry out the sale of the lands to the tenants or occupiers. 116G PRINCE EDWARD ISLAND LEGISLATION The Act extends the definition of the term " proprietor " so as to include tenants in tail ; tiiis has become necessary in consequence of the decision come to by the Supreme Court, that the Land Purchase Act, 1875, only extends and applies to owners of lands in fee simple. As estates tail in land, situate in this province, may at any- time, be barred by the tenant in tail, who can exercise as full a disposing control over such estates as a tenant in fee, it is not considered that this provision is of an objection- able or exceptional character. Provision is made that nothing in this Act shall, in anyway, aftect the case of Miss Sullivan, appealed from the Supreme Court of this province to the Supreme Court of the Dominion of Canada, All the provisions of this Act, are in my opinion, absolutely necessary for the satisfactory and speedy winding up of the long vexed land question of this province. It involves no new principle, (/uoacl the intentions of the framers of the principal Act, and will not work any wrong or injury to any proprietor, and is really an Act to remedy practical defects many of which were not foreseen when the Land Purchaae Act, 1875, was passed, and have arisen chiefly from the construction put upon that Act by the Supreme Court of this province. As the Land Commissioner's Court stands adjourned to the 1st July next, it is very desirable to obtain his Excellency the Governor General's decision upon the Act in question, before that date, if possible. FREDERICK BRECKEN, Attorney General. Report of tfie Hon. the Minister of Justice, approved by His Excellency, the Gwernor General in Council on the ,iGth May, 1876. Department of Justice, Ottawa, 23rd May, 1876. Upon a despatch from the Lieutenant-Governor of Prince Edward Island, dated the 12th May instant, and submitting an Act passed by the legislature of the province of Prince Edward Island at its late" session, intituled : — " An Act relating to certain Departments of the Public Service ;" The undersigned has the honour to recommend that your Excellency in Council do not exercise the right of disallowance thereof, but that the same be left to its opeiation. EDWARD BLAKE, Minister of Justice. The Lieute7ia7it- Governor to the Hon. the Secretary of State of Canada. Government House, Prince Edward Island, 15th June, 1876. Sir, — I have the honour to transmit, in duplicate, an Act, chap. 3, intituled : " An Act further securing the independence of the General Assembly," passed in the late session of the local legislature, duly certified and sealed under the provincial great seal, and also to transmit therewith, in dnplicate reasons assigned by the Solicitor General, in the absence of the Attorney General, for its passing, to which Act my assent was given. The period for which the present House (if Assembly is elected, as defined by statute, will expire in the month of April next, and my government have informed me that it is their intention to advise a dissolution, in order that a general election may take place in the month of August next, which, they assert, will be the time most convenient to the constituency for such purpose. «»*f"V- ■i|ll i| il^ ytfj||f «l | i ' |l u l J il 'J ! i'jHMMw' ' H l ^i |' ! ' l>W. ' l? include tenants 3n come to by the applies to owners [ice, may at any- Dsing control over is of an objection- this Act shall, in eme Court of this necessary for the of this province, the principal Act, really an Act to he Land Purchase ition put upon that st July next, it is ion upon the Act EN, orney General, ency, the Gwernor 3rd May, 1876. ward Island, dated bure of the province relating to certain Uency in Council do left to its operation. AKE, lister of Justice. ! of Canada. [5th June, 1876. ,p. 3, intituled : " An ' passed in the late • the provincial great ;ned by the Solicitor g, to which Act my elected, as defined by nt have informed me \eral election may take 3 time most convenient 39 VICTORIA, 1876. 1167 Under these circumstances, it is very desirable that his Excellency the Governor General's pleasure should be pronounced upon the Act in question; previous to a dissolu- tion, as effecting the status of persons eligible for seats in the local legislature, and I therefore beg t' express the hope that it may be convenient for his Excellency to signify his pleasure thereupon at an early day. I have, &c., ■ R. HODGSON, Lieutenant-Governor. Reasons of Hon. Mr. Solicitor General Sullivan. Solicitor-General's Office, Ciiarlottetown, P E.I., 15th June, 1876. Reasons for enacting the' following statutes, 39tli Victoria, cap. 3 : "An Act further securing the Independence of the General Assembly." This Act was passed, as its title indicates, for the purpose of securing the inde- pendence of the general assembly of this province. Previous to its enactment there was no limit to the number of officials or persons in public employments, who might hold seats in the local legislature, many of whom, under the then existing law, were not required to seek re election on obtaining such appointments, nor was there any law preventing persons from holding seats in the provincial legislature whilst being members of the Senate or of the House of Commons of Canada. This state of things was considered derogatory to the independence of the local legislature, and the above- mentioned statute was enacted for the purpose of limiting the number of officials and others in public employment, who may hold seats in the general assembly, as well as abolishing dual representation. The Act also contains ordinary, and what has been deemed necessary provisions, for the regulation of the mode in which the Speaker and other members of the as- sembly may resign their seats. . W. W. SULLIVAN, Solicitor General. Report of the Hon. the Minister of Justice, approved hy His Excellency the Governor General in Council on the 21st Jidy, 1876. Department of Justice, Ottawa, 24th June, 1876. The undersigned has the honour to report : — That by a despatch of the 15th June instant, the Lieutenant-Governor of the province of Prince Edward Island transmits an Act passed in the last session of that Island : ^ c \ n ^ Chapter 3, intituled ; "An Act further securing the independence of the General Assembly," together with the reasons assigned by the Solicitor General for its passing, to which Act the Lieutenant-Governor had given his assent. The Lieutenant-Governor, under the circumstances mentioned in his despatch, ex- presses a hope that the pleasure of the Governor General may be pronounced thereupon at an early day. , £ n • Upon perusual of the Act, and of the report of the Solicitor General ot Prince Edv.'ard Island, the undersigned has t!"^ honour to recommend that the right of dis- allowance in regard to this Act oi tb egislature of Prince Edward Island, chapter 3, and intituled : "An Act further securing the Independence of the General Assembly," be not exercised. H. BERNARD, I concur. Deputy Minister of Justice. R. W. SCOTT, Acting Minister of Justice 1168 PRINCE EDWARD IHLAND LEQISLATION Jieport of the lion, the Minister of Justice approved hy His Excellency the Governor General in Council on the Hht July, 1S70. Department op Justice, Ottawa, 30th June, 1876. Reference is made of a despatch of Sir Robert Hodgson, Lieutenant-Governor of Prince Edward Island, inclosing certified copy of an Act passed by the legislature of that island, 39th Vic, cap. 5, being "An Act to facilitate the purchase of the Estates of Proprietors under the Land Purchnse Act, 1875." The Despatch also transmitted the report of the Solicitor General, with reasons for its passage. The Lieutenant-Governor remarks that the Act in question will be a valuable auxiliary to the Land Purchase Act, 1875, and that as several of the proprietors are de- sirious of availing themselves of its provisions, he ventures to express the hope that it will receive the favourable consideration of the Governor General, and that it may be convenient for his Excellency to signify such his consideration at an early period. The report of the Solicitor General stjites, that the statute empowers the Com- missioner of Public Lands to accept voluntary conveyances from proprietors, for whose lands awards have been made under the Land Purchase Act, 1875. In that Act there is no provision authorizing such conveyances, and several pro- prietors have expressed their willingness to execute deeds on payment U> them of the sums awarded in their favour. This Act was passed to legalize such conveyances and payments. Such is the effect also of the preamble to the Act, which is borne out by the details of the Act itself. The undersigned recommends, therefore, that the right of disallowance by his Ex- cellency the Governor General, of an Act of the legislature of the province of Prince Edward Island, passed on the 29th April, 1876, and intituled : "An Act to facilitate the purchase of the estates of proprietors under the Land Purchase Act, 1875," be not exercised. R. W. SCOTT, ' Acting Minister of Justice. Mr. Edward J. Hodgson to the Hon. the Secretary of State for Canada. Ottawa, 8th June, 1876. Sir, — The legislature of Prince Edward Island during the last session, passed an Act in amendment of " The Land Purchase Act, 1875," which very seriously affects the rights and the property of persons holding land in that province. The Act was introduced and passed through the legislature without any notice to those who will be affected by its provisions, and it was only today that I had an oppor- tunity of partially making myself acquainted with its contents. The Lieutenant Governor of Prince Edward Island declined to give his assent to it, and reserved it for the consideration of his Excellency the Governor. The Act is for the purpose of giving effect to certain awards considered to be void by those whose property is dealt with by them. An award similar to these now attempted to be legalized, has been declared to be void by the Supreme Court of Prince Edward Island, and the propriety of the decision is now under the consideration of the Supreme Court of Car ada. In one case, one of my clients, Miss Helen McDonald, of Montreal, has moved the Supreme Court of Prince Edward Island to set aside her award. The Act, if assented to, will have the effect of declaring her award to be valid, and, not only so, but there are no provisions made for indemnifying her in the costs incurred by her in the pro- ceedings she has instituted. 1 39 VICTORIA, 1876. 1169 (cy the Governor June, 187< ant-Goveruor of he legislature of 86 of the Estates 1 with reasons for ill be a valuable roprietors are de- the hope that it nd that it may be irly period, powers the Com- •rietors, for whose 8, and several pro- nt to them of the 1 conveyances and out by the details 9wance by his Ex- province of Prince n Act to facilitate Act, 1875," be not iter of Justice. yr Canada. ;h June, 1876. session an leriously affects the thout any notice to lat I had an oppor- {ive his assent to it, nsidered to be void lilar to these now me Court of Prince consideration of the real, has moved the he Act, if assented only so, but there i by her in the pro- In my own case, the commissioner who acted for me last November went to England, and has only just returned. 1 intended to have moved to set aside the award, but required his atlidavit to enable mo to do so. I am now in a position to obtain it, but should I commence proceedings to set it avside, and if even succeed in so doing, this Act will, by reivson of its retroactive aspect, give validity to an instrument containing defects which the Supreme Court has already declared are fatal to an instrument pre- cisely similar in its terms ; and not only will this injustice be wrought, l)ut T shall be compelled to pay the costs for instituting proceedings which, at the time I commenced them, I had a clear legal right so to do, but which I am deprived of by ex post Jacto legislation. Memorials showing these and still greater hardships are in course of preparation, and his Excellency will be prayed to withhold hi? assent from this measure. The secrecy and celerity with which it was introduced and carried, is the rea.son why memo- rials against it have not been sooner presented, for it is a matter of impossibility for parties residing thousands of miles from Prince Eklward Island to become ac<|uainted with proceedings such as these, except by the ordinary course of the transmission of news through the post. I, therefore, respectfully request that his Excellency will be pleased to delay the consideration of this Act, until he has an opportunity of also considering the memorial:^ which will be presented against it. I have, (fee. EDWARD J. HODGSON. Mr, Stewart to His Excellency the Governm' General. Serath Gartney, P.E. Island, 8th June, 1876. My Lord, — I am now about to hand in my title deeds, and those of my late father, to the Prothonotary of the Supreme Court of Judicature in this Island. Having pro- tested against every stage of "The Land Purchase Act, 1875," I now most respectfully beg to protest against this, the last compulsory enactment to which I expect to be sub- jected under that Act, by virtue of which the two commissioners who signed the award, apportioned seventy-six thousand five hundred dollars to me, for an inheritance worth, at least, five times that amount. Your lordship is in postession of the memorial and mentorandum which I had the honour of addressing to the Earl of Carnarvon, and which he transmitted to your lordship for your consideration. I have, Ac, ROBERT ]JRUCE STEWART. Mr. Edward J. Hodgson to His Excellency the Governor General. Library op Parliament, Ottawa, 17th June, 1876. To the Right Honourable the Earl of Dufferin, K.CB., &c., d:c., Governor General of Canada. May it please Your Excellency : — As one of the propri:'tors of lands in Prince Edward Island, and also as counsel for all the English proprietors and nearly all those resident theitin, I ventuie to address your Excellency on their behalf, with reference to an Act passed by ',wo branches of the legislature of Prince Edward Island (but not assented to by Sir Robert Hodjjson, the Lieitenant-Governor), intituled : " An Act to amend the Land Purchase Act, 1876." i 1170 PRINCE KUWARU ISLAND LEQIttLATION Since the passing of the Land Purchase Act, 187ft, the following proprietors have received what has been awarded tor theii estates, and, therefore, I do not upeak on their behalf, viz. : 4. William Cundall. 5. Miss Cundall. 1. Uoljert Bruce Stewart. 2. S. C. B. Ponsonby Fane. 3. George W, Delilois. I left Charlottetown, P.E.I., last Monday week, to attend the Supreme Court of Canada, for the argument of Miss Sullivan's case under this Act. At that time the proprietors, whose names I have given above, are those r again. It would be unaviiiling for the proprietor to pleail that this matter had been determined, und that already thousands of dollars had i)een deducted from him. Me could not plead the awai' find respecting — (1.) The conditions of the original grants from the Crown. (2.) The performance or non-performance of the.se conditions. (3.) The effects of such non-performance. ("The Land Purchase Act, 1875," section 28, subsection e.) A course .somewhat similar to that already pointed out regarding the quit rents would be pursued, but with consequences still more serious to the proprietor. The Crown has ceded all its rights in the lands in Prince Edward Island to the government of that colony. Having got possession of the proprietors' lands, it. would be an easy matter to procure an inquest of office, to find whether the conditions of the original grants have been prefoimed. But it may Ije said, if upon the execution of this inquest of office, it were found that the land is liable to escheat, how could it effect the proprietors? Very seriously, and in this way — upon the resumption of the lends by the government of Prince Edward Island, every tenant is liable to be ejected from his farm, and under the covenant of quiet enjoyment contained in his lease, he would have his remedy by an action for damages against his landlord. The tenants who have had no leases would have no cause to fear from the a-tion of the government, nor, indeed, would those who have leases, they would be well recouped for any temporary dispossession or liability to such,but the power of forcing a landlord into court to answer actions of damages by hundreds of tenants would never be allowed to lie dormant, stripped of their property, allowed in many instances not one-third of its value, the unfortunate pro- prietors never would be allowed to withdraw from the island the pittance they have been awarded, in order to invest it in some other portion of Her Majesty's realms, where to own land is not considered in the light of a crime. This, in truth and in fact, is the real reason why this Act, now petitioned against, has been passed. The proprietors are withdrawing the money they have received to invest it elsewhere ; their experience of owning property in Prince Edward Island has been too bitter and too dearly purchased, to induce them to risk furt'ier there the wreck of their property. To stop this withdrawal of their money is now sought, and it Uj :3t be admitted that the mode taken is a most injurious one. When the proprietors are brought into court to answer their tenants for disturbing of their holdings umier the proceedings soon to be instituted, it will be useless for them to produce the bald, naked award, consisting of twenty-three words, exclusive of the amount, for it raises no presumption that this matter has been determined. 1172 PRINCR EDWARD ISLAND LKQISLATION If the umprietors are entitled to protection in the matter of quit reutH, ami tlie the legislature of Prince P^dwnrd lulnnd have conceded that point, they are alno entitled to protection from l)eing twice charged with damageH, on account of alleged non-per- formance of the conditions of the original grant. liut there is another matter which the comminsionerH are bound to find under section 28, of which, by the amending Act, they are relieved from doing, and, although it does not affect so many of the proprietors, still there are some who will l)e very seriously injured by its omission from the award. It is the direction to find the arrears of rent. The '-oMimissioners have every power enabling them to do this. They can compel, under section 20, the production of all documents, books, papers, &c., in order to enable them to see how the estate standn. Where a proprietor has died, the arrears of rent due at the time of his death pass to his executors, the rents, being incident to the reversion, pass with it to the heir-at-law or the devisee. There is a class of cases of this kind which has been dealt with by the commis- sioners ; under their award a lump sum hivs been given. Now, when the executor goes into the Supreme Court to ask for his 8hii.re of the award, due since the arrears due to the deceased proprietor at the time of his death, if the award had set out, as it should have done, the arreai-s of rent, there wouhl have been no diHiculty. But, under the award sought to be confirmed, how can the court tell what amount he is entitled to 1 It may be assumed that, in any cose, something has been deducted from these arrears. How can the Supreme Court tell how much ? If it gives the executor more than the commissioners, it must coino out of the lump sum awarded, and the proprietor unjustly loses by the amount of such excess. If it gives less than the commissioners, the executor loses the deficiency. I am the administrator cum testameuto annexo of the estate of the Rev. John McDonald, which, at his death, passed to his nephew the Rev. G. A. S. McDonald. But the arears due at the time of the first named gentleman's death passed to me, and when collected are to l)e handed over to Cardinal Manning, in trust for certain charit- able purposes in England. I would here quote the words of Judge Peters, one of the judges of the Supreme Court of Prince Edward Island, in giving judgment in Miss Sullivan's case : " There are two lines in the 20th section (of The Land Purchase Act, 1875), which I think have been very much overlooked. They are these : 'and the facts which they may require to ascertain, in order to carry this Act into effect.' The mean- ing of these I take to be is, facts which it is their duty to ascertain, in order to give full effect to this Act. This goes far beyond what they themselves have to perform. It points to all that has to be done by others to carry out what they have begun. To what the public trustee has to do, and to what this court has to do in making distribu- tion. I see it stated that in one case the arrears are assigned to Cardinal Manning. If the award finds a lump sum, and the Cardinal's claim comes in to participate in the distribution, how could we ascertain how much of the lump sum was awarded in respect of the land, and how much in respect of arrears of rent? We could make no distribu- tion in such a case, and the same thing may happen in other cases where arrears are due to the deceased proprietor, and the present proprietor is not his personal represen- tative, we could be compelled to hold the award void in such a case." There is, however, another consideration which I venture to press upon your Excellency's consideration, as even a still stronger reason why this Act should not be permitted to go into operation. It assumes (and assumes correctly enough) that awards made in the general terms, above alluded to, are void. In some instances application has already betm made to the court to set them aside. In an application made by myself, as representing Miss Helen McDonald, of Montreal, proceedings have been taken in the Supreme Court to set aside the L\ward, for the very defects which this Act now legalizes. The words of the first section of the Act are so strong that they will have, as they are intended to have, a retroactive aspect, so as to make the proceedings already taken of no effect, nor does it provide that the parties who have taken these proceedings shall be indemnified in their costs. 3'J VICTORIA, 1876. 1173 ; reiitH, and the iiru (iIho entitled iilloged iion-per- vl to find under \H, iind, although who will Im very J find the arrears rhey can compel, n order to enable of his death pa-ss to the heir-at-law h by the commia- jxecutorgoeu into ue to the deceased lid have done, the ivard sought to be t may be assumed s. How can the he commissioners, justly loses by the xecutor loses the jstate of the Rev. A. S. McDonald, passed to me, and 'or certain charit- Peters, one of the judgment in Miss md Purchase Act, se ; ' and the facts feet.' The mean- L order to give full e to perform. It have begun. To 1 ranking distribu- inal Manning. If participate in the awarded in respect make no distribu- where arrears are personal represen- press upon your Vet should not be the general terms, Y been made to the enting Miss Helen I Court to set aside words of the first tended to have, a I effect, nor does it idemnified in their I beg to direct your Excellei\ry's attention to the opinion.s of English judges to egisliition such iis this, iis reported in the case of Moore rn. |)urdeh, "J Kxchcijucr {{(•ports, p. •Jl'. In tliat case the court refused to follow tin' rule which re(|uin's Acts of piirliiiiiient to !)(! construed, by giving to its liingunge the intCM')iretiiti(>n ordimirily attiic)i< d to it, Ix-iiiuso its effect would be to make tint illegiii wliicli, but for nuch rule, would have been legal. Aldersoii, \\., miyn : — " It is coiitiary to the first principles of justice to puni.sh those who liavc! offended a;;aiiistr no law, and surely to take away existing lights, without eoinpensalion, is in the nature of [junislnnent." His lordship furtli'>r statt'd that he woidd not supptwo " that tlio legislature contemplated so gross an at i -f injustice as, without coniptm'-'ation, to tak(! away, an existing i-iglit of action, alreaily nending, and that tno with no provision even for the costs int'urred in the etjforcing of what was before a legal right ; ' but it was ailded that this was only a rule of construction, and would yield to the intention of the l(!gislature, if sutUciently ((xpressod. There can be but little doubt that, in the Act now under consideration, the legislature has (expressed itself in such a manner " that the first principles of justice " have been violated in enacting " so gross an act of injustice as, without compensation, to take away an existing right." The words of the first section, " no award heretofore made, or hereafter to bo made," will compel the court " to punish those who have offended against no law," by compelling them to relinijuish proceedings in a court of law, which, at the time they instituted them, they had a legal right sf) to do, and by compelling them to pay the costs for availing themselves of a perfectly legal right. Hut surely this great wrong, ineffective as it will be for us to argue, should this Act become law, is a strong valid reason why its operation should be stayed, and why the proprietors, whose great misfortune it is to hold I.iu'ls in Prince PMward Island, should not be still further impressed by .so cruel an act of injustice. Any forbearance, any clemency on the part of the commissioner of public lands, the proprietors have no rea.son to hope for or to expcot ; and I would point to your Ex- cellency that section 1 1 of this Act, now under consideration, arms him with power to «"iz3 the lands of an unfortunate lunatic, whose income barely enables him to be sup- ported in the Provincial Asylum at Nova Scotia. When the estate had been taken away, if anything be left him at all, after the Attorney General has procured the con- fiscation of a large proportion of his award, in the manner I have already pointed out, his fate will, indeed, be a sad one. This, however, is a matter in which I have not a right to address your Excellency except in the interest of common humanity ; but knowing the circumstances, that the son of an English gentleman, now decea.sed, an unfortunate lunatic in the Nova Scotia asylum, is sought to be deprived of his property, and that sections 11 and 12 of this Act, now under consideration, amount to and are intended as a statutory reversal of the decision of the master of the rolls of Prince Edward Island, in whose charge he is ; in the matter of the estate of that very lunatic, I venture tt) express the hope that your Excellency will cause the decision to be laid before you, before your Excellency will cause the royal assent to be given to so objectionable a measure. The question whether the "Land Purchase Act, 1875," is not n/tra vires, being in exce.ss of the jurisdiction given to the local legislature under the British North America Act, isas been raised on behalf of the proprietors, and has been decided ad- versely to their contention that it i. so ; such being the case, the measure, as under consideration, is freed from any of those considerations which attach to the giving of the royal assent to those measures over which the Dominion government has juris- diction. Before the admission of Prince Edward Island into the Dominion, it was not unusual for those whose rights were attacked by Acts of a nature similar to this, to lay their humble petition at the foot of the throne. Since confederation, they now cannot do it, but in matters such as this, solely under the control of the local legis- lature. Your Excellency is regarded as in no ordinary degree the special representative of the Queen's Majesty, clothed with the authority, and we dare not doubt, not indis- 74 1174 PRINCE EDWARD ISLAND LEGISLATION posed to use it to protect those of Her Majesty's subjects, who are conscious of having done no wrong, and who humbly trust that, although they are possessors of landed estate, out of England, your Excellency will not on that account refrain from exercis- ing the royal prerogative, to save them from being the victims of a cruel wrong, by the operation of a harsh, unjust and oppressive measure. I have, &c., EDWARD J. HODGSON. Petition oj certain Proprietors and Oumers of Land in Prince Edivard Island. To His Excellency the Right Honourable Sir Frederic Temple, Baronet, Earl uf Dufferin, Governor General of Canada, (Sec, dtc, dtc. The humble petition of the undersigned proprietors and owners of land in Prince Edward island, respectfully showeth : — That an Act was passed at the last session of the general assembly of Prince Edward Island, intituled : " An Act to amend the Land Purchase Act, 1875," which was reserved for the signification of your Excellency's pleasure thereon, and which is of so unusual a nature, and will, if assented to, so prejudicially affect your petitioners that they solicit your Excell3nc3''s attention to some of its provisions. The Land Purchase Act of 1875, in the opinion of your petitioners, affected the rights of private property to an unusual extent, and the Act of last session is an attempt to cure certain omissions and errors committed by the commissioners, appointed under that Act, in proceedings before them which are still pending between the government on the one side and certain proprietors on the other. Although it was notorious, at the time of passing the \ct, that these errors would be made the ground of judicial applica- tions to set aside these proceedings, and the awards founded upon them, whenever the government attempted to enforce them. Indeed, at the very time of passing the Act, awards made in the estates of certain proprietors had been declared invalid by the supreme court of the colony, for objections similar to those which the government now attempt, by special legislation, to correct in the ca,cc of father proprietors. By the "Land Purchase Act of 1875," leave is reserved to proprietors to make appli- cation to the Supreme Court, within a limited period after the making of awards, to ha\e those awards remitted back to the commissioners for reconsideration. But because certain of your petitioners were advised that the awards made in their cases were illegal aiid void, they allowed the time granted for applications to remit them back to elapseJ relying on their ordinary right to oppose the awards, whenever the government attemptec to enforce them ; but tae government now seek, by retrospective legislation, to removd objections that have been judicially decided to be fatal to the awards, and, by thai legislation, make no provision for enabling the proprietors, thus subjected to the conse quences of these irregular and erroneous awards, to have them remitted back to commissioners for amendmeiit or correction. The " Land Purchase Act of 1875 " makes no provision for indemnifying prq prietors whose estates are adjudicated on in the co.araissioners' court, against expense to their solicitors' counsel, and witnesses, and the pecond section of the Act of 181 renders awards legal, without any description of the lanrls taken iiom proprietors, bu subjects such proprietors to the additional expense of settling the description ot sue lands by the Supreme Court or a judge thereof, and makes no provision for refundir such proprietors the expense caused by such additional proceeding. Your petitioners submit that, inasmuch as, by the Land Purchase Act, 1875, prl prietors are allowed to retain certain por'ions of their lands derined by the Act, whif the rest is compulsorily taken from thern, it is but reasonable and proper that the cod missioners should be required to distinguish in their awards the portion of each esta taken from the portion reserved ; an'i that it is arbitrary and unjust, by retrospectii legislation, to subject proprietors to the expense of having the omissions and errors | ^ -■•^:vmnviv \>ii ''Vf^'M v j j aer'f^*rt- 39 VICTORIA, 1876. 1175 ,re conscious of having re possessors of landed nt refrain from exercis- ims of a cruel wrong, [D J. HODGSON. nee Edward Island, aronet, Earl uf Dufferin, iwners of land in Prince eral assembly of Prince ,se Act, 1875," which was reon, and which is of so 3ct your petitioners that ns. petitioners, affected the ' last session is an attempt ssioners, appointed under 3tween the government on it was notorious, at the ground of judicial applica- upon them, whenever the ' time of passing the Act, n declared invalid by the hich the government now proprietors. proprietors to make appli- the making of awards, to Dnsideratior- But because ? in their cases were illegal remit them back to elapse, the government attempted 3tive legislation, to remove 1 the awards, and, by that hus subjected to the conse- bem remitted back to the ion for indemnifying pro- ers' court, against expenses section of the Act of 1875 taken iiom proprietors, but ing the description of such no provision lor refunding eeding. id Purchase Act, 1875, pro- 8 deriued by the Act, while lie and proper that the com- Is the portion of each estate and unjust, by retrospective the omissions and errors of the commissioners corrected by additional proceedings before the Supreme Court, without at least providing for the payment of all expenses incident to such supplemental litigation. The estate of your petitioner, James Frederick Montgomery, was adjudicated on by the commissioners, who made an award in September last, and your petitioner discovered, after the same was made, that one year's rent was omitted by them from the award, under the impression that your petitioner could recover that year's rent, notwithstand- in<' the award ; whereas, in fact, it could not, be so recovered, because it -vas overdue in law at the time tie award was made, although in fact the custom pursued by your peti- tioner with his tenants, was not to collect it until the autumn following. Your pet'cioner, James F. Montgomery, on discovering this omission, applied to the Supreme Court, pursuant to the provisions of the Land Purchase Act, 1875, to have his award remitted back to the comi^issione?:s to correct the alleged errar, and an order was made in October last remitting back the award to the commissioners for correction. No application was made by the government to have his award remitted back or set aside. He has urged the commissioner of public land, in whose name these proceedings on behalf of the government are conducted, to have the case re-heard, but hitherto, without success. He has also made repeated reasonable offers fo»' the voluntary conveyance of his estate to the govenmient. If he is in order concerning the said year's rent, the amount of the award should stand ; on the other hand, if that year's rent has really been omitted, the amount of the award should be increased. But the government, instead of entertaining his offers of a voluntary settlement, or bringing the case to a re-hearing within a rea::onable time, now pass an Act affecting him individually, and enabling cer- tain persons therein named to hear and re-hear all the evidence, and to make a new awar.l (see section 4) ; and by section 7 of the same Act, such new award may give your petitioner a less amount than was awarded by the commissioners, whose award has been so remitted back. The commissioner on behalf of the local governmont has made and filed an affidavit against the claim of your petitioner, James F. Montgomery, notwithstanding which the Supreme Court remitted back the award. The present commissioner af.pointed by the Governor General had not been appointed when your petitioner's case was heard. If the Act of 1870 Vjecomes law, your petitioner will be obliged to go to the expense of having the whole case re-heard, and all his evidence reproduced, for the information of the new commissioner, to avoid the danger of having hi;j award reduced, notwithstanding the fact that the alleged omission for which his awe,i J vas remitted back, consists of whether said year's rent was omitted. Even if your petitioner is in error in contending that it has been omitted, the fact of his being so mistaken could not lessen the award. No provision is made by either Act, by which your petitioner can recover the expenses of the former or subsequent hearings, and he confidently hopes that your Excellency will not sanction retrospective and personal legislation of this kind, enacted without cause, and the only effect of which would be to harass your petitioners unnecessarily. Your Excellency will observe that while your petitioner is thus dealt with personally and by name, and put to the annoyance iind exp-^nse of a general re-hearing, the same Act provides that in all other cases (see section 8) when awards are remitted back, the dr.ty of the commissioners in such case iu confined to correct the very error for which such awards are so remitted back. Your petitioners show that special provision is made by section 1 1 or the Act for bringing the estate of John Wiiisloe, a lunatic, - ^thin the operations of the Land Pur- chase Act, 1875, on the ground that doubts havt been expressed whether the p>-ovisior s of the said Act extend to or embrace such a case ; what this Act terms a "doubt," your petitioners are informed is really a judicial decision of the Master of the Rolls of this island. ^ Your petitioners learn that the committee of the said lunatic on being notified by the government under the Land Purchase Act, 1875, petitioned the Master of the Rolls (who has co-ordinate jurisdiction with the Chancellor concerning lunatics and their estates) for the appointment of a commissioner for said lunatic's estate, under the Land Purchase Act, 1875, and the Master of the Rolls gavo a written decision or judgment 7H 1176 PRINCE EDWARD ISLAND LEGISLATION deciding that the case was not within the provisions of the statute. A copy of that judgment was served by the lunatic's committee or trustee on the commissioner of public lands. The government took no steps to over-rule or appeal from the decision of the Master of the Rolls, but they now adopt the summary method of annulling that decision by an Act of parliament. Your petitioners also show that certain proprietors have been notified that their estates would be valued, and taken under the provisions of the Land Purchase Act, 1875, that such proprietors appointed commissioners, and were in attendance at the commissioners' court with their witnesses, but the court, in the fall of 1875, suspended its labours, without hearing these cases, and it is now sought (see section 1 3) to revive pro- ceedings which have abated through the neglect of the government, without indemnifying such proprietors in their former or future costs. In some instances, when proceedings so abated the then owners or proprietors of land executed conveyances, and made other legitimate dispositions of property, and your petitioners submit that it would be unjust to revive these proceedings by means of an Act of parliament, and have these lands compulsorily assigned to the government with- out notice to the persons, who, since the abatement of the proceedings, have acquired them by purchase or conveyance. Your petitioners cannot allow the 17th section of the Act to pass without pointing out the extraordinary and dangerous eflfect sought to be given to deeds executed by the public trustee. It is well established that the commissioners who appraise estates have no power to adjudicate upon titles. If the commissioners appraise lauds in which the proprietor has only a life interest (as in fact they have done), and the public trustee executes a deed of such lands to the government, this section raises a presumption that such deed conveys an estate in fee simple ; again, many occupants of lands on estates, hold lands by virtue of many years' occupation, but, if this section becomes law, the deed of the public trustee will be primA facin evidence that the grantee named in such deed, and not the occupant of the land is seized in fee simple. Your petitioners lastly show that many of the proceedings taken in the commission- ers' court, and which are pending and undetermined, are manifestly irregular, informal and invalid. And they submit that it is unusual and contrary to the course of British legislation to correct mistakes and remove doubts in contested proceedings by one sided and retrospective legislation in the manner sought to be effected by this Act, and your petitioners pray that in view of the exceptional, novel and dangerous nature of the pro- visions of the Act in question, your Excellency will be pleased to prevent its becoming law, and your petitioners, as in duty bound, will ever pray. James F. Montgomery, Rev. Joh.m A. S. McDonald, Janf B. Douse, ARiMJELLA Douse, John A. McDonell, J. P. Douse, \V. C. McDonald, by his Attorney. Alex. McLean, Edward J. HoDfisoN, Helen Jane McDonald. Report of the Hon. the Minister of Justice, approved by His Excellency the Governor General in Council on the 2lHt July, 1876. Department of Justice, Ottawa, 18th July, 1876. The undersigned has the honour to report, that a despatch from the Lieutennnt- Governor of Prince Edward Island of the 12th May last, mentioned, for the conside- ration of the Governed- General, two Acts passed by the legislature of the province, as to one of which, relating to certain departments of the public service, actioil has already been taken ; As to the other bill so transmitted, it is intituled; "An Act to amend the Land Purchase Act, 1875," and was reserved by the Lieutenant-Governor for the signification of the Governor General's pleasure. A copy of that isionerof public decision of the ng that decision )tified that their d Purchase Act, ttendance at the 1875, suspended 3) to revive pro- ut indeuniifying or proprietors of operty, and your 3 by means of an ;overnnient with- ys, have acquired without pointing ;eds executed by ) appraise estates ie lands in which ;he public trustee presumption that lands on estates, nies law, the deed ned in such deed, 1 the commission- rregular, informal course of British lings by one sided his Act, and your nature of the pro- vent its becoming lLD, ency the Governor 1 July, 1876. •m the Lieutennnt- id, for the conside- if the province, as actioh has already ,o amend the Land or the significatioa 39 VICTORIA, 1876. 1177 AV^ith the despatch of the Lieutenant-Governor is a certified copy of thsbillso reserved, and the report of the Attorney General, giving his reasons for the passing of the same by the council and assembly. The Lieutenant-Governor calls attention to the Attorney General's report, and his reasons therein stated for the passing of the Act, in which he (the Lieutenant-(iovern()r) concurs, and he expresses his hope that it will receive his Excellency's consideration. The Lieutenant-Governor adds, that as the land commissioners' court stands adjourned until the 1st July next, it is very desirable that he should know his Excel- lency's pleasure as regards the Act in question previous to that period. The bill so reserved purports to be an amendment of the Land Purchase Act, 187-5, and recites that doubts have arisen as to the meaning and construction of many provisions of the Land Purchase Act, 1875, and that it is highly expedient that all such doubts should be removed. It then proceeds to enact that no award theretofore made, or thereafter to be made, shall be held void in any court of law or equity, by reason that certain matters which were required by the commissioners to be taken under consideration, are not expressly mentioned in any award, and that no award shall be void for other reasons. It also provides that nothing shall atl'ect the rights of .Miss Sullivan to purch.ase, vvhose estate is not pending before the Supreme Court of Canada. The effect of the first portion of the Act appears to be that the interpretation of the Supreme Court of the Island of the Act of 1875, upon which cei-tain awards of the land commissioners were held bad, is reversed, and the awards in (|uestion to be declared as valid. Against the assent to the Bill, Mr. Edward Hodgson, by letter of the 8tli June last, addressed to the Secretary of State, urges that the bill in ([uestion very seriously afi'ects the rights and tiie property of persons holding land in the province. Ho repre- sents that the Act is for the pr.pose of giving effect to certain awards, considered to be void by those whose ))roperty is dealt with by them, and that the award, similar to those now attempted to be legalizid, has been declared to be void by the Supreme court of Prince Edward Island. y\v. Hodgson further represents that there is another case pending, of Miss H. McDonald of Montreal, and that if the bill be assented to, it will have the ett'ect of declaring the award to be valid, and not only so, but there are no provisions made for indemnifying her in the costs incurred by her in the proceedings she has instituted. He also represents that further hardships will arise to individuals in case the bill should become law ; and he adds, that memorials, explaining the objections in cjuestion are being prepared, and requests that consideration of tlie Act may be delayed foi' an opportunity of considering the memorials referred to. In the report of the Attorney General of Prince P]dward Island, it is represented that applications to the Supreme Court of the Island, were made on behalf of Miss Sullivan, and of the Hon. Ponsonby Fane, and the court (juashed the awards in both cases, but that negotiations for a peaceful settlement of the Fane estate are pending. The undersigned has the honour, under the circumstances, to report that there does not appear to be any reservation in the Act of the rights of the Hon. Ponsonby Fane, or of any other parties, as to whom awards may have been made, and who are similarly situated with Miss Sullivan and Mr. Fane, and who may have regarded the decisions of the Supreme Court of the Island, in the cases before them, as applicable to themselves. That by telegraphic communication with the Lieutenant-Governor of the province, it is ascertained that Mr. Fane's case has been settled and withdrawn from the court, and that the only additional ca.'; pending before the Supreme Court of the province on the 21st June last, is that of John Allister McDonald, which is not yet tried, but in which a rule iiini has been granted by that court to set aside the award, on the 19th of June last, to be tried at the sittings of that court at Charlottetown, on the last Tuesday in Juno last. But petitions have been presented at a later date (1) by Mr. Edward J. Hodgson before mentioned, and who describes himself as one of the proprietors of land, and also as counsel for all the English proprietors, and nearly all those resident therein; and (?) K _____J 1178 PHINCE EDWARD ISLAND LEfilSLATION. from the following proprietors and owners of land in Prince Edward Island, viz.: James F. Montgomery, Jane l>. Douse, Arabella Douse, John A. McDonnell, .J. P. Douse, Kev. John A. S. McDonald, by his Attorney Alex. McLean, Edwaid J. Hodgson, Helen Jane McDonald and \V. C. McDonald. The allegations in the two petitions are substantially the same, and the petitioners pray that tl. " i'ssent of the Governor General in Council be not given to the reserved hill in ([uestion. It is stated : — 1. That it was notorious at the time of passing the bill that the errors (in the Land Purchase Act of 1875) would be made the gi-ounds of judicial applications to set aside the proceedings, and the awards founded upon them, whenever the government attempted to enforce them. '2. That petitioners did not avail themselves within the period fixed by the Act of 1875, for remission back to the commissioners, of awards in their cases, relying on their ordinary right to oppose the awards, of which right the reserved bill would deprive them ; whicii also neglects to provide any means for remission of these irregular and erroneous awards to the commissioners. 3. That the reserved bill puts landowners to additional costs and expenses, but makes no provision for the refund of the same. 4. That the commi-'sioners" awards having neglected to specify the portion of the lands td' w miw'. ' jn,. 39 VICTORIA, 1876. 1181 Dominion — as set I the '^^•d of April, .li April, 1874. 3£ June, 1874, an provisions of the action of the 3rd ;town, its (grounds srewith, should be /ince. 1, over and above lUtenant-Governor cribed in this Act apart. iv that the citizens its 6 th section for int of that part of u tenant-Governor. s roadway to be House. Without ighton road, which The contemplated tens, and for other IKEN, mey General, lency the Governor October, 1876. 1, passed in 1876, do nob appear to disallowance. us Liquors." of the peace, with > shall grant a false 's imprisonment in law, and the word ntoxicating liquors, no interference is sn by any person to under a penalty of and the other half Department of the direct conflict with unt and disposition on, either in Prince hardly fail to cause great practical inconvenience and confusion, if not (as in the present case) actual conflict of laws. , 1 o 1 Q-p Very full provision is made by the Canadian Act, 39th Vic, chapter 18, 18(6, respecting Indians, in the 79th and following sections. It seems oln-ious that there should not be double legislation upon such a subject. The undersigned recommends that the attention of the Lieutenant Governor should be called to the objection to this section, with a suggestion that it should be repealed during the next session, and before the time expites during which the Act can be disallowed. Section 49.— This section provides that every person who obstructs, Ac, any constal le in the performance of the duties imposed upon him by the Act, shall forfeit for every such offence a sum not les-i than ti\ e, nor more than ten dollars. This seems to conte within the criminal law. By 32 and 36 Vic, chap. 20, resisting, &c, an officer of the peace in the due execution of his dutv, is a misdemeanour. Similar legislation in the case of the province of Quebec, has been, upon two occasions, remarked upon as objectionable. The attention of the Lieutenant-Governor should be called to this section with a view to its amendment. • , n i Section 52.— This section, which uses the term " offence," provides that it shall be the duty of the grand jury to make diligent inquiry and presentment of all and every such person or persons, as shall be guilty of any breach of, or offence against, the provi- sions of the Act. Such presentment shall be deemed to be the commencement of a prosecution for the oflence therein set forth. The term " offence," as has been already observed, is objectionable, and still more so when applied to action required to be taken by the gi'and jury, which is to be the commencement of a prosecution. The attention of the Lieutenant-Governor should be called to this section, %yith the view to its amendment, so as to avoid any question of its trenching on the criminal procedure. , «. , „ i Sections 55, 58, 59.— The objectionable words " offence" and " offenders are used in these rections. ^^ Chapter 9. — " An Act to amend the Insolvent Debtors Act. This. Act repeals the second section of the Act of the legislature of Prince Edward Island, passed in the 14th Vic, chap. 2, and substitutes certain other provisions. It contains a clause preventing its application to any debtor, against whom pro- ceedings shall be pending, under the Insolvent Act, 1875. The use of the phrases " insolvent " and "'insolvent debtor," is calculated to create embarrassment ; the subject of insolvency being within the exclusive jurisdiction of Canada. . , In this particular case the law which is amended is, perhaps, not in the proper sense, an insolvent law ; it is rather a law which mitigates the hardships of imprisontnent for debt, by providing, under certain circumstances, for the discharge from jail of persons imprisoned for debt, but it does not provide for the satisfaction of the debt, or the general administration of the assets of the insolvent, or his general discharge. Provision for this purpose had been made by the local legislature prior to con- fede.ation, by the Act of 1863, 31 Vic, chap. 15, intituled : " An Act tor the relief of unfortunate Debtors," amended by the Act of 1869, 32 Vic, chap. 16. Such legis ation as is affected by these last mentioned Acts, would of course be, since the union, clearly ultra vires of the local legislature. Legislation somewhat analogous to that now under consideration, has taken place in some of the other provinces, and the statutes have been left to their operation. A similar course is recommended upon the present occasion ; but the undersigned suggests that the attention of the Lieutenant-Governor should be called to the expediency of such legislation, as may more accurately describe the object of the law, and remove the objec- tion which exists to the use of the words " insolvent " and " insolvency,'' as designating its subject-matter. 1182 PRINCE EDWARD ISLAND LEGISLATION Chapter 16. — "An Act enabling the stipendiary magistrate of the city of Char- lottetown to grant relief to Insolvent Debtors." This Act enables the stipendiary magistrate to grant relief to debtors confined within the limits of Queen's county jail, under the provisions of the Act 14 Victoria, chapter 2, referred to in the report on chapter 9, Acts of this session. To this Act the observations made with reference to chapter 9 are applicable. Chapter 17. — " An Act relating to Coroners' Intjuests." Upon this Act the undersigned would refer to the approved report of his predeces- sor, of the 20th January, 1875, upon the Act of British Columbia, 37 Victoria, No. 4, in which some doubt was expressed whether legislation on the procedure of coroners' inquests might not be a branch of criminal procedure, and as such within the sole legislative competence of Canada. The late minister, however, made no suggestion, and the Act was left to its operation, a course which the undersigned recommends should be followed upon the present occasion. Chapter 21. — "An Act respecting the town of Summerside." Li the latter part of the 4th section the words " offence " and " otfender " are used to describe cases of breach of provincial laws. It has already been repeatedly observed that it wt)uld be better to avoid the use of these words which rather indicate crime. Chapter 26. — "An Act to incorporate the Acadia Provident Association." By this Act certain persons are incorporated, with authority to effect contracts of insurance with any person or corporation on life or lives, Ac. There is no limit to the range of the business ; although the institution is to be a mutual one, and from the character of the business it is not likely that it will be more extensive than can be authorized by provincial legislation. It may be as well that some words should be inserted limiting its range, and the undersigned recommends that the attention of the Lieutenant-Governor should be directed to this point. Chapter 27. — "An Act for the incorporation of the Victoria Boring and Mining Company." This Act incorporates certain persons under the given name, and provides that they shall have all the general power and privileges made incident to a corporation by the local Act, 15 Vic, chap. 14, relating to corporate bodies. The Act in no other way limits the powers of the company, or the places in which its operations are to be carried on. The Act, 15 Vic, chap. 14, does not contain any general limitation — even the name of the company suggests no limitation. The powers of local legislatures to incorporate companies, are restricted to companies with provincial objects, and it appears to the undersigned that, upon the principle on which several Acts of incor- poration have been objected to, this Act is open to objection, and he recommends that the attention of the Lieutenant-Governor should be called to it, with a suggestion that the Act should be amended by limiting the powers of the company to provincial objects during the next session, and before the time arrives within which the question of its disallowance must be determined. EDWARD BLAKE, Minister of Justice. Report of the Hon. the Minister of Justice, approved by His Excellency the Governor General in Council on the 8th December, 1876. Department of Justice, Ottawa, 2nd December, 1876. Upon the reserved bill passed by both houses of the legislature of Prince Edward Island in the session 1876, 39th Victoria, intituled : " An Act to vest a certain portion of Government House Farm, in the City of Charlottetown, for certain purposes therein mentioned," the undersigned begs to report as follows : — It appears from the report of the Attorney General that the trcct of land now com- prising Government House farm was originally part of the common of Charlottetown, 39 vioTouiA, 1870. 1183 le city of Char- ebtors confined \.ct 14 Victoria, applicable. , of his predecea- Victoria, No. 4, are of coronei's' within the sole 5 no suggestion, ouimends should snder " are used satedly observed licate crime. liation." BFect contracts of itution is to be a ,t it will be more be as well that recommends that int. jring and Mining md provides that 1 a corporation by or the places in itation — even the il legislatures to objects, and it ral Acts of incor- recommends that a suggestion that any to provincial hich the question which was a portion of land surrounding the city, dedicated to tho use of the public. In the year 1789, the then Lieuten.int-CSovernor executed a grant of that portion ..f the common now known as the Oovernrnpnt House farm, therein desciilMul, now estimated to l.») composed of 80 acres, to I^rd Dorchester, then Governor Oeneiai of Caiwula, tor the accomm(Hlation of the Governor or Lieutenant-Governor for tlic time being, .Vc In 187;^ tho local legislature passed an Act, appropriating part (tlunigli not quite so lave a part) of the Government House farm to the purp(.ses to « Inch, by the hill now under consideration, it is proposed to appropriat(3 it. This Act was .lisa lowed by the Imperial government, on account of it having been passed subsecpiently to the arrangements for confederation, under whicli the premises and buildings in (luestion became the property of Canada. ^ , rx ^ On the lOtli June, 1874, however, after Confederation was consummated, an Vnler in Council was made under the provisions of the 108th section of the British Jsorth America Act, appropri^iting to the use of the government and legislature of the provmee, the (Government House in Charlotte town, and its grounds and premises, togetlier with the farm in (luestion. , „ , .. i i ^i It appears that the legislature deems tho residue of the tarm, over and above the portion described in the bill, amply sufHcient for the use of the Lieutenant-Governor as a residence. , . , , , , , , • ..„ i „ The remaining area is .35 acres. The sole purpose to which the land taken is to be appropriated is that of a public park, promenade and pleasure ground. Reference is made in the bill to certain Ordnance lands which are expressly reserved from its operation. „,,.,.. i iv n \ ■ u The undersigned has made inciuiry of the Department of Mihtiaand Detenee, w.hich reports that the reservation is surticient. , ., at- • .. * v>„Ki;^ Upon the merits of the l)ill, the undersigned referred to the Minister of i'ubiic Works, who reports that he had previously made in.iuiiy into the subject, and is quite satisfied, from the explanations given to him that no injury would result to the G-jvern- ment House grounds by the proposed alienation ; and, further, that he ascertained that the Lieutenant-Governor does not, as the present occupant, see any objection to the bill being passed, and he is therefore .)f opinion that tho bill should be sanctioned. The former Act for the same purpose having been disallowed, it was proper that the Lieutenant-Governor should reserve this Bill ; but, under the circumstances shortly stated, the undersigned recommends that his Excellency should be advised that the bill should receive his Excellency's absent. EDWARD BLAKE, Minister of Justice. Order in Counril giving assent to Act above mentioned, published in the Canada Gazette on the IGth day of December, 1876, Vol. X., No. '2S, page 7, 2. AKE, ter of Justice. lency the Governor jember, 1876. of Prince Edwaol t a certain portion n purposes therein b of land now com- of Charlottetown, 1184 PKINOE fUiVfAUl) I8LAN1> LlSrilHLATION, PRINCE EDWARD ISLAND-40Tfi VICTORIA, 1877. IsT Session, 27x11 (!knehal Asskmuly. Jlia Lordship the BinJiop of CharloHetoivn to /fin Excellency the Governor General. CuAKLoTTETowN, Pkinck Edwaud ]hi,and, 12th May, 1877. My Lonn, — During; the sossion of tlie lf?gislature of thi': province, whicli just closed, an Act deaUng with public education has been passed. Against this Act 1 protested, because of its suppression of Fren(;li Acadian schools which, I deem, are protected under the 93rd section of tlu! Hritish North America Act. Sir Robert Hodgson, the Lieutenant- Govtrrnor, while refraining from the exercise of his power to reserve the Bill from further consideration, assuied me that ray objections could 1)6 ui'ged to, and would be considered by your Excellency. When 1 protested against the suppression of the French schools, I had not then seen the whole Act, for it had not l)een printed. Since then, and within the last few days, I have procured a coj)}', and, upon giving it an attentive |)erusal, I find, to my great sorrow, that the Roman Catholics of this province are virtually marked out, by exceptional legislation, for heavy taxation, far over and above what niu'th Vic, cap. 1.'5 (I.ooil Stiitutcs of Prince Edward Island). It was under this statute that the .Vn;;lo-Uusti('() schools were first recognized by law, and I desire to call your Excellency's attention to the fact that the teacher was not re(|uiie(l to pass any examination before ihe board of education, but instead, was riMjuii'ed to produce a certiticn'e from the (Jathoiic priest of his otliciency for teaching, and thut it was necessary liwit such certificatt; should contain a statement that he was a member of such priest's congregation ; pnitestants were thus absolutely prohibited from teaching those schools. The law was not that the teacher niiglif bo, he nn. l lie, a Catholic. The Act >f 18Gi^, which consolidated the then existing ethication laws repealed this sei^tion, and substituted the provisions of section 103 in its stead, which enacts that the Anglo-Uustico schools " shall be continued as now in ojM'ration." How these schools were then " in operat i on " is clearly shown by the inclosed certificates. The only change made wa.s that the teacher should paN-^ the examination required by the Board of Edui ation. And now, my Lord, I feel that my task is completed. I have laid before your lordship what I venture to affirm to be evidence unanswerable an(i overwhelming, timt these schools come within the letter and the spirit ot the 9."5rd section of the British North America Act, and I now await the result of your Excellency's decision with an anxiety which I cannot conceal. The general certificate signed by protestanta as well as catholics, is not as numer- ously signed as it would have been had I had more time at my disposal ; but I felt it might be satisfactory to your lordship to have this additional evidence as soon as pos- sible, and I lost not a moment in obtaining it. I left Ottawa on the — inst., and since then I have travelled 2,4r)0 miles ; to accomplish this, T travelled day and night, and my anxiety to return to Ottawa in the shortest possible time, gave me but little space to have the certificate more generally attested. Had a longer delay been possible, I could have presented it, with thousands of signatures instead of with hundreds. But I felt that what I had procured, was sufficient to prove the facts that are set forth in it, and I feared laying myself open to any imputation of delayii ,' one single hour what I might sooner place before your Excellency. When I reached my diocese, I saw all the teachers and masters whom it was pos- sible for me to visit. On Sunday alone I rested, and then only to celebr.ite ami set forth the mysteries of our Holy Faith, which are so cruelly attacked by this 111. I only mention this to your Excellency not as claiming any credit for what 1 ha\.i done, I could not do less, I feel, I may truly say, I could not have done more— 1 have endeavoured to still the agitation of my people. I discountenanced all public meetings. I have sought to quiet their alarm. I hoped, and sought to impress the belief upon them, that your Excellency, as the representative of the Queen's Majesty, would not lend the sanction of our Sovereign's approval, to a legislative enactment against our legally established Catholic schools, in which their children for .so many years have been in- structed in our Holy Faith. And now, my lord, I lay these documents, these proofs of our case, before your Excellency, with the earnest hope that your Excellency will be pleased to exercise the full power given to you by the constitution, and disallow this illegal and unconstitutional measure. 1 have, ikc, PETER McINTYRE, Bishop of Charlottetown. We, the undersigned inhabitants of the province of Prince Edward Island do here- by certify that the Anglo-Rustico schools, which have been recognized by or established under the Education Act of 1868, or the previous Acts consolidated by that statute, are and always have been considered to be Catholic denominational schools. 1186 PBINCE EDWARD ISLAND LEHIRLATION The truntocH ami teachers liave always been Catholics, a lesnon in the oatechiitm was daily taught, aiiatch, I have been advised by Ijim that the Act does not require any inimodiato actix »• steps to be taken by the go\ei-nment with reference to the schools claimed as Roman Catliolic denominational schools, unless the people fail to elect trustees, and the chief sujwrin- tendent is called upon under the Act, to appoint them ; but I am assured by him that, in BO far as the government, and their officials are concerned, they are quite satisfied that, in aix'ordance with the expectation you express u|)on this point, no actual interference Bhould take j)lace witl. these schools, until his Kxcellency the (Jovernor Ueneral has had full opjKirtunity for examining and considering the several documents and statutes forwardee made up by and levied as a rate, upon those parents who, by not sending their children to the schools, have caused the nun ber of scholars to fall below the average required by Section 15. The effect of these clauses will be this : If your memorialists continue, as they will continue, to send their children to their own schools, and from such attendance the average of children attending t le schools esti-blished under this Act should fall Lelow 'Vit' i' .yiKf.L: i "t»'^| i i y < ' . '? ' ^', ' ;J,^;^»-w.' 7 ) j .<"!iV» religious instruction s guaranteed to them o word of complaint, he ^[inisters of the espectfuUy to request xcellency would not If it were for ray- t press so strongly for conceal from your )f our Sovereign is to Catholic faith, and notwithstanding the TYRE, f of Charlottetomi. hvernor General. le, Earl of Dufi'erin, he same : le province of Frince "The Public S^^hools ition throughout this ad cannot be separated I believing they have, ntained schools where i instruction. It attempts to legalize ly entreat your Excel- annot withdraw their Ives they have erected, ions which they can-ot schools in additition to majority possesses the protest against it, they s a new and unheard of imprisonment, for your lan to those established I school district " shall listrict," that a deduc- ; up by and levied as a le schools, have ci used tion 15. ialists continue, as they om such attendance the is Act should fall below 40 VICTORIA, 1877. 1189 fifty per cent, then, notwithstanding your memorialists have paid their taxes into the public treasury, and tl'"* their children are attending efficient schools, built and main- tained by themselves, notwithstanding this, they are to be fined because they will not withdraw their children from the religious teaching they prize so highly, to send them where all instruction in the Christian religion is by law carefully and rigorously excluded. i'o ignore efficient schools because Christianity is taught in them, your memoria- lists believe to be a grievous wrong ; but to direct special legislation against them, so as to blot them out of existence, is an act of injustice so oppressive, that your memorialists most raspectfuUy appeal to your Excellency, that by exercising the power given you by the constitution, you may protect them against the operation of so unjust a law. These schools are, as they were intended to be, an evidence of the ardent attach- ment of your mem(jrialists to their ancient faith, and this statute enacts that they shall not send their children to them, without the poor alternatives of fine or impri- sonment. Against this law and its cruel and unjust enactment, yonr memorialists appeal to your Excellency. They entreat your E.cellency to disallow it — to lea^'e it to its operation would be to give the sanction c-* Her Majesty's approbation to a legislative enactment, directed against the Roman Catholic faith, by endeavouring to suppress educational establishments which, at great expense and with no little exertion and sacrifice, they have erected and maintained for the education of their children. And your memorialists as in duty bound will every pray. Daniel J. Gillis, P.P., Stephen Phelan, C.C. St. Andrews, Patrick Walker, J.P., M.L.C., James A. E. McDonald, P.P., And others. Report of the Hon. the Minister of Justice^ approved by His E. xcellency tlie Governor General in Council, on the l^th November, 1H77. Department of Justice, Ottawa, 8th November, 1877. In the last session of the local legislature of Prince Edward Island, an Act was passed intituled : "The Public Schools Act, 1877." This Act repeals all the previously existing laws on the same subject, and appoints a board of education, composed of a chiof superintendent to be appointed l)y the Lieutenant-Governor), the members of the executive council, and the principal of the Prince of Wales'? College. This boan! i; ;,! 'en power to establish normal schools, to appoint three inspectors, each county constipating an inspectoral district, to prescribe the qualifications for inspector?- anu their dutie?, and to provide for the uniform certification of all candidates for the sai, e. to divide the province into school districts, and to create new districts or alter boundaries, to make regulations for the organization and the government and discipline of schoc .s, for the classification of schools and teachers, and to appoint examiners of teachers, and to grant and cancel licenses, to prescribe text books and apparatus for the use of schools, and lx)oks for school libraries. The chief superintendent is to have, subject to the board of education, the supervision and directio*. of the inspectors and schools, to enforce the provisions of the Act, and the regulations and decisions of the l)oard of education, to withhold all provincial aid froi. districts presenting false or insufficient returns, &c., kc. The duties of the inspector are to visit, at least semi-annually, each school, to examine the schools and school-houses, and to ascertain if the provisions of the school law are there carried out, oteyed, kc, kc. The Aci provides that the support of the schools is to come from local assessment, and from assistance provided by the provincial treasury. The Act also regulates the salaries of teachers according to their respective (jualifications, and section 15 enacts 76 1190 PRINCE EDWAED ISLAND LEGISLATION that, " no teacher shall receive from the provincial treasury the salary herein provided according to his respective class or grade, unless the average attendance for the term, during which he clai ns his srlary, shall be at least fifty per cent of the children of school age within the school district, and made so to appear to the chief superintendent's satisfaction ; an(. if such average daily attendance shall be less than fifty per cent, a proportionate deduction shall be made from his salary for any deficiency. Section 1 6 enacts, " In case such deduction shall at any time be made from any teacher's salary, for the reason set forth in the preceeding section ; the chief superin- tendent shall cause the fact, and the amount of the deduction, to be certified to the trustees of the district who shall forthwith upon the receipt thereof levy an assessment upon the parties in the district, who have, by neglecting or refusing to send their children to scliool, caused the deficiency in the avemge attendance, and such assessment 81. all be distributed and paid in such proportion and amount, by such persons as the trustees in their absolute discretion may determine, but should it be proven to the satisfaction of the trustees that such a deficiency was caused by sickness or other unavoid- able causes, the trustees shall be and they are hereby authorized to levy assessment on the district to meet such deduction in such manner as for other school purposes." Section 40 enacts as follows : — All school districts, as registered fit the time of the passing thereof, l)y the board of education, are hereby deckred to be established and confirmed as school districts, until .•iltereho could not pass the board were to receive a leduced salary. (See sections 29, 31 and 32 of 24 Vic, cap. 36 ) The r)7th section of the same Act authorizes the board to withhold allowance from any school in which the books, regulations and system of education prescribed by the board were not used anu observed. (See sec 31 of 24th Vic. cap. 36.) In 1863 the law was again amended by 26th Vic, cap. 5, the 31st and other sections of the Act of 1861, recognizing the Acadian teachera as a distinct class, were repealed : and by the 6th section of the Act of 1 863 the legislaturt- declared that it was inexpen of section 104 seems to repel the possibility of any such interpretation as suggested by the bishop. When allowing trustees to establish other schools than those generally created by the statute in one district, it preserves the same restrictions in regard to the teaching of -iiich additional schools, and binds the trustees to conform in all respects to the pro^nsioi. of the Act. It therefore n^llows that even in the Anglo-Rustico district, the teac4iers were found to obtain their license, and to comply with the provisions of the A-'t. The trustees of such schools were also bound in all respect to conform to the law. The only reasons brought by the bishop's solicitor are, firstly, the fact that a fii^rent cwarse of instruction was followed in these French schools, and, ^ecoadly, tuat tbe bossd of education and the public 1196 PRINCE EDWARD ISLAND LEGISLATION generally, were aware of and sanctioned the system, which was carried on independently of the provisions of the statute. This does not amount to a legal recognition of the existence of these schools. The laws having been passed in 1868, the time during which such a system was admitted or supposed to have been admitted, cannot amount to a usage, having the legal effect of repealing a positive statute. In other words the learned gentleman pretends thpc, because the law was suspended in some instances by trustees, who were appointed and bound to see its execution, this would be equivalent to a special provision in the statute allowing the system of such schools, or a repeal of any provisions which would prohibit the establishing of separate or independent schools : such a proposition cannot be ad- mitted as founded in law, Taking for granted, even, the proposition of the bishop, that these schools were denominational in their teaching and in the course of education foUowt d therein, tacit sanction of the trustees and board of education since the passing of the statute of 1868 ; this fact alone would not support the pretension that the last Act should be disallowed. It would only establish at most the fact that, notwithGcanding the positive enactments of the statute establishing a uniform system of education, non-denominational in its charactei-, a different system was tolerated. The provision of the constitutional Acts, which secures to any province a system of separate or dissentient schools, requires, as a condition of interference by the federal authority to maintain that privilege, that these schools should be separate or dissentient in their nature by virtue of the law existing at the date, which the province joined the union. It is not contended that there was any provision in any of the previous Acts of the legislature of Prince Edward Island, which secured to any sect, the right of establishing an independent school. The bishop himself does not allege in his memor- andum that such a provision existed in any of the statutes. The reasoning of the argument of his solicitor would therefore be that, although there was not in existence any statutory provision, empowering the Catholic community to establish and maintain separate schools, and notwithstanding that there was in existence express statutory pro- vision to the contrary, they could, Jbecause such schools had been virtually in operation, call on the federal government to prevent the legislature from establishing any regula- tion with respect to the schools generally, without securing to them the right of maintain- ing separate and denominational schools. Nothing can be found in the statutes that justifies such a proposition. Reference has been made by the bishop to the law exist- ing previous to 1868, in Prince Edward Island. The last statute on the subject pre- vious to 1868 was chapter 36, of 24th Victoria, 1861. There also, all provisions incon- sistent with the enactment, were abolished. A board of education was constituted to regulate the admission of teachers, and the practice and system of education to be observed. This statute required also that every school teacher, whether Acadian or otherwise, should pass an examination by the board of education and receive a certifi- cate of qualification. An exception, however, was made by the 31st section, allowing the admission of Acadian teachers who had not been examined, to receive a reduced salary of .£35, if he produced a certificate, signed by the priest or clergyman of the district or parish wherein he taught, to the effect that he was capable of teaching, and that he had taught the number of scholars required, and had instructed one English class for three months, previous to the granting of such certi3cate. Section 37 of the same Act, however, declares that all schools claiming allowance to teachers under tl e Act, wherein the books, regulations and system of education pre- scribed or to be prescribed by the school visitor and board of education to be observed, are not observed or adopted, shall, if the board think fit, and make an order to that eflFect, be refused or deprived of such allowance, until such time as such books, regula- tions and system of education shall be observed and adopted. The preamble to this Act states that the laws now in force establishing a system of free education in the island, require consolidation and amendment. Thus, so far back as 1861, the law did not recognize any system of separate and denominational schools. It is useless to go beyond that dat/e ; and it is impossible for the bishop to find in any of the Acts from that date, any provision from which could be inferred the right of any 40 VICTORIA, 1877. 1197 d on independently theso schools. The in was admitted or the legal effect of lan pretends thpc, were appointed and ision in the statute ich would prohibit ition cannot be ad- these schools were ow( d therein, tacit he statute of 1868 ; mid be disallowed. positive enactments noiuinational in its srovince a system of ence by the federal parate or dissentient province joined the the previous Acts sect, the right of liege in his memor- he reasoning of the was not in existence ablish and maintain xpress statutory pro- irtually in operation, ablishing any regula- the right of maintain- in the statutes that hop to the law exist- e on the subject pre- , all provisions incon- n was constituted to I of education to be whether Acadian or and receivQ a certifi- Lst section, allowing to receive a reduced or clergyman of the able of teaching, and structed one English ) claiming allowance em of education pre- lation to be observed, Jake an order to that IS such books, regula- tablishing a system of t. Thus, so far back nominational schools. )ishop to find in any irred the right of any denomination to establish a separate or denominational school not under control of the board of education. Great stress has been laid on section 15, as imposing an unjust tax upon the parents neglecting or refusing to send their children to the district school, thereby causing a deficiency in the average attendance, and leaving absolutely to the discretion of the trustees, to determine the amount, and lo levy an usses.sment on the parties. This provision 1 consider to be severe, and giving somewhat arbitrary power to trustees, in fixing the penalty and in the selection of the offenders. It confers the power of levying an additional tax at the discretion of the trustees. The previous laws gave the right to the trustees to levy the amount of the deficiency on th' district, which necessarily comprised tho.se who complied with, and those who refused to submit to the law. If we are bound to consider that the right of regulating education as absolutely appertaining to each province, except where the privilege of establishing separate schools existed by law, it must be admitted that they have eijually the right to attach to the provisions of such law, the conditions and ^)enalties required to secure its object ; and however arbitrary or unjust the mode of enforcing it may ap- pear, it would not seem proper for the federal authority to attempt to interfere with the details, or the acces.sorie.s of a measure of the Irjal legislature, the principles and objects of which are entirely within their province. Inasmuch, however, as the provisions first referred to, which enable the trustees to levy the tax at their discretion, seem to depart in a measure from the well established principle that taxation should be certain, and so far as possible equally distributed, I recommend that the attention of the Lieutenant-Governor be called to such provisions, with a suggestion that they should be amended to meet the objections mentioned ; but for the reasons above set out, I recommend that the Act itself be left to its operation. R. LAFLAMME, Minister of Justice. Report of the Honourable the Minister of Justice, apjwoved hy His Excellency tlie Governor General in Council, on the 4th May, 1S7S. Department of Justice, Ottawa, 2nd May, 1878. I beg to report upon the statutes passed by the legislature of the province of Prince Edward Island, during the session held in the year 1877, received by the Secre- tary of State on the 7th day of June, 1877, as follows : — « Chap. 1. " The Public Schools Act, 1877." This Act has already been reported upon by the Minister of Justice, and has been left to its operation. To the Acts, chapters 2 to 13 inclusive, there appears to be no objection, and I recommend that they be left to their operation. Cap. 14. " An Act to amend an Act to incorporate the Town of Charlottetown." The fifth section of this Act provides that on the last Tuesday of every month, the clerks of the stipendiary magistrates' court shall account for, and pay into the hands of the city treasurer, all fines or fees collected or received by him. In reporting upon the statutes of the province cf British Columbia, in the month of September last, I had occasion tc consider the right of the provincial legislature, to legislate in respect of the disposition of fines arising under the criminal law. The con- clusion arrived at by that report, which was approved of by Order in Council, was, that such fines belonged to the Dominion government. The section under consideration, therefore, so far as it relates to fines arising out of the criminal law, is beyond the power of the local legislature. The parliament of Canada by the statute of 40th Vic, cap. 4, extended to the province of Prince Edward Island, certain criminal laws, now in force in other provinces of Canada. Section eight expressly enacted that, " Fines collected under the Act respecting the trial and punishment of juvenile offenders, shall be paid over to the provincial secretary and treasurer." 1198 PRINCE EDWARD ISLAND LEGISLATION This Acfc is in direct conflict, so far as the fines mentioned therein are concerned, with the provisions of the section now under consideration. I recommend tiiat the Lieutenant-Governor's attention be called to the matter, with the request that he will bring it immediately to the notice of his government, and before the time for disallowance of the Act arrives, to communicate their reply, an intimation being at the same time given to him that, unless at the next session of the local legis- lature, his government will promote the necessary legislation to repeal the section, or to confine it to such fines as may arise through breach of any of the provincial laws, in respect of the matters coming within the exclusive legislative control of the provincial legislatures, the Act will be disallowed. A petition from the mayor, certain common councillors and inhabitants of Charlotte- town, has been received, praying that this Act, now under consideration may ije disallowed, upon the grouud that the Act exempts from assessment, persons paying rent less than .$30 per year, and that this is an intf rference with the rights of the creditors of the city, who lent the city money, at a time when each citizen who paid a rental of $16 per annum was liable to be taxed ; also, upon the ground that, by the 3rd section of the Act, the control and management of the police force of the city, are taken from the mayor and council, and the power of their dismissal given to the stipendiary magistrate, but tlie power of appointing is continued in the mayor and council. The petition contends that it is improper and unjust to deprive the mayor and council, of the control and management of the police force, and to have the power of appointing in one body, and the power of dismissal in another, also upon the ground that the stipendiary magistrate is allowed by this Act to appoint a clerk for his court at a salary of $500 per annum ; that this clerk is superfluous, and the city unnecessarily burdened with his salary. I do not propose to discuss the expediency of the enactments referred to. M!he subject matter appears to be entirely within the legislative authority of the TOcal legislature, and I think the power of disallowance should not be exercised, for any of the reasons mentioned in the petition. Objection is taken in the petition to the provisions of the ninth section, which transfers to a licensing board, the power previously vested in the city council res- pecting the granting of licenses for the sale of spirituous liquors, and which gives the board power to provide for the inspection of liquors, and the testing and analysis thereof. It is contended that this provision is beyond the competency of the local legisla- ture, or is unnecessary, as the subject has already been legislated upon by the parlia- ment of the Dominion (Statutes of Canada of 1874, p. 43.) The section, however, appears to me unobjectionable from a constitutional point of view, I cannot say that it is beyond the powers of a local legislature to provide merely for the inspection of liquors and the testing and analysis thereof. No provision is made as to the action to be taken upon such inspection or testing and analysis being made. As the section at present stands, the board are simply given power to provide for the inspection, and testing and analysis. This, standing by itself, appears to me to be unobjectionable. This Act is also objected to upon the ground that this section takes from the city council, the control over that part of their revenue derived from licenses for the sale of liquors, and that hereby the security of the creditors of the corporation is interfered with. The matter, however, is one coming within the authority of the local legislature, and it would not be proper in such a matter, and for the reason given, to exercise the power of disallowance. Objection is also taken to the 21st section, which provides that "the licensing board shall first determine on any application whether or not a license should be granted, and their decision shall be final," and it is contended that the licensing board may thus wholly and absolutely forbid the sale of any liquor by licence. 40 VICTORIA, 1377. 1199 Bin are concerned, io the matter, with timent, and before ply, an intimation of the local legis- 1 the section, or to jrovincial laws, m i of the provincial tantsof Charlotte- isideration may be it, persons paying the rights of the citizen who paid a )und that, by the ■ce of the city, are isaal given to the in the mayor and rive the mayor and have the power of 10 upon the ground t clerk for his court e city unnecessarily referred to. M^he TOC lority of the Tbcal ;xercised, for any of inth section, which he city council res- id which gives the Rsting and analysis 3f the local legisla- iipon by the parlia- fie section, however, 3 to provide merely of. No provision is g and analysis being n power to provide I takes from the city jenses for the sale of aration is interfered the local legislature, iven, to exercise the that "the licensing use should be granted, licensing board may e. Much can be said in favour of this contention, and that the section is, tlierefore ultra vires, as interfering with the requirements of trade ;iiui jommerce. Similar legislation, however, has been left to its operation in other provmces, and I do not recommend the disallowance of the acton account of this section. Chap. 16. " An Act to alter and amend the Act to incorporate the minister and trustees of St. James's Church, Charlottettjwn." _ The 5th section of this Act give the corporation power to raise money, by making and issuing bonds payable in a certain period, with interest not exceeding six per cMit per annum ; and the 8th section declares, that if the interest or principal money of any of said bonds should not be paid on demand, with such interest or principal respectively as demanded and overdue, shall bear interest, after such demand, at the rate of six per cent per annum until paid. This provision seems to entrench upon the subject of interest, which, by tiie pro- vision of the British North America Act, comes within the exclusive legislative authority of the parliament of Canada. n i i •<■ I recommend that the attention of the Lieutenant-Governor be called to it. To the Acts chapters 17, 18 and 19, there appears to be no objection, and I recom- mend that they be left to their operation. Cjiap. 20.—" The Registration of Electors and Ballot Act of Prince t.dward Section 101 provides that whoever, at any time before, during, or after the follow- ^^^' " 7. Forge or counterfeit, or fraudently alter, deface, or destroy any ballot paper or the initials of the sheriff or presiding officer signed thereon." ., , , . *u This provision clearly entrenches upon the criminal law, so far as it relates to tne counterfeiting or fraudulently altering any ballot paper, or the initials of the shenft or presiding officer. , ,i i i ii,- I recommend that the attention of the Lieutenant-Governor be called to this pro- vision with a request that legislation may be promoted for its repeal, or an amendment so as to obviate the objection referred to. Z. A. LASH, I concur. Deputy Minister of Justice. R. LAFLAMME, Minister of Justice. ^BiritliaHii ■1 '•!■■■ 1 1200 PRINCK EDWARD ISI-AND LKOIHLATION PRINCi: EDWARD ISLAND,— 41st VICTORIA, 1878. 2nd yEssioN — 27'rii Genkral Ahsemhly. Hi» I/onour tlte lAfiutenant-Gonrnm- to lh<> lion, the Secretary of State. Government House, Prince Edward Island, 11th July, 1878. yiR,_I have tho honour to transmit herewith, in triplicate, duly sealed and cer- tified, an Act intituled : " An Act to repeal certain Acts relating to the Church of England in thi.-! province, and to nuvke provisions in lieu thereof," passed by the legisla- ture of this province in the late session of the general assembly. Amongst the Acts repealed by this Act, is a permanent one passed in the year 1802, which declares the Liturgy of the church, established by the laws of England, shall'be deemed the fixed form of worship in this island, the Act transmitted therefore disestablishes the Church of England in this province, and conse(|uently interferes with the i)rerogative of the sovereign as the temporal head of the church, and it has no sus- pending clause. Under tlie.se circumstances I reserved the Act in cjuestion, which was not introduced by the local government, for the signification of his Excellency the Gov- ernor General's pleasure thereon. I have, ttc, R. HODGSON, Lieutenant-Goveriuyr. Report of the Hon. the Ministpr of Justio', approved hy His Excellency the Governor General in Council, on the 14th Ajyril, 1879. Department of Ju.stice, Ottawa, 14th April, 1879. I have the honour to report -.—That a bill was passed by the legislature of the pro- vince of Prince Edward Island in the year 1878, intituled : " An Act to repeal certain Acts relating to the Church of England in this province and to make provision in lieu thereof." ^ ^ ■ -^ .- This bill was reserved by his Honour the Lieutenant-Governor, for the signibcation of the pleasure of his Excellency the Governor General thereon. Having perused the same, it appears to me that the bill, might well have been assented to by the Lieutenant-Governor, as its provisions seem to be purely of a provin- cial character, and unobjectionable in a constitutional point of view. The Lieutenant-Governor, in transmitting the bill, does not give his reasons for reserving it, and the only reason which I can suggest is, that it repeals an Act passed in the forty-third year of the reign of the late King George III., chap. 6, intituled : " An Act for the better and more effectual establishment of the Church of England in the Island." ^ . , „ The Lieutenant-Governor may have thought that it was an interference with Her Majesty's prerogative, and not within the legislative control of the provincial assembly, to disestablish the Church of England in the province. Except for this there would be uo reason whatever for reserving the bill, and I would have recommended that the course usually adopted with reference to local bills, reserved for the signification of the Governor General's pleasure thereon, which should not have been reserved, should be followed in this case, namely, that no action should be taken thereon. But it is as well that no doubt should exist upon the matter, I think in this instance it would not be improper to recommend that the bill be assented to. I there- « •%. 1^, IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 2.0 US u ■ 4 1.8 PhotDgraphic Sciences Corporation ■^ 1.25 1 1.4 1.6 . ^ 6" ► 23 Vce of imperial policy, ion conferred on you, der royal instructions, reserve a bill in his IS from the Governor- ant-Governor, are alike prove, and if, notwith- ssign, or accept the de- t-Governor, as the case ions, or his duty, as an and to reserve it, what- tless feel it his duty to b was the duty of his is of opinion that the jellency's assent, as he jting these bills. ) legislature, and if he Ontario, on the question )n, that the Acts were )S and proceedings of the )ill, as a member of the at the Lieutenant-Gover- ify your pleasure with Lor should consider him- lellency to intervene in le jurisdiction and com- 1 same nature as the bills ted apply thereto. For these reasons, it would not have been proper to recommend that the assent of his Ex- cellency should be given to it." I recommend that the substance of the foregoing remarks be communicated to the Lieutenant-Governor. 1 concur. Z. A. LASH, Deputy Minider of Justice. JAS. McDonald, Minister of Justice. PRINCE EDWARD ISLAND— 42nd VICTORIA, 1879. 1st Session — 28tii General Assembly.. Report of the Honourable the Minister of Justice, approved by His Excellency the Governor General in Council on the 27th day of April, 1881. Department op Justice, Ottawa, 6th April, 1881. I have the honour to report upon the Acts passed by the legislature of the province of Prince Edward Island, in the forty-second year of Her Majesty's reign, as follows : — Chapters 1 to 24 are unobjectionable. I recommend that the power of disallowance be not exercised with respect to these Acts. JAMES McDonald, Minister of Jtistice, ili ■I !i .1'-, r t S )i.(i 1206 PRINCE EDWARD ISLAND LEGISLATION PRINCE EDWARD ISLAND— 43rd VICTORIA, 1880. 2nd Sfssion — 28th General Assembly. Report of the Honourable the Minister of Justice, approved by His Excellency (he Governor General in Coimcil, on the 17 th November, ISSl. Department of Justice, Ottawa, llt.h November, 1881. To His Excellency the Governor General in Council : Tlio undersigned has the honour to report upon the Acts passed by the legislature of the province of Prince Edward Island, in the year 1880, received by the Secretary of State on the 14th day of December, 1880, as follows : — Chapters 1 to 12, and 14 to 24. The above Acts do not seem to call for any special remark, or for exercise of t!;e power of disallowance. I recommend that they be left to their operation. Cap. 13. — "An Act to amend an Act regulating the sale by license of Spirituous Liquors." The undersigned recommends that the power of disallowance be not exercised with respect to this Act, but desires to remark that some of its provisions may be held to be beyond the legislative authority of the provincial legislature, as encroaching upon the regulation of trade and commerce, but as the precise extent of the authority of parlia- ment, and of the provincial legislature over the subject matter has iiot yet been finally determined, and as legisla.tion of a similar character in other provinces has been left to its . operation, the undersigned recommends that the power of disallowance be not exercised with respect to this Act. A. CAMPBELL, 'Minister of Justice. 44 VICTORIA, 1881. 1207 celhncy the ; 1881. e legislature Secretary of srcise of the )f ypirituous tercised with )e held to be ing upon the ity of parlia- been finally ; been left to anoe be not Justice. PRINCE EDWARD ISLAND— 44th VICTORIA, 1881. 3uD Session — 28th General Assemuly. Report of the JIoHonrahle the Minister of Justice, approi-ed by His Excellency the Governor Ueneral in Council on the S4th November, 18S2. Department of Justice, Ottawa, 13th November, 1882. To His Excellency the Governor General in Council : The undersigned has the honour to report that he has had under consideration the Acts of the general assembly of the province of Prince Edward Island, passed in the year 1881 ; and he recommends that the pov/er of disallowance be not exercised in regard to tlie following Acts, namaly : — Chapters 1 to 17, and 19 to 36. In reference to chapter 18, intituled : "An Act respecting the Administration by the Crown of the Estate of Intestates in certain cases," the undersigned has submitted a separate report. A. CAMPBELL, Minister of Justice, Report of the Honourable the Minister of Justice, approved by His Excellency the Governor General in Council on the 1st December, 1SS2. Departjient of Justice, Ottawa, 13th November, 1882. To His Excellency the Governor General in Council : The undersigned has had under consideration, an Act passed by the general assembly of tha province of Prince Edward Island in the year 1881, chaptered 18, and intituled : " An Act respecting the Administration by the Crown of the Estates of Intestates in cerUiin cases." He observes that by the 8th section of the Act, it is provided that, " moneys realized from estates, to which the Attorney General is administrator under this Act, shall be kept in a separate account in such bank, or invested in such manner as the Lieutenant-Governor in Council may, from time to time, appoint, and all moneys which have been unclaimed for ten years, shall, from time to time, be paid into the treasury of this Island, for the use and benefit of Her Majesty." Among the estates to which the Attorney General may, by that Act, become adniinisttator, is included the estates of persons dying intestate and without heirs or next of kin. In the case of Morcer vs. the Attorney General of Ontario, the Supreme Court of Canada decided that revenue derived from escheats is, by the 102nd section of the British North America Act, placed under the control of parliament as part of the Con- solidated Revenue Fund of Canada. Although that case is the subject of an appeal to the Judicial Committee of the Privy Council, ihe undersigned is of opinion that it should be upheld in Canada until reversed. For these reasons he recommends that the Act in question be disallowed. A. CAMPBELL, Minister of Justice. 1 1; 76i t-^j-'ai^'*' 120;-! PRINCE EDWARD ISLAND LEGISLATION Report of a ConunUten of the lIoiiDiirahh' (hf I'ririj CoinicU, np/>roved by I/is Excel/', i, if the (hwenior (Imwral, ia Council on tlw 1st Dfcuibfi; LSS,^. On a report dated lath November, 1882, from the Minister of Justice, statini,' that he has had under consideration an Act passed by the general assembly of the prnviiun of Prince Edward Island, in the year 18S1, 44 Vic, chap. 18, and intituled :" An Act respecting the Administration by the Crown of the Estates of Intestates in certiiiii cases ;" The minister observes that among the estates to which the Attorney General iiiiiy. by that Act, b^'come administiator, are included the estates of persons dying intcKfui. n and without heirs or next of kin, and that by the 8th section of the Act it is p ovidod that " moneys realized from estates to which the Attorney (Jeneral is administnitor under this Act, shall be kept in a separate account in such bank or invested in siuli manne • as the Lieutenant-Governor in Council may, from time to time, appoint, and all moneys which have been unclaimed for ten years shall, from time to time, be paid intii the treasury of this island, for the use and benefit of Her Majesty." The minister submits thiit in the cfise of Mercer vx. The Attorney General of Ontario, the Suprem • Court of Canada decided that revenue derived from escheats is, by the 102nd .-ection of the British North America Act, placed under the control of parliament as part of the Consolidated Revenue Fund of Canada, and that case is the subject of an appeal to the Judicial Committee of Her Majesty's Privy Council The minister is of opinion that the attention of the Lieutenant-Ciovernor of rnu'e Edward Island should be called to the case cited, and that he should be informed that although your Excellency has not been advised to disallow, in the meantime, the Act under consideration, its provisions would be illegal in the event of the decision of tiu> Supreme Court in the case referred to being upheld by the Judicial Committee. The committee concur in the report of the Minister of Justice, and they recommend that the Lieutenant-Governor of Prince Edward Idand be informed to that effect. JOHN J. McGEE, Clerk Privy Council. PRINCE LDWARD ISLAND.— 46th VICTORIA, 1882. 4th Session — 28th General Assembly. Report of the Honourable the Minister of Juxlice. Department of Justice, Ottawa, 13th February, 1883. To His Excellency the Governor General in Council : The undersigned having had under consideration the Acts ■ f the general assembly of the province of Prince Edward Island passed in the session of 1882, recommends that the same be left to their operation. Chapters 1 to 29 inclusive. i.s Excelh-iifif stating tliat d : " An Act es in certain 3eneral iiiiiy, ng intestiitcs it is p ovided idministnitor ested in siicli point, unci nil , be paid into y General of 11 escheats is, he control of at case is tlio incil nor of Prince informed that time, the Act ecision of tlie ittee. 3y recommend it effect. Councii. 1882. iry, 1883. neral assembly !ommends that •16 vicTOitiA, 1883. 1209 PRINCE EDWARD ISLAND— 46th VICTORIA, 1H83. LsT Skssion — 29tii Oknkhal Ashkmhly. Report of the Hon. thn Minister of Justice, appr'oved by Ifis Excellency the Governor General in Council on the JOth March, 188Jf. DEPAin.MKNT OF Ju-STicK, Oi'TAWA, 5th February, 1884. To Ilia ExceUencij the Governor General in Council : The undersigned having had under consideration the Acts of the general assembly of the province of Prince Edward Islar;d, passed in the year 1883, chapters 1 to 29, respectfully recommends that they be left to their operation. While making this recommendation, the undersigned deems it proper to observe that by chap. 8, intituled : " An Act to continue certain Acts therein mentioned," the Act 24th Vic, chap. 7, intituled : " An Act for the preservation of the Alewives Fish- eries in this Island," and 26tli Vic, chap. 10, intituled : " An Act to alter and amend the Act for the preservation of the Alewives Fisheries in this Island," are continued and made perpetual. It is quite clear that the legislature of Prince Edward Island could not now pass these Acts, the subject of sea coast and island fisheries being within the exclusive legislative authority of Parliament. It is equally clear that the legislature of Prince Edward Island has no power to continue these Acts in force after the date at which they expire. The Act in question continued a number of other Acts within the legislative authority of the legislature of Prince Edward Island, and it is, in the opinion of the under.signed, expedient to leave it to its operation, calling the attention of the local authorities to the provision continuing the two Acts specially referred to, namely, 24 Vic, chap. 7. and 2Gth Vic, chap 10. The attention of the Minister of Marine and Fisheries has also been called to this matter. By chapter 11, intituled : " An Act relating to the Acts of the Dominion Parlia- ment, respecting Insolvent Banks, Insurance Companies, Loan Companies, JJuilding Societies and Trading Corporations," provisions are made similar to those contained in the Act of the parliament of Canada, ifith Vic, chap. 23, intituled : " An Act respecting Insolvent Banks, Insurance Companies, Loan Companies, Building Societies and Trading Corporations. " The Act of the Island legislature was assented to on the 29th day of April, 1883, and that of pailiament on the 25th day of May, 1883. While it is probably true that the former is unnecessary, the undersigned is of opinion that no public inconvenience can arise from leaving it to its operation. By chapter 25, intituled ; " An Act to incorporate the Inland Steam Navigation Company of Prince Edward Island," certain persons are incorporated by the name of tlie Inland Steam Navigation Company, and are given the general powers made incident to a corporation by the Act of the assembly of the Island, 15th V'^ic, chap. 14, and Acts in amendment thereof, but the objects for which corporate powers are given are not stated. It is, therefore, impossible to say whether the objects are provincial or are not, and the undersigned is of opinion that the attention of the Lieutenant-Governor should be called to the omission. If this report is approved, the undersigned recommends that the substance of it be communicated to the Lieutenant-Governor of Prince Edward Island. A. CAMPBELL, Minister of Justice. R •J. J • 1210 PRINrE EDWARD ISLAND I-BOISLATION. PRINCE EDWARD ISLAND— 47Tri VKTrORIA, 1884. 2nd Skhsion — 29th General Ahhemhly. Report of the Hon. the Minmter of Jiinlirr, approved hi/ llin E.i'cellency the Governor General in Council o . the 7th April, 1SS5. Department of Jumtice 2Gth March, 1885. 2'o Ilia Excelleuey the Governor General in ('ouncil : Tlie undersigned having considered the Acts passed by the legisliitiire of the province of Prince Edward Island in the year 1884, chapters 1 to 26, has the hon.>ur to report that he sees no objection to the Acts, and respectfully recommends that the) be left to their operation, and that the Lieutenant-Governor of Prince Edward Island be 80 informed A. CAMPBETJ., Minister oj Justice, PRINCE EDWARD ISLAND—48th VICTORIA, 1885. 3rd Session — 29th General Assembly. Report of the Hon, the Minister of Justice, approved by His Excellency the Governor General in Council on the 6th March, 1886. Department of Justic , Ottawa, 25th February, 1886. To His Excellency the Governor General in Council ; The undersigned having had under consideration the Acts of the legislature of the province of Prince Edward Island passed in the session held in the year 1885, chapters 1 to 17, respectfully recommends that they be left to their operation. In making this recommendation the undersigned desires, however, to observe that by section 24 of chapter 1 0, intituled ; " An Act to incorporate the Telephone Company of Prince Edward Island," it is provided that any person, who shall wilfully or mali- ciously injure, molest or destroy any of the lines, post or other material, or property of the company, shall be liable for each offence to a fine not exceeding $20. Provision is made for the punishment of such an offence as this by the criminal law of Canada relating to malicious injuries to property. The undersigned recommends that the attention of the Lieutenant-Governor of Prince Edward Island be called to this section with a view to its amendment. All of which is respectfully submitted. JOHN S. D. THOMPSON, Minister of Justice, ^4. Governor 1885. ire of tli(! he honour that they ard Island unlice. 85. e Governor PRINCE EDWARD ISLAND— 49th VICTORIA, 188G. 4th Session— '2!)tii (Jenkral Assembly. Report of the HoiwHrabi- t/i- Minister af Justice, approved by His E^cellenci/ the Governor General in Council on the 6th Ajyril, 1887. Dep.'Vutment of Justice, Ottawa, 30th March, 1887. To His Excellency the Governor General in Council : The undersigned has the honour to report upon the Acts, passed by the legislature of the province of Prince Edward Island in the session of 1 S8G, authentic copies of which wei'o received by the Secretary of State on the 12th October lust. The 9th, 15th, IGth, 17th, 18th and 20th sections of the Act, 49th Victoria, chapter 4, intituled : " An Act respecting the Public Health," deal witli the subject of quaran- tine, which by the 11th paragraph of the 91st section of the British North America Act, 18()7," is exclusively within the legislative authority of the ^ ^ 'ianicnt of Canada, and in respect to which parliament has exercised its powers of legisin mu. (U. S. C, c. 68.) The undersigned recommends that the attention of the Lieutenant-CJovernor of Prince Edward Island be called to the matter, \f)^^ h view to steps bfing taken to repeal the sections mentioned, and that the furth< msideration of the Act by your Excellency i Council be for the present deferred. Thu an.iersigned having considered the other Acts of the legislature of Prince Edward Island, passed in the session ot 1886, chapters 1 to S and 5 to 19, recommends Uiey be left to their operation, and that tlie Lieutenant-Govornor be informed thereof. JNO. S. D. IIIOMPSON, Minister oj Justice. , 1886. ,ture of the S5, chapters )bserve that le Company Uy or raali- property of ;he criminal Grovernor of it. ^' Justice. Report oj the Honourable the Minister of Justice, approved by His^ Excellency the Governor General in Council on, the JJth Aiu/usf, 1887. Department of Justice, Otiawa, 8th August, 1887. To His Excellency the Governor General in Council : Ad\erting to his report of the 30th March lash upon the Acts passed by the legislature of the province of Prince Edward Island in the session of 1886, the under- signed has the honour to report that by the Act of that legislature, 50 Victoria, chapter 5, intituled : " An Act to amend an Act respecting the Public Health," sections 9, 15, 16, 17, 18 and 20 of the Act of the same legislature, 49 Victoria, chapter 4, intituled : " An Act respecting the Public Health," were repealed, and to recommend that the Act last mentioned be left to its operation. JNO. S. D. THOMPSON, Minister of Justice. PRINCE EDWARD ISLAND— 50th VICTORIA, 1887. 1st Session, 30th General Assembly. Report of the Hon. the Minister oj Justice, approved by His E.rcellency the Governor Oeneral in Cotmcil on the 2nd October, 188S. Department of Justice, Ottawa, 30th July, 1888. To His Excellency tlie Governor General in Council : The undersigned has the honour to report upon the Acts ..£ the lej,nslature of the province of Prince Edward Island passed in the year 1887, and begs to recommend that they (chapters 1 to 7, and 9 to 23) be left to their operation. Respectfully submitted. JNO. S. D. THOMPSON, Minister of Justice. Report of the Hon. the Minister of Justice, approved by His Excellency the Governor General in Council on the Und October, 1S88. Department of Justice, Ottawa, 30th July, 1888. To His Excellency the Governor General in Council : The undersigned hfls the honour to report upon chapter 8 of the legislature of the province of Prince Edward Island, passed in the year 1887, as follows :— Chapter 8, Charlottetown Water Works Act, 1887. mon ^ os The undersigned begs to call attention to the provisions of sections 19, 20 and -b of this Act, wiiich are mainly intended to attach penalties to unlawful acts which are now punishable under section 68 of the Revised Statutes respecting malicious injuries to property. , • • i i • i i- <. The policy of attaching penalties and punishments by provincial legislation, to oflfences against the criminal law, seems to be of very doubtful utility, and the validity of such provisions is open to doubt. The undersigned, however, has not thought it necessary to recommend .he dis allowance of this Act, but recommends that a copy of this report, if approved, be sent to the Lieutenant-Governor of the said province, in order that the attention ot his advisers may be called to this subject. Respectfully submitted. JNO. S. D. THOMPSON, Minister oJ Justice. 51 VICTORIA, 1888. 1213 887. the Governor ly, 1888. slature of the ,o recommend )/' Justice. t]>e Governor aly, 1888. legislature of 19, 20 and 28 acts which are licious injuries le{j;islation, to nd the validity imend Lhe dis proved, be sent ttentiori of his oj Justice. PRINCE EDWARD ISLAND,— 51st VICTORIA, 1888. 2nd Session — SOtii General Assembly. Report of the Honourable the Minister of Justice, approved by His Excellency the Governor General in Council, on the 30th January, 1SS9. Department of Justice, Ottawa, 28th January, 1889. To His Excellency the Governor General in Council: The undersigned, having had under consideration the Acts of the legislature of the province of Prince Edward Island, passed in the session held in the year 1888, chapters 1 to 11, 13, and 15 to 22, respectfully recommends that they be left to their operation. Respectfully submitted. JOHN S. D. THOMPSON, Minister of Justice. Report of the Honourable the Minister of Justice, approved by His Excellency the Governor General in Council on the 5th February, 1889. Department of Justice, Ottawa, 28th January, 1889. To His Excellency the Governor General in Council : The undersigned has the honour to submit for consideration his report on chaptej-s 12 and 14, entitled respectively : "An Act to consolidate and amend the several Acts incorporating the City of Charlottetown," and "The Prince Edward Island Joint Stock Companies Act," passed by the legislature of the province of Prince Edward Island in the session of 1888 ; an authentic copy of which was received by the Secretary of State on the 28th August last. Chapter 12, section 76, of this Act, authorizes the city council to levy a personal tax upon conmiercial travellers. It is doubtful whether legislation of this character is not an infringement upon the exclusive power of the Dominion parliament to legislate in respect to trade and commerce. Section 112 is undoubtedly an infringement of this power, inasnm h as it legislates directly in respect to the harbour of Cliarlottetown, which, under the provisions^of the British North America Act, is vested in the Dominion parliament. Inasmuch as the object which the legislature of Prince Edward Island had in view in enacting this provision may be obtained in another waj-, the undersigned recommends that the section be repealed. By section 114 of this Act, power is given to the city council to make by-laws in connection with the regulation of markets, and as to the manner of selling and weighing divers staple artic!r:'s. It also gives power to regulate and provide by By-law "for the erection and rent of wharfs, piers, quays and docks in the city, and the tolls or wharfage to be paid for vessels or steam boats touching thereat." It also provides for the enforcement, by by- law, of the due observance of the Sabbath, and for by-laws to prevent vice, immorality and indecency in the streets and other public places within the city, and to " regulate the sale of goods, ware,,, or men'handise, 3ither by samples or otherwise, by public auc- tion or by private contract in the said city by commercial travellers or agenis." i ' 1214 PRINCE EDWAHD ISLAND LEGISLATION This legislation touches subjects which are under the control of the parliament of Canada. It proposes to deal with these sul)ject3 as if they were under the control of the provincial legislr.ture. It may therefore, lead to confusion by appearing to permit Municipal regulations, not altogether subordinates to the legislation and the legishitive rights of the parliament of Canada. It is possible, however, that these enactments may be useful and that by-laws may be made under them, svhich will be within provincial and municipal authority, as for instance, the regulation of the places where markets may be held, the enforcement by the police of the enactments of Canada regulating the sale by weight or otherwise, of various commodities, and the erection and management of wharfs, etc., on property be longing to the city. The undersigned therefore deems it sufficient to call attention to the necessitv for care in the carrying out of such enactments, and does not recommend that the power of disallowance be exercised in respect to them. Section 13.5 provides that the Lieutenant-Governor in Council shall appoint a stipendiary magistrate fur the city of Charlottotown, with jurisdiction to hear every criminal offence and prosecution cognizable before two justices of the peace. By section 147 it is enacted that the stipendiary magistrate of the said city for the time being shall hold a court for the recovery of small debts, to be known as " Tins City Court " and he shall be the judge of such court. By section 148 the said city court is vested with the same jurisdiction, powers and authorities up to, but not beyond, the sum of $80.0U, as the county courts of judi- cature now possess, by virtue of any Acts of the legislature of the province, and the said court and the judge thereof, shall, subject to the limitations aforesaid, have the same powers as the county court judges possess by virtue of any of the Acts aforesaid, for the collection of debts. Other provisions in the Act give to the judge of the city court the same powers in respect to practice, relief of insolvent debtors, arrests and other matters, as are possessed by county court judges. The undersigned is of opinion that the judge of the city court referred to in these sections, is not such an officer as may be appointed by the Lieutenant-Governor of the province, but that he is a judge within the meaning of section 96 of the British Norlii America Act, and should therefore be appointed by your Excellency in Council, and he thei-efore lecommends that the attention of the Lieutenant-Governor of Prince Edwaifl Island be called to this enactment with a view to his advisers promoting legislation, either conferring different jurisdiqtion on the stipendiary magistrate, or providing that his appointment shall vest in your Excellency in Council, under the provisions of the British North America Act, and that further action in respect to the Act in question be deferred, until after the answer of his Honour the Lieutenant-Governor shall have been received. Chapter 14. — Section 62 of this Act, having reference among other things to bills of exchange and promissory notes, is, in the opinion of the undersigned, an infringement upon i^e exclusive authority in that respect of the Dominion parliament, and should be repealed. The undersigned respectfully recommends that a copy of this report, if approved, be transmitted to his honour the Lieutenant-Governor of Prince Edward Island. JNO. S. D. THOMPSON, Minister of Justice. 'j*i ^ . ;. 52 VICTORIA, 1889—53 victoria, 1890. 1215 rliaiiieut of ! control of ; to permit legislative y-laws may )rity, as for rcement by ;herwise, of property be lecessity for he power of 1 appoint ii hear every said city for wn as " The tion, powers irts of judi- ace, and the lid, have the ;ts aforesaid, (le powers in ire possessed d to in these ernor of the Jritish North uncil, and he •ince Edward g legislatinn, •oviding that visions of the 3t in question or shall have hings to bills . infringement and should be , if approved, Island. of Justice. PRINCE EDWARD ISLAND— 52nd VICTORIA, 1889. 3rd Session — 30tii General Assembly. Report of the Honourable the Minister of Justice, approved by His Excellency the Governor General in Council on the 28th June, 1890. Department of Justice, Ottawa, 31st May, 1890 To His Excellency the Governor General in Council : The undersigned respectfully recommends that the Acts passed by the legislature of the province of Prince Edward Island in the session of 1889, chapters 1 to 23 inclusive, be left to their operation. JNO. S. D. THOMPSON, Minister of Justice. PRINCE EDWARD ISLAND— 53rd VICTORIA, 1890. IsT SESSION — 31ht General Assembly. Report of the Hon. the Minister of Justice, approved by His Excellency the Governor General in Council on the 11th April, 1891. Department of Justice, Ottawa, Uth March, 1891. To His Excellency the Governor General in Council : The undersigned having considered the Acts passed by the legislature of the province of Prince Edward Island, in the session held in the year 1890, chapters 1 to 20, and 22, respectfully recommends that they be left to their operation, and that the Lieutenant-Governor of that province be informed thereof. Received bv the Secretary of State, 18th August, 1890. ^ ^ Respectfully submitted. JNO. S. D. THOMPSON, Minister of Justice. Report of the Honourable the Minister of Justice, approved by His Excellency the Gowernor General in Council on the 11th April, 1891. Department of Justice, Ottawa, 14th March, 1891. To His Excellency the Governor General in Council : The undersigned has the honour to report upon an Act passed by the legislature of the province of Prince Edward Island in the session held in the year 1890, chaptered 21, intituled "An Act to incorporate the Full E'actric Company of Prince Edward Island," which Act was received by the Secretary of State on the 18th August, 1890 ...m If 1216 PRINCE EDWARD ISLAND LEOISLATION t\;le*i:fr^sXSS„1 ;;Wto proper,. co.«i»ed inthe E«v,.ed Statutes of Canada. +!,„+ thp attention of the Lieutenant-Governor of t.?;o"::^Srcrdt' trrri^Xy^rrr their repe. at the next .eet- '"' "k^^'uSfgned nevertheless recommends that the Act be left to its operation. Respectfully submitted. _^^^ ^ ^ THOMPSON, Minister of Justice. PRINCE EDWARD ISLAND— 55th VICTORIA, 1891. 2nd Session— 31st General Assembly. R.,or, of the Honourable the Minister of Justice, approved by His Excellency the KepoU Of "g^^^^^. o,n,ral in Council on the 6th August, 1892. Department of Justice, Ottawa, 26th May, 1892. To His Excellency the Governor General in Council ; The und^sig^d lias tl^ur ^^epo. tl^^ ha. .— ^ ^ ^ ^ to recommend that the same be left to their operation. Respectfully submitted. ^^^ ^ ^ THOMPSON, Minister of Justice. B 55 vicTOHiA, 1892. 1217 PRINCE EDWARD I8LAND-55th VICTORIA, 1892. 3rd Skssion — 31si' (Jknekal Assembly. Petition froiii Edivard Byrne and others, to the Honourable the Minister of Justice. CuARLOTTErowN, P.E.I., May, 1892. Sir, — Your memorialists respectfully suggest the following reasons for disallowing the bill passed by the local legislature of tins province at its last session, intituled : " An Act to regulate, by police and municipal regulations, the sale of Intoxicating Liquors in the city of Charlottetown, and so to preserve therein, public decency, and repress drunk- enness and disorderly conduct." 1. The bill is framed to operate only in the municpality known as the city of Char- lottetown. Under the provisions of the British North America Act, the local legislature . could only deal with the question of thi; sale of intoxicating liquor within the munici- pality on either of two grounds : first, for the purpose of raising a revenue, or for the good government and maintenance of peace in the municipality. The bill objected to, does not legislate for the purpose of raising a revenue, local or provincial. The authority upon which the legislature can claim the power to legislate must, therefore, be under subsection 8 of section 92. British North America Act. 2. Your memorialists submit that said subsection 8 cannot give the authority claimed. The words, "municipal institutions in the province," cannot surely mean that the legislature can deal with subjects reserved for the federal government, such as the regulation of trade and commerce. 3. Your memorialists submit that the laws enacted for the good government of a municipality, under said subsection 8, must be reasonable, and such as can fairly be considered as tending to the promotion of the object in view. Regulations restricting the retail liquor trade to certain hours, is clearly in the interest of peace and order, but restrictions on the wholesale trade are not. The Act complained of goes still further, and enacts that no intoxicating liquor in any quantity, can be sold in the municipality within certain hours, that is to say from or after the hour of six o'clock on Saturday afternoon, till seven o'clock on Monday morning thereafter, nor during the balance of the week from the hour of ten o'clock at night, until 7 o'clock in the forenoon of the next day. The statute also provides that no sale of intoxicating liquor in any quantity shall be made in the city " except in a room or apartment built and constructed as follows : viz.. On a ground floor open to view in its entire interior, without partition or screen, containing as fixed furniture therein, nothing except a counter not exceeding three feet in height, having only one entrance or exit, and that one, on and facing one of the public streets of the city, and having facing such street, •> window so built and constructed, as to aflFord full view from w""^' "ut of the interior of such room or ppartment." 3f our memorialists admit that this provision in section three of the said Act has no bearing or tendency " to maintain public decency and repress drunkenness" in the city. This enactment is harsh and unreasonable and more for the purpose of obstruct ing dealers and the public, than for the benefit of the city, If this enactment becomes law, a hogshead of ale or beer cannot be sold from a warehouse or brewery, or by order, in this city, unless in a room on a public street constituted as mentioned above. We submit that the provision in said Act clear yi n- terferes with matters or subjects over which the parliament of Canada alone has jurisdiction. The sale of a hogshead of beer by a brewer, to a ship in port, to be carried beyond the limits of this province, unless sold within the restrictions of the Act will constitute a violation of the statute. No sale can be effected by correspondence nor VHI 1 1 i t ,4-1 1218 PRINCE EDWARU ISLAND LEGISLATION can the price of the goods sold on credit be recovered by the vendor, whether sold to a citizen, or by correspondence to a citizen of another province or country. Whih' this provision of s( ction seven may be within the power of the legislature the section is novel and unworkable. Your memorialists humbly submit that the statute complained of is beyond the power of the local legislature to pass, that it infringes upon the jurisdiction of the par iiiiment of Canada in obstructing tiade and commerce, and that it is not calculated to promote the good government, peace and oiderof the city. For the^e reasons we humbly submit that the said statute should not be assented to, by his Excellency the (iovernor General. And your petitioners as in duty bound will ever pray : — P. P. GILLIS. EWEN MACDOUGALL. F. McKENNA. DO.M. KEDDIN, Jr. JAMES BYRNE. EDWAKD BYRNE. JAMES EDEN. MORRIS & HYNDMAN, J. A. T MORRIS. The Honourable Attorney General Peters to ih' Honourable the Mininter of Justice. CiiAHLOTTKTowN, 6th October, 1892. Dear Sin, — Referring to the memorial addressed to you by certain liquor dealers in Charlottetown, asking for the disallowance of the statute passed at the last session of the legislature of Prince Edward Island, intituled : " An Act to regulate by police and municioal regulatioiis, the sale of Into.\icating Liquors in the city of Charlottetown, an 1 so to pre-erve therein public decency and repress drunkenness and disorderly con- duct," and in furtliei- reply tf) ttie letter received by me from the ^oputy Minister of Justice, dated the 23rd Sept. ult., I would respectfully submit the following observa- tions with regard to the Act : III the first place, I contend our legislature has clearly power to pass any statute relating to municipal institutions in the province, and also relating to any matter of a merely local or private nature in the province — this power being expressly given by sub- sections 8 and 16, of section 92, of the British North America Act. The statute in question, in I'.e first place, has for its object the preservation of good order in one municipality only, namely, that of Charlottetown, and it is therefore purely local in its operation. Its several provisions are confined in their operation to the regulation of the sale of liquor in Charlottetown, and it is submitted are all intra virex, under eithei- one of the heads of " regulations of municipal institutions in the province," or of '' purely local matters." The first provision is that the sale of liquor shall only take place in rooms of a certain description. The object of this section is apparent. Experience has shown that drinking greatly increases if it is carried on in places to which people can resort secretly. By the present Act, any person who wishes to resort to a bar room must do so openly. This section is now doing good work. The pernicious habit of treating has, to a great extent, been stopped by it, as the majority of people who go into bar-rooms, especially in a small place like this, do not care to stay in for any greater length of time than to enable them to get their drink ; and, conse- quently, the habit which existed heretofore, and which was responsible for a great deal of drunkenness — that when two or three went into a bar-room every one treated in turn — has been greatly decreased. Practically speaking, this provision of the law is now being observed by alijiost all, if not all, of the liquor dealers in Charlottetown. I would also direct your attention to the fact that, the case of " Queen vs. Hodge," is a direct authority that a regulation of this kind does come within the power of the local legislatures. I do not understand from the memorial that the signers actually contend this section is beyond the powers of the legislature, but they seem to say that it is an unreasonable provision, and one that ha. no tendency to maintain decency or repress old to a jislature and the the pal- liated to anted to, Justice. 1892. or dealers session of police and lottetown, ■derly con- linister of 2 observa- ny statute natter of a ^en by sub- jrvation of therefore peration to e all intra ions in the ,le of liquor I section is irried on in who wishes work. The majority of care to stay and, conse- a great deal ated in turn law is now s. Hodge," is of the local ally contend that it is an 3y or repress 55 VICTORIA, ly'J'J. 1219 drunkenness in the city. Assuming for the sake of argument that the local legislature has Uie power to pass a statute of this niituic, 1 would respectfully submit that the local legislature alone has the right to judge what tiie particular provisions of the statute should I.e. But, as a nuitter of fact, we have now had experience of the law since it came into force in July, and I liave no hesitation in saj'ing that this provision lias not proved harsh or unreasonable, and that it has shown itself of valuable assistance in maintaining public decency, and repressing drunkenne.ss in the city. I ihink I am safe in saying tiiat this clause is looked upon by all cliisses of our jieople as being most beneficial. As I understand the memorialists, they laise a further objection to this cluuse on the ground that it does, or may, inteifere with the whule.ions in the employment of the government of Canada, by preventing them from exerting, by means of their Aotes, the influence they should possess in the protection of their health, property and other intere.'its, is a direct infraction of the rights and liberties of a large number of intelligent and educated men. The bill repeals the section of the existing statute which prevents mortgagees from voting on investments in the different districts of the province. The legalizing of a mortgage vote is unprecedented in any other country, and its revival here, attended as it is by the disfranchisement, to such a large extent, of the resident intelligent voters, is fraught with great damage to the public interest. I remain, he. NEIL MACLEOD. His Honour the Lieutenant-Governor, to the Hon. the Secretary of State. Government House, Prince Edward Island, 18th May, 1892. Sir, — I have the honour to transmit to you herewith, for the consideration of his Excellency the Governor General, as therein requested, copy of an address presented to me by my executive council, advising me to solicit from his Excellency, with a view to my yet a.ssenting thereto, a return of the bill intituled an "Act respecting the Legisla- ture," reserved for the signification of his Excellency's pleasure, and to intimate that I have declined to be guided by this advice, a decision in which my government acquiesce T have &c., J, S. CARVELL, Lieutenant-Governor. "TV section the bill ided l)y arrived of the ' section Iter the ancil, as ch their iting the shall be y further e, which, bitute an 1. )f King's constitu- with the cal party. and the 3 influence lembers of esent age. large por- e to be de- jontests. loyment of ,heir votes, and other intelligent ragees from alizing of a attended as jt voters, is D. State. f, 1892. ration of his presented to th a view to ; the Legisla- bimate that I nt acquiesce ovemor. 5") vicTOHiA, 18!»2. 1223 AUUHEHS OK MIXUTK Prpsenleil to //is /fonnnr Jederiin/i Slaxon Carvi'll, H/K/iiire, LmUfinnnt-Gorerjior of the. Province of Prince Edivard Inland, by the nteinbera of the Executive Council of mid Province, E.\ECUTivE Council Chamber, P.E.I., 10th May, 1892. May IT Please Your Honour : We, the members of your Honour's executive council, humbly submit the follow- addres.s or minute for your consideration. At the last session of the legislature the two houses passed a bill eiitituled "Bill respecting the legislature," to which bill your honour deemed it right not to assent, but reserved the same for the consideration of his Excellency the Governor General. The great importance of this bill to the people of this country, and the earnest desire which your council feel that it should Iiecome law, have induced us to hope and suggest that your honour may yet be able to take such steps, as may enable you to re- consider the decision you catne to in the matter, and we are stengthened in this hope when we refer to the precedents which show that the usual course seems to be different from that adopted by your Honour. We desire, in this address, to lay before your Honour the reasons for the opinions expressed therein. The principle of law which governs your Honour's power to reserve a bill for con- sideration of his Excellency, is laid down in Bourinot on Parliamentary Law, page 658, and is that " in reserving or withholding assent from bill, Lieutenant-Governors are to art, not merely on their own discretion, but subject to instructions which must necessarily emanate from the Governor General in Council." In the absence of these instructions, they must act on their own discretion, and on the advice of their council. This course has been laid down as correct by both Sir John A. Macdonald and James MacDonald, present chief justice of Nova Scotia, when Minister of Justice. (See opinion given in Sessional Paper of 1882, No. 141, page IGl.) The present bill deals with subjects which are clearly within the power of the local legislature. Its main object is to change the constitution of our legislature (which the British North America Act authorizes us to do) by reducing the number of chambers to one. At present we have two houses, the legislative council consisting of thirteen mem- bers, elected by voters who possess a certain real property qualification, and the house of assembly, consisting of thirty member.'^, elected by voters who possess various qualifi- cations, set forth in various Acts so liberal, that it almost amounts to manhood suffrage. The scheme proposed by the statute under consideration is an amalgamation, it being provided that the present houses shall exist until the next dissolution, after which time there shall be one house only with thirty members, half elected by voters eligible to vote for our present legislative council, and the other half by voters eligible to vote for our present house of assembly. This is the main provision in the bill, and is one clearly within our powers, and with the exception of a few sections which we will refer to, the whole of the remaining portion of the bill is very little more than a consolidation of election laws, which became necessary if the constitution was to be altered. The hill leaves the districts as before with the exception that it was necessary to enlarge the bounds of Georgetown district in King's county. This district only containing about 200 voters, and it not being deemed fair to allow so small a constituency to exist, in face of the fact that several other constituencies contained as inany as 2000 voters. In order to do this a change, had to be made in three of the constituencies in King's county, but in making this change due regard was had both to the position of the different portions of each district, and the number of voters therein. In any case we humbly submit that the settling of the districts, quo ad local elec- tions, is a subject peculiarly within our competence. 77^ iti 1224 PRINCE KDWARU IHLANU LEHIHLATION The bill further contains a clauso tiikinx away the votes of persons in the perman- ent employ of the various departinentH of the Dominion government service, tiiin clauso haw hnen objected to by the iiiemherH of the present oppoHition, not, we believe, on any ground that the clause is vicious in principle, but because they seem to fear that at present such a clause might all'ect them at the next election, an objection of this kind cannot, we submit, be entertained by your honour. We contend you have simply to ask the question. Is tlie clauso within the competence of your parliament to pass 1 On this (juestion there can he but one answer, namely, that this parliament clearly has tti(( Eower to change the ([ualification of electors whenever it sees tit, this power iias often een exercised without objection, since confederation. Were it necessary so to do, wo could lay before your Honour good reasons why the clause in (juestion should be passed. We will content ourselves by stating one, namely : — ^The duties of the Dominion gov- ernment, and the local government are entirely ditt'erent, the one having control of matters general to the whole Dondnion, the other having control of matters local to the province only, it therefore should ff)ll()w that so long as each government keeps within its sphere, neither should in any way be interfered with by the other, and especially the greatest care should be taken that the inlluenje of the Dominion goveinmerit should not be exercised, nor bo suspected of being exercised, to assist the election of any par- ticular set of men to the local government, without for a moment charging that any Dominion government have ever directly interfered in local elections here, tiicse who have a knowledge of the practical working of elections in this province, cannot fail to know that a considerable number of the Dominion otlicials are in some way made to understand that it will be better for them not to vote against the local party, who for the time being, happens to be working in unison with the Dominion government then in power. This and other reasons induced your parliament, with our full concurrence, to intro- duce the clause in question, and in so doing we are only following the oxanif of other provinces, see Nova Scotia and Ontario. There is only one other clause which calls for any comment, that is clau 179, and the preamble of the Act. The preamble states that the Act is the result of a compromise between the two houses, and states that one term was that the constitution, should not be altered in one particular, namely, the qualification of the voters for the property candidates or council men, or the proportionate number of councillors in the new house, without a two-third vote of the new house. It has been objected that this section is not binding, as one parliament, it is argued, cannot bind subsequent parliaments. This objection, was taken before both houses when the bill was being passed, anrl the members of both houses, notwithstanding the objecticm, passed the clause in question, looking at it as a guarantee that no change would be attumpted at all events for some considerable time. This point is quite clear, that if any parliament can make such a clause binding, it is the local parliament and not the Dominion, and therefore, the clause in question in no way interferes with the power of the Dominion parliament. It must also be remembered that in order to abolish one of our houses, it was absolutely necessary to arrive at a fair compromise, and we fully recognized the fact which we hope your Honour will also recognize, that in order to succeed in our main object and abolish one of our houses, it was necessary to agree to any reasonable proposition proposed by the upper house. We, as a government, looked upon the principal feature of the bill as so important to this province, that we certainly were not, nor are we now willing to assume the responsibility of losing the whole bill, by objecting to any clause proposed by the upper house which in itself was not open to any serious objection. Having thus stated the main provisions of the bill, and shown the reasons why they are unobjectionable, we venture to point out to your Honour that this bill is a most important one, and has achieved an object which prior governments ever since 1879, have in vain tried to accomplish. We have assurances from every part of the country that the provisions of the bill meet with the approval, almost universal, of our people, and we can assure your ■^ flO VIOTORIA, 1802. 1225 ho perman- tluH clause eve, on any ear tliat at it' thiH kind I Hiniply to ) pass '( On Illy has the ir haH often 80 to do, wo be passed, ninion gov- r control of 1 local to tilt) teeps within specially the ment should n of any par- ng that any '8, these whi> mnot fail to ,vay made to arty, who for (rnment then mcp, to intro- aiy' of other au 179, and iveen the two altered in one ites or council it a two-third t, it is argued, ng passed, and ise in question, vents for some a make such a fore, the clause uent. It must iitely necessary 1 we hope your md abolish one roposed by the Df the bill as so iUing to assume proposed by the ving thus stated ajectionable, we it one, and has in vain tried to ,he provisions of can assure your Honour that the defeat of this bill will be deeply regretted not only by us, your advisers, but also by the whole of the people of tills province. If your Motiour, afttn- oinefully pcirusing the authorities to which W(( ha>o taken upon ourselves to refer you. should come to the conclusion tiiat this iiill should not have been reserved we would most reHpecLfiilly ask and advise, you at an early date, to coannuiiicate with his I'Jxcellency the (lovernor (ieneral, askiiij; him to return the bill to your Honour, in order that steps may yet be taken to have the bill assented to by your Honour in person. We would also respectfully iisk your Honour to forward a copy of this minute to his Excelhuey tlie (Jovernor General for his consideration. ill D. FAIUJUHAUSON, THOMAS KICK HAM, J. W. RICHARDS, GEORGE FORBES, FRKDERICK PETERS, P E.C. JAMES R. McMillan, c.p.w. ANGUS MrMTLLAN, ALEX LAIRD, PKTER SINCLAIR. Report of the Hoiuniralilp. the Minuter of Justice, approved hy Hix Excellency the Governor General in Connril on the IJ^th Febrnarij, IS'J-S. Department of Justick, Ottawa, 2Cth January, lti&3. To His Excellency the Governor General in Council : The undersigned has had referred to him a bill, which, in the session of 1892, was passed by both houses of the legislature of Princ • Edward Island, intituled ; " An Act respecting the Legislat' .e of Prince Edward Island," but reserved by his Honour the Lieutenant-Governor for the signiticatioii of your Excellency's pleasure thereon. His Honour the Lieutenant-Governor has stated the grounds upon which, instead of assenting to the bill in tjuesiion, he so reserved it. The bjecls of the bill are to abolish the legislative council of the province and to provide lor a legislature consisting of one house only, to change to some extent the representation and to amend the law relating to elections for the legislature. These matters are entirely within the competence of the legislature. The bill was not reserved under instructions from your Excellency in Council, and, in the opinion of the undersigned, the reasons given by his Honour are not sufficient to war- rant your Excellency in accepting any responsibility with regard to the measure. The undersigned begs to refer, as dealing more fully and exhaustively with the matter, to an approved report of the late Sir John Macdonald, as ^Minister of Justice, of the 25th August, 1873, when reporting upon certain bills passed by the legislature of Ontario, and reserved by the Lieutenant-Governor of that province for the assent of the Governor General, and to another approved report of the 14th June, 1870, of the Honourable James McDonald, then Minister of Justice, in which he adopted the pre- cedent of 1873, in dealing with a bill from the province of Prince Edv/ard Island. Should the bill now under consideration be passed as a statute of Prince Edward Island, the undersigned may have an opportunity of considering the objections which have been presented thereto, as based on constitutional right and usage, but for the present he deems it nutficient to reserve the right, and he recommends that your Excellency take no action upon the bill in question, and that his Honour the Lieutenant- Governor of Prince Edward Island be so informed. Respectfully submitted. JNO. S. D. THOMPSON, Minister of Justice. 1226 PBiNCB EDWARD ISLAND LEGISLATION Report of the HonouraUe the Mini.Ur of Justice aJ,^ro^.d hym Excellency the Uepon oj Q^^^nor General in Counctl on the 1st July, 1893. Department of Justice, Ottawa, 24th June, 1893. To His Excellency the Governor General in Council: The undersigned has the honour to report that he has ^^^^^l^^'i^h^.f ^X;'!^' ^/f the "gXturof the Fovince of Prince Edward I.lan^^^ passed ^n the ^T^^^J^ of rte"oftSirsir?«rd-L^5^^^ ^ -« ^^^^ -' may be left to their operation. Respectfully submitted. J. ALDKIC OUIMET, Acting Minister of Justice. 56 VICTORIA, 1893. 1227 Excellency the 1893. Acts passed by fty- fifth year of he Secretary of jectionable and of Justice. PRINCE EDWARD ISLAND— 56th VICTORIA, 1893. 4th Session, 31st General Assembly. Report of the Honoiirahle the Minister oj Jnstict', approved hy His Exci'llency the Governor (jleneral in Council on the 16th March, 1894- Department of Justice, Ottawa, 17th February, 1894. To His Excellency th>' (jovernor General in Council : The undersigned has the honour to report that he lias examined the Acts passed by the leglshiture of the province of Prince Edward Island in the fifty-sixth year of Her Majesty's reign (1893), chapters 2 to 32, received by the Secretary of State for Canada on the 2nd day of June, 1893 ; and he is of opinion that they are unobjection- able, and may be left to their operation. Chapter 1 has been reserved for a separate report. The undersigned also recommends that if t lis report be approved, a copy of the same, with a copy of the schedule of the title, of the Acts, be sent to the Lieutenant- Governor for his information. Respectfully submitted. J NO. S. D. THOMPSON, Minister of Justice. Report of the Honourable the Minister of Justice, approved hy His Excellency the Goverm>r General in Council on the 16th March, 1S94- Department of Justice, Ottawa, 17th February, 1894. Ih His Excellency the Governor General in Council : The undersigned had the honour to report upon chapter 1 of the Acts of the legis- lature of the province of Prince Edward Island, passed in the fifty-sixth year of Her Majesty's .-eign (189") received by the Secretary of State for Canada on the 2nd day of June, 1893, as follows : — Chapter I. — -'An Ani, respecting the Legislature." This statute p.ovides for the abolition of the legislative council of Prince Edward Island upon the dissolution of the house of assembly, by which it was passed, and pro- vides that thereafter the legislature shall be composed of the Lieutenant-Governor and one house, to be called the legislative assembly ; that the legislative assembly shall be composed of thirty members, who shall represent {he fifteen electoral districts, fifteen of the members to be styled councillors, and fifteen to be styled assemblymen, each of whom shall be elected, the qualification of electors entitled to vote for councillors being diflferent fr im the qualification of electors entitled to vote for assemblymen. A provincial legislature has power, under the provisions of the British North America Act, from time to time, to amend the constitution of the province, except as regards the oflice of Lieutenant-Governor, and by virtue of that provision it was, in the opinion of the undersigned, competent for the legislature of Prince Edward Island to abolish the legislative council, and to establish a legislative body constituted as set forth in the statute under consideration. The undersigned calls attention, however, to section 159 of the statute, which provides a"; follows : — 1228 PRINCE EDWARD ISLAND LEGISLATION "No change shall hereafter be made in the proportion of councillors who shall sit in the legislative assembly, or in the qualification of electors entitled to vote for such councillors, unless such change he agreed to by at least two-thirds of the members of the legislative assembly for the time being." This section appears to be intended to limit the right which the legislature consti- tutionally has of repealing or altering previous Acts. Such a provision does not appear to the undersigned to be in accordance with the principles of legislation, and might afford reason for the disallowance of the statute wen* it not that, in the opinion of the undersigned, the section is wholly inoperative and of no effect whatever as restricting any future legislation on the subject. The section itself may be repealed at any time by a statute passed in the ordinary way. The undersigned desires further to direct attention tv sections 8, 9, 10 and 11 of this statute, which are as follows : — 8. " The common jail of the county of Queen's shall be the prison of the legislature." 9. " The asseml y shall have full power to commit to prison any peison who shall, by resolution of the laid assembly, be adjudged guilty of any contempt or breach of its privileges, and the serjeant-at-arms of the said assembly shall be the officer to carry out any order of said assembly made under this section," 10. "It shall be the duty of the keeper of the common jail of the said county of Queen's, to receive into his custody and confine in such jail, all such persons as shall at any time be committed to such jail, under and by virtue of any warrai.t signed by the speaker of the assembly." "All justices of the peace, sheriffs, deputy sheriffs, jailers, constables, and other officers shall aid and assist the said assembly whenever required so to do." It has I/cen established by many decisions that "a local or colonial legislature does not, in the absence of express grant from the imperial parliament, possess punitive powers, and it is, in the opinion of the undersigned, not competent for such a legislature to confer upon itself, or one of its constituent bodies, powers such as those in questiofi. 1. The undersigned would refer in this connection to a report of the Honourable Sir John A. Macdonald, dated 14th July, 1869, on a statute of Ontario (chapter 3 of 32nd Victoria), also to the report of the same minister on the same subject, dated the 22nd of October of the same year, and to the opinion of the law officers of Her Majesty's government on the statute of Ontario, before mentioned. Also to the report of the same minister on a statute of Quebec, chapter 41, of the same year, dated .'Ird March, 1869. Also to a report of the same minister, dated 19th October, 1870, on another Quebec statute. Also, to another report of the same minister, dated 18th December, 1872, chapter 5 of 33 Victoria, on a British Columbia statute. No. 4, of 3o Victoria. Also, to a report of the Honourable Edward Blake, dated 13th November, 1876, on a statute of Nova Scotia, chapter 22 of 39 Victoria. Also to a report of the same minis- ter, dated 13th October, 1876, on a statute of Ontario, chapter 9, of 39 Victoria. Also to the report, dated 2l8t August, 1874, of the Honourable T. Fournier, on a statute of Manitoba, chapter 2, of 36 Victoria. The invalidity of enactments of this character seems to be so well established, that little injury is likely to result from your Excellency ref'-aining from disallowance of this Act, while inconvenience of a sericJUs character might i »sult from disallowance, in view of the many other provisions which the Act contains. The undersigned recommends that the Act be left to its operation, but that a copy of this report, if approved, be transmitted to the Lieutenant Governor of Prince Edward Island for his information. Respectfully submitted. JON. S. D. THOMPSON, Minintfr of Justice. ■^ shall sit for such irs of the e consti- 3t appear nd might on of the estricting y time by and 11 of 1 of the who shall, jach of its r to carry county of as shall at led by the and other iiture does 8 punitive legislature I ijuestioft. [onourable apter 3 of dated the r Majesty's ort of the ird March, m another December, 5 Victoria. 1876, on a same minis- oria. Also I statute of lished, that ance of this nee, in view that a copy nee Edward Justice. 57 VICTORIA, 1894. 1229 PRINCE EDWARD ISLAND— 57th VICTORIA, 1894. 1st Session — 32nd General Assembly. Report, of tha Honourable ihn Minhb'r of Justice, approved by His Excellency the Governor General in Council on the 'Jth January, 1805. Department op Justice, Ottawa, 24th December, 1894. To His Excellency the Governor General in Council : The undersigned has the honour to submit his report upon the statutes of the province of Prince Edward Island, passed in the fifty-seventh year of Her Majesty's reign (1894) and received by the Secretary of State for Canada on the 12th day of July, 1894, as follows:— The statutes, chapters 2, 3, 5 to 34, are unobjectionable and may be left to their operation. As to chapter 1, intituled : " The Assessment Act, 1894," and chapter 4, intituled : " An Act to impose a Direct Tax on certain classes of Traders," the undersigned observes that their object is taxati. n for provincial purposes, the former pi-ovides for the payment of certain taxes in respect of land, and that the owner, occupier, and tenant shall be jointly and severally liable therefor. The latter statute, to which the attention of the undersigned has also been specially directed by the secretary of the Maritime Commercial Travellers' Association, provides that "every casual trader not permanently residing in the province, doing business within tiie province, commonly known as ' Commercial Travellers ' and every person not permanently residing in the province, and who sells either for himself or any other person, any goods or merchandise in the province, or solicits or canvasses for orders either for himself or any other person for the sale, exchange or purchase of any goods, wares or meichandise within the province, either by the production of samples, photograplis, catalogues, printed or written matter, or simply by word of mouth, without the production of samples, photo- graphs, catalogues, printed or written matter, shall, liefore he or she enters upon the business of so selling any goods, wares or merchandis", or soliciting or canvassing for such orders, pay to the Provincial Treasurer of the pro-ince, an annual license fee or direct tax of fifteen dollars," and it is also enacted that upon p lyment of such license fee the Provincial Treasurer shill grant a license to the person paying it, authorizing him to sell goods within the province, which license shall remain in force for one year, and that any commarcial traveller or person not permanently residing in the province, who shall sell any goods, or solicit orders therefor within the province, without having first paid such license fee and obtained such license shall, in the case of each sale of goods or solicitation of an order therefor, be liable to a penalty of ."?200. As to the former Act, th« question may arise whether taxation which renders both the owner, occupier, and tenant of lai'd liable for a tax, the amount of which is arrived at, having regard to the extent and value of the land so owned, occupied, or held under lease is not indirect and, therefore, ultra vires of a provincial legislature. As to the latter statute, the question is also open whether the method of taxation thereby authorized is not indirect, and if so, whether the legislation could be upheld by reason of the power conferred upon provincial legislatures, to make laws in relation to " shop, oaloon, tavern, and auctioneer and other licenses, in order to the raising of a revenue for provincial, local, or municipal purposes." There may also be room for con- sideration with regai-d to the validity of this statute, in view of the exclusive authority of parliament in matters of trade and commerce. These questions do not, however. it i M 1230 PRINCE EDWAKD IStAND LEGISLATION bat are rather .uch quest.ons as, '''""S JX« „Mance of any person »ho l»ay be inter- tt;?l''^r:trTre!=?e{^^^^^^^ rnrtf:.t;Lf itnI„rrrro^r;:viSo, tbe in.oLa.„n o, H. ,0.. eminent. , .xi. j Respectfully submitted. CHARLES HIBBERT TUPPER Minister ofJiisnce. ■fl 58 VICTORIA, 1895. 1231 PRINCE EDWARD ISLAND-58th VICTORIA, 1895. 2nu Session, 38th General Assembly. Petition of Mr. Wm. Sidney Smith to His E.rci'llenc.y the Governor General, re chapter 7. To His Excellency the Earl of Aberdeen, Governor General of Canada. May it pleask Your Excellency : The humble petition of William Sidney Smith, of Charlottetown, in Queen's County; in the province of Prince Edward Island in the Dominion of Canada, the husband of Anne Smith, formerly Anne Winsloe, hereinafter mentioned. Most respecifully showeth : — That the said Anne Winsloe being seized in fee of upwards of four thousand acres of land, in townships numbers twenty-four and thirty-three in Prince Edward Island, and in contemplation of a certain marriage between your petitioner and the said Anne Winsloe, by an indenture bearing date the twenty-second day of November, A.D. 1864, made between the said Anne Winsloe of the one part, your petitioner the said William Smith of the second part, and Edward Jarvis Hodgson and Joseph Hensley of the third part, the said land was settled and conveyed to the said Edward Jarvis Horlgson and Joseph Hensley as trustees, upon certain trusts therein mentioned, in favour of the said Anne Winsloe and issue of the said intended maniage. That the said intended marriage was shortly afterwards solemnized and the rents, issues and profits of the said lands have ever since been received and paid, according to the trusts of the said marriage settlement. That previous to, and before the passing of "The Land Purchase Act," 1875, Robert Robinson Hodgson of Charlottetown was, in pursunce of a power contained in the said marriage settlement, appointed a trustee in the place of the said Joseph Hensley. That the Commissioner of Public Lands did not avail himself of the provisions and powers given him by the '' Land Purchase Act, 1875," so far as regarded the lands com- prised is the said marriage settlement. That the legislature, of this province in the year 1876, after all the lar-e estates of proprietors had been adjudicated upon under the provisions of " The Land Purchase Act, 1875," in order, amongst other things, to enable the Commissioner of Public Lands to compulsorily purchase the said lands comprised in the said marriage settlement, passed an Act to amend " The Land Purchase Act, 1875," which Act was di.sallowed by his Excellency the Governor General. Ihat the legislature of the province of Prince Edward Island at its late session passed an Act called "The Land Purchase Act, 1895," which is simply an Act to com- pulsorily take the said lands under the provisions of the Act of 1875, and only differs in effect fiom the Act of 1876, which was disallowed by his Excellency the Governor General, in this respect, that while the Act of 1876 was comprehensive enough to in- clude all proprietory lands, the Act of 1895 is confined to the lands comprised in the said marriage settlement. That the said Act of 1895 differs also in the mode of appointing the third arbitra- tor. Under the Act of 1875 the third arbitrator was appointed by his Excellency the Governor General of Canada, but under the Act of 1895, the third arbitrator is ap- pointed by the Chief Justice of Prince Edward Island. That the said Anne Smith ie now in England attending to personal business requir- ing her personal presence, and on her behalf, and as one interested in said estate, your petitioner most respectfully asks your Excellency to refuse the royai assent to the said Act. 1232 PBINCE EDWARD ISLAND LEGISLATION That the rents received from the lands which are now sought to be compulsory taken, amount to the sum of one thousand dollars per annum, and comprise the only source of income of the said Anne Smith, and form the only means of livelihood of your petitioner and the said Anne Smith, and her family. Your petitioner most respectfully submits that the said Act of 1895, is subversive of the rights of property, and was passed at the in' ^ance of the tenants of the said lands who are of a very limited number, not exceedi.ig in the whole 75, and is for the express purpose of interfering with, and annulling contracts entered into between those very tenants, or those through whom they claim, and the said trustees or their pre- decessors in title, and compelling the said trustees to give up the lands of the said Anne Smith. Your petitioner respectfully prays that your Excellency may be pleased to disallow the said Act. W. SIDNEY SMITH. Honourable Attornfy General Peters to the Deputy Minister of Ji'.stice. CiiARLOTTETOwN, Phince Edward Islawd, 10th June, 1M95. Sir, — Referring to your communication of the 28th ultimo, inclosing me a petition from William Sydney Smith against the Act passed at the last session of our legislature, regarding the purchase by the government of Prince Edward Island of certain lands, intituled : "The Land Purchase Act, 1895 ;" in my reply to you dated the 1st instant, I stated that I desired to make som« remarks with regard to it. The petiti ^n against this Act is from William Sydney Smith, the husband of the person beneficially interested in the land in question, and this petition is filed by William S. Stewart, Q.C., his attorney. A similar petition was tiled with the Lieutenant-Governor, asking him not to assent to the bill, but to reserve the .same for the consideration of his Excellency the Governor General. I would remark, in the first place, that the fact that Mr. Smith files the petition at all is very surprising to me, for the reason that the bill was brought into the legislature and passed through the house with his consent. He himself personally supplied me with the necessary information with regard to the particulars f the land, the subject of the bill, giving me the plans and all other documents which he had ; and as the bill is in every respect the same as was originally intended, and as he was fully aware of its contents, it is difficult to understand why he should now attempt to have the Act disallowed. If you will refer to the preamble of the statute, you will there see set forth the rea.son for the passage of the bill. I am well aware that a statute making it compulsory for any person to sell his property, should not be passed unless there is a good reason for it. In 1875, our legislature with the consent of the Governor General, concluded that a good and sufficient reason did exist in Prince Edward Island for compelling all land- lords, who held estates of over a certain size, to sell such estates to the government at a rate to be settled by the court appointed by the statute. The general principle was then laid down that such compulsory sales should be made in all such cases. Now, whilst it would be wrong to attempt to extend the provisions of that Act to estates which did not originally come within the terms of that Act, I contend that it is right that the principle of the Act should be extended to every estate which it was originally intended to include. In this particular case, the Smith estate was such an estate as came within both the letter and the spirit of the Act of 1875 ; and it only escaped the operation of that Act by a mere technicality, namely the fact that in serving the notice which is required under the Act, it wa« served upon a person who at one time had been trustee of the estate but had resigned his position, the change of trustees being unknown to the government solicitor. The object of this Act is therefore not to include any 58 VICTORIA, 1895. 1233 compulsory se the only uod of your subversive e said lands is for the tween those r their pre- e said Anne to disallow ITH. \ttce, e, 1895. 06 a petition r legislature, certain lands, 1st instant, I sband of the n is tiled by ed with the the same for he petition at he legislature supplied me d, the subject ud as the bill y aware of its lave the Act set forth the it compulsory a good reason iral, concluded elling all land- vernment at a principle was cases. Now, Act to estates hat it is right was originally h an estate as ily escaped the ving the notice time had been aeing unknown M) include any estate that was not originally within the scope of the Act of 1875, butineiely to remove technical objection in order that the act may apply. There is an analogy between this bill and the Act of 1876, which was not allowed by the Governor General in Council. That bill contained many , clauses, and many f ro- vision-i relating to matters then actually in litigation, which made the bill objectionable. The objection taken that the bill does not provide for exactly the same mode of appointing the arbitrator as the old Act, I submit ought not to have any weight. Under the old Act, the Governor General was authorized to appoint the third arbitrator. At that time the question of landlord and tenant in this province was one of very great public interest, and the people were so excited over the matter that it was con- sidered advisable to ask the Governor General in Council to depart from their ordinary course, and to act in a merely provincial matter, the reason being that a commissioner chosen by the Governor General in Council would naturally be a person removed from all feeling, upon the matter which was then in dispute in the province. And I think there was then a very general understanding that the Governor General, in asking that appointment, should choose some person from England, which, as a matter of fact, he did. The excitement upon this matter, I need hardly say has long ago died out. The reason for asking the Governor General to interfere has ceased to exist, and we therefore deem it quite sufficient to ensure the appointment in the hands of the Chief Justice of the province. I think that as the matter has now dwindled down to a comparatively small one, the substitution of the Chief Justice for the Governor General does not really aflfect the question. The petitioner also says that this estate provides nearly her whole income. I cannot see what effect this has, because as a matter of fact, we propose to give her a sum of money, which will be sufficient to give her the same income, — it may be more. I may further state that the government in this case have already appointed a commissioner to value the estate in question, that the Chief Justice has also appointed his, and that the trustees of the estate have also appointed their commissioner, and all parties seem perfectly willing that the commissioner should go on. I was to-day informed by one of the trustees that they intended to throw no obstacle in the way of the carrying out of the bill. This is the last estate en the island that can come under the operation of the Act of 1875, and the purchase of this estate practically closes the land question in this island for ever. I sincerely hope that no action will be taken, which will prevent this from being done. The trustees of the estate do not wish to object. Mr. Smith, as I stated before, actually assisted in having the bill drawn, and his opposition to it now is merely an afterthought. The petitioners will be placed in as good if not a better position by the compensation, than by the ownership of the land. I have, «fec., FRED. PETERS, Attorney General. Heportqfthe Honouraole the Minister of Justice, ajyproved hy His Excellency the Governor General in Cov^ncil on the 5th November, 1895. Department op Justice, Ottawa, 23rd October, 1895. To His Excellency the Governor General in Council : The undersigned has the honour to report that he has examined the Acts passed by the legislature of the province of Prince iklward Island in the fifty-eighth year of Her Majesty's reign, (1895) chapters 1 to 6, 9 to 18, received by the Secretary of State for Canada on the 24th day of May, 1895, and he is of opinion that they are unobjectionable, and It ay be left to their operation. The remaining Acts, chapters 7 and 8, are the subject of a separate report. 'f! 1234 PRINCE EDWARD ISLAND LEOI8LATI0N The undersigned also recommends that if this report l)e approved, a copy of the same, with a copy of the schedule of the titles of the Acts, lie sent to the Lieutenant- Governor of the province for the information of his Government. Respectfully submitted. CHARLES HIRBERT TUPPER, Milliliter of Juxi ice. Report of the Honourable the Minister of Justice, approved by His Excellency the Gorernor General in Council, on tlie 5th Notiemher, 1895. Department of Justice, Ottawa, 23rd October, 1895. To His Excellency the Governor General in Council : The undersigned has the honour to submit his report upon the following statv-tes of the legislature of the province of Prince Edward Island, 58 Vic, (1895), which were assented to on the 19th day of April, 1895, and received by the Secretary of State for Canada, on the 24th day of May, 1895. Chap. 7. "The Land Purchase Act, 1895." There has been referred to the undersigned, a petition of William Sidney Smith of Charlottetown, praying that this act should be disallowed. A copy of the petition, together with the observations of the Attorney General of the province thereupon, are hereunto annexed, and made a part cf this report. The undersigned observes that the object of the statute is to enable the com- missioner of public lands to acquire the township lands described in the marriage settlement of Anne Winsloe and William Sidney Smith, in pursuance of the provisions of "The Land Purchase Act, 1875," subject, however, to certain extensions of time and modification of the procedure contemplated by that Act. The statute is one which it was perfectly competent for the provincial legislature to pass, and it appears to the undersigned that the grounds of complaint stated in the petition have been fairly answered by the Attorney General. The means provided for ascertaining the compensation to be paid to the trustee of the marriage settlement, appear to be such as to ensure a fair consideration of the claims of the estate. Thb Act of 1876, passed by the provincial legislature in amendment of " The Land Purchase Act, 1875," which is referred to in the petition and which was reserved for the Governor General's assent, and from which such assent was withheld, was an act of a very diflFerent chara ter from that in question. The acting Minister of Justice in reporting upon the Act of 1876, stated that " Without giving weight or consideration to any great extent to the allegations in the petitions, 'fhich are unsupported by any actual proof, he is of opinion that the reserved bill is retrospective in its effects ; that it deals with rights of parties now in litigation under the Act which it is supposed to amend, or which may yet fairly form the subject of litigation ; and that there is an absence of any provision saving the rights and pro- ceedings of persons whose properties have been dealt with under the Act of 1875. " He therefore recommended that the bill should not receive the assent of the Governor General in Council." None of the objections thus stated would apply to the present Act. The undersigned is of opinion, therefore, that the Act might properly be left to its operation. Chap. 8. " An Act respecting the Commissioner of Public Lands." The undersigned has received a letter from Mr. Richard Hunt, of Summerside, Prince Edward Island, stating that section 7 of this Act seriously affects the titles of many farms in the province ;— that hundreds of farmers claim to have held their farms for twenty-one years or more, who never attorned to either the landlord or the Govern- ment, who purchased from him under the Land Purchase Act ; that these people in some instances had borrowed money on mortgages upon their holdings, and are willing to ■^ 58 VICTORIA, 1895. 1235 opy of the pieutenant- ER, UHtice. le Governor 1895. ing statutes which were 3f State for iney Smith the petition, sreupon, are 18 the com- he marriage le provisions of time and ,1 legislature stated in the I the trustee ration of the ' "The Land reserved for I, was an act of Justice in allegations in t the reserved 7 in litigation m the subject jhts and pro- )f 1875. assent of the y be left to its : Summerside, 3cts the titles 5ld their farms >r the Govern- people in soTie are willing to submit the justice of their claim to the ordinary courts of law, but protest against exparte legislation which prejudices their case, and The preamble of the Act is as follows : — " Whereas, nearly all the township lands formerly held by proprietors in this province, have from time to time been purchased by the government of Prince Edwai'd Island, and are now vested in the commissioner of public lands, subject to the pro- visions of the various Acts from time to time passed respecting the siiino ; and whereas such township lands were acquired by the govi-nment of Prince Edward Island for the purpose of changing the leasehold tenures through this island into freehold estates, and also for the purpose of benefiting equally all th i tenants through the province; and it is just and equitable that so far as possible all the tenants so benefited should pay fairly towards reimbursing the government for the sum of money expended for the said pur- poses ; and whereas at the time said lands were purchased, certain parts thereof were in the occupation of tenants, squatters, or other occupiers who had not at the time the government so purchased the lands, obtained by possession or otherwise a freehold estate in the lands so held by them, and such persons, although as a matter of fact, benefited by the purchase of the freehold so made by the government as aforesaid, have not up to the present time repaid to the commissioner of public lands any part of the money expended for the purchase of their lands ; and whereas when the said township lands were so acquired from time to time by the government as aforesaid, a considerable portion of the lands so acquired were vacant, and parts of such vacant lands have since been taken up and occupied by persons who have not attorned or paid to the commissioner of public lands, any sum of money for the purchase thereof ; and whei«as there is a considerable portion of the lands so purchased by the commissioner of public lands as aforesaid, that are supposed to be vacant, but which may be claimed by persons whose names are unknown to the commissioner of public lands, and a doubt existing as to whether the land is vacant or not, renders it impossible for the com- missioner of public lands to deal with intending purchasers of such lands ; and whereas the present procedure for compelling the payment of a fair amount of purchase money for lands so situated as above recited is cumbersome and costly, and it is advisable to pass legislation to facilitate and cheapen the collection of such purchase money and the obtaining of titles by purchasers from the said government ; It is then enacted that the purchase money calculated by the commissioner shall constitute a first lien and charge upon the lands purchased ; and that the lien may be enforced by bill in chancery at the suit of the commissioner of public lands. Section 7 which is objected to, is as follows : — " It is declared that the amount due the commissioner of public lands for the purchase of any land held by him as aforesaid, may be recovered, notwithstanding that proceedings have not been taken for the recovery of the sum for twenty years after the right to recover the sum accrued ; and further, that the statute regarding the limi- tation of actions shall not be considered as ever having applied to such claims. -But nothing herein contained shall in any way affect the titles obtained by possession before the lands in question became vested in the commissioner of public lands." It does not appear to the undersi'.'ned that this section is more than declaratory of the law as it previously stood, At most it merely affects the operation of the statute of limitations with regard to the recovery of the purchase money of lands which have been vested in the commissioner of public lands, and it is declared that the titles obtained by possession before the lands in question becaiue vested in the commissioner shall not be affected by the statute. The subject being one as to which legislative authority has been committed to the provincial legislature, and as it does not appear that the enactment in itself is unjust, the undersigned considers that the statute should be left to its operation. The undersigned, therefore, recommends the power of disallowance vested in your Excellency should not be exercised with regard to the two statutes herein referred to. Respectfully submitted. CHARLES HIBBERT TUPPER, Minister of Justice. 1236 N0RTH-WK8T TEHRIT0RIE8 LEGISLATION NORTH-WEST TERRITORIES LEGISLATION. Memorandum rvith regard to the Legislation of the North-icml Territories. None of the Ordinances of the North-west Territories passed prior to 1878 are in force Those of 1877 were pronounced xdtra vires by the then Minister of Justice, and were never printed. At the suggestion of the minister they were repee^ed and re-enacted "'^"tfrSafcS-in fort'were those of 1878 (excepting No. 9 repealed by No. 7 of 1881), 1879 and 1881. NORTH-WEST TERRITORIES, 1881. Report of the Honourable the Minister of Justice, approved hy His Excellency the Governor Genercd in Council on the 27th June, 1882. Department op Justice, Ottawa, 13th June, 1882. To His Excellency the Governor General in Council : The undersigned has the honour to report that he has examined the thirteen Qrdi- nances passed by the council of the North-west Territories, m the year 1881. a^d finds them free from objection. He, therefore, recommends that the Ordinances Nos. 1 to 1 J, be left to their operation. A. CAMPBELL, Minister of Justice. the NORTH-WEST TERRITORIES, 1883. Report of the Hon. the Minister of Justice, approved by His Excellency the Governor General in Council on tfie 3()th November, 18S3 Department op Justice, Ottawa, 28th November, 1883. To His Excelleticy the Governor General in Council : The undersigned having had under consideration the Ordinances passed l)y the Lieutenant-Governor of the North-west Territories in Council, at a legislative session, formally opened on the 22nd da)' of August, and closed on the 4th day of October last, begs leave to report : By the 9th section of the North-west Territories Act, 1880 (43rd Victoria, chap. 25), it is provided that — " The Lieutenant-Governor in Council, or the Lieutenant-Governor, by and with, the advice and consent of the legislative assembly, as the case may be, shall have such powers to make Ordinances for the government of the North-west Territories, as the Governor in Council may, from time to time, confer upon him ; provided always that such powers shall not at any time be in excess of those conferred by the ninety-second and ninety-third sections of 'The British North America Act, 1867,' upon the legisla- tures of the several provinces of the Dominion. " 2. Provided also, that no Ordinance to be so made shall (a) Ije inconsistent with or alter or repeal any provisions of any Act of the parliament of Canada in the schedule to this Act, or of any Act of the parliament of Canada, which may now, or at any time hereafter, expressly refer to the said Territories, or which, or any part of which may be at any time made by the Governor in Council, applicable to, or declared to be in force in the said Territories, or (6) impose any fine or penalty exceeding one hundred dollars." On the 26th day of June, 1883, the Governor in Council conferred upon the Lieu- tenant-Governor of the North-west Territories in Council, or with the advice of the legislative assembly (as the case may be) power to make Ordinances for the government of the North-west Territories in respect of the subjects following, viz. : — 1. The establishment and tenure of territorial offices, and the appointment and payment of territorial officers. 2. The establishment, maintenance, and management of prisons in and for the North- west Territories. 3. Municipal institutions in the Territories, subject to any legislation by the par- liament of Canada heretofore or hereafter enacted. 4. The issue of shop, auctioneer and other licenses, except licenses for the sale of intoxicating liquors, in order to the raising of a revenue for territorial or municipal pur- poses. 5. The solemnization of marriage in the Territories. 6. The administration of justice including the constitution, organization and main- tenance of territorial courts of civil jurisdiction. 7. The imposition of punishment by fine, penalty or imprisonment for enforcing any territorial Ordinances. 8. Property and civil rights in the Territories, subject to any legislation by the parliament of Canada on these subjects. 9. Generally all matters of a merely local or private nature in the Territories. By the 11th Section of the North-west Territories Act, 1880, it is provided as follows, viz. : — " An authentic copy of every such Ordinance shall be mailed for transmission to the Secretary of State, within thirty days after its passing, and if the Governor in Coun- 78 1238 NOKTIf-WEHT TEKRITOKIKH LE018LATI0N cil at any time within one year after its receipt by the Secretary of State thinks fit to disallow the Ordinance, such disaUowance being signified by the Secretary of Stat*- to the Lioutenant-Ciovornor, shall annul the ordinance, from and after the date of such signitication, and the Ordinances so made and all Orders in Council disallowing anv Or- dinances so made, shall lie laid ))efore both houses of parliament as soon as conveniently may \ie after the making and enactment thereof respectively. No. 1. " An Ordinance respecting Infectious and Contagious Diseases of Domestic Animals," makes it unlawful for owners of cattle affected with any contagious discjise to allow them to run at large, and provides for the herding of cattle so affected, and for the killing of cattle so affected, and the burning of their bodies after iny n^ligiouH hodios or voluntary .sul>- .scription, roc The vi words are repeated in the 24th paragraph of the 177Mi section of 1884, bat the Lieutenp.nt-Governor, in a despatch dated 29th day of October, 1884, states t'lat he will call the attention of his council to the suggestion." 3. By Ordinance No. 7 of 1 884. in\ itv.ied : " An Ordinance respecting Controverted Elections," provision is made for u,ny voter contesting the election of a member to the North-west council. Fy the 3rd section it is provided that on receipt of the voter's petition and the sum of tan dollars, the Lieutep«nt-Governor shall cause the same, and a copy o'" all the books, papers and documents i elating to the election complained of, certified hj tii,^ cle'-k of the council, to be transmitted by registered letter to the clerk of the '' trict cour>, whose oi^ce is nearest the residence of the returning officer at such eL.uion ; and bj the 4th secMou it is provided that the Lieutenant-Governor shall not take the proceedings required of him by the next preceding section, after the expiration of two months from the re-jeipt of the retuiu of the returning officer, by the clerk of the council. If by the latter provision it is intended, that in case of an accidental 1242 NOR'^H-WEST TERRITORIES LEGISLATION- delay of two months in the transmission of the papers by the Lieutenant-Governor, the petitioner is to be deprived of his rights to contest the election, the fairness of the provision is more than doubtful, but if it is intended to provide that, unless the petitioner commences his proceedings within two months after the receipt of the returning officer, by the clerk of the council, the Lieutenant-Governor is not to act on the petition, — the section should be so amended as to make it clear that such is its meaning. 4. Ordinance No. 18, intituled: "An Ordinance to amend Ordinance No. 10, of 1879, intituled: ' An Ordinance respecting the Ordinances of the Northwest Terri- tories,'" contains a clerical error, the word "three" in the Ist line of section 1 being incorrectly used for the word " four." 5. By Ordinance No. 22, intituled : " An Ordinance to authorize corporations, and institutions incorporated outside the North-west Territories, to transact business therein," it is provided that any such institution, society or corporation, duly incor- porated by law, and authorized by its statute, charter, or other instrument of incorpora- tion or articles of association to lend money, or follow the business of insurance of any description in the territories (except tlie business of banking) may, on certain conditions, and paying an annual license fee of $25, receive from the Lieutenant-Governor a license authorizing it to carry on business in the territories. The terms of this provision are general enough to exclude companies incorporated by, or licensed under the authority of the parliament of Canada, and in that case, at least, the undersigned is inclined to the opinion that the company would have the right to transact its business, without. the license of the Lieutenant-Governor, but subject always to the municipal and other laws in force in the territories. 6. By Ordinance No, 31, intituled : " An Ordinance respecting preferential assign- ments," it is provided that certain conveyances given by persons in insolvent circum- stances, shall be void against creditors. It is alv^ays difficult to decide whether a provision such as this relates to insolvency or to property and civil rights. No doubt such a provision in a Bankruptcy Act would bi considered within the authority of the parliament of Canada, but whether in the aosence of an Act of the parliament of Canada respecting 'bankruptcy or insolvency, the provision may be considered one within the legislative authority of a legislature, is a question not by any means free from doubt. If a provincial legislature could not enact such a provision, it is clear that the Lieutenant-Governor of the North-west Territories in council could not. The question is one, however, which, in the opinion of the undersigned, is best left for judicial decision. If the report is approved the undersigned recommends : — 1. That the power of disallowance be not exercised in respect of the Ordinances Nos. 1 to 3, 5, 6, 8 to 17, 19 to 21, 23 to 27, 29, 30, 32 to 36, and that the Lieutenant- Governor oif the Territories be so informed. 2. That Ordinances numbered 4, 7, 18, 22 and 31, hereinbefore referred to, be left to their operation, but that the substance of the observations made respecting them be communicated to the Lieutenant-Governor. 3. That Ordinance number 28, intituled : " An Ordinance exempting certain pro- perty from seizure and sale under execution," Ije disallowed. All of which is respectfully submitted. y A. CAMPBELL, Minister of Justice. Report of the Hon. the Minister of Justice, approved hy His Excellency the Governor General in Council^ on the Ipth August, 18S5. Department of Justice, Ottawa, 14th August, 1885. To His Excellency the Governor' General in Council : The undersigned has the honour to report upon the Ordinance passed by the Lieu- tenant-Governor in Council of the North-west Territories, in the session held in the year 1884, numbered 28, and intituled : "An Ordinance exempting certain property from "•I 1884. 1243 seizure and sale under execution," that Ordinance No. 8 of 1879, which contained the previous law on the subject, is repealed, and other provisions made. The fourth section of the Ordinance is as follows : " No judgment or action for debts, contracted outside of the North-west Terri- tories, shall be enforced against any settler coming into the said North-west Territories within six years of the date of his arrival; provided always that nothing herein shall l)revent the collection of debts contracted outside the North-west Territories, for goods purchased, to be brougiit into the said territories, and provided further that nothing lierein contained shall affect the rights of mortgages, and shall not apply to debts or contracts acknowledged in the said North-west Territories, provided nevertheless tliat the Ordinance respecting limitation of actions shall not run during the said six yeai's." In the opinion of the undersigned this provision is open to such serious objection, us aa interference with the rights of creditors, that the Ordinance should be disal- lowed. The undersigned, therefore, recommends that the said Ordinance, Intituled : " An Ordinance exempting certain property from Seizure and Sale under execution," be dis- allowed. All of which is respectfully submitted. A. CAMPBELL, Minister of Justice. Order in Council disallowiny tlie Act above mentiotied, published in the Canada Gazette, on the 22nd day of August, 1885. Vol. XIX., No. 8, page 291. !l 1244 NORTH-WEST TERRITORIES LEGISLATION NORTH-WEST TERRITORIES, 1885. Report oj the Hon. tiie Minister oj Justice, approved by His Excellency the Governor General in Council on the 7th May, 1886. Department of Justice, Ottawa, 28th April, 1886. To His E.i'cellency the Governor General in Council : The undersigned begs leave to report upon the Ordinances passed by the Lieutenant- Governor of the North-west Territories in Council, at a session begun and holden at Regina on the fifth day of November, and closed on the eighteenth day of December, 1 885. Having carefully considered the Ordinances Nos. 1, 2, 4 to 14, 17 to 22, the under- signed recommends that they be left to their operation. The ISlst section of Ordinance No. 3, intituled "An Ordinance to amend, and consolidate as amended, the School Ordinance of If* j4," is as follows : — "151st. Any trustee who h 11 — " 1. Knowingly falsify, oi ^^ allow to be falsified, assessment rolls, voters' lists, school returns, school regi,-.t' *. minutes of meetings, or any of the records of the district, or who shall fail to del; . ^p such records when called upon by the chair- man or duly appointed auditor : " 2. Misappropriate, or cause to be misappropriated, any oi the funds, or real or personal property of the district ; " 3. Enter into, or have any interest in, any contract with the district, for which money is to be paid or work done ; shall therefore be disqualified for fulfilling the terra of office for which he was elected and shall be liable to a fine not exceeding fifty dollars." The second paragraph of the above section appears to trench upon the Criminal Law. See 32-33 Victoria, chapter 21, sections 3 and 72. The undersigned, however, recom'^.iends that this Ordinance be left to its operation, but that the attention of the Lieutenant-Governor be called to this section. Ordinance 15 is an Ordinance to amend, and consolidate as amended. Ordinance No. 1 of 1883, intituled : " An Ordinance respecting infectious and contagious diseases of domestic animals," and Ordinance No. 15 of 1884, intituled : " An Ordinance to amend Ordinance No. 1 of 1883 respecting infectious diseases of domestic animals."' The subject of infectious and contagious disease of domestic animals is one that has been from time to time legislated upon both by the parliament of Canada and by the legislatures of the provinces. Probably it has been considered that such legislation is authorized by the 95th section of the BriCish North America Act, 1867, by which it is provided that in each province the legislature may make laws in relation to agricul- ture in the province, and that Parliament may make laws in relation to agriculture in all or any of the provinces, the law of the legislature on that subject having effect, as far as it is not repugnant to the act of the parliament of Canada. The undersigned recommends that thi? Ordinance be referred to the Minister of Agriculture, and if it be not found to be in conflict with any Act of the parliament of Canada on the same subject, that it be left to its operation. Ordinance No. 16 purports to be " An Ordinance to amend Ordinance No. 24 of 1884, intituled : 'An Oi-dinance to amend and consolidate as amended the several Ordi- nances respecting Fences.' " It is evident that Ordinance No. 29 of 1884 is intended, and that No. 24 is a cleri- cal error. The undersigned recommends that the Ordinance be left to its operation, and that the attention of the Lieutenant-Governor be called to this clerical error with a view to its amendment. JNO. 8. D. THOMPSON, Minister of Justice. 1885. 1245 overnor 86. jtenant- »ldeu at er,1885. le undei- end, and !, voters' •ecords of bhe chair- or real or for which r the term y dollars." 3 Criminal operation, nance No. ieases of to amend one that ida and by egislation jy which it to agricul- culture in ig eftect, as Minister of fliament of No. 24 of Bveral Ordi- 24 is a cleri- )n, and that th a view to Justice. Hon. the Minister of Jiostice to His Honour the Lientenant-Governor. Department of Justice, Ottawa, 3rd November, 188G. {Telegram.) On looking again at Ordinance No. 8, of 1885, I think I should advise government to disallow it, unless paragraphs 9 and 10 of section 1 are repealed, as ample provision appears to have been made by 41 Victoria, chapter 15. Please answer. JNO. S. D. THOMPSON, Minister of Justice. His Honour the Lieutenant-Governor to the Hon. the Minister of Justice. 10th November, 1886. {l^elegram.) Council considers Homestead Act of 1878 imperative in Territories at present, there being no registry of title to lands and no certificate of title. Am writing fully and .^ending resolution passed by my executive on the subject. E. DEWDNEY, Lieutenant-Governor. His Honour the Lieutenant-Governor to the Hon, the Minister of Justicp. Government House, Regina, N.-W. T., 11th November, 1886. Sir, — Confirming my telegram of yestei-day's date, I have now the honour to transmit you herewith copy of a report made by a sub-committee of the North-west council, composed of the stipendiary magistrates who were appointed to consider and report upon your telegram of the 4th instant, regarding Ordinance No. 8, of 1885. I also inclose copy of a resolution passed on the 10th instant at an executive meeting of my council with reference to the same subject. I have, ifec. E. DEWDNEY, Lieutenant-Governor. Copy of Report of Sub-Committee of North-tvest Council. Council Chamber, Regina, N.-W. T., 10th November, 1886. The sub-committee appointed yesterday at an executive sitting of the North-west council, to consider and report upon a telegram, dated 4tli November, 1886, received from the Hon. the Minister of Justice, with reference to Ordinance No. 8, of 1885, begs leave to report : — That in their opinion the Dominion Act, 41 Victoria, chapter 14 hfs been hitherto, and now is, and will be in operation in the Territories until the 5th January, 1887, for the following reasons : 1. Section 1 of said Act requires the registration of homesteads in the " office for the registry of titles to lands," and your committee submits that no such office is in existence, or provided for, until the Act 49 Victoria chapter 26, comes into force on the 1st January next. 1246 NORTH-WEST TERRITORIES LBOISLATION 2. When registration is effected, as provided by the 8th section of the said Act, the registrar has to enter a memorial in the register book, and to endorse upon the certificate of title " Registered as a Homestead," and your committee submits that at present no provision exists for certificates of titles or memorials, and that for several months after the Act 49 Vict^oria, chapter 26, comes into force, it will be impossible for parties generally throuj^hout the North-west Territories to take advantage of its provisions. It may be added that very few copies of the Dominion Acts for the year 1878 are to be found in the Territories, and their provisions are consequently but little known by the general public. H. RICHARDSON, Cha- -"■• *. Copy of Resolution passed by the Council oj the Xorth-west Territories in Executive, on the 11th November, 1886. Resolved, That this council in executive in addition to the report of the CivilJustice Committee, with respect to the legal effect of the Act 41 Victoria, chapter 15, desires to urge upon the attention of the government the following serious considerations. 1. That in the past few years our settlers, animated with the hopes of good crops, and the desire to improve their lands, were induced to buy large quantitie > c>f agricultural implements on credit. 2. That owing to the bad crops of this year and former years, these hopes have been disappointed, and large numbers of judgments have been obtained against settlers for these claims and others, amounting to upwards of 600, and unless the settlers are protected by clauses similar to the ones objected to, great hardship will be entailed on them, and many, we are afraid, will be compelled to leave the country, or else be placed in such a position, as to be unable to take advantage of good seasons, which we and they still hope are in store for us. Deputy Minister of Justice, to Secretary, Lieutenant Governor of North-icest I'erritories. Department of Justice, Ottawa, 14th March, 1887. Re North-west Ordinance No. 8,1885, intituled: "An Ordinance exempting certain property from seizure and sale under execuulon." Sir, — With reference to previous correspondence on this subject, I have now the honour, by direction, to state for the information of the Lieutenant-Governor in Council, that the minister is of opinion that this Ordinance should be repealed at the next session of the council of the North-west Territories. I am to draw your attention to the fact that the objection taken to this repeal by the Civil J ustice Committee, that the homestead exemption could not be effectually applied until the 1st January, 1887, has now no force. The further objection that the homestead exemption is not widely known could be remedied fully by such publication as the council of the North-west Territories might see fit to make, or by having its provisions recited in the repealing Ordinance, or by one of these methods. I am to add that so much importance is attached to this matter by the Minister that, unless the repeal is made by the council of the North-west Te' r'tories, he will probably be obliged to introduce a bill on the subject into the Dominion parliament. The necessity for action in the matter by parliament is to be deprecated, as it will give so great prominence to the exceptional exemptions, which have been sought for by the people of the North-west Territories. I have, tfec, GEO. W. BURBIDGE, Deputy Minister of Justice, 3t, the ificate ent no 3 after parties tl8. 178 are )wn by hve, on Justice ssires to id crops, [cultural pes have settlers itlers are jailed on placed in and they '^rritortes. [887. ig certain e now the n Council, t the next i repeal by effectually n could be ries might 1, or by one le Minister ies, he will parliament, it will give t for by the Justice. NORTH-WEST TERRITORIES, 1886. Beport of the Honourable the Minister of Justice, approved bij His Excellency the Goverrwr General in Council on the 20th September, 1887. Department of Justice, Ottawa, 12th September, 1887. To His Excellency the Governor General in Council : The undersigned has the honour to submit his report upon the Ordinances passed by the Lieutenant-Governor in Council of the North-west Territories in the session held in October and November, 1886. By Ordinance No. 2, intituled : " An Ordinance respecting the Administration of Civil Justice," certain fees are allowed to the judges on every grant of probate of letters of ai, linistration and also on the appointment of guardians. ihe principle of allowing fees to judges, the undersigned thinks is bad, and one which should not be given efifect to in the Territories upon the establishment of the ^lupreme Court there. In passing the salaries of the judges of the Territories, parliament has granted the same salary as the judges receive in the province of Manitoba and in the provinces of Nova Scotia and New Brunswick. There would, however, the undersigned thinks, be no objection to the collection of such a fee as this, the same to form part of the general revenue of the Territories. The undersigned recommends that the attention of the Lieutenant-Governor be called to this matter, with a view to the amendment of this Ordinance. By Ordinance No. 3, intituled : " An Ordinance respecting the incorporation of Joint Stock Companies by Letters Patent," provision is made for incorporation by the Lieute- nant-Governor by letters patent under the seal of the North-west Territories, of compa- nies, for any of the purposes or objects, to which the legislative authority of the council or the legislative assembly, as the case may be, of the North-west Territories, extend. By the Order in Council of the 7th July, 1887, the Lieutenant-Governor, by and with the advice and consent of the legislative assembly of the North- west Territories, as the case may be, is given power to incorporate companies with territorial objects with the following exceptions : — (a.) Such companies as cannot be incorporated by a provincial legislature. (6.) Railway, tramway, steamboat, canal transportation, telegraph and telephone companies. (c.) Insurance companies. No. 9 is intituled : " An Ordinance to incorporate companies for the establishment of Cemeteries." Section 29 of this Ordinance touches upon the criminal law. The undersigned recommends that the attention of the Lieutenant-Governor be called to it with a view to repealing subsections 1, 2 and 5 of section 29. The undersigned recommends that, for the present action be deferred in respect of Ordinance No. 2 and Ordinance No. 9, and that the other Ordinances Nos. 3 to 8, and 10 to 21 be left to their operation, and also that the substance of this report be com- municated to the Lieutenant-Governor of the North-west Territories. All of which is respectfully submitted. JNO. S. D. THOMPSON, Minister of Justice. 1248 NORTH-WEST TERRITORIES LEGISLATION NORTH WEST TERUITORIES, 1887. Jiejwrt of the Hon. the Minister of Justice, approved by His E.vcellency the Governor General in Council on the 2nd October, 188S. Department of Justice, Ottawa, 18th September, 1888. 2'o His Excellency the Governor General in Council. : The undersigned having carefully considered the Ordinances passed by the Lieuten- ant-Governor of the North-west Territories in Council, in October and November, 1887, and numbered 1, 3 to 8, 10 to 25, has the honour to recommend that they be left to their operation. Respectfully submitted. JNO. S. D. THOMPSON, Minister oj Justice. Report oJ the Hon. the Minister of Justice, ajjproved by His Excellency the Governor General in Council, on the 2nd October, 18SS. Department of Justice, Ottawa, 18th September, 1888. To His Excellency the Governor General in Council : The undersigned has the honour to report upon the following Ordinances, passed by the Lieutenant-Governor in Council of the North-west Territories, in the session held in October, 1887, namely, Nos. 2 and 9. No. 2. " All Ordinance respecting schools." Section 6.5 t this Ordinance provides : — " If any trustee or other official of a school knowingly signs a false report, or if any teacher keeps a false register, or makes a false return, with a view of obtaining a larger sum than the just proportion of school moneys coming to such school, such trustee, official, or teacher, shall, for each offence, be liable to a jine of not less than .$50." In the opinion of the undersigned, this section touches upon the criminal law. The offence in respect of which provision is made, being punishable under the provisions of the Canadian criminal law. Sec. 7, and Sec. 46 of chap. 165 of the Revised Statutes respecting forgery. Chapter 9. "An Ordinance to amend Ordinance No. 3 of 1886," intituled : " The Companies' Ordinance." Sections 19, 20, 21 and 22 of this Ordinance also, in the opinion of the undersigned, conflict with the provisions of the criminal law. The undersigned has in previous reports frequently called attention to the objectionable character of this legislation and in several instances enactments similar to these have been repealed by a provincial legislature, at his suggestion. The undersigned begs to recommend that a copy of this report, if approved, be transmitted to the Lieutenant-Governor of the North-west Territories, with a view to having the sections referred to in these two Ordinances repealed. Respectfully submitted. JNO. S. D. THOMPSON, \ Minister of Justice. '.«««s-rf«Bww?,;i vernor 888. ) Lieuten- oer, 1887, he left to .isttce. hwernor 1888. 3, passed by session held I of a school ikes a false hool moneys ice, be liable Timinal law. le provisions ised Statutes lied: "The undersigned, 3 in previous igislation and a provincial approved, be nth a view to ;oN, / Justice. NORTH-WEST TERRITORIES, 1888. 1st Session — 1st Legislature. Report of the Honourable the Governor General Minister of Justice, approved by I/is in Council on the 27th January, 1S90. Excellency the Department ok .Justice, Ottawa, lOth January, 1890. To His Excellency the Governor General in Council : The undersigned has the honour to report upon the Ordinances of the legislative assembly of the North-west Territories, passed in the session which closed on the 11th day of December, 1888, a certified copy of which Ordinances was received at the Depart- ment of the Secretary of State on the 11th day of January, 1889. No. 1. " An Ordinance respecting the Revised Statutes of the North-west Territories." Previous to the session above mentioned, a commission was appointed by the Lieutenant-Governor of the North-west Territories, for the purpose of revising and con- solidating all existing Ordinances, and the legislation of this session includes the revision and consolidation of all the Ordinances theretofore passed by the Lieutenant-Governor in Council, and by the legislative assembly of the North-west Territories, with the exeception of certain Ordinances relating to local and private matters. This Ordinance is an enactment in the usual form, giving effect to the Revised Ordinances. The undersigned, in recommending that such Ordinance be left to its operation, is not to be understood as approving of the Revised Ordinances in detail, nor as expressing the opinion that all the provisions thereof, are within the authority of the legislative assembly. He may observe, however, that care .seems to have been taken in the revision, and that the legislation as a whole is remarkably free from any attempt to usurp authority in respect to subjects thut are exclusively within the jurisdiction of the Dominion parliament. The volume published contains sixty several Ordinances, in respect of only a few of which any observation appears necessary. No. 8. "An Ordinance respecting Municipalities." This Ordinance gives power to the council of any municipality to pass by-laws in relation to certain subjects which are under the control, to a greater or less degree, of the Dominion parliament, e.g. section 68, authorizes the council to pass by-la\ s for (2.) The prevention of cruelty to animals. (16.) Establishing municipal scales for weighing or measuring, and compelling the weighing or measuring thereon or thereby, of anything sold by weight or measurement in the public market, and establishing and regulating the fees to be paid for weighing or measuring on such scales, and compelling dealers in coal to weigh upon such scales, all coal sold by them, if requested so to do by the purchaser, at the purchaser's expense. (28.) Regulating the keeping and transporting of gunpowde- and other combustible or dangerous materials, preventing the defacing of private or other notices. (31.) Licensing, regulating and governing transient traders and other persons who occupy premises in the municipality, kc, and fo"- fixing the sum to be paid for a license, for exercising any or all of such callings within the municipality, and the time the license shall be in force. (32.) Licensing hawkers, pedlars, billiard, pool and bagatelle tables, and bowling alleys, porters, water dealers or carriers, or common carriers, draymen, hackmen, omnibus drivers, and guides, and regulating the same. 1250 NOBTU-WEST TEKBIT0UIE8 LEQISLATION (34.) Licensing livery stables, sale stables, refreshment houses, boarding houses, hotels, and places of public resort or accommodation for amusement, and private boardiiii; or lodging houses, whereat least four boarders or lodgers are kept, and (36.) Itegulating the assize of bread, and preventing the use of deleterious materials in making bread, and providing for the seizure and forfeiture of bread made contrary thereto, ifec. By-laws made in pursuance of this authority, may or may not be ultra vires of the counci* according as they are consistent with, and framed to secure the enforcement of Dominion legislation on this subject. Section 87 of this Ordinance is as follows : — " The interest of any person or corporation in any lands, the fee of which is in the Crown, shall be liable to assessment." This, of course, remains subject to the limitation, resulting from exemptions con- ferred by the Dominion parliament. Section 120 provides for an appeal to a judge of the Supreme Court of the North- west Territories in matters of assessment, and subsection 12 provides that the decision and judgment of the judge shall be final and conclusive in every case adjudicated upon. This provision is, of course, subject to the right of the parliament of Canada to provide for an appeal to the Supreme Court of Canada. Section 239 provides that : — " In any case where a dispute arises between two municipalities, or between a person and a municipality, involving a claim for a payment of money or damages, or between two or more parties, for the surplus money in the hands of the municipality, in cases where property distrained for the payment of taxes has been sold for more than the amount of taxes and costs, either party to the dispute may reijuire that the same be settled by arbitration." Subsequent sections furnish a practice for such references, including an appeal to a judge of the Supreme Court. The undersigned would call attention to the unusual character of this legislation, which may prevent claims against municipalities from being pursued in the ordinary tribunals. It may be contended that this provision is ultra viren, inasmuch as it takes away from the Supreme Court of the North-west Territories, in part, the jurisdiction oonferrf'l upon that court by the North-west Territories Act : but the decision of that point n -, without public inconvenience, be left to that tribunal. N' 30. "An Ordinance respecting the incorporation of Joint Stock Companies by L. !S Patent." Aticnlion is called to section 80 of this Ordinance which contains legislation upon the subject of bills of exchange and promissory notes, and which may, therefore, be an infringement of the exclusive power of the Dominion parliament to legislate upon this subject. No. 59. "An Ordinance respecting Schools." This Ordinance is substantially a re-enactment of the Ordinance respecting schools passed in 1887, to certain provisions of which the undersigned called the attention of your Excellency in a report dated the 18th September, 1888. The undersigned observes with satisfaction that certain clauses objected to in that report have been repealed in the Revised Ordinance. The attention of the undersigned has been called to the folio ;ving provision in this Ordnance, which, it is stated, operates disadvantageously to certain localities of the North-west Territories. Section 82 is as follows : — " All the schools shall be taught, and instructions given in the following branches, viz. : reading, writing, orthography, arithmetic, geography, grammar, history of Great Britain and Canada, and English literature. Instruction shall be "'iven during the entire school course, in manners and morals, and the laws of heAlth, and due attention shall be given to physical exercises for the pupils, as may be conducive to health and vigour of body, as well as the mind, and to ventilation and temperature of the school-rooms. 1888. 1251 houses, joardiiif,' naterinis contrary ■«« of tho jrcement IS in the ions con- le North- ) decision ted upon, /auadu ti> Dotween a mages, or ipality, in nore than e same be ppeal to a egislation, e ordinary as it takes iirisdiction ion of that Companies ation upon isrefore, be slate upon ing schools .ttention of ndersigned i have been )rovision in litiea of the g branches, ry of Great during the 16 attention health and ,ure of the "It shall be incumbent upon the tru.stees of the schools organized under this Ordinance, to cause a primary course of English to be taught." This provision appears to be within the powers of the assembly. Some complaints have been made that hardship may result from the enforced teaching of English in the public schools, but should such hardship bo found to occur, there is no reason to doubt that it will be relieved by the action of the legislature, or other competent authority without reference to your Excellency. The undersigned lias, however, to call attention to another particular, in respect of which ho finds that the Ordinance does not strictly conform to the re(|uirements of the Act under which it was framed. Section 14 of the North-west Territories Act (chapter 50, Il.S.C.) provides, that Ordinances in respect of education may be made in the Territories, but stipulates that in such Ordinances it shall " Always be provided that a majority of tho ratepayers of any district or portion of the Territories, by whatever name the same is known, may establish such schools therein as they think fit, and make the necessary assessment and collection of rates therefor, and also that a minority of the ratepayers therein, whether Protestant or Roman Catholic, may establish separate schools therein." The Ordinance respecting schools does not contain the provisions that the statute requires it to contain^ but merely contains the provision that the minority may establish a separate school in an organized public school district, thus placing the minority at the mercy of the majority, and only giving the minority the right to establish a separate school, if the majority think proper to organize a public school. It is necessary to point out that the provisions of the North-west Territories Act, before cited, cannot be abridged by the Ordinance, and must bt? considered as s-till in force, notwithstanding the restrictive terms of the Ordinance. In no far as it is attempted by the Ordinance to declare the meaning of the North-west Territories Act, the Ordinance fails of that purpose, and is objectionable, as being an interpretation, by an inferior legislative body of the acts of its superior. , The undersigned only refrains from recommending the disallowance of this Ordi nance,' in consequence of its being merely a re-enactment of an earlier Ordinance, which disallowance would not affect, and which was allowed to go into operation, probably because attention was not called to this provision. The undersigned has the lionour to recommend that the Ordinance bringing these Revised Ordinances into effect, be allowed to go into operation. The undersigned has also the honour to recommend that the following Ordinances, passed at the said session be also left to their operation, namely : — No. 2. " An Ordinance for the abatment of nuisances and for the protection of public health outside Municipalities." No. 3. " An Ordinance to enroll Thomas Christopher West as an Advocate of the Territories." No. 4. " An Ordinance to enable Ernest Harold Scott to register as a medical practitioner of the Territories." No. 5. " An Ordinance respecting the profession of medicine and surgery." No. 6. " An Ordinance respecting the registration of births, marriages and deaths." No. 7. "An Ordinance to amend Ordinance No. 5 of 1888, intituled, 'An Ordi- nance respecting the profession of Medicine and Surgery.' " No. 8. " An Ordinance for granting to Her Majesty certain sums of r^ '"y to defray the expenses of the public service of the Territories for the financial yf tiding 30th June, one thousand eight hundred and eighty nine, and for other purposes relating thereto. Respectfully submitted. JNO. S, D. THOMPSON, Minister of Justice. I 1252 NOItrilWEMT TKKKITOKIEH LEGISLATION NORTH-WEST TERRITORIES, 1889. 2nd Session — Ist Lecuslature. Jieport of' /In: lion, the M'niuter of Justice, approved htj Ui» ExceUcncy the Governor (ieneral in Council, on the Sth January, 1890. Department of Justice, Ottawa, 3rd January, 1890. I'o Iliii E.rcfileney the Governor General in Council : The undersigned iios the honour to call the attention of your Excellency, to an Ordi- nance of the legislative assembly of the North-west Territories, which was assented to on the 22nd day of November last, and which was received at the Department of the Secretary of State on the 17th of December last, being No. 24 of 1889. This Ordinance is in amendment of subsection C\ of section 8, of cliapte*" 1, of the Kevised Ordinances of the North-west Territorie'., ai^J relates to the administration of financial a£fairs in the Territories. The power of the legislative assembly of tiie Territories to pass Ordinances is, of course, limited to such "as are not in excess of the power confv,"red by the 9l8t and " 92n(l sections of the British North America Act upon the legislatures of the several " pri)vinces of Caniida " and no such Ordinance can have validity if it is " inconsistent with, niters or repeals any provision of that Act or of any Act of the parliament of Canada in force in he Territories." This is provided by section 13 and by section 2, subsection 2 of the " North-west Territories Act " chapter 50, Revised Statutes of Canada. These being the powers possessed by the North-west assembly the undersigned has now to state to your Excellency what the provision made by the parliament of Canada is, in relation to the subject on which the Ordinance now under review was made. The Lieutenant-Governor of the Territories, having vested in him the administra- tion of t;;e government, by virtu6 of section 4 of the " North-west Territories Act " it is provided by an Act in amendment of the " North-west Territories Act " namely chapter 19, 1888, section 13, that the " Liev tenant-Governor shall select from among the " elected members of the legislative assembly, four persons to actus an advisory council, " in matters of finance, who shall severally hold office during pleasure, and the Lieute- " nant-Governor shall preside at all sittings of such advisory council, and have a right " to vote as a member thereof, and shall also have a casting vote in case of a tie." It seems unnecessary, in the view which the undersigned takes of this subject, to consider, at present, a question which has given rise to some controversy in the Territo- ries, namely whether the " matters of finance " which are mentioned in the section just quoted, include the administration of moneys appropriated by the parliament of Canada, as well as the revenues of the territorial government derived from local sources. It t.eems clear to the undersigned that the " matters of finance " which are ao mentioned in that section, undoubtedly include the administration of the territorial revenues, which is one of the principal functions which the Lieutenant-Governor has to perform, by virtue of his office. The appropriati*^ n made by the parliament of Canada being placed at the disposal of your Excellency, may be administered in various ways without being placed under the control of the Lieutenant-Governor, but the local revenues x)f the Territories are necessarily under his control, by virtue of the statutory provision which creates his office, and invests him with the administration of the government. Being clearly of opinion, therefore, that the duty is imposed on the Lieutenant- Governor of appointing an advisory council on matters of finance, and that these matters 'overnor 90. an Ordi- ented to lit of tho rdinancc lances of ,rs in the icea is, of 91 at and le several !onsistent ianient of section 2, ;atutes of signed has )f Canada ade. uainistra- s Act " it " namely imong the y council, le Lieute- lave a right tie." subject, to le Territo- ction just )f Canada, jurce?. It mentioned revenues, bo perform, ,he disposal aced under •ritories are creates his Lieutenant- lese matters of finance, on which he has tn be so advised, include thoiulniinistnitionof tho territorial rcvciiueM, the undersigned is obliged to i-iill thti attention of your Kx(!ellonoy to tlie fact tliat, ill his i. 24 f)f 1HH9), is inctxisistont with the provisions of the Acts of the jiarliaincut of Canada relating to that suhject. IJy chapter ."} of the Revised (Ordinance ')f the Territories it is piovidod as follows : — Section 1. "All duties, n^venues, licenses, fees, tines, peiialtitisand moneys whatso- ever of the Territories, over which the Lieuteiiant-Oovenioi- and legislativfi assembly have, oi' heieafter may have the p(jwer of a|iropriati()n, shall form one fund, to be callc' 'The (Jeneral Revenue Fund,' to he appropiiatid for tlus public service of the territories, in the mant\er and subject to the changcvs liereiiiafter mentioned." Section 2. "The said fund shall Im; permanently charged, subject to revision and auilit, as may be directed by < hdin;iiice, or order of tho Li(Hitenant-(iovernor in C/Ouncil, willi all the costs, charges and expenses incident to the collection, management, receipt and (lisliurseinent thereof." Section 4. " Unless the said fund be ajtpropriated in detail by Ordinance, tho Lieutonant-Ciovernor in Council may, from time to time, apj)ropriato siiid fund, or any portion thereof, for any purpos*! of put lie utility in theTerrit')ries, and a statement of such expenditure shall be laid before the leitislati ve assembly at every successive session thereof." Section."). "Tho Lieutonant-(>overnor in Council may from time to time, deter- mine what orticers or jiersons it is necessary to employ for any of the purposes mentioned in this Ordinance, assign their names of olHce, prescribe their duties, grant salaries or pay tor their services, make the necessary appointments and exact such securities from such otlJcers and persons as may be deemed proper." The words " Lieutenant-Go\ernor in Council," which a[)pear in this and in other of the Revised Ordinances, are declared by chapter 1, section '6, suhsection 6, to mean "the Lieutenant-Governor, or person administering tho government of the Territories for the tnne being, acting by anrl with the advice of, or Iv jind with the advice and consent of, or in conjunction with, the advisory council of . lie Territories." It will, therefore, be .seen that, prior to the i)assage of the Oi'dinance which is the subject of this report, the legislative assembly of the territories had declared, in effect, that the expenditure of unappiopriated terri orial revenues should be vested in the Lieutenant-Governor and the advisory council, established by the Act of parliament, of 1882, chapter 19, section 13. Tho provisions of the Ordinances to that end were unnecessary, as the enactment of parliament, by vesting the administration of the government of the Territories in the Lieutenant-Governor, and by directing that he should appoint an advisory council to assist him in matters of finance, had already accomplished the purpose which the Ordi- nance just cited would achieve. The only practical effect of this ordinance would be that the Lieutenant-Governor and advisory council, under it, would receive the style of " Lieutenant-Governor in Council." An important change, however, was made by the Ordinance now under review. The previous Ordinances as already shown were parallel to the legislation of pa: liament. They were unobjectionable, only as being of that character, but, by amending subsection G, of section 8, of chapter 1 , the legislative assembly has made the two lines of legislation diverge, and the legislation of the assembly has become inconsistent with that of parliament. The Ordinance under review is in the following words : — ' " Subsection G, of section 8, of chapter 1, of the Revised Ordinances of the North- west Territories is amended by striking out the last seven words thereof, and subsituting therefor the following words : — ' Two members of the legislative assembly, to be selected from time to time, by the assembly, and who shall hold ofKce until their successois are appointed, and who, in the first instance, shall consist of the following members of the assembly, namely Thomas Tweed, Esquire, member for the electoral district of Medicine Hat, and John Ryerson NeflF, Esquii-e, member for the eicctoral district of Moosomin.' " The effect of this provision is, that onitscoming into force, the " Lieutenant-Governor in Council," mentioned in the Ordinances of the Territories would mean, the Lieutenant- Governor " acting by and with the advice of or, by and with the advice and consent of, or, in conjunction with," Messrs. Tweed and Nefif, or such other two members of the 79 1264 NORTH-WEST TERBITOHIES LEGISLATION legislative assembly aa may be seler ted from time to time by the assembly. To the Lieutenant Governor and Messrs. Twead and Neff, or to the Lieutenant-(^overnor and two members of the legislative assembly, to be selected by the assembly, is given by tiic operation of chapter 3, above cited, the controiandexpenditureof all territorial revenues which may not have been appropriated by the assembly. It appears that there has been n > appropriation by the assembly for the current year. Therefore (if the Ordinance now under review is to have effect) the adminis- tration of all the territorial revenues, for the current year at least, is given to the Lieutenant-Governor " uctiujr by and with the advice of, or by and with the advice and consent of, or in conjunction with " Messrs. Tweed and Neff. In all those important matters of finance, therefore, which relate to the adminis- tration of the territorial revenues during the present year, or any other year in whicli there may be no appropriation, or no complete appropriation, by the assembly, the Lieutenant-Governor is required to have the advice and con.sent of two members o!' the assembly, selected by the assembly. The points in which the Ordinance is inconsistent with the statute of Canada ftbove referred to are the following ; — The Ordinance requires the advisory council to be appointed by the assembly, tiio statute vests the appointment in the Lieutenant-Governor. The Ordinance requires the council to consist of two members, the st.-tute requires four. Thi Ordinance .equires the consent of both membors of the council to every act of the Lieutenant-Governor, the statute implies that the Lieutenant-G',vernor may act on the advice of a majority, because it gives him s. vule in the council, and the casting vote also in case of a tie. The tenure of office prf.scribed by the Ordinance is the pleasure of the assembly, while that prescribed by the statute is ths pleasure of the Lieutenant-Governor. It is obvious, therefore, that the Ordinance is not such as the assembly is empowered to make, in view of the provisions contained i'" section 13 of the "North-west Terri- tories Act," chapter 50 of the Revised Statutes, which provides that " No such Ordinance shall be so made, whic' ■ is inconsistent with, alters or ropt;als any provision of any Act of the parliament ci Canada in {orce in the Territories." It is equally obvious that two advisory boards, one constituted under the statute of 1888, and another under the Ordinance, cannot be established. The statute requires the Lieutenant-Governor to not with the advisory board est!*bli;-iied under the authority of parliament, and the Ordinance requires him to act only on rlie advice of two gentle- men appoii-.ted by the ^ossembly. The undersigned has, therefore, the duty of advising your Excellency that the Ordinance in question is inconsistent with the provisions of the " North-west Territories Act", and its amendment of 1888, and he therefore recommends that this Ordinp.nce "No. 24 of 1889," assented to on the 22ud of November last, be disallowed, and that the disallowance thereof be signified by the Secretary o* State to the Lie a)«nant-i3ov- ernor of the North-west Territories. JNO. S. D. THOMPSON, Minisi'.r of Justice, Order in Council disallowing the Ordinance above mentioned, published in t/t^. Canada Gazette on the 18th January, 1890, Vol. XXIIL, No. 29, page 1149. Report of the Hon. tJie Minister of Justice, approved by His Excellency the Governor Crfivtjpvn], in Clnii'n/'.'i]. nn. thfi 1 at firJnhp'r 1 fifiO General in Council on Ire 1st October, 1890. Depaktment of Justice, Ottawa, 1st Aug'ist, 1890. To His Excellency the Governor General in Council : The undersigned has the honour to report upon one of the Ordinances passed by the legislative Assembly of the North-west Territories, in the year 1889, No. 11, intituled " An Ordinance to amend chapter 25 of the Revised Ordinances of the North-west Territories, intituled : ' The Game Ordinance ' ". im 1889, 1255 seinbly. To the lt-(^overnor and (f, is given by the ritorial revenues f for the current ict) the adminis- , is given to the ti the advice and B to the adminis- ■ year in whicli e assembly, the ) members of the of Canada fibove ihe assembly, the ance requires the rdinance .equires te '\ant-Governor, ice of a majority, in case of a tie. 3 assembly, while lor. bly is empowered l^orth-west Terri- fo such Ordinance vision of any Act inder the statute le statute requires der the authority ice of two gentle- cellency that the h-west Territories at this Ordinpnce lallowed, and that e Lie aiienant-ijiov- »SON, '.r of Justice, led in tl^e Canada ge 1H9. ncy the Governm- A.ugM8t, 1890. lioances passed by I, No. 11, Intituleci )f the North-west " The Game Ordinance " (cap. 25 of the Revised Ordinances of the North-west Territories, 1888) provides among other things, that ; — (2) " No elk, moose, cariboo, antelope, deer or their fawn, mountain .sheep or goat, or hare shall Ije hunted, taken or killed, between the 1st day of February and the 1st day of Heptemher in any year." (3) " No person shall fire at, hunt, take or kill in any year," (a) " Any snipe between the 1st day of Maj and the 15th day of Augu.st : (Ij) " Any grouse, partridge, phea.sant or prairie chicken be.ween tlfe 1st day of February and the 1st day of September. ((•) "Any kind of wild duck or wild goose between the 15th day of May and the 15th day of August." (4) " No person shall at any time disturb, injure, gather, or take the eggs of any species of wild fowl." (5) " No person shall hunt, trap or kill in any year, (a) " Any mink, fisher or martin between the 15th day of April and the 1st day of November. (b) " Any otter or beaver between the 15th day of May and the 1st day of October. (c) " Any musk rat between the 15th day of May and" the 1st day of November." Section 16 provides that tne provisions of the ordinance, except section 4, shall not a])ply to Indians in any part of the territories, with regard to any game actually killed for iheir own use only, and not for the purpose of sale or barter. Ordinance No. 11 now under review alters the close seasons provided for in the original Ordinance, and it contains the following two sections : — Section 7. " Section 16 of the said Ordinance (the section exempting Indians from its operation) is hereby repealed." Section 8. " No person shall kill or take any buffalo in any part of the territories." The undersigned is of opinion that, under- the circumstances hereinafter detailed, this ordinance should be disallowed. Prior to the cvcquisition of the North-west Territories by the Dominion of Canada the whole country with the exception of a small area, had never been surrendered by the Indians inhabiting the same. At the present time, however, almost all the terri- tory "outh of the 52nd parallel of north latitude, has been divested of the Indian title by the operation of treaties known as Nos. 2, 4, 6 and 7. Each of these treaties, with the exception of No. 2, contains a provision guaranteeing to the Indians certain rights of fishing and hunting over the surrendered territory. Treaties Nos. 4 and 7 contain the following covenant : — "And further Her Majesty agrees that her said Indians shall have right to pursue their avocations of hunting, trapping and fishing throughout the tract surrendered, subject to such regulations as may from time to time be made by the government of the country, acting under the authority of Her Majesty, and saving and excepting such tracts as may be required or taken up fro n time to time for settlement, mining, oi other purposes, under grant or other right given by Her Majesty's said government." Treaties Nos. 5 and 6 contain the following covenant : — " Her Majesty further agrees with her said Indians that they, the said Indians, shi 11 have right (o pursue their avocations of hunting and fishing throughout the tract SL ^rendered as hereinbefore described, subject to such regulations as may from time to time be made by her government of the Dominion of '^ ada, and saving and ex- cepting such treaties as may from time to time be reiiuirod or taken up for settlement, mining, lumbering, or other purposes by her said govet tn'^nt of the Dominion of Canada or by any of the subjects thereof, duly authorized tl;i:refor by the said govern- ment." It will be observed tliat in the treaties Nos. 4 and 7, the right of regulating the hunting and fishing is vested in " the government of the country, Mting under the authority of Her Majesty, whereas in Treaties Nos. 5 and 6 such regu iations are to be made by the government of the Dominion of Canada. The undersigned is inclined to the opinion that the authority referred to in both oiiaes is the Dominion government or parliament, but whatever doubts there may be as 79j 1256 NORTH-WEST TERRITORIES LEGISLATION w» the meaning of the phrase " the government of the country acting under the authority of Her Majest}' " there can be none as to the meaning of the phrase " Her government of the Dominion of Canada," and that the treaties contained in these words, purport to secure to the Indians the right to pursue their avocations of hunting and fisiiing, subject to any regulations made by your Excellency in Council. The Ordinance now under review purports to regulate and control the avocations of hunting and fishing by the Indians, as well as by the other subjects of Her Majesty, and in so far as it relates to Indians, is a violation of the rights secured to them by the treates referred to. The undersigned does not consider it necessary to discuss the propriety of these regulations, or whether the Indians .should be exempt from the regulations. It is sutH- cient to observe that tlie utmost caro must be taken, on the part of your Excellency's government, to see that none of the treaty rights of the Indians are infringed without their concurrence. The undersigned desires also to observe that may be doubtful whether the North- west assembly ha^f authority to legislate in respect to hunting and fishing upon the public domnin cf Canada. He does not, however, deem it necessary to do more than call attention to this point, as bearing upon possible future legislation in the Territories, inasmuch as the Ordinance in question would lead to a violation of the tenos of the treaties above referred to. The undor.signed respectfully recommeu'ls that the Ordinance in question be dis- allowed. JNO. S. D. THOMPSON, Minister of Justice. Order in Council disalloiaing the Ordinance above mentioned, published in the Canada Gazette on the 11th day of October, 1800. Vol. XXIV., No. 15, page 652. Report of the Hon. tlie Minister of Justice, approved by His Excellev-cy the Governor General in Council, on tfie 1st October, 1890. Department op Jdstice, Ottawa, Ist August, 1890. 7'o His Excellency the Governor General in Council : The undersigned has the honour to report upon the following Ordinances passed by the legislative assembly of the North-west Territories in the year 1889. No 25. " An ordinance to amend chapter 41 of the Revised Ordinances of the North- we.st Territories, and. No. 26. An Ordinance to amend Ordinance No. 2.5 of 1889, intituled, an Ordinance to amend chapter 41 of the Revised Ordinances or the North-west Territories." These are two Ordinances amending chapter 41 of tiie Revised Ordinances, ISSl^. " An Oidinance respecting the legal profession." That Ordinance provides : Section 2. " Any of the following persons, upon j)roduction to the Lieutenant- Governor of a certificate from a judge of the Supreme Court, to the eflTect that he is ( n- titled to be enrolled, and the payment of a fee of $50.00 to the general revenue fund of the Territories, may be enrolled as an advocate in the said territories. " 1. Any person wlio has been duly called to the bur of any of the courts of Her Majesty's Dominions, or who has been admitted to practice as an attorney, advocate or solicitor in any of the said courts," and, "2. Any British subject of the age of 21 years of good moral character, and who has served under articles and passed the examination prescribed thereby." Section 1 of this Ordinance (chap. 41 of 1888) provides that only such persons as are enrolled as aforesaid shall be permitted to practice in the supreme or any other court of civil jurisdiction in the North-west Territories, or to issue any writ or process, or carry on or defend any action or proceeding therein. 1889. 1257 ;hority •nment )ort to subject cations [ajesty, by the [ti these is sulH- sUency's without >, North- ipon the Lire than i-ritories, >s of the 111 be dis- itice. • Canada 2. !es passed the North- Ordinance I." aces, 1888. jie a tenant- it he is cn- ue fund of iirts of Her idvocate or r, and who persons as other court process, or The Ordinances now under consideration, however, make the following amendments. Ordinance 25 of 1889, provides, among other things, that no person shall so act or practice the legal pr.)fe8sion in the Territories, unless, besides being duly enrolled and qualified, he be a permanent resident of the Territories. Ordinance 26 of 1889, merely saves the rights of those who, before the first day of January, 1890, were enrolled but who may not be permanent residents in the Territories, but even as to any such person it provides that he shall not be entitled to tax or collect any fee for his services. The effect of this legislation i i to prevent any member of the legal profession, resi- dent outside of the Territories, from taking part in any legal business therein, no matter what their qualifications on their standing at the bar of any other province may be. In none of the older provinces of Canada is there any such legislation. Members of the bar in one province are freely admitted, upon compliance with certain prescribed conditions, to practice at the bar of another province. In the Territo- ries there would seen to be far greater reason for liberality in this respect, than in the provinces. The bar there has only very recently been organized. Some of those who have been admitted to it have been admitted on most liberal principles. The reasons which make it useful and reasonable that per-ons practising in one province should be permitted access to the bar of another under proper restrictions, would seem to apply with greater force in a country, where the population is yet scattered and sp irse, where the memberb jf the profession are not yet numeroi's, and where residents of the provinces may frequently have litigation, in which they may desire to have the assistance of their ordinary counsel. Another consideration arises from the fact that the Supreme Court of the North- west Territories to which, by the Ordinances under review, access is to be refused to all practir.ioners in Canada who do not reside permanently in the Territories, is a court established and organized by the parliament of Canada. That parliament is the primary source of all its jurisdiction, and its judges and officers are appointed and paid under the authority of parliament. It seems to the undersigned that a rule as to access of advocates and other practitioners to thut court, ditl'ering so essentially trom that which exists elsewhere in Canada, should not become hiw without the approval of the parlia- ment which has created, organized and maintained th^ court, especially when the rule is prejudicial to the interests of large classes of persons in the other provinces. Section 4 of the first of the two Ordinances under review contains the provision that for any person not qualified to practice by enrollment and residence in the Territo- ries, to attempt to practice shall he a contempt of court, id that such persons shall be incapable of recovering any fee or reward. ^ Section o is as follows : — " 5. Section 4 of said Ordinance i^ hereby amended by adding thereto, at the end thereof, the following words : " And the Supreme Court, or (except as hereinafter otherwise provided) any judge thereof, shall possess and may exercise the same powers over and in respect of such advocates as, at the tine of the passing hereof, is possessed by the Supreme Court of Judicature in England over and in respect of solicitors of the said last mentioned court." The undersigned repeats, as regards this section conferring such extensive powers, on the court, that it would seem better and more appropriate that such powers should he conferred by a statute of Canuda, i' that policy should meet the approval of parlia- ment. The undersigned therefore respectfully recommends that Ordinances numbeis 'J.' and 26 of 1889, of the North-west assembly, assented to on the 22nd day of November, 1889, be disallowed. JNO. S. D. THOMPSON, Minister of Justice. Order in Council disal/owing the Ordinances above mentioned jmhlished in the Canada Gazette on the 11th October, 1890. Vol. XXIV., No. 16, Page 651. I 1258 NORTH-WEST TERRITORIES LEGISLATION Report of the Honourable the Minister of Justice, approved hy Ilis Excellency the Governor General in Council on the 4th Novemb'-r, 1890. Department of Justice, Ottawa, 11th August, 1890. To His Excellency the Governor General in Council: The undersigned has the honour to report upon the following Ordinances of the legislative asseiublj' of the Noith-west Territories, all of which were assented to on the 22nd day of November, 1889, and received by the Secretary of State on the 17th day of December last. No. lU. " An Ordinance respecting the expropriation of lands." This legislation is open to the following objections. 1. That it does not contain any provision for payment for land when expropriated. 2. It would seem more appropriate that the power to expropriate land for school purposes, should be vested in the trustees of the public school district in which the required lands are situated, particularly as under section 47 of "The School Ordinance" (chap. 59 Revised Ordinances) lands, when required, are vested in the trustees as a corporation. 3. The power of expropriation is vested in the " Lieutenant-Governor in Council " which means under section 8 of the interpretation Ordinance "The Lieutenant-Governor acting by and with the advice of, or by and with the advice and consent of, or in con- junction with, the advisory council of the said Territories." The advisory council, under the provisions of the Dominion statute in that behalf, only possesses such powers as have been conferred upon it by the Dominion parliament, unier the provisions of 51 Vic. cap. 19, sec. 13. It may be that the legislative assembly can confer upon the advisory council, powers and functions beyond those mentioned in that section, but, if so, such powers and functions, and the mode of exercising them should be clearly defined in the Ordinance conferring them. The undersigned respectfully suggests that the attention of the Lieutenant-Governor of the North-west Territories be called to this Ordinance, with a view to its being amended at a future assembly, in the meantime the undersigned recommends that the Ordinance be left to its operation. No. 14, " An Ordinance respecting justices of the peace." This Ordinance provides that every justice of the peace, before acting as such, shall subscribe to the oaths therein prescribed. The North-west Territories Act, section 64, provides that the Lieutenant-Governor may appoint justices of the peace for the terri- tories, who shall have jurisdiction as such, throughout the same. The legislative assembly has no express jurisdiction to define the qualifications of, or prescribe the conditions, under which a person appointed by the Lieutenant-Governor may act as a justice of the peace, and it would appear that this Ordinance is an unauthorized limitation of the Lieutenant-Governor's poweis, as expressed in the Dominion Act. It is, however, desirable that a justice of the peace before entering upon his duties should take the oath in question, and in the view of the undersigned no public interest would be injured should the Ordinance be left to its operation, and he respectfully re commends the same accordingly. No. 16. "An Ordinance respecting the personal property of married women." The undersigned has the honour to recommend that the Ordinance be left to its operation. No. 27. "An Ordinance to incorporate ' The Medicine Hat General Hospital ' ". The undersigned would call attention on the fact that this Ordinance, while pur- porting to incorporate a company under the name of the " Medicine Hat General Hospital " does not, in terms, specify tln' object or the purposes of the incorporation. It is doubtless the case that the purpose is the carrying on of an hospital for the treat- ment and cure of the sick, but that object should be expressly stated in the Ordinance. over nor 90. js of the on the h day of Dpriated. or school hich the iinance " stees as a Council " Governoi' )r in con- f council, 3h powers ions of 51 upon the )n, but, if 'ly defined -Governor nr amended Ordinance such, shall ection 64, • the terri- e assembly conditions, itice of the tion of the \ his duties lie interest lectfuUy ve amen." e left to its )spital ' "• while pur- [at General corporation. )r the treat - Ordinance. 1890. 1259 The undersigned, while recommending that the Ordinance be left to its operation, would also recommend that the attention of the Lieutenant-Governor of the North-west Territories be called to the objection raised. Humbly submitted. JNO. S. D. THOMPSON, Mi)ii8t'ir of Justice. Note.— 7%e Ordinances Nos. 1 to 9, 12, IS, 15, 17 to 2.i, & 28 to SI, do not appear to hive been reported itpoti. NORTH-WEST TERRITORIES, 1890. 3kd Skssion — 1st Legislature, Report of the Hon. the Minister oj Justice, appi-oved by His Excellency the Governor General in Council on the 13th Ap7-il, 1891. Departmext op Justice, Ottawa, 24th March, 1891. To His Excellency the Governor General in Council : The undersigned having considered the Ordinances passed in the 3rd session of the legislative assembly of the North-west Territories held in the year 1890, chapters 1 to 24 inclusive, respectfully recommends that they be left to their operation and that the Lieutenant-Governor of the North-west Territories be so informed. Respectfully submitted. JNO. S. D. THOMPSON, Minister of Justice. 1260 NORTH-WEST TERRITORIKS LEGISLATION NORTH-WEST TERRITORIES, 1891-92. IsT Session — 2nd Legislature. Report oj the Honourable the Minister of Justice, approved by His Excellency the Governor General in Council on the 4th November, 1892. Department of Justice, Ottawa, 29th Septeirber, 1892. To His Excellency the Governor General in Council : The undersigned has the honour to report that he has examined the Ordinances passed by the legislative assembly o£ the North-west Territories in the session of 1891- 92. Nos. 4 to 16, 18 to 20, 22 to 26, 28 to 38, which are free from objection. The undersigned respectfully recommends that the ordinances named be left to their operation. Respectfully submitted. JNO. S. D. THOMPSON, Minister of Justice. Report of tlie Honourable the Minister of Justice, approved by His Excellency the Governor General in Council, on the 10th October, 1892. Department of Justice, Ottawa, 29th September, 1892. To His Excellency the Govertior General in Council : The undersigned has the honour to report as follows on Ordinance No. 1 of 1891-92 of the legislature of the North-west Territories (assented to on the 24th December, 1891) intituled " An Ordinance respecting the Executive Government of the Territories." The subject of which this Ordinance treats ("The Executive Government of the Territories "), is regulated by " The North-west Territories Act " of the parliament of Canada and the Acts in amendment thereof ; and, in the view of the undersigned, the parliament of Canada is paramount in authority as to all matters respecting that sub- ject, and is indeed the only authority which can regulate and define the mode of govern- ment which is to exist in the Territories. It follows from this, that an Ordinance which goes beyond the mere regulation of detail, and which is not entirely in subordination to the Acts of parliament, or which limits or extends the powers and responsibilities of the Lieutenant-Governor as established by those Acts is, so far, idtra vires of the legislature of the Territories. By section 4, subsection 2, of chapter 50 of the Revised Statutes of Canada, " The North-west Territories Act," it is provided that " The Lieutenant-Governor shall admi- nister the government, under instruction from time to time given by the Governor in Council, or by the Secretary of State of Canada." This principle has been modified by two statutes. By chapter 19 of 1888, section 13, it is provided as follows : — " The Lieutenant-Governor shall select from among the elected members of the " legislative assembly four persons to Act as an advisory council on matters of finance, " who shall severally hold ofiice during pleasure, and the Lieqtenant-Governor shall " preside at all sittings of such advisory council and have a right to vote as a member " thereof, and shall also have a casting vote in case of a tie." By chapter 22 of 1891, section 6, subsection 12, the legislative assembly is autho- rized to make ordinances relating to (among other things). 1891-92. 1261 dinances of 1891- )e left to atice. Governor 1892. of 1891-92 iber, 1891) jries." !nt of the •liament of signed, the that sub- of govern- ance which dination to ities of the legislature nada, "The shall admi- Jovernor in 888, section bers of the of finance, ;rernor shall IS a member aly is autho- " The expenditure of territorial funds and such portion of any moneys appropriated " by parliament for the Territories as the Lieutenant-Governor is autliorizea to expend " by and with the advice of the legislative assembly or of any committee thereof." There is reason for believing that it was intended, in passing this latter enactment, (chapter 22 of 1891), to repeal section 1.3 of chapter 19, oi 188S, and to leave matters of expendituie to be regulated by the assembly, or by a committee thereof, under the section just quoted. It was suggested to the Lieutenant-Governor that it would not be dilhcult to make the two sections above cited harmonize, and that the legislature would, of course, keep in view both provisions in framing any Ordinance under the Act of 1H91, and that, if a committee of the assembly should be chosen by that body to deal with matters of expenditure, his honour might constitute that committee his advisory council under the Act of 1888, if the numbers corresponded, as they might well do. At all events, the parliament of Canada has vested the executive government of the Territories in the Lieutenant-Governor, acting under instructions from your Excel- lency in Council, or from the Secretary of State, with an ad\isory council on matters of finance, (under section 13 of chapter 19, 1888), of a committee under chapter 22, of 1891, composed of members of the legislative assembly. Possibly the enactment of 1891 may be regarded as authorizing the assembly to make an Ordinance to establish a com nittee, having powers to deal with matters of expenditure, instead of the advisory council. In any case, the functions of the advisory council under the Act of 1888, or the committee under the Act of 1891, are limitel to matters of finance and expenditure. The Ordinance under review, however, contains the much more extensive provision that " There shall be a committee to aid and advise in the government of the Terri- tories, so far as the same is vested in the Lieutenant-Governor and the legislative assembly." This committee, according to the Ordinance, is to con.sist of four persons, at least, chosen by the Lieutenant-Governor from the members of the legislative assembly. They are to advise him on all matters connected with his duties of office, and not merely on matters of finance and expenditure. In the opinion of the undersigned, this ordinance is ultra virpx of the legislature of the Territories, excepting in so far as it may be considered and construed to be an Ordinance in relation to " the expenditure of territorial funds and such portion of any moneys appropriated by parliament for the Territories, as the Lieutenant-Governor is authorized to expend, by and with the advice of the legislative assembly or of any com- mittee thereof." If given any wider effect, it would conflict with the provisions of " The North-west Territories Act," and the amendments above cited, as it would imply that tl e Lieutenant-Governor is to administer the government, as to all matters, accord- ing to \:he advice of the executive committee, according to the Ordinance. The undersigned is informed that an intimation was conveyed to the Lieutenant- Governor, while' the Ordinance was under consideration by the legislature, that this opinion was held by your Excellency's advisers, and that the Ordinance, interpreted otherwise, would be beyond the powers of the legislature, but that his Honour was pleased to give the Ordinance his assent ; and the undersigned is further informed that his Honour was advised that the Ordinance could not be recognized as having any validity or effect, other th in that before mentioned, and that he would Ije expected to conform to the statutes of Canada in all matters relating to the government of the North-west Territories, and could not be relieved from responsibility, by the circum- stance of his having advisers on the general affairs of government under the Ordinance in (juestion. This being the case, it has not been consirler"' necessary to advise your Excellency to disallow the Ordinance, although, in the view of the undersigned, it requires to be amended in order that confusion and misinterpretation be avoided. It will probably be sufficient that the expression of opinion contisined in this report, if it should meet with your Excellency's approval, be conveyed to his honrur. 1262 NORTH-WEST TEIIRITORIEH LEGI8LATI0X The undersigned has, therefore, to recommend that a copy of this report, if approved, be transmitted to his lionour the Lieutenant-Governor of the North-west Territories, together with a copy of the minute approving the same. Respectfully submitted. JNO. S. D. THOMPSON, Minister of Jimtice. Report of the Hon. the Minister of Justice, approved by His Eccelleucy iJie Governor General in Council on the 2yth October, 1892. Department of Justice, Ottawa, 29th September, 1892. To His Excellency the Governor General in Council : Tlie undersigned has the hotio'ir to report as follows on Ordinances Nos. 2 and 3 of 1891-92 of the legislative assembly of the North-west Territories, respectively intituled : (2) "An Ordinance respecting Revenue and Expenditure." (3) " An Ordinance to amend ' The Interpret 'tion Ordinance.' " The undersigned has, by a report bearing even date herewith, reported fully upon No. 1, an Ordinance of the same session intituled "An Ordinance respecting the Executive Government of the Territories " ; and some of the objections specified in that report to Ordinance No. 1, are applicable to the.se Ordinances also, dealing, as they do in part, with the same subject. For the same reasons as are therein stated, the undersigned respect- fully recommends that these Ordinances I e left to their operation. Respectfully submitted. JNO. S. D. THOMPSON, Minister of Justice, Report of the Honourable the Minister of Justice, a/}/,roved by His Excellency the Governor General in Council on the iiVth October, 189^. Department of Justice, Ottawa, 29th September, 1892. To His Excellency the Governor General in Council : The undersigned has the honour to report on the following Ordinance passed at the session of the legislative assembly of the North west Territories in 1891-92. (No. 17) " An Ordinance to further amend chapter 30 of The Revised Ordinances, 1889, intituled ' The Companies Ordinance.'" " The Companies Ordinance," chapter 30, Revised Ordinances of the North-west Territories, relates to and provides for the incorporation by letters patent of companies, the purposes and objects of which are within the legislative authority of the legislative assembly. Section 90 provides that certain sections therein specified shall apply to gas and water companies and to them only. By the present Ordinance, such sections are made to extend to companies supplying electricity for purposes of light, heat or power, or of operating a system of telephones. The Act specifying and governing the powers of the legis'ative assembly is now chapter 22 of 54-.'}5 Victoria, section 6 of which gives the legis- lative assembly power to u^ake Ordinances in relation to tlie incorporation of companies with territorial objects, but excepting (among other companies) telegraph companies. It has been su.gested, and with some force, that a telephone company is within hat exception, and, if so, the Ordinance in question, in so far as it affects telephone com- y( 1891-92. 1263 )rove(l, itories, panies, is ultni vires of the assembly. The question, liowever, is one of doubt and may properly be left for the determination of judicial tribunals. The undersigned, therefore, recommends that the Ordinance be left to its operation. Respectful';' submitted. ce. J NO. S. D. THOMPSON, Minister of Justice, ■overnor 192. and 3 of ntituled : ally upon Executive report to part, with d respect- istice. issed at the Ordinances, North-west companies, e legislative y to gas and ns are made )ower, or of >wers of the ves the legis- af companies ompanies. my is within lephone com- Report of the Hon. the Minister of Justice, approved by His Excelleiiaj the Governor General in Council on the 31st October, 1892, Department of Justice, Oitawa, 29th September, 1892. To His Excellency the Governor General in Council : The undersigned has the honour to report on the following Ordinance, passed at the session of the legislative assembly of the North-west Territories in 1891-92, No. 21 -An Ordinance for protecting the public interest in Rivers, Creeks and Streams." This is an Ordinance purporting to authorize the public to float saw-logs and other timber down all rivers, creeks and streams in the Territories, and authoiising the removal by any person of obstructions therein, and the construction of dams, slides and other works necessary to secure and preserve the floatable character of such waters. The Ordinance provides for the compensation of individuals, who huve made permanent improvements in connection with the waters in question, and fixes certain penalties, which are payable to the general revenue fund of the Northwest Territories, for violation of its provisions. Tiie undersigned begs to observft, with reference to this Ordinance, that in his view it is not such a one as, under the circumstances the legislative assembly should pass. A very large proportion of the land of the North-west Territories is still vested in the Crown in the right of Canada. Those rivers in the North west which for the most part are available for the purposes of floating timber, remain wholly the property of the Crown, notwithstanding that the land on cither side may have been granted to private individuals. In so far as this Ordinance affects ungranted waters, it is dealing with the public property of Canada, and is ineffectual for the purpose which it has in view. The undersigned is of opinion that this Ordinance if left to its operation will not efl'ect the object for which it was intended, and will lead, wherevc it is attempted to be enforced, to confusion and expense. He further thinks that it is worthy of the atten- tion of your Excellency's government, to consider whether or not at .'.he npxt .session of parliament, an Act, similar in terms, dealing with the question involved, should not be submitted to the parliament of Canada. He is of opinion that the Ordinance in question should be disallowed, and he respectfully recommends accordingly. JNO. S. D. THOMrSON, Minister of Justice. Order in Council disallotving Ordinance above mentioned, published in the Canada Gazette on the 5th November, 1892. Vol. XXVI., No. 19, page 866. Report of the Honourable the Minister of Justice, approved by his Excellency the Governor General in Council on the Wth October; 1892. Department of Justice, Ottawa, 29th September, ] S92. To His E.rcellency the Governor General in Council : The undersigned has the honour to report on the folloM-ing Ordinance passed at the session of the legislative assen bly of the North-west Territories in 1891-92. (No. 27). "An Ordinancj respecting the protection of property." 1264 N0RTII-WK8T TERRITORIES LEGISLATION ThU Ordinance compels V^rT'^^^i^l^^ ^^^^^^^''^ surround the same with Hufhc.ent mck«u es m o^ ^^.^ ^^P^^^^^^ ^^^^ provides a penalty for its violation. ^^^'"^'"^'^ JJ^i^^ion having reference to municipal that it be left to its operation. Respectfully submitted. ^^^ ^ ^ THOMPSON, Minister of Justice. 1892. 1265 tc., to ', imd lerelo- licipal iiiiinal b it is iinends ce. NOKTH WEST TERRITORIES, 1892. 3iu) Session — 2nd Leoislaturk. Ri'port of the Hon. the Minixtev of Justice, approved by His Excellency the (iovemor General in Council on the 7th Xovember, 1893. Depautment of Justice, Ottawa, 5tli September, 1893. 7'o Hix Excellency the Administrator of the Governvwnt in Council : Tlie undersigned Ims the honour to submit his report upon the Ordinances pa.ssed by the legislative assembly of the North-west Territories during tlie session, lield in ti>e month of December, 1892, authentic copies of whicli were received l)y the Secretary of State on 23rd January, 1893, and 7th February, 1893. The Ordinances, chapters 2 to 18, 20, 21, 23 to 34, 36 to 38 seem not to call for remark, and the undersigned recommends that they be left to their operation. By Ordinance No. 1 intituled : " An Ordinance respecting expenditure,' it is enacted that " the legislative assembly may from time to time appoint a committee of four per- sons from among the elected members thereof, to advise the Lieutenant-Governor in rela- tion to the expenditure of territorial funds, and such portion of any moneys appropriated by the parliament of Canada for the territories, as the Lieutenant-Governor is autho- rized to expend, by and with the advice of the legislative assembly or of any committee thereof." It is also provided that such conunittee shall be styled " The Executive Committee of the Territories." By a statute of Canada, 50-51 Vie., chapter 19, section 13, amending " The North-west Territories Act," it is provided that : " The Lieutenant-Governor shall select from among the elected members of the legislative assembly four persons to act as an advisory council on matters of finance, who shall severally hold office during pleasure, and the Lieutenant-Governor shall pre- side at all sittings of such advisory council, and have a right to vote as a member thereof, and shall also have a casting vote in case of a tie The undersigned is inclined to the opinion as was pointed out in his report, dated 29th September, 1892, upon an Ordinance of 1891, intituled " An Ordir.aiice respect- ing the Executive Government of the Territories," (which report was approved by your Excellency in Council), that the legislative assembly is authorized by 54-55 Vie, chapter 22, section 6, to provide for the appointment of a committee, with power to advise the Lieutenant-Governor upon matters of expenditure. The last named section repeals section 13, of the North-west Territories Act, and provides that the legislative assembly shall have power to make Ordinances in relation to various classes of subjects, including " The expenditure of territorial funds and such portion of any moneys apfiro- priated by parliament for the Territories, as the [.ieutenant-Governor is authorized to expend, by and with the advice of the legislative assembly or of any committee thereof." The undersigned, therefore, recommends that the Ordinance be left to its operation. Ordinance No. 19 is intitled "An Ordinance to amend and consolidate as amended, " The Game Ordinance and amendments thereto." Section 11 of this Ordinance is as follows :— "No person or corporation shall at any time, or in any manner, export or cause to lie exported, or carried out of the limits of the North-west Territories, any grouse, partridge, pheasant, prairie chicken, elk, moose, cariboo, antelope or their fawn, except us provided for in section 14 of this Ordinance." This provision may be open to question, as affecting to some extent the subject of trade and commerce which is, by the British North America Act, assigned to parlia- ment. The undersigned, however, does not consider the oV)jection of such importance 120G N0HTII-WK8T TKIllUTOrtlBS LKfUSLATION US in justify tliH exercise of the power of diaallowance, and recommends that the Ordi- nance l)e left to its ofx-nvtion. Ordinance No. 3") is intituled " An Ordinance to amend certain Ordinances." It enacts that tho words " Lieutenant-v^ov«rnor in Council " shall be substituttid in such amended ordinances for the words " iiieut«'nant-(iovernor.'' The expressio!i " Lioutf nant-(iovernor in Council " is iU!tin«Hl by the interpretation Ordinance, as amended by Ordinance number .'{, of l8'.)l-!)2, to mean "The Lieutenant-Governor or person admiiiis " tering the government of the Territories for the time being, acting by end with tlic " advice of, or by and with the advice and consent of, or in conjunction with, the execu- " tive committee of the said Territories." The intention of this Ordinance, as will appear upon reference to the Ordinances tliereby amended, is in many cases to impose upon the executive committee, the duty (if advising the Fjieutenant-CJovernor upon matters connected with the duties of his ottico other than expenditure. The undersigned, in his report already adverted to, has pointed out the objections which suggest themselves to such legislation, and he considers that it can only have validity and effect as to those matters, which fall under the control of the Lieutenant- Governor, by virtue of Ordinances enacted by the legislature of the Territories. The undersigned recommends that a copy of this report, if approved by your Excellency, be transmitted to his honour the Lieutenant-Governor of the Territories, together with a copy of the minute approving the same. The whole of which is respectfully submitted. JNO. S. D. THOMPSON, Minister of Justice, Note. — The Ordinance No. 22 intituled ^^ An Ordinance to amend and consolidate " as amended the Ordinances respecting schools " does not apper to have been reported upon." of Ord com! 18!».l 120; the Ordi ces." It [1 in sui'li " Lieutc iciulcd by I admihis , with the ,he execu- irdiniinccH he duty <>f his othce objections only have (ieutenaiit- 38. 1 by your Derritories, '^ustice. consolidate rrted upon." .NORTH -WEST TERRITORIES, 189o. 4tii SE38ION— 2Nn Lkoislaturk. Jie,,ort of ,k. Hon. ^^^^^'er <■>' Canada on th" of Ta'Jf ::r£.;f » " ^" """'""^ '■'"""«"« »•"-"•»' A»~e„. and Collection »a„icipality, income of iTSent' Id by Tl "^' ° V ""' '»'"'' »■'«- the imposition of ,„ch othe/LSe,„?aro sot forth in tZ'o d'"''' """""u ««". ^d by the ceitoin exemptions. Ti,.se exemptions a" stettd Z S ^'^l""""' ™*ct, howey.r, to y this section, stated in the following terms : " from and after the delivery thereof to the Registrar, the same shall operate as a caveat against the transfer by the owner of the land mentioned in SL'cli memorandum, or of any interest he has therein, and no transfer shall be made by him of such land or interest therein, except subject to such writ or other process." 80 R 1270 NORTH-WEST TERRITORIES LEGISLATION This provision may be intended to describe the whole operation of the delivery of the writ by the s^heriff to the registrar, and it may be consistent with the provisions of the Act that there should not Iw priority between writs of execution according to tht; date of their deliverj' to the registrar. The Ordinance in questi(jn would, in any case, have eflfect so fur as concerns property to which the Territories Ileal Property Act does not apply, and the question as to its operation with regard to lands, may be left to the court for dc^^rr.nnation. Ordinance No. 33. " An Ordinance to incorporate the city of Calgary." The undersigned desires to call attention to section 117, empowering the council of thd city of Calgary to make by-laws for certain purposes therein mentioned. Also to section 149, which provides, that any person who shall violate any of the provisions of any such by-law, passed by the city of Calgary, or which may hereafter be passed under the authority of this ordinance, which by-law shall not contain any provision for punishment for breach thereof, shall be liable, on summary conviction, to a penalty not exceeding one hundred dollars, or imprisonment for any term not exceeding six months, or to both fine and imprisonment. Among other subjects upon which the council is empowered to make by-laws are the following : — " (2.) The prevention of cruelty to animals, not being inconsistent with any statute or ordinance in that behalf." " (10.) For preventing the posting of indecent placards, writings or pictures, or the writing of indecent words or of making indecent pictures or drawings on walls or fences within the limits of the city." " (11.) For preventing vice, drunkenness, profane swearing, obscene, blasphemous or insulting language, fighting, disorderly conduct, and any other immorality and indecency, on or near any street, or in or near any public place or building within the limits of the city." " (12.) For suppressing gambling-houses, disorderly-houses and houses of ill fame." "(14.) For restraining and punishing vagrants and mendicants within the limits of the city, and for preventing common begging or persons in the streets from importuning others for help or aid in money, or deformed, or malformed, or diseased persons, from exposing themselves, or being exposed in the public streets to excite sympathy, or induce help or assistance from general or public charity." It appears to the undersigned that these provisions, or some of them, may relate to the subject of criminal law. and that the legislature of the Territories could not, there- fore, confer all the powers which tiie clauses referred to appear to confer. By-laws may, however, be framed undrr these clauses which would not be open to question, and as *o such by-laws as might be questionable, the courts would afford a remedy for persons affected thereby. The undersigned, therefore, recommends that the Ordinances mentioned in this report be left to their operation, and that a copy of this report, if approved, be sent to the Lieutenant-Governor of the Territories for his information. Respectfully submitted. JNO. S. D. THOMPSON, Minister of Justice. of( by-1 sa ra 1894. 1271 (livery of i^isioiis of ng to th(! any ciiso, Act does eft to the council of Also to )visions of ised under vision for enalty not x months, ly-laws are my statute ures, or the Is or fences lasphemous lorality an 1 within tlie of ill fame." the limits of mportuning jrsona, from y, or induce ay relate to not, there- t be open to juld afford a oned in this d, be sent to ' Justice. NORTH-WEST TERRITORIES, 1094. 5th Session — 2nd Legislature. Report of the Hon. the Minister of Justice, approved by His Excellency the Governor General hi, Council on the 23rd February, 1895. Department of Justice, Ottawa, 9th February, 1895. To His Excellency the Governor General in Council : TV"" undersigned has the honour to report that he has examined the Ordinances passea ^y the legislative assembly of the North-west Territories, which were assented CO on the 7th day of September, 1894, and received by the Secretary of State for Canada on the 9th day of October, A.D. 1894, (Nos. 1, 2, 4, 7 to 19, 21 to 42,) and he is of opinion that they are unobjectionable and may be left to their operation. The remaining Ordinances Nos. 3, 5, 6 and 20 have been reserved for separate report. The undersigned recommends that a copy of this report, if approved, with a copy of the schedule, be sent to the Lieutenant-Governor of the North-west Territories for his information. Respectfully submitted. CHARLES HIBBERT TUPPER, Minister of Justice. Report of the Honourable the Minister of Justice, approved by His Excellency the Governor General in Council on the 23rd February, 1895. Department op Justice, Ottawa, 9th February, 1895. To His Excellency the Governor General in Council : The undersigned has the honour to submit his report upon the following Ordinances of the legislative assembly of the North-west Territories, assented to on the 7th day of September, 1894, and received by the Secretary of State for Canada on the 9th day of October, 1894. Ordinance No. 3. " An Ordinance to amend and consolidate as amended ' The Mu- nicipal Ordinance' and the several Ordinances amending the same." It is enacted by part 3, section 16, that the council of every municipality may pass by-laws for the purposes therein mentioned. It appears to the undersigned that, as to some of these purposes, the legislative assembly has exceeded the power conferred upon it by the North-west Territories Act. For instance, such provisions as the following are in certain respects objectionable ; — Paragraph 14 " The establishment and regulation of public markets and imposition of penalties for light weights, short measurement and any breach of contract in public markets and restraining or preventing sellipg; on the streets." The subject of weights and measures is, under the British North America Act, assigned to parliament, and there are statutes providing for the adoption of proper weights and measures and penalties for use of unjust or false ones. Paragraph 36, " For the controlling, regulating and licensing, livery stables and " sale stables, telegraph and telephone companies, telegraph and telephone offices, insu- " ranee companies, offices and agents, real estate dealers and agents, intelligence offices 80^ 1272 NORTH-WEST TERRITORIES LEGISLATIOX " and employment offices or agents, butcher shops or stalls, skating, roller, or curling " rinks, and all other business, industries or callings, carried on, or to be carried on witliin " the municipality, or commercial travellers or other persons selling goods, merchandise " or other effects of any kind whatsoever, or offering the same for sale by sample cards, " specimens or otherwise, for or on account of any merchant, manufacturer or other " person, selling directly to the consumer, not having his principal place of business in " the municip-'lJty and collecting license for the same." The powers thus conferred, in some particulars, exceed the authority which has been delegated to the legislative assem- bly, and by-laws might be framed under this provision, which would conflict with Domi- nion legislation. It is provided by part 3, section 22, that the council of a city, to wn or municipality may make by-laws for the purpose, among other', of permitting the track of any railroad to be laid upon or along any street in the municipality, and of providing compensation for any damage that may be done thereby to the property on such streets ; also for the purpose of regulating the use of locomotive engines and the speed of trains upon any railroad within the municipality, and of preventing the obstructing of any streets by engines or trains. The municipality is also empowered to regulate, by by-law, the blowinj? of whistles or ringing of bells, while the engine is going along the streets, and to impose a penalty for breach of any such by-law, not exceeding $500. Provision is also made for the service of documents, in proceedings taken for the violation of the by-laws. If such powers are intended to apply to railways, which ar^ subject to the provi- sions of the Railway Act they are, to that extent, ultra vires. The undersigned consi- ders, however, that these provisions and others which may be open to question under which the municipalii ies are given power to make by laws would, in a greater or less degree, have application to matters which are within the competency of the legislative assemljly, and if in any case the municipality should exceed its authority, the courts would afford a remedy to any person prejudiced. The attention o^ the undersigned has also been directed to part 4, of the same ordi- nance, vhich is as follows ; — " Cr 'wn Lands occupied, whether under right of purchase or homrste:td or pre-emption entry, and patented lands vested in or held by Her Majesty which jiay be hereafter, or may have been heretofore sold, or agreed to be sold, to any person or corporation, or which may be located is a free grant, homestead or pre-emption, shall be liable to taxation, from the date of such homestead, or pre-emption entry, location sale or grant ; and all such lands shall be liable to taxation, thenceforward under this ordinance, in the same way as other land, whether any license of occupation, certificate of sale, or receipt for money paid in such sale, has or has not been, or is, or is not issued, and in case of sale or agreement for sale by the Crown, whether any pay meiit has, or has not been, or is, or is not made thereon, and whether any part of the purchase money is or i not overdue ; but such taxation shall not in any way affect the right of Her Majesty in such lands." The undersigned observes that while in form this section would appear to conflict with section 125 of the British North America Act, which provides that "no lands or property belonging to Canada or any province, shall be liable to taxation," still ia substance, as construed by the undersigned, it merely enacts that such interest in Crown lands, as Her Majesty may have parted with shall, be liable to taxation, and in that view the undersigned would nnt consider the section objectionable. It will be observed that the provision in question has been copied in terms from the Assessment Act of Manitoba, Revised Statutes, chapter 10.\, section 5, which section was left to its operation without comment. Ordinance No. ^. " An Ordinance to amend tl/j Judicature Ordinance." It has been represented to the undersigned that the fees allowed by this Ordinance to sheriffs, deputy sheriffs and bailiffs, for services under the small debt procedure, are entirely inadequate for the services which these officers -are by law required to perform, that by reason of the inadequacy of the fees, it has become difficult to have writs executed in the small debt cases, and that delay and great inconvenience to suitors has resulted. reqi the 1894. 1273 •, or curling 3d on within aaerchandise imple cards, •er or otlier : business in ;on£erred, in lative assem- ; with Domi- icipality may ailroad to be ition for any • the purpose any railroad >y engines or 3 blowinf; of I to impose a ilso made for iws. to the provi- [•signed consi- lestion under ;reater or less he legislative ,y, the courts ihe same ordi- t of purchase Her Majesty 8 sold, to any r pre-emption, nption entry, ihenceforward of occupation, been, or is, or )ther any pay ny part of the way afifect the ear to conflict b " no lands or ation," still in ch interest in ixation, and in e. It will be he Assessment was left to its ice." this Ordinance , procedure, are w required to iifficult to have convenience to The undersigned considers that this is a matter which should be inquired into by the executive committee of the Territories and rectified by amendment, should the grievance alleged be found to exist. The objection does not, however, appear to the undersigned to be of such a character as to call for the exercise of the power of dis- allowance. Ordinance No. 20, " An Ordinance to prevent Trespass in pursuit of game." This Ordinance prohibits the taking or killing of game upon any inclosed or culti- vated lands, and provides that any person contravening the provisions of the Ordinance shall be liable to a penalty of $25. The undersigned has received a communication, stating in effect that this Ordinance is not adapted to the circumstances of the country, and not in accordance with the sentiment of the inhabitants. It is also pointed out that the legislation is exceptional in its character, so far as the Game Laws of Canada, or any of the provinces of Canada are concerned. These and other considerations which have been urged are such as, in the opinion of the undersigned, might properly be presented to the territorial legislature, with a view to the repeal of the Ordinance, but the matter is one entirely within the province of the Legislative Assembly, and not such as would justify the exercise of the power of disallowance. The undersigned, therefore, recommends that the Ordinances herein mentioned, be left to their operation, and that a copy of this report, if approved, be transmitted to the Lieutenant-Governor of the North-west Territories for his information. Respectfully submitted. CHARLES HIBBERT TUPPER, Minister of Justice. Report of the Hon. the Minister oj Justice, approved by His Excellency the Governor General in Council on the 25th Febmary, 1895. Depahtment of Justice, Ottawa, 2nd February, 1895. To His Excellency the Governor General in Council : The undersigned has the hoiour to report that by the North-west Irrigation Act, chapter 6, which is limited in its application to the North-west Territories, it is in subs- tance enacted that where inconsistent rights have not been already acquired, the right to the use of all water shall be deemed to be vested in Her Majesty ; that companies desiring to use such water for irrigation purposes, shall make application therefor in the manner provided by the Act, and that any companies desiring to construct works for the purpose of retaining and carrying such water shall, under the statutory proceedings, obtain for that purpose the authority of your Excellency in Council. The Act also pro- vides for the disposal of the water by companies obtaining such authorization, and requires such companies to make annual returns as to their business to the Minister of the Interior. Such companies are authorized to issue bonds to a limited amount, and your Excellency in Council is given power to make regulations affecting the works and busmess of the companies so authorized, and for carrying out the provisions of the Act according to their true intent. By an Ordinance of the legislative assembly of the North-west Territories (No. 6 of 1894) intituled: "An Ordinance respecting the formation of Irrigation Districts" which was assented to on the 7th day of September last, and received by the Secretary of State for Canada on the 9th day of October last, it is in effect enacted, that any number of the owners and homesteaders of land situated within any tract of land, any portion of which is capable of being served by the works which may be authorized to be constructed under the provisions of the North-west Irrigation Act, may petition the Lieutenant-Governor in Council to erect such tracts into an irrigation district, and that, after certain proceedings mentioned in the Ordi- nance, a meeting of the voters of such area shall be held to decide by vote as to the 1274 NORTH-WEST TEItRITOUIES LEGISLATION erection of the district, when, if the majority of votes are in favour of erecting the district, trustees therefor are to be selected, and a proclamation is afterwards to be made by the Lieutenant-Governor in Council establishing the district. Section 20 is as follows : — " Every district hereby created shall be a body corporate, and shall have all the rights, and be subject to all the liabilities of a corporation ; and especially shall have full power to acquire, hold and alienate both real and personal estate for all purposes of the district, and by the same name they and their successors shall have perpetual suc- cession, and they shall have power to sue and be sued, and implead and be impleaded, answer and be answered unto, in all courts and in all actions, causes and suits-at-law and in equity whatsoever, and that they shall have a common seal, with power to alter and modify the same at their will and pleasure, and they shall be in law capable of receiving by donation, acquiring, holding, disposing of, and conveying any property, real or movable, for the use of <^^he said district, and of becoming parties to any agree- ments in the management of the affairs of the said district, and shall have all the powers necessary for the construction, working and maintenance of works, irrigation works, for the uses and purposes of the said district and the inhabitants thereof ". The word " works" is defined by the Ordinance to have the same meaning as that given to it by the North-west Irrigation Act. It is further enacted that the board of trustees shall obtain the authorization of his Excellency the Governor General in Council for the construction of the necessary works, in the manner provided by the North-west Irrigation Act. That such authority having been obtained, the corporation shall have power, subject to the conditions and in the manner prescribed by the Ordinance, to issue debentures charged upon the real estate comprised witl. in the district for the purpose of defraying the cost of the establish- ment of the district and the construction of the works, also to assess the land within the district, for the purpose of maintaining the works and redeeming the debentures. Apart from any que&tion as to the power of ^.he assembly to create a body corporate for the purpose of irrigation, p:iriiament has declared, by section 42 of the North-west Irrigation Act what the powers of companies authorized under that Act, as to the issuing of debentures, shall be ; while under the pro visions of the Ordinance, corporations are given borrowing powers, which are not within the contemplation of the Act of parliament. By 54 and 55 Victoria, chapter 32 section 6, as amended by 57-58 Victoria, chapter 17, section 1, the legislative assembly of the territories has power to make Ordinances in relation to " the incorporation of companies with territorial objects, with the following exceptions. (a.) " Such companies as cannot be incorporated by a provincial legislature. (b.) " Railway companies (not including tramway and street railway companies) and steamboat, canal, transportation, telegraph and irrigation companies. (c.) " Insurance companies. " The authority to incorporate irrigation companies has, therefore, not been delegated by parliament to the legislative assembly. The expression "company" is defined by the North-west Irrigation Act to include any incorporated company, the objects and powers of which extend to or include the construc- tion or operation of irrigation works under that Act, or the carrying on thereunder of the business of the supply, or the sale, of water for irrigation purposes, and the undersigned considers that the expression " irrigation companies," as used in the amendment of the North-west Territories Act, above quoted, should not receive a more limited interpreta- tion than that which the word " company " bears under the North-west Irrigation Act. It would seem therefore, that the Ordinance in question is ultra vires of the legislative assembly of the territories, in so far as it provides for the constitution of companies, to which the provisions of the North-west Irrigation Act are to apply. The question may be raised as to how far the expression " Irrigation companies" as used in the Act of constitution, includes corporations of the character which the assembly has attempted to constitute, but he has not been able to come to any other conclusion than that, in excluding irrigation companies, from corporations which might 1894. 1275 cting the [•ds to be ve all the shall have urposes of )etual suc- mpleaded, uits-at-law er to alter capable of property, any agree- bhe powers on works, ing as that )rization of 1 necessary 1 authority iitions and lon the real le establish- md within )entures. y corporate North-west , as to the jorporations the Act of )ria, chapter Ordinances i, with the bture. companies) en delegated 5 include any the construc- sunder of the undersigned dment of the id interpreta- rigation Act. •e legislative jompanies, to ti companies er which the I to any other which might be constituted by the legislative assembly, parliament has evinced an intention not to ' delegate to the assembly the authority to crea^ corporations having for their object irrigation. The power to issue debentures and other powers conferred by the Ordinance in question are of such an important nature and so far reaching in their effects as to render it undesirable that any doubt should exist as to the validity of the Ordinance, or that the provisions of the Ordinance should be invoked, when there is a prospect that, if left to the courts, the Ordinance would be declared invalid, and it therefore appears to him that the Ordinance should be disallowed. The undersigned, however, desires to call attention to the report of the late Right Honourable Sir John A. Macdonald, the Minister of Justice, which was approved by your Excellency in Council on the 9th June, 1868, in which it is stated " that, where a measure is considered only partially defective, or where objectionable, as being prejudi- cial to the general interests of the Dominion, or as clasliing with its legislation, commu- nication should be had with the provincial government in respect to such measure, and that, in such case, the Act should not be disallowed, if the general interests permit such a course, until the local government has an opportunity of considering and discussing the objections taken, and the local legislature has also an opportunity of remedying the defects found to exist." Following the practice thus recommended, and which has since been followed in similar cases, he recommends that a copy of this report, be transmitted to the Lieutenant- Governor of the North-west Territories, with a request that he should inform your Ex- cellency's government whether this Ordinance will be repealed, or so amended as to re- move the objections to which attention has been called, within the time limited for disal- lowance, and with the intimation that in the meantime he should not exercise the autho- rity which the Ordinance professes to confer upon him. Respectfully submitted. CHARLES HIBBERT TUPPER, Minister of Justice. I 1276 NORTH-WEST TERRITORIES LROISLATION NORTH-WEST TERRITORIES, 1895. 1st Session — 3rd Legislature. Report of the Hon, the Minister of Justice, approved by His Excellency the Governor General in Council, on the 3rd January, 1896. Department of Justice, Ottawa, 18th December, 1895. To His Excellency the Governor General in Council : The undersigned has the honour to report that he has examined the Ordinances passed by the legislative assembly of the North-west Territories in the fifty-eighth year of Her Majesty's reign (1895) — Nos. 1 to 28, 30 to 36, — received by che Secretary of State for Canada on the 22nd and 29th October last ; and he is of opinion that they are unobjectionable and may be left to their operation. The undersigned also recommends that, if this report be approved, a copy of the same, with a copy of the schedule of the titles of the Ordinances, be sent to his Honour the Lieutenant-Governor for his information. Respectfully submitted. CHARLES HIBBERT TUPPER, Minister of Justice. Report of the Honourable the Minister of Justice, approved by His Excellency the Governor General in Council on the Srd January, 1896. Department of Justice, Ottawa, 20th December, 1895. To His Excellency the Governor General in Council ; The undersigned has had under consideration a bill passed by the legislative assembly of the North-west Territories at its last session, 1895, received by the Secretary of State for Canada on the twenty-ninth day of October, 1895, No. 29, intituled : — " An Ordinance to amend and consolidate as amended the Ordinances respecting Schools " which bill was reserved by his Honour the Lieutenant-Governor for the assent of your Excellency. The Lieutenant-Governor's report merely states that the passing of the bill by the a.s<)embly took place on the last day of the session, almost immediately before the proro- gation of the legislature, and as he consequently had no opportunity of examining its provisions, he reserved his assent thereto. The bill, as its title indicates, is intended to consolidate and amend the various ordinances respecting the schools of the territories. It relates entirely to the subject of education, and it was intended to go into eflfect on the first day of January, 1896. By section 14 of the North-west Territories Act it is provided in effect as follows : The Lieutenant-Governor by and with the advice and consent of the legislative assembly of the North-west Territories " shall pass all necessary Ordinances in respect to education ; but it shall therein always be provided, that a majority of the ratepayers of any district or portion of the Territories, or of any less portion or subdivision thereof by whatever name the same is known, may establish such schools therein as they think tit and make the necessary assessment and collection of rates therefor ; and also that the minority of the ratepayers therein, whether Protestant or Roman Catholic, may establish separate schools therein, and in such case, the ratepayers establishing such Protestant or Roman Catholic separate schools shall be liable only to assessments of such rates as they impose upon themselves in respect thereof. , 2. The power to pass Ordinances, conferred upon the Lieutenant-Governor by this section, is hereby declared to have been vested in him on the seventh day of May, one thousand eight hundred and eighty. The bill reserved appears to contain the provisions with regard to the establishment of schools by the majority of the ratepayers, the establishment of separate schools and the liability to assessment therefor, which are required by the section quoted, as a condition to the validity of the legislation. It will be observed that the Lieutenant- Governor has stated no question for consideration with regHrd to the constitutionality of the measure, and no representations have been made to your Excellency from any other quarter that the assembly has by the enactment exceeded its authority. Under the instructions which were issued to the Lieutenant-Governor he is required to take care that all laws assented to by him or reserved for the signiBcation of your Excellency's pleasure thereon shall, when transmitted by him, be fairly abstracted in the margin and be accompanied in such cases as may seem to him necessary, with such explanatory observations as may be required to exhibit the reasons and occasions for proposing such laws, otherwise the Lieutenant-Governor had no instructions in any way afifecting this bill. It would seem, therefore, to have been intended that a measure of this character should depend for its eflFect upon the exercise of that authority which by the North-west Territories Act has been committed to the Lieutenant-Governor and the assembly of Territories, and that the case is not one in which your Excellency should be called upon to give effect to the legislation. The undersigned is of opinion that the Lieutenant-Governor ought not to have reserved that bill for your Excellency's assent. For the reasons stated the undersigned recommends that the Lieutenant-Governor be informed that your Excellency does not propose to signify your pleasure with respect to the reserved bill, or to take any action upon it. It will be for the legislative assembly of the Territories, at its next session, if it to desires, to re-consider the bill, and re-enact or reject it in its discretion. If the bill be re-enacted and assented to by the Lieutenant-Governor, the authority is vested in your Excellency to disallow the ordinance at any time within a year from its receipt by the Secretary of State, and the question as to whether the power of disallowance should be exercised, could then be properly considered. The undersigned further recommends that a copy of this report, if approved, be transmitted to his honour the Lieutenant-Governor for his information. Respectfully submitted. CHARLES HIBBERT TUPPER, Minister of Justice. Ilia Honour the Lieutenant-Governor to the Honourable the Secretary of State. Ottawa, Ont., 31st January, 1896. Sir: I have the honour to acknowledge the receipt of a copy of the report made by the Honourable the Minister of Justice, dated December 20th, 1895, and approved by the Governor in Council, upon an enactment passed by the legislature of the North-west Territories at its last session in September, 1895, and intituled " An Ordinance to amend and consolidate, as amended, the Ordinance respecting Schools." As the above mentioned report involves issues directly constitutional, I venture to give my reasons for the action taken by me, and the authorities which, in my estimation, justified such procedure. Section four (54-55 Vic, chap. 22) " An Act to amend the Acts respecting the North-west Territories," provides : — " There shall be a session of the legislative assem- bly convened by the Lieutenant-Governor at least once in every year, so that twelve 1278 NORTH-WEST TKKUIT0KIE8 LEGISLATION months shall not intervene between the last sitting of the assembly in one session and its first sitting in another session : and sucU assembly shall sit separately from the Lieutonant-Uovernor and shall present bills passed by it to the Lieutenant-Governor for his assent, who may apprvve or rf serve the same for the assent of the Governor General." The list of bills submitted for assent included "The Ordinance to amend and con- solidate, as amended, the Ordinance respecting Schools," the provision of which had in no form been submitted to me, as mentioned in my communication to the Honourable the Secretary of State under date October the 24th, 1895, as follows : — " The passing of this bill by the assembly took place on the last day of the session, " and almost immediately before the prorogation of the legislature, consequently, as I •' had no opportunity to examine its provisions, I reserved my assent thereto." Being informed by the clerk of the assembly that the measure was incomplete and not ready for inspection (a large number of amendments having been passed immediately Krior to prorogation) my natural inclination was to withhold assent : but this would ave been to assume a serious responsibility, in view of the fact that the North-west Territories Act limited my jurisdiction to " approval " or " rer.ervation." Thus, I had either to assent to an Ordinance, the purport of which, save and except the title, I was in utter ignorance of, or adopt the only remaining alternative under the statute, namely, to " reserve assent." To have rejected the Ordinance would, it seemed to me, have been a rather delicate proceeding from a constitutional standpoint, in view of the provisions of the Territorial Act, and prorogation A the assembly, being then in active progress, I was far from convinced that I would be justified in staying proceedings, in order that the bill might be arranged in such form as permitted a consideration of its provisions. Under these circumstances I deemed it wiser to re-^erve assent, quite aware that the Ordinance was a nullity, unless the federal machinery could be invoked to provide a pro- cess of legalization. I realized further that the matter would be submitted to the Minister of Justice for it certainly appeared to be an anomaly to state that the bill was not ready for assent, and yet be obliged to " reserve assent." I would further respectfully call attention te the di£ferenco between the authority vested in a Lieutenant-Governor of the North-west Territories, and a Lieutenant- Governor of provinces having a responsible executive. Todd in his work Parliamentary Government in the British Colonies thus defines these powers. " It equally devolves upon these high officers of the state (Lieutenant-Governors) in the Queen's name to open and to close these assemblies, and, in conformity with their instructions, or with the usage of parliament, and pursuant to their constitutional discretion, to give or to tvith- hold the assent of tlie Croivn to the bills enacted therein, or to reserve the same for the consideration of their superior officer, bis Excellency the Governor General. And further (page 586) The British North America Act, 1867, section fifty -five as applied to the provincial constitutions, by section ninety, expressly empowers a Lieutenant- Governor, in his discretion, to withhold the royal assent from any bill presented to him. The same authority points out that, in Nova Scotia, Lieutenant-Governor Archibald from 1874 to 1883, withheld his assent to bills. In New Brunswick the same course was taken by Lieutenant-Governor Wilmot in 1870-71 and 1872 ; by Lieutenant-Gov ernor Tilley in 1875-77 ; and by Lieutenant-Governor Wilmot in 1882. In Ontario the Crown has never refused to withhold the assent to any bill passed by the provincial legislature. Hence, while the Lieutenant-Governors of the other provinces have this power, a special enactment deprives, and limits the representative of the Crown in the Territories. I, therefore, venture respectfully to suggest that the attention of his Excellency's advisers may not have been directly called to the closing paragraph of my letter of the 27th October, 1895, or to the manifest difference between the powers with which the provincial Lieutenant-Governors are vested and the restricted jurisdiction of a Lieu- tenant-Governor of the Territories when called upon to deal with legislation presented for assent. I remain, &c., C. H. MACKINTOSH, Lieutenant-Governor of the North-tvest Territories. lion and •om the rnor for eneral." tnd con- 1 had in aourable ) session, itly, as I lete and nediately lis would arth-west us, I had ,le, I was ), namely, lave been )ro visions rogress, I irder that irovisions. I that the ride a pro- ted to the 16 bill was authority ieutenant- iamentary y devolves me to open r with the or to with- me for the sral. And 1 applied to jieutenant- ted to him. • Archibald ame course «nant-Gov- 3ntario the 3 provincial (s have this rown in the Jxcellency's etter of the I which the n of a Lieu- »n presented Report of the Hon. the Minister oj Justice, approved hy Hin Excllenry the Governor General in Council, on the 11th day of March, ISWi. Department of Justice, Ottawa, 10th February, 1896. To His Excellency the Governor General in Cotmcil ; The undersigned has the honour to report that he has considered a despatch from his Honour the Lieutenant-Ctovernor of the North-west Territories to the Honourable the Secretary of State, dated 3' t January last, copy of which has been referred t«» the undersigned by youi Excellency in Council. The despatch rel.ites to a copy of the approved report of the predecessor of the un- dersigned, by which your Excellency declined to give effect to a bill, jjassed by the legis- lature of the North-west Territories, intituled " An Ordinance U) amend and consolidate as amended the Ordinance respecting schools ", which hill was reserved by the Lieutenant- Governor for your Excellency's assent. His Honour the Lieuteniwit-Governor states in effect, that tin onstitution of the North-west Territories differs from the constitution of the several provinces, in that no power is conferred upon the Lieutenant-Governor of the Territories to withhold assent to any measure, which, having passed the legislative assembly, is presented to him : that he is required by the statute either to approve or reserve the measure for your Excel- lency's assent ; that the bill was not presented to him by the assembly in such form as to enable him to consider its provisions, nor until the proceedings for the prorogation of the assembly had so far advanced, as to render delay inexpedient ; that his inclination would have been to withhold assent had authority to do so been vested in him, but that having no such authority he pursued the only course which he regarded as open, in re- serving the bill. The undersigned agrees with his Honour the Lieutenant-Governor in the view that he could not constitutionally withhold assent ; also that the constitution does not contemplate that a Lieutenant-Governor should be called upon to exercise the discretion which is invested in him, with regard to any bill which may be presented, without having had a reasonable opportunity of informing himself as tothenatti of its provisions. As to the question whether, in view of the circumstances, it would have been justifiable to postpone prorogation of the assembly, the undersigned observes that the Lieutenant-Governor had authority to pospone the prorogation and, if the balance of convenience stood against the exercise of such authority, that circumstance ought noi lo cast upon your Excellency a responsibility, which should otherwise be borne by tlie Territorial authorities ; nor do any of the other observations of the Lieutenant-Governor appear to affect, the view already strted, that a bill of the character in question should not receive effect under authority vested in your Excellency. In future, arrangement will doubtless be made by the legislative assembly to inform his Honour as to the pro- visions of the several bills, which are to be presented for assent, and the undersigned does not consider it necessary at present to advise any amendment to the North-west Territories Act. The undersigned recommends that a copy of this report if approved, be transmitted to his Honour the Lieutenant-Governor for his information. Bespectfully submitted. \ A. R. DICKEY, Minister oJ Justice, 'errttortes. APPENDIX A. 1281 APPENDIX A. RE COPYRIGHT ACT. Lord Knutn/ord to Hi» Ejcellency the Governor Oeneral. DovvNiNO Stkekt, 30th June, 1892. Mv Lord, I have to express my regret that is has not been possible for me to reply at an earlier (late to your despatch of the I'Jth of October, 1891, in which you transmitted the address to Her Majesty, from the Senate and Connnons of Canada in j)arliament assembled, praying in effect for imperial legislation which should explicitly confer upon the parliament of Canada, the power to legislate on all matters relating to copyright, without regard to the statutes in force when the parliament of Canada was established, and further, that notice might be given of the withdrawal of Canada from the Borne Copyright Convention. 2. I duly laid this petition before Her Majesty, who was pleased to receive it very graciously, and to command that it should be taken into consideration by those of her ministers whose departments were more immediately concerned in the subject. .3. I communicated copies of the petition to the Secretary of State for Foreign Affairs and to the president of the Board of Trade, and after some discussion it was agreed to appoint a committee of leading officials of the three departments, who should, with the assistance of one of the parliamentary counsel, consider the whole subject of Canadian copyright and report thereupon to Her Majesty's government. The report of this committee was unfortunately delayed by the illness of one of the members, but by the end of May it was in the hands of myself and my colleagues. 4. This paper will satisfy your lordship and the parliament of Canada that, though Her Majesty's government have not as yet tendered advice to Her Majesty in respect of this petition, they have not failed to submit the question to a complete and exhaustive examination. It appears to them desirable, before any action is taken upon this report, that an opportunity should be given to the Dominion of Canada of once more considering the whole subject in the light thrown upon it by the researches of the committee. 5. I therefore have the honour to transmit to you a copy of the committee's report, and to request you to communicate it to your ministers and invite them to favour me with their views upon it. 6. I have also to request that you will lay this despatch and its inclosures before the parliament of Canada. I have, of the Caniidian Privy Council, the following rep:)rton the draft bill accompanying Lt>rd Kimbf^rley's circular lette'- ; - " 1. As reganis the extendiug to colonial authors the privileges enjoyed by authors under the Imp** j*I Copyriglji Act, there sc^ms to be no difficulty in the way. The Canadian Copyright Act of 1868, now in force, gives to Engli.sh authors all the privileges granted to Canadian authors upon the simple condition of publishing in Canada ; and an alteration in th^- English Copyriirh' .A.ct in the same senile would be accepted as a bo:)n " 2. As to the question of reprints of jopyrights, there ought to be four different interests at stake which are somewhat in conflict, namely, the author s interest, the pubii*" interests, the publisher's interest, and the hook trade interest, " 3. The authors contend that they have an undeniable and inalienable right to dispose of their prop*^y as they please ; the public .seem*^ to be satisfied with the supply of books w\nch it now gets , and the book trade also appear* disposed to be in favour of things as they aei- •' 4. These three intere^sts are not advocating, at least for the present, any materia) chang«> t^yond extending to Canadian authors the privileges of the Imperial Copyright Act as before stated " 5. The pubiinhers. however, although not unanimous in their ()p!"ion, are advo- cating the changes which were embodied in the Canadian Act of 1872, intituled ' An Act to amenl the Act respecting copyrights,' which Act has been disallowed in England. "6. As to the draft submitted of a bill to arnend the law of copyright, the under- signed is of opinion that, owing tt) the intricacy of proceedings therein provided, the operation of such i measure would be attended by difficulties likely to lead to litigation.'' " The undersigned, therefore, is of opinion that any change beyond vhe extendin;,' of the privileges of copyright to Canadian authors is net urgent, and that a postpone- ment of the final solution of this complicated question would not be likely to cau.^e detriment to the public interest." Llk'.'JWi^ I of May, tliency of able pro- , colonial IS foreif^ii protected ;ry of the Sir John , 1868, in supply of i not one- hers were tie United be move ers should on paying; lersell the ,ish author he form of Objections, governors ssed to the f a bill to Clause 7 of my under a submitted, in the draft 3j- authors -ay. The privilegfs lada ; and as abo.^i! ur diiferent iterest, the le right to I iie supply favour of ly materia) Copyright are advo- ,ii,uied ' An in Euglanil. the under- rovided, the I litigation." e extending a postpone- ely to cause APPENDIX A. 1285 18. In 1875 the Canadian legislature passed a Copyright Act i^iving power to any person domiciled either in Canada or in any part of the British dominions, or in any country having a copyright treaty with the United Kingdom, to obt-iin ;.'opyright in Canada for 28 years, with a second term of 14 years. The condition for obtaining such a copyright was to be that the book should be printed and publisiied, or n^printed and* republished in Canada. There is a saving (s. G) for the importation of books lawfully printed in the United Kingdom. The Canadian copyright thus secured was, so far as it related to books first pul)lisi)ed in the United Kingdom, in addition to and foncurrent:, tiiough not cont rminous, with the copyright throughout the Queen's d.,innii, Canada passed an Act repealing subsection 4 and 5 of the previous Canadian Copyright Act (which sections embodied the conditions for obtaining the especial Canadian copyright), and yjroviding that — (a.) Any person domiciled in Canada or in any part of the British possession (an expression which f)resumably includes the United Kingdom) ; or (h.) Any citizen of any country which has an international copyright treaty with the United Kingdom, in which Canada is included (an expression which would, under existing circumstances, include France, but not the United Stateti, and would cease to include France or any other foreign country if Canada ceased to be a party to the Berne Convention) ; may obtain exclusive copj'right for his book in Canada for 28 years subject to the fol- lowing conditions : — (1.) That the book is l)efore, or simidtaneously with, first publication registered in Canada ; and (2.) That it is jtrinted and published, or reprinted and republished, in Canada, within one m<»nth after first publication elsewhere. The Act goes on to provide that, if a person entitled to obtain copyright in a book under these provisions does not avail himself of them, any person domiciled in Canada may obtain from the Minister of Agriculture a license (which is not to be exclusive) to pnblish the book in Canada on paying the author a royalty of 10 per cent on the retail price of each book, published under the license. Where a license is so issue I for a book, and the Governor in Council is .satisfied that tho book is being publishetl under the license in such a manner as to meet the Cana- dian '' ^niand for it, the Governor General may by proclamation prohibit the importa- tion of copies of the book while tia? author's copyright is in force. But the Act — (a.) is not to prohiait the iaqiartation from the United Kingdom of books copy- righted there, or lawfully printed and published there ; and (6.) is not to apply to any book in which before the date at which the Act comes into force, copyright has been obtained in the United Kingdom, or in any coun- try of the Copyright Union. The object of saving («) is apparently to let in books published in England, whilst keeping out books published in the United States. The object of saving (b) is to pro- tect existing rights. The Canadian Act of 1889. was to come into force on a day to be named by a pro- clamation of the Governor General. Such a proclamation has not yet been made. The Act relates to other subjects of copyright besides books. 38. On 3rii August, 1889, Hir John Thompson, Mini.ster of Justice to the Dominion of Canada, submitted to the Pri-vy Council of Canada, a report containing arguments in support >f the Canadian Act on its merits, and in support of the competency of the Canadian legisiitiire to push liie Act. He referred to the provision that the Act was not to come into force until proclaiui"! I)y the (rovernor General, and stated that there was not any intentimi on the part of the Canadian government to advise the issue of a prod ill nation bringing it into force, until it had been submitted to Her Majesty's govern- ment with tho explanations whicli th' Governor General s twlvisers can present, and until Her Majesty's government should concur in the issue of the proclamation. As to the merits, he argued that the copyright system previously in foroe under Imperial and ant on C'-in;i repri hole argu< 1807 Bern opera. notic notic from 'mt t APPENDIX A. 1289 e foreign retjuirt'd mere fact iroughout sd within ntion arc I (in obli- book tirst nion, such ( previous uning the session (an reaty with ioh wouhl, Statetj, awl , ceased to to the tol- !gistered in in Canada, t in a l)ook in Canada sxclusive) t(i ,n the retail il is satisfied et the Cana- the importa- books copy- Act comes in any coun- gland, whilst b) is to pro- iied by a pro- made. the Doniiiiii'ii arguments iu etency of the t the Act wa« ted that there the issue of a jesty's govern- present, and lation. As to r Imperial and Canadian legislation had been found to be most unsuitable to Canad», and that the Berne Convention was found to increase the causes of complaint which existed under the previous law. Under that law, he observed, every work co])yrighted in Great Britain, has copyright protection without the requirement of publication in Canada. Under the protection of this law United States authors secure copyright in Great Britian and her possessions, by publishing in England (sometimes by publishing a limited edition not intended to supply the market, and not sufficient therefor) and thus secure control of the Canadian market, while a Canadian cannot obtain such copyright piivileges in the United States. " The rights which British authors and publishers have in British possessions under this-condition of the law, have been greatly abused by the sale of their copyright privileges to American publishers, and their refusal to sell to Canadian publishers on like terms. By this means United States publishers have been enabled to command the Canadian market under the provisions of legislation which were not intended for their benefit, but for the benefit of the British author and publisher. The prices of American re{)rints are so low that the British publications have no chance of competing with them in Canada, and, Canadian reprints being prohibited by the copyright law, the Imsiness of reprinting for Canadian readers is thus to a great extent thrown into the hands of American publishing houses, to the very great detriment of the publishing interests of Canada. " These evils," he went on to say, " would be augmented by the provisions of th». " Heme Convention, which extends the copyright privileges without publication in British ■' possessions to authors of any country which has joined, or may join, the Copyright " Union formed by that convention. " For the benefit conferred on Canadian authors (who are comparatively a very 'iniited class) of copyright in the countries comprised in the Berne Convention Union, the business of publishing in Canada will be repressed as to works published in all tlir.se countries, and the United States publishers will be free from any restrictions of tliat kind, not only as to the vast markets of their own country hut to Canada as well." He submitted that the royalty provision of the Act in favour of the holder of ]?ritish copyright was reasonable, and afibrded ample facilities for collection. The government of Canada would, he said, be prepared to submit to Her Majesty's government the regu- lations which might be adopted under the Act for securing the collection of the royalty and the payment thereof to the proper parties. He observed, as regai-ds the policy of permitting republication in Canada in consi- deration of such a royalty in favour of the holders of the copyright out of Canada, that, under existing legislation, the importation of foreign reprints into Canada is permitted, on the imposition of a customs duty in favour of the copyright holder. The Act of last session, he said, would make the same provision in favour of the Canadian publisher, but under regulations which will restrain the influx of foreign reprints and afibrd a better means of coUectinit the compensation to the copyright holder. On the question of the competency of the Dominion parliament to pass the Act he argued at some length that such a power existed under the British North America, Act, 18G7. He did not contend that the Canadian legislatior would be consistent with the Berne Convention, and he admitted that before the proclamation bringing the Act into operation could l)e issued, Her Majesty's government must be asked to give the requisite notice of denunciation on behalf of Canada, and that a ye«r's delay must elapse after that notice, and that an order of the Queen in Council muwt be obtained tor releasing Canada from the operation of the statute which makes the Berne Convention operative through- out the Empire. 39. Sir John Thomp.son's report received the concurrence of th* Committee of the C.inadian Privy Council, and was forwarded, with the Act of 1889. to the colonial office by a despatch dated 26th .August, 1889. 10. On the question of the competency of the Canadian parliantrmt to pass the Act 0* 1S89, Lord Knutsford took the opinion of the law officers of the Cmmn, who reported on December SI, 1889, that in their opinion the powers of legislation conferred on tlie Dominion parliament by the British North America Act, 1867, do not authorize tliat parliament to amend or repeal, so far as relates to Canada, an Imperial Act co!iferriiii; privileges within Canada, and that in their opinion Her Majesty should withhold her assent to the Canadian Act of 1889. 41. On the 25th of March, 1890, Lord Knutsford sent a despatch to Lord Stanley of Preston, the Governor General of Canada, in which he expressed his regret that he was unable to authorize the Governor General to issue a proclamation to bring the Cana- dian Act of 1889 into force. Lord Knutsford referred to the advice of the law officers as to the competency of the Dominion parliament to pass the Act. With re-pect to the merits of tho Act, he called attention to two provisions to which special objection was felt by British copyright owners. These two provisions were the limitaticm li one month for reprinting and republication, and the power to priiic and publish ui der coloninl licenses. 42. Meanwhile Newfoundland had been legislating on somewhat ^imilar lines to Canada. In 1888, Newfoundland passed a Copyright Act which was held to exceed its legislative powers, and was on that ground disallowed. In 1890, it passed a similar Act more limited in its terms, giving Newfoundland copyright for 28 years, to a.i author domiciled in Newfoundland, on condition that his book is printed or published in New- foundland. This Act was referred to the law othcers for their opinion, and they repoited on 4th March, 1891, that they had examined the Act, and being of opinion that its provisions ought t .» be construed as relating to works first published in Newfoundland they thought Her Majesty's assent need not be withheld, but that the Act might be permitted to come into operation. They suggested, however, that it should be pointed out to the Newfoundland authorities that if sec. 5 (which contained the printing condi- tion) should be judicially interpreted to include works other than those first printed and published in Newfoundland the Act would be inconsistent with the Imperi d statutes, and further legislation would be necessary. 43. On 14th July, 1890, Sir John Thompson, being then in London, wrote a long letter to Lord Knutsford, in which he recapitulated the history of copyright legislation with respect to Canada, and the arguments in support of the Canadian proposils, expressed little hope of any satisfactory copyright arrangement being made with the United States, and concluded by asking that a final decision on the case of Canac' % should no longer be postponed to await the action of the United States. In connection with this point he urged — " (1.) That the present policy of making Canada a market for American reprints, and closing the Canadian press for the benefit of the American press in regard to British copyright works, has a direct tendency to induce the United States to refuse any inter- national arrangement ; " (2.) That, inasmuch as the existing Canadian copyright law affords protection to the copyright holder in every country wliich may make a treaty with Great Britain, it cannot it sugfjested, as it once was, that self-government in Canada on this subject would in the least impede negotiations with the United States for an international arrangement." 44. In March, 1891, the legislature of the United States passed an Act which gave American copyright in a book, to an author being a citizen or subject a foreign state or nation on condition that two printed copies of the book, printed from type set within the limits of the United States must be delivered or deposited in accordance with the requirements of the Act on or before the publication of the book. Section 13 provides that the Act is only to apply to a citizen or subject of a foreign state or nation — (a.) If such foreign state or natioi. \'rmits to citizens of the United States of America the benefit of copyright .>. substantially the same basis as to its own citizens ; or (6.) When such foreign state or nation is party to an international agreement which provides for reciprocity in the granting of copyright, by the terms of which agreement the United Statea may, at its oleasure, become a party to the agree- ment. ■:0 " P^^^. APPENDIX A. 1291 •ed on the lorize that coiit'errinii bhhold her •d Stanli'V ret that he ; the Cana- law officers pect to the jection was one month ler coloniiil liar lines to o exceed its similar Act a, I author [led in New- ley reported lioii that its jwfoundland Lct might be d be pointed inting condi- t printed and rill statutes, wrote a long ht legislation in proposals, nade with the ::;anadi should nnection with ican reprints, ;ard to British 'use any inter- s protection to eat Britain, it n this subject 1 international ' !S,ct which gave "oreign state or type set within dance with the ion 13 provides nation — Fnited States ot ds as to its own .greement which terms of which rty to the agree- The exiHtence of either of these conditions was to be determined by the President of the United States, by a proclamation issued from time to time as the purposes of the Act might require. The Act was to come into force on the 1st of July, 1892. 45. In reply to an in(|uiry from the United States minister, Mr. Lincoln, the Marquess of Salisbury on 16th June, 1891, wrote as follows : — " Her Majesty's government are advised that, under existing English law, an alien by tirst publication in any part of Her Majesty's dominions can obtain the benefit of English copyright, and that contemporaneous publication in a foreign country does not prevent the author from obtaining English copyright ; " That residence in .some part of Her Majesty's dominions is not a necessary condition to an alien obtaining copyright under the English copyright law ; and " That the law of copyright in force in all British possessions permits to citizens of the United Stales of America, the benefit of copyright on sustantially the same basis as to British subjects." 46. On the Ist July, 1891, the President of the United States proclaimed that the first of the conditions specified in sec. 13 of the Act of Congress was fulfilled in respect to the citizens or subjects of (amongst other countries) Great Britain. 47. Accordingly, by virtue of the American Copyright Act, and of the President's proclamation, which, however, is revocable, the author of a book first publishfd in any part of the Queen's dominif)ns, say at London or Quebec, and printed in the United States, has, on compliance with the requirements of the Act as to delivery or deposit,, copyright in the United States for the term recognized by the law of the United States 48. On 19th, December 1891, Mr. Blain'i wrote to Sir Julian Pauncefote stating that the government of the Dominion of Canada refuses to admit citizens of the United States to the privilege of registration of copyright in Canada on their complying with the conditions of printing and publishing in Canada, under the assurance given by Her Majesty s government, and under the proclamation of the President, the ground of refusal appearing from the letter of tlie registrar of the department of Agriculture at Ottawa to be that the United States' Act and the President's proclamation do not constitute an international copyright treaty, and that therefore citizens of the United States cannot register under the Canadian Act. Mr. Blaine asks for '-an explanation of this important discrepancy between the assurances given by Her Majesty's government and the course of the Dominion government in the matter of the copyright privilege of cibizens of the United States. The declaration of Lord Salisbury," lie ob.serves, and its acceptance by the United States government constituted an international arrange- ment which this government desires to observe and maintain in its entirety, and I should much regret if any untoward circumstance should constrain its abandonment or essential qualification." 49. We are now in a position to consider how far the Canadian Act of 1889 is consistent— (a.) With the Berne Convention ; (6.) With the arrangement with the United States ; and ((!.) With Imperial legislation; and how far the grievances which it proposes to meet are substantial, and the proposals which it embodies are sati factorily on their merits. 50. Sir John Thompson admits, as has been seen, that the Canadian Act is inconsistent with the Berne Convention, and that, consequently, a necessary condition precedent of its obtaining the force of law, is the withdrawal of Canada from that convention. Under sec. 9 of the Act of 1886, the Queen has power, by Order in Council, to declare that the Act of 1886, and the Order of 1887, shall cease to apply to any British possession. The Queen can, therefore, on the application of Canada, make an Order, directin':? that the Act of 1886, and the Order of 18f;7 shall cease to apply to Canada. But the Act and Order stand or fall together, and if Canada excepts herself from the Act, she must except l;erself from the Order also, and vice versa. If, therefore, such an excepting Order is made for Canada, the effiect will be as follows : — Mi 1292 COPVKKllIT KEfJIHI.ATION The iiutlior of a book first piibliHhed in London will still, by virtue of the Imperial Acts before lcS86, have copyright in Canada. I5ut the author of a book first pui)lishe(l in Canada will cease to have copyriffht in the United Kingdom or in Australia, or in any country belonging to the Copyright I ■ nion. And the author of a book first published in Australia, or in any other llritish possession except Canada, or in France, or in any other foreign country belonging to the Copyright Union, will cease to have copyright in Canada. If Canada presses for withdrawal from the Berne Convention, her request cannot well bo refused. But her withdrawal would be a matter for much regret, since it woulii strike a serious blow at the policy of impeiial and international copyright embodied in the legislation of 1886. It would lie a retrogade measure which would conunit Canada to a policy of isolation, and of antagonism to the community of civilized states who have become parties to the Treaty of Bern(>. Deprivation of Canadian copyrigl t might be seriously detrimental to the interest of Australian authors, say, ft,.' instance, of a Melbourne novelist whose works are likely to obtain extensive circulation in Canada. If, however, the interests of publishers or printers were allowed to prevai' over those of authers, the lead given by Camida would not improbably be followed by other colonies, and thus the whole system of Imperial copyright would be broken up. As has been seen, even if Canada were to denounce the Berne Convention, a year must e apse before any Canadian legislation inconsistent with the convention could take effect. 51. The grounds of the Canadian contention that United States authors and publishers are not entitled to the benefit of the Canadian copyright under the Canadian Act of 1875, are not fully before us, but the contention seems to be technically correct. Moreover the inconsistency between the Canadian action and the assurance given by Her Maje-ty's government to the President of the United States, is perhaps more apparent than real, for refusal to register under the Canadian Act apparently does not deprive a book first published in any part of Her Majesty's dominions (including Canada) of the copyright to which it is entitled in Canada as well as in the United Kingdom under the Imperial Acts of 1842 and 1886. Under the Act of 1842 a book first published in the United Kingdom, has copyright in Canada, and Canadian legislation is not needed to give, and cannot take away, that copyright. But under that Act a book first published in Canada had no copyright, and colonial legislation wa-i required to give such copyright. Consequently for the protection of such books the Canadian Copyright Act was necessary, though it couUl not operate beyond the limits of the colony. But since the passing of the Act of 1886, which gives copyright to books first published in any part of the Queen's dominions, a Canadian Copyright Act is no longer neces- sary, and the only effect of the Canadian Act of 1875 appears to be to prevent the importation of unauthorized reprints under the Foreign Reprints Act*. The Canadian Act of 1875 is so worded as to give rise to misconception on this point, and the Act of 1889, if confirmed by Her Majesty's government after the assurance given to the goN ernment of the United States in 1891, would give rise to similar misconception and misunderstanding. Of course, if Canada were to withdraw from the operation of the Act of 1886, and still more it she were allowed to withdraw from the operation of the Act of 1842, there would be not merely a formal but a substantial inconsistency between her legislation and Lord Salisbury's declaration. 52. The Canadian Act of 1889 is, as has been seen, inconsistent with Imperial legislation, apart from the effect of the Imperial Act of 1880, and therefore could not obtain the force of law without an Imperial confirming Act. 53. To the passing of an Imperial Act confirming the Canadian Act, in its present form, there are obvious objections. It would involve abandonment of the policy of international and Imperial copyright, which Her Majesty's government adopted, and to which Canacla assented only six years ago. Acts the i COlllc such the Af amiiiL * If registration ih required before proceedings can be taken for infringement of this right, and if the Canadian Act does not provide for regiatrntion by a United States author he can entitle himself to t!ie remedy by registering at Stationers' Hall in London (see 49 & 50 Vic. c, 33, s. 8). APPENDIX A. 1293 I III pel ial Ti;{ht in t r»ion. )ssessi()ii jpy right it cannot it would jodied in ; Caniidii ivho hiivf e interest are likely ilishcrs oi' ida would ■ Imperial year must ake etVect. thors and Canadian ly correct, nee given •haps more y does not ig Canada) I Kingdom book fii'st ^islation is Act a book red to give Copyright lony. But iblished in nger neces- ;o prevent A-ct*. The point, and ance given ^conception jperation of peration of consistency th Imperial •e could not its present al copyright, nly six years ^'ht, and if thi> himself to the It would 1)0 at least open to the charge of being iiKionsislent v itli the derlaration as to th« law of the Tnited Kingdom and the Itritish possessions, which was iiiaiie to tlio United States last year, and on tho faith of which the United States ('dmitted Itritish authors to the benefit of their copyright law. It would be inconsistent with the policy of making copyright independent of tlie place of printing, which Her Majesty's Govornment havo for nuiny years been urging the I'nited States to adopt. It would impair the rights in Canada, of British authors, by whom the Canadian market is principally sujjplied. Ort the.se gnjunds, amongst others, a bill for such an Act, if introduced into the British parliament, would, we apprehend, be vehemently opposed, and would have very little chance of becopiini; law. 54. The Canadian case may bo looked at from the point of view of the Canadian reader, of the Canadian author, and of the Canadian publisher anfl printer. It is doubtful whether the Canadian reader has uniler existing circumstances any ground of complaint at all. Under the operation of the b'oreign Reprints Act he is abundantly supplied with cheap reprints, and it cannot matter to him, as a reader, whether these reprints are produced in Canada or in the United States. It is thoBriti.sh iiuthor and publisher who have to complain of the Foreign liepiints Act, and tho reality of their grievances was admitted by the Copyright Commission of 1870. The Canadian author may perhaps be treated as belonging rather to the future than to tho present. But nothing can be more detrimental to his interests than legislation which, like the Canadian Act of 1888, would isolate Canada from civilized communities which have adopted the principles of the Berne Convention, and would deprive their authors of copyright in every country outside their own borders. The present demand for legislation on the lines of the Canadian Act of 1889 appears to come, not from the Canadian reader or authoi", but from the Canadian pub- lisher and printer, who feel severely the competition of their rivals over the United States border, and wish to protect themselves by excluding their rivals' wares. The arguments in their behalf are to be found in Sir John Thomi)son's report of 188G and letter of 1890. It may be doubted whether there is any foundation for his suggestion that the grievances of the Canadian publishers have been augmented by the Berne Convention. Before that Convention, countries like France, which had copyright treaties with the United Kingdom, were entitled, under those treaties and the International Copyright Acts, to copyright in Canada. Nor does it appear that the efl'ect of the recent American Act will be to increase the inducement to American publishers to reprint British books. Before the Act they eniild reprint any such Ixiok freely ; since the Act they must make arrangements with such authors as take advantage of the provisions of United States legislation. What the Act really does, is to increase the inducements to British authors to enter into such arrangements. And the real grievance of the Canadian publishers is that they are undersold by competitors, who have the advantage of larger capital and a larger market, and in whose favour protective legislation is enforced against their weaker rivals. The restrictive conditions attached to United States copyright by United States legislation, make the demand for the imposition of corresponding restrictions on Cana- •lian copyright, and the grant of countervailing facilities for Canadian reprints at least intelligible. It must, however, be remembered that there is the same difficulty here as in other lases, in reconciling the rival policies of cheapening wares to the consumer and proiecting the [iroducer. What the Canadian reader wants is to get cheap books wherever printed. "hat the Canadian publisher and printer want is to keep out books, cheap or otherwise, not printed or published at their own establishments. The legislation for which they ask couid hardly lower, and might possible raise, the price of books to the Canadian reader. The simplest and most effectual mode of lowering the price of Canadian books would be to remove or reduce the Canadian import duty of 15 per cent on books. 1294 COPYRir.lIT MCniSLATION !)!}. Is it not, liowever, possiblo to (lovi.so somo form of legislation wliich would nii'ot (.'Hnudiuii grievances, without running counter to tlio jH>licy atiiruied in 1886, av imperilling the arrangement with the United States ( Aihnitting, as we nnist, that the present state of the Canadian law is unsatisfactory, and that iler .Majesty's government may fairly bo asked to consider whether any means can b(> found for meeting the Canadian demands, the course wliich seems o[)en to the least objt^ction would be that which would follow most closely the lines indicatetl by the report of the Copyright Commission. St). It might be conceded that on proof of a liook first published in the United Kingdom, and by reason of such publication having copyright in Canada, not being produced within a reasonable time either in the United Kingdom or in Canada, at sucli a price as to meet the Canadian demand, there should l)e jiower to grant a license for its publication in Canada on the terms of paying a royalty to the copyright owner. I'ut this power should be checked by more efiective safeguards than are provided by the Canadian Act of 1881), and should be made subject to tlm conditions corresponding as closely as practicable to the sugestions of the Copyright Commission. Twelve months might be allowed as a reasonable time for cheap reproduction, and during that time the Imperial copyright should remain unimpaired. The amount of the royalty might perhaps be 15 jier cent, so as to correspond with the amount of the existing import duty on books. The royalty might be levied by means of a stamp on each copy, and if unstamped books are oli'ered for sale they should be liable to .seizure. These provisions should be embodied in the Act itself, and not in regulations made under it. Provisions to this effect would recjuire Imperial legislation to confirm them. They would be open to objection from the piint of view of the copyright owner. They would possibly be inconsistent with the views of t\w signatories of the Berne Convention as to the rights which copyright should involve. But they would apparently not be in conflict with the terms of the convention itself, for the convention merely stipulates that foreign copyright owners are to be entitled to the same rights and privileges as Jiritish copyright owners, and, if l1i3 rights of British coj)yright owners are cut down by such licenses, foreign copyright owners are not entitled to complain of their rights being cut down to a similar extent. Nor would they conflict with tlie arrangement with the United States. 57. It is suggested that such Canadian legislation as is required should be confined to books. Copyright in musical, dramatic, and artistic works raises other and very dithcult questions. 58. If any further legislation is required for the benefit of Canadian publishers and printers, perhaps Canadian statesmen may suggest it. iSeveral suggestions made to us are open to objection on the ground of conflicting either with the treaty of Berne or with the declaration made to the United States. But possibly something might be done by an amendment of the Canadian Customs Acts following the lines of section 42 of the Customs Law Consolidation Act, 1876 (39 ife 40 Vict., c. 36.) The policy of that sec- tion has been much criticised and is open to serious objection, but so long as it is main- tained in the United Kingdom, it is a ground for defending an enactment of similar . principle in a colony. 59. If Canada is allowed to grant licenses for the reprinting of British copyright books, either the Foreign Reprints Act should cease to apply to Canada, or at least she ought, in accordance with the recommendations of the Copyright Commission, to make better provision by law for securing to the owners of copyright works, the payment of the duty upon such foreign reprints as would be still admitted into the colony, and there should be power, in the event of such provision not being made, to revoke the existing Orders in Council under which foreign reprints are so admitted. We have the honour to be, sir. Your obedient servants, ' BALFOUR OF BURLEIGH, H. G. BERNE, JOHN BRAMSTON, 20th May, 1892. C. P. ILBERT. L IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I I4S 112.0 1.8 1.25 1.4 1.6 ^ 6" ► «' ♦v^ 0j>. Hiotographic Sciences Corporation 4 ,\ ,v t s? \\ ^^ 6^ 33 WLST MAIN STREET WEBSTER, N.Y. 14580 (716) C 72-4503 CIHM/ICMH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadian Institute for Historical Microreproductions / Institut Canadian de microreproductions historiques APPENDIX A. 1295 APPENDIX A. Extract from Draft Bill accompanying Circular Letter of 1S73. " 7. Where it appears to Her Majesty in Council that in any British possession effectual and reasonable provision has been made by an Act of such British possession for all the following objects, namely, — " (a.) For the registration and protection in such British possession, of books first published out of such British possession, and entitled to copyright therein ; " (b.) For collecting and remitting the percentage payable under this Act upon reprints of such books sold in pursuance of a license under this Act in such British possession ; "(c.) For making to one of Her Majesty's principal Secretaries of State, to be laid before parliament, returns of the numbers and prices of reprints of the said books sold in such British possession, and such other particulars with respect to those reprints as the Secretary of State may require ; " {(l.) For preventing the importation into such British possession of foreign reprints except according to this Act ; "(e.) For imposing, collecting, and remitting a reasonable percent;ige upon all foreign reprints imported into such British possession according to this Act ; "(./•) For the periods directed by this section to be provided by an Act of the British possession, and the otherwise carrying into effect of this section ; and " ((/.) For any other objects for which, in the opinion of Her Majesty in Council, provision ought for the purposes of this Act to be made ; " Her Majesty may, bv Order in Council, direct that, from and after the day of the date of the Order, or such later day as may be specified in the Order (which day is in this Act referred to as the commencement of the Order), this section shad apply to such British possession, and thereupon, so long as the said Order remains in force, the following provisions of this section shall apply in such British possession to every book first published out of such British possession after the commencement of the Order and entitled to copyright therein, (that is to say) :-- " (1.) If within such reasonable period after the first publication of the book as may be provided by the said Act of the Biitish possession the book is not published in such British possession in such number and manner as are suitable for general circulation therein, any person may apply to such court in the British possession as may be fixed by the last-mentioned Act, for a license to publish such book, and the court may, if it seems just, grant such license, subject to the provisions of this Act, upon such terms and subject to such conrlitions as the court thinks just ; "(2.) The application shall be made, and the proceedings upon such application shall be conducted, in such a manner as may be from time to time directed by the law of such British possession, or, if there is no such law, as the court by general orders or rules from time to time directs ; " (3.) An appeal to Her Majesty in Council shall be from any order made by the court in pursuance of this section ; "(4.) p]very such appeal shall be referred to the Judicial Committee of the Privy Council, and shall be dealt with by them as other appeals from courts in such British possession ; "(5.) An order granting a license shall not be suspended by such appeal, but the person in wliose favour the order is made shall be liable to account for profits, or to pay damages as may be directed by Her Majesty in Council when the appeal is decided ; " (().) After the expiration of such reasonable period, not being less than six months, from the first publication of the book, as may be provided by the said Act of the British possession, if the book is not then published in such British possession in such number and manner as are suitable for general circulation therein, any person may, notwith- standing anything in this Act, import into such British possession foreign reprints of ^i.y?Tf,; 1296 COPYRIGHT LEGISLATION such book, subject to the provisions of this Act .md of the said Act of the British possession. " Where the last-mentioned Act is altered by any subsequent Act of the said British possession the Order in Council shull not be affected by such alteration, unless it seem tit to Her M.ajesty in Council to revoke or alter such order." APPENDIX B. Extracts from Report of Copyright Commission. 206. We recommend that the difficulty of securing a supply of English literature at cheap prices for colonial readers be met in two ways : 1st, By the introduction of a licensing system in the colonies ; and, 2nd, By continuing, though with alterations, the provisions of the Foreign Reprints Act. 207. In proposing the introduction of the licensing system it is not intended to in- interfere with the power now possessed by the colonial legislatures of dealing with the subject of copyright, so far as their own colonies are concerned. We recommend that in case the owner of a copyright work should rot avail himself of the provisions of the copyright law (if any) in a colony, and in case no adequate provision be made by republication in the colony or otherwise within a reasonable time after publication else- where for a supply of the work sufficient for general sale or circulation in the colony, a license may, upon an application, be granted to republish the woi'k in the colony, subject to a royalty in favour of the copyright owner of not los than a specified sum per cent on the retail price, as may be settled by any local law. Effective provision for the due collection and transmission to the copyright owner of such royalty should l)e made by such law. _ ' 208. We do not feel that we can be more definite in our reconunendation than this, nor indeed do we think that the details of such a law could be settled by the Imperial IIV- legislature. We should prefer to leave the settlement of such details to special legis- lation in each colony. 209. With regard to the continuance of the Foreign Reprints Act, we have already stated that strong efforts have been made to procure its repeal. In March, 1870, at a meeting of the leading authors and publishers, over which the late Earl Stanhope presidfd, the following re.solution was passed; "That a representation be made to the right honourable the first Loi'd of the Treasury, pointing out the great hardships sustained by British authors and publishers from the operation of the Imperial Copyright Act of i, 1847, and stating the earnest desire they feel that Her Majesty's government may ;;. deem it right to propose its prompt repeal." , 210. We are fully sensible of the weight that must attach to the opinions of persons so qualified to form a judgment on this matter, but upon careful considei'ation of the subject and of the peculiar position of many of your Majesty's colonies, and upon this ,; point we would refer to the answers returned by the colonies to Lord Kiinberley's j circular despatch of the 29th July, 1873, we are not prepared to recommend the simple repeal of the Act of 1847, and the consequent determination of the power now vested in your Majesty, of allowing the introduction of foreign reprints into colonies which have ; made due provision for securing the rights of British authors. ; 211. We believe that although the system of republication under a license may be well adapted to some of the larger colonies which have printing and publishing firms of ;; their own and which could reprint and republish for themselves with every prospect of fair remuneration, it would be practically inapplicable in the case of many of the smaller J colonies. These latter now depend almost wholly on foreign reprints, for a supply of K literature ; and to sweep away the Foreign Reprints Act without establishing some ' other system of supply would be to deprive them in a great measure of English books. I 212. But we are of opinion that it has been proved necessary to amend the existing f, law, for the purpose of more effectually protecting the pghts of owners of copyright. m APPENDIX A. 1297 whilst affording to colonial readers the means of making themselves acquainted with the literature of the day. 213. As the provisions hitherto made in the different colonies to which Orders in Council have been applied, have failed to secure remuneration to proprietors of copyright, we recommend that power should ho given to your Majesty to repeal the existing Onler.s in Council and that no future Order in Council should be made under that Act until sufficient provision has been made by local law for bettei- securing the payment of the duty upon foreign reprints to the owners of copyright works. 214. Probably it would be desirable to grant a certain period totlie colonies, for the purpose of enabling them to projiose further and better provisions, before such I'evocation actually takes place. Tn that case, however, it should be clearly understood that your Majesty is in no way pledged, by the gr.mt of such delay, to i-sue any fresh Order in Council ; and power should be given ^o your Majesty in Council to revoke, at any time, any future Order in Council, should the provisions of the Colonial law prove practically insufficient. 215. It. is perhaps hardly within the scope of this commission to suggest what pro- visions your Majesty should be advised to consider sufficient, within the meaning of the Act, to secure the rights of the propi-'etors of copyright. 13ut it appears to 'us that possibly some ari-angement might be effected by which all foreign reprints should be sent to certain specified places in the colony, and should be there stamped with date of admission upon payment of the duty, which could then be transmitted here to the Treasury or Board of Trade for the author. All copies of foreign reprints not so stamped should be liable to seizure, and it is worthy of consideration whether some penalty might not also be affixed to the dealing with unstamped copies. 216. And having regaid to the power which we have contemplated for authors to obtain colonial copyright by republication in the colonies and to the licensing .system which we have suggested, we recommend that wtiere an Order in Council for the admission of foreign reprints has" been made, such reprints should not, unless with the consent of the owner of the copyright, be imported into the colony ; — 1. Where the owner has availed him.self of the local copyright law, if an)' ; 2. Where an adequate provision, as pointed out in paragraph 207, has been made ; or 3. After there has been a repubhcation under the licensing system. lave ting gilt, His Excellency the Governor General to th • Manptess of Ripen. Government House, Ottawa, 10th February, 1894. My Lord, — My ministers have had under consideration your lorship's despatch of the 30th June, 1892, transmitting the report of the committee appointed to consider the petition of the Canadian parliament praying that it might be granted wider powers of legislation as regards copyright, and that notice migfit be given of the withdrawal of Canada from the Berne Copyriglh Convention, and the approved minute of council of which I have the honour to inclose a copy, received by me to-day, contains an expres- sion of their views upon this de.spatch. Your lordship will observe that ministers consider that nothing contained in the report is likely to change their opinion as to the propriety of notice being given with the least possible delaj', of the withdrawal of Canada from the Berne Convention, and further press their request that such notice be given. With regard, however, to the question of the enactment of Imperial legislation to give greater freedom to the Canadian parliament in dealing with questions of copyright, a further report is promised by the government. I have, (fee, ABERDEEN. rrs: """SS??""' 1298 COPYRIGHT LEGISLATION Report of a Cotnmitfi'e of the Houaurahle the Priiry Council, approved bi/ His Excellency the Governor General in. Council, on. the 23rd January, IHOJ^. The committee of the Privy Council have had under consideration, a despatch, hereto attached, dated 30th June, 1892, from the right honourable the Principal .Secretary of State for the Colonies, relating to the address to Her Majesty from the Senate and Commons of Canada praying for Imperial legislation which should explicitly confer upon the parliament of Canada the power to legislate on all matters relating to copyright, without regard to statutes in force when the parliament of Canada was established ; and praying further that notice might be given of the withdrawal of Canada from the Berne Copyright Convention. The Minister of Justice, to whom the matter was referred, observes that the despatch now under consideration states that the petition was ordered by Her Majesty to be taken into consideration by those of Her Majesty's ministers whose departments were more immediately concerned in the subject, and that a committee had been appointed, of leading officials of the Department of Foreign Affairs, of the Department of the Colo- nial Office, and of the Board of Trade, to consider, with the assistance of one of the parliamentary counsel, the whole question of Canadian Copyright and to report thereon. The minister also observes that the despatch further stated that, in the view of Her Majesty's government, it appeared t,o be desirable, before any action should be taken upon this report, that an opportunity should be given to the Dominion of Canada once more to consider the whole subject in the light thrown upon it by the researches of the Committee, and the report was transmitted to his Excellency along with the despatch. The minister further observes that, having carefully perused the report of the committee referred to, he is opinion that nothing contained therein is likely to change the opinion of your Excellency's advisers as to the propriety of the request which they have pressed on sevei'al occasions, and which the parliament of Canada has, on more than one occasion, unanimously endorsed, namely, the request that, notice should be given, with the least possible delay, of the withdrawal of Canada from the Berne Con- vention. The minister deems it unnecessary to remind your Excellency that Canada has been repeatedly assured that her continuance in any treaty arrangement of this kind would be subject to her desire to withdraw at any time on giving the prescribed notice, and, now that the policy of Canada has been so firmly established and repeatedly pressed u])on Her Majesty's government, bctli by parliament and by your Excellency's advisers, he (the minister) recommends that your Excellency be requested to move Her Majesty's Secretary of State for the Colonies to cause such notice to be given without further delay. The minister states that he will respectfully submit some observations upon the report of the committee before referred to on the other subject embodied in the address of the Canadian parliament to Her Majesty, namely, the adoption of legislation in the parliament of the United Kingdom giving greater freedom to the parliament of (;!anada in dealing with the subject of copyright, but he submits that, in the meantime, the notice of withdrawal from the Berne Convention should in any case be given. The committee advise that your Excellency be moved to forward a certified copy of this minute, if approved to the Right Honourable the Principal Secretary of State for the Colonies. All of which is respectfully submitted for your Excellency's approval. JOHN J. McGEE, Clerk of the Privy Council, ""fir APPENDIX A. 1299 Ilia Excellency the Governor General to the Marquess of Ripon. Government House, Ottawa, 20th February, 1894. My Lord, With reference to previous correspondence relative to the question of copyright in Canada, I have the honour to forward heresvith copy of an approved Minute of the Privy Council, which I have this day received, submitting a report by the Minister of Justice in which he recap'tulates the liistory of the question and again urges that steps be taken by Her Majesty's government to remove tiie restrictions which prevent the Canadian parliament dealing freely with matters relating to copyright. I have, &c., ABERDEEN. Report of a Committee of the Honourable the Privy Council approved by His Excellency Ihn Governor Gmeral in Council, on the 7th February, 1804- The committee of the Privy Council have had under consideration the annexed report of the Minister of Ju.stice, relating to copyright in Canachi. The committee, concurring therein, advise that your Excellency be moved to for- ward a certified copy of this minute, if approved, and the appended report and annex to the Right Honourable the Principal Secretary of State for the Colonies. All of which is respectfully submitted for your Excellency's, approval. JOHN J. McGEE, Clerk of the Privy Council. To His Excellency the Governor General in Council : 1. The undersigned, having had under consideration a despatch from Lord K nuts- ford to your Excellency's predecessor, dated 30th June, 1892, in reply to a despatch of his Excellency Lord Stanley of Preston, of the 19th October, 1891, in which his Excel- lency transmitted an address to Her ^lajesty from the Senate and Commons of Canada, praying for Imperial legislation which should explicitly confer upon the parliament of Canada the power to legislate on all matters relating to copyright in Canada without regard to statutes in force when the parliament of Canada was estal)lished, etc., etc., has the lionour to submit the following observations upon the report which accompanied the despatch of Lord Knutsford, and which had been mad<3 by departmental represen- tatives of the Colonial OfiSce, Foreign Office, J5oard of Trade and Parliamentary Coun- sel's Office, to the Right Honourable Sir Michael Hicks Beach on tlie subject of Cana- dian copyriglit. 2. It is no doubt, true, as stated in the third paragraph of the report of tlie com- mittee, that from the point of view of Briti.sh authors and publishers, the Imperial statute of 1842 was satisfactory to those authors and pubHshers ; because it gave the British author and publisiier a monopoly, by copyright, extending over t!ie Sovereign's dominions, for 42 years from the first publication, or sever, years from the author's death. It may be regarded, indeed, as a continuance, for their benefit, of the system which was based on the idea that the colonies were to be preserved only for the benefit of the producers in the British Islands, and that the inhabitanDS of those colonies had no rights of self-government or otherwise, which were inconsistent with the interests of BritiL^h producers. 3. The colonial publisher and the colonial reader, liowever, had every reason to be dissatisfied with the enactment of 1842, and it is not to be wondered at that their representatives made very emphatic protests. Those protests are enumerated and referred to in the letter of the undersianed to Lord Knutsford, dated 14th July 1890, which forms an appendix to this report. 1300 COPYRIfillT LEOlSr.ATION 4. The i)rotests and the a^'itatioii for redress contiiiued until 1840, when Mr. Glad- stone gave warning to the publishing trade in England that they must be induced " to modify any (-xclusive view whit-h might still prevail in regard to this important subject ; " and shortly afterwards a report was made from the Colonial Office to the lioard of Trade intimating tho decision of the Secretary of State for the Colonies, Eat 1 Giey, that after the repeated remonstrances which liad been received from the North American colonies on the subject of the circulation there of literary works of the United Kingdom, he proposed to leave to colonial legislatures the duty and responsibility of enacting laws which they should deem proper for securing the rights of authors and the interests of the public." 5. Earl Grey requested that the Board of Trade thould be moved to take " such measures as might be expedient for submitting to parliament, at the ensuing session, a bill authorizing the Queen to extend the royal sanction to any colonial law or ordinance which might lie passed respecting copyright, notwithstanding the repugnancy of any such law or ordinance to the copyright law of the United Kingdom." G. The circular of Earl (rrey to the Governors of the North American colonies, which followed, dated November, 1846, announced that this was settled as the policy of Her Majesty's government, and the Governors were informed that a measure to carry oui: that suggestion would be introduced at tho ensuing session. The full text of this circular will be found in the appendix, and it is remarkable that the assurance thus given, of the policy of Her Majesty's government towards the North American colonies, remains unfulfilled to this day, in consequence, it must be assumed, of the influence which two classes — the authors and the publishers in the United Kingdom — were and have been able to exercise with regard to the legislation which had been promised, in relation to a matter so important to Her Majesty's colonies. 7. In paragraph 6 of the report, the committee thus refer to the pledge given by Her Majesty's government to the colonies : " It was, however, eventually determined not to legislate in accordance with the terms of Lord Grey's despatch, but, instead, to pass the Imperial Act which bears the short title of the 'Colonial Copyright Act of 1847 ' but is commonly known as 'The Foreign Reprints Act.'" 8. It might be supposed, from this mode of stating the case, that the " determi- nation not to legislate in accordance with the terms of Lord Grey's despatch " was a determination arrived at aS', the result of an understanding with the colonies, that this, measure should be accf'pted as a substitute for the concession which Lord Grey hal((n>,'inj,' rather to tlio future than to the preHcnt." Without accepting tliis estimate as (juite accurate it may at least be said tiiat the Canadian parliament may be trusted to care for the interests of Caniulian authors. TIk? Jieruo Convention had in view consideratiotis of society which are widely different from those j)revailing in Canada. Fn Europe th«,' roadinj? population in the various countrie.s is comparatively dense; in Canada a population considerably less than that of London is dispersed over an area nearly as larf(e as that of Europe. In the cities of Europe, especially in Great Brita'.i, the reading public is largely supplied from the libraries, while, in Canada, as a gene al rule, he who reails must buy. In European countries the reading class forms but a fraction of the whole lopulation, while in Canada it comprises nearly th(! whole population. 32. If reasons against the continuance of Canada in the convention were called for, many would suggest themselves, but the undersigned does not understand that your Excellency's government is called upon to give those reasons or to present an argument to justify the determination of Canada to withdraw from the convention. 33. No enactment in Canada to give efi'ect to the Heme Convention has ever been passed, although some enactment would be necessary in order to make the system opera- tive and effectual here. 34. As regards what is called the " arrangement " made between Her Maje.sty's gov- ernment and the United States, some observations seem specially called for, in view of the position taken by the committ'^e whose report is being considered. In March, 1891, Congress passed the present copyright law. That law gives copyright in the United States to any author, whether a citizen of the United States or a subject of a foreign state, on condition that two printed copies of the book, printed from type set within the limits of the United States, be deposited (in accordance with regulations prescribed), on or before the publication of the book. It is necessary, however, in the case of the subject of a foreign state, to show that his state permits citizens of the United States to have the benefit of copyright on the same terms as her own citizens. That require- ment, of course, is easy of fulfilment in the case of Great Britain, for the Copyright Act of 1842 permitted foreigners to obtain copyright, running not only in the United Kingdom but throughout Her Majesty's dominions, on mere publication in Great Britain, without any condition as to the type being set w ,hin the Queen's dominions. 35. It seems, from tlie Committee's report, ^ be considered that Lord Salisbury, on the 15th June, 1891, made an agreement with the United States which is an obstacle ill the way of the Canadian request for improved copyright legislation being granted. If such could be supposed to be U\e case the contention of Canada in this respect would present a far more serious ground of complaint than has been yet stated. The conten- tion would be, that after promises of redress hfid for many years remained unfulfilled and at last fulfilment postponed on the explanation that such redress would be considered in negotiations for an international arrangement with United States, Canada would now have to be informed that her request cannot be entertained or considered any longer, because the international arrangement with the United States precludes any considera- tion of her intere.«ts. 36. The undersigned submits, however, that such is not a correct statement of the facts, or a reasonable conclusion from them. Mr. Lincoln, the United States minister at London, appears to have asked information from Lord Salisbury as to the state of the copyright law in the United Kingdom. The reply of Lord Salisbury was that an alien, by first publication in any part of Her Majesty's dominions, could obtain the benefit of British copyright and that contemporaneous publication in a foreign country did not prevent the author from obtaining copyright in Great Britain, that residence in Her Majesty's dominions was not a necessary condition, and the law of copyright in force in all British possessions permits citizens of the United States of America to have the benefit of copyright on the same basis as British subjects. 37. It is submitted that in making this statement Lord Salisbury was merely stating what he believed to be the condition of the law of copyright at that time. He was not APPENDIX A. 1305 iniikinj? any treaty nor any arraii^nniont with regard to copyright, although, prohablj', tor convenience of expression the term, " arrangement with tlie United Slates " has been used in the report of committee, and also in course of these observations. The connnittoe in tiieir report seem to treat Lord Salisbury's answer (as to the condition of the existing law), as an agreement and almost as e(|uivalont to an undertakitig thn*^ th« law should n(!V(U' be changed. Otherwise it is ditticult to understat\d such expressions as are contained in paragraph 'jI : "Tlie Act of IM89 '' (meaning the Canadian Act), if confirmed by Her Majesty's government, after the assurance given to the government of the United States in IS'Jl, would give rise to misconception and misunderstanding." " Of cource if Canada were to withdi'aw from th(> operation of the Act of 188(5, and still more if she were allowed to withdraw from the Act of 1842, there would be not merely a l'')riual, but a substantial inconsistency between her legislation and Lord Salis- bury's declaration." 38. It is nut suggested that Lord Salisbury's declaration was that the law should not be changetl, but that seems to be implied, [f such is indeed to be inferred from Lord Salisbury's reply to Mr. Lincoln, it would be well to inquire hovv long his declara- tion was intended to continue in force or is to be construed as being in force? Is it possible that the Convention of Berne, which was to endure until a year after denuncia- tion, in s ) f.'.r as Canada was cont^erncd, was intended ' ■ Lord Salisbury to be nuide perpetu..' ri its a{)plication to Canada, by his miking a i tement of tlie law of the United Kingdom to Mr. Lincoln ,' 39. It seems perfectly obvious, notwithstanding the ■ oncrary view suggested by the report of the committee, that Lord Salisbury merely . forme ' Mr. Lincoln that on the Kith of June, 1891, the first condition above .set foi ■ , m the Unifod States Copyright law, was (!omplied*with by the state of British lav at thetimi*. Lurd Salisbury's object was to ' ■'• Mr. Lincoln that Great Britain permitted cit.zt i. of the United States the benefits of copyright on substantially tlie same liasis; .is to her own citizens. The ^^anadian government nnd parliament ask for no other condition of aft'airs ; and Lord Salisbury's statement to Mr. Lincoln will still be good, and thi! roa.sonable requirements of the United States government will still be satisfied if the Canadian -\<^t of 1889 be ratified, beause American holders of copyrigiit in Great Britain will be on the same footing as British copyright holders. 40. Before the so-called " arrangement with the United States " was made, in a letter which the undersigned had tlio honour to write to Lord Knutsford, on the 14th of July, 1890, it was suggested, as is quoted in paragraph 43 of the committee's report : "(1.) That the present policy of making Canada a market for American reprints, and closing the Canadian press for the benefit of the American press, in regard to British copyright works, has a direct tendency to induce the United States to refuse any international arrangement." " (2.) That inasmuch as the existing Canadian copyright law affords protection to the copyright holder in every country which may make a treaty with Great Britain, it cannot be suggested, as it once was that self-government in Canada on this subject would in the least u pede negotiations with the United Stattis for an international arrangement. 41. This prediction has been abundantly fulfilled since the passage of the United States Copyright Act. The United States publishers now insist in making their arrange- ments with British authors and publishers, on a condition that Canada be included in the territory disposed of. Furthernioro, the American purchasers of British rights refuse to Canadian publishers any arrangement for the publication of reprints in Canada. In this way the copyright holder outside of Canada not only enjoys in Canada a mono- poly which the Copyright Act of 1842 gave him, but can, and does, sell to foreigners that monopoly in Canada, and the foreign purchaser thus acquires the right, under the Statute of 1842 and the Berne Convention \ct of 186G, to lock the Canadian presses in order that his own may be kept in operation to supply Canadian readers. 42. It should be observed that by the Canadian Gooy right Act of 1889, Canada asks less than the United States has obtained. The Congress of the United States has demanded that, before a British subject can obtain copyright in the United States, his ■■a 1306 COPYRIGHT LEGISLATION book shall be printed from type set within the limits of the United States. Great Britain not only accedes to this demand, but permits a citizen of the United States to obtain copyright of his work in England, on production of his work there, printed on the type set in the United States, and thus the United States publisher at the same secures copyright in both countries for a book produced from American type. The Canadian Act would permit ' 'pe to be set in England and the plates imported, and on printing therefrom, copyright would be granted in Canada, if the printing were done within one month of the original publication elsewhere ; but failing such publication, the British copyright holder would be secure in his ten per cent royalty if the book should be republished (under license) in Canada. 43. In view of this state of affairs it ij not accurate to sr,y, as seems to be suggested in paragraph 54, section 4 of the report under review, that " the present demand for legislation on the lines of the Canadian Act of 1889, appears to come, not from the Canadian reader or author, but from the Canadian publisher and printer, who feel severely the competition of rivals in the United States, and wish to protect themselves by excluding their rivals' wares." 44. What the Canadian publishers principally complain oi', under the present state of affairs, is that they are not allowed to compete with publishers of the United States, inasmuch as the British copyright holders dispose of their rights to American publishers on condition that the latter shall have a monopoly of the Canadian market. 45. Another statement contained in the same paragraph of the report (section 6), indicates a want of information as to the facts, viz., the statement " That the effect of the recent American Act would not be to increase the inducement to American publishers to reprint British books. Before the Act they could reprint any such books freely ; since the Act they must make arrangements with such authors as take advantage of the pi 'visions uf United States legislation." The fact is that English books are eagerly sought for by United States publishers. They can afford to pay high prices in view of the fact that the market of Canada is included in their purchases. The English authors are induced also to seek purchasers in the United States, in order to obtain copyright there and to get their Looks printed from United States type, which is a condition imposed there, although not imposed in Britain on the United States author when he seeks copyright protection throughout the British Empire. 46. It is this enormous disadvantage, and not the competition of publishers in the United States, that Canada complains of and it cannot correctly be alleged that the Canadian publishers " are undersold by competitors who have the advantage of larger capital and a larger market." 47. The Committee have devoted a considerable portion of their report to a state- ment of the objections to the confirmation of the Canadian Act of 1889. The under- signed forbears, at the present time, from entering into a discussion of the legal views on which the necessity for an Imperial statute to confirm the Canadian Act depends. They have been fully set out in a report which he made in August, 1889. To the argu- ments therein stated he still adheres, but when it was made apparent, in the replv which was received to that report, that the Colonial office had adopted a different opinion and held that an Imperial statute was necessary, the attention of the Canadian government and parliament were immediately applied to the task of showing Her Majesty's government that, for every reason which could be drawn from the assurances of the past, such an enactment should be speedily given. It was this branch of the subject that the under- signed had the honour to present, in his letter of the 14th July, 1890, written at Lord Knutsford's suggestion, and it is to this branch of the case that the present observations are intended principally to be applied. 48. It is proposed, therefore, to consider the various objections which &re stated by the committee in their report. The first objection is this : " It would involve abandonment of the policy of inter- national and imperial copyright which iler Majesty's government adopted and to which Canada assented only six years ago.' 49. It is denied that the provisions of the Canadian Act would involve the abandon- ment of that policy, even in so far as Canada is concerned, because the copyright holder 1^ APPENDIX A. 1307 would still be compensated by the royalty instead of the customs duty. As regards the assent of Canada of six years ago to the Berne Convention, Canada's right to withdraw fron: the convention on a year's notice was placed on the face of the treaty and she would not have consented to enter without that condition. The right has never been questioned and a request that Her Majesty's government should give notice of Canada's withdrawal has been most distinctly and emphatically made. With a knowledge of these facts, the committee's report in paragraph 50, uses these words : " If Canada presses for withdrawal from the Berne Convention her request cannot well be refused." 50. The undersigned ventures to express the hope that no doubt will be entertained on this point. By an Order in Council, Canada, years ago, asked for the notice to be given. By an address of both houses of parliament she repeated that request in the most formal manner to Her Majesty. By a despatch of recent date your Excellency's government urged that the notice be given without any further delay ; and, in case there should be any uncertainty on the subject, it is now asserted that " Canada presses for withdrawal from the Berne Convention." 51. The next objection stated is that " It would be at least open to the charge of being inconsistent with the declaration as to the law of the United Kingdom and the British possessions which was made to the United States by Lord Salisbury, on the faith of which the United States admitted British authors to the benefit of their copyright law." This seems so fallacious as to call for no further comment than has been made upon it in an earlier portion of this report. It is impossible, in the view of the under- signed, that Lord Salisbury's statement of the law should be construed as a promise for all time, or for any time. But if, by this statement, it is intended to be inferred that the United States will hold at such high value the market of Canada, wliich they are now able to control, as to refuse copyright to British authors if that market be not con- tinued to them, the demand for redress on the part of Canada will be more emphatic than ever, because the inquiry will arise whether it is proposed to place an important commercial interest of Canada at the disposal of a privileged class in Great Britain to be bartered for privileges to that class in a foreign country. It will be necessary to con- sider at once how long the market of Canada is to be thus controlled, and whether it is to be finally settled that Canada is to be placed at a disadvantage as compared with other countri<'s in hpr neighbourhood because her people have retained connection with the Empire, which they have so long done from very different motives than those of self interest. 52. The next objection is that the confirmation of the Canadian Act "would be inconsistent with the policy of making copyright independent of the place of printing " " — a policy — which Her Majesty's government have for many years been urging the United States to adopt." 53. It is well known that the United States have never shown a disposition to adopt any such policy. It is difficult to suppose that any well-informed per.-oii entertains any expectation that they will do so. Her Majesty's government evidently had no such view when, by Lord Salisbury's "arrangement" with Mr. Lincoln, they conceded to United Stales citizens copyright privileges throughout the British Empire, without that policy being adopted on the part of the United States, but when, on the contrary, the United States emphatically refused to adopt it. After that arrangement, it is difficult to understand what reason could be suggested to Congress for abrogating a condition (printing in that countrj') which protects the labour of the United States, to the manifest disadvantage of. British labour of the same kind, and yet results in no denial to United States citizens of the privileges which British subjects have. Surely it would not now be urged that Canada should any longer have the granting of her rei[uest postponed for the imaginary reason that some better arrangement may be maile witn the United States, of which ther ^ is not the slightest probability, and which would be of very doubtful value, even if obtained, as far as Canada is concerned. 54. A further objection alleged against the Canadian Act of 1889 is that " it would impair the right in Canada, of British authors," (meaning, of course, British copyright holders), " by whom the Canadian market is principally supplied." 55. This is a statement of the most doubtful accuracy. The Canadian Act would secure to British copyright holders revenues which would be a hundred fold that now received from Canada, by reason of the collection of the stamp duties on Canadian reprints being substituted for customs collection on foreign reprints. If the British author would sell his copyri;;ht in Canada (which he rarely does now, because the purchaser in the United .States demands of him that Canada shall be thrown into the bargain) he would find the product of his copyright greatly enchanced under the Act of 1889. It is doubtful, at the present time, whether the United States purchaser pays anything additional to tiie British author in consideration of the market of Canada, l>ut, certainly, if the market of Canada were purchased by those understanding the trade of this country, the price which the author would receive for the Canadian market woulfl be greater than it now is. If the holder of copyright did not sell the Canadian matket he would receive the price from the United States purchaser plus the additional revenue collected under the license in Canada. 56. One widely-read author is known to have sold his right to a great publishing house in the United States. He refused to sell, at that time, the Canadian market to a Canadian purchaser. That condition was exacted of him by the publishing house in the United States which became his purchaser. Subsequently an arrangement was made with the author by a Canadiati publisher, by which the latter -secured the Canadian market by paying a larger sum for the Canadian right than the United States publishing house had paid for the same privilege in the United States and Canada together. 57. In any event Her Majesty's government should be asked to consider whether the rights of British copyright holders, created under the statute of 1842, are to con- tinue to be set up arf a bar to the rights of the Canadian parliament and Canadian people, after so repeated a recognition of the fact that the creation of these privileges had become a grievance in Canada, and so long after promises and assurances had been given that that grievance would be redressed. If so, it is exceedingly difficult to under- stand many of the expressions which have been continually made use of in Imperial despatches for the last iifty years. 58. The report of the committee goes on to state an opinion that " It is doubtful whether the Canadian reader has, under existing circumstances, any ground of complaint at all." That opinion the undersigned cannot concur in. Even when foreign reprints were abundantly produced, that is to say before the passage of the American copyright law, the Canadian reader was obliged to pay a tax for the benefit of the copyright holder which was collected by the customs officers in Canada. That tax was not very burden- some, Ijecause the reprints were published at a very low price and the duty was an ad valorem impost on the wholesale importation. The Canadian reader is not now in so good a position, because of the generosity of Her Majesty's government towards the United States citizens which has given the citizens of that country a monopoly of the Canadian market not only for reprints of the British works which they continually acquire the copyright of, and which the Canadian publisher cannot acquire, but for all United States publications as well. The result of this is that new books have doubled in price in Canada within the last three or four years, and there is a prospect of further advance. 59. The report of the committee goes on to say that "It is the British author and publisher who have a right to complain of the Foreign Reprints Act." On behalf of Canada it is denied that the British author and publisher have reason to complain because they are not permitted, besides locking the Canadian press, tq banish British literature from Canada by seizing it in the customs-houses, unless it shall come in the form of a British edition which could not be sold in Canada, save in very small numbers. The British author would have no right to complain of the Canadian Act of 1889, for, a-i has been shown, his position would be materially improved thereby. 60. The committee go on to state that the reality of the grievances of the British author and publisher "was admitted by the Copyright Commission of 1876." The reality of those grievances is not admitted in Canada, but if such grievances ever really existed they are less now, because the effect of the legislation of the United States is to curtail very largely the publication of foreign reprints, and they would be less still under the Ti APPENDIX A. 1309 Canadian Act of 1889, because the trade in foreign reprints would be almost, if not quite, abolished. 61. It is difficult to understand why this suggestion is made, with regard to the Foreign Reprints Act, unless it were intended as a suggestion in favour of greater res- trictions as to copyright than those existing at present, by the repeal of tlie Foreign Re- prints Act. If that were the object of the suggestion, it hardly calls for any remark, in view of the past history of this subject, and in view of tlie fact that the collection of customs duties in favour of British copyright holders is a matter of increasing inconve- nience in Canada and must eventually be abandoned, for reasons which it is not now necessary to state at large. 62. Another siy^gestion in the report under review is that " Deprivation of Cana- " dian copyright might be seriously detrimental to the interests of Australian authors, " say, for instance, of a Melbourne novelist whose works are likely to obtain extensive " circulation in Caaada." The case is not a very probable one. In the wor^s of the committee, applied to Canadian authors, it may be, " treated as belonging rather to the " future than to the present." It seems sufficient to sayj for the present, that Austra- lians are, and doulitless always will l)e, placed on the same footing as other British sub- jects in all Canadian legislation, but that, if it should become, at any time, o. (juestion what rights should be enjoyed in Canada by any class of Australians, it surely cannot be contended that that question should be decided by the parliament of the United Kingdom or by the parliament of Australia, rather than by the parliament of Canada. 63. The report under review devotes a paragraph to the interests of the Canadian author or' whom it is said that under the Canadian Act of 1889, he would be deprived ot copyright in every country outside of Canada. This would be b}' no means the case unless Imperial legislation were adopted to withdraw from Canadians not only the rights within the Empire, conceded to all British subj'-cts, but the rights conceded to the people of most foreign countries, under the Berne Convention, which seems a suggestion quite unworthy of a place in this controversy. 64. The Canadian parliament hiis not overlooked the interests of its authors or of any other class. When its speaks, as it has done on the subjet, it speaks after full con- sideration of all the interests involved, and which it is well able to weigh. 65. The report under review proceeds to discuss at some length the question wheth(>r indeed the Canadian publishers have any grievance, and whether such grievance has been enhanced by the Berne Convention. If the committee had obtained information upon this subject in Canada, where alone the facts are to be found, they could hardly have arrived at the conclusion which they state. The Canadian publisher has never had an opportunity of competing with his rivals in the United States, except in rare cases, as where a Canadian has bought copyright from United States publishers to whom the markets of Canada had been sold by the British copyright holder, and sometimes direct- ly from a British copyiight holder. 66. The effects of the Berne Convention have already been discussed, but the com- mittee could have found abundant evidence in Canada that the grievance of the Cana- dian publisher has been greatly augmented by every change in the copyright law of the United Kingdom, in recent years His condition has been made distinctly worse by the Berne Convention and the grievance has been greatly enhanced by the concessions made by Her Majesty's government to the United States, under the " arrangement " for which this government was for many years asked to wait as a measure which would give the relief desired. 67. The report suggests, as has already been remarked, that " the real grievance of " the Canadian publishers is that they are undersold by competitors who have the ad- " vantage of larger capital and a larger market and in whose favour protective legisla- " tion is enforced, against their weaker rivals." In considering this view of the case, too much stress ought not to be laid on the weakness of the Canadian publisher. The fact is that he has not been allowed to compete with his United States rival. 68. In exceptional cases, where a Canadian publisher has secured a right to his own market, it has been found that books have been p< iduced in Canada at lower rates than in the United States. Numerous instances can be cited of books which were printed in the United States and reprinted in Canada to prove that these books have been sold in Canada at a price eighty per cent below the price of tlie United States edition. The real grievance of the Canadian publisher, the Canadian type-setter and every other Canadian workman engaged in the production of books, as already stated, is that he is not allowed to compete with his United States rivals, by reason of his being a British subject and, therefore bound by the copyright legislatio.i of the United Kingdom. It is true, as stated by the committee, that the United States competitor has a larger market, because the United States publisher of books controls the market of the United States plus the market of Canada ; while the Canadian producer has not even the market of Canada, except in the rare cases before referred to, and then he can supply only Canada, being debarred from the United States markets because his book is not printed in the United States. 69. It is also true that the Canadian publisher is handicapped by the protective legislatidh of the United States, in favour of the publishing interest of that country, and especially by the i^bligation on the applicant for copyright to print from type set in the United States, while the citizens of the country imposing that condition are allowed all the advantages of British subjects, and Canadians are denied the right to impose any such conditions as to Canada. 70. The report under review again makes this statement with regard to the Cana- dian publishing interest, evidently from erroneous information : " What the Canadian " publisher and printer want is to keep out books, cheap or otherwise, not printed or " published at their own establishments." As a matter of fact, what the Canadian publisher and printer desire to do is to eupply the cheap books which the Canadian reader desires. Under the Canadian Act of 1889, a publisher could have no monopoly in republishing i pyright books, because the government would have the right to grant any number of licenses to reprint. Futhermore, the British publisher would still have the opportunity to send his books from Great Britain to Canada. 71. It must, therefore, be repeated that it is desired that the Canadian publisher, be permitted to sell in his own market ; a market which, under present conditions, is reserved for the benefit of persons outside of Canada. 7'2. The Committee has suggested that " The simplest and most effectual mertains to Dominion parliament. Provincial legislature has no power to regulate fees of pilots, as that can only bfe done by Dominion parliament. Incorporation of the company is for ob- jects beyond the power and control of provincial legislature. Act not within competence of provincial legislature, as coming within subjects meiitioned in British North America Act, section 92, subsection 10, clause A do do do Act in excess of iwwers of provincial le^slature, as by British North Am erica Act, section 91, parliament of Canada has jurisdiction resijecting trade and commerce, navigation, ship- ping. 12 Aug., 1869 Dec, 1871 4 „ 1874 25 Mar., 1875 4 Dec., 1874 30 Mar., 1887 472 476 479 488 480 558 01 0} Ch TABLKS OF ACTS. 1329 TABLE OF DISALLOWED ACTTH— Continued. NEW BRUNSWICK. «<■• 84 56 Aot. 45 Vict., 1882, cliap. 09. Title. it'atMJiiH for DiHallowancc. Diito of R«'|Hirt of „„„„ MiniMter I '^^fif^- of .Justice. An Act to incorixjrate the Hridpe uiust be conHtructed without any Frcderictoii "and St Mary's Bridgo Company. iiitorfcrfnct' of the river, and provui- cial legislature has no |)ower to author- ize tiiis interference; ^larlianient of Canada can alone authorize. 13 Feb., 1883 20 July, 1883 731 732 !r>2 }13 i38 145 ?54 130 MANITOBA. ! H i I I I 36 Vict., 1873, chap. 2. 172 476 479 488 480 Chap 32. 38 Vict., 1875, chap. 12. Chaj). 18. . . .A.ct not within coni|>etence of provincial legislature to pass, as it was incon- sistent with sections 92 and 1)0 of the Britisli North America Act. Chap. 33. Chap. 37. Chap. - (Reserved Bill.) An Act to define the ])riv- ileges, inimmiities and IKiwers of the Legislative Council and Legislative Assembly of the Province of Manitoba and to give a summary protection to persons employed in the publication of Sessional Papers. An Act to incorporate the Incorporation of boards of ;rade not lieing Winnii)eg Board of Trade for provincial objects only, but treating of tratle and commerce, is alone within competence of i)arliament of Canada. An Act to regulate proceed- ings against and by the Crown. An Act res] leoting Escheats, Fines, Penalties and For feitures. \n Act to afford facilities for the construction of a Bridge over the Assini boine River between the City of Winniijeg and St. Boniface West. An Act to amend 37 Vict., chap. 46, intituled : "The Half Breed Land Grant Protection Act." An Act respecting Land Surveyors and the Survey of Land in Manitoba.* Act is so general in terms that it might be held to apply to claims against Dominion government. In Manitoba serious consequence might issue, as bulk of lands belong to Canada and are still ungranted. Act deals with matters beyond com|)et- ence of provincial legislature. Subject of Act is on whole a matter of criminal procedure, and act deals with many matters within exclusive coinjjetence of the iiarliauient of Canada. River being navigable, any authority re- quired for bridging the Assiniltoine River, at any |)oint eiwt of Portage la Prairie, should be obtained from the Dominion government. 21 Aug., 1874 1 780 1 Sept., 1874 25 May, 187(5 706 781 7 Oct., 1876 No notice of passage of Act was given in Manitoba (iazette for 3 months as re- quired, and same was not considered in force in province. Act premature and unnecessary. Pro- 29 Jan., 1876 visions unnecessary and unjust, and would creato a monoiioly. If ivssented to, conflict of authority would be cre- ated, as Dominion Lands Act provides who shall act as surveyors of Dominion lands. *Thia Bill was reserved for the assent of His Excellency the Governor General. 5 Aug., 1876 7 Oct., 1876 799 804 804 795 1330 PROVINCIAL LEOISLATION TABLE OF DISALLOWED ACTS— Continued. MANITOBA.-Con«mi(e(/. Act. 44 Viot., chap. 37. 1881, Chap. 38.. Chap. 39., An Act to iiicoriKiratt' th Winni|)eg South- eaHtorn Railway Company. An Act to incorporate the Manitoba Tramway Co. 45 Vict., 1882, cliap. 30. 47 Vict., 1884, chap. 26. 47 Vict., 1884, chap. 68. An Act to incorixirate the Emerson & Nortli-west- ern Railway Co. An Act to Encourage the Building of Railways in Manitoba. Doubt existing an to power of a provincial leginlature to authorixe (KJUHtruction of railway extenfling lieyond limitH of the province, a8 trencliing on liritiHh Nortli America Act, Heetion 02, subsec- tion 10, clause («). Act confJicts with settled policy of Dominion as evidenced by the clause in contract with Canadian Pacific Railway No. 1.5, ratified and I confimKMl by jiarliament. Act conflicts with iwlicy of the govern- nient, ratified by parliament, to prevent diversion of traffic of North-west Ter- ritories, to railway system of United States, and to endeavour by ;il! ^neans {wssibie to secure it to Canadian rail ways. Date )f Rejxirt of Minister of Justice. Page. 4. Jan., 1882 31 Oct., 1882 do do do An Act respecting Escheats and Forfieitures and Es tates of Intestates. An Act to incorporate the P^inerson & North-west- ern Railway Co. Chap. 70, and An Act to amend an Act to amending Acts^ incoriwrate the Manitoba Central Railway Co< do do do Act is also capable of being used to contra- vene the terms in regard to Canadian Pacific Railway, uixm which the bound- aries of Manitoba were enlarged. Decision in Attorney General of Ontario vs. Mercer not applicable to Manitoba. At date of transfer of province to Can- ada, all ungranted or waste lands in province were vested in Crown and were administered by government of Canada for i)ur]X)ses of Dominion. SecUon 109 of British North America Act not ap plicable to province. Apprehension that the company will be able to divert trade from the Canadian system of railways to the railways of the United States. 31 Oct., 1882 31 Oct., 1882 25 Aug., 1885 5iilation will Canadian I'acitic Railway. Xn .\<:t, to authorize Com- I'-anies, Tnstitutions or CoriHu-ations incorporated out of their Province to transact business there- in. An Act lespecting the dis eases of Animals. 855 857 Imposition of additional percentage on 1 Mar 18% <»10 taxes in arrears, is idlni ririK of pro- '' vincial legislature, as it is legirtlation respecting "interest", which, bv sec. 91, Art. 19, of British North Aiiicrici- Act, iH within jurisdiction of Domi- nion parliament. Act is ultra i;m» of provincial legisla- 21 Mar.,1891 941 ture. Specially affcitts rights and pro-i perty of the Canadian Pacific Hailway and the Hiid.son Hay Co. Also oh grounds mentioned iii report of Kith July, 1887, on t,>uebec Act 49-50 Viet, chap. 39. (.Vff page3;H9.) Is legislation affecting trade anil com- 21 Mar. 1891 ')4r) merci as well a.s matters lelating to quarantine, lK)th of which are assigned to parliament by British North America Act. r 1332 PHOVINriAl- LKUISLATION TAIILE OK DISALLOWKI) ACTH—ContinuHcl. ' MANITOBA -C..MWi«/erf. Act. 58 Vict., (;ha|i. I. IHll'i Title UcilHOllH for (liNltllllWHIICC. 'All Act rt'M|>cctinf( Cm-Stiitiitf in i(/^r« iirt»Hit fur aH it rclutcH |Hinitiiins iiu'<>r|Hiratril ti> LdiiipiiriicM iii('ver of apixjintmentof judges which is vested in the Governor (ieneral. Enactment in Sec. 27 i)roviding that present incxunlwnts of County Court Bench should not be reniovecl except on terms mentioned for the pur|)oae of ap]xiinting professional men, is ultra vires of provincial legislature, as it assumes to limit power of Dominioji government in respect of retirement or removal of officers, apjx)inted, paid by, and holding office during pleasure (if government of Canada. R 9 Mar., 1875 1052 30 Oct., 1875 28Apr., 187ti n Feb., 1878 15 May, 1878 1037 1039 1054 1057 Chai Chap 43 V cha Chap. 45 V chai 4B Vi cha[ Chap. m^^ tl|HALI,0\VKI> ACTH. 1.1.13 TABLE OF DISALLOVVKI) ACTS -Continu.d. HKITISII ('()r,llMBIA--Co../ui"««/. Act. I'liKi), UN 15 IIKKI lH77,'An H I )at« i>f Kf|K>rt of MiiiisItT (if .Iimtiue, Act to incoriiomtc'Incoriioriifinn i»forolijpctHl'i'yonrl iMiwi-JCilnppt.JS"? Mi'Xiiiidni ('i(iii|)jiiiy unci cdiitrdl nf pniviiicial lc>fiHlii(iiiii, its 15 Mny, 1H7H (Limitf(l). Chap. .13. 1023 42-4.'»Vict., 1878, cliii)). 25. Chap. 36. 1024 102i» 1052 1037 1039 Chap. .S7. 43 Vict, 1««0, chap. 28. Chap. 29. 45 Vict., 1882, chap. 8. 4() Vict, 1883, chap. 2r>. 1054 1057 Chap. 27. . 84 An Aot to incor|Nirato th(> Britinli Ciihimliia In«iir- luici^ Coiiipany (liiiiiit>' cmiipany iHineff(i'tauthi)r- i/.ed to (hi a universal iriHinancc linsi- n.'sH. I'mviHidiis trench (in lltiiHiil)- Hection iif Hectidii 02 (if Hriti»h North America Act. .\lno on nubject of in- tereHt. An Act relating; to f^rown .\ct attempts to deal with the (nieBtion LanilH l)ia. in HritiHh Cohnn- An .\ct to provide for th( lietter collection of Pro- vincial Taxes from Chi nese. An Act to amend the Civr- iboo Wagon Road Tolls Ant, 1878. An Act to amend the Car- ilxM) Wapon Road Tolls Act, 1878. An Act res|)eoting Tolls on the Cariboo Wagon Koad. iif interest, a subject assigned exelu Hively to jiarliament of (!unada by the Hritish North America Act. Act declared by Sii|)renieCoin'tof Hritish Columbia to be imconstitutional and void, and the Dominion government cannot allow Act so declared to remain on the .Statute-lxHik. Act i» interference with the regulation 24Sept., 1870 of Trade and Commerce and he possi- ble iniixmition, under its pro sions, ofl unfair charges u]ion tlie i*oniinion| E.xchwpier. i I do do do 20Hept,l«77 15 May, 1878 15 Aug., 1870 15 Aug., 1879 do do , .:27.TnIy,1881 27 July, 1881 An Act to consolidate and Appointment of Gold Commissioner as a amend the laws relating t(j| jiidge ijerforming judicial functions ia, in effect, an apjKnntment of a judge made by Lieutenant-Governor instead of by Governor General in Council as provided by Britioh North America Aot. Gold and other minerals, except coal An Act to incorporate the Fra«er River Railway Company. An Act to incorjiorate the New Westminster South- ern Railway Co. 8 May, 1883 ActM possibly beyond power of provincial 25Sept.,1883 legislation as trenching o." exception made by clause (4) of 10th subsection of section 02 of British North Ame^ioa Act. Objects of companiei contrary to legislation of parliainen . and settled iwlicy of country resjiecting Canadian Pacific Railway. If constructed, they will direct trade from Canada to the United States and from the Canadian to the United States system of railways. do do do 25 Sept., 1883 Pago. 10.53 1057 1053 1057 100(5 10G7 1008 1078 1078 1080 1082 1082 KB I 1334 PKOVINCIAL LEGISLATION TABLE OF DISALLOWED ACTS— Continued. BRITISH COhUMlilA-Continucd. Act. 47 Vict., chap. 3. 48 Vict., cliap. !). Chap. 13. 1884, Tit-*' An Act t« prevent the Im- migration of Chinese. 1885, An Act to amend " The Suma« Dyking Act, 1878." Cliap. IG. 51 Vict., 1887, chap. 7. Reasons for DisaUowancc. Date of Rejjort of Minister of Justice. Apr., 1884 Page. Act discriminates against Chinese. Ini-! po.ses great penalties uiKm Chinamen; coming into liritish Columbia. Act in-i volvesI)omini(m and ^Hissibly imperial j interests. Authority of provincial legis-j lature to pass the Act is very doubtful, i Provisions of Act are in conflict with the 11 Mar., 1880 prant of a railway belt to the Domin- ion government by the Act 47 Vict., chap. 14, and Act is ultra vires. An Act to prevent the In;- Act is interference with power of parlia- migration of Chinese. ment to regulate trade and connnerce, Ordinary tribimals can afford no ade- C[uate remedy for or protection against injuries resulting from allowing Act to go into operation. See also 47 Vict. , 1884, chap. 3, and reasons for its dis- allowance (page 1002 ante). An Act to auK'nd tin; Land, Questions as to validity of grants made! 188(J 1002 10i)0 lOOTf Act, 1884. An Act to establish a Court of Appeal from the Sum- mary decisions of Magis- ti'ates. by government of British Columbia are btifore the courts. Pending a decision, j no Act of legislature should be hft to itsoijeration which should have effect of contirniiiig grants so called in question. Act at variance with provision of sec. !)1 of liritish North America Act, it being legislation affecting procedure in cri- minal matters, also at variance with sec. 70 of Summary Convictions Act. 1880 10 Apr., 1888 1103 1108 PRINCE EDWARD ISLAND. 37 Vict., 1874, i" The Land Purchase Act, Provision of Act contrary to principles of oha]). — 1874."* legislation in respect to private rights (Reserved Bill). and property. Act does not provide for impartial arbitration for arrivingat decision on nature of rights atid value of the property involved, and for secur- ing siieedy determination and settle- ment of matters in dispute. 39 Vict., 1876, chap. — (Reserved Bill ) 25 Mar., 187 il 1153 23 Dec.,] 870 i 1154 'An Act to amend 'The Laud Purchase Act, 1875'."* Bill is retrosjjective iti its effects. Deals with rights of ()artie8 now in litigation under tiie Act which it is proposed to amend, tir which may yet fairly form the subject of litigation. Absence of any provision saving the rights and proceedings of iiersons whose pro|)erties have been dealt with under the Act of 1875. 18 July, 1876 1176 •These Bills were reserved for signification of the pleasure of His Excellene- vLe Govornoi- General. BR DISALLOWED ACTS. 1335 TABLE OP DISALLOWED ACTS-Condnded. NORTH-WMST TERHITOHIKS. ;of r se. Pa(?e. Act. Title. 884 1092 Reasons for Disallowanct . Dat(> of KcuDrt of Mi/wHtor of Justice, j i'age. Vict., ro. 28. 1884, An ordinance exempting Provisions of ordinance oi)en toobjectinn certain property fronij as an interference with riiflitsof credit j seizure and sale under ors execution. 188!), Xo. 11 880 1096 Ordinances of tlie Nortii- west Territories, inti- tuled : "The Game Ordinance. " 880 1099 No. 24. 880 888 1103 1108 Xo. 25. Ne. ;^0 . .. 1891-92, No. 21. L87i 1876 1163 1154 1876 1176 1893, No. 19 An ordinance to amend Ordinance purports to reguli'te and con chap. 2.5 of tlie Revised; trol the avocation of hunf.ng and Hsh ing by Tndian.s and other subjects of Her Majesty, in violation, so far as Indians are concerned, of their treaty rights. Doubtful if Northwest as- sembly hm legislative authority in re- siiect of hunting and fishing upon pub- lic domain of Canada. An ordinance to amend Ordinance not one which assembly can chap. 1 of the Revised: make, in view of provisions of section Ordinances of the North- 13 of Xorth-west Territories Act (Re- vised .Statutes of Canada, cliap. ,50) and amendment. Advisory board con- stituteil under ordinance" cannot lie estfibliwhed 14 Aug., 188.5 1242 1 Aug., 1890 1254 west Territories, inti- tuled ; "The Interpreta- tion Ordinance." An onlinance to amend chap. 41 of the Revised Ordinances of the North- west Territories. An ordinance to amend ordinance Xo. 25 of 1889, intituled : "An ordinance to amend chapter 41 of the Revis.d Ordinances of the Northwest Temtories." { An ordinance for protecting the public interest in I i vers,creeks and streams. 3. Ian., 1890 12.52 1 Aug., 1890 12.56 These ordinances amend chapter 41 re- s^«.ctiIlg the Icgivl profession. Pro- visions respecting admission to the bar too restrictive considering con- ditions of the country. Provisions I as to access of advocates and other ! practitioners to supn-ine court of I North-west Territories too restric- I tive, and should not become law I withse it had in view.' Its enforcement would lead to con-| fusion and ex|)ense. An ordinunco respt>cting Mi.nicijial Assc^'Miitnt, and collection if Taxts and Licenses. Chdumiw uftni rircK, in so far as it is 18 May, 1894 meoimistent with, or pur|)orts to repeal, or alter any statute of parliament. Section 38 objection.able, as discrimin- ating in matters of taxation against chariered banks, and ultra virm, lie- canst) IJauk Act does not contt^iiiplate that p.-ivate or unincorijorated banks should lie iiermitted to do business. General. 120- 84| RR 1336 PROVINCIAL LEOISLATIOX Act. TABLE OF RESERVED OXTA ») Vict,, 1873. Title. An Act t<) incoriK)rftte the Loyal Oriiiigo ABsociatioM of Western Ontario. An Act to incorjiorate the Loyal Oriintfe Association of Eastern Ontario. 47 Vict., 1884, cli. .3!) The Ontario Factories .\ct, 1884., Ren.sonR for Reservation. None aNsijined do Lieut.-(iovHrni)r a-sked that (lUCKtion an to wliether Act is within tlie coini«'tence of legislature should l)e referred to Sui>renie Court. 31 Viit., 18118. 53 Vict., 18, " marriage and divorce," and be- y(md powers of provincial legislature to enact. .\n Act to inct)rporate Hydraulic Co. contrivct of marriage of Ainie Bou rassa and Dame Purissima Roliert. do do do do ..<; Act to render the marriage con' tnvcted between Kredk. Pratt and Marie Albina Thibault civilly valid lAii Act to legalize the marriage ofi Henri Ainie Bourassa and I)anie Purissima Robert. An Act to incorporate La Banque Dominion parliament alone has iK)wer to legis- Hyiiolhecaire Canadienne. late on banking and the incor(M>ration of banks. Name apt to create confusion. m « NOVA 31 Vict., 1808.. . 37 Vict., 1874.. . 42 Vict., 1879. An Act in reference to the Militia. An Act to facilitate arrangement bo tween railway rannjMinies and their cretlitors. Subject not within jurisdiction of provincial legishiture, as touching on (piestions of bankruptcy and insolvency. An Act to incoriwrate the Nova Scotiajl4th section trencht-s on jurisdiction of parlia- District Branch of the Indejjendentj ment as it atte Jipts to deal with orii;.e.». Order of Oddfellows. RB :M'.:i TABLE OF KE8EHVED HILLS, 1867-1895. 1337 BILLS, 1867-1895. KIO. HdW flt'alt with. Xo action taken. do do Bill cvincial. do do Date of RejKirt of !p Minister of Justice. 1 *^*'' 25 .\iiK., 1873., 25 .Vug., 1873., MiniHtfr of .Tn-stic*- deemed it iH-tter to leave ijues- 20 Jan., l,f,85. turn of coni|H'tence of provincial legislature to be tested in the ordinary way in the courts. .1 104 104 195 ) legis- tion of P. KG. Assent not given. Apart from (lueation of constitutionality of Act, it 11 Jan., IWifl would not be safe in ]>ublic intere.sc to allow IJill to bectrtiie law. , N'oictionapiK'ars tohave;, ... been taken on this Bill. do do do Should Act lie jiassed as a statute of the ))rovince of Quel)ec, Minister of J\istice would have o|)|K)r- tunity of considering questions involved, but at present advises no action thereon. do do 16 Feb., 1893. 16 Feb., imA. 200 4;}6 i 438 468 468 >JOVA «C«>T! A. ivincial ions of parlia- ' 'jrnii.l refusal of as- Nova Scotia legislature hart no right or authority to .«. '., b7'' /,; Hallowed toj pass the Bill, lajf. I. ..t at end of year. I ..sent given . .\.-<.«ent withheld. . ^Bill conies within judgment of Juto- vince. TABLE OF llESEKVED BILLS, 1867-1895. 13:59 BILLS, 1867-1895. BRUNSWICK. How dealt with. Keaxons for Action. Dat»! of Report of lustice. Dat»! of ReiKi Minister of Jii Page. AsHPnt witliheld and Bill allowed to lapxc at end of year. Assent given Bill within jurisdiction of legislature of New Bruns i wick. do Assent withheld Assent given. do No action taken. . do . Bill within jurisdiction of legislature of New Bruns I wick as ix)wer of legislating on siihject conferred I on provincial legislatures by Jiritish Nortli America i Act, sec, 91, para. 2(). . Bill considered beyond jurisdiction of provincial j legislature. Considered within jurisdiction of New Brunswick I legislature, a:id no rigiits of Crown aifected by it. Bill as originally submitted had been materially I changed and several conditions added, qualified I to secure free navigation of river t(j all lumber ' :nanufacturers and protest witiidrawn. Unable to agree with view of law and facts on wliicli the bill seems to have been passed. Doubtful if reserved bill or the Act (56 Vict., chap. 30) which it amends, fall within legislative author- ity of tile provhice. Inconveniences which might arise if (Governor (ieneral were called U|x)ii to give effect to legislation of this kind, are sufficiently serious to justify withiiolding of assent, and usual course with resiKict to similar legislation should be followed. 14 Aug., 18(>',). 2(i Nov., l.S()!)., 11 Apr., 1870., Apr., 18(0., CJune, 1871.,. 27 May, 1874,. 20 Jan., 1893,, 14 Mar,, 18!)5„ 049 060 055 0.58 059 001 707 (OV 762 TOBA. Assent withheld , do do Contrary to Hrst principles of legislation and for same reasons as assigned for the reservation of the Act. Act should be passtid by Dominion parliament and also for reasons assigned for reservation of Act resjiecting construction of railways. do do do 25 Nov., 1871. 25 Nov., 1871,, 25 Nov., 1871, 770 770 1340 PRO'. I.VCIAL LECilSLATION TABLE OF RESERVED MANITt)BA 35 Vict, 1S71, Hill No. 47. 35 Viet,, 1872. 35 Vict, 1872 . 30 Vict., 1873 . 36 Vict., 1873, chap. 42. Chap. 4a . An Act to iiic()rjK)rate the Red Kivcr liridge Co. of Manitoba and to authorize the conHtruction of a Bridge acrosH the Red River op|>o8it<: or near Fort (iarry, and to levy tollB on 8uid Bridge. An Act to incor|X)rat«' the Manitoba Central Railway Co. An Act to incorixjrate the AwHinilxjine and Ked River Navigation Co. An Act to constitute and incorixiitite the Law Six;iety of Manitoba. An Act respecting Land Surveyors. . ProiK)sed bridge would interfere with the navi- gation of river. Unwise to grant charter jiending location of intenxjeanic railway. Trenches on ground reservwl for Dominion par- liament respecting navigation and shipping. Chap. 44. Chaj). 43. Vn Act respecting the Study Practice of the Law. and An Act to amend the Act 3()th Vict., Chap, 20, for the prevention oi Prairie Kires. An Act to imix)»e a Tax on Wild Land. An Act respecting Aliens . The Half Breed Land Grant Pi-otec tion Act. Apart from (piestion of i)olicy, bill is premature, and obstacles should not be placed in way of any person in gojd standing at bar of other provinces to practice law in Manitoba. Un- desirable to restrict the selection of judges. Power to regulate fees is objectionable. Objectionable on much the same grounds as Act respecting law society. Creates mono- poly, which is unwise is present state of new and imdeveloiied country. (Questionable whether province be sufficiently advanced, and whether bar is of sufficiently stable, settled character, to justify placing control of bar in hands of practitioners resi- dent in pnivince. Certain clauses contrary to sound principles, and likely to prove injurious to interests of Dominion. They make surveyors, railway companies and contractors liable for result of fires caused by their men, irrespective of facts whether there was negligence or whether men were under control of employers. Similar Act passed in British Columbia was reserxed. Doubts entertained an to power of provincial legislature to deal with subject. As Act deals with holding of property by aliens, assent reconmiended. Act is retroactive, dealing v itl existing con- tracts and cancelling them. Otxins fruitful door for litigation. No machinery provided for carrying out sale of lands on which lien is established. An Act to incorijorate the Eastern Possible interference with line of Pacific rail- Railway Company of Manitoba. I way. Objectionable clause in bill making shareholdei's iiartners, though limiting lia- I bility to amount of shares. R TAJILE OF UESERVED BILtS, 1867-1895. 1341 BILLS, 1867-1895. — Continued, How dealt with. Reasons for Action. I Date of Kt'iHrt't of MiniHter of .Ttmtice. AHHent withheld do do Interfiles with naviKiition of river -a river n.n,vigal>le 20 Nov., 1871 , at certain HeasouH for a distance of 4()0 iiiilcs. i do do Same reasons as those assigned for reservation. Act within comi^tence of provincial legislature but objectionable, as L'nd clause provides that share- h->lders of company shall be. to all intents, part- ners 111 same. This is contrary to first principles governing incorpor itioii of conipani(!s. If pro- moters desire to do business on Red River Ijeyond limits of Manitoba or within United States, Act of incorix)ration should be obtained from Dominion parliament. eorijamereaboiis as those assigned for reservation, Page. 770 24 Sept., 1872. 24 Seiit., 1«72. For same reasons as are assigned for reservation. 24 Sept., 1872. 772 26 Sept., 1872. 'No action apjiears te have been taken upon this Bill. '^ ' Assent withheld. . Assent given.. r(>hibitM any one from acting aS' surveyor unless iKJssessing projier (|ualifica- tions. (2) Deals with whole question of mode of surveying lands in province. (3)' Creates conflict of authority, as Dominion Lands Act [irovides who shall act p,s survey- ors of Donnnion lands and niotle of survey of Dominion lands ; also provides for Ixiard of e.xaminers for iwlniisaion of deputj' sur- veyors, as do. g present bill. Provisions of bill are illil)eral and unjust, and would create a monojioly. An Act to incoriKirate the Manitoba Investment Association (Ltd.) Powers conferred the association were beyond com|ietenceof provincial legislature, as Dom- inion parliament has exclusive authority in reBi)ect to " banking and interest."' Bill ap- peared to authorize associaticm to carry on some of the branches of business usually re- garded as banking. An Act to amend tlie Act passed in the Previous Act parsed in 1875 was disallowed 37th year of Her Majesty's reign, in- (xec Manitoba, 38 Vict., chaj). 37, pp. 804 and tituled: "The Half-breed Land| 806). Grant Protection Act." 53 Vict., 1890 : Chap. .56. . Chap. 57. 54 Vict., 1891 ; Chap. 8. . . Bill resjiecting Sales of Lands for Taxes. Rill respecting arrears of Taxes in the City of Winr!i|)eg. An Act to authorize companies, insti tutions or corixirations, incorporated out of this Province to transact business therein. /Comparison of Bills with clause of chap. 45' of .52 Vict, to which exception was taken by Report of Minister of Justice shows tfiem to be virtually the same as above Act. Lieutenant-tiovernor considered himself bound by considerations which induced dis- allowance of chaj). 45 of 52 Vict. Assent to Bills calculated to lead to confusion in municipal accounts and injustice to indi- I. viduals. Comparison of Bill with chap. 23 of 53 Vict, (wnich was disallowed) shows that it is vir- tiially a re-enactment of the Act chap. 23, 53 Vict. Though assent might have been given, yet having regard to peculiar condi- tions obtaining in Province at the time tnd. for reacums given in desfwitch (pages 989 and 990) the Lie\itenant-(iovernor reserved his assent. No BRITISH 35 Vict., 1872. An Act to amend the Qualification and Registration of Voters Act, 1871. The 13th clause of Bill precluded exercise of electoral franchise by Chinese and Indiana, in contravention of instructions to governors, and of British North America Act, 1867, sec- tion 91, subsection 24. , B TABLE OF KE8ERVKD BILLS, 18t)7-1895. 1343 BILLS, 1867-1H95. — Ctmcludal. How dealt witii. Asweiit withheld . . No action taken. . . ReasonH for Action. I)ftte of Report of , p Minister of Justice. I ^"*'* Same reuHtniM a» those HHniKtie(l for reservation, and 2!) Jan., 187C 795. see alBo pages 773 and 7!M. . . . QueBtion raised is one of great difficulty, niences might arise if (lovta'nor in C'oi; Inconve- luiicil called iilxin to give vitality to provincial legislation of j this description. 4 Oct., 1870. Act left to Its ojieration jLen^th of time which has elapsed since passing of 3 May, 1878 I original Act, during which time the Half-I)reeds, j as a rule, became well ae(piainted with value of ' their interests in the lanil. I i No action taken. No action taken. COLUMBIA. Bills might have lieen dealt with in usual, 18 March, 18i)l. manner without having been reserved for Governor' General's asHent. Chap. 5(> if assented to, would have har it may not !«■ coimidj-rcd tliat it nmy apl'l.y to lanrl lien-ufttr to !«• a|>|>i'0]iriate(l for railway purixmeH under lltli Miiction of ti>rniH of union. An Acit to n-nder l('({itiuiate cliildrt'n Ixini outof lawful wedlock wlioMepar- entH now are, or may heicafter, under certain reHtrietioim, bu married An Act to amend the Gold Mining Act giveH juriiidiction in all )>erfional actioiiK to Amendment Act, 1872. gold commistiionerH in Kootenay an(l OtvHHiar, and apmral head of the chureh. Act has no suspending clause. TAHr.K OK IIE8KRVED HIf,I,8, 1807-1895. 1345 BILLS, 18G7-1895. COL U MMA—ConcliuIeU. Hi)w dealt with. KciiMiiiH for Autioii. I DattMif Kf|M)rt of p .Minister of .fustic*'., **"• Asst'iit withheld For sunn: reasoiiH an UHNijfiUMi for rfserviition 25 Sept., 1872 As.Hfiit withheld. do do No action appearK to have Inch taken on tliis Bill Assent withheld JunKilii'tion of mining '.-ourt in diHtricts referred to will be (greater than that of count,v court, and eipinl to that of supr e ('(uirt. [f I'wsented to it would U' necessary for a supreme court judge to i>roceed to district named, to try criminal cui-es. Bill should have heen di.si)osed of liy local author- ities themselves. 1013 1013 lOlH 1054 ISL.AND. urch rince form dis- nter- n as has Assent withheld. . dt. Assent given... . Assent withheld Assent given . do For reasons similar tf) those assigned for reservation. '25 Mar., 1874 1163 Act objectiofiable as it does not provide for impartial 23 Dec, 1874 arbitration in which proprietors would have representation. 26 May, 1875 1161 18 July, 1876 : 1176 Objections to bill in previous session were removed and bill is one coming within the comi)etence of a provincial legislature. Bill is retrosijective in its effects. Deals with rights of parties now in litigation under the Act which it IS pro|X)se8|M-cting tlic Le^fiHlatini KeuHotiH fcir KcMorvation. .Similar liill« paxHiMl in Ontiiiio in 1H73 wcii' rcMttrvt'd. N NORTH- WEST 1896, No. 29. An Ordinance to ainciKl luid consdli- Lientcnnnt-fiovrriior had no oiijx)rtnnity of date ax inni'iidfd tlic OrdinnnccH] fxaiiiiiiing its provisioim. n^DIK'Ctiiii; 8cIioo1m. | Tl Ni BR TAULE OF nEMEUVEU UILLH 667-1896. 134'; VKI) VAHI) BILL'^, 1867-1895— Cono/wrferf. I low (leiilt with. 3 were No action tuktm. do KeaHoiiH f(ir Action. Date of K»'iM)rt of Minigtvr of Juntictt. Piiffp. Sume rciiHoiin um (fivcii for action takon with refer- enco to HJiiiilar billx iiaHHed in (Ontario in 1H73. (See ante pageH 7!* anci H(».) nth .(nne, lH7'.t 12(J3 icil ;'L'(ith .lanuary, IWKl. 122? P TKUKTTOIUKS. No action taken thereon, Lieutenant(!oviTnor Nlioiihl ncjt have reHcrved tiie ordinance. ftK 1348 PROVINCIAL LEGISLATION TABLE OF ACTS, 1867-1895. ONTARIO. 31 Vict., 18(J7-'iH, cluip. 5. Chap. 0. Chap. 17 Chap. 1!). Ati Act to repeal chap. UO of Coiinoli- S^c. 5 declares certain counterfeiting to be dated Statutttn of Canada, intituled :'| forgeiy, which in leginlation re»|K'i5ting "An Act respecting the I'rovinciiil] the ynniinal law. Duty on I iv<'rn-kee|)ers, and to makf f urtlier provision iesijecting the same. ' An Act to reijeal chap. 13 of the Con- solidated Statutes of Canada, so f.ir ivs the same relates to Ontario, to antliorize tlie publication of an Oii^o no Hiixctte, and to make i)rovision for in- cpiiries concerning pul)lic nuittersand othf'ial notices. An Act to continue for a limited time the Acts therein nientiontd. Sec. 2 declares that wilfully false state- merits made before commissioners is a niisdemeanum', which is legislation re- specting the criminal law. Sec. 1, cont'M.uing Bankruptcy Act (7 Vict., chaj). 10), and sec. 3, extending iieriod for continuance of certain savings hanks, deal with sulijects within juris ' diction of 1 'ominion i>arliament. An Act resi)ectuig (iold and Silver 40th sec. objectionable, as dea'.i.ig with Mines. j criminal law. Chap. 20. . . . An Act respecting Kegistrais, Registry Sees. 82 and 83 objectionable, as dealing Offices, and the Registration of Tn- with criminal law. sti'uinent.i relating to I^ands in On tario. Chap. 29. . . Chap. 30. . . Chap. 38. . . . Chap. 64. . 32-33 Vict., 1808- Ci), chap. 22. Chap. 30. . Cliap. 34. . Chap. 3G. An Act for the encovu'agement of Agriculture, Horticulture, Arts and Manufactures. An Act I/' amend the Municipal lusti- tutioi.s Act of Upi)er Canada, 29-30 Vict., chaps. 51 and 52. An Act t« incorijora'to the Clifton Sus- (lension Bridge Company. An Act to incor!K)rate tho Board of Trade of the Town of (Juelph. An Act to amend chap. 16 of Conioli- dattnl Statutes of Upper Canada, in- tituled : "An Act ropecting County Courts." An Act to jn'ovide for the Registration of Births, Marriages and Deaths. An Act. relating to Mining. An Act to amend and consolidate the Law respecting the Assessment of ProiJerty in Ontario. RB R'^^h sec. objectionable, as dealing wit'.i criminal law. Sec. 12 provides (pialification for "all par- liamentary elections." If parliament of Canada is meant tlie section is ultra vires. Incori)orates a company for constn.otion of bridgt beyond limits of province. Incoriiorates a company for promoting and extenditig trade and commerce. Sec. 22 affects regulai ion of trade and commerce, and sec. 23 ci acerus criminal law. Sec. 2 providei that judges shall be subject to removal by Lieutenant-tiovernoi- for reasons. Inconveniences arising from independent )K)W",r of removal in Lieu- tenant-ttovei nor as well iis in Governor General. Doiibt whether this subject comes within 92nd clause of Britisli North America Act, and that penalty i)rovided by Kith sec. of Act might vest in Crown for puriK)ses of Dominion. Sec. 34 and 35 might be held tt» Im? por- tions of criminal law. Sson|.Sec. 2 iti n/tm rim; I law.s. as it affects the patent 30 Vict., 1 ehftp. S717:! 13. Chap. Chap. An .\ct to provide for the n.stitution of^ Act ro .'ener.al in it of »i Tf"'-1 *'"' f''.'"" ''.V P'-fiHoni apply tocaiw of KiH-ht .;.nd respe,.tinfr procedure in ( rown .suits. terms that it might again.st Dominion f,'()v- 100 1(10 101 102 37.. -\n .Vet for tiK ;iractice.s at •■■■'.ment l.,.ttof Lie„tenant-(;overnor eoul.l not be granted in case of claim' iKamst the Dominion. Minister of .fu". tice (^nbsequenlly of opini )n that Act ya,s ,mohject,onal,le, as it can onlv be i'lin h'"''"'^ .t.. legislation in nuatte.s uithiu the jurisdiction and eonid not apply to Croun m Dominion matters. hy provincial legLsiatiire itself Chaji. 3. . Chap. 4. . Chap. 31 . Chap. 34. Cliai). 35.. Chap. 47.. Chap. 48.. 85 102 102 103 An Act respecting the .-ipi^intment of i^uetn's Counsel. All Act to re.gukte the precedence of the Jiar of Ontario. Not reportefl upon, do An Act to make further provision as to Section oo „,,,i ■ • t . the oiLstody of insane Perso„r ^!"lt^TT^ L.-Mitenant-Govei „ ,„ „ .. ,. fi """icuant-ijover- !;X,5" ^"''•■'^'''t"''"» "'«uie iK.„on is ultra vires. Pr^nince of Ontario. | jS'l.,;: . ,y &?. J"t,;!:^t i^lll; false statements shall lie misdemeanours. I 103 103 . .lAn Act resp.cting the Municipal Ixmn Jlx)intnient of lOti judges, and is tiltrn vircn of )>roviiicial legislature. ; i Sectitms 1S4 and 189 trench on (iriniinal; 107 law. j ISections 21, 2.') and 2(> ai-e prohibitory in! 107 respect of trade and coninierce. a subject not within coniiietence of provincial legislature. 38 cli 38 Vict., chap. 1874, Chap. 12. . Chap. 19. . Chap. 28. Chap. 44. . Chap. 0(1. the I'ort Whitby and Port Peny Railway Company. An \ct to amend the Act iuf.orixn-ating Disallowance asked on grounds that it 128 •~ " trtniehedon rights vested in HarlxMir Co., and that Act calculated to interfere with navigatiim. Rights of Crown preserved by Act of 18H4, .also Rights of Crown in! re»|H!Ct of navigation. No action taken! on Act. j An Act respecting the operation of theiLanguage of .section ti is vague and open to _. '... ^ . ..1.......*.^.... 4-l>.. <■ 1*- It It* il Id/ 1 fiiufti fiif i^a 143 Statutes of Ontario. An Act to amend the Act resjJtcting l)iviMi(jn Courts. construction that it applied to statutes of Dominion. Section 12 enacts that cer- tain statutes relating to Ontario should \k rejtealetl. Provision makinsj it duty of county court judge to hold division court in any coun-' ty, on lit'ing ordi-red by Ijieutenant- (rovernor, objectionable as assuming iHiwer of apiKiintment, which is vested in Governor General. 143 39 Vic: cha|j An Aft minors. •esiiectmg apprentices and Sections 17 and 18 trench uiion the criminal law. An Act to provide for voting by ballot at municipal elections. Section 30 ini|ioses imnishmeut against forgery, counterfeiting, &c., of ballot IHijiers which trenches on criminal iawj and iirocedure. | An Act to enable the Coriioration of the' Act proposes to give power to close up ijart City of Kingston to close up a part of; of public harlxmr of Kingston, winch m Union Street, with the water slil) in| objectionabh'. front of the same, in the said city,| and for other piiriKises. j \n Act to incor|M)rate tlie Alliance In- Powers granted are too wide and aiv open; ■ surance Company. to objection as a matter of policy. j Powers granU'd are objectionable, as l)eing tcH) wide. Word Canada in the name, also objectionable. >Chap. 07 I An Act to incorporate the Cana d Fire I and Marine Insurance Cf.«'Hng privileges 143 142 ;^!l Vict., 1875 chap. 14. Chap. 23 Chap. 24. Chap. 20, Ciiap. 32., p. 77.. 7<>, An Act Judges. respecting County An Act respecting panics. upon the ass,.mhly or to mend«T.s.i Kange of these powers h.18 been s.ibjectl of di.scussion. Several provisions nota- bly sees. 11, 12. 13 and 14, are oih^u tol question as l^iing ultra rire, J l.joal legislation. Court Main pr.. ,ion. of Act. bv reason of^ arrang. . nts for meeting and action of^ judges ...ii.-i riie .wn c.mnty, igl conditional on orderofC.vernor-tieneral in Council, 18 unobjectionabli . I 141. Insurance Coin- 147 OiH^ntoobjecti(ms iirevioiisly taken as toi Acts iiicoriHirating insurance companies. ' liX* 147 • ■ .^"'^^'^"k;;; i::!!r;i,:'"""""'« "'hrf'"" ;r ^v -"'i-tency ..f legislature i ire insurance. *" l«i»s tins law, more particularly with, res|H-ct to contracts made out of pnninee. I .An Act to amend the Law leKiiectiiig! Provisions of \,-i ...,i I J|5;;«^"fFern,entedorSpiUuo,^f'li;r"N:ti'itXZ^^ -'<> ^^' An Act to make further provisiims res- pecting Permanent Building Hiicieties. 85J An Act to amend the Acts relating to the London, Huron and Bruce Rail way Comimny. RB Act deals with general manag..ment of Us liennanentbuddingsocieti..s ill the spirit of recent legislati<,n on subject bv l).)n{iuion parliament. Doubt e.vists as to which legislature is coin|H..teut to deall with this question. i Sections conferring certain powvrs on the 148 (m-at Western Railway Company are 1352 PROVINCIAL LEGISLATION TABLE OF ACTS, lS67-\8d5— Continued. •, ONTARIO- Con. 02. Chap. »». An Act to incorporate the Home Fire i Insurance Ct uipany. 1 ;An Act to incoriwrate the Union Life Insurance Company. 42 Provisions contained in Act as to winding up of the company, trench upon insol vency. Act in no wise limits the fire insurance business to be done by tlie company. Act should he amended by such limita tion as to rantfe of business, as may bringl company within ranpie of local le^'isla- ture, Sees. 1(>, 17 and IS relate to wind- ing up of the company, and therefore treiu^h on insolvency. 40 Vict., 1S77, An Act reH]iecting the Admiuistration[Nothing in Hrd section limiting the sale of chap 4.' I of Est.ates of [ntestates dying witli-, real estate of intestates which it author- ! out known relatives in Ontario. ; izes, to proiH-rty situate in t)ntario. Powers of legislatui-e do not ext Kulnnitted to supreme court. .An Act to amend the Municipal Law.. Some of provisions relate to vexed rpies- tion of licenses, and that provisions in' ' terfere witli |Kiwer of dominion I'arlia- ment over reguhi.tion of trade and com- merce. 151 .An Act to incorjxirate the Prudential Uoubt as to power of i>rovincial legisla- j Life Assurance Com i)any of Ontario.! ture to incor|ioratc a life ins\irance i ' company. .. ' I 43 A'ict., 1880, An Act to .aliolish jiriority of andlEutrenelies ujxin subject of bankruptcy chap. 10. amongst ?Jxecution Creditors.' and insolvency. 44 Vict., 1881, An Act to consolidate the Superior Power of local legislature to pass certain chap. 5. Courts, establish a iniiform system of provisions contained in .Act doubtful 152 152 153 1.J.S 157 pleading and practice, and make fur ther |)ro\isions for the due adniini stration of justice. Chap. 27.. . . An Act to givf? increasefl etticiency to the Laws against Illicit Selling, Chap. 38. . . . An Act to close part of a certain Koad allowance between the Township of Kingston and the Village of I'orts- mouth. ! Chap. 37.. . ;An .Act to amend the Acts incorjKjrat- j ing the Toronto Oravel Road and j Concrete Company. 45 Vict., 1882, .An Act for the removal of cei'tain defects chap. 10. Chap. 12. . Chap. 17. Cha]». 23. Chap. 3y. in the Law of llvidence. and )>rovisions a|)|)ear to be ullni ri.r.i, viz. : 'ass\nning to constitute courts ; to ap|)oint judges ; to limit apjK'als to su prenie court ; and to connnute fees to surrogate judges. Some provisions may be held ultra virc.% as interference with regulation of trade and couuueice. Objection taken by petition as to power of provincial legislature to provide for clos- ing up of the roail. Minister of Justice of opinion that legislature |K)s8essed this power. Apiilication made by company and by property holders that interests prejudi- cially affected by provisions of Act, but Act left to its o|)eration. Provision that parties to any procf^eding instituted in eon.secjuence r)t adultery, and husbands and wives of such parties, si. all be competent to give evidence, should be limited to civil [jroceedings. Stolen (iruods. may apply to jun Joint .Stock Com|)anies. enacts that otfender shall be civilly and crindually liable for offence. An Act to amend the Municipal Act . , Provisi(ms conHict with powers of parlia menl to legislate respecting regulation of trade and oi>mmerce. An Act to coiu-iolidatt- the l)eljenture!l)eals with question of interest, debt of the Town of Owen Sound. i 100 Uil }(>1 170 185 187 187 187 188 An Act resiK-cting the restituticni of Prosecutor or perscm claiming |)ronerty: 188 ISil 18!) 18!l 1354 PROVINCIAL I.E(JISLATION TABLE OF ACTS, 1867-1895— Con/wmeo?. ONT A RT O— ConOn Mfrf. 45 N'iot,, 1882/An Act to fimlilc tlnCoriKH-atioii -)f the Dt'nls with riueHtioii of interest, cliai). 41. ; Town of I'ort Hope to incur liiihility' Chap. 48. . Chai.. 50. . Chap. 52. Chap. .53. for the construction and cxteuKion of Waterworks and for other puiposei*. An Act to consolifJate DefH>ntiuc Debt of tli YorkviHc. the GRneralj > Village of do do ■ An Act to incorporate the owers of council to ita«s by-laws. Provision relating to authority granted to nuuiicipal cor|K)ration8 to pass by-laws relating to removal of sunken or wrecked vessels ov other obstructitms, is one to be exercised by iiarlianient of Canada, not by provincial legislature. ;An Act to improve the Liquor LioenseiQuestion of relative powers of parliament I^'^WB. I and legislature over tliis suliject is still I unsettled. B 189 8!> 189 18i) An Act to authorize the GananoqueDeals with questifin of interest ' Water Power Company to issue! ' debentures. ' I An Act respecting Ht. Paul's Church injAct was iiassed while matter was under , the Town of Woodstock. coiisiileratiim of the com t, and because ] it is c.r /,o.it fiicto in its operation, in the. I jireamble of the Act. ! An Act to consolidate the Act relating Doubtful if legislature has not exceeded its 193 190 19G 196 w. i i TABLK OK ACTS, 1867-1895. 1355 TABLE OF ACTS, 1867-1895— t'on^mwec/. ONTARIO— C«nerson the powers of a judge. i>sa 18a All Act respecting assignments for the Iwnefit of creditors. An Act resi)ecting Wages 4il Vict., 188(i,l An Act for further imin-oving the Law. chap. 16. 18'J 189 lilO 193 190 196 50 Vict., chai>. 2. Chap. 8. 1887 An Act res|)ecting the Revised Statutes of Ontario. Amendments of the Law reoonmiend-! ed by the Statute Commissioners, Chap. 19. Chap. 3C, An Act to make ftirther provi.sions re- specting Assignments for the beuetit of Creditors. .\n Act for the Protection of Infant Children. Chai). 45.... An Act fcir the Protection of Women I Provisions of .\ct approach inoi-*^ nearly 1Y1 f'^rfitiii onuuu ^.. ........ i...iT I ..... *-l..^» «-.^ ...vK . !..4-^ ' in certain cases. ■• '■ .^v.u .vf.,^. ..»v... ....... ...iVIl^T to criminal law than to police regulations. Chap, 70.... An Act to incortxirate the Fort Erie i Purports to grant jjowers to company to M tH'r"!* iTrvlVino V»1T ' >n4-..l>'i4->-.%^^^.... .......... . ..; 1,1,. . *.. Ferry Company Chap. 79.. . . (An Act to incorix)rate the Ottawa- and ' Thousand Island Railway Conipiiny . | I Chap. 81.... An Act to incoriwrate the Southern, Central Railway ComiMiny. i R ect obstructions ui«iii navigable waters, and Act assumes to legislate res|)ecting aliens. do do do do do do 198 199 Act is one respecting the administration 199 of estates of insolvent persons. Validity of jirovision relating to a.ssign-| 199 nients by a penson in insolvent circiim- stances depends on validity of preceding .\ct (chap. 2()). Objection taken to Act on ground that 2112 l>rovisions of sec. 59, subsec. (h), are so enacted as to found an argument before high court tiint Act gives power to relieve against penalties, to one-half r)f which pominion government are entitlcrl, and if so, this provision is iiltrii riris. Act left to its o]jeration, as it was believed' that provision in fiuestion only applied to matters within jurisdiction of provin- cial legislature. Noopinion expresswl that all the provisions 204 of revised statutes are within legisl.'itive authority of the provincial legislature. An Act to give early effect to certain; Act assumes that, though appointment of 204 judges is vested in ( loveinor (ieneral,and that the only limitation is that they, must b«! selected from tlieir respect! vel bars, a (jrovincial legislature has iH)weri to limit such choice by provisions and! qualiticutions. | Legislation of this character in respect of; 206 insolvency is [Hjssibly beyond eonstitu-l tional authority of legislature. ' Sees, ti and 12 is legislation in respect to' 205 the criminal law and is unnecessary and coiifusing,con8idering prov'.sions of chap, j 1(>5, sec. 4(1, of Revised Statutes, Canada. 205 205 205 205 1356 PROVINCIAL LE(JI8LATIO\ TABLE OF ACTS, \H(j7-\Sd')— Continued OUTARIO-Cmitinued. Act. Titlf. r>i Vict., chap. 2. inas. Chaj). 5. Chap. 7. Chup. 14. Chap. 28. . Chap. 29. . . . Chap. 32. . . . Chap. 70. . . Chap. 71. . . Chap. 74 Chap. 75.. Chap. 79... 52 Vic, 1889, chap. 10. All Act I'cspcciin^rthc Revised Statutt^s of Ontario, 18»7. All Act vw|H'ctiiig the Kxccntivf Ad- iniiiistratioii of tlic Laws of this Pro- vince. Reasons for Objection or Comment. •Sic rtiiiiirkH on chap. 2 of 1SH7, ante page 2(i4 and »1ho page 210. i'l-ovisioiiH aie within coinpj'leiice of i>roviiici!ii h-Ki-'ihi- ture, provided that provisioMH of revised Btatutes aie within cfimjietence of pro- vincial legislature. Page. An Act resiiecting Manitoidin . Doubts entertained as to validity of legis- lation and as to powers of legihlature toi pass legislation respecting magistrates. Legislation niny 1* an infringement upon exclusive |H)\ver of Canadian parliament to legislate in resiiect of trade and coui- nierce. Assumes to deal with question of interest. An Act to jirovide against frauds in Act held nltrn rires of jiroviiicial legisla- the supplying of Milk to Cheese or ture in Keg. vs. Wastm, 170 K. (ti.B.D.) Butter Manufactories. 58 and 17, App. Reixirts, 221. An Act to incorixirate the Manitoulin;Provisions authori/.ing erection of struc- __.! XT.. -XL L,i I. ■, ^ ture.-*, such as wharfs, &c., in navigable waters, or waters under federal control, objectionable. Sec. 12 assumes to deal with subject of aliens, and sec. 25 with subject of bills and notes. The Municipal Amendment Act, 1888, The Assessment Amendment Act, 1888. and North Shore Railway Company An Act to incorporate the Ottawa, Ai-n- prior and Renfrew Railway. An Act tt) iiicori>orate the Peterborf)' and Chemong Lake Railway Com- pany. An Act to amend the Act inccir|)orating the P.arry Sound Colonization Rail- way Company. An Act to incoriX)rate the Central Canivda Exhibition Association. An Act res|)eeting the Administration of Justice in cert in eases. Sec. 5, without limitation, would be an infringement on jiower of l.)ominion parliament to legislate as to shipping and navigation. Assumes also to deal with subjects of aliens and negotiable instruments. Sees. 11 and 10 ol)jectionable, a,s they deal with subjects of erections in navi- gable waters, and with negotiable instru- ments. Sec. 2 authorizes company to enter into arrangements with railway companiesi that are under jurisdiction of parliament of Canada, and to connect with one of the railways under that jurisdictitm. This arrangement only valid when au- thorized by parliament of Canada. Act bears internal evidence that it is not » provincial or local association only. It would ap|)ear that association is not one which provincial legislature has jwwer to incorporate. Act purports to give the Lieutenant-Gover- nor power to appoint a jiolice magis- trate. 210 20U An Act to give certain powei-s to the Sec. 5 gives power to c(mimissioners to: 211 Commissioners of the t^ueen Victoria expropriate land over which the legis-j Niagai a Falls Park. j lature of Ontario has any legislative I control. 211 212 212 212 213 212 213 213 213 215 5« \ cha CI 1 TABLE OF Al'TS, 1867-1895. 1357 TABLE OF ACTS, lS67-\Sd5—Co,t/i>n„-d. OM'AKIO -CuntinucU. Clm|.. 7S. Cha|>. 82. Chap, «•!.. An Aft r<'g|M'ctiii(f ftpiM^alo on iirosfi-u- Sec. 4 (iliicftionalilc. Tliouirli intond fioii J f 1 1 j.iif, .*■#>. .It:.. . .....1 ! I. ^ . I . ... ••,,.. tionn tn ('iifdicr |ifiiallics .and iiiuiisli otffuces undfi- innvincial Acts 53 Vict., ihap. ti!(. 55 Vint., chap. 8. An Act to int'oriKiratt' the .Vniherst- l>ni(f, Likf .Shore mid Hh'iihcini Rail- way. An Act to incoriM)i'at(' the Toronto Belt /iine llailway Company. I An Act to incorixirate the WaterlfMj .Innction Railway Company. — ■ • ■■■-J- •■ •'■•'■■•■■■n • ■.(ii'iif^ii I II I/T-IHIT-* to apply tysuMitnary conviction, where there is no dennn-rer. I'rovision ultra viriK, U'- canse of provincial Act c^reatinjf offence and a penalty. Is an attempt to limit the [Hiworof the courts to adjiidii'ate upon constitutionality of provincial lejjisla- tion. Provisions niafj with vested rights of pro|)erty and tht t|ie C^ueen Victoria > lagara hi\.\W oliligationof contra<;t, withoutproviding Park and tlie Canadian Niagara| for compensation 1 ower (Jompany, and to enable the Company to carry the Agreement into l>racticai effi'ct. Am Act for the Protection of the Pro- vincial Fisheries. Sees. 5, 7, 8, !>, 12 a.:d 13 are infringements upon exclusive rigl.t of federal parlia- ment to legislate cm .tubject of sea coast and inland fisheries. Pending settlement of (luestion of ijrovincial fisheries juris- diction. Act left to oj>jratfon. An Act to consolidate the Act resjiect- Doubtful if iwwcrs cor.fer.-ed by Act uiion ing Municipal Institutions. :..•-. :. .-. ■ ■ •' municipal institut;itis in res|«'Ct to ijtjwer of passii:^ by-knvs, are within legislivtive couijietence. An Act for the better prevention of Trenches on subject of criminal law h raudnlent Statements by Companies' and others. j An Act for the prevention of Cruelty toi and better Protection of Children. An Act to prevent Fraud in the Sale of Milk. do do do do Chap. 49.... I An Act to amend and con-solidat s the Sec. fi, by preventing e.\iK.rtation „f game j Laws for the Protection of (iame and from the province, trenches on suoject Fur-bearing Animals. of trade and commerce. Chap. 93. I I An Act to incoi [lorate the Lake SuperiorSec. 5 can only have effect iis regards rivers j and Algonia Colonization Railway. and harlHiurs and foreshores thereof, subject to legislation of parliament re- garding such. 215 21U 218 238 239 240 241 242 242 242 242 1358 PnOVlNCIAI, I-Er.ISLATlOV TABLE OF ACTS, 1807-1895— Ci.,/Am»«f/. OSTAUIO-Vontiniied. Vict., IHO-}, I'liaji. !)'. Clinp. itH... or CJoinment. An Act. to itn'oipuratc the • ipoixiuii Hay 81m |i Canal and I'owjt Ainu'ducti Coni|iany. I All Act to inc()r|>(initf tlu' Ontario ISiir- (flary luHurance Company (Limited). nS Vict., ctiap. 12. 1896, Chap. 13.. Chap. .S2.. Chaj). 38.. Chap. tJ7. . Clia|). iJ" . . Chap. 115. Chap. 118. An Ai't to conHolidate the Arts govern- ing tlie Supreme Court of .hidieatnre of Ontario. An Act dimini.siiiiijr .ViUH'alH and other- wise impruving the prcjceihire of the Conrts. An .Vet respecting chartering of Trust Companies. I'rovincial hgishiture cannot autliorize a eompany to divert or appropriate rivers, wliifh \niihT the Hritisli North America Act, Iw'cana! part of the puhhc jii-oiK-rty uf Canada. Autliority conferred by Act to cairy on Inisiness is general, and not expressly limited to provincial pMr|MiseH. I'ower confined on provimial le^i hitm-e with regard to companies is, t>y J5ritish North Anarica Act, limited tocompanieu with provincial objectti. Attention called to sees. Wl, l.Sil, 153, 180, 182, 183 and 181 of chap. 12 and sec. 40 of chap. I.'?. These provide for Iiayment of fees by litigants by law stamps which go to con.iolidated revenue fund of [irovince. Such is not diiect taxation and therefore doubtful if province has iH)werto raise soe: ial fund in this manner. Sec. 8 purports to fix precedence of chief justices ami justices of court of a|)peal and high court of justice. Authority of province to enact these provisions ih doubtful. 24H 244 68 244. 244acting business in Ontario, jude.ss authorized l)y provincial letters l)atent. Contains sections decl.iring in effect that 244/,' aliens may Ix? shareholders and office, holdeis in such companies with same rights as British sid)jects. Exclusive legislative authority respecting aliens coniniitted to Dominion jiarliament, so it is beyond authority of provincial legislature to legislate so as to effect their rights. 31 '\ chf 33 Vi( clia] TAHLE OF ACTS, 18671890. 1359 TABLE OF ACTS, im7-\89r,-.aonti,H,eU. ONTARIO -6V(«!/u«/n/. ItfllHOllN ff.r ( »l)j,.l.ticill 111- CcillllllfUt. , I'llJfC. All Alt ri-HiH'ctiiig KUctric Uulhvttys. WccH.l'Js 1111(1 I'.lhiiitlKinzccoiHtnicliciii ,if swiiiK or draw ■ I, lid (f..., wlinifs, f,uv\ l.iid^ris, (to., OMT iiaviffidilc river or canal. ScftioiiH iimy lie (•(iiiHtrui'd to vcxf cdiiMiratc |M)wiM's in uompanifs to • •xccute wi.rkH of iliaiactcr as alMivc. Puwfis iimld not 111' cxficiwd law fully uithoiit |iro. 244r '^the saIe'of"iv,',r'""''"" "' ''''■'""' '" ConstitntoH offHic,.. an,l ,.Ht«l.IiKh,.s ,„.„a: An Act to iiK',,r|K„at.' tin- Al^'oina Ory Sec. 2 sul,j,.ct to ties III rfs|)i'ct to fraud in packiiiff and Hiilcof fruit. licliit.'M ratliir to Miilij.ct of (■iiiniiial law- tliaii aiiv matter of leKiH- latioii cniiiiiiitted to tlie"|no\ iiico. ; 1244.' l>ock (.'oni|iany ilwervufioiiH made witli L'44r leKiiid to Hvcu. 12S and 12i» of chap. 88. Huliject to fnrtlier remark, «> far as harlioiirH or basins are eoncerned, that iml'lic hailioiirs are, l,y the liritisli >.ortli .America Act, part of jiiihlic jacjp- (■rty of Canada, and tlierefore not siii)- ject to provincial legishition. (iUKBEC. Chap,24....Tiu,Jmnt stock Companies- (ieneraljpowe,-s of . companies to l,e established province. .Snl)sec. K of sec. 2 lejfislatcs upon subject of fisheries. Chap. 25.... An Actrespi^tin^the [nc,.rpoiation,>fSec. 2 -the same mnarks that are made' I .lomt 8t'.es obstruction of Hiver Hicheli,.,,,! 253 Hydraulic and Manufacturing Com-, a navigable stream pany. An Act to incorixirate the Canada Maiine rnsurance Company. Sec. 2 authorizes insiiiaiice of risks bevond 253 limits of provinci^ Jiocal legislatures! can only incorporate coinpaiiies with provincial objects. 1360 PROVINfilAL I.KOiai-ATION TABLE OF ACTH, lHC^7-l8^5- -Continued. iiVKHKC- Vimtiminl. ;vi \'ict., clia|i. 2. lH-0, RcaiumH fur Obieotion or ('iiimiiiiil. Pii({( (•Ii;i|). (W. C'liap. 3U. 3ti Vict., 1H72. chap. 52. Chap. at. . . . Cliap. 5!t. . . . H7 Vict.,lS73-74, Cluip, 38 Vict., 1874-76, ohap. 4. An .\('t t incorporate tlie C'oriMM'ation of tlie Town of liauhine. An .Act to amend the Act 2.') Victoria, chap. 7t), intituled : "An Act to in- coriKiratc the Village of 'I'errehonne tut a Town." DealK with criminal law, ina.smnch a.- provixion i.s therein made for the Ninn inary conviction of parties guilty ol aosanlt on a conMtahle or |Hiliceothcer, An Act to amend the Acts rcspectinp (i rave donhts entertained as to constitie I)iHtrict Majj'iKtrates and MagiHtrates Courts in tliw Province. An Act to iiicor|Hiratc tlie Ottawa Iron and Htcel Manufacturing (Jonipany (Limited). tionality of Act, which hr.i already heen ipicHtioned heforc Home courts of jiiHtice, hut Act allowed to go into operation. Powers granted by s<'c. 4 are such that tlieir effect might !«• to interfere with navigation, and therefore are itltni ring. An Alt to encmrage the maniifacturp ProviHion^might nullify orinipair the tincal of Sugar from Bcet-Koot in the Prov- policy of Canada, and cpiestion whether Cha]). Chap. 17 Chap. 28. Chap. 29. Ohap. 7(i. ince of t^utliec. .An Act reKiK^cting the Election of McmU r« of the Legislative Asnen bly of the F'n>vince of t^uehec. All Act to divide the Registration Di- vision of -Montreal into three Regis triitiun liivisions. An .Ac* to amend the Act concerning the eriction and division of Parishes and the building of Chui-ches, Par- sonage Houses, &c. An Act to amend Chapter 18 of the Con- solidated Statutes of Lower Canada. An Act to amend and consolidate the Act of Incor|x)ration of the City of Three Rivers and the various Acts which amend the same. such legislation should U' allowed. Sees. 1 and 3 use the term "parliament ary" electors, which is objectionable, also sec. ()4. .Sees. 5(>, 57, 218, 235, 238, 2.58, 2!K) and 291 treiic^h u|ion the crini inal law. Act was jietitioned against as depriving Mr. (J. H. Ryland, the registrar, of eniol- unients guaranteed him by the imiH-rial government. Lienteiiaiil < ioveinors as surance that Mr. Hyland's interests would \m protected, wa« accepted. Act alters soniejirovisions of Consolidated Statutes for Lower Canada, chap. 18, res|M'cting procedure for elections and division of )iarishes, Ac. Inconvenience which might arise from a departure in particular cases from the general and well-known satisfactory sys- tem prescribed l>y the statute. Sec. 79, subsec. 4, trenches u\Km the pro- visions of the criminal law. 257 25!) 2(10 2(il) 2(il 2(H 2C)8 278 278 263 TAIII.K OK ACTS, 1 8t)7- 1 JSi)'). i;{(ii TABLR OF ACTS, \S&7-lH9!i—ronfhn,wl. Hi, KliKC CoiUinueU. Adt 257 ;w Viot.,iH74-7r.. c'liii|i. 7H. ('Imp. 7!) An Act ti L>f)!) Cliai). SI . f'lmp. H!l. 2(1(1 2(i() 2." iiltrii irpoiiitc tlic City of Hull. .An .\t't to inc(iii«prat,c the .\tliintic In wiiinuc- Company of Muntii'al. Hpo. !M, ciiipowi'iin^' ('(iinicil of Hull to niakr by lawn iilatinK to fiiiit's lii'twct ii Hull anil (Htawa is idtni nri:<. Sic. IM trt'iulii'H upon pidviHJonN of i riniinal law and is siirular to hic. ot, chap. 02, of ;i(l V'icl., ajicady olijci'tcil to. Sees. 1(1(1, 21'.», 220 and 221 dwd with tho criminal law. liusinrMs authorized liy the .Vet ro lie done is not stiittly (.'ontini'd to the pro\ ince, an olijcttion already ma» Company. An Act to aiithorize (it'orge BcuHon Hall to make imiirovenients in the Kivei- Chaiidieie and exact tolls for the use' thereof. All Act rpHiiectinjf the conHtrnction of the iinebec, Montreal and Cccidental Railway. l.'i, 18 and l!t I ippear to come within the (Timinal law, heinK- provided for in tli«^ Act relating to malicioiiH injnricB to pro|)«rty. I'rovisionH granting powers to make Imoms and piers in tidal and iia\inalile rivers n :'i/lit tend to interfere with na\ itfation. QueHtionalile if authority given liy sec. 22 is n()t more extensive than can properly be tjiven by provincial legislature. Sec. 43 invests the railway with all rights, franchises, &c., granted by the parlia- ment of Canada, which local legislature cannot affect. An Act to amend the Act38Vict.,Chap.|l'roviHions might nullify or impair the ti.scal 4, respecting the manufacture of Sngari |Kjlicy of (Canada, and (piestioii whether from |}eet-Ho(it. such legislation should be allowed. An Act further to amend tho Quebec Act oontain.s provisions open to thi License Act (3 1 Vict., Chap. 2) and ((iiestioiis iiH has been already sti e same stated tt) lie mill judici; as to the competency of the local legislature to affect trade and commerce by such legislation. The imposition of a tax of 1 per cent on renewals of life assurance contracted for at a speeitied premium before the jiassing of this Aitt is unfair to the company. An Act respecting the compilation of Act deals 'itli subject of statistics, but StiitisticB of Births, Marriafs and similar legislation has lieen suffered to oaunei of Death in this Province. j go into opersition in other [irovinces. the several Acts amending the same, and to extend the application thereof. An Act to com])el Assurers to take out a License. Chap. 41 . An Act to amend and consolidate the various Acts respectintj the Notarial Profession in this Province. An Act to annex certain iK>rtion8 of the Township of Shawinigan, in the Coun- ty of .St. Maurice, to the Parish of St. Hore, ill the County of Champlain, for Scluxjl, Municipal and Registration {)urf)oses, and for the puriKJses of Par- iauientary Representation. RR Sec. 7 makes an assault u|K)n a notary a misdemeanour, and thus trenches ui)on criminal law. The use of the term " iiarlianientary " again objecte *u^ ...>..,!. „i,i.„.f;,.„ of. ■ 283 283 3m'atic(! Company of Canada. ment, is o])en to the same objection. CMiap. 00. Chap. 70. . . Chap. 30. An Act respecting a Company incor-IThis company was already incor|Knated )K)i'ated undertlie name of " Le Credit' under chap. 102. >'iO Vic, Canada, and it Foncier du lias Canada." seems objectioiuible that a provincial legislature should regrant powers to a Canadian company. An Act to authorize ^he Victor Hudon Sec. 2, subsec 4, incerferes with the law of Cotton Company, Hocholaga, toissue, interest, debentures on the security of the pro- |x!rty of the said Company, and fori other l)UriX5se&. Chap. 3r; 41 V'ct., 1878, chap. 3. Chap. 26. An Act to incoriiorate the nuisical band i>par to eii- clmp. 58. Act incoriKjratiii}; the Town of St. Henri. trench U|)<)ii tlie rejfiihuion of trade ami connneree, liiif as the whole ((iiestion is before the fSii]>reine (.'ourt, in re .lone.s I-.S-. (rilhert, no interference is reconi- niended. 284 201 202 284 284 Char. C(' An Act toanienrl the Act incorporatinp Section rieals with the subject of interest j the City of Sherl rooke. (3!) Vict., wliieli by the F.iitish North Anierica Cha]!. 50. ) I Act, is |)lace.'l witliiiexchisive legislative control of tiie parlii.nient of Canada. 41-45 Viet., 1881, An .\ctreti))ectinpthe Laval rniversity,'.Vct petitioned against on several Kroiuids, chap. 46. ' and for the iHirpose of increasing thej but upon exaniinrition was found to be I numV)er f)f its ('liairs of Arts andl witliin powers conferred upon the I other faculties witliin the limits ofi (^nebec leRislatin-e, by Uritish ?torth the Province of Quebec. 1 America Act. Chap. (iO. Chap. 72. An Act to incorpi>rate the Electric Light Company. Canadian Section 20 irniwises jienalty for damiiginpf ! or injuring n'orUs or ajjparatus of the I com))any, whereas by Act of pariiament I of Canada, tlie offence created by part of I I section is made a misdemeanour, so that i , there is conflict of laws. ! i An Act to incor|>orate the Quebec and T5y sec. snme conflict of laws is created i Levis Telephone Company. ' as in chai). till. 45 Vict., 1882,1 An Act to facilitate tln' intervention of|Sectlon 1 provides tliat (juestion of consti- chap. 4. if 2a5 285 280 Chap. Chap. 22.... Chaii. 35. . . . Chap. 103. , . 4(1 Vict., 1883, chap. 56. 305 Chap. 76. th'i Crown in civil eases in wliieh the constitutionality of federal or provin- cial Axts i.s in question. tutionalir.y ui L>ominion or provincial Acts shall not be raised, unless party shows to th(! court that notice has been (fiven to the Attorney (Jeneral (with grounds alle|;ed) ei^ht days before day apjiointed for liearing. S c. 1 ol)jection- nbje so far aa it deals with Acts of par- liament. An Act to amend the Quebec License Act is •.. Law of 1878. (41 Vict., chap. 3.) ; virfs of provincial legislature. rins of provincial An Act to impose certain Direct Taxes AllcBfed to lie iiltiui on certain commercial corporations. legislature. An Act to further amend the ^[unicipal.To apply inovisions of law set out in sec. Cixle of the Province of Quebec. j 2 to federal government railways is be- I yt)nd [Kiwcr of provincial legislatme. I An Act to incor|X)rate the Town of Power gi\en by sec. 23, subsec 12 to town Richmond. coiuicil, to make I vlaws to regulate or prohibit sde of intoxicants within limits of town, i' iiltrti vires. t\.n Act to confirm the Act of the Act jiassed owing to doubts as to r.uthority of pdrliament to make ja-ovisiim, thr,c in windin" up of comjianies, proceedings for V' very of claims must be made within one year. Act iinneces,snTy, as parliament having authority to legislat *or winding up a ci/mp.-iny, Ijy reason of bankru)>tcy, would have power to enact provisions mentioned. An Act to incor))orate the Cit zens Gas Sections 25, ?(! and 2i» trench iiyioti the eub- Oompany of Montreal i ject of criminal law. Federal Parliament, intitided: "An Act to amend and extend the Acts to! emiMiwer theStadacona Fire and Life Insurance Company tore] inipiish their; charter, and to jmivide for the wind-' ing up of their affairs." 20(J 2t)(i ;i04 .304 304 3i)(i 30('. 307 307 307 308 308 308 1364 PROVINCIAL LEGISLATION TABLE OF ACTS, 1867-1895— C'oni!«iuec/. qVVMKC— Continued. 47 Vict ctiaip. 7 1SS4, An Act to autluiri^' tlipdovpniment of I t^ui'lM'f to take |M)ss<'Bsioii of a ctTtiiin : Toll ISridjfc over till- Hivi'i- Kicln'liiMi. \ct ixst.tioiiejl agiiiiiMt im grouixlH of inva- sion of rifjlit and (li»|iossi'ssion of ]iro- Iitrty sfcuii-(l liv solemn coni|)aet of jower f'anaila legislature. DepiiveH |)etitioner.s of pniperty without |irovi their recotuse to lepil tri- bunals of the country. Act considered within competence of tiie legislature. 309 Chap. ST. . Chap- '•">- • • • 48 Vict., 18H.5, chai>. 1(1. Chap. 22. . Chai). 32. 4!l-r)0 Vict., 188G, chap. 84. Sec. IB, s\il).sees. 4 to 7, and sees. K! and 310 17 trench upon tlie power of parliament| to legislate with resiiect to criminal law. i An Act to further amend Ijie Act 27 A'ietoria, cha|>. 23. and the Act 3!) Victoria, cliap. 47. An Act to incorporate the Town of Ste. Sections iVi, (i.'i and (HJ trench upon subjects C\u\egonde. '• of criminal law. An Act respecting I'lscheats and I'ro- Question as to whether the Crown, in perty Confiscated to tlie Crown. right of the Dominion or proviuee, isi I entitled to eselii-at of peisonal property,] 1 is before courts for decision. Amend-, I nient of Act desired, so as to limit appli-; cation to pro|H'rty, which escheats toj Crown ill riglit of province. abandonment of property. An Act to amend the Code of Civil Provision made for the luhninistration of Pi-ocednre in «o far as it concerns estates of insolvent persons in same wayj as in the Ontario Act (48 V'iclrfK)rate tiie Town of Drunimondville. .\n Act to erect the Town of Coatic(K)k into a Town with a S|ie(ial C!iiarter. An Act to incorporate tlie NajHerville .Tuncticm Kailway Company. An Act to incor(x)rate tlie I'ortagfe-du- Fort and Bristol Branch Kailway Company. An Act to incoriKirate tlie l'liilii)sburgh .lunction Railway and (Quarry Com- pany. An Act to incorixmite the St. Maurice Kailwiiy Conii)any. An .\ t resiH'cting the execntivi' admin- istration of the laws of this province. ,\n .•Vet to amend the law reaiMJcting fishing in this province. .\n .\ct to amend the law respecting land 8\irveyors and the survey of lands. Reasons for Objection or Comment. Sec pag(! 386-429. Act apiiears to be an infringement uixm proiMTty and |x)wers of thi' Dominion government resjiecting sea coast and inland fisheri(!s. Sec. 11 is lej^islation affecting the criminal law, and is expresslj' at variance with sec. 29, chap. Jiii, Revised Statutes of Canada. Professes to give the comjiany abs<>lut( rights in respect to River Richelieu, thus dealing with subject wholly within the [lowei's of the Canadian iiarliament. Original Act incoriKH-ated a com|)any for the purpose of (erecting a toll bridge over River .St. Francis, thus interfering with its navijjation, is beyond the |«)weis of the provincial legislature. Similar observations, .so far as the powers of the ])rovincial legislature are con- cerned, apply to this Act as to chap. 7.">. Contain provisions mori' or less beyond the competency of a proviufual legis- lature to pass, as trenching on the subjects of navigation and shipping, criminal law, interprovincial railway.s, and iiiilways for the general advantage of CiMiada. Contain provisions i«'rniitting aliens to have e(|ual rights with British subject;-, in railway stock. Infringes on exclu- sive right of lV)miiiioii parliament to legislate on subject of aliens. Section 15 Ix-yond competence of provin cial legislature, asdealing with subject of bills of exchange and piomi.sory notes. Act lieyoiid legislature. competence of provincial Doubtful as to rights of ))ro\ iiicial legisla- tun' to pass any eii.actnieiit ile.iling with the fisheries, whether in iulaiid waters or elsewhere. Provisions prescribing conditions necessary before any oni' can act as land survey<)r in <.iuebec, and attaching penaltie*i to any one acting who has not conformed thereto, are ultra rirat. .so far as tliey are inconsistent with Dominion Lands Act. Page. 378 378 378 379 379 380 381 382 432 4,53 433 ■M 1366 PROVINCIAL LEGISLATION TABLE OF ACTS, 1867-1895— Continued. iiVV.UKC— Continued. Act Title. 52 Vict., 1889, chap. 7C. Chap. 77.. Chap. 89.,.. Chap. 90... Chap. 91... Chap. 92... Chap. 93... Chap. 79... Chap. 80. . . Ai. '^ct to incorporate the Bel Air Jockey Club. An Act to incorixirate the St. Lawrence Improvement Company. An Act to incorporate the Lotbiniere and Megantic Railway Company. An Act to incorporate the Lake St. Fran- cia Railway and Navigation Company. An Act to incor|)orate the Peninsiila and Gasjie Short Line Railway Company. An Act to incorfx^rate the Eastern Railway Comjiany. An Act- to incor[)oratB the Matane Raihvay Company. An Act to revise and consolidate the charter of the City of Montreal and the several Acts amending the same. An Act to incorporate the City of Sorel. Reasons for Objection or Comment. Page. Sections 10 and 11 trench upon the subject of the criminal law. Contain certain provisions in regard to promissory notes and bills of exchange which may be invalid. 53 Vict., 1890, An Act to incoriiorate the City of Ste. chap. 70. Cunegonde, Montreal. Chap. 71. Chap. 72.... •Chap. 73.... Chap. 74 ■Chap. 75. . . . <3hap. 76..., »Ohap. 77.... •Chap. 78. . . . "Chap. 79.... An Act to consolidate the Acts respect- ing the coriK>ration of the Town of St. Jf>hn8. An Act to amend and consolidate the Acts of incoriKjration of the Town of Terrebonne. An Act to incoriK)rate the Town of Acton. An Act to incorixirate the Town of Buckingham. An Act to incorixjrate the Town of CAte St. Louis. Aji Act to incorporate the Town of Cflte St. Antoine. An Act to inoor|)orate Town of Bedford. An Act to incovmrate the Town of Vic- toriaville, and to erect the munici- pality of the iMirish of St. Victoire d'Arthnbaska. An Act to incor]>orate the Town of Mn^og and for the better manage- ment of wlucation within its limits. R Provisions relating to taxation, to make by-laws, fines and remission ot fines. Ap|X)intnient of recorder and his quali- fications, open toq\iestions as being ultra vires of provincial legislature. <'o do Sections authorizing opening, &c, of ice roads, taking of ice from nvei-s, and establish merit of fences, oiien to question, as in terference with rights of parliament resi>ecting navigable rivers, and rights of Doniinicn in relation to those rivers, 1 Oljjectionable, as lai-ge jxiwers of enact ing by-laws vested in the '.jouncil of tiiese corix)rat!ons, is oixm Ui question, [nfrinffe more or less \ip7 Vict., 1894, chap. 50. An Act to consolidate the various Acts affecting the incorixjration of the Town of Iberville. 01)jected to as interfering with private' rights unjustly and confi.scnting private property, takuigaway from purohaser.x: of lands patented since 1880 the right of acquiring mines existing (m their lands. Law IS contrary to general interests of Canada and trade )K)licy of the Do- minion, is ultrii vires aiid unconstitu- tional. Act should beamendf'd making It clear that Act only applies to mines ami minerals whi<:h belong to Crown,! although not sjiecially reserved. '! In leaving Act to o|)eration, statement con- tameti in preamble as to insiifticiency of court to ])(!rfonn its functions as .at pres- ent constituted, not concurred in, nor that ap|H)intinents provided for by the Act should be made.. 454 .\n Act to incorporate the Town of Cookshire. An Act to incorporate the Town of Scots town. An Act to incorixirate the Quebec Ex position Company. An Act to incorporate the Compagnie Hy()otheoaire. An Act resiK'Cting the early closing of shops. 437 Chap. 57... Chap. 59... An Act to amend the Act 54 Vict., chap. 78, concerning the Charter of the City of Montreal. An Act to amend the various Acts re- lating to the Coriwration of the City of Three Rivers. An Act to consolidate the Acts respect- ing the Cortwration of the Town of Salaberry of Valleyfield. In leaving Acts to oiieration, iK)wer and authority which by them are conferred u|X)n municipal institutions in respect to their power of pa.ssing by-laws, not to be understood as being within com- l)etem;y of provincial legislature. Section 14 deals with malicious injuries to proiierty p,nd entronches on subject of criminal law. Sections 6, 7 and 8 appear to contemplate such a disiK)sal of money by lot as would be illegal under sec. 205 of criminal code Provincial legislature has no i)ower to luithorize an Act, constituted an offence by i)arli anient. Act objected to as an encroachment on powers of Dominion parliament to regu ate trade and commerce, also as not having any connection with municipal institutions, nor legitimately within sub jects of iMihce regulation, but Act con- sidered a matter entirely for provincial legislation, coming under sec. 92 of The Jiritish North America Act. Objected to on grounds that legislation is contrary to public interests, infringiiiK the liberties and rights of property of citizens, but Act considered unobjection- able. Section 14. If i.rovision of sec. 14 extends to railways under Dominion control provincial legislature not competent to enact such section. Sections 148, 149 and 197. If iirovisious of these sections extend to railways undei Dominion control, it is not comimtent for provincial legislature to enact them 455 459 459 460 462 468 463 463 1368 PROVINCIAL LEGISLATION TABLE OF ACTS, 1867-1895— Con^mMgrf. qVEBKC— Continued. Act. 67 Vict., 1894, chap. 66. Chap. 71 . Chap. 75.. Title. Chap. 83. 58 Vioi., 1895, chap. 20. An Act ti) amend and consolidate the cliarter of the Town of Cliicoutiini, An Act to amend the Act 44-45 Vict., chap. 44, incor]K)rating the Quebec, Montmorency and Charlevoix Rail- way Comi)any, and amendments thereto, and granting additional ix)wers to the said c-ompany. An^Act to incorporate The Merchants' Fire InHurance Company. Reasons for Objection or Comment. Page. Section 61 is in conflict with sees. 198 and 307 of criminal code, asajjpearing to con- temiJate the p\mi«hment of keejters of disorderly houses by virtue of a uninici- pal bylaw. To that extent enactment is beyond iK)wer of the jirovincial legis- lat\ire. Section 6 might be oixmi to objectiim, as provincial legislatiire could not enijiower the coHii)any to build or operate vessels on waters beyoud the limits of the pro- vince. An Act to grant extended jiowers to the Municipal Cor|)oration of tlie Town of Xicolet, nnd of St. .lean Baptiste de Nicolet, Section 11 construed as merely intended to define conditiims under wliicli, so far as provincial auth(>rity is concerned, coni- l)any can be authorized to carry on busi- ness, and not intended to authorize the company to disregard provisions of In- surance Act. Provincial legislature can- not dispense with reiiuirements of Insur- ance Act. Objected to as interfering with vested in- terests guaranteed under a jirei'ious btatute, and authorizing im]X)sition of a tax ujKJU taxaWe property. Act con- sidered within the jKiwers of provincial leg slation. ^",.4'^*'.*" '"■"'^"'1 t'le law relating to Pi-nvininns of Act resiiecting seacoast and 46!) Fisheries and fishing in the waters under the charter of this Province. inla.id fisheries, strictly I'elateto seacoast and inland fisheries, as to which, legis- lativi! aiitliority is vested in Parliament. Thei are alsoineonsistcnt with Dominion legiflation whicli has already teen en- a,cted, covering same ground. 463 464 464 466 31 32 33 34 NOVA SCOTIA. 31 Vict., cha]). 2. 1868, Chap. 4. Chap. 11.. An Act to amend Chap. 120 of the jThis Act does not alter the previous law Revised Statutes of the Solenmization I except as to the [w on who shall dis- of Marriage, and the Registration of tribut*; licenses, and i,,erefore it may go Marriages, Births and Deaths, and into oiK;ratioii, but the riglit to issue the tlie Act m amendment thereof. license must Ije referred to the law officers of the Crown. An Act to amend Chap. 137 of the This Act seems ultr'i virrn, but as the Act Revised Statutes for the Relief of amended by it was more for the i-elief Insolvent Debtors. An Act to amend Chai). 72 of the Re- vised Statutes of Commissioners of Sewers and the regulating of Dyked and Marsh Lands. BE i)f indiffent debtors than a law of insol- vency, it was allowed to fgo into oi«'ra- tion. (A similar law of New Urunswick was declared uiieonstitutioiial by the court here.) Grants fxiwer to commissioners anixMnted under it as well lieyond, an within the boundaries of Nova Scotia and Act may therefore bo lieyond the jurisdiction of provincial legislature. 472 472 471 TABLE OF ACTS, 1867-1895. 1369 TABLE OP ACTS, 1867-1895 --Continued. NOVA aCOTlA—Cmtinued. Page. 31 Vict., 1868, 1 A II Act to amend tlif Act for the ai>- Section 2 allowing a jury of three disin- cli!i|'- 18. ^ointment of a StiiHindiarv Magis-, terested persons to try a larcenv oiise, is trate and I'olice ConHtable in the- an interference with criminal procedure Tcjwn of Pictt>u. 464 464 32 Vict., 1860,;An Act to amend Chap. 73 of the Re- cho'j. 11. vi.sed Statutes of Shipping and Seamen. Chap. 12.... Chap. 16.... 3,3 Vic, chai). 2. Amendments to that Act can only lie passed by parliament of Canada which has l)y B. N. A. Act, exclusive jurisdic- tion relating to trade and commerce, shipping and navigation. A". Act in addition to Chap. 162 of the Sections 2 and 3 relate to criminal law, Revised Statutes of offences against! and doul)ts entertained whetlier they the Public Peace. are not ultra ihvu. An Act to amend Chap. 02 of the Re- vised Statutes of the preservation of useful birds and animals. 1870, An Act to improve the Administration : of .Fustice. 466 46!) 34 Vict.. 1871, chap. 57. 36 Vict., 1873, chap. 38. Chap. 39. Chap. 40. 37 Vict., 1874, chap. 14 Beyond jurisdiction of provincial legisla- ture as it relates to subject of trade and connuerce. Section 8 legislates as to the discharge of insolvent debtors, and perhaps infringes on the jurisdietion of Caniula, but the objection is not of sufficient imiiortance to warrant disallowance. Section 14 is unconstitutional as declaring Cfrtain conduct a misdemeanour. An Act to incorporate the Nova Scotia Mutual hire Insuiance (Jompany. An Act to incoriHjrate the Whitehaven, Section 6 gives power to purcliase, et<>.. New (ilasgow and North Shore Rail way, An Act to ineorfmrate the Sydney and East Bay Railway Company. An Act to incorporate the Nict.aux and Atlantic Railway Company. without the jirovince. .Sec. !), piving l»wer to cross iiny river, brook orstreain, does not except navigable waters. Sections !l and 12.— The remarks as to chap. 38 apply also to this one. Sec. 10 should be limited to railways within the Jirovince. Sections 8, 11 and 14.— The rem.arks on chap. 38 apply al.so to this Act. 472 472 471 Chap. 15., Chap. 18.. Chap. 62.. Chap. 63.. Chaii. 68.. Chap. 69.. .An Act to amend the Revised Statutes Purjiorts to restrain and jirohibit the sale of Licenses for the sale of Intoxicating! of intoxicating liqiiors under certain cir- Liquors. cumstances, and provisions may be in restraint of trade. An Act to prevent the sale (.f Intoxi- cating Liquors at Camp Meetings. An Act to establish County Courts . . do do Section 3 limits the choice of the Governor! General in apjxiinting judges. Counties Railway Company. company to purchase, &c., within and' without the (irovince. Sec. 13, emixjwer- 1 ing to cross .my harlxiurs, &c., makes no reservation regarding navigation. Section 14. — See remarks on chap. 62 as to navigation. An Act to incorixirate the Inverness Railway Company. An Act to incorjKjrate "Styles MiningjSection 10 do Company,' Limited. An Act relating to the General Mining|Section 2 do I Association, Limited. | BB do do 474 474 474 475 476 478 478 478 480 489 481 489 An Act to incoriKiiate the Eastern Section 10 is t'ltra rire.i as authorizing the; 481 481 481 481 1370 PROVINCIAL I.EOISLATION «! m TABLE OF ACTS, \867-l»95—Continur>i. NOVA SCOTlA-ConUnned. 38 Vict., 1875, chap. 26. Chap. 29,... Chap. 76 Chap. 77... Chap. 73.... Chap. 79.... Chap. 89... Chap. 90.... Chap. 91.... Chap. 92.... An Act for anipiuliiig the law relating to Kh'ction Petitions and for provid- ing more effectually for the Preven- tion of Corrupt Practices at El«ction». ReaHonn for Objection or Comment. Section 74 deals with criminal pnicedure. . An Act to continue the Acts of Incor-lSection 1 continues certain ^lowers which poration of Wharf, Pier and Break water Companies. An Act to incorjxjrate the (ilolw Marine Insurance Company. An Act to continue and amend the Act relating to tiie Nova Scotia Marine Insurance Company. An Act to incorjiorate the Maitland Marine Insurance Company. An Act relating to the ITnion Marine Insurance Company of Nova Scotia. An Act to incorjwrate the Ci)lchiiKt<-T Lumber Driving and Manufaotnring Comijany. An Act to incorjHjrate the St. Margaret's Bay Lumlter and Timber Driving Company. An Act tti incorporate the Cumberland' Driving Company. | ,An .A.ct to incoriKjrate the Liscomlie, j River Driving Company. Page. may Iw Wyond local jurisdiction, but the Act may go into o|ieration, ■ On this Act together with 'haps. 77, 78 and 79, reference is made i.o tne reixirt of 27th Oct., 1875, upon the Prince Edward Island Act to incorporate the " Merchants' Murine Insurance Com- pany," ante page 1102, in which the unlimited nature of the business to be done is |M)inti'(l out ; and also to the re|K)rtof Itith Nov., 1875, ujion the On-1 tario Act to incor|K)rat«^ the " Canada Fire and Marine Insurance Company," ante page 142, which ]X)intH out that the Act does not provide tliat the chief place of business of the company shalli he in the province, and also objt^cts to| the name " Canada " as indicating; more than jirovincial power. It is objected to this and also chafM. 90, 91 and 92, that they eniix)wer the com- panies to levy tolls not merely for the conveyance of logs, &c., through the imjirovements, but also on the naviga- ble parts of the rivers. Also that some of these streams might tie made navi- gable by a small expenditure, and that chap. 92 does not contain a restrictive clause as to navigation. 39 Vict. , 1876, , An Act to alter and amend Chap. 75 of The word ' ' offence " is several times used . chap. 1. I the Revised Statutes of Licenses for j the sale of intoxicating liquors and I the Acts in amendment thereof. Chap. 22..,. Chap. 24.... Chap. 42. . Chap. 43,... Chap. 49.... An Act re8^)ecting the Legislature of Nova Scotia. An Act to amend Chap. 25 of the Revisid Statutes, 4th Series of the Churcli of England. An Act resiiecting the Lower Chez/.et- cook Dyke, in the County of Halifax. An Act to provide for supplying the Town of Dartmouth with water. An Act to amend the Act to incorporate the Town of Truro. RR Sec. 2 asserts a right to legislate in excess of what has been decided to lie the legisla- tive iKiwerof a province. Sec. 14, sulisec. 3, should be confined to officers of the le- gislature. Sec. 17, last parajprraph, gives the rules of either House the force of law Had legislation lieen entirely novel, it might be neceasary to consider how far under our ix)litical system it was projier to make enactments contained in Act. Section 4 uses the term " offence " already oVijected to. Section 21 is wide enough to embrace breach(rH of the criminal law. Sections 8 and 10 apjiear to trench ujxin criminal law and procedure. 490 490 491 492 495 496 490 496 496 496 1 TABLE OF ACT8, 1 80 7- 1895. 1371 TABLE OF ACTS, 1867-1 895- Conimwerf. NOVA HCOTlA-ContinucJ. Page. 490 490 491 :«» Vict., chap. 88. Chap. 92. All Act tdivinend thf Act to incorporate Sec remarkH on the original Act, chap. 89, the Colchester Lumber Drivinj? audi 38 Vic, 1875, page 492. Manufacturing Conipuny. I An Act to incor|X)rate the Nova Scotiu Fishing Company (Limiteti). There in no provision an to the place or places where tl>e l)U«ineMs is to be car- ried on, or BH to the rangt^ of the powers of the coinjiany. 40 Vict., 1877, An Act further to amend the Act to Hec. 4 provides that all tines, costs and chap. 57. incoi ptjrate the town of New ( Jlasgow. 492 Chap. 07. Chap. 68. Chap. 69. . 42 Vict., 1879, chap. 22. 43 Vict., cJiivp. 9. 1880, An Act to incorporate the Truro Marine Insurance Company. The ShifMjwners' Marine Insurance Company of Windsor (Limited). Ah Act to amend the Act to incorj)orate "The Maitland Marine Insurance Company." An Act respecting Estreats . 495 496 496 Chap. 11. . . Chap. 68. . . . 44 Vict., 1881, cliap. 11. Chap. 10. fees shall farm a fund to pay the re eorder's salary and expenses of the court ; this should 1m' restricted to fines, &c., under laws within the exclusive jurisdic- tion of the province. ISec. 8 confers on the jxjlice court the |x)wer8 of one or more jiiRtices of the peace. Authority to incoriM)rato a company to transact marine insurance is doubtful, as |)Ower to do so must b<< derived from Ijower to inct)r|K]rate companies with provincial objects. do do do do do do Doubtful if sections of Act making provi- sion for collection of all fines and for- feited recognizances imposed or f(jrfeited by or before the supreme court in any county in the province are within legis- lative comp*;tence of tlie local legislature. Provisions of the Act seem to entrench on the subject of trade and commerce. An Act to amend chap. 85, Revised Statutes, 3rd series, "of the Regiila- tion anc! Inspection of Provisions Lumber, Fuel and other Merchan- dise. An Act tt) amend the laws relating to Sec. 14 appears to be beyond the powers 500 Barristers and Attorneys. of the legislature, in so far as they relate to the court of vice admiralty. An Act to amend the Act to incorporate the Nova Scotia Society for the Pre- vention of Cruelty to Animals. An Act in reference to 'Crown lands and Crown Surveyors. An Act to amend the Nova Scotia Rail- way Act, 1880. KR Sec. 3 of Act declaring that when pro- ceedings are taken for escheat of any lands, sucli lands shall be deemed and held to be vested in the Crown, &c., is ultra vircn, as the D(jininion and not the province is entitled to escheated lands. This Act was jietitioned against and dis- allowance asked for, but uixjii investi- gation it was found to be unobjection- able, and was left to its operation. 496 496 498 499 600 600 605 606 Sec. 7 seems to deal with the subject of 506 criminal law or the procedure in crim- inal cases. 507 517 1372 PUOVINCIAr- LEOI8LATI0>f TABLE OF ACTS, 1867-1895— C'on/tnwerf. NOVA SCOTIA- Continuftl. Act. 45 Vict., 1882, cha|i. 'H), Clinii. 21.... Chup. 01.... Chap. 73.... Title, Reu.foiiN fur Oliji ction mi r'uiiiiueiit. All Act for the cimMolidntion of the Novu Scotia HailwayH. All Act to aiiicnil tlic Novii Scotia! Kuilway Act of IS8<), and tlic Act in auieiulinent tiinrHof. 1 An .Vet to imorporatc tlif KaHtcrn OfVflopnieiit ('oiiipHiiy (Limited). An Act to iucorfKirate the Pictou Oil Comiumy. 40 Vict., 1883, An Act to autiioii/.f the raining of a Provincial Loan. chap. 19. Chap. 21. Chap. 86. An Act reKptcting tho Eastern Exten-: .sion Railway. , 47 Vict., 1884, chap. 19. Chap. 26. 48 Vict., 1888, cha]). 1. Chap. 23. Chap. 31. . . . Chap. .39. iDoiilitK UN to vvlietlier leeitivlH in Act relating? to railways owned liy tlic iJoininion lontained Htnteiiients !(•- H|»>ctiiiK ri^lits of proviiu'e not in nccoi'd with ri^litrt ailmilied \>y iJo- niinion to e.\i^t, and whether |Hilicy of the Act ronfli"ts with hoininioii lM)iicy. There l>eiiit; nothing in ri'Cit- all* or .\ct, to which I'xceptlon could 1m' taken the .\i;tH were left to tlieir oiieration. iAetence of provincial legis- lature, it was left to its operation. ii TAUtE OF ACTS, 1 'tJ7-1895. l;573 I '"({*'• ■jlS .■)]!) 520 521 522 323 131 33 TABLE OF ACTS, 1867 -lSdfi~ContinHe,{. NOVA HCOTlA-ContimuU. Aft. 4!» Vict., ('hat>. 2. Title. 1880, All Act td ineoriK)r.' ■ • tlio Halifax and nt and iiiipiiivciiitnt of tlu^ (.'fiiictcry in U|.per Htcwi.ickc, in tlic Comity of CohjlicMtcr. An Act to incor|)orate the FoicMt Hill Cemetery CoiniMiny of ColchoHtcr. An Act to incor|)oratc tin- TiustccM of Soiitli Hiook C'ciut'tery, in tlic Comity of Iiivernens. An Act to incorixjrate the Plymouth Cemetery Company. An Act to uniend thi' .\ctH relating t( the Town of Uurtmouth. |Soiiieof iKuvcrs giv.Mi to (•oini.aiiy appeiii to iK'of iiniiNiial character, liut an Act is within legirlative cotniM'tence of legisla tare, .Vet left to its iijierali(iii. Si'ction ">«, Hulweotion 2, in not within legi»latm. mitliority of provincial le^i.s. latiiie, and for reason- .lore fully .itated on pp. rMSrM. An Act to K(!ntville. incoriKirate the Town of ection ]t>t>f chap. 81, xcr. 14 of chap. l.StI, ncc. 1.") (if chap. H7 and sec. IS lit chap. 1(18 lijectionalile, ,is dealing with siilijects of malicious iiijinicH to jii-operty and larceny, which are pun- mhable muler the criminal law. .Vp-art from ipiestiiin of legislative authority, and that provisions are imnece.ssarv, enactmentii of this character should not be inserted in private .Vets, but should appear in public general laws, so that all may be aware thereof. Section 17(i giving [xiwor to peace otticer to arrest without warrant, trenches on criminal law and in view of provisions of Revised Statutes of Canada, chap. 174, sec. 24, is uniiecessary. s,.c. 182 provid- ing that tines and f'iH. ures collected! in stiiteiifliary magistiMics' and |M)lice courts should form part of general rev- enues of the town, should be limited toj fines and forfeitures subject to legisla- tive authority of legislature Power to^ make by-laws relating to use and nian-i ftgenient of docks and wharfs, weigh-' ing and measureiiM-nt of salt and other comiiioditie.s, the prevention of vice! and immorality, the discharging andi de|iositiug of ballast in harbour, sliouldj 1)0 subject to legislation at any time en ' acted by prrliament of Canado. Observations made with respect to chap. 88 are applicable to thesse Acts. An Act to con.solidate and amend tlie' Acts relating to the Town of New, Glasgow. ^"f"^^^. >T'"V",^ ^'•'. *^^ »'l ministration Tn leaving Act to operation. Dominion rov- of ( nnimal .lustice in the Huprem.- ern-iient do not share doubt expressedin ^"""' I the preamble, as to whether the resiion- sibility of paying expenses of criminal prosecution, was iiii|K)sed on federal or provincial goveriiments An Act to amend chap. 106 of the Re- vised Statutes of the County Courts and the procedure therein . RB Act i«ititioned against as operating un- fairly against litijgants, and to prejudice of pending suits in court, and that legis- lation altering rights and status of liti gants was pernicious. ,\ct wa.s deemed within legislative authority of province,; and was left to its operation. Pntf.'. r)(i3 503 5.W 500 rm 660 571 572 i «i^ 1574 PHOVINCIAL I.EfUHLATION TAItLK OF ACTS, \S()7 -ISdfi—Continued. NOVA MCOTIA C,mtin,i,,l. Ati »» Vict.. ohnp. 20, 1887 Chap. 51. TitlH. KfaMdiiH fi>r ()l)JHCtion or CoiiMiient. Page. An Act to iitiieiul clm|i. A'i nf tlic Hf- vjikkI St.itntt'H of ('oiiiiiiiMHiont'rH of Sfwrrn and l)ykf(l inietenceof provincial legiH lature. IVovinion of Act relating to appointment of Hti|)endiary niagiHtrateNl iH dou)itf\d. Open to Han\e ohjeotiouH aH chap. .51 J Power conferred by nee. 239, sidwec. 10, to make regulations as to siipprension of vice and as to oV)servance of Sunday, is doubtful. Title sef'uis to indicate that promoters in- tended that businesH of the comj)any should Ik- done outside province of Nova Scotia. Sections IH, 19 and 20 objectionable, an trenching on criminal law. Section 15 trenches on criminal law . Section 18 Section 1!) Section 19 do do do do do do Section 2()y objectitmable as giving iKiwer] to make bylaws on following subjeet.1 : ((/) weighing and measurement of coal and wooii, salt, &c. ; {ti) prevention and punishment of vice, immorality, &c., on public streets, and prevention of pro- fanation of Sunday — these nuitters being within control of parliament of Canada. Sec. 15, relating to lict'using of auction- eers, pedlars, &c., who are not rate])ayers of town, is of doubtful validity. Sec. 187, giving enlarged jurisdiction to nuniicipal court, is open to serious objection. An Act to amend and consolidate theThe British North America Act limits the Acts relating to ments. Municipal Assess- BB ix)wers of taxation vested in i>rovincial legislat\n'e to iin))osition of direct taxes, wliile the result of some of the provi- sions of this Act may be of the nature of indirect taxation. 672 672 573 574 674 674 674 674 674 581 581 52 c\ TABLE OP Af!TH, Ififi7-lfl95. 1375 TABLE OF ACTS, 1867-1895— CoMrate the Halifax Vine- gar and Picklnig Company 'Limited). An Act to ineorix)rate tlie Melaga Min- ing Company (Limited). An Act to incorporate the Nova Scotia Stone Company (Limited). Act passed to obtain judicial decision from Nova Scotia Supreme Court as to consti- tutionality of Li(]uor License Act, 1880. The court decided tlie Act was idtra lireg, and -efused to hear ([iieHtion re feri-ed by Lieutenant-(}ovcrnor in Council. Affects the 1376 PROVINCIAL LEGISLATION TABLE OF ACT8, 1867 -18^ -Continued. NOVA SCOTIA— Continued. 62 Vict., 1888, chap. 57. Cliaj). 114. Ohai). 119. Chap. 121). Chap. 143. Chap. 144. Chap. 147. Chap. 148. Ch-p. 150. Cliap. 151. Cliap. 157. 53 Vict , 1890, chap. — . Chap. 122. . 55 Viot,, chap. 1. An Act to amend chai). 159, Revised Doubtful if the Btatwte which this Act Statutes of NDva Scotia, 3r(l series, intituled; " f)f otfei.oes again ^ Reli- gion." An Act further to amend the .-Vet to incorporate the Nova Scotia lele- phone Company (LimiteJ). purports to 'vmeiid is within the compe- tence of the provincial legislature. Pro- fesses to regulate penalties for the viola- tion of prov isions existing in Nova Scotia before confederation on eiibject of Sun- day observance. Provisions are beyond the eomi)etence of the i)rovincia' legislature. See ante chap. 128 of 1888 (page :i83). A.n .Vet to amenu Chap. 131 of the Section 3 contains a provision relating to Acts of 1888, intituled: "AnAettoJ rights and capacit;"j )i .iliens, whicli is incoi'iKirate the New Vork and Novai a matter within ' 'ilusive legislative Scotia Iron and Railway Ccmpany! J..risdiclion of Dominion parliament, (liimited). i An Act to incorporate the Amherst| i .Sfreet Railway Company (Limited) An Act to incor|X)rate the Lake View Mining Company (Limited). An Act to incorixjrate the Dawes Gold Mining Company (Limited). An ."Vet to incoriX)rate the American Steam Compressed Fish Company (Limited). An Act to incorixjrate the Eureka Man ufacvuring Company (Limited). An Act to incor|)orate the Dufferin Gold Mining Company (Limited). An Act to incorporate the Cape Breton Fish andTradmgCompany (Limited). An Act to incorporate the Nova Scotia Condensed Mdk and Canr.mg Com- pany (Limited). An Act to amend Chap. GO of Acts of 1865, intituled : " An Act to incor porate the Foreign Missioiuiry B,..,.d of the Hajitist Convention of Nova Scotia, New IJrunsttick and Prince Edward Island." An Act to amend Chap. 84 of the Acts of 1879, intituled : "An Actto^ncor- IKirate the Home Mission Board of the Baptist Convention of Nova Scotia. New Brunswick and Prince Edward Islanil.'' 1892, j An Act to amend and consolidate the I Vets relating to Mines a'ld Minerals. KR Provis'"" « of these .\cts purjjort to con- f.:i- on the companies to which they relate [xjwers to make bills of exchange and iiromissory notes — a matter m which parliament of Canada alone has legislative jurisdiction. Act deals with cor|V)ration created in 18()5. Original corj'oration wan not provincial in its object no" private riud local in its character. Unon jjassing of British North Anif rira Act it ceased tol» within legislatii e ae.thority of the province- and is inv-vlid. Open to same objoutions as Act above mentioned. Section 115 prejudiced vested rights in litigatior in supreme court then |)endinjf. See. I.W vests more extensive jjowers in Lieutenant-(Tovernor than is consistent with public interests. 586 686 586 5»b 587 687 629 TABLE OF ACTS, 1867-1895. 1377 TABLE OF ACTS, ISG7-I8d5— Continued. NOVA SCOTIA- Conimufd. Page. Act inpe- Pro- .^iola- cotial Sun- ce of ;hap. 586 55 Vict, chap. 2. ie'!2, An Act to amend an Act of the present Section 117 of chap. 1 exacts Ironi lessees Session, intituled : 'An Act to'amend and con&olidatf! the Acts relating to Mines and Minerals. " 586 586 Cha)). ;? An Aotre8pectin!?theRoyaltiesonCoal. con- o»b ley Chap. 42 Chap. 112.. Chap. 17. . 56 Vict., 1893, chap. 141. Chap. 14;?. Chap. 52. CI lap. 1.55. 587 of coal areas a rate of royalty in excess of that guaranteed them for fixed period, which had not expired ; and sec. 118 interferes with les.sees' rights in respect to renewal of lea.ses, do do do An Act to amend Chap. 3, Revised Statutes, of the composition, powers and privileges of the House. An Act to amend Ch.ip. !)2, Acts of 18itl, intituled : " An Act to enable the Municipality of Lunenburg to borrow for a Court-house. " An Act to amend the Towns Incoriiora- tion Act of 1888. An Ace to authorize the sale of the! Yan.ionth and .Vnna|)olis Railway,! formerly the Western (Jounties Kail-! way, in the Province of Nova Sci;tia,; to the Windsor and Annaiiolis Rail-! way (Limited). I An Act to amend an Act of the present! Session, intituled : "An Act to author- ize the sale of tlie Yarmouth and An- napolis Railway, formerly the Western Counties Railway, in the I'rovince of Novu Scotia, to the Windsor and Anna])olis Railway (Limited)." An Act to amend Chaii. 58 of the Acts of 18'll, intituled: "An Act to con- solidate and amend the Acts relating totheCity of Halifax." Disallowance asked for, but Act considered within the competence of local legislature and allowed to go into operation. do do do Some of |)owers delegated to town council by sees. 42 and 55 appear to relate to criminal law. Open to very grave doubt whether the jirovincial legislature has power to authorize such transfer as that con- templated by these Acts, in view of fact that the railway has been declared by ])arlianjent to lie lor the general benefit of Canada An Act to incorporate the Annajiolis and Granville Bridge and Harlxjur Imiirovenieiit Company. 687 Chap. 167. . An .S ct to incorjiorate the Fishermen's Marine Insurance Company(Limited). 56 Vict.^_18!)3,|An Act to incorporate tne Stellarton chap 175. Loan Association. 629 ) Section 13, in so far as it relates to the subject of immigration, is nltra rircs. Section left to such op'ration as it may have with rej^ard to matters within legis- lative authority of province. Not within power of provincial legislature: (tli<- Aniia|K)lis River lieing navigable)i to authorize the construction of any works ii[)fm it which would impede dr! interfere with navigation, except iiponl obtaining the necessary authority fronil the Dominion. ! Powers conferred upon the ftompany by -Act are not limited strictly to a jirovin- cial object. It would be"M/(r.« riren of legislature to authorize a comi>any to insure ve-.(.els not belonging to or (ugaged in the trade of the (iroMnce. Open toquestion whether [irovisions of sec. i) directing that operations of the com- pany shall be confined to receiving de- |H)aits of money and lending same under regidiitions Hxed by by-laws, same not to exceed .'<20,()0(», do not rel.-ite to subject of banks and bunking, rather thaii to matter within the legislative control of province. 629 629 630 630 633 634 634 6.35 ij35 ()35 TIR ^IkM 1378 PROVINCIAL LEGISLATION I' i; TABLE OF ACTS, 1867 -1895— Contimied. NOVA SCOTIA-Conciuded. 5G Vict., 18!»3, eliHp. I'JS. Chap. 217. . Chap. 218. . . Chap. 2TI. . . Chap. 124 57 Viet., 1894, chap. ST. Chap. IKi. Chap. 117 An Act to aii.end an Act to incorporate the Halifax. Trust and Loan Society, Limited. An Act tfi incorporate the Greenwood Cemetery Company. An Act to incorjwrate the Lockeport Cemetery Company. An Act to incorporat" the Caneo Ceme tery Company of Canso, Guysboro' County. An Act relating to the Town of Stellar- ton. 58 Vk-t., chap. 7*. 1895, Chap. 95... Chap. l(t: Chap. 108. . Cltap. 111. Chap. 117. Chap. Iix. . Cliap. 119. Chap. 109. . An Act to consolidate the .\(;tH relating to the establisliDinnt and operation of a pul)lii- ferry between Dartmouth and Halifax. .\n Act to inccjriKjrate the Central Fal- mouth Cemetery Conipany. An Act to incorporate St. Andrew's Cemet«i»f Company in New (i»irloci<, in the County of Pictou. An A'* to provide i '■ supplying the Towi of UsftUy witii wattT, and to borrow money for such purixjse. An Act to provide for Bupplving the Town of Westvilli- with ^atirr An Act to incorporate the Halifax Elec- tric Tramway (J^ompany (Ltd. i An Aet to incor|«)rate the Halifax Auer Light Coin|;i«ny (Limited). An Act to ii»»:ori)orate the Nortli Sydney Mining and Transportation Company (Linotetl). An Act III incorporate the Longfellow Sanitarium Company (Limited). An Act to incoriwrate fcheDawHon Con- »tr\iotion (,'oni|)a'>y (Limited). An Act to incori«)rate the Greentield Mining and Development Company (Lini'ted). An Act to incor|K)rate the Middle Ln Have Cemetery Company (Limited). RR Powers granted to company relate more to 636 Kubject of banking and commerce than to matter within legislative control of province. Provisions constituting it an offence to wilfully injure or destroy any monu- ment, tree or other proi)erty within the cemetery relate to the subject of criminal law, and are not within the legislative control of province. Statute interferes with vested rights under contracts. Act ultra vires as it affected the jniblic property of Canada, and was intended to interfere with the obligation of a contract, to which crown in right of Canada, is a party, and to re'juire the crown to accept the obligation of town of Stellarton to carry out contract exist- ing Vjetween Her Majesty and the town of New Glasgow. Sections in these Acts deal with subject of malicious injuries to jirojierty, which ap|)ertains to criminiil law, and has been so dealt with under criminal code. It is, therefore, beyond power of local legislature Oo constitute mali- cious injury to proi)erty, as an offejice, or d''(lai-e what shall be its jjunish- ment. Section 2 in these Acts authorizes the construction of dams and other works in any lake, river or stream in Digby County, N.S. (iiec remarks on chaii. 155 of 1893, ante page 035). Certain sections stating that aliens may be shareholders, directors or officers of the companies. -Wid entitled equally with British subjects to all rights as such. As parliament has exclusive jurisdiction with respect to aliens, pro- visions in question would apjiear to be ultra rires. Section 18 relates to subject of wilful in-j jury to pi-operty. It therefore relates to question of criminal law and establishesi iwnalties already punishable underl )oininion statutes. | 630 641 043 646 31 646 046 32 ^^.l -33 chi 34?:' chf 361 A chc TABLE OF ACTS, 1S67-1895. 1379 Page. 636 636 64] 643 646 TABLE OF ACTS, 1867-1 895_CWndiiig children m the .same building IS iK.inted out, but the Act is within provincial jurisdiction. The certain purmses are (1) aiding the construction of a bridge across the St .John River, at Wiwdstock, a navigable 704 712 rh: .•\n Act to iirovide for th(^ establishment of a 1 nlrce Force and Lockup House at Caratiuet, in the County of (Jlou- cester. be possible interference with n-^,vigation by legis ation of this natiir<> hits already Ijeen pcinted out. •* Section 4, giving power to the council to provide for the management of wharfs M'iCTs, etc., appears bey.md provincial conipet.^iice. ' Sections 5, '.) and 15, use the word " offence" m describing breaches of the Act Sec ( provides a special punishment for assaults on constaliles. Sec K the offence provided against by this section, IS a inalicious injury to property, already provided for by Canadiali law. Sees 1(1 to li) and If), appear to trench upon criminal procedure ' An Act to incorporate Wharf Company. the St. Croix ^a. ^-^^ A."! "'?wporate the Sliediac Station W'harf Co. An Act to !ncori«.rate the IJeliveau Albertite and Oil Company. I An Act to incorixirate the Red Granite Company of St. (Jeorge. [An .\et to authorize the erection of a boom across the Jacipiet River in the County of Northumberland. \n Act to iiicor|x)rate the Kel River Driving Company. Chap. 143. . .An Act to incorporale the Maduxnakik i Steam Driving Company. do do do do 70!) 709 710 710 "M4i,"i:.;;.x=r„8:«rj;'"-tess:^«»raK^^^ ^ Ihe inconvenience of such legislation has already been iioiiited out, and a question may arise r.s to the validity of the Act.| ''tLotS'rt"'"'''""'^^^''-"''^'''''^; Authorizes the company to construct a raihvay or tramway over or across any Drooks, streams, or rivers, kc, to build harbours, piers or breakwaters. The questions whicii niav arise with refer-' enoe to such legislation have already been pointed out. '^ Section 8 coiitaJ,." provisions similar to tfiose referre;, to in chap. 123. Referencj is made to remarks pre\ioiisIv made upon legislation of a similar char actor. f,ee pages 70,'! and 711 711 711 711 711 711 71] 39 cl: 41 Vi 711 711 44 V chai TABLE OF ACTS, 1867-1895. 1381 TABLE OF ACTS, 1867-1895. NEW imV:Sa\YlCK-0rence -.vith the cri- minal law relating to perjury. Sec. !»0, the word " offence " is used'. Sees. '.)'2, 03, !M and i),5, interfere with criminal procedure, and are very objectionable. Sees. !)7, ss. 32 and 30, apjiear to er- trench upon the subject of weights and measures. ^m,'ri''lWH'"^ *" *''""""' Trespasses Section H uses the word '^^fIence ^' already and 1 ounds, , objected to. An Act to regulate the^ sale of Spiritu-;The right of a Iwal legislature to deal with ous Liquors m the Parishes of Lan-' thisouHsiinn 1,„. nll„; ., r .... j 'w'^'' ous Liquors in the Parishes of Lan- caster, Simouds and St. Martins, in the City and County of St. John. Chap. 27.. 41 Vict., chap. 8. 1877, this ((uestion has already been doubted. Sec. 11), among other i)rovifiuns, forbids the sale of li(|uor to Indians, who are not under loeid jurisdiction. S(c. 20, respecting seamen, already legislated mxin by chap, 120, see.' 104, 1.H73, (Caoiada). Sees. 33 and 41, the word otfenee is used. An Act to increase the facilities for the.The danger of permitting provincial lecis- ofivedeiicion""^" '''*''*^ '" "'^ ^'"'' l"'''l'' "l"'^*' "ot only^c.r.stitutes co,frts oi 1 reuencton. I fo,. the administration of justice, but also I aplHnnts the jud^jes, i^ .stated to have beeii i«)inted out with reference to Acts of British Columbia and Ontario, (Special session after St. .John tire.) An Act to define and establish the Side Lines of Streets in the City of St. .Tohn and to [jrevent encroadiments on the Public Streets. Vict., 1878. . I All the Acts of this Se.s.sion were loft to their o|)eration with the remark nn chap. 4il, relating to the s.ale of Spiri- tuou't Licpiors in .Monoton, that tiie question as to interference with Trade and Corninerce was still undecided. Seei on 4 declares an encroachment uix)n a street to be of ii public nui.sance. A publ.c nuisance is ]Hmishable by indict r,ient under the criminal law. Vict., 1870, chap. 29. An Act to incorporate the Sheer Boom Iniprovenient Company. Chap. 30 1 An Act to incorporate the Restigouche ' Boom Company, The iKissible interference uith naNiration has already l.e« . pointed out with refer- ence to similar legislation. do M 44 Vict., chap. 10. m 1881, An Act relating to the qualifications of T'hysicifins and SurgtHins. Offence created by sec. 32, and for wi.ic'n apMialtyis ti.xed, wouid appear t.. be ii felony under 32-33 Victoria, chap 1<) sec. 4. 713 713 713 716 718 718 719 724 r2H 728 rm 13H2 PROVINCIAL LEGISLATION TABLE OF ACTS, 1867-1890 -Conliniml. NEW BRUN8WIC K-Coudnuctf. 44 Vict., 1H81, chnp, 44. 45 Vict., 1882, cha|>. !l. Chap. 87.... ■iV> Vict., chap. 1( 1883, Reasons for Objection or Comment. An Act to incov|K)ratc the St. .Tolm Ah necessary provi.-iions taken ho iis not to Uridge and Railway l').xtenHion Com- interfere witii the navigation of the IMvny. j River St. .fohn, no action taken with I reference to the Act. I An Act in amendment of chap. 51 of Effect of sec. 1, if within le^iHJative an- the Connolidated Statutes in County, thority of the lefriHlatur", ih to remove Courts. from tiieirotKces, the judf^esuf the King's and Albert comity courts, and that, it is siihmitted, the legislature haa no |M>wer to lio. An Act to revive, continue and amen vine." i.s large enough to include fines,! jieualties, itc, incurred under A(^ts ofj l>arliainent of Canada, and is not confined to laws or statutes within the legislativej authority of the general astienibly. I An Act Ut pi-ovide for tht apimintnient of a I'olice Magistrate and r.o estab- lish a L(K!k-ap in^Shedi.-u-, Westinore- land County. .Section 5 of .-Vet, in terms, puriortstoniake provision for the application of fines anil )ienalties, which may lieconie jiayable in res|iect of offences affainst Acts of |(ar- liament, and is objectionable, iuasiiiuch I as it makes provision for a matter not I within legislative authoritj-. An Act to retlucf the «i»-i»iik- i>f main-IUnder the respective responBibilities aa- 73(5 taining wer of the legislature to raise levenue fi-oiii shop, saUKin, tavern and other licenses, but tlie iiuestion may arise as to whether the pnn incial legis- lature has a right to impose license fees on wholesale licenses, but they have hitherto exercised that power. Provisions for collection of fees in legal proi-eettingK in suprt^me court liy means of stamps, and these fei-.s, when col- lected, wei.- to be jiaid to the i-eceivc- general of the provinc-e. .-V tax levied ill the manner, in which rluw fees are inijKised is an liulirect tax, and cannot be ini|)osed by a provincial legi;duture. Attempt is here made to avoid the effect of the decision in Attorney fieneral for tiueliec >■». Reed, to which attention was called in the rejxirt on chap. 19 of 1884. ■30 4i) 731 50 734 7M 51 ch 73(! 7» 738 TABLE OF ACTS, 1867-1895. 1383 TABLE OF ACTS, 1867-1895— Conimwerf. NEW BRUNSWICK-CwKtnucrf. Page. 730 731 •19 Vict., 1886, chap. 25. 731 Chap. 28. . . . 50 Vict., chai>. 3. 1887, 734 Chap. 4. Reasons for Objection or Comment. Page, Chap. 28. , . . ;« ■^n Act to incorporate tlie Town of The exercise, as a matter of jKjlice, sub- Mary.sville. ject to laws of parliament re8|>ecting criminal law, weights and measures, and navigatid)) and ship|)ing, are unoi)jec- tionable. (Some of the provisions trenchl on the criminal law, and the language! ()f the Act respecting the dis|X)8ition of fine.s, iH-nalties, &c. (recovered and im posed under laws of Canada), should be niade clear that theri^ is no intention to disjiose of same. An Act to iricor|)orate the St. Croi.v Sec. 21 trenches on criminal law , Wectric Light and Water Company. An Act respecting Public Health Sec. 12 trenches nixin subject of quaran- tine and estab'.isliment and maintenance of marine ii<)si)itals. An Act respecting the sale of Intoxicat-'Seo. 73 purfKirta to interfere with the mg Lupiors, business of brewers and distillers duly authorized to carry on their business within Canada under laws resiiecting inland revenue. An Act to authorize corporations incor- Open to sime objections as similar Acts |)Orateil by the Parliausent of Canada pasf^ed by Ontario, (2uel)ec and Mani to lend and invest money in the Pro- ' "' — " ' ~' vince of New Brunswick. 51 Vict., 1888, An Act further relating to Mines and chap. 5. Mining Leases. Ch»p. 30. . . An Act to incorix)rate the Channel Sub- way Company. r3(! -as Chap. 34. . . Chap. 53. . . Chap. 7g... 38 toba. See pages 244ublic tiar- liours of Canada belongs to Dominion. Also appears to infringe >i|>on exclusive jK)wer of Doiiiiniun to make laws in respect to navigation. Tobique River is apparently a navigable streiHi,. Act apparently interferes with e\ lusive legislative authority of Dom- inion parliament resiiecting navigation, and is also legislati(jn in lespect to pub- lic property of (^anada. An Act to continue the Fredericton See remarks nindi' ui^m chap. .38 of 38 Boom Company and to consolidate Vict. (18751 of Xew Brunswick. Ante and amend the se\eral Acts relating page 7(K). to the said Company. An Act to incoriK>rate the New Bruns- Act interfere wiMk. and restricts the wick Telephone Company. operation of ae Act of the Parliament of Canada, and uas effect of niaterially le«iien!n»r the va«u»> of franchises, which New Br- nswick iiBgislaturc had previ- outiy granted to atwther <-'"- --* ^^ nif„„„^ rCl..'!... -f^-. ?-^"' '" ?"*' to thu city court are objectionable for 57 761 ^^clmn*'?' ^^^' ^" •^'■^' resi^eting the Executive Ad- cnap. /. ministration of the Laws of the Pro- vince. An Act resijecting certain Criminal Courts. City and County of St. .John, and to amend the charter of the City of St John and the law relating to civic government cnap. Id. hold and convey real estate in this rrovmce. the reasons mentioned in connection with chap. 23 supra. Chap. 18. Chap. 48. An Act respecting railways. 752 752 753 An Act to extend the powers of tlie Madawaska Log Driving Company *T.u *i??*' *" ''» provincial watem of the River St. John, above Grand iear to l)e an "undertaking," extend- ing beyond the limits of the province Provincial legislature cannot authorize divereionoroccupationof beds of rivers which under British North America Act became part of the public proijerty of Canada, as is done by sees. 3 and 7 respectively, of these Acts. To the extent to which River St. John is under the British North America Act, vested m Dominion, sec. 2 authorizing the construction and maintenance of a bridge over the river, is ultra, virc company Powers conferred upon the appear to trench on subject of banking, which IS one of the subjects for Dominion legislation. 755 755 755 759. chi 58 chi 34 chi 35 chi 36 760 760 chi ( ( TABLE OF ACTS, 1867-1895. 1385 TABLE OF ACTS, 1867-1895— Conhnwerf. NEW IJKUNSWICK-Concitwfcd. Act. Page. 751 752 752 "53 ■55 57 Vict., 1894, chap. 79. 58 Vict., 1895, cha|). 12. Chap. 20. . . . Ohap. 09. . . . Chap. 86. . . . Title. An Act to continue the St. John River Log Driving Conii>any, and for the conxolidation and ainendnients of the Act« relating thereto. An Act in amendment of an Act resjiect- ing Law Stumps. An Act to amend chap. 52 of the Con- Holidatod Statutes, "Courts of Pro- bate." An Act to incoriiorate the Riverside Cemetery Company. \n Act to incorporate the Baker Brook Mill and Boom Company. An Act tu incorporate the Grand Falls Powerand Boom Company (Limited), An Act to incorjwrate the Tobiqne River Log Driving Company. Reasons for Objection or Comment. "Rivers having been by British North America Act assigned to Dominion, it is not within ix>wer of |)rovincial legislature to grant anv authority or rights with respect to tnem, and this Act is thus objectionable, in so far as it is intended to apply to the rivers so assigned to Canada and ultra vires, so far as it would authorize it to interfere with or effect navigation of the rivers. Validity of these statutes open to doubt, in view of decision, in Attorney General Quebec vs. Reed, that tax levied by means of stamp duty on exhibits filed in court, could not be called "direct taxation " within meaning of sec. 92, of British North America Act. I Sections 11 of chap. 67, and 9 of chap. 82, appear to be ultra vires, as affect- ing subject of criminal law, and as im- riosing penalties for offences, which have already been establislied under Dominion statutes. Open to objections raised, as to right of l)rovincial legislature to deal with navigable rivers, which are within legis- lative jurisdiction of Dominion parlia- ment, under provisions of British North America Act. See ante page 763. Page. 763 705 766 766 MANITOBA. 755 ■55 59 60 JO 34 Vict., chap. 9. 36 Vict., chap. 3. 1871, 1872, Chap. 6. 30 Vict., 1873, chap. 18. Chap. 21. . . Chap. 24. . . An Act authorizing the api)ointment of Magistrates and Coroners. An Act to amend an Act to establish a Supreme Court in the Province of Manitoba. An Act for the Registration of Voters. An Act to amend the Act cimcerning the registration of deeds and to in- troduce a better system of registra- tion. An Act to make provision for inquiries concerning Public Matters. An Act respecting municipalities Section 2 gives the police magistrate all the [xjwers possessed by one, two -■>" more justices of the peace. Section 5 provides that no chief justice or puisne judge shall be appointed unless such i)erson is able to speak both Eng- lish and French. This is ultra vires. Sections 21 and 22 provide that the judge shall be liable to a fine for neglecting or refusing to perform any duty imposed upon him by this Act. Clause 99 of the British North America Act provides the m?-nner in which judges can be called to account. Section 53 provides that persons commit ting certain offences shull be guilty of a misdemeanour. Section 2, the remarks on sec. 53, chap. 18, apply also to this. Section 16, the remarks on sec. 53, of ohap. 18, apply also to this. 769 ((4 774 780 780 780 1386 PKOVINOIAI. I.KdIHLATION TABLE OF ACTS, 1 867-1895— Con/t«uerf. MANlTOHA-CofUirtuwi. 37- 38 Vict., 1873 74, ohtti>. 7. Chaji. 5. Chap. 12. . . An Act to incuriiorate the City of Wiiini|)«>g. ReaHon for Objection or Coniin«iit. An Act to provid" a fair and e({ui table rndigtribution of the electoral (livimonH of the Province. An Act res|)ectinK the Court of Qnnen's Rench in Manitoba. Chap. 14. Chap. 15. . . Chap. 19... 38 Vict., 1875, chap. 2. Chap. 5. An Act lOHpocting the Rec^stration of CO- partnership. An Act to require certain Foreign Cor- porations, AssociatioHH and Co-part- r.erships to register within the Pro- vince. An Act t<) amend the Act of 1873 to regulate the Sale and Traffic of In- toxicating LiipiorH. An Act respedting the Election of Members of the Legislative Assembly of the I'rovince of Manitoba. An Act resi)ecting the Administration of Justice. .Section I is so broad and »mrc«trictere8umed this section shall not act in restriction of the iwrliament of Can»da in this respect. Sees. 12 and 13 use the phrase "parlia- mentary " already objected to. Sec 32, doubt expressed whether falsification of lists is not a crime within the meaning of the law of Canada, and therefore ultra vires. Sees. 33 and 34 use the phrase "parliamentary electors. " Sec. 166 pro- vides a penalty for the offence of forgery, and is clearly ultra vires. Sec. 166, sub- sec. 3, may trench uiion the Act of Canada relating tn uialicious injury to property. Sees. 185 and 205 may also mterfere with the criminal law. Sec. 2(K5 provides punishment for subornation of {Hjrjury. See. 235, in some of its pro- visions, seem to trencii upon the crim- inal law. Sees. 58 to 61 entrench on the subject of insolvency, and are therefore not within the legislative coniiietenco of the local legislature. Sec. 60 also deals with the criminal 'aw. Page. 785 38 \ cha 78r> 786 C 787 787 788 800 CI CI CI CI TAIILE OK ACTS, 1867-1895. 1387 TABLE OF ACTS, l8(i7.lS95— Continued. M AN ITOB A- PorKmuerf. ragf. r8r> 38 Vict., chap. 6. 1876, An Aot re8|>eoting Grand Jurori . Chap. 9. . 785 An Act resiH'iting the qualification of Justices of the Peace. Chap. 21 An Act respecting Building Societies. . 780 Chap. 22. Chap. 26. 787 787 788 800 Chap. 27. Chap. 30. Chap. 31.. Chap. 35.. An Aot to make provision as to the Custody of Insane Persons. An Act to amend the Aot intituled ; " An Act for the protection of the Wood Lands of the Province. " An Act further to amend the Act to establish a system of education in this province. An Act to amend the Act of 1873 to regulate the Sale and Traffic of In- toxicating Liquors. An Act respecting Municipalities. An Act to amend the Registry Act . . . !»8 Chap. 41. An Act respecting County Municipali ties. Doubt expressed whether subject of jurors is not a matter of criminal law and i)ro- ceflnrn, and therefore within the juris- diction of the parliament of Canada. Sec. 1(5 trenches on the criminal law by providing a [jenalty for n faJMo state- ment or declaration under oath, which is |K)rjury punishable under 32-33 Vic- toria, chap. 23, sec. 2. Sees. 2 and 11 appear to aflFect the ques- tion of interest. Sec. 16 ap^H-ars to affect the question of insolvency. Sees. 17 and 18 trench on the criminal law. Sec. 26 ni)i)ears wide enough to emix)wer the Lieutenant-Governor to authorize the removal from the province of a criminal confined in jail or sent after conviction to an asylum for the insane, and so is objectionable as trenching on criminal law. As the Act made it an offence punishable by fine or imprisonment to burn or set fire to any trees or timter on any lands in the province, inquiries were made as to the effect on settlement on Dominion lands in the province, and with regard to Dominion public works. No legal question being involved, the Act was left to its operation. Sec. 11 provides a penalty for signing a false report. Act open to the same objections which have been taken to a similar Act passed by the legislature of Ontario, which objections are subjudice. Sec. 39, subsec. 12, appears to admit the transfer upon a tax sale to the purchaser, of the right of the holder or other (jerson in lands sold for taxes, before the issuing of letteru patent from the Crown. This Act amends 36 Victoria, chap. 18, and recites that sec. 43 of that Act does not express the true meaning of the legislature. Sec. 1 (the amending clause) ap|)ears to be a direct interference with the devolution of the title of lands before the patents are issued. This would be within thfir power did the lands belong to the province, but Manitoba lands are the property of Canada untU patented, and any provision as to assignments, &c., of unpatented lands should be made by Canada. Sec. 11 — some provisions of this section may be ultra vim, but similar legisla- tion in another province has been left to its operation. Sec. 24, subsec. 1, pro- vides punishment for a false dcclarRti on. Sec. 179, subsec. 12, is oiien to the same objection as subsec. 12 of sec. 39. chap. 31. M\ ■'.;t/f 798 799 801 802 805 802 802 802 803 803 1388 PROVINCIAL LKcnSLATION TABLE OF ACTS, \8Q7-ISW— Continued. MANITOBA-Conwers and duties. An Act to make better provisions for tho securing of order at Municipal Klections, and for other purposes. An Act to provide for the incorporation of M.utual Fire Insurance Companies in the Province of Manitoba. An Act respecting the Public Works of Manitoba. An Act respecting the Bureau of Agri- culture and Statistics. An Act respecting Assembly. the Legislative The local legislature has no power to avitliurizu the com|)any, without the assent of the Crown, to enter on lands vested in the Crown. To seo. 13 of this Act several observations made u|Km chap, 'Z are apjilicable. Section 35 relating to indecent behaviour seems to entrench on criminal law. Appointing ix)wer as to judges is in the ( lovernor General in C'ouncil. More con- venient way of working the 14th sec. of the Act, so far as government of Canada is concernetl, would he by Privy Council at>proving the order which anould be made by Lieutenant-Governor in Council, determining an to judges who should be designated to hold the court. The provisions with res|)ect to the selection of French and English speaking jurors would seem to require confirmatory legislation by Canada. Section 9 appears to trench upon criminal procedure. Sections 1, 2, 4 and 5 appear to trench upon criminal law and procedure. The business to be done is not expressly limited to the province. Sec. 70 re- quires companies affected by it to make full returns of their business, &c. Sec. 71 applies the previous section to all fire companies by whatever authority incor- ix)rated. Sec. 72 provides for winding up, and thus deals with insolvency. Section 31 gives power to remove obstruc- tions, &c. This should be limited, so as not to trench upon the authority of Canada. Upon 39 Vict., chap. 9, Ontario, it was observed that some of its provisions were ultra vires, but as a similar Act of Quebec has been allowed to go into operation, the same course was adopted with reference to the Act of Ontario, and the remarks upon that Act are applicable to the present one. Attention direcced to observations made on former occasions upon infringement by provincial legislature on subject of statistics. 803 803 810 810 810 811 811 811 811 812 812 IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1^128 Hi 2.5 12.2 1.8 1.25 [J.4 11.6 ^_ 6" ► «' Photographic Sciences Corporation ^ »J5 ,\ . 6^ k '% 13 ^cST MAIN STREET WtB&TER,N.Y. 14' 80 f^v i/.A R' CIHM/ICMH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadian Institute for Historical Microreproductions / Institut Canadian de microreproductions historiques WB, TABLE OF ACTS, 1867-1895. 1389 TABLE OF ACTS, 1867-1895— Continued. MANITOBA— Continued. 39 Vict., 1876, chap. 28. 40 Vict., chap. 6. An Act to diminish the Expenses of the Legislature of the Province of Mani- toba in certain respects. 1877, An Act reHpecting county municipalities Chap. 12. Chap. 14. An Act to amend the Act to establish a system of education in this Province An Act respecting the Study and Prac tice of Law. Chap. 15... Chap, 17... Chap. 30. . . An Act to authorize Corporations and other Institutions incorporated out of the Province of Manitoba to lend and invest moneys therein. Doubt expressed as to comjietence of pro- vincial legislature to alter its constitu- tion by abolition of the legislative coun- cil, and question raised as to whether by operation of Imperial Act 34-35 Vict., chap. 28, sec. 6, constitutional powers of legislature of Manitoba are limited in this particular. Section 15 deals with criminal law relating to perjury. Src. 16, subsec. 27 imposes penalties for short weight or count or measurement in anything marketed. Section 17 provides punishment for making false declarations. This seems an inter- ference with the criminal law respecting perjury. Former Act passed in 1872 was considered objectionable in some of its features and assentof GovemorGeneral was not given. Provisions having been made for calling to the bar of the province of, persons duly called to the bars of other provinces, and similar arrangements as to admission as attorneys, the Act was left to its ojjer- ation. Similar legislation in Ontario has been left to its operation, but the right to license a company already empowered by Cana- da to do business in any province is ques- tioned. I An Act to legalize the Lists of the The word "parliamentary," before object Parliamentary Elections of 1877 for ed to, occurs in the title and first section, the City of Winnipeg. An Act respecting Companies for the establishment of Cemeteries in Mani- toba. Chap. 34 — An Act to amend the Acts relating to the Sale and Traffic of Intoxicating Liquors and the Granting of Licenses in this Province. Chap.;43... 41 Vict, 1878, chap. 13. Cimp. 14 An Act to amend the amended Act re- specting the incorporation of the City of Winnipeg. An Act to create a fund for Educational purposes. An Act to regulate this sale of Intoxica- ting Liquors and the granting of Licenses in this Province. I Section 28 provides punishment for de stroying, defacing any tomb, monument, Ac, and would seem to entrench upon the criminal law relating to malicious in juries to property. Section 3 seems somewhat to entrench upon the criminal law relating to forgery. Section 6 deals with the subject of interest. Sec. 13 disposes of all fines and penalties. Act objected to by the Hudson Bay Com- pany as in effect imposing an exceptional tax on their lands. Act was held by court to be unconstitutional, and was re- pealed at next session. Some of urovisions may be held to entrench upon the regulation of trade and com- merce. 809 816 817 817 818 81» 819 819 819 823 824 il u 1390 PROVINCIAL LEGISLATION TABLE OF ACTS, 18&7 -1896— Continned. MANITOBA— Continued. 42-43 Vict., 1879, chap. 12. 44 Vict, chap. 2. 1881, Chap. 7... Chap. 16... Chap. 28.., Chap. 33.. Chap. 34.. An Act respecting Grand and Petiv, JurorB and Juries, and to amend the Manitoba Jurors' Act. An Act to bring into force and operation the Consolidated Statutes of Manitoba An Act to protect Guide Posts along certain roaids in this province. An Act respecting the Equity side of the Court of Queen's Bench. A similar Act of Ontario was left to its ojHiration, and this, like the Ontario Act, is not to come into operation until pro- claimed b" the Lieutenant-Governor, and not to be proclaimed at all, if the supreme court decides against the power of a local legislatuie to regulate the number of grand jurors. Many provisions previously objected to have Deen re-enacted. For particulars see pages 830, 831. Trenches upon criminal law. See 32 and 33 Vict., chap. 22, subsecs. 59 and 60. Act appoints a referee in chambers. Power of legislature to give an officer of the court judicial powers is extremely doubt- ful. 824 An Act for dividing the Province intolSections 73, 76 and 77 deal with the em - ■• • - -^ ' ' "■ '^ panelling of juries, and are not withm authority of legislature. 45 Vict., 1882, chap. 35. Chap. 36... Chap. 54.. Judicial Districts and establishing courts therein. An Act to incorporate the Southern Manitoba Loan Company. An Act for the incorporation of the Winnipeg Suspension Bridge Com- pany. An Act to incorporate the City of~ Brandon. Charter of the City of Winnipeg, \ Manitoba, consolidated from the Act of incorporation of the City of Winnipeg. An Act to amend 44 Vict., chap. 29, intituled: "An Act respecting the profession of Land Surveyors of Mani- toba." 47 Vict., 1884, chap. J.1. Sections 2 and 15 deal with the question of interest. Act incorporates a company with power to build bridges over Assiniboine river be- tween Winnipeg and St. Boniface West, plana and site to be approved by Governor General in Council. As Act is in accord- ance with 45 Vict., chap. 37, it was left to its operation. Acts are much alike in terms, and com- ments apply equally to both, certain of the provisions trench on the subject of criminal law, and also deal with the subject of interest and in regard to sale of intoxicating liquors, in excess of powers of the local legislature. Objection was taken to sec. 5, subsec. 2, by which it was enacted that land sur veyors who, prior to transfer to Canada, were duly authorized as such by council of Assiniboia, and apprentices who had served that full term of three years with a duly authorized surveyor, should, on application and payment of fee, • be ad- mitted to practice, on the ground that it would lower the standard of the profes- sion and cause injury and inconvenience to the public. The Act being intra vires of the legislature, it was allowed to go into operation. An Act to amend and revise the Acts relating to Municipalities. 831 831 832 832 832 Powers given to municipal councils are in excess of those which a provincial legis- lature may confer, and trench oh subject of criminal law, though possi^ily they might be regarded in the nature of police regulations. 48 836 833 837 — ■'■! ^»fya' ' . | . ii> MiHJ ig -m i' ^|t- '| TABLE OP ACTS, 1867-1895. 1391 TABLE OF ACTS, 1867-1895— Con^wwerf. MANITOBA— Coniiiiwerf. Act. 831 47 Vict., 1884, chnp. 32. Chap. 33.. Chap. 69.... Chap. 78. Titl.*. An Act resiH'cting Liquor Licenses. An Act to provide for tlie revocation and cancellation of Ijiquor Licenses in certain coses. An Act to amend an Act to incorixjrate the Manitoba Central Railway Com- pany. 48 Vict., 1886, chap. 15. 832 Chap. 17. 833 Chap. 18. Chap. 20. 837 An Act to consolidate and amend the several Acts of Inct)rporation of th.j City of Winniijeg. Reasons for Objection or Coniment. Question of the relative ixiwers of parlia- nient and the legislatures resjiecting the liquor traffic, is still subjndlcc. do do do Objections touching general railway policy of Dominion. An Act respecting the Court of Queen's Bench. An Act respecting the Administration of Justice. An Act to amend Chap. 37 of the Con- solidated Statutes of Manitoba. An Act respecting Promissory Notes and Bills of Exchange. An Act to consolidate and amend the Acts relating to Town Coriwrations. An Act respecting Real Projierty in the Province of Manitoba. An Act to amend Chap. 58 of the Con- solidated Statutes of Manitoba and Chap. 15, 46 and 47 Vict., of the Pro- vince of Manitoba. R Section 35, subsec. 2, authorizes taxation of property held by or in trust for Her Majesty, where it is occupied by (lerson otherwise than his official capacity, shall be assessed therefor. Tlils ia in conflict with British North America Act. Sees, 149 and 192 deal with criminal law. Section 9 gives jurisdiction to court to grant letters patent from crown to right fill claimants. Provision unobjection able, if limited to crown in right of pro- vince of Manitoba. Sec. 10 authorizing decree of alimony trenches on subject of matrimony and divorce. Sec. 14 pre scribes rank and precedence of chief justice and other judges of cfjurt, and sec. 16 authorizes judges to exercise jur- isdiction in territories under authority of Governor General or Act of Canada. Section 117 was objected to on ground that the exemptions from seizure under execi .tion were so large as to be unjust. Section considered intra vircg. Sees. 166, 177, 184, 192, 194, 195 and 197 con- tain provisions resjieoting juries. If, and so far as thv.^ are inconsistent with special legislation of jmrliament of Ca- nada, thej' are of no force. Relates to certain exemptions from execn tion in proceedings in equity, and stands in similar position to that of sec. 117 of chap. 17. Is really an Act respecting evidence. Con- sidered unfortunate that the Act should be so intituled, in view of fact that sub ject of bills and notes are within exclu- sive legislative authority of Canada. Legislature in defining jxiwers of coriX)ra- tiona has included some which are, at least, of doubtful authority. Section 146 makes provision for ptmisli- meiit of certain offences against Act which ap|M>ars to trench on criminal law. By sec. 2 the superintendent of Manitoba insane aaylum shall not be comp«illed to oljey siibiMenu in any case, civil or crim- inal. So far as this affects procedure in criminal oases it is ultra vires. Page. 838 838 840 838 848 849 849 849 849 849 849 1392 PROVINCIAL LEGISLATION. TABLE OF ACTS, 18&7 -1895— Continued. MANITOBA -CoiU/nucd Act. 49 Vict., 188(1, (iliap. 5. Chap. 15. . . . Chap. 29.... Chap. 41 ... . Chap. 45. Chap. 52. Chap. 59. Chap. 65. 70 Vict., 1887, chap. 8. Chap. 9. Chap. 20.... An Act resjjpcting Probate and Ad- uiiniHtratiiin. An ActrpspectingCountyCourt.Tudges. An Act resifWiting the Election of Mem- bers of the Legislative Assembly. An Act to f\irther amend the Marriage License Law. An Act respecting Assignments for the benefit of creditors. An Act to consolidate and amend the laws relating to Municipal Corjxjra- tions. An Act to incorporate the Saskatchewan and Western Railway Company. An .\ct to incorporate the Shell River Railway Company. An Act to amend chap. 45 of 49 Vic- toria. An Act resiiecting Connty Courts. An Act resfiecthig the Treasury Depart- ment and the Auditing (if Public Accounts. B Reasons for OV)jection or Connn' nt. By sees. 4 and 5 provision is made for administration of estate of |)ersons dying intestate without known heirs or next of kin. Pending settlement of question of escheat, no objection to allowing pro- vincial authorities to administer such estates, if steps am taken to obtain a decision of question, and the interests of Canada are not prejudiced. Pi-ovisions of sec. 3 by which it is enacted that a county court judge shall not do certain acts under the )ienalty of forfei- ture of office is iiltra vires. Deals with matters, the subject of the criminal law. See Revised Statute* of Canada, chap. I(i8, sec. 65. The Act authorizing the Lieutenant-Gov- ernor to appoint deputies havit.g been disallowed, the provision in Act author- izing issue of niari'iage licenses under hand and seal of Lieutenant-Governor " or his deputy duly licensed in that behalf," should be repeivled. Great doubt exists as to authority of legis- lature to enact such laws, as they are in the nature of insolvent Acts. Sections 347 and 349 defining jxiwer of municipal and civic councils to make by-laws, are ojien to objections fre- quently made in similar cases. Sees. 366 and 367 and 734 deal with criminal law and are vmnecessary. See Revised Statutes of Canada, chap. 157, sec. 8 ; chap. 162, sec. 34; chap. 174, sec. 28, ft seq. Power to build branch lines granted by the Act, should be subject to the provision in 46-47 Victoria (Mani- toba), chap. 47, as to building of lines in the added territory south of the Canadian Pacific Railway, except such as run south-west and not within 15 miles of latitude 49°. Original Act, of which this is an amending Act, is substantially on insolvent Act, and many of its provisions, therefore, are ultra vires of a provincial legit>lature. Sec. 9 infringes upon appointing power of (Jovemor General under Britiso North America Act, as assuming to define or limit qualifications of county court judge. Sees. 92 and 231 infringe ui)on the subject of criminal law. Sec. 55 is in conflict with sec. 35 of chap. 164, Revised Statutes of Canada, and is an encroachment ui)on the criminal law. 853 853 853 864 854 864 864 869 859 860 TABLE OF ACTS, 1867-1895. 1393 TABLE OF ACTS, L867 -1895— Couunued. MANITOBA— CojietH««/. Page. K)3 Act. 51 Vict., clia]). 5. 1888, I 853 853 854 Chap. (>. Chap. 20. . , Chap. 38. . Chap. 47. . . . 854 )f 854 864 859 860 Chap. 48. . . . Chap. 49. . . Chap. 50. . . . Chap. 51. Chap. 52. Chap. 53. 62 Vict., 1888-89, chap, 2. An Act iiroviding for the construction of certain Railway Lines. An Act resi)ecting Expropriation of Lands. An Act to amend chap. 5 of 50 Victoria, intituled : An Act to amend chap. 47 of the Ac^ts passed in 40th and 47tli years of Her present Majehty's reign, being an Act to encourage the building of railways in Manitoba. An Act to incoriJorate the Brandon and Rock Lake Railway Company. An Act to amend an Act to incorix)rate the Brandon, Souria and Turtle Moun- tain Railway Company. An Act to incor^HDrate the Emerson and North-western Railway Company. Reasons for Objection or Comment. Page. Sec. 8 purports to enable the railway com- 890 missioners ti> expropriate the public Crown lands of Canada, which is lieyond the com|)etence of the provincial legis- lature. Open to tlie same objection, as ciiap. 5, 89() seo. 22, providing for determination ofl comiK'nsation for lands taken, is ultra vires. Original Act relates more or less to the 897 subject of insolvency. Sec. 5, subsec. 22, is legislation in refer- 1 897 enoe to aliens, over winch the i>arliament of Canada has exclusive jurisdiction. Infringes uixjn the provisions of art. 10 of sec. 92 of the British North America Act, permitting provinces to enact laws in respect to local works and undertak- ings * * • except lines of rail- way * * • extending beyond limits of pi-ovince. If the line joins that of the Canadian Pacific Railway, this is by sec. 30() of the Railway Act declared to be for " the general advantage of Canada," and therefore exemi)ted from the legislative jurisdiction of the pro- vince. Sec. 15 deals with the subject of aliens. Open to same objection as chap. 47 Open to same objectio'- as chap. 47. Sec. 17 provides for deiwsit of mortgage in office of Secretary of State for Canada, an office not in any way subject to legis- lative authority of provincial legislature. An Act to incorporate the Emerson, Subject to game objections as chap. 47, Souris and Brandon Railway Com- and also contains provisions relating to pany. aliens. Sec. 3 is ultra vires, as dealing with the building of bridges and other erections over navigable waters. An Act to incor.wrate the Manitoba' Central Railway Comiiany. An Act to incorijorate the Turtle Mountain and Manitoba Railway Company. An Act to incorporate tlie Winni|>eg and South-eastern Railway Com- pany. An Act resjxjcting the Northern PacificSec. 4 api)ears to infringe .sec. 92, art Open to same objections as chap. 47 do do do do do do and Manitoba Railway Company. BR 10, of British North America Act, i)ermit- ing the province to enact laws in re- spect to local works and undertakings, except lines of railway « * » t,x- tenduig beyond limits of province. 897 898 898 898 899 899 899 912 1394 PBOVINCIAIi LEGISLATION TABLE OF ACTS, 1867-1895— Continued. MANITOBA— Continued. Act. 40 Vict., 1888-80, cliap. 10. Chap. 51. . 53 Vict., chap. 7. 1890, Chap. 8. Chap. 40. Chap. 14. Chap. 15. Chap. 20. Chap. 30. Chap. 32. Chap. 37. . . Chap. 38. . . Chap. 51. . . Chap. 64. . , Titlo. An Act to provide for the crossing of one railway by another. KeaBona for Objection or Comment. Page, Questionable whether provincial legisla- 012 ture can, by legislation, interfere with a railway authorized to be built by |iarlia- nient. Sw remarks on disallowance on chap. 4 of 50 Victoria, 1887, i«ige 857. 8eo. .3, authorizing construction of bridges, in- fringes ujwn the exclusive power of legislation by ])arliament upon the ques- tion of navigation. Provides that cancellation of plan or sub- division of plan of town or village site ; may be annulled, varied or amended. Provincial legislature cannot legislate as resiHJcts any tract of land, including lots not [)atented by the Crown. An Act to amend the Act respeotingiMakes provision for jiayment into court of '•028 the cancellation and amendment ofi money in certain caset. Open to the plans. j same objection as chap. 7. An Act to incorixjrate the Selkirk East- ern and Western Colonization Rail- way Company. An Act resi^cting the cancellation and amendment of Plans. 54 56 57 An Act tf) provide sjiecial surveys in any city, town or village. An Act to i)rovide that the English language shall be the official language of the jjrovince of Manitoba. An Act vesiwcting the Executive Ad- ministration of Laws of this Province. An Act resjiecting Petty Trespasses. . An Act respecting the Public Health . An Act for the protection of Game and Fur bearing Animals. An Act respecting the Department of Education. An Act resiKJcting Public Schools An Act resijecting Municipal Institu- tions. An Act resi^ecting tiie Winnipeg and Duluth Railway Company. RR Provides for correcting of su[)()osed errors in existing surveys of plans or sites of towns or villages. Open to the same objection as cha[)S. 7 and 8. Power of local legislature to amend or 028 rejjeal sec. 23 of the Manitotia Act, 33 Victoria, chap. 3, admits of great doubt Ts transcript of Act passed by Ontario 920 legislature in 1888, chap. 5, the constitu tionality of which is being now adjudi cated upon. Section 1 bears close relation tocriminal law Sections 2 and 4 appear to infringe on the exclusive ix)wer of parliament to legis- late as to trade and commerce and to quarantine. Sections (i and 7 not within authority of 929 legislature, as affecting trade and com- merce. Sec. 8 legislates as to game. No jjrovision in British North America Act specifically gives power to legislature to legislate as to game. In province all lands were, and all ungranted lands are still, the property of Canada. [See pp. 960 to 088 j 047 A number of provisions are ultra vires.'. 030 Section 4(50 does not give city of Winni- l)eg iKiwer (otherwise than as Acts of Canada may allow) authority to con- struct works in tliat section mentioned. Act authorizes construction of railway from Winniijeg to international boun- dary. Doubtful if this is a local work or undertaking within meaning of British North America Act, sec. 02, Act 10 (o). .58-i 930 TABLE OF ACT8, 18C7-1895. 1395 TABLE OF ACTS, 1867-1895— ConakH of tlie conviction of an 102il the t^iialification niul Registration of "offence," Voters. 39 Vict., chap. 1. 1876, Chap. 2. Chap. 3. Chap. 5. Chap. 8. 39 Vict. 1876, cha)). li. Chap. 12... Chap. 24.... 40 Vict., 1877, ReaMons for Objection or Comment. PaRi An Act to make I'owora of .Attorney valid in c(!rtain cases. An Act to amend the Mimicipality Act, 1872, and amendments thereto. \n Act to amend and consolidate the Pul)lic Acts. An Act to provide for the maintenance of the Wagon Road from Yalo to Cariboo. An Act to make totter provision for die Qualification of Voters. An Act to Assess, Levy and Collect Taxes on Property in British Colum hi a. chap. 5. Chap. 6. Chap. 9. 1037 1040 Sec. 7 api^ears to trench upon the criminal law. This Act contains several provisions with reference to licenses, with respect to which the jwwer of local legislatures is in controversy. Sec. 43 8))eaks of " offences " 1040 Pointed out that the principle of this Act 1040 might be so extended, as to raise the question whether such legislation does not trench ufKin the regulation of trade and commerc. Sec. 13 .seems to trench ufion criminal law. 1041 \ Sec. 10 — The exemption from the fixed tax of five cents on ymoccujried land is not as extensive as the exemption from the tax on the assessed value, and might l)e arpued to include lands " held as Do- minion railway lands " or to be conveyed to the Dominion government under the 11th section of the terms of union," which are exempted from the oi)eration of the 8th section. Sec. 38 appears to trench uiwn the criminal law. Sec. 13, schedide B, deals with the subject of census and statistics, but similar legis- lation in other provinces has been left to its operation. An Act to amend the Licentfefl Ordin- This Act attempts to regulate Trade and ance, 1867. Commerce, and is o])ix3sed to the spirit of the Union Act, and in violation of sound principles of taxation, and of mischievous tendency. An Act to further amend the Licenses Ordinance, 1867. An Act to amend the Power of Attorney Act, 1875. An Act respecting the (lualification for the offices of \fayor and Councillor!- in certain municipalities. An Act to enable Municipal Corpor- ations to pass By-laws for the sale of Lands for Ta.xes. An Act to authorize certain municii)ali- ties to retain and use the Court fines, fees and forfeitures as part of the Civic Revenue, The remarks ^made upon chap. 11 apply also to Ihis. This Act does not ])roperly amend the criminal provisions of the Act of 1875 ; objected to. Section 4 and 6 provide fpunishment for niaking false declaration. Section 3 appears to deal with question of interest. This is wide enough to include fines, &c., for breaches of the criminal law of Canada. 1041 1042 1046 1046 104* TAHtE OP ACTS, 1867-1895. 139^ TABLE OF ACTS, 1867 -IS95 -Continued. BRITISH COLVUBIA-Continued. PiVR.. 102i> 40 Vict., 1877, thai). 10. •"lap. 11. Chap. 13. . Chap. 14. 1042 1040 1046 1046 1047 1047 Chap. 18. . . . Chap. 19. . . . Chap. 24. . An Act to ameticl tliu .\sBe»Bment Ant,;The |M)\v('r to tax tlin HalaricH of |)orHoiiH iir 1047 1*^76. tho survicc of thu lioiniiiioii, wan uiirlcr coiiHidt'ration of thH Court of Apix'al of Ontario in /•cLeprohon r.i.City of ( )ttawa, I when tiiiM Act wan left to itii oijeratiou. An Act to prevent the destruction of Sections 8 and 9 UHe the term "offence," pasturage on tlie Ishinds, in the (Julf of ( Jeor^fia. An Act to enconraffe the Mining of Section 4, jirovidinK that tiie h)an or ))ay- tiold- Bearing (Quartz. ment of .1S1.'),(HM) l)y the province to tlie company erecting the first quartz mill, at a sfwcified place, shall constitute a lirst niortga^fe on all the pronerty of tlii^ company, might interfere with the vested rigiits of privato individuals. Section 11, upon this section the danger is )^)ointed out of allowing legislation which increases from time to time tlie jurisdic tion of the mining court, tlie judge of which has not been apiioiiited liy the (lovenior Ueneral. Section 14 applies the Act to unoc'Mipied and unreservp(l crown lands. The two years limit of tli terms of union having expired, tliis is within their competence, but the incon venience vvliich miglit ".rise fnmi selling lands contiguous to any possible line for ^ the Pacific railway is liointed out. The word "offence" already objected to occurs fifty-two times in this act. Sec. 14, deals with weights and measures. Sec. 32, deals with criminal law. Sec. 4(1, subsec. 28, deals with malicious in- jury to proi)erty. An Act relating to Minerals other than Coal. Chap. 15. . . . An Act to make regulations with res- jiect to Coal Mines. 1048 An Act to amend the Election Regu-'Section 8 uses the word lation Act, 1871. i ' offence. 1050 lO-fJl An Act to amend tho Law relating to Section 11, subsec. 1, so far as relates to 1051 procedure at Elections of Memliers of: forging or counterfeiting, trenches uiKjn the Legislative Assembly of British; the criniiiml law. Columbia. I Chap. 30. 41-42 Vict., 1878, chap. 36. to the Legal Profession in this Pro- vince, An Act to consolidate the laws reUitingjProvisions (if this Act place restrictions 10.56 ii_ r .. .1 _ T^ uijon aihiiissions of barristers and attor- neys to practice in the courts of pro- vince. Uominion interests [Kissibly i)re-l judiced, if judges for courts of province; had to bo selected from the bar of thei l)rovince. | An Act to prohibit tho sale or gift of Section 23 deals with criminal law. Sec. 3^ 1052 Intoxicating Liquors to Minors, and uses the word "offence." to prevent tlie frequenting of Liquor Saloons by sucli persons. An Act to amend the Assessment Act, 1876. 88 R According to the decision in re Ross c.i.i 1067 Torrance, the attempt to add 2") perl cent and 18 per cent interest thereon to uiipaid taxes, is void. The other pro- visions of the Act, though stringent, are within the powers of the legislature and were presumed to have been found necessary. :■ ■ ;; I •i i •TT- lSd8 PROVINCIAt, M?(JI8I-ATI0N TABLE OF ACTS, 1867-1895— Cowitnjwrf. BRITISH COLUMBIA- C«m«min- dence an judjfeM may b. interfered with. Sec. H in no far us it axHumes to change | the iiretient jiracticeof holdiiiL' courts for the trial of criminal caseH, is beyond the power of the provincial leginlature. Polii:y "f Act adopted by [larliament of Canada, and provinion bemg miule for salaries of two additional judgcH provided for by Act, it was left to its operation. Question whether Act was not an inter- ference with regulations of trade and connnerce seemed to recpiirti considera- tion, but aa Act was deeuit^d to conn within subsec. tt of sec. i)2 of British North America Act, it was left to its o|)eration. Chap. 30... 43 Vict., 1880, chap. 4. Chap. 10. . . . The Public Schools Act, 1870 44 Vict., cha|). 1. 1881, 1076 1077 An Act to abolish the pi iority of and amongst execution creditors. An Act resjiecting^ the fra\idulent pre- ference of creditors by p<'rsons in insolvent circumstances. An Act to carry out the objects of the better administration of .fustice Act, 1878, and the Judicial District Act, 187!». Chap. 15. 46 Vict., 1883, chap. 6. Section 25 declares a false declaration of a right to vote a " misdemeanour." Seeir.n to entrench u()on tho question of bankruptcy and insolvency. Seems to entrench upon the subject matter of insolvency. l-'rovisio: . of Act objected to by the judges, but as Order in Council under section 7 has been sanctioned by (Jov- ernor (ieneral in Council, Act left to its oi>eration. An Act to amend the Gold Mining and Mineral Acts. An Act relating to County Courts. Chap. 10. . . . An Act to amend the Sumass Dyking Act, 1878. Se(!tion 10 objected to, but as provisions are clearly cimnected with administra- tion of justice in the province, and the jurisdiction of a provincial court, Act left to its ojH^ration. Question arose as to inconvenience occa- sioned by existence of Act, in view of fact that new county court judges not appointed, but as sec. 34 provides that in any cases where the office of a county court judge in any district is vacant or not filled up, it is lawful for judge of supreme court to perform the duties. Act left to its operation. Act ijetitioned against tin ground that it is an alteration without consent, and that it is i:x post, facto and retroactive and provisions unfair and tyrannical, but as Act is within legislative authority of province, it was left to its operation. 1075 1078 1078 1079 1079 1089 1090 TABLK OK Acrs, 18G7-1895. 139 TABLE OF ACTS, 1867-1895— 6'on«mMerf. HR1T18H COLU MIMA— Continued. Page, 1076 4('i Vict., IH*}, An Act to iiici)riM)riiti' tlif CdliimMii chill I. 15fl. arid K(x)tciiay Railway C(Hii|)any. f 1(»76 1077 -17 Vict., 1884, chap. 2. Cha|). 4. An Act to prevent Chinese from acquir ing Crown LandH. An Act to regiilate the Chinese pojmla- tion of IJritish Columbia. a 1075 nf 10 1070 er ns 1079 !a- X089 of -Jg Vict., 1885, oiiap. 25. Chap. 2(). An Act to consolidate HchiK)l« Act. the Public An Act to authorize the apiiointinent of a CoiiiiuiHsion of incpiiry c(incern- ing the genuineneHS of an alleged transfer, dated 23rd June, from cer- tain Indians to one J. M. M. Spinks. Chap. 28 An Act for the abolition of certain tollH, 1090 49 Vict., 1880, chap. 20. Chap.|25.... Chap. 32.... Chap. 33. . . . Chap, 35.... 61 Vict., 1888, chai). 35. 88i \ct gives ('(itnpiiiiy power to entabliM line of steiimMliipf<. 'jiientioiiM ari.se. Will company by iiieans of HteaiUHliips divert trade from ('aiiadian raihvayKaml territory, to United States railways and territory, anil does Act authorize the company to establish a line of steam- ships between this province Mild a foreign co\nitry ? Keipiest madi^ that the Act be amended by providing that notliing therein contained shall authorize the company to estalilish a lini of steunishi|,H between this province and any British or foreign country. /■(Question arises as to constitutionality of 1088 Acts appl.\ ; to the whole, the province, whether or not exercise of 'i^f. direct t or re to a iHirtion and not the ]K)pulation of iiestioii also as to he Legislature, in the powers to impose a can so im|M).se it a.^ ' . limit that intercourse among Iieople ot ditfererf niitii i.s. which con- stitute one of to.' eleinonts of coni- luerce. An Act respecting Ijand Surveyors and the Survey of Land. An Act to incorporate the Vancouver Electric Light Company. An Act to incorporate the City of Van couver. An Act to incorporate the Ccxjuitlain Water Works Company (Limited). An Act to incorporate the Vancouver Water Works Company, 188G. An Act for granting certain sums of money for the public service of the Province of British Columbia. Principle of Act might be so extended, as to render it necessary to consider the tpiestion whether such legislation does not trench on regulation of trade and commerce. These Acts, chap. 20, (sec. H), cha]). 2"), (sec. 23,) chap. 32. (sec. 184), cliai). 33, (sees. 12, 14, 23, and 28), chap. 3,5, (sees. 11, 13, 21 and 2:")), contain pro- visions conflicting with criininal law. Provisions of sec. 197 of chap. ,32 should be limited in its application to fines and penalties under legislative control of British Cohniibia legislature. Sec. 142 of chap. 32 contains provisions oi)en to question. Section 1 and schedule B autiiorize i)ay- nient of money for services in connec tion with graving dock at Ksquiniault, Same to be chargeable to Dominion gov- ernment. Claim not properly chargeable to the Dominion government, and no recognitioti could be made of the claim. 1094 1104 Section 51 provides that any person wil fully making ;'also declaration of his right to vote, shall b" guilty of "niisde- ineanour. '" Trenches on criminal law. iSVc 32 and 33 Victoria, chap. 23, -'O. 2, Section 1 provides that any witness whoi 1104 on investigation therein mentioned, shall make any false statement or oath, or affirmation, shall incur a penalty of «500. 1104 1107 1112 E^ia I ". . ■ >" ' ' IW- ' i, ' ^ ' Hi ' ),;u-^i'- T *-jgw* ' .^M'l'-,"'- » 5^V 1400 PROVINCIAL LEGISLATIOK TABLE OF ACTS, 1867-1895— Cowimuerf. BRITISH COLUMBIA- Confmned. 51 Vict., 1888, chap. 39. Chap. 42... Chap. 44. . Chap. 46. . . An Act to ]irevent the spreading of noxiouH weeds. Doubtful if within power of legislatii e. Is more legislation ufTectinET th( cimiiial law. Vrovisionn of the Act itn !f tvre objectionable. An Act relative to the corfKjration ofiSection I is of doubtful validity, in view of the City of New Westininst'ir. j exclusive [xjwers of parliament on sub- ject of bills of exchange and pruuiifiaory notes. Sec. 102 provides for iiaynient of judge while engaged in revis'ii;.,' of assessment lists objectionable, which can only be done by parliament. Sec. V.2 gives ixiwer to pass by-laws on i ubjects, which are matters within exclusive authority of parliament. An Act to incorporate the Crow's NestjSec. 23 infringes on the legislative author- and Kootenay Lake Railway Com- ity of the Dominion parliament i.a regard pany. to bills of exchange and promissory notes. Vn Act to incorporate the Kootenay Railway and Navigation Company. The objects for which the company is 1116 incorporated are not " local works and undertakings " within the meaning of sec. 92 of the liritish North America Act, but come within exceptions " A " and " B "' of art. 10. 52 Vict. , 1889, An Act to amend the Law relating to chap. 18. Municipalities, and to repeal 51 Vic- toria, chap. 88, intituled : " An Act respi cting Municipalities. " Chap. 2(1.... Chai). 33. Chap. 34, Chap. 35... Chap. 36... Chap. 40. An Act to prevent trespass on inclosed Grounds. An Act to amend the New Westminster Act, 1888. 1113 1113 1116 Powers granted to municipal councils objectionable. Trenches on the crimmal law and the Act respecting malicious injuries to property. .See rejHjrt of the Minister of Justice on cha|). 42 of 1888, page 1113. Act objec- tionable MS granting enlarged power to iity council to p.ass by-laws. An Act to incorporate the Canadian Sec. .34 authoriiies the issue of bills of Western Central Railway Coini.>any.i exchange and promissory notes. An Act to incorjjorate the Columbia and Kootenay Railway and Naviga- tion Company. An Act to .luiend the New Westminster Southern Railway Company Act. An Act to amend the Vancouver Incc-- imration Act, 18()(i, and the Vancouver ncorpuration Amendment Act, 1887. 53 Vict., 1890, 1 An Act for establishing a. Juvenile Re- chap. 3. formatory, Infringes on the prov-isions of sec. 92, subsec. 10, of British North America Act, by i ncorporat i 1 ig a line of steamshi ps between the province and a foreign country. Authority granted to bridge the Fraser River (a navigable stream) is an inter- ference with the iwwers of parliament. The power of the ))rovincial legislature to authorize a mmiicipal council to pass bylaws on subjects mentioned in the Act is doubtful. Sec re|X)rt of the Min- ister of Justice on (Quebec legislation of lt"89, pages 433, 437 Sec. ■;, providing for the transfer of a boy from common jail to reformatory, is ultra viren if the prisoner was conunitted under anY other authority than that of a provincial legislature. 1117 111 1117 1117 1118 1118 1118 1120 ;; ) TABLE OF ACTS, 1867-1895. 1401 TABLE OF ACTS, l8&7-\805— Continued. BRITISH COLUMBIA— C'oji<(ii«ed. Page. Is ml 1113 M-e of ib- IIW )ry nit of an U2 t8, ve or- ird lllG )ty is nd of 1116 ICil ;ils 1117 Vet ty. 1117 on 1117 ec- to of 1117 !)2, lllS ica 1I)S ser 1118 er- nt. to 1118 ass the in- of Act S Vict., 1800, An Act to amend the Game Protection chap. 12. i Act. Chap. 10. Chaii. 20. . . Chap. 08. 64 Vict, 1891, chap. 1. Chap. 6. Chap. 14. . Chap. 29. . . An Act to incorporate the Columbia and Kootenay Railway and Naviga- tion Coui))any. !\n Act to incor|X)rate the New West- minster Electric Light and tMotor Power Company. An Act to regulate tlie clearing of Rivers and Streams. .\n Act for the Protection of Cattle.. An .A.ct to prevent the spread of Con- tagious Diseases among Horses and other Domestic Animals. An Act to further amend the Jurors Act. An Act to consolidate and amend the Municipal Acts. 65^Vict., 1892, An Act to amend and consolidate the chap. 20. Acts for the protection of certain animals, birds and fishes. 1120 Chap. 33. . . Chap. 48. BO Vict., 1893, chap. 15. Chap. 30. The MuniciiMil Act of 1892. , l)])erates directly as a restriction on trade and commerce. Parliament has also legislated res|)ecting the exportation of game (Revised Statutes of Canada, chap. 33, sec. 7). Objects of oonii)any are not provincial but international. Sec. 27, ))roviding for a fine in case of employment by the company of any Chinese, is ojjen to question, as being legislation affecting aliens. The interest of Canada in the rivers in question lias not been duly protected. The local legislature may not interfere with the beds of rivers ungraiiled at tiie time of thorate tlie Osoycnis and Okanagiin Railway Coini)aiiy. An Act reapectinjf the Draining and Dyking and Irrigation of Lands. An Act to amend the Game Protection Act, 1892, and amending Act. Provisions intending to em]x)wer the com- panies to divert waters, or occupy l»>d of river are ultra vireH of provincial legislature, so far as they relate to rivers which have been declared Viy Britisli North America Act to Ik' part of prop- erty of Canada. Sec. 03 trenches on subject of criminal law, and therefore nitra vires of provin cial legislature. Sec. 3 iiertains to subject of sea-coast and inland fisheries, and could not, there- fore, be enacted by provincial legislature. 1146 37 1148 1149 An Act to amend the Placer Mining Sec. iO in ultra rirtK of jirovincial legisla- 1149 '^■ Chap. 63. 68 Vict., 1895, chap. 18. Act, 1891 An Act to authorize certain Dyking and Draining Works in the District of New Westminster. An Act resiieoting the Victoria Elec- tric Raihvay and Lighting Company (Limited). An Act resiiecting lands granted to the Dominion Government. ture as a|>plied to rivers which belonged to the province at the time it entered confederation. Sees. 1, 6 and 7 Chap. 23. . . Chap. 62. . . Chap. 63... Chap. 67. . . Chap. 68. . . Chap. 69. . . do do An Act to amend and consolidate the Acts for the protection of certain animals, birds and fishes. Sec. 31 trenches uikiii subject of criminal law as dealing witli malicious injury to [iroperty, and is, therefore, not within scope of provincial legislature. Sec. 4 authorizes Lieutenant-Governor by Order in Council, to make i>rovision for defining and causing title of Dominion government to lie registered under Land Registry Laws. If this section would have effect of impairing title of Do- minion government in case it were not registered, the section is ultra vires. Sec. 7 i)n)vides that an>' Order in Coun- cil UTule by Lieutenant-Governor under the Act shall have force of statute. Sec. 7 makes it unlawful to exjK)rt game out of province. Tiiis provision would appear to be beyond provuicial author- ity. 1149 1148 1151 38 An Act for the sujiply of water to the ' City of Nanaimo. An Act resjx (ting the amendment of tlie Naiiaiuid Waterworks Act,1895, and ainendiug Acts. An Act re8|)ectiiig the incorporation of the Slave River Electric and Power Company (Limited). An Act respecting the Vancouver In- coriK)ration Act and amendment Acts, ■.r. Act to incoriMirate the Victoria Consolidated Hydraulic Mining Com- pany. U Contain pinvisions which appear to assume right of legislature to legislate with regard to rivers. Ciiap. 67 contains \no vision assuming to legislate resjiecting aliens. 3fl 1152 1152- Powers conferred uixiii a corjwration to make by-laws in some cases, seem to Ik' in excess of those that could lie granted by provincial legislature. Contains provision assuming to legislate respecting aliens. 1152 1152 TABLE OF ACTS, 1867-1895. 1403 TABLE OF ACTS, 1867-1895— CW^mwed PRINCK EDWARD ISLAND. ?e. 16 37 Vict., chaii. 1. 1874, Chap. 8.... m 1{> 49 40 48 51 All Act to anieiul an Act jmsaed in the .Sdtli yt'ar of the reign of Her Majesty l^ueeii Victoria, intituled : " An Act to cstabliHli County Courts of Judica- ture in this Island." An Act to consolidate and amend the Laws enabling the Suiireiiie Court of ■Fudicature to order the examination of witnesses upon interrogatories and otherwise. Chap. 21. . . ward Island Chamber of Conunerce Section 29, givinir the judge certain iKiwers in cases of perjury, is an interference with criminal law and [)rocedure. Section .') interferes with criminal law and procedure in referenctj to perjury. Chap 13 An Act to incoriiorate the Trince Ed- Dominion Act, .37 Victoria, chap, .51, 1874, ■ T, , ^1 __i_ t n^ -_.. |)rovide8 generally for the incorporation of taards of trade, and is applicable to Prince Edward Island. Section 3G provides tienalties for jierjury . 38 Vict., chap. I. 1875, An Act to amend the Law relating to Controverted Elections of Members to serve in the (ieneral Assembly of Prince Edward Island, and for pro- vidingmore effectually for the Preven- tion of Corrupt Practices at Elections, An Act to incorixirate the Merchants' Section 2 does not pro|)erly restrict the Marine Insurance Company of Prince business to bt^ done in the province. Edward Island. Chap. B. . . . An Act to amend the Act to extend the Sections 2 and 3 alter the iienalties for 39 Vict., 187(>, chap. 2. Criminal jurisdiction of the Police Court in the City of Charlottetown. An Act regulating the sale by license of spirituous liquors. 162 certain crimes. 1158 1158 1158 1159 1162 1162 Chap. 9.... 152- 152 152 Chap. 16. , . . Chap. 17. . An .Act to amend the Insolvent Debtors Act. Sections 2 and 7 use the term "offence. Saction 16 i)rovides a iwnalty for selling liquor to an Indian— a matter fully pn)- vided for by the 79th an.l following sec- tions of 39 Victoria, chap. 18, 1876 (Canatla). Section 49, providing a iien- alty for obstructing a constable, conies within the criminal law. Section 52 uses the term "offence" in an oVijection able way, as applied to action required to lie taken by the grand jury at the cominencenient of a prosecution. Sec- tions 55, 68 and 59 employ the words "offence " and " offender." i The use of th(! phrases "insolvent" and; " insolvent delitor " is calculated toj create embarrivssnient, but the Act here- by amended is not in the jn-oper sense an! insolvent law, Vieing rather a law to mitigate the hardships of imprisonment for debt. An Act enabling the StiiH-ndiaryMagis- To this Act the observutioiis inade with trate of the City of Charlottetown tc-l -' "" *" "'•"•' " '"■" """beable. 1180 1181 grant relief to insolvent debtors. An Act relating to Coroners' Inquests . V.I tins i^y-y^ I'm ...I. r.. I , «.,.....■■ ....-..- reference to chap. 9 are applicable. Doubt was expressed with reference to Act of British Columbia, 37 Victoria, No. 4, whether such legislation was not an in- terference with criminal procedure, but as no suggestion was niaife in that case, tiie same course was followed in this :• itance. 1182 1182 1404 PROVINCIAL LEGISLATION TABLE OF ACTS, IS67 -182^— Continued. PRINCE EDWARD ISLAND- Oontmucrf 39 Vict., 1876, chap. 21. Chap. 20... Chap. 27. . . . All Act ie»i)ectiiig the Town of Sum merside. Section 4 uses tlie wordH " offence " and " offenders." An Act to incorixirate the Acadia Prov- No limit to the range of business, ident Association. 40 Vict., chap. 1. 1877, An Act for the incoriM)rationof the Vic- toria Boring and Mining Compauy. Tlie Public Schools Act, 1877 Cliap. 14. . . . Chap, It). Cliap. 20. 41 Vict., 1878, ohap. 12. do do do Objected to on ground that it interfered witli rights of Catholic coinniunity of province as secured to them by i(3rd sec-j tion of British North America Act.| Bill will have effect of closing the sei)a- rate schools whicli for a long time have existed among the French. Section o jirovides that the clerk of the stipendiary magistrate shall pay over all fines, &c., to the city treasurer. An Act to alter and amend the Act to Sections 6 and 8 appear to interfere with incoriK)rt. ■ the Minister and Trus- the subject of interest, tees of St. James's Church, Charlotte- town. 1182 1189 61 An Act to amend an Act to incorimrate th.e Town of Charlottetown. The Registration of Electors and Ballot Act of Prince Edward Island, 1877. The County Courts Amendment Act, 1878. .Section 101 entrenches \i\mn the criminal law, so far !is it relates to the counter feiting or iiltering fraudulently any bal lot pajier, &c. Section (Jl allows the judge of a county court a fee of 50 cents for taxing; the costs in a suit. It was considered inad visable that a jirovincial legislature should interfere with the emoluments of a county judge alreiidy fixed by the par- liament of Canada. Chap. 13. . . . 42 Vict., 1880, chap. 13. 44 Vict., 1881, chap. 18. 46 Vict., chap. 8. 1883, Chap. 11.. Chap. 25. An Act to amend an Act regulating the Sale by License of Spirituous Liquors. An Act to amend an Act regulating the Sale by licenses of Spirituous Liquors. An Act respecting the Administration by the Crown of the Estates of Intes- tates in certain cases. An Act to continue certain Acts thendn mentioned, viz., 24 Vict., chap. 7, and 20 Vict., chap. 10 An Act relating to the Acts of the I>3- ininion Parliament respecting Insol- vent Banks, Insurance Companies, Building Societies and Trading Cor- fxjrations. An Act to incorjKirate the Island Steam Navigation Company of Prince Ed- wai-d Island. 1197 1199 1199 1202 1 Some of the provisions of these Acts iiiay I be held to be beyond the legislative } authority of |)rovincial legislature as I encroaching u\xm the regulation of j trade and commerce. Provisions of the Act would be illegal in the event of judgment of Suiireme Court in case of Mercer vs. Att(\ith prin- ciples of Uv'islation, as intending to limit the right which legislature consti- tutionally h.aa, of rei>ealing or altering previous Acts. Sees. 8. 9, 10 and U objeoted to, as local legislature does not, in absence of express grant from Impe- rial parliament, iMissess [mnitive [lowers Obj(>ct of Act is taxation for provincial purixises. Provides for payment of cer- tain taxes in resjKict of lantl, and that owner, occupier and tenant shall be jointly and severally liable therefor. Question whether this class of taxation is not indirect, and therefore ultra vires of provincial legislature 1214 1215 1227 An Act to impose a Direct Tax on cer- tain class of traders. 68 Viot., chap. 7. 1895, Chap. 8. The Land Purchase Act, 1895. 1229 An Act respecting the Commissioner of Public Works. Object of taxation is for provincial pur- jKises. Act i>i-ovides for payment by commercial travellers and non-resident vendors of goods and waves, an annuall license fee or direct tax. . 21, sees. 3 and 72. Subject is one legislated ufion by both Dominion and provincial legislatures, by latter probably under 95th section of British North America Act, the law of the legislature having effect, so far as not repugnant to Act of parliament of Canada. Principle of allowing judges fties, as is done by this Ordinance is bad, .and should not be given effect to in the Territories. Order in Council of 7th July, 1887, gives Lieutenant-Governor iwwer to incorpo- rate companies with territorial ob.'ects with certain exceptions. Section 29 trenches upon criminal law. Section 65 trenches upon the criminal law. Sections 19, 20, 21 and 22 conflict with the provisions of the criminal law. Gives iK)wer to munici)ial councils to pass by-IawH relating to certain subjects which are more or less under control of Dominion parliament, and therefore may or may not Ije ultra viris of council passing them. Sees. 120 and 239 objec- tionable, the latter [wssibly ultra vires as taking away from supreme court (in part) its jurisdiction. Page. 12.38 1238 Ore 1888 : N 1241 1241 1889: 1891 1247 1247 1247 1249 189 TABLE OF ACTS, 1867-1895. 1407 TABLE OF ACTS, 1867 -\S9i)— Continued. NORTH-WEST TERKITORIES— Conttnuerf. Page 1238 1238 1241 1241 1241 1241 1244 1244 Ordinance. 1888; No. 30. No. 59. An Ordinance reKi)ectinff tlie incoriKU-a- tion of Joint Stock Companies by Letters Patent. An Ordinance re8i)ecting Sohoolc 1889; No. 10. No 1891-92 :— No. 1.. 1247 1247 1247 1248 1248 124» No. No. No. No. 27. 1892; No. 19 Section 80 contiiin.s legislation upon the subjects of bills of excliangeaiul proniis Bory notes. Section 82 operates diaadvantagefmsly to certain loealities of the North-west Ter- ritories. Ordinance does not conform strictly to reciuirements of Act (Revised Statutes of Canada, chap. .")0), underi wiiich it is framed and therefore objec- tionable aa being an interpretation byi inferior legislative tody, of the acts of) its superior. An Ordinance respecting the Expro- Does not contain provision for payn.eut of nriation of Lands. 'and when expropriated. Uove appro- priation oi lianas. ^^._^^^ ^^^^^ ^^^^^^^_ ^.^ expropriate lands for school ijurposes should be vested in trustees of oublic school district. Power of expropriation vested in Lieutenant- Governor in Council, i.e., advisory Council ; ^vhereas council only ijossesses such iHjwer.s as are conferred by Do- minion parliament. 1250 1260 14 An Ordinance respecting Justices of the 1258 1258 Peace No. 27 An Ordinance to incorixirate the Med 11 U1U1111*II»^C i^\J iiiv^v.. !"'• .».." oine Hat Oeneral Hospital. Legislative assembly has no jurisdiction to define qualifications of justices of the, l)eace. Ordinance, therefore, is un- authorized limitation of powers of Lieutenant-Governor. Ordinance does not sjjecify object or pur-, 1258 posesof theincoriJoration, and thatobjectj should be expressly stated in ordinance. An Ordinance respecting the Executive (iovernment of the Territories. Ultra vires of legislature, excepting so far as it may be considered and construed in relation toexiienditureof territorial funds and moneys appropriated by j)arliament, as Lieutenant-Governor and assembly or any committee thereof, is authorized to expend, otherwise it would conflict with North-west Territories Act. 1260 Same remarks applicable as to Ordinance ^ No. 1. 1262 An Oi-dinance respecting Revenue and " Expenditure. An Ordinance to amend the Interpie- tation Ordinance. An Ordinance to further amend Chapter Ordinance in question, in .so far as it afTeets 1262 30 of the Revised Ordinances, intit- tele,.hone companies, is ultra vires of uled, "The Companies Ordinance." assembly. An Ordinance respecting the protection of property. Offence ainif.d at governed by sec. 25i) of criminal code. Doubtful if ordinance is intra i'lVcs of legislative assembly. An Ordinance to amend and consolidate as amended. The Game Ordinance, and amendments thereto. 1263 Section 11 open to question, as affecting 12ba thesubject of trade and commerce, which is assigned by British North America Act, to parliament. r T-'-^^-fKEse^WW^^*???^ 1408 PROVINCIAL LEGISLATION TABLE OF ACTS, 1867-1895— Conc/wrferf. NORTH-WEST TERKlTomES-Concluded. Ordinance. 18(12 :— No. 35 1893 No. 25, No. 32 .. No. 33. 1894 :— No. 3. No. 5. No. 6. No. 20. Title. Reasong for Objection or Comiiipnt. Pagt An Ordinance to .iinend certain Ordin- ances. An ordinance to abolish priority among Execution Creditors. An ordinance to ompowei tbe Munici- pality of the Town of Edmonton to construct and operate a tramway. An ordinance to incorporate the City of Calgary. Intention of ordinance is to imiKJse on executive committee of Nortli-west Ter- ritories, the duty of advising Lieutenant- (Jovernor u|R)n matters connected with duties of his office, other than ex|)endi- ture, thus conflicting with North-west Territories Act, can only have validity and effect as to matters which fall under control of Lieutenant- Assembly, Legislative, Act to define privileges, innnunities, &c., of (British Columbia, 1872) 1014 Assessnaent Act, 1876, Act to amend (Britisli Columbia, 1877) 1047 Assessment of projjerty, Act to amend and consolidate law in Ontario re (Ontario, 1868-69) .... 82 Assessment Rolls, 1888, and Jviry panels. Act to legalize (Nova Scotia, 1888) 583 Assessment Act, 1876. Act to ..mend (British Columbia, 1877) 1047 Assessment Act, 1«94 (Prince Kd ward Island, 1894) 122)1 Assessment Amendment Act, 1888 (Ontario, 1.S88) 212 Assessment, Municipal and collection of taxes and licenses, Ordinance re (North-west Territories, 1893) 126; Assessments, Municipal, Act to consolidate Acts re (Nova Scotia, 1888) 581 Assiniboine and Red River Navigation Company) Manitoba, 1872) 771, 772 Assiniboine, Bridge over. Act to afford facilities for construction of, &c. (Manitoba, 1876) 804 Assignments for benefit of creditors, Act respecting (Ontario, 1885) 199 Assignments for Iwnefit of credito-s. Act resixicting (Manitoba, 1886) 854 Assignments for lienefit of creditors. Act to make further provision rr (Ontario, 1887) 204 Assignments, i>refercntial, Ordinance re8i)ecting (North-west Territories, 1884) 1242 Associations, copartnersiiips. Act to recjuire, to enregister (Manitoba, 1873-74) 787 Assurers, Act tt) compel, to take out licenses (Quebec, 1875) 285-287 Asylum for the Insane, Act resiK^cting, &c! (Manitoba, 1886) 853 Attachment and abolition of imprisonment for debt. Act as to (New Brunswick, 1875) 709 Atlantic Insurance Conii)any, Act to incorporate (Quebtic, 1874-75) 2(i3 Attorneys and barristers. Act to amend laws relating to (Nova Scotia, 1880) 506 Attorney, Powers of. Act to make valid in certain cases (British Columbia, 1875) 1037 and Act to amend 1876) 1043 B Bagotville, Village of. Act to erect into separate Municipality (Quebec, 1875) 282 Saker Bnmk Mill and Boom Co., Act to incorixirate (New Brunswick, 1896) 706 Ballot Act (Ontario, 1874) 106 Ballot, Voting by, at Municipal Klections, Act to provide for (Ontario, 1874). 143, 144 Ballot Act and Registration of Electoi-s (Prince Edward Island, 1877) 1199 Bankruptcy, (See also Insolvent Debtors. ) Bankruptcy Act, Act to continue (Ontario, 1867-68) 80 INDEX. 1411 B — Continued. PAl.K. . .. 480 ... !H« iiiibia, .li;45, ]ir,2 1HK3) VSM f)(Hi 1«!»3) 24L' !)2n r.8;! (135 .... (13 1 1«87) 1108 2Ui 2ir. 1023 ...143,144 (Nova .... 533 . . . lf)3 ... ssm ■ ■ . 14(1 2).... 1014 ... 1047 |t) . . . . 82 .. 583 . . 1047 .. 122!l 212 tories, 1267 581 .. 771,772 804 199 854 204 .... 1242 787 ....285-287 853 709 ... 2fi3 506 . : . 1037 .... 1043 Bankruptcy, Act rr Bubject of (Quelwo, 18«8) 246 Banque HyiHittit-c-nirf Cnnadioiinc, Act to iiicor|K)rfttf (Qiir'licc, 1892) 466 Barristers and Attorney". -Vot to amend Ihwh ivlatiM({ to (Xova Hcotia, 1880) 606 Bar of I'rovincc of <7inl)ec, Ait reHiM^ctintf ((;ii(.1h.c IHS(i) ;n.S, 31(t, 334, .'m, 337 Beet Hoot, .Art to oncouraKf nianiifactiirc of Hugiir from (rati' (Xova Scotiii, 1HS9) gjio Cariboo Waifoii HoadTolls Anicinhiiciit Act, HTM (iliitiHli Coliiiiibia, 1.S"8) loflg joyj Cariboo Wai^oii Unad 'I'oll-i Act, IH'tl, Act to amend ( llritinh Columbia, 1880) 1078 Cattle, Protection of, Act for (IJritiHli Colninliia, 1H!I1) ]j24 Cemetery ConipanifH, Attn to incoriHjratc ill Novn Hcotia (Nova Scotia, iHHd, 1KH7, 1WI3, |8!(4, ''^"•'•''> r)5!i, rm, ai4, ma, 571, \m, m3, im 81!l Cemetery ('ompanics. Act resin'ctinK cHtalilisluncnt of (Mnnitolia, 1877) Cemetery ( 'omimnics. Ordinance to incorporate (Xortli-we.st Territorien, 188(1) 1247 Cemetery (Jo. , Kivernide, Act to incorporate (New HrnnMwick, IHIIo) Central Canada Kxliil)ition AsHociutiou, Act to incor|Miratc (Ontario, 1888). 7(1(1 2i;» Central Mank of New UrnnHwick, Act rolatintf to (New lirnnHwick, 18()7-(!8) ^^,^^^ Central Prison Act, re (Ontari), 1870-71) < |oo Chamber of ( 'onnnerce. Act to incoriKjrate (I'rince Kdwunl THinnd, 1874) ijsg Chambly llydnuilic .MaimfactnrinK f-'<>-. Ac', to incor|)orate (t^nebee, 18(i'J) 263 Chambly Mannfacturintf ('o., Act to incorixnute (l^ieljec, 1881 ) 373 333 Channel Snhway Co., Act to iiic()riH)rate (New HnniHwick, 1888) y4S Charities, I'mIjHc, Act reK|>ectinjf (Nova Scotia, lH,H(i) ^- 5^,3 5r,{) Charlottetown, (Jity of. Act to conMolidate and amend Acts of incorporiition of (Prince Kdward Uland, 1888) jgjg Charlottetown Police Court, Act to extend amoinit of jurimliction of (Prince Kdward iHland '^"°'; ' 1102 Charlottetown, Town of, Act to amend Act to incorporate (Prince Kdward Inland, 1877) 1197 Charlottetown, Town of, Acttoappoint.Stipendiary .Magistrate for (Prince Kdward Island, 1875). IICO Charlottetown Water Works Act, 1887 (I'rince Kdwiird Island, 1887) ' i2V2 Chartering of Trust (.'ompanies. Act resiH'i tin^' (Ontario, 18115) ' 241 Charter of City of Montreal, Act to revise and consolidate ((,»uel«'c, 18W) and 1894) 4,S5 4(57 4t; Charters, Railway, in Manitoba, correHjiondence witli Imperial (Jovernment 8(i0-883 Chaudiere River, Act to authori/.e (i. li. Hall to improve and e.xact Tolls ou ((iuubec, 1874-75). 2(!4 ChezzetCOOk Dyke, .\ct respecting Lower (Nova Scotia, 187(>) ^c)^ Chicoutimi, Act to amend anil consolidate cliart«'rs of ((Quebec, 1894) 4(53 Children born out of Wedlock, A-.t to render lej,'itimate (British Columbia, 1872-73) 1018 Children, Indigent, Ordinance for relief of (Noith-west Territcn-ies, 1883) 1239 Children, Infant, Act for the protection of (Ontario, 1887 and 1893) 205 242 Chinese actpiiring Crown Lamls in British Columbia, Act to prevent (British Columbia, 1884).. . ']094 Chinese InmiiKration, Act to prevent (British Columbia, 1884 and 1885) 10t)2, 1093 1008 1101 Chinese Immigration in British Columbia, Act to i>revent (British Columbia, 1885) Um nm) 1101 Chinese Population, Act to regulate (British (.A)lumbia, 1884) ' i()<)4' jq) hq^ Clearing of River Streams, Act to regiilate (British Columbia, 1890) 1122 Clifton Susi>ension Bridge Co., Act to incorjxirate (Ontario, 1867-(>8) go Closing of Shops, Act respecting early (Quebec, 1894) ' ^go Coal, Minerals other than. Acts relating to (British Columbia, 1877) 1040 Coal Mines, Act to make Regulations with respect to (British Columbia, 1877) 1050 Coaticooke, Act to enact Town of, into Town with charters (Quebec, 1888) .S80 385 INDEX. 1H3 0— Continued. VMiK. Code, Municipal, of ii\w\»-c (t^ieh^c, 1870, 1HH2, 1HH8) 257, 307, ;«7H, 3H'J Oode "f <'i\il I'lMcrdiirf, Act to ivini'iul, / ((^ihIh'O, IHHf)) I"'-' OolcheBter l.miil«f Driving mid Miitmt'uctiiriiiK (>>., Act t > inc<)ri)oraU< ( Nova Hcntia, lXih-7(\)AK, 'M< Collection nf Frr^inlit, Wliarfa^'c anil WanliuUHc Ciiarncs, Act ir (Nnvii Sintia. IHWi) 057, TifiH Collection iif SiPiill DcMh in City of Krodciicton, Act to facilitate colli'ction of (Nnw lirunH- wick, 1H77) 71!t Colonial Si.ictary, CiimwiMiiidHUCc with, rt Miniiitt'iial l{cM|)on«il)ility in nonnoctinn with Dinal- lowancc of Provincial ActM «lt>4, (liV7H Columbia and KiHitcnay Railway and Navigation Co,, Act* to incorixiratf (Hritinh C'olunihia, |HM(M(0) 1118,1121 Columbia and Kixitiiiav Uailwav and TranHiiortation Comiiany, Act to incoriM)rati' (liritiHli ('uhnnl.ia', 1HH;<) lOHT-lOHH, 10!K) Commercial ' 'oilKiintionn, Act to impow direct taxftt on (t^iicU*, 1882) IW Commissioners, Kirc in CitieH and Towhm of Manitoba, Act to provide apiKiintmcnt of (Mani- t( >ha, 1 S7tl) *^" Commissioners, NiaRara Kails Park and Niagara Power Co. , Act to confimi agreement between (( »ntario, 18112) 220, 23!l Commissioners, N'iajfara Kails I'ark, Act to K'vi' powers to (()ntari Consolidated S^atute8 of (Quebec, Act to amend chapter IS (Quebec, 1874-1875) 278 Constitution ami practice of Court of Queen's liench, Act respecting (Manitoba, 1805) l'X)0 Constitution of Superior Court, Actij to amend Laws re ((Juobec, 18(!0-7O, and 1883) 250, 30S Construction of certain Railway Lines, Act providing for (Manitoba, 1888) 806 Contagious Diseases among Horses, &c.. Act to prevent spread of (British Columbia, 1801) 1125 Controverted Elections of Miiinbers of General Assembly, Prince Edward Island, amending Act re (Prince Edward Island, 1874) 1150 Conversion of Debt, and Redemption of Provincial I>ebentures Act re ((Quebec, 1888) 374-377 Co-PartnershipS, A'c, Foreign, Registration of. Act respecting (Manitoba, 1873-74) 787 Co-Partnerships, Registration of. Act resiiecting (Manitoba, 1873-74) 787 Copyrights, Acts relating to (Dominion, 1872-75-80) (And also Apptmdix " A " ) Vl, 13, 30, .58, 1281 Coquitlam Waterworks Company, Act to incoriiorate (British Columbia, 1.S86 1102 Coroners, Act respecting (British Columbia, 1870) 1076 Coroners and Magistrates in Manitoba, Act authorizing apix)intnient of (Manitoba, 1871) 700 Coroners' Inquests, Act relating to (Prince Edward Island, 1876) 1182 Coroners' -Tury Act, 1886, -.ct to extend provisions of, to Mainland, British Columbia (British Columbia, 1873-74). . 1020 Corporations, Act to impose Direct Taxes on Commercial (Quebec, 1882) 307 Corporations, Incoriwrated by Parliament, Act to auch(>-ize to lend and invest moneys in New Brunswick (New Bnmswick, 1887) 742 Corporations, Incorporated out of Province, to Lena and Invest Moneys, Act to authorize (Manitoba, 1877) 818 89 B itil t5 * ij 1414 PROVINCIAL LE(iI8LATI0N. C— Continued. Paok. Corporations, Incorporated out of Manitoba, Act, re (Manitoba, 1895) 1005, 1007, lOOit Corporations and Institutions, incorporated outside of North-west Territories, Ordinance to authorize to transact business (North-west Territories, 1884) 1242 Corporations and Institutions to lend Money in Province ot Quebec, Act to authorize (Quebec, laSC.) 314, 335, 330 Corporations, Foreign, Act resijectinpr enregisterintf of (Manitoba, 1873-74) 787 Corporations, Municipal, Act to consolidate and amend Laws re (Manitoba, 1886) 854 Corporation of City of Montreal, Act to amend Acts relating to (Queliec, 1808) 252 Corporations, Town, Act to consolidate and amend Act re (Manitoba, 1885) 849 Correspondence with ImixTial Authorities re Riilway Charters in Manitoba (Manitoba, 1887) 860-883 Corrupt Practices at Elections, Act for prevention of (Nova Scotia, 1875) 490 County Courts, Acts amending chapter 51, Consolidated Statutes New Brunswick, relating to (New Brunswick, 1882) 731 County Courts, Act relating to (British Columbia, 1883) 1089 County Courts, Acts respecting (Manitoba, 1887) 859 County Courts, Act resv)ecting (Ontario, 18<>8-69) 83, 89, 92 County Courts, Act to amend and consolidate Acts re (Nova Scotia, 1889) 585 County Courts, Act to amend provisions of Revised Statutes of (Nova Scotia, 1887) . . .566, 669, 570, 572 County Courts, Act vo establish (Nova Scotia, 1874) 481, 489 County Courts, Anier-lment Act (Prince Edward Island, 1878) 1202 County Courts and Procedure therein. Act to amend Revised Statutes as to (Nova Scotia, 1887). . 572 County Court Judges, Act respecting ( ,ario, 1875-76) 147 County Court Judges, Act respecting (Manitoba, 1886) 853 County Courts of New Brimswick, Act further relating to (New Brunswick, 1873) 703 County Courts of Judicature, Act to establish in Prince Edward Island (Prince Edward Island, 1874) 1158 County Judges Criminal Courts, Act respecting (Novb Scotia, 1889) 585 County Municipalities, Act respecting (Manitoba, 1875 and 1877) 803, 816 Courtenay Bay Bridge Company, Act to continue, revive and amend Act re (New Brunswick, 1882) 719, 731 Courts, Act respecting practice in the (Manitoba, 1876) 808, 810 Courts, County, Act relating to (British Columbia, 1883) 1089 Courts, County, Act respecting (Manitoba, 1887) 859 Courts, Criminal, Act resi^ecting certain (New Brunswick, 1889) 752 Courts, District Magistrates, Act to amend re (Quebec, 1873-74) 260 Court Fines, fees, &c.. Act to authorize Municipalities to retain and use as revenue (British Columbia, 1877) UM6 Courts in Madawaska, Act to establish certain. (New Brunswick, 1873) Court of Api)eal from summary decisions of Magistrates, Act to establish (British Columbia, 1887), 1108 Court of Judicature of Ontario, Act to consolidate Actn governing, &c. (Ontario, 1895) 244a Courts of Probate, Act to amend Act re (New Brunswick, 1895) 765 Court of Queen's Bench, Act respecting constitution and practice of (Manitoba, 1895) 1006 Court of Queen's Bench, Act respecting (Manitoba, 1885) 848 Court of Queen's Bench, Act resiiecting (Quebec, 1890) 455 Court of Queen's Bench (Manitoba), Act respecting (Manitoba, 1874, 1881) 786, 788, 790, 831 Courts, Superior, Act to consolidate, et?. (Ontario, 1881) 185 Court, Superior, Act resjiecting constitution of (Quebec, 1869-70) 256 Court, Su|jerior, Act to amend Laws resiwcting (Quebec, 1883) 308 Court, Supreme and Exchequer, Act to establish (Dominion, 1875) SO Courts, Supreme, in Manitoba, Act to amend Act to estabUsh (Manitoba, 1872) 774 Court, Suprenie, New Brunswick, Act to facilitate transaction of business in (New Brunswick, 1879) 725 Court, Supreme, of British Columbia, Act to amend practice and procedure of, &o. (British Columbia, 1879) 1075 Credit Foncier du Bas Canada, Act re (Quebec, 1875) 284 Creditors, Act resjiecting assignments for benefit of (Manitoba, 1886) 854 Creditors, Act to abolish priority of and among (Ontario, 1880) 170 Creditors, Assignment for benefit of, Act respecting (Ontario, 1887) 204 B in INDEX. 1415 — Continued. 1158 585 .803, 816 k, .719, 731 .808, 810 . . 1089 859 752 260 sh .. 1046 i*AGK Creditors, Assignment for benefit of. Act to make further provisions re (Ontario, 1887) 204 Creditors and Railway Companies, Act to facilitate arrangements workmen (Nova Scotia, 1874).. 482-484 Creditors, Exeoition, Act to abolish priority of and among (British Columbia, 1890) l()7« Creditors, Execution, Ordinance to abolish priority among (North-west Territories, 1893) 1269 Creditors, Execution, Act to abolish priority of and amongst (Ontario, 1880) 170 Creditors, Fraudulent preference of, by Insolvents, Act re (British Columbia, 1880) 1078 Criminal Courts, Act respecting c(;rtain (New Bnmswi^k, 1889) 752 Criminal Courts. County Judges, Act respecting (Nova Scotia, 1889) ] 5^5 Criminal Justice, in Supreme Court, Act re Administration of (Nova Scotia, 1887) 571 Crossing of one Railway by another, Act to provide for (Manitoba, 1888-9) . ' ' 012 CrOAVn, Act to regulate proceedings against and by (Manitoba, 1875). 795, 7i)(j Crown, Intervention of in Civil Cases, re constitutionality of Acts (Quebec, 1882) ' 306 Crown Lands and Crown Land Surveyors, Act in reference to (Nova Scotia, 1881) 507 Crown Lands, Act to prevent Chinese from acquiring (British Columbia, 1884) I0i»4 Crown Lands in British Columbia, Act to amend and consolidate Laws respecting (British Colum- bia, 1873-4) 1024,1029 Crown Lands m British Columbia, Act to amend and consolidate Laws respecting (British Colum- bia, 1875) 1036,1039 Crown Lands in British Columbia, an Act relating to (British Colup~Sia, 1878) 1066 Crown Iiands in British Columbia, Act to i)revent Chinese frou. .cquiring (British Columbia 1884) Crown, Rights of, in certain public lands and property, Act to .leclare (New Brunswick, 1892) .. 756, 757 Crown Suits. Procedures in. Act re (Ontario, 1871-72) ' if,2 Crows' Nest and Kootenay Railway Company, Act to incorporate (British Ooluipbia, 1888). .. [ in'] Cruelty to Children, Act for prevention of, and protecting, Act re (Ontario, 1893) 242 Cumberland Driving Company, Act to incorporate (Nova Scotia, 187G) 492 Custody of Insane Persons, Act re further provisions as to (Ontario, 1873) jqS Dartmouth and Halifax Ferry, Act o consolidate Acts re (Nova Scotia, 1894) 643 Dartmouth, Town of, Act re supplying with water (Nova Scotia, 1876) ! ' 4!)6 Dartmouth, Town of, Act to amend Act relating to (Nova Scotia, 1886) ..... .560 565 Dawes Gold Mining Co., Act to inco/i)orate (Nova Scotia, 1889) ' 5^Jj Dawson Construction Co., Act to incorporate (Nova Scotia, 1895) g^g Debentures, Provincial, Act resiDeetiiig .ind Conversion of Debt (Quebec, 1888) .374-377 Debentures, Provincial, Act to aiithoi;.'.^ issiibs of, for certain puriwses (New Brunswick, 1875)!! 709 Debt, Conversion of. Act re8i«3ctii)^, and Provincial Debentures (Quebec, 1888) '. .374-377 Debts, Collection of a .lall, in Ohy (,. Fredericton, Act to facilitate (New Brunswick, 1877) 719 Debts, Act, small, 1886 (Britisb O/.uir.bia, 1886) "" ^j^- Debtors, Insolvent, Acts to ameud Ac*- ies(jecting relief of (Nova Scotia, 1868 and 1884) .472 522 Debtors, Insolvent, Act to ame .A .Act re (Prince Edward Island, 1876) 'jjgj Debtors, Insolvent, Act to improve administration of Justice re (Nova Scotia, 1S70) 475 Debtors, Insolvent, Act enabling Stipendiary Magistrate, Charlottetown, to grant relief to (Prince Edward Island, 1876) jjg2 Deeds, Registration of, Act to amend Aci respecting (Manitoba, 1873) 78O Deputies, Lieut. -Governor and His, Act respecting the (Manifajba, 1885) [_ 35^ Digby, Town of, Act to provide for Supplying with Water, &c. (Nova Scotia, 1895) . . ........... 646 D.ireot Taxes on Commercial Corporations, Act to impose (Quebec, 1882) 307 Disallowance of Pro incial Acts : 61-64 Course to be pursued by Dominion Government Corresiwndence with Colonial Secretary in re 61-04 Ministerial responsibility in connection with 6B-78 Powers of Dominion Government, &,o 61-64 Diseases, Infectious or contagious, of domestic animals, Oi-dinance re (North-west Territories 1883andl885) ^2^^ ^2^^ Diseases of Animals, Act resi)ecting (Manitoba, 1890) ' ,,,„ 89J B I I I i I II 5 I 1416 PROVINCIAL LEfilSLATIOV. D — Continued. I'AOK. Diseases, Oontagiovis, Act to prevent siiread of among HorHfs (British Columbia, 1891) 1125 Districts, .Tmlicial, Act to divide Province of \[anito))a into (Manitolm, IWl) 83^ District Mivgintrates, and MagintrattsM' Courts, Act to amend Act re (Quebec, 1873-74) 200 District Magistrates, Act to amend Law resiK-cting ((iueliec, 1880) 430 District Magistrates, Act to amend Law reHjjecting (Q\iebec, 1888) 343-373 District of Thunder Bay, Act re Territorial (Ontario, 1870-71) lOrt Ditches and Watercourses Act ivs applied to KaiKvays, Act re (Ontario, 18!X)) 217, 21K Divorce Bills (Dominion, 18(i7-1878) 50-60 Dominion (Government, |K)wers of, re disallowance 61-04 Dominion ( Joveriiment, Act respecting Lands granted to (British Columbia, 1895) 1151 Domestic Animals, Ordinance re Diseases of (Xorth-west Territories, 1885). (See above.) Drummondville, Act to incoriiorate Town of (Quebec, 1888) 385 DufiTerin ( iold Mining Co., Act to incorporate (Nova Scotia, 1889) 586 Duties on Licenses, Act tf< impose under Douiiimai Act (Nova Scotia, 1884) 522 Dyked and Marsh Lands, \ct to amend Act re regulating of (Nova Scotia, 18<>8) 471 Dykingr, Drainage and Irr. fation of Lands, Act respecting (British Columbia, 1894) 1148 Dykingr and Drainage Works in New Westminster District, Act to authorize (British Columbia, 1894 114!) Dyking Act, 1878, Act re8i)ecting, and Act to amend (British Columbia, 1870 and 7883 and 1885), 1072-1074, 1077, 1083- IC87, 1090, 1096-1098 E Eastern Covmties Railway Co., Act to incorporate (Nova Scotia, 1874). Eastern Railway Co., Act to incorjMjrate (Quebec, 1889) Eastern Extension Railway, Act resjiecting (Nova Scotia, 1883) Eastei^ Development Co. , Act to incorjxjrate (Nova Scotia, 1882) Eastern Steamship Co., Act to incorpt)rate (Nova Scotia, 1874) 4S8 Esistern Railway of Manitoba, Act to incor|)orate (Manitoba, 1873) 776, 770 Education, System of, Act further to amend Act to establish (Manitolm., 1876) 802 Education, Act to amend Act to estublish system of in Province (Manitoba, 1877) 817 Educational purposes. Act to create fund for (Manitoba, 1878) 823, 824 Education, DejMirtment of. Act respecting (Manitoba, 1890) 018, 926, 947 Edmonton, Ordinance to emjiower Town of to construct Tramway, Ac. (North- West Territories, 1893) 1268 Eel River Log Driving Co., Act to incorporate (Now Brunswick, 1875) 711 Elections, Municipal, Curriipt Practices' Act (Ontario, 1871-72) io2 Election of Msmljers to Legislative Assembly, and trial of Elections Act re (Ontario, 1873) 103, 1324 Election of Members, l>gislative Assembly (Queliec), Act res|)ecting (Quebec, 1874-75) 261 Election of Mcmlwrs to Legislative Assembly (Manitoba), Act re8i)ecting (Manitoba, 1875) 800 Elections, Munici[ial, Act to make better ijrovision for securing order at (Manitoba, 1870) 811 Election of Memlwrs to Legislative Assembly (British Columbia >. A ci relating to and to amend law (British Columbia, 1877) 1051 Election of Members to Legislative Assembly (Prince Edwanl Island), Act relating to Controverted (Prince Edward Island, 1874) 1159 Election Regulation Act, 1871, Act to amend (British Columbia, 1877) 1051 Elections, Controverted, Ordinance resitecting (North-west Territories, 1884) 1241 Election of Menil>ers, Legislative Assembly, Act re (Manitoba, 1886) 853 Election Petitions and j)revention of Cornipt Practices at Elections, Act re (Nova Scotia, 1875). . 490 Electoral Diviiiions, Act to provide for fair and equitable redistribution of (Manitolia, 1873-74). , . 785 Electors, Parliamentary Lists (Winni|)eg, 1877), Act to legalize (Manitoba, 1877) 819 Electors' Itcgistration and Ballot Act (Prince Edward Island, 1877) 1199 Electric Railways, Act respecting (OnUrio, 1896) 244b 114!t . 481 . 435 520 . . . . 519 .... 488 ...776, 77it .... 802 . . . . 817 ...823,824 8, 920, 947 ries, .. 1268 711 . . 102 103, 1324 261 800 , . . 811 1051 to INDEX. 1417 E — Continued. pa(;k. Electric Telegraphs, Marine, Act to regulate construction of, &c. ( Dominion, 1874) . 20 Electric Light and Water Co., St. Croix, Act to incor|x^rate (New l$iun.swick, 188(i) . 739 Emerson and West Lynne, Act uniting Towns of (Manitoba, 1883) 836 Emerson, Houris and Brandon Railway, Act to incoriKjrate (Manitoba, 1888) 898 Emerson, Act res|)ecting Town of (Manitoba, 1888-89) '.KM-909, 913 Emeiison and North-western Railway Co., Act to in'-"rix)rate (Manitol>a, 1881) 826, 82i) Emerson and North-western Railway Co., Act to incori>orate (Matiitoba, 1884) 840, 842 Emei^on and North-western Railway Co., Act to incoriM)rat« (Manitoba, 1887) 857 Emigration Aid Societies in Ontario, Act respecting incoriMiration of (Ontario, 1873) 103, 1325 English Language to be official language in Manitoba, Act to provide (Manitoba, 1890) 918-926, 928 Enquiries Concerning Public Matters, Act to niaki- i)rovisi<)n for (Manitoba, 1873) 780 Enquiries Concerning Public Matters, Act to make pnjvision for (British Columbia, 1872). ..1015, 1016 Equity Side of Court of (Jueen's Bench, Act res|)ecting (Manitoba, 1881) 831 Erection of New Buildings for Provincial Legislature and Departments, Act to provide for (British Columbia, 1893) 1137-1144,1145 Escheats and Forfeitures, Act to ainend Law res|x?cting (Ontario, 1874) 110-116 Escheats and Forfeitures, Act to amend Law res|(ecting (Ontario, 1877) 151 Escheats antl Forfeitures and Kstat«'s of Intestates (Manitoba, 1884) 838 Escheats and Pn)i)erty confiscated to the Crown, Act re«|)ecting (C^uebec, 1885) 312 Escott and Young, Act to provide for imion of Townsliiiw of (Ontario, 1888) 212 Estates of Intestates, Act res|»ecting Administration of (Ontario, 1877) 151 Estates of Intestates, Act re8i>ecting (Manitoba, 1884) 838 Estreats, Act respecting (Nova Sc(jtia, 1879) 505 Estreats, Penalties and Forfeitures, Act re»|iecting (Manitoba, 1875). 799 European and North American Railway, Act to comiiel Shareholders to pay up assessments, (New Brunswick, 1869) 651 Evidence, Law of. Act to amend defects in (Ontario, 1882) 188 Examination of witnesses on oath by Committees of Senate and House of Commons (Dominion, 1873) 13-10 Examination of Witnesses, Act to consolidate and amend Laws to enable Supreme Court, Prince PMwiird Island, to order (Prince Kdward Island, 1874) 1158 Exchequer and Supreme Courts, Act to establish (Dominion, 1875) 30 Execution Creditors, Act to abolish priority of and amongst (Ontario, 1880) 170 Execution Creditors, Act to abt)lish priority of and amongst (British Columbia, 1880) 1078 Execution Creditors, Ordinance to abolish priority amongst (North-west Territories, 1893) 1269 Execution .Act to exempt Homesteads from Sale or Levy under (New Brunswick, 1867-68) ((48 Execution, Seizure and Sale under. Ordinance exempting certain projierty from (North-west Territories, 1885) 1246 Executive Administration of Laws of Province, Act respecting (Ontario, 1888) 206-210 Executive Administration of Laws of Province, Act respecting (Quebec, 1889) 432 Executive Administration of Laws of. Act re (New Brunswick, 1889) 752 Executive Administration of Laws, Act re (Manitoba, 1890) 929 Executive Goveminent of the North-west Territories, Ordinance resijecting (North-west Terri- tories, 1801-92) 1200 Executive Power, Act respecting the (Quebec, 1886) 314, 338 Exhibition ,A.S80ciation, Central Canada, Act to incor[)orate (Ontario, 1888) 213 Exemption of certain property from Seizure or Sale under Execution, Ordinance re (North-wesi Territories, 1884) 1242 Expenditure and Revenue, Ordinance re, (North-west Territories, 1891-92) 12(i2 Expenditure, Ordinance resiiecting (North-west Territories, 1892) 12()5 Expenditure of Province of Manitoba, Act to diminish (Manitoba, 1876) 806, 807, 808, 809 Exposition Co., Act to incorporate Quebec (Quebec, 1892) 459 Expropriation of Lands, Act respecting (Manitoba, 1888) 8% Expropriation of Lands, Ordinance respecting (North-west Territories, 1890) 1258 B i ^ 1418 PROVINCIAL LEGISLATION. P Factories Act (Ontario, 1884) 195, !»> Factories, Life and health of jiersons employed in. Act to protect (Quebec, 1885) 312 Fees, Market, Act to amend Act re (Ontario, 1882-83) 192 Fences, Pounds and TreejMiases, Act relating io (New Brunswick, 1877) 718 Ferry between Dartmouth and Halifax, Act to consolidate Acts relating to (New Brunswick, 1894) 643 Fines, Escheats, Penalties, &c., Act reHjtecting (Manitoba, 1875) 799 Fines, F«;s, &c. (Court), Act to enable certain Municipalities to retain and use (British Columbia, 1877) 1040 Fire Insurance Company, Mutual, Act to provide for incorpt)ration of in Manitoba (Manitoba, 1876)811, 812 Fire Commissioner in Cities and Towns in Manitoba, Act to provide for appointment of (Manitoba, 1876) 811 Fires, Prairie, Act to amend Act for prevention of (Manitoba, 1873) 775,777 Fisheries of Province, Act to regulate (Ontario, 1885) 198 Fisheries, Act respecting Provincial (Ontario, 1892) 239 Fisheries, Act to amend and consolidate Laws re (Quebec, 1888), 378 (1895) 4(i9 Fisheries, Alewives, Acts relating to (Prince Edward Island, 1883) 1209 Fishing, Act to amend Law relating to (Quebec, 1889), 433 (1896) 469 Fishermen's Marine Insurance Co., Act to incori>orate (Nova Scotia, 1893) 635 Foreign oomiJanies, Act to make provision for registration in British Columbia (British Columbia, 872) ■.... 1015 Forfeitures, Escheats and Penalties, Act res|K>cting (Manitoba, 1875) 799 Fort Erie Ferry Railway Co., Act to incorporate (Ontario, 1887) 205 Frederioton Police Establishment, Act relating to (New Brunswick, 1871) 602 Fraser River Railway Company, Act to incorporate (British Columbia, 1883) 1082 Frauds in supply of milk to cheese and butter manufactories. Act to prevent (Ontario, 1888) 212 Fraud in sale of milk. Act to prevent (Ontario, 1893) 242 Fraud in sale of fruit. Act for prevention of (Ontario, 1895) 244o Fraudulent Statements by Companies, Act for tetter prevention of (Ontario, 1893) 241 Frederioton B(h and provide for (Dominion, 1870) 8 Government of the North-west Territories, Ordinance respecting Executive (North-west Terri- tories, 1891-92) 1260 Governor (Jeneral, Act to fix salary of (Dominion, 1867 and 1869) 6, 8 Governor, Lieutenant, and his Deputies, Act res|)ecting (Manitoba. 1885) 851 Grants in aid of Railways, Act to authorize, &c. (Nova Scotia, 1886) 538-54(i, 54i>, 558 Grand Junction Railway Company, Act respecting granting aid to (Ontario, 1870-71) 100 Grand Juries, Act respectmg (Ontario, 1879) 160 Grand Jurors, Act resjiecting (Alanitoba, 1875) 798 Grand and Petit Juries, Act respecting (Manitoba, 1879) ... 824 Grand Orange Lodge, Provincial, of Prince Edward Island, Act to incorporate (Prince Edward Island, 1878) 1203 Grand Falls Power and Boom Company, Act to incorjxjrate (New Brunswick, 1895) 760 Gravingr Dock, Island Railway and Railway Lands Act, re (British Columbia, 1883) 1090 Greenfield Mitiing and Development Company, Act to incorporate (Nova Scotii, 1895) 646 Guelph Board of Trade, Act to incorporate (Ontario, 1807-68) 81 Guide Posts along Certain Roads, Act to establish (Manitoba, 1881). 831 Gulf of Georgia, Act to ijrevent destruction of pasturage on (British Columbia, 1877) 104 Gunpowder, Act respecting storage of, near towns and cities (Manitoba, 1875) 801 s 929 1149 1265 1273 242 481 1023 1159 Half-Breed Land ( irant Protection Act (Manitoba, 1873) 776, 778 Half-Breed Land Grant Protection Act, Act to amend (Manitoba, 1875) 804 Half-Breed Land Grant Protection Act, Act to amend (Manitoba, 1877) 821 Haliburton, Provisional County of. Act respecting (Ontario, 1877) 153 Halifax Industrial School, Act re sentencing Juvenile Offenders to (Nova Scotia, 1868). 473 Halifax Company (f^imited), Act to incorporate (Nova Scotia, 1874) 479 Halifax & Great Western Railway Co., Act to incoriKirate (Nova Scotia, 1886) 501, 562, 563 Halifax and Yarmouth, Act to provide for completion and consolidation of Railways between (Nova Scotia, 1886) 538-558 Halifax Vinegar and Pickling Co., Act to incorporate (Nova Scotia, 1888) .... 583 Halifax, City of, Act to consolidate and amend .\ct« relating to (Nova Scotia, 1893) 034 Halifax Trust and Ijoan Society, Act to incorporate (Nova Scotia, 1893) 035 Halifax and Dartmouth Ferry, Act to consolidate Acts re (Nov.-. Scotia, 1894) 643 HaiiftI f^^S^C^/' ''"•• } Aot« to inconx^rate (Nova Scotia, 1895) 646 B -.1 H — Continued. PAdK . Hamilton, City of, Act resiwcting By laws of (Ontario, 18!»5) 2446 Harbours, Act in adtlition to and in amendment of Revised Statutes re (New Brunswick, 1809).. (559 Health, Public, Act in relation to (Xova Scotia, 1S88) . . 582 Health, Public, Act respecting (New Brunswick, 1-87) 741 Health, Public, Act respecting (British Columbia, 1893) 1145 Health, I'ublic, Act reHi)eoting (Prince Edward Island, 188ti) 1211 Health, Act resiiecting Public (Manitoba, 1890) 929 Hochelagra', Act to amend Act incfjrixjrating Town of (Quebec, 1888) 380, 385 Home Kire Insurance Company, Act to incorporate (Ontario, 1875-70) 149 Homeetead and Free (irant Act of 18G8, Act re (Ontario, 1877) 152 Homestead, of Families, Act toexempt from levy or sale underexecution (New Brunswick, 18(>7-()8) 648 Hospital, (ieneral. Medicine Hat, Ordinance to incorjMirate (North-west Territories, 1889) 1258 House, comjKjsition, |M)wer8 and privileges, Act to amend Act re (Nova Scotia, 1892) 027, 030 Hudon Cotton Mill Comijnny, Act re issue of Debentures (l/ueb<'c, 1875) 285 Hudson Bay & Winniixig Railway and Steamship Co., Act to rei)eal Act re (Manitoba, 1888-89). 913 Hull, City of, Act to incori^rate ((Jueliec, 1874-75) 263 Huron and Erie Savings and Loan Society, Act to change name of (Ontario, 1875-70) 150 Hydraulic Co., St. Louis, Act to incoriMirate ((Quebec, 1808; 240-250 Hydraulic Manufacturing Co., Act to incorporate Chanibly (Quebec, 1868) 253 Illicit Selling, Act re Laws against (Ontario, 1881) 187 Immigrration of Chinese, Act to prevent (British ColumVna, 1884) 1. ', 1093 Immigration of Chinese, Act to prevent (British Columbia, 1885) 1098, 1101 Imprisonment for Debt, Act to amend Act for abolition of, &c. (New Brunswick, 1875) 709 Improving the law, Act for further (Ontario, 1870) 201 Improving tlie Law, Act for further (Manitoba, 1887) 856 Inclosed Grounds, trespass on. Act re (British Columbia, 1879) lll7 Incorporated Associations, Act re investing and lending moneys (Manitoba, 1877) 818 Incorporation of Immigration Aid Societies, Act re (Ontario, 1873) 103 Incorporation of certain Towns, Acts re (Quebec, 1890 and 1892) 437, 459 Incorporation of Towns in Nova Scotia (Nova Scotia, 1880) 560 Incorporation, Towns Act and Act to amend (Nova Scotia, 1888 and 1893) 581, 633 Incorporation of City of Charlottetown, Act to consolidate and amend Act re (Prince Edward Island, 1888) 1213 Incorporation of .Joint Stock Companies by Letters Patent, Ordinances re (North-west Terri- tories, 1886-87) 1247, 1250 Incorporations, County, Act to amend Act re (Nova Scotia, 1888) 582 Independence of General Assembly, Act for further securing (Prince Edward Island, 1876).1160, 1107 Indigent Children, Ordinance for relief of (North-west Territories, 1883) 1239 Industrial and Commercial Life Assurance Co., Act to incorporate (Ontario, 1874) 142 Industrial and Reformatory Schools, Act to establish (New Brunswick, 1875) 709, 712 Infant Children, Act for protection of (Ontario, 1887) 205 Inland Steam Navigation Co., Act to incor|X)rate (Prince Edward Island, 1883) 1209 Inquiry, Commission of, re Transfer to J. M. Spinks, Act to authorize appointment of (British Columbia, 1886) 1104 Inquiries resi)ecting Public niatters, Act to make provision re (British Columbia, 1872) 1015 Inquiries concerning Public matters. Act ta make provision for (Manitoba, 1873) 780 Insane [lersons. Act respecting custody of (Ontario, 1873) 103, 1325 Insane, Asylum for the. Act re8i)ecting, &c. (Manitoba, 1880). . 853 Insolvent Banks, Insurir.ce and Loan Co.'s, Building Societies, &c.. Act resijcoting Dominion Acts relating to (Prince Edward Island, 1883) 1209 insolvent Debtors, Act to amend Chap. 137, Revised Statutes, Nova Scotia, as to (Nova Scotia, 1808 and 1884) 522 INDEX. 1421 I — Continued. I'.XliK. Insolvent Debtorn, Act to improve AdiiiiniMtratioii of .fiisticf re (Nova Scotia, 1870) -175 Insolvent Debtors Act, Act to uniend (I'riiicc Kdv.-ard iNlaiid, lS7(i) 1181 Insolvent Debtors, Act enabling StiiH'iidiary MaKixtrate, Charlottetown, to grant relief to (Prince Edward Irtlaiid, 1870) 1182 Insolvents, Aecting (Manitoba, 1876 and 1878) 810, 824 Jurors Act, Act to amend (British Columbia, 1891) 1125 Jury Panels and AsHessnient Rt)llH, 1888, Act to legalize (Nova Scotia, 1888) 583 Justice, administration of, in northern and western parts of Ontario (Ontario, 1879) 161, 1(58 Justice, criminal in Supreme Court, Act relating to .administration of (Nova Scotia, 1887) . 571 Justice, administration of. Act resjiecting (Manitoba, 1885) ... 843, 648 Justice, Civil, administration of, Ordinance re (North-west Territories, 1883) . . . 1238 Justice, administration of, legislation respecting ; see also "Administration 8|)octing (B- itish Columbia, 1895) 1151 Lands, Commissioner of Public, Act res|xicting (Prince Kdward Island, 1895) 1234 Lands, Expropriation of, Act resiHtcting (Manitoba, 1888) 89(i Lands, Expropriation, Ordinance resin^cting (North-west Territories, 18i)0) 1268 Lands, Crown, in British Columbia, Acts resix'cting 1024, 1029, 1030, 1039, 1066 Lands, Drainage, Dyking and Irrigation of. Act respecting (British Columbia, 1894) 1148 Languagr^i English, Act to provide that shall be official Language in (Manitoba, 1890 918-926, 928 Laval University, Act resiiecting ((Quebec, 1881 ) 2))8-306 Law Stamp.H, Act respecting (New BrunHwick, 1884) 736 Law Stamps, Act respecting (New Brunswitk, 1885 and 1894) 738, 766 Law Society of Manitoba, Act to constitute and incor|X)rate (Manitoba, 1872) 771, 773 Law, Act for further improving Administration of (Ontario, 1885) 199 Law, Study and Practice of. Act respecting (Manitoba, 1877) 775, 817 Law, Administration of. Act further improving (Ontario, 1885) 199 Law, further improving. Act for (Ontario, 1886) 201-203 Law, Amendments, Act to give effect to, recommended by Statute Commissioners (Ontario, 1887). 204 Law, Act for further improving (Manitoba, 1887) 856 Laws of Province, Act respecting Executive Administration of (Ontario, 1888) 206-210 Laws of Province, Act respecting Executive Administration of (New Brunswick, 1889) 752 Laws of Province, Act re Executive Administration of (Quebec, 1889) 432 Laws of Province, Act re Executive Administration of (Manit<)l)a, 1890) 929 Lesral Profession, Act to consolidate Laws relating to (British Columbia, 1877) 10.56 Legal Profession, Ordinance res|)ecting (North-west Territorie.s, 1889) 1256 Legislature of Nova Scotia, Act respecting vNova Scotia, 1876) 495 Legislature, Houses of (Quebec), Act respecting authority and indeiwndence of Members (Queliec, 1869-70) ., 25C Legislature, Acts respecting the (Prince Edward Island, 1892) 1221-1225 Legislature, Acts resijecting the (Prince Edward Island, 1893) 1227 Legislative Assembly, Act respecting jwwers, &c., of (Ontario, 1868-69) 82-93 Legislative Assembly (Ontario), Election of Members, Act resi»!cting (Ontario, 1873). 103, 1324 Legislative Assembly (Ontario), Act respecting (1875-76) 140 Legislative Assemoly (Quebec), Act resiiecting Election of Members ((Quebec, 1874-75) 261 Legislative Assembly (Manitoba), Act to define privileges of, &c. (Manitoba, 1873) 780, 781, 782 Legislative Assembly (Manitoba), Act resiiecting Election of Members to (Manitoba, 1875) 800 Legislative Assembly (Briti-^h Columbia), Act to define Privileges, &c. (British Columbia, 1872). . 1014 Legislative Assembly of British Columbia, Act to amend Law re procedure at Election of Mem- bers for (British Columbia, 1877) ^051 Legislative Assembly (Prince Edward Island), Act relating to Controverted Election of MemU^rs (Prince Edward Island, 1874) 1169 Legislative Council and Assembly (Quebec), Act respecting Powers, Privileges, &c. (Quebec, 1869) 254,255 Legislative Assembly, Act resiMJcting (Manitoba, 1876) 812 Legislative Council (Manitoba) Legislation respecting abolition of (Manitoba, 1876). 806-809 Legislative Assembly, Election of Members, Act re (Manitoba, 1886) 853 Lepreaux Red Granite and Freestone Co., Act to incorporate (New Brunswick, 1876) 713 Letters Patent, Incorporation of Companies by (North-west Territories, 1886) 1247 Lieutenant-Governor and his Deputies, Act respecting (Manitoba, 1885) 861 License Duties, Act respecting (Ontario, 1884) 194 License Act (Quebec), Acts to amend and to further amend (Quebec, 1875, 187Sand 1882). . .281, 294, 306 License, Act to compel Assurers to take out (Quebec, 1875) 286-287 License, Marriage Law, Act resjiecting (Manitoba, 1885) 854 .m; w ^ ' yiw ' 1424 PRCVINCIAL f,Er)l8LAT10N L — Continued, PAGE. License, LuiHor, Act, 1S80, Act rcupectinpr (Nova Scotia, 1888) B83 Licenses for Sale of Iiitdxicatinx LitinorH, Act to aiiicnd Act reH|>ectiiig (Nova Scotia, 1874) 489 Licenses for Sale of Intoxicutintf Liquors, Act to alter and aintnid Act reHixtcting (Nova Scotia, 1874 and 187fi) 48!) Licenses for SplrltnoUH Li(|iiorH, Act rcHjH-cting granting of (N«!W IJrunKwiok, 1878 and 1884). ..724, 730 Licenses for SpirituouH LiquorH. Act r»'H|H'cting granting of (Manitoba, 1877) . . . . 819 Licenses for Sale of rt|iirituoUK Liiiuors, Actio i-cgiilate (I'rince Kdward iHland, 1876, 1878 and 1H80) 1180, 12()3, 1206 Licenses isHurd nnHc Duties on (Nova Scotia, 1884) 522 Licenses for nale of Hpirituou.s LiquorH, Act for granting (New BrunHwick, 1884) 786 Licenses, Crown Tinil>er, Act roHpecting (Ontario, 1870-71) 101 Licenses, granting of, Act to regulate (Manitol)a, 1877 and 1878) 819, 824 Licenses, Act to conHolidato and amend Law renpecting ((^iielwc, 1870) 257 Licenses, Duties on under Li(|Uor LiceiiKC .\ct, 188;<, Act to ini|K>tie (NovaScotia, 1884) Licenses, Ordinance, 1807, Act to amend an Act to furtlier amend (British Columbia, 1876-1879) 1042, 1043, 1077 Lieutenant-Governor of New Brunswick, Private Secretary of. Act relating to salary of (New Brun.swick, 1884) 736 Lieutenant-(tovernor and liis Deputies, Act re (Manitoba, 1885) 861 Life Assurance Co., Act to incoriK)rate Industrial and Commercial (Ontario, 1875) 144 Liquor License Laws, Act to improve (Ontario, 1884) 196 Liquor Licenses, Acts relating to withholding of (Now Brunswick, 1876) 713, 714 Liquor Licenses, Act resiK-cting (Manitoba, 1884) 838 Liquor Licenses, Act resi)ecting Revocation and Cancellation of (Manitoba, 1884) 838 Liquor License Act, 1886, Act resiiectiiig (Nova Scotia, 1888) 588 Liquors, Spirituous, Act to consolidate and amend Laws res|)ecting (Ontario, 1874 and 1875-76).. 107, 147 Liquors, Spirituous, Act to regulate sale in Lancaster Parish (New Brunswick, 1877) 721 Liquors, Intoxicating, Act to amend Acts relating to Sale and Traffic of, &c. (Manitoba, 1877, 1878) 819,824 Liquors, Intoxicating, Act to amend Act of 1873, to regulate sale, &c. (Manitoba, 1873-74) 788 Liquors, Intoxicating, Act resjjecting sale of (Nova Scotia, 1886) 201-203 Liquors, Intoxicating, Act resiiecting sale of (New Brunswick, 1887) ^ 741 Liquors, Intoxicating, Act to regulate sale in Charlottetown, &c. (Prince Edward Island, 1892) 1217-1220 Liscomb River Draving Co., Act to incoriwrate (Nova Scotia, 1875) 492 Loan, Provincial, Act to authorize raising of (Nova Scotia, 1883) 520, 621, 522 Loan, Provincial, Act re8i>ecting (Nova Scotia, 1891) 688 Lock-up, Act for establishment of, and apix)intment Police Magistrates in Shediac (New Bruns- wick, 1883) 734 London, Huron and Bruce Railway Co., Act re8|)ecting (Ontario, 1875-76) 148 Longrfellow Sanitarium Co., Act to inooriwrate (Nova Scotia, 1895) . 646 Lotbini^re and Megantic Railway Co., Act to incorixwate ((iuebec, 1889) .... 434 Loulsbourgr Extension Railway Co., Act to incorjHJrate (Nova Scotia, 1875) 490 Lunenburg Municipality, Act to amend Act to enable to borrow money (Nova Scotia, 1892). , .626, 630 M Mada'Waska Log Driving Co. of Maine, Act re (New Brunswick, 1891) 7B6 Magistrate, Stipendiary or District, Act to authorize apjxiintment for County Gloucester (New Brunswick, 1871) 662 Magistrates and Coroners in Manitoba, Act authorizing apjxjintment (Manitoba, 1871) 769 Magistrates, District and Magistrates Court, Act to amend (Quebec,. 1873-74) 260 Magistrates, District, Act to amend Law respecting (Quebec, 1888) 345-373 Magistrates, District, Act to amend Law respecting (Quelxic, 1889) 430 Magistrates, Summary Decisions of, Act to establish, and of appeal from (British Columbia, 1887) 1108 Maitland Marine Insurance Company, Act to incorporate (Nova Scotia, 1875 and 1877) 491, 500 Malaga Mining Co., Act to incorporate (Nova Scotia, 1888) 583 083 48!> 755 602 769 2(iO 45-373 430 INUKX M — Continued. 1425 I'AflK. '■ Mp.nitoba Invi'Mtincut AsHociation, Act to iiici)riH)ratc (Miiiiitnlm, 1877) 814 Manitoba Wettem Ruilwuy Co., Act to iiicoriKir.itc (Manitoba, 1875) 803 Manitoba Tramway Coiiii>aiiy, Act to iiicoriMiratc (Manitol),,, 1881) 820, 82!t Manitoba Knilway Cliartors, corrt'M))<)iKlt'iici- witli Inipcrijil autlioritii-H an to (Manitoba, 1887). ..86(»-883 Manitoba Central Railway Company, Act to incor|M)rat(' (Manitoba, 1872) 771, 772 Manitoba (Vntral Railway Co., Act to amend Act to incor|H>rate (Manitoba, 1884) 840, 842 Manitoba Central Railway Co., Act to incor|K)rate (Manitoba, 1887-1HS8) 857, 808, 8iH) Manitoba Municipal Act, 188 Manitoba, Act to provide and eHtablinli (iovernnient of (I)ominion, 1870) 8 Manitoba, CorjxM'ationH incor|K)ratecting qualifications rr (British Columbia, 1877) 1046 Medicine Hat General Hospital, Ordinance to incorjmrate (North-west Territories, 1889) 1258 Meduxnakik Boom Company, Act to continue and amend Act to incorixirate (New Brnnswiok, 1874) 706 Meduxnakik Stream Driving Company, Act to incorporate (New Brunswick, 1875) 711 Melita Northern Railway Co., Act to incorjwrate (Manitoba, 1893) 993 Members of Legislative Assembly, Act resjjecting (Manitoba, 1875) 800 Members of Legislative Assembly, election of, Act rr (Manitoba, 1886) 853 Merchants Fire Insurance Co., Act to incoriiorate (Quebec, 1894) 464 i^IorchantS Kliipping Act, 1876 (Imperial) 58d Methodist Church of Canada, Act resiKJcting (Ontario, 1874) 142 Miauota North-western Railway Co., Act to amend (Manitoba, 1893) 993 Milk, frauds in supply of, to Butter and cheese Manufacturers, Act to prevent (Ontario, 1888) 212 Milk, Act to prevent fraud in sale of (Ontario, 1893) 242 Military and Naval Settlers' Act, 1863, Act to amend (British Columbia, 1872) 1013 Militia, Bill relating to (Nova Scotia, 1868) 471 Mineral Ordinnnco, 1869, Act to amend (British Columbia, 1872-73) 1023 Minerals and Mines and Royalties on Coal, Acts re (Nova Scotio, 1892) 589-626, 629 Minerals, other than Coal, Act relating to (British Columbia, 1877 1048 Minerals, ot\,.-r than Coal, Act to amend (British Columbia, 1882) 1089 Minerals, other than Coal, Act to consolidate and amend Laws re8i)ecting (British ColumViia, 1882) 1080 Minerals, other than Cmd, Act to consolidate and amend Laws resi)ecting (British Columbia, 1884) 1094 Mines and Mining Leases, Act further relating to (New Brunswick, 1888) 740, 750 Mines and Minerals and Royalties on Coal, Acts re (Nova Scotia, 1892) 589, 626, 62i) Mining, Act relating to (Ontario, 1868-69) 82 Mining Ordinance Gold, 1867, and (iold Mining Amendment Act (British Columbia, 1872-73) 1023 Mining Gold and Minerals Act (British Columbia, 1882) 1073 Mining Leases and Mines, Act further relating to (New Brunswick, 1888) 746, 750 H ■., ■ H2(i I'KOVINCIAI. MCUIBLATION M — Continued. I'ACK. Minlnsr I^ikW. Act to iuih'IkI uikI cuiimilidntf ((^iiflnf, IHIIO) 440-4SB Mining iif (iold Hduring ti\ittrt/., Act to ciicoMrnKK (Uritinli Columbia, 1877) 1047 Mintsteiial UfMiMiimibility, reHix-cting (liHnllowiiiicc of I'rovinciiil Actii 66-7H Minnedosa Act ifMiM-ctinK Town of (Manitoba, IHHH-HD) 1H.S Minoi'B and ApprcnticcK, Act n'M|HictinK (Ontario, 1H74) .,.,.! 14B Minors, Act nwiN^'tinK use of Tobacco l)y (New llrunitwick, 1H!)4) 761, 702 Minors, Act to prohiltit Mali' or ^ift of Intoxicating LiipiorH to, Ac. (liritiHh Colinnliiu, 1877) 1062 Missionary Hoard of HaptiHt Convention of New Htunswick, Nova Scotia and Prince Kdward iHland (Nova Hcotia, 180O) B87 Monoton, Town of. Act to incoriHirate (New Br\in»wicl<, 1875) 710 Moncton, City of. Act for HU|i|>lyinK with water (New HrunMwicl<, 180.S) 7BIt Monoton, Town of, Act in amendment of, and in addition to Act rPHi)ecting(N«w Bnniswick.lSKi) 734 Money, Humx of, ordered to Iw ini|Mmnded in hands of Six'aker, Act re (Ontario, 1H85) 197, 198 Money, Act to antliori/.e certain CorixiratiimM ami TnHtituticmH to lend and invent in Quebec ((iuel)ec, 1881;) 814, 3X>, 339 Money, Act to authorize CoriH)rationH incorixiratetl out of Province to lend and invent money in (Manitol)a, 1877) 81' Moneys for Public Herviee, Acts for granting sums of (KritiHh Columbia, 1888) Montreal, City <>f. Act to amend Acts n-lating to coriMiration of (Quebec, 18C8) 262 Montreal, Charter of. Act to revise and consolidate charter of (Quelwic, 1889) 435 Montreal, Portland and Roston Railway, Act to amenil Act incor|x)rating (Quebec, 1875) 283 Montreal Permanent Building Society, Act to change name and extend lowers (Quebec, 1875). . . 284 Mountain Cemetery Co., Act to incorporate (Nova Scotia, 1887) , 674 Municipal Klections, Act for prevention of corrupt practices at (Ontario, 1871-72) 102 Municipal ElcctiouB, Act tt) provide for voting by Ballot at (Ontario, 1874) 143, 144 Municipal Klections (Manitoba), Act to make better iirovision for order at (Manitoba, 1876) 811 Municipal Institutions in Unorganized Districts, Act to organize (Ontario, 1873) 104 Municipal Institutions, Act to consolidate Acts resis'cting (Ontario, 1882-83) 193 Municipal Institutions. Act to consolidate Act re (Ontario, 1892) 240 Municipal Act, Act to amend (Ontario, 1882) 189 Municipal Amendment Act (Ontario, 1884 and 1888) 196, 212 Municipal Code of Province of Quebec (Queliec, 1870, 1882 and 1888) 257, .W, 378, 382 Municipal Corixirations, Act to consolidate and amend Laws re (Manitobu, 1886) 864 Municipal Assessment, Act to consolidate Acts re (Nova Scotia, 1888) 581 Municipal Act of 1886, Act to further amend (Manitoba, 1888-89) 900-904, 910 Municipal Institutions, Act resiiecting (Manitoba, 1890) 930 Municipal Acts, Act to consolidate and amend the (British Columbia, 1891) 1126 Municipal Act, 1892, The, and Act to amend (Biitish Columbia, 1891-93) 1136, 1145 Municipal Assessment and Collection of Taxes and Licenses, Ordinance re (North-west Terri- tories, 1893) 1267 Municipality Act, 1872, Act to amend (British Columbia, 1876) 1040 Municipality of Lunenburg, Act to amend Act to enable to borrow money (Nova Scotia, 1892), 626, 630 Municipalities in Counties Nicolet, Arthabaska and Drummond .-^ct respecting limits of (Quebec, 1878) - 296 Municipalities, Ordinance resiieoting (North-west Territories, 1:^83) 1238 Municipalities, Act relating to (New Brunswick, 1877) 716 Municipalities, (Manitoba) Act resiieoting (Manitoba, 1873) 780 Municipalities, County, Act respecting and to amend and revive Acts respecting (Manitoba, 1875 and 1884) 802, 803, 837 Municipalities, County, Act respecting (Manitoba, 1877) 816 Municipalities, Act respecting (British Columbix,, 1872) 1015, 1016 Municipalities, Ordinances respecting (North- West Territories, 1884-88-94) 1241, 1249, 1271 Municipalities, Qualification of Mayors and Councillors in. Act respecting qualification (British Columbia, 1877) 1046 Municipalities, Act to authorize to retain and use court fees, fines, &c., as Civic Revenue (British Columbia, 1877) 1046 Municipalities, Act to amend Law re, &c. (British Columbia, 1889) , 1117 R Musqua Mutual INIIKX. im M — Continued. not. Musquaah Hivcr Mtrnam Drivinff Oonipony, Act to incori^rntc (New IJrmiHwick, ISfift) (y>3, 064 Mutual Kirp liiHiiriince Couiimtiifw, Act to providi) for Incoriioriition of in Miuiitobu (Manitolia, 1H7(1) 811, 812 ' n Nanaimo, City nf. Act for Hiipply of Watcc to (British Columbia, 18115) 1152 Nanaitno Wat«r WorkM Act, Act to aiiiciid (Hritinh Cohiinbia, 1H!»5) 115*2 Napiervllle .lunction Railway Co., Act to incorate (Hritinh Columbia, 1801) 1123, 1124 Nelson and FortHhcppnnl Railway, Act rr granting of Land SubHidy, itc. (Hritinh Columbia, IH''*?) 11,34 New Hruuflwiok County CourtH, Act fuitlicr rolnting to (New Hrunnwick, 187.'?) 703 New Hrun»wick and Canada Railway Co., Act to incorjiorate (Now HruuHwick, 1875) 710 New HnniMwick Kfd (Jranite Co., Act to incori)orate (New Brunswick, 1870) 713 New Hnnmwick Telephone Co., Act to incoriH)rate (New Brunswick, 1888) . . .. 743-740, 749 New Hnmswick Trust and Loan Co., Act to incorporate (New Hriinswick, 1893) 7(10 New (ilattgo'v. Act to further amend Act to incorjKjrate (Nova Hcotia, 1877) 498, 503 New (jrlftHgow, Tov/n, Act to consolidate and amend Acts re (Nova Scotia, 1880) 600, fi05 New (ila'igow Kiectric Co., Act to incorixirate (Nova Scotia, 1887) ,f»74 New Westminster .Southern Railway Co., Act to incorjcrate (British Columbia, 1883) 1082 New Westminster Southern Railway Co., Act to amend Act to incor|)orate (British Columbia, 1889) 1118 New Westminster, Act relating to Corporation of, and Act to amend (British Columbia, 1888 and 1880) 1113, 1117 New Westminster Kiectric Light a ; '. Motor Power Co., Act to incoriwrate (British Columbia, 18!M)) 1121 New Westminster Dyking and Drainage Works, Act to authorize (British Columbia, 1894) 1140 New York and Nova Scotia Iron and Railway Co., Act to amend A.otto incorporate (Nova Scotia, 1889) 680 Niagara Falls and Lake Erie Railway, Act to incorjiorate (Ontario, 1875-70) 148 Niagrara Falls Park, Act to give jxiwers to Conunissioners of (Ontario, 1888) 211 Niagara Falls Park Commissioners and Niagara Power Co., Act re Agreement, &c. (Ontario, 1892) 220-239 Nicolet, Town of. Act to incoriwrate (Quebec, 1872) 259 Nicolet, Town of. Act to grant extended Powers to Coriwration of (Quebec, 1804) 4(14-460 Niotaux and Atlantic Railway, Act to incorporate (Nova Scotia, 1873) 478 North American Construoiion Co., Act to confirm Agreement, &c., (Nova Scotia, 1885) 528, 533 North Sydney Mining and Transportation Co. , Act to incorporate (Nova Scotia, 1895) 040 North-western Territory and Rupert's Land, Act for temporary (iovemmpnt of (Dominion, 1809). 8 Northern Pacific and Manitoba Railway, Act resjiecting (Manitoba, 1888-89) 912 Norwood Bridge Co., Act to incorporate (Manitoba, 1891) 991 Notarial Profession, Act to consolidate and amend Acts re (Quebec, 1875) 282 Notaries Public, Ordinance authorizing appointment of (North-west Territories, 1883) 1239 Notre Dame Parish, Mcmtreal, Act to civilly erect Parishes cut off from (Quel)ec, 1875) 289 Nova Scotia Mutual Fire Insurance Co., Act to incorporate (Nova Sootia, 1871) 470 Nova Sfcotia Marine Insurance Co., Act to continue Acts re (Nova Scotia, 1875) 494 Nova Scotia Legislature, Act respecting (Nova Sootia, 1876) 495 Nova Scotia Fishing Co., Act to incorporate (Nova Scotia, 1876) 496 Nova Scotia Railway Act, 1880, Act to amend (Nova Scotia, 1881 ) 507-517 Nova Scotia Railway Act, 1880, Act to amend an Act in amendment of (Nova Scotia, 1882) 519 Nova Scotia Railways, Act for consolidating (Nova Scotia, 1882) 518, 519 Nova Scotia Revised Statutes, 5th Series, Act respecting (Nova Scotia, 1885) ' 531, 534, 537 Nova Scotia Gas and Electric Light, Fuel and Power Co., Act to incorporxte (Nova Scotia, 1887). 574 Nova Scotia Stone Co., Act to incorporate (Nova Scotia, 1887) 583 Nova Scotia Telephone Co., Acts to amend Acts to incorporate (Nova Scotia, 1888 and 1889) 583, 586 Nova Scotia Condensed Milk and Canning Co., Act to incorporate (Nova Scotia, 1889) 586 Noxious VTeeds, Act to prevent spreading of (British Columbia, 1888) 1113 B C**, / I'AllK. Oath, Examination of Witnesses on, by Committees of Senate and House of Commons (Dominion, 1873) 13-l!i Oddfellcws, Indeijendent Order, Act to incorjxjrate Nova Scotia District Branch of (Nova Sc: tia, 1875) ri()4 Offeno'"? against Public Peace, Act reapecting (Nova Scotia, 186!t) 474 Offences against religion. Act to amend Act re (Nova Scotia, 1889) 58(! Offenders, Juvenile, Act re sentencing to Halifax Industrial School (Nova Scotia, 1868) 472 Ofifenderti, appreliension and surrender, Act re. Treaty between Her Majesty and United States of America re (Dominion, 1867) 7 Oil Co., Belliveau and Alljertite, Act to incorixjrate (New Brunswick, 1875) 711 Ontario Burglary Insurance Co., Act to incorporate (Ontario, 1894) 244 Ontario, Supreme Court of Judicature, Act to consolidate Acts re (Ontario, 1895) 244(( Opening of Public Koads, Act concerning (Manitoba, 1876) 812 Orange Associations of Western and Eastern Ontario, Acts to incorporate (Ontario, 1873) 104 Orange Lodge, Urand Provincial, of I'rince Edward Island, Act to incoriwrate (Prince Edward Island, 1878) 1203 Order at Munlciiml Elections, Act to make better provision for securing (Manitoba, 1876) 811 Osoyoos and Okanagan Railway Co., Act to incorporate (British Columbia, 1893) 1146 Ottawa Iron and Steel Manufacturing Co., Act to incorporate (Quebec, 1872-74) 260 Ottawa, Amprior and Renfrew Railway, Act to incoriKirate (Ontario, 1888) 212 Ottawa and Thousand Islands Railway Co., Act to incorporate (Ontario, 1887) 205 Parish of St. Stephen, Act to divide for Ecclesiastical purixises (New Brunswick, 1870) 660 Parishes, presentation to in St. J jhn and County Westmoreland, Act re (New Brunswick, 1867-8) 649 Parishes, Act to amend Act re erection and division of, &c. (Quebec, 1874-75) 278 Parishes, Acts re seimration, division and b"ection of, &c. (Quebec) 275, 282, 289, 291, 2f5 Parishes cut off from Notre Dame, Montretl, Act to c'viDy erect (Quebec, 1875) 289 Parliamentary Papers, jTotection of persons publishing (Ontario, 1868-69) 93 Parliamentary Papers, protection of persons publishing (Quebec, 1869-70) 25(> Parliamentary Electors' Lists (Winnipeg, 1871) Act to legalize (Manitoba, 1877) 819 Pan^T Sound Colonization Railway Co., Act to amend Act incorporating (Ontario, 1888) 213 Pastur85 289 93 ^56 819 213 1877).... 1047 ...284,291,292 215 435 1^58 7 102 490 ?13 929 381,385 nek, 1881) 730 519 475 476 1149 927 3 Edward 1162 868) 472 662 710 runswick. 654 INDEX. 1429 P — Continued. VM-.K. Police Magistrate and Ijock-up in Shediac, Act for apix)intinent of, &c. (\ew lininswick, 1883). . 734 Policies in Fire Insurance, conditions in, Act rospecting (Ontario, 1875-76) 147 PoUit River Log Driving Company, Act to incor|)orate (New 15runHwick, 1876) 713 Port Whitby Hariwur (Ontario, 1874) 126-129 Portage-du-Port and Bristol Branch Railway Co., Act to incorporate ((^iietec, 1885) ;ioI, 385 Portage La Prainw, Act respecting (Manitoba, 1887) i-;;H4-887 Portland and St. John, Act re City and re Union of (New Brunswick, 1889) 753 Pounds, Trespasses and Eences, Act relating to (New Brunswick) 718 Po'Wer, Exec\itive, Act respecting the ((Quebec, 1886). See Executive Power. Powers of Attorney, Act to make valid in certain oases (British Columbia, 1875) 1037 Po'Wer ot Attorney Act. 1875, Act to amend (British Columbia, 1876) 1043 Powers, Privileges, &c., of Legislative Asstmbly. 8ee " Lei/ i slat ire A-isemhlj/." Powers of Dominion Government re disallowance of Acts 61-64 Powers and Privileges and Composition of House, Act to amend Act re (Nova Reotia, 1892) 627, 630 Practice in the Courts, Act respecting (Manitoba, 1876) 808, 810 Practice and Procedure in Supreme Court (British Columbia), Act respecting (British Colmnbia, 1879) 1075 Prairie Fires, Act to amend Act for prevention of (Manitoba, 1873) 775, 777 Pratt, Frederick, Act to render marriage of, civilly valid (Quebec, 1890) 438 Preferential Assignments, Ordinance respecting (North-west Territories, 1.S84) 1242 Preference, fraudulent, of Creditors by Insolvents (Britisii Cohimbui, 18N0) 1078 Presbyterian Churches, Act resiiecting Union of (Ontario, 1874) 130, 141 Preservation of Useful Birds, Act resjiecting (Nova Scotia, 1869-1871) 474 Prevention of Cruelty to Animals, Nova Sc(^tia Society, ,\ct to amend Act to inoorjxirate (Nova Scotia, 1880) '. 506 Prince Edward Island Chamter of Commerce, Act to incorporate (Prince Edward Island, 1874). . 1158 Prince Edward Island Joint Stock Co.'s Act (Prince Edward Island, 1888) 1213 Prince Edward Island Legislature, Acts resiiecting (Prince Edward Island, 1892-1893). . .1221-1225, 1227 Private Secretary of Lieutenant-Governor (New Brimswick) Act relating to salary of (New Bruns- wick, 1884) 736 Priority amongst Execution Creditors, Ordinance to atolisli (North-west Territories, 1890) 1269' Printinp Public, Act respecting (Manitoba, 1887) 887-890- Probate and administration. Act respecting (Manitoba, 1886) 855 Probate, Courts of, Act to ani"nd Act re (New Brunswick, 1895) 765 Proceedings by and against the Crown, Act to regulate (Manitoba, 18751 7!)5, 7i}6 Procedure, Code of Civil, Act to amend, &e. (Q\iebec, 1885) 312 Procedure of Courts, Act diminishing appeals and improving (Ontario, 1895) 244a Procedure, Code of Civil, Act to amend (Quebec, 1885) * .912; Procedure in County Courts, Act to amend Revised Statutes as to (Nova Scotia, 1887) r,72 Procedure lit Election of Members for Legislative As.sembly (British Columbia), Act to amend I^iaw re (British Columbia, 18( /) 1051 Promissory Notes and Bills of Kxchange, Act /v (Manitoba, 1885) 849 Property, Assessment of, Act to amend and consolidate Law in Ontario as to (Ontario, l8f!8-69) 82 Property, Act respeetiniT vTalicioui? Irjuries to (Quebec, 1883) Property, Taxes in British C'.lunibia, Act to assefjS, levy and collect (British Columbia, 1876). . . 1041 Property Clnntiscated to Cn.wn and Escheats, .i.ct respecting (Qiiebec, 1885) ' 312 Property, Real, in Majiit )ba, A t n (Manitoba, 188,' ] f^4() ' Proparty, exempting certain, fixmi seizure .md si'.ie under execution, Ordinance re (North-west Territories, li^Ho) 1245 Property, iirotection of, Oidinauce re (No.th-west Territories, 1891-92) 12(>3 Property ('imtiscated .•) Crown and Escheats, Act re ('^.lebec, 1885) 312 PlOpert>/, Person.al, of A'jirried Women, Ordinance re ^.ecting Commissioner of (Prince Ed wad Island, 1895) 1234 Public Matters, inecting ( Prince Edward Island, 1S86) 1211 Public H<*lth, Act in relation to ( Nova Scotia, 1888) 582 Public Health, Act resjiecting ( New Brunswick, 1887) 741 Public Health, Act resi)ecting(Manitol>a, 1890) 929 Public Health, Act res|H>cting (British Columbia, 1893) 1146 Public Printing, Act respecting (Manitoba, 1887) 887,890 Pviblic PiiriKMies, appropriation of land. Act to enable (.tovemment of Nova iScotia to (Nova Scotia, 1885) 533 Public Works (Manitoba), Act wmcerning (Manitoba, 187(i) 811 Pufelic Works Act of Manitoba, Act to amend (Manitobii, 1.SS7) 855 Public Works, District of Surrey, Act relating U> certain (British Columbia, 1892) 1126-1134-1135 Purchase of Estates under Land Purchase Act, 1875, Act to facilitat«) ( Prince Edwartl Island, 1876) 1168 Pursuit of (Jame, Ordinance to prevent Trespass in (North-west Territories, 1893) 1273 Q Qualification an Qualifications of Voters, Act to make better provision for (British Columbia, 1876) 1041 B INDEX. Q — Continued. 1431 PAOK. Quebec Turnpike Roads, Act to amend Act to divide into Trusts (Quebec, 1870) 257 Quebec Municipal Code, Acts resjjecting (Q\iel)ec, 1870 and 1882) 257, 307 Quebec Superior Courts, Acts resiwcting' (Quebec, 1869, 1870 and 1882) 25<), 308 Quebec and Levis Telephone Company, Act respecting (Quebec, 1881) ,S()4 Quebec Exposition Company, Act to incorixirate (Quebec, 1892) 45") Quebec, Montmorency and Charlevoix Railway Com|)any, Act to amend Act incori)orating, &c. (Quelx'C, 1894) 404 Quebec, Montreal and Occidental Railway, Act re construction of (Quebec, 1874-75) 281 Queen's Bench, Act resiMJcting Court of (Quebec, 18iK)) 455 Queen's Bench (Manitoba), Act respecting (Manitoba, 1873-74, 1885 aiul 1895). . .78(>, 788, 700, 848, lOOG Quartz, Gold Bearing, Act to encourage Mining of (British Columbia, 1877) 1047 R Rail"way Companies and their Creditors, Act to facilitate arrangements between (Nova Scotia, 1«74) 482, 484 Railway Lands, Island Railway and Graving Dock, Act re (British Columbia, 1883) 1090 Railway Land Subsidy Fimd (Ontario, 1877) 152 Railway Fund of Quebec, Act re Consolidated (Quebec, 1885) 294 Railway Company, Emerson and North-western, Act to incori>orate (Manitoba, 1884) 840 Railway Company, Manitoba Central, Act to amend Act to incorporate (Manitoba, 1884) 840 Railw^ay Charters in Manitoba, corresjjondence with Imperial (iovenjment (Manitoba, 1887) 860-88S Railway Lines, Act providing for contruction of certain ( Manitoba, 1888) 896 Rail'way, Western Counties, Act resi)ecting (Nova Scotia, 188()) 541, 540, 552, o59, 561, 564 Railways in Manitoba, Act to empower Lieutenant-(TOverncr in Council to authorize (Manitoba, 1871) 769 RailTvays in Manitoba, Act to encourage building of (Manitoba, 1381) 829, (1888) 897 Railways, aitl to, Act res|iecting (Ontario, 1877) 152 Railways, Grants in aid of and re consolidation of Act, Halifax and Yarmouth, Act re (Nova Scotia, 1886) 638,549,558 Railways, Ditches and Watercourses, Act as applied to Act re (Ontario, 1890) 217 218 Railways. Law respecting. Act to amend (Quebec, 1890) 4^ Railways, Crossing of one by another. Act to provide for (Manitoba, 1888-89) 912 Railways, Electric, Act resiiecting (Ontario, 1895) 2446 Railways, Act resjiecting (New Brunswick, 1891) 755 Real Property in Manitoba, Act resiiecting (Manitoba, 1885) 849 Recorder's Court, Montreal, Act on subject of (Quebec, 1868) 22 Red River Bridge Coir.pany, Act to incoriwrate (Manitoba, 1871) 77O Red Kiver and Assinibnine Navigation Com])any, Act to incorporate (Manitoba, 1872) 771 772 Red Ri'. cr Valley Railway, Act to incor|3orate (Manitoba, 1887) 866 Red!?''"'Hbfition of Elec.iral Divisions, Act to provide for a fair and equitable (Manitoba, 1873-74) V85 Rs*i''>i*n. H'. jry and Industr'al Schools, Act to provide for establishment of (New Brunswick, 1875) 709,712 i .ftfcj-Ti J N »ry. Juvenile, Act for establishing (British Columbia, 1890) 112O Reg)Pt :• ktioii; Births, Deaths and Marriages, Acts respecting (O- .a.io, 1808-69) 82 (Quebec, 1875) 282 (Nova Scotia, 1868) 472 (British Columbia, 1872) 1016 Registration of Voters, an Act for the (Manitoba, 1872) 774 Registration of Marriages, Act to amend Act re (Nova Scotia, 1868) 472 Registration of Deeds, &c., Act to amend Act respecting (Manitoba, 1873) . 78O Registration District of Montreal, Act to divide, &c. (Quebec, 1874-75) 266 278 Regintration of Co-partnerships, Act re8|)ectmg (Manitoba, 1873-74) 787 ^egiFitration of Foreign Co-iJartnerships and Corporations (Manitoba, U73-74) 737 , gristration of Electors and Ballot Act (Prince Edward Island, 1877) 1199 i.'Aj -'titration and Qualification of Voters' Act, Act tc. amend (British Columbia, 1872) 1011 Bfi. •.. *ratii>n in Lritish Columbia of Foreign Corporations (Britisli Columbia, 1872) 1015 90j R !!' 1432 PROVINCIAL LEGISLATION R — Continued. l'A(iK. Registry Act, Act to amend (Maniti)ba, 1875) **"* Regulation and InsKction of Provi»ion», LuiiiIht, &c., Act re (Nova Scotia, 1880) 506 Regulations witli rosfKwt to Coal Mines, Act to make (IJritisli Columbia, 1877) 1050 Religion, (Jffences against, Act to amend Act re (Nova Scotia, 188!») 586 RestigOUChe Room Co., Act to incorjiorate (New Brunswick, 1879) 728 Restitution of Stolen (ifXKls. Act re«|)ecting (Ontario, 1882) 188 Revenue and Kx|)enditure, Ordinance re (Nortli-west Territories, 18!ll-!»2) 1262 Revised Stjitnt«w of Ontario, Act resiwcting (Ontario, 1877) 151 Revised Statutes of Ontario, Act resi«!ctinK (Ontario, 1887 and 1888) 204, 210 Revised Statutes of Queljec, Act re (Quebec, 1888) 378, SS2 Revised Statutes of Nova Scotia, 5tli Series, Act resjiecting (Nova Scotia, 1885) 531, 534, 537 Revised Statutt-s of Manitoba, Act res|)ecting (Manitoba, 1891) 990 Revised Statutes of North-west Territories, Ordinance resjiecting (North-west Territories, 1888). 1249 Richelieu Toll Bridge, Act avitliorizing (^lebec (Jovernment to take ((/ueliec, 1884) 309 Richmond, Town of. Act to incorporate and Act to amend (Quebec, 1883. 1885) 307, 314 Rights of Crown in certain Public Lands and ProiHTty, Act U) declare .\ew Urunswick, 1892). .756, 757 River Oiandiere, Act tecti;ig (iKmiinion, 1894) 1314-1323 Sessions, (Jem^ral and Quarter, Act resp<'cting apinals to (British Columbia, 1872-73) 1023 Settlers on Matscpii Prairie, Act for relief of (British Columbia, 1888) 1112, 1113 Settlers Act, Naval and Military, Act to amend (British Columbia, 1872) 1013 Sewers, Commissioners of, i&c. Act to aminid Act rr (Nova Scotia, 1808) j ^<^1 Sewers and Dykes and Marsh Lands, Commissioner of. Act re (Nova S "otia, 1887) 507, 572 Shediao Station Wharf Company, Act to incor|M)rat<' (New Brunswick, 1875) 711 Shell River Railway CVmipany, Act to incorporate (Manitoba, 1880) 854 Sheer Boom Improvement Company, Act to incorporate (New Brunswick, 1879) ^ 728 Sherbrooke, City of. Act to amend Act incorporating (Qiielx'c, 1875 and 1879) 283, 2!H> Sherbrooke tias Company, Act to incoriK)rate (Quel)eo, 1874-75) 204 Ship Canal, (ii!orgian Bay and Power Aqueduct Company, Act to incorirarate (Ontario, 1894). . Shippingr, Classification, Registration and lnsi)ection of, Act re (Dominion, 1873) Shipping ">f Seamen, Act re (Dominion, 1873) Shippiner Act, Merchants (Imperial, 1876) Shipping and Seamen, Act to amend Act re (Nova Scotia, 1869) - ■ • -j ■ Shipowners' Marine Insurance Company of Windsor, Act to inoorjwrate (Nova Scotia, 1877) Shops, Act res()ecting early closing of (< ^letec, 1894) Side Lines of Streets in St. John, N.B., Act to define and establish (New Brunswick, 1877) 722 Sydney and East Bay Railway, Act to incoriwrate (Nova Scotia, 1873) Simpson Loom Company, Act re (Ontario, 1870-71) Small Debts Act, 1886 (British Columbia, 1880) Sorel, City of, Act to incorpt)rato (tjuel)pc, 1889) - • Souria Valley, Rock Lake and Brandon Railway, Act to incorporate (Manitoba, 1885).. Southern Manitolm Loan Ct)mpany, Act to incorinjrate (Manitoba, 1881) Southern Central Railway Company, Act to incorporate (Ontario, 1887) Speaker of the Senate, Act resiiecting (Dominion, 1894) ■ ^1314-1323 Spirituous Liquors, Act to amend and consolidate Law as to (Ontario, 1874-75-76-77) 107, 147, 1.53 Spirituous Liquors, Act in addition to Act to amend (New Brunswick, 1871) Wi2 Spirituous Liquors, Act as to Licenses for (New Brunswick, 1878) 724 Spirituous Liquore, Act to regulate Sale of in Parish of Lancaster (New Brunswick, 1875 and — 1877) Spirituous Lifiuors, Act resixicting granting of Licenses for (New Brunswick, 1884) Spirituous Liquors, Acts regulating sale of, by License (Prinoo Edwai-d Island, 1878 and 1 JWO\ ^ 203, 1206 Spirituous Liquors, in Town of Moncton, Act in reference to sale (New Brunswick, 1878) 724 Spirituous Liquors, Act regulating sale by License of (Prince Edward Island, 1870) Spring Hill and Parraboro' Coal and Railway ComiMiny, Act to amend Act to incoriwrate (Nova Scotia, 1883) 520,521 Stadacona Fire and Life Insurance Comiwiny, Act re winding up of ((iuebec, 1883). . Stamps, Law, an Act resix-cting an Act in amendment of (New Brunswick, 1884 and 1886 and 1894) •.■■•••„■ Standard Fire Insurance Company, Act to incori)orate (Ontario, 1877) 243 19 20 nsd 474 500 462 478 101 1107 435 850 832 205 710, 718 736 1180 308 .736, 738, 76 15 S — Continiied. PAOK. Statement by Companies, Act for better prosecution of fraudulent (Ontario, 1893) 241 Statistics of Births, Deaths and Marriages, &c.. Act respecting compilation of (Quebec, 1876).. . . 282 Statutes Revised, 5th series of Nova Scotia (Nova Scotia, 1885) 531, 634, 537 Statutes Revised of Manitoba, Act respecting (Manitoba, 1891) 990 Statutes, Revised, of Ontario, Act respecting (Ontario, 1877) 152 Statutes of Ontario, Act respecting (Ontario, 1874) 143, 144 Statutes, Revised, of Ontario, Act respecting (Ontario, 1887 aud 1888) 204, 210 Statutes, Revised, of Quebec, Act re (Quelwc, 1888) 378, 382 Statutes, Revised, of Nova Scotia, 6th series. Act respecting 631, 634, 537 Statutes, R"" Statutes, Consolidated (Manitoba), Act respecting (Manitoba, 1881) odi Stave River Electric and Power Co., Act respecting incorporation of (Jkitish Columbia, 1895) 1152 Stellarton Loan Association, Act to incorporate (Nova Scotia, 1893) 635 Stellarton, Act relating to Towt of (Nova Scotia, 1893) 636-641 Stipendiary or District Magistrate for Councy of Gloucester, Act to authorize appointment of (New Brunswick, 1871) 662 Stipendiary Magistrate and Constable for Pictou, re apjKiintment of (Nova Scotia, 1868) 472 Stipendiary Magistrate for City of Charlottetown, Act to ai)iioint (Prince Edward Island, 1875) UW) Stipendiary Magistrate, of Charlottetown, Act enabling, to grant relief to Insolvent Debtors (Prince Edward Island, 1876) 1182 Stolen Goods, Act resj)ecting Restitution of (Ontario, 1882) 188 Storagre of Gunpowder, Act resijecting, near Towns and Cities (Manitoba, 1875) 801 Streams Bill (Ontario, 1881). See also "Rivers and Streams BiU." 171-186 Streams Bill (Ontario, 1882) 188 Streams Bill (Ontario, 1883) 192 Streams and Rivers and Crteks, Ordinance tor protecting public interest in (North-west Territo- ries, 1891-92) 1263 Styles Mining Co., Act to incorporate (Nova Scotia, 1874).. . 481 Sugar, Manufacture of, from Beet Root, Act to encourage (Quebec, 1874-75 and Act to amend, 1«75) 261,281 Sumass Dyking Act, 1878 (British Columbia, 1878) .• 1072-1074, 1077 SumaSS Dyking Act, 1878, ict respecting (British Columbia, 1879) 1072-1074, 1077 Sumass Dyking Act, 187tf, Act to amend (British Columbia, 1883) 1083-1087, 1090 Sumass Dyking Act, 1878, Act to amend (British Columbia, 1885) 1096, 1098 Summerside, Town of, Act resi^ecting (Prince Edward Island, 1877) 1182 Sums of Money ordered to be imiwunded in hands of Speaker, Act re (Ontario, 1885) 197, 198 Supply Bill (Ontario, 18(i8-69) 84, 87. 93 Superior Courts, Act to consolidate, &c. (Ontario, 1881) 185 Superior Court (Quebec), re constitution (Quebec, 1869-70) 256 duperior Court (CJuebec), Act to amend Law resi)ecting (Quebec, 1883) 308 Supreme Coun, Act to facilitate transaction of business in (New Brunswick, 1879) 726 Supreme Court (British Columbia), Practice and procedure of. Act resijecting (British Columbia, 1879) 1075 Supreme Court in Manitoba, Act to amend Act to establish (Manitoba, 1872) 774 Supreme Court of Judicature of Ontario, Act to consolidate Acts governing (Ontario, 1895) 244.\ Supreme Court and Exchequer Court, Act to establish (Dominion, 1876) 30 Surgeons and Physicians, Act re Qualification and Registration of (New Brunswick, 1881) 730 Surrender and apprehension of Offenders, Act re Treaty between Her Majesty and United States of America re (Dominion, 1867) 7 Surrey District, Act resiiecting Public Works in (British Columbia, 1892) 1126-1134, 1135 Surveys, Special, Act to provide for in cities and towns (Manitoba, 1890) 921 Surveyors and Survey of Land, Act to amend Laws resiiecting (Quebec, 1889) 433 Surveyors, Land, Act respecting (Manitoba, 1872) 771, 772 Surveyors, Land and Survey of Lands, Act resi)ecting (Manitoba, 1875 and 1882) 794, 795, 8,^ Surveyors, Crown and Crown Lands, Act in reference to (Nova Scotia, 1881) 507 Surveyors, Land, and Survey of Land, Act resi^cting (British Columbia, 1886) 1107 Synod of Church of England in Diocese of Frederieton, Bill relating to (New Biunswick, 1871). .. 061 R INDEX. 1435 St. PAOB . Ste. Olothilde de Horton Bridge Company, Act to incoriwrate (Quebec, 1888) .37i», 384 Ste. Oroix VVhnrf Company, Act to incorjMjrate (New BrunBwick, 1876) 711 3te. Croix EUotric Light ami Water Coniiwny, Act to incorixiratf (New Bnmiwick, 188«>) 739 Ste. Ounegronde, Act to incorporate Town of (t^uehec, 1884) 311 St. George Red (iranite Com|>any, Act to incorix)rate (New Brunswick, 1873) 703 St. Henri, Town of, Act to incorporate and amend Act incor|Mirating (Quebec, 1879 and 1888). ..296, 380 St. Hyacinthe, Act to amend and consolidate Acts incorixirating (Quebec, 1888) 380, ,384 St. James's Church, Charlottetown, Act re incor|)oration MiniHtern and TrusteeH (Prince Edward Island, 1877) 1199 St. John Kiver Log Driving Company, Aot to continue and of consolidation of Acts re (New Brunswick, 1894) 763 St. John and Portland, Act res|XK;ting City of and Union of (New Brunswick, 1889).. . 753 St. John I'olice Force, Act in amendment of Act as to (New Brunswick, 1869) 654 St. John Oas Light Company, .\ct tf) alter and amend Act to incorjiorate (New Brunswick, 1877) 719 St. John Bridge and liailway Extension Cimipany, Act to incorjiorrtto (New Brunswick, 1881). . . 730 St. John and Maine Railway Company, Act to inoor|H)rnte (New Brunswick, 187H) 723 St. John, City of, Act to define and establisii side lines in streets (New Brunswick, 1877) 722 St. Lawrence Bridge Company, Act to incor|»rate (Quebec, 1874-75) 262 St. javin;ence Improvement Company, Act to incorporate (Quebec, 1889) 434 St. .^ouis Hydraidic Company, Act to* incor|iorate ((Quebec, 1868) 246, 250 St- Ma^aret's Bay Lumber and Timlier Driving Company; Act to incorporate (Nova Scotia, 1876) 492 St. Maurice Railway Company, Act to incorjwratc (Quebec, 1888) ,381, 386 St. Paul's Church, Woodstock, Act respecting (Ontario, 1882) 190 St. Stephen's Parish, Act to tlivide for ecclesiastical puriKises (New Brunswick, 1870) 660 St. Stephen's Parish, Act to incorporate certain districts of (New Brunswick, 1873) 704 Tax on Wild Lands, Act to imiiose (Manitoba, 1873) 775, 777 Tax on Wild Lands, Act to impose (British Columbia, 1872) 1013 Tax, Direct, Act to imixjse on classes of Traders (Prince Edward Island, 1894) 122?) Taxes on Commercial Corixirations, Act to im|)ose Direct (Quebec, 1882) 307 Taxes on Projjerty in British Columbia, Act to .issess, levy and collect (British Colmnbia, 1876). . 1041 Taxes in City of WinniiH'g, Bill resi)ecting arrears of (Manitoba, 1890) 915-918, 927 Taxes and Licenses, collection of. Ordinance re, municipal assessment (North-west Territories, 1893) 1267 Taxes, Sales of Land for. Act to enable Municii»al Corixirations to pass By-laws for (British Columbia, 1877) 1046 Taxes, .Sales of Lands for. Bill resi)ecting ( Manitoba, 1890) 915-918, 927 Taxes, I'r' 'vincial, Aot to provide for better collection of from Chinese (British Columbia, 1877) 1061-1066, 1067 Telegraph Lines in Manitoba, Act to authorize construction of (Manitoba, 1871) 770 Telegraphs, Marine Electric, Act to regulate construction and maintenance of (l^ominion, 1874). 20-29 Telephone Company, New Brunswick, Act to incorporate (New Brunswick, 1888) 743-745, 749 Telephone Company, (.Juel)eo and Levis, Act io incorinmite (tiueliec, 1881) 304 Telephone Comimny of Prinot! Edward Island, Act to incoriKnate (Prince Edward Island, 1885). 1210 Telephone Company of Nova Scotia, Act to amend Act t4) incorixjrute (Nova Scotia, 1888) 583 Terrebonne, Village of. Act to incoriwrate as Town (Quebec, 1872) 259 Thistles, Act to prevent spread of (British Columbia, 1877) Thousand Island and Ottawa Kiver Company, Aot to incorix>rate (Ontario, 1887) 205 Three Rivers, City of. Act re incorix)ration of (Quebec, 1874-75, 1894) 263, 463 Thunder Bay District, Act re (Ontario, 1870-71) 100 Timber, Crown, Act respecting (Ontario, 1870-71) 101 Tobacco by Minors, Act to amend Act resijccting use of (New Brunswick, 1894) 7ol, 732 Tobique River Boom Comimny, Act to incoriwrate (New Brunswick, 1888) 761 Tobique River Log Driving ComjMiny, Act to incorporate (New Brunswick, 18961 764 Toll Bridges, Act to enable Lieutenant-Governor to grant charters for (British «. wivimbia, 1879).. . . 107 B yiBPwewiBmg | gil^ T « r' J »' ii i WW P W iM Ltimm ^ * nw^i 1436 PROVINCIAL LEGISLATION T — ContUmed. 1'a(;k. roll Bridge, over River Richelieu, Act to authorize (Jovenimeiit to toke posHeHgion of Quebec, 1884) 309 Tolls on Caribtx) Wiigon Road, Act reH[)ectiiig (British Cohunl)ia, 1880) 1078 Tolls on River Chaudiere, Act to authorize G. B. Hall to exact (Quebec, 1874-75) 264 Tolls, Act for aliolitioii of certain (British Columbin, 1885) 1104 Tolls, abolition of certain. Act for (British Cohnnbia, 1885) 1104 Toronto Belt Line Railway Company, Act to incorporate (Ontario, 188!)) 216 Toronto City Consolidated Debenture Act (Ontario, 187!») 158, 159, 101 Toronto (Jravel Road and Concrete Company, Act t,o amend Act re (Ontario, 1881) 187 Town of Dartmouth, Act to amend Acts relating to (Nova Scotia, 1886). . . 560, 565 Town of Kentville, Act to incor|)orate (Nova Scotia, 1886) 5(M), 565 Town of Marysville, Act to incorjiorate (New Bnmswick, 1886) 739 Town Cor| (orations. Act to consolidate and amend Ai;ts re (Manitoba, 1885) 849 Towns in Nova Scotia, Acts res|)eoting (Nova Scotia, 1885) 560 Towns in t^uelxic. Acts re incorporation of certain ((Quebec, 1890) 437, (1892) 459 Towns Incorix)ration Act, and Act to amend (Nova Scotia, 1889) 581, (1893) (i33 Traders, classes of. Act to imixise Direct Tax on (Prince Edward Island, 1894) 1229 Tramway, Act to emix)wer Town of Edmonton to construct (North-west Terricories, 1893) 1208 Treasury Department, aud auditing of accounts, &c.. Act respecting (Manitoba, 1887) 860 Treaty between Her Majesty and United States of America re apprehension and surrender of Offenders (Dominion, 1807) 7 Trespass in pursiiit of game. Ordinance to prevent (North-west Territories, 1894) 1273 Trespass on Inclosed Grounds, Act to prevent (British Columbia, 1889) 111? Trespasses, Pounds and Fences, Act relating to (New Brunswick, 1877) 718 Trespasses, Petty, Act respecting (Manitobiv, 1890) .... 929 Truro Marine Insurance Coni|)any, Act to incor|)orate (Nova Scotia, 1877) 499 Truro Electric Conii)any, Act to incor[)orate (Nova Scotia, 1887) 574 Truro, Town of. Act to amend Act to inoorixjrate (Nova Scotia, 1876) 496 Trust Companies, Act resijecting Chartering of (Ontario, 1895) 244rf Trustees, Act to consolidate and amend enactments relating to (Nova Scotia, 1888) 582 Turnpike Roads, Act to amend Act to divide t^uebec into Trusts (Quebec, 1870) 257 Turtle Mountain and Manitoba Railway, Act to incori)orate (Manitoba, 1888) 899 u Union Fire Insurance Co., Aci ; a incorporate (Ontario, 1875-76) 149 Union Marine Insurance Co., Acts relating to (Nova Scotia, 1868 and 1875) 473, 491 Union of Presbyterian Churches, Act resijecting (Ontario, 1874) 130, 141 Union of Townships of Yonge and Escott, part of. Act to provide for (Ontario, 1888) 212 Unorganized Districts, Act for establishing Municipal Institutions in (Ontario, 1873) 104 Utopia Red Granite Co. of St. George, Act to incorporate (New Brunswick, 1875) 711 Valleyfleld, CoriX)ration of, Act to consolidate Acts re (Quebec, 1894) 463 Vancouver Electric Light Co., Act to incoriX)rate (British Columbia, 1886) 1107 Vancouver City, Act to incorporate, &c. (British Columbia, 1886, 1889 and 1895) 1107, 1118, 1152 Vancouver Water Works Co., 1886, Act to incorporate (British Columbia, 1886) 1107 Victoria Boring and Mining Co., Act for incorporation of (Prince Edward Island, 1876) 1182 Victoria Electric Railway and Lightinjr Co. (British Columbia, 1894) 114** Victoria Consolidated Hydraulic Mining Co., Act to incorjxn'ate (British Columbia, 1895) 1152 Voters, Qualification and Registration of. Acts re (British Columbia, 1872-73-74, 1876). . .1011, 1029, 1041 Voters, Registration of, an Act for (Manitoba, 1872) 774 Voting by Ballot, Act to provide for, at Municiiml Elections (Ontario, 1874) 143, 144 R INDEX. w 1437 PACE. Wages, Act reMi)ectiii(? (Ontario, 18S5) I"'-' Wagon Roiul from Yalu t" Cariboo, Act to providfi for muintenunci' of (Hriti«h CoUinibia, 1870). . 1040 Water Supply of. City of Nimaiino ( British Columbia, 18'.I5) 1152 Water Workn, Charlottt'town, 1887 ( I'riiice Kdward Island, 1887) 1-1- Watercourses and Ditclies Act, applifd to Kaihvay«, Act tt) a^jiend (Ontario, 1800) 217, 218 Waterloo Junction Railway Co., Act to incor|K)rati" (Ontario, 18811) 2](i Wedlock, Children bom out of. Act to render legitimate (Uritifih Columbia, 1872-73). . . 1018 Weeds, Noxioun, Act to i)revent Mpreadintf of (British Columbia, 18H8) llll* Western Countiex Railway, Act respi-ctinj? (Xova Scotia, 1880) ... 5.38-640, 54il-.".53, .504 Western Counties Railway, Acts relating to (Xova .Scotia, 1803) ■ ■ 034 Western Canada I'ermanent Buildings and Savings Society, .\ct re change of name (Ontario, 1875-70) ]j^ Western Railway of Manitt)ba, Act to incorix)rate (Manitoba, 1871) "'" Western and Saskatchewan Railway Co., Act to incoriiorate (Manitoba, 1880) 854 Westvllle, Town of. Act for supplying water for (Nova .Scotia, WXi) 046 Wharf, Pier and Breakwater Co., Act to continue Acts of incoriM)ration (Nova Scotia, 1875) Wharfage, Warehouse and Freight Charge.-*, Act re collection of (Xova Scotia, 1886) 557, 5.")8 Whitby and Port Perry Railway Co., Act to ameTid Act incorix)rating (()ntario, 1874) 12(>, 128 Whitehaven, New (Tlasgow and North Shore Railway, Act to incori>orate (Nova Scotia, 1873). . 478 Wild Land Tax, Act to imiKJse (British Coliunbia, 1872) 1013 Wild Land Tax, Act to imixise (Manitoba, 1873) 775, 777 Windsor, .^mherstburg and Lake Erie Railway Co., Act to incoriwrate (Ontario, 1805) 244(< Windsor and Brompton Bridge Co., Act to amend charter of (Quel)ec, 1888) 370, 383 Windsor, Town of, Act to consolidate Acts of incorjioration of (Nova Scotia, 1887) 573 Winnipeg Board of Trade, Act to incorporate (Manitoba, 1873) 781, 783 Winnipeg, City of, Acts respecting incorfX)ration of (Manitolm, 1873-74-77, 1882-84). . .785, 810, 834, 838 Winnipeg, City of, Act relative to (Manitoba, 1875) «03 Winnipeg Parliamentary Electors' List, 1877, Act to legalize (Manitoba, 1877) >^li* Winnipeg and Southern Railway Co., Act to incorimrate (Manitoba, 1887) H57 Winnipeg and South-eastern Railway, Acts to incorixirate (Manitoba, 1881, 1888) 820, 827, 800 Winnipeg and Hudson Bay Railway and Steamship Co., Act U> reiieal Act re (Manitoba, 1888-80) 013 Winnipeg, Taxes in, Bill re arrears of ( Manitoba, 1800) 015, 018, 027 Winnipeg and Duluth Railway Co., Act resiiecting (Manitoba, 1800) 030 Winnipeg Water Power and Canal Co., Act to incorporate (Manitoba, 1803) 9!>3 Winnipeg Natural Gas and Petroleum Co., Act to incorporate (Manitoba, 1804) 004 Witnesses, Examination of. Act to enable Supreme Court, Prince Edward Island, to order, &c, (Prince Edward Island, 1874) 1158 Witnesses, Examination of by Committees of House of Commons and Senate (Dominion, 1873). 13, 18, 10 Women, Protection of, Act for (Ontario, 1887) 205 Wood Lands, Act for protection of (Manitoba, 1876) 8t>5 Works, Public, Manitoba, Act rebpecting (Manitoba, 1876) 811 Yale to Cariboo, Act to provide for Wagon Road from (British Columbia, 1876) 1040 Yarmouth and Halifax, Act to provide for completion and consolidation of Railways between (Nova Scotia, 1886). See Halifax and Yarmouth. Yarmouth and Annaimlis Railway, Acts relating to (Nova Scotia, 1893) 634 Yonge and Escott, Union of Townships of. Act to provide for (OnUrio, 1888) 212 INDEX OF SUBJECTS. ism, 206-210, 432, 7.")2, !t29 145 AotB. Recitals in. Sec "Recitaln." AdminiBtratlon of JuBtioe. .106, 161, 168. 185, 215, 475, 523, 571, 797, 798. 843, 84!), 1030, 10.32, Administration and Probate. Ser Probatr. Administration of Insolvent Estates. See InHolvent Kstates. Administration of Laws Administrative Matters... ^^^. ^.^^^ ^^^ 2i^;244.:38i; 583,'686, 646, 755. 854, 897. 1121. 1152 Ame^entsofLa^..... ............... ..^^ tSSs : .'''.''^''.' '^:. . '^'. '.'.''"""." !•«■'. 215. 244«, 703, 1023, 1108 Appointment of Judges. .See Judges. ^^ Apprentices and Minors ' ^^ Appropriation of Land l^seSment'^"'!'''"". . .''".':^'.'"!".". "''" 82, 212, 581, 683, 1047. 1229, 1267 Assembly, General. See General AsHembly. Assignments Attachment 199, 204, 854, 1242 709 B 106,143, 144,1199 458 .458, 635, 636. 648, 760, 786, 814 Ballot Banks. Incorporation of Banking and Banks Banking and Commerce. Sec " Dominion Legislation " and «u;)r(t. „„„.,„ .,k iato Bankruptcy and Insolvency 80, 149, 170, 206, 245, 336, 357. 475, 1078 Barristers and Attorneys. Sec Legal Profession. BiUs and Notes 212. 213. 215, 382. 434, 435, 683, 686, 849, 1113. 1110. 1117. 1214, 12.o0 BillsofLading ro ■08V470 1015 Births, Deaths and Marriages ^^ ^If V^.'-l^ url BoardsofTrade 87. 781, 78.^. <84, II08 Boundaries of Provinces Irid'S"'""- *^ ""'°"^^' 80, 379, 70!., 731, 732, 760, 804, 832. 898. 914. 991, 1118 Bridle Companies' •.;. . 82, 262. 635. 719. 730, 731, 732, 770, 804. 832 British North America Act. Legislation infringing on provisions of- ^^ ^^^ oT£ ■ :::'::::::::::'z:[[\\:y.:'.'''.' ':::.::':.'.m 2^:255: 2^, m:3s» ^ueDec 480, 4«S. 519, 587 Nova .Scotia ^ ,. ,„„ _„„ „ D ., 765, 75!) < '•)• 6.3, 70b ^ew Brunswick .V.. .780, 828, 838, 897-9., :.., '30, 947 S^i^mbia:.:;::;;:'::::::::::':::':::::'::::: lou, ms. 1062. 1054. 1066. 1082, uoj North-west Territories British North America Act, Legislation afferting— sSion 91 .212.' '250', 436." 438'. 4'43.'446.' '466. '472,' 474, 488, 518, 558. 654. 741. 910. 1011, 1015. 11P8 Sedtion 92 82. 254. 255. 314, 338, 462, 488, 519, 756, 780, 828, 862, 897, 912. 930. 1014 1015 1062, 1066, 1082, 1116, 111° B 1440 PH()VINCT\I, LKOIHLATION. H.<';i>ii iw. B- -Concluded. S<'iti(.ii 1>5 1-^ • Siction !Ml 113. 2W, 266, 346, 366, 430, 7H0, 1014, 1054 Hfctioii loo s 03, :i67 S.^.ti72, .581, iW2, 704. 710, H37, KW, H,H lli:t, 1114, 1117, UIH, 113"., 1152, 1240, 1270, 1271 Canada, Policy of, Interference with. *<• " i'olioy." Cemetery Companies two, ?60, 504, 566, 574, 036, 013, 646, 7fi6, HIO, 1L47 Charffes, Imposition of i'"''*' "*'** Charters 436, 467. 4tiH, m)-mii Children 20fi. 242. l(» in, 12.30 Chinese 1061, IWiO, 1067. 1002 05, looo, lioi, 1121 Church of England 496, 661, 1200 Civil Rights. .V" I'lDlx'itV mkI Civil Rightn. Commerce. Sn Tnulf aiid Cimi';ieic«. Companies and Corporations 470, 941, 080, 1(K»5, 1000, 1015, 1052, 1057 I.K'niponvti.m of. HO. 147, 148, 161, 213, 244, 244i< MiuiinK*' '""' Uivoiw. .,^^ ^^^ Divorce Bills • Cl.^^ 1151 Dominion Government Dominion Lands, .sv, LiukIh. ,,„.„„, Dominion Legislation, Interference with, .m ^ubjectHof- Alii'iiH- ■-**"' AlleuM. ^^^ ,(.^,;^ jj4^^ 7,(0^ 12(!« BaiikiiiK and ("oinini.rce -^ ^^,l^ ^„^^ ^,,,j^^ .^..^ ^_.^ ,p-„_ j24'i Bill», NoUm and Negotiable InHtninientB. . .213, 214, 2U d»A 4d4, J».i, ow., , , . _^^^ ^^_^ BoardH <>f Trade ' "' ij^ BuildiuKn'xl l''«" ^"'■''■*''''' .'.l ,'«"",' Criiiniial Law an.l I'roccdun-. Soe Criinnml Law and Procedure. Dominion Laiidn Aut Electors and Elections ■ • - • ■-^^ ^^'^ •^^■^ '378, 133. -t'O. "■*"• »-' Finlierien (lauie, ExiK)rtationof. Sec (ianie. 12H 142 Harb)urH 035 Iinn.igration ■ ' - ;; ^ ' -. g^^ ' ^g^' ;,j'„^ ^„4,5_ ,053^ jo^^^ ,ot57, UW Interent ' 11«0 Indian Act .Tudges. See .TudgtH. j.|5 ^5^ Lieut. (lovernor y,^^ lj,g Liquor LioeniteH ; Malicious Injurien. .Sec Malicious InjuneH. ^^^g Manitoba Act yr,,-,^ |gg Marriage and Divorce. MisceilaneoUH North-west TorritoricH Act j,,,.,, ^.^^3 N. W. T. Kep,l TroiHjrty and Trrigatioa Acts '.'.'.'.'...'...'. lO.'.V, 1 057 Otticers of, ai>pointment of ' jqj Patents 476 Pilotage fees ' ' " ' Quarantine. See Quarantine. 243 Rivers (anvl .SVe " Rivers ") Trade and Connuerce. Sec Tra.le and Coinu.erce. ^^._^^ ^^^^ ^^^^ Union Acts 196 Wrwks -^ ■ 1072^74, 1077, 1083-87, 1000, 102, 1247 Salaries aim Emolument.< of ..!...' 1056 Selection oi 147 Sittini^s of Judges- 143 185 199, 853, 859, 1006, 1089, 1202 County. Siin-ogate, and Division Court '„ a. ^. Judicial Decisions, Legislation Conflicting with. See Conflicting. Judicial Districts. &c Districts. gjl Judicial Powers, (iranting of - • -- ggg' Vos 'gio,' 824, '8.^2, 849, 1029, 1125 Jurors and Juries •.■.■••••.■ " ' 1 , \.' Justice, Administration of. Sec Administration of Justice. ^^ ^^^^ ^^^ ^^^^ ^^^ ^^^^ ^^^ Justices of the Peace Land, Appropriation of See Appropriation. ^^^ ^^^ „,^^^ ^^^^ ^^^^^ j^,,^ Lands, Acts relating to ' ' ' Lands, Crown. See Crown Lands. ^^^ ^^^^ ^^^ ^,,3^ ^^^ ^^^^ 1151 Lands, Dominion ■"^""cr"'A Lands, Expropriation of. Sec Lxpropnation of Lands. ^^^^ Land, Grants of lOH Landfj, Indian • 1444 PROVINCIAL LEOISLATION. / L — Concluded. Lands, Provincial 1024, 102!) Lands, Railway. Sen Rivilway Lands. Lands Purchase Acts 1154, liCl, IKiS-tiO, ll()81178, 1231-34 Lands, Sales of . •. . . .524, 528. 533, 802, 807, 821, 1019-22 Land, Survey of. See Survey of Land. Land, Title to. Sec Titln to Land. Laws, administration of 432, 752, 929 Laws, amendment of. See Amendment. LaAVS, conflict of. See Conflict of Laws. LaVT, criminal. Sec Criminal Laws. Law Statnps 736, 738, 765 Lavr, Study and Practice of See Legal Profession. Laws of Piovinces 20fi-10, 432, 752, 929 Legal Profession 313, 500, 773, 817, 105«i, 1256 Legislation affecting credit of Province 376 Legislation affecting matters suh judice. See Sub judice. Legislation, Defective 785 Legislation, r* po»( /m'fo. See Retroactive Legislation. Legislative Council and Assembly, 83-93, 103, 146, 254, 255, 256, 261, 495, 800, 809, 812, 853, 1014, 1051, 1159, 1227 Licenses H7, 152, 161, 257, 306, 472, 581, 73 M Magistrates 153, 211, 215, 250, 260, .345-373, 430, 4.35, 662, 769, 1108 Magistrates, District. See District Magistrates. Magistrates, Sti|>endiary. See Stiiiendiary Magistrates. Malicious Injuries to Property 153. 264, 459, 559, 636, ()43, 646, 710, 800, 805, 819, 1050. 1117, 1149, 1210, 1212 Manitoba Railway Acts 8(!0-3H3 Manitoba School Act 918-926, 947, 995-1004 Marine Insurance. Sw In!5S, 854 Minerals 440-455. 589, 626, 629, 74<1, 750, 1023, 1047, 1073 Mines and Mining 82, 440-455, 626, 620, 746,750, 1023, 1047,1073 Minors l-*5, 761, 762, 1052 Misdemeanours, Legislation constituting. See Crimes. ' Monopoly, Creation of "73 Money Payments 1121 B INDEX TO SUBJECTS. 1445 M — Concluded. .103, 751 £Sa! ^^:L .*'. '""™"'- .». «, », «. n., .». .», .«.. i«. .... ,»n Municipal Councils, Power to pa88 By-laws. See By-laws. ^^^^ ^^^^ ^^^^ ^^^ Municipal Elections ' ' 93Q Municipal Institutions 78.5 N 478, 492, 4%, 703, 711, 730, 745, 804, 1118 ,[[ 212, 2G2, 380, 474, .558, 748, 751, 772, 914 244c, 260, 379^ 481, 492, 635, C45, 70i», 711, 713, 728, 730, 731, 732, 751, 755, 763, 770, 804, 914, 991 . 212, 213 and -Sec Bills and Notes Negotiable Instruments... New Brunswick School Act ...282, 1239 Notaries .257, 804 Notice Sufficiency ot Navigable Rivers and Waters Navigation and Shipping ...... Navigation, Interference with. 13 19 Oath, Examination on • ^. • -^^ ■■- ' • ' " " ^ '^^g' io4o;i047,' 1050,' 1062, 1180, 1184 " Offence, use of word iiM, 10a, «ju, ij«, ( w, . , 474,586 OffeSoes,' Crimes and Misdemeanours, Legislation constituting. See Crimes. 460 773 1121 .275, 278, 282, 289, 291, 295, 646 93, 259 .".,.. 80, 261, 282, 800, 819 202 .716, 799, 800, 816, 817, 1158, 1159 Parishes Parliamentary Papers " Parliamentary," use of word Penalties. Relief against Perjury Petitions, Election. See Elections. j^gg Pleading and Practice ' '" g^ " ,5^2, 710 Police Force .; „ "o -i k!.« Policy of Dominion Government, re Railways. See Railway ucy. ^^^ ^^ lewis. °^'"""H?,«^T4riMTs, «: «. 5.. «, »7, m. n,7, .m. .... r« x», m Powers, Limitation of. See Limitation of Powers. ^^^„^ ^^^^ Powers of Attorney ' 1-^2 Preferential assignments jjq i 19 Prerogative ' ' 130-itl Presbyterian Churches Private Rights. See " Rights." „53 Probate and Administration ' • ' ' ^^ia^ 312, 572, 1051 Procedure ' ' '{42^' 244c, 751, 1153, 1263 Property 778 Property and Civil Rights .,......'. «2 Property, aHsessment of Interference with. Sec "Rights." Maliciims Injuries to. See " Malicious Injuries." 171-185, 192, 1263 Protection of " 1153^ H82 Transfer of 91 B 1446 PROVINCIAL LEGISLATION P — Concluded, Public Hoalth. See Health. Public Matters. Enquiries as to. See "Enquiries." Public Morals. Sec " Morals." Public Schools 107, 6'^^ s Salaries'of Judges. -Sce^Judges. aa es of Land . . ^24-28, 533. 915, 918. 927. 1019-22, 1046 Schools 662.1241.1244.1248,1250,1270,1279 School Laws and Ordinances 107, 570. 580, 683, 602-702, 71^, 810, 918-20. 947. 950-988. 9951004. 1040. 1075, 1104, 1184-97, 1240, 1244 B INDEX TO SUBJECTS. 1447 S — Concluded. Seamen 20.474 Senate, Spi'nkor of, Act re 131 4-1323 Shipping 212,474,558,582 Spirituous and Intoxicating Liquors- Ontario 107, 147, 152, 153 iinvU-c 307,314 Nova Scotia 48i), 4!)5, 554, 550, 503 New Hninswick 062, 710, 718, 721, 724, 730, 741 Manitoba 780, 788, 802, 824, 835, 8;« BritiHh Columbia 1052 Prince K(! ward Island , 1180, 1203, 120(i, 1217-20, 1207 Stamps. Sec Law Stamps. Statistics 282, 812, 1015, 1042 Statutes, Revised. See Revised Statutes. Stipendiary Magistrate 472, C62, 1100, 1182 Sti'eams and Rivers. See Rivers and Streams. Subjudice, Legislation re Matters 147, 160, 190, 282, 29.% 296, 312, 533, 629, 838, 853, 929, 1040, 1103. 1207 C48 573, 586, 751 433,795 Subsidies Sunday, Observance of Survey of Land Taxes and Tolls, Tmiwsition of. . 194, 287, .307, 466, 492, 581, 736, 738, 777, 838, 1013, 1047, 1104, 12;«, 1241 Taxes and Taxation 244«, 4.35, ,581, 765, 823, 838, 927, 1041, 1047, 1067, 1094, 1229, 1267 Taxes, Provincial 1061, 1065, 10»)7 Taxes, Sales of Land for 1046 Telegraphs 20-29, 770 Telephone Companies 304, 533, 743-45, 749, 1210 Territory, Acquisition of 104 Title to Land 802, 803, !)28, 1151, 1234 Tolls 264, 1078, 1104 Toll Bridges 309, 1074 Towns, IncoriToration of. See Incorporation. Trade and Commerce. . 81, 107, 161, 187, 189, 212, 242, 2.57, 282, 296, 462, 474, rm, 558, 582, 662, 704, 824, 92!1, 946, 1040, 1043, 1008, 1077, 1088, 1099-1101, 1104, 1121, 1125, 1203, 1206, 1213, 1229, 1265 Trade, Diversion of 842, 1088 Trade, Restraint of 489 Trade, Interference with. See Trade an Commerce and See 860-883. Traffic, Diversion of 827, 829, 842, 850, 855, 857, 1082 Transfer of Property. See Proiwrty. Trespass and Trespasses 718, 929, 1117, 1273 Trust Companies 244