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Les diagrammes suivants iilustrent la mAthode. 1 2 3 32X 1 2 3 4 5 6 OF m*^« ' ■^>J* *,S..' ?f#,'!:=>v MANITOEfil SCHOOL CASE (1894) '■^ri^ THB JTJDGhMBISrT OF THft &)ftD8 OF THt: JUDICIAL COMMITTEE OP THK (IMIBRIAL) PRIVY COUNCIL tOSmHBR WITH TUB IMPERIAL ORDER IN COUNCIL AMD TIIR REMEDIAL ORDER IN COUNCIL pttoaxiy air s. b. i>4«so|t. ftiMTiiK m t«K qy Kiswtf most I - • ■ . . ilf^. ^V- i^''^*;-v'--'^;i.;:' i:^,,.^^.,.. ' "IwH^ - -T^'t- V MANITOBA SCHOOL CASE (1894) THE JUDaMENT OF THE LORDS OF THE JUDICIAL COMMITTEE OF THE (IMPERII r> PRIVY COUNCIL TOOKTHER WITH THE IMPERIAL ORDER IN COUNCIL AND TilE REMEDIAL ORDER Jtk COUNCIL OTTAWA PRINTED BY S. E. DAWSON, PRINTER TO THE QUEEN'S MOST EXCELLENT MAJESTY 1895 [No. 20—1896.] Price b cents. 1. /" -\. 4''^'.\ DowN'iNt; Strkkt, 19th Fe))nmry, 18!)'). M V liOiMi, -1 liiivi' tlic liDiiDurio tninsmit to you for the int'onimtion of yourgovein- mpiit, i'o|iies()f (hi" iiiil!,'iiii'iit lit' till' Ijordsuf tlic ■liulici il ('nimnittHP I'f tlif Pri\ v < 'mmfil nil tlic a|i|)i';il of l(r()|pliy and otlicis and tin- Attorney (Iciicnil of .Maiiitolia, from tli« Sujiri'int' C'oiirl of ('an.ida. 1 lia\(' till' lioiioiir to be. Your most ohcdicnt hunililc servant, (Si-ufd), H. II. .MKADK, /■'al nf' /Iroji/n/ ami til III' f.i \. lln' Alttirmy Giuii-ral i>f' Manitoha, j'roin tlii' Siij>riine Court of Ciini(i/ii, (filiri'rii/ ."Jlh Jmiiiiiri/, IS'l'i. Pkksknt ; Tlie r.oiii) CiiAN<"i;i,i,oK, i.oiiii Watson, (l)eliverey tlio le<»islutufe of Maintolia rrlatiiijj; to education. One of tliese created a ])e|iartiiient of Kduoation and an " Advisory IJoard.' The Board wa.s to crovince, and one to l)e appointed by the I'liiversity Council. Tlie Advi.sory Hoard were empowtM'ed (amoiiLtsL otlier tiiinf,'s) to autiiori/.o text Iwoks for the use of pupils, and to j)rest;ribe tlie foiiii .)f reii^^ious exercises to be used in schools. The other Act, which was teriiuid "The Public Schools Act," established a system of puiilic education "entirely iion sectarian," no religious exercises being alhnved except those condui'ted according to the regulations of the "Advisory Hoard.'' It will be necessarv iiereafter to refer somewhat nmre in detail to the jirovisions of this Act. The Act came into force on tiie l^t of May, 1S90. liy virtue of its provisions, by-liiws were made by tiie municipal corjioration of Winnipeg, under wiiich a rate was to be levied upon I^rotestant and Roman Catholic ratepayers ahke for sciiool purposes. An application was thereuj)on made to the Court of Queen's liench of Manitoba to quasli thes(! by-laws on the groi\i:d tliat the Public Schools Act, 1890, was uttra vires oi tiie Provincial Ijcgislature, inasmucii as it prejudioially affected a right or privilege with respect to denominational schools which the Roman Catholics had by law or practice in the province at the union. The court of Queen's Bench refused the application, being of opinion that the act was intra vires. Tlie Supreme Court of Canada took a dillierent 20-lJ MAXITORA SCHOOL CASE. view, hut upon apppal tliis Board reversed their decision, and restored the Judgment of the Court of Queen's Bencli. Me I oriiila and petiti'.ins were afterwards presented to the Governor General in Council on behalf of tlie Kouian Catholic niinoiity of Manitoba bj' way of appeal against the EducUion Ai-ts of 1S90. These memorials and petitions having l)een taken into considention, a case in relation thereto was in pursuance (jf the provisions of the Supreme and Exche(fuer Courts Act referred by the Governor tJeneral in Council to the Supremo Court of Canada. The questions referred for hearing and consideration were the fol- lowing : — "(1) Is the appeal referred to in the said memorials and petitions, and asserted thereby, such an appeal as is admi,ritish North America Act, 1807 ; if said section 93 be found 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 a manner that an appeal will lie thereunder io the Governor (ieneral in Council?'" The leai'ned judges of the Supreme Court were divided in opinion upon each of the questions submitted. They were all, however, by a majority of three judges cmt of five answered in the negative. The Appeal to the (iovernor General in Council was founded upon the 22nd section of the Manitoba Act, 1870, and thl)oe. The remaining provisions closely correspond with those of section -2 of the Manitol)a Act. 'I'he only ditl'erence between the introductory part and the 1st .sui)secti(in of the two sections, is that in the Manitoba Act the words "or practice " are added after the word " law ' in the 1st subsection. The ;}rd subsection of section 'I'l of the Manitoba Act is identical with the 4th subsection of section 93 of the Jhitish North America Act. The 'Jnd and Urd subsec- tions respectively are the same, e.vcept that in the 2nd subsection of the Manitoba Act, the words " (jf the lej^islaturo of tlie province or" are inserted before the words "any provincial authority," and that the .Ird subsectiiin of the British North America Act commences with the words ; " W1um(^ in any province a system of separate or dissentient SI hools exists by law at th(^ union or is thereafter established by the legislature of the provir.ce." In vi(!w of this comparison, it apjiears to their Lordships impossible to come to any other concluNion than that the 22n(l section of the Manitoba Act was intended to be a substitute for the D.'b'd section of the llritish North America Act. Obviously all that was intended to be identical has been repeated, and in so far as the provisions of the Aianitoba Act ditl'er from those of the earlier statute, they must be regarded as indicating the variations from those pro\ isions intended to bo introduced in the provinij of Manitoba. In their f^jrdship's opinion, therefore, it is the 22nd section of the Manitoba Act, which has to be construed in the present case, though it is of course legitimate to con- sider the terms of tl e earlier Act, and 'o take advantage r)f any assistance they may atFord in the construction of enactments with which they so closely correspond and which have been suljstituted for them. Hefort! entering upon a critical examination of the important section of the Manitoba Act, it will be convenient to state the circumstances under which that Act was passed, and al.so the exact scoj)e of the decision of this Hoard in tlu; case of IJarrett v». The City of WinnijH'g, which seems to have given rise to some misapprehension. In I8(J7, the union of thc^ provinces of Caeiada, Nova Scotia and New Brunswick took place. Among the obstacles which had to be ovfMvome in order to bring about that uni. ii, none perhaps presented greater ditlicuity than the differences of opinion which existed with regard to the (|uestion of education. It had been the subject of much c(jntroversy in Upper and Jjower Canada. Jn Upper Canada, a general system of undenominational education had been established, l)Ut with provision for separate schools to supply the wants of the Catholic iid)abitants of that province. The 2nd subsection of section 9.'? of the British North America Act extendt-d all the powers, j)rivileges and dutie§ which were then by law conferred and imiwsed in Upper Canada on the separate schools and school trustees of the lioman Catholic inhabitints of that province to the dissentient schools of the Protestant and Homan Catholic inhabitants of Quebec. There can be no doubt that the views of the Roman Catholic inhabitants of Quebec and Ontario, with regard to education, were shared by the membeis of the same conununion in the territory which afterwards became the jtrovince of Manitoba. They regarded it as essential that the education of their children slxmld be in accordance witli the teachings of their church, and consider that such an edrcation could not V)e obtained in public schools designed for all the members of the connnunity alike, whatever their creed, but could only be secured in schools conducted uiuler the influence and guidance of the authorities of their church. At the time, when the province of Manitoba became part of the Dominion of Canada, the Roman Catholic and Protestant populations in the province were about equal in number. Prior to that time, there did not exist in the territory then incorporated any public system of education. The several religious denominations had established such schools as they thought tit, and maintained them by means of funds voluntarily contri- buted by the memlwrs of their own communion. None of them received any State aid. The terms upon which Manitoba was to become a province of the Dominion were matter of negotiation between repre.sentatives of the inhabitants of Manitoba and of the Dominion Government. The terms agreed upon, so far as education was concerned, nmst be taken to be embodied in the 22nd section of the Act of 1870. Their Lordships do not think that anything is to be gained by the inquiry how far the provisions of this 6 J/.IA7/'0/M SCHOOL CASt:. «fctil:ncil llic proviiicf of Miiriitolifi in iv (lill'tTOiit position from the othiT provinces, or wlii'iluT it was one niore or U'ns iiilviinlfi;,'t'niis. Tticic fiiii l)i« no presumption iis to tlic I'xicnt to wliifli ii vjiriiition was intt>n(lf cases be given to the intentions of the legislature, if violence were done to the language in which their legisl.ition has taken shape, but such a course would on the wliolt! be (piite as likely to defeat as to further the object which was in view. Whilst, however, it is necessary to resist any temptation to de\iate from sound I'dles of <'oiist ruction in the hope of more completely satisfying the intention of the legislature, it is ipiite legitimate where more than one c()nstructijn of a statute is possible, to selei't that one which will best carry out what a[)peai's from the general scojie of the legislation and the surround- ing circumstances to lia\e been its intention. With these pi'eliminary observations, their Lordships ]iroeeed to consider the terms of the "-'nd and .'iitl subsections of section l'"_' of the Act of 1S7U, upon the constructioti of which the ipiestions submitted chiefly dejieiid. l''or the reasons which have been given, their Lordships concur with th ■ majority of the Supreme Court in thinking that the main issues are not in any way concluded either by the decision in Jiarrt'tt's case or by any princijiles imolved in that decision. At the outset this ([uestion presents itself. Are the 2nd and 3r(l subsections, a.s contended by the respondent, and atHrmed by some of the judges of the Supreme Court, designed only to enforce the jirohibit ion contained in the 1st subsection ? The arguments against this contention appear to their f-ordshiiis conclusive. In the first [ilace that subsecti.jii needs no further provision to enforce it. It imposes a limitation on the legislative powers conferred. Any enactiuciit contravening its provisions i.s beyond tlie competency of the Provincial Legislature, and therefore null and void. It was so decided by this board in Barrett's cas^'. A doulit was there suggested whether that appeal was com|)etent, in consecpience of the [irovisions of the 2nd sub.seetion, but their Lordships were satisfied that the provisions of subsections 2 and l^ did not MAXITOHA iSCHOOf. CASE. m w " operate ti> witluli'iiw such ii (piestiDn as tluit involved in tlie <'ase fnini tlie jurisdietiu " of tlio onliiiai'y ti'il>iinals nf the cmintry." It is hai'(lly necessary lit jioint out lio iniprolialile it is that it should have h,)en intt^nded to j,'iv« a voncurrent remedy hy apjieal to the (lovernor (teneral in Council. The ineonvenienees and dirtieidties likely to arise, if this duuhle remedy were open, are obvious. If, foi example, the Supremo Court of Canada, and this eommittee on appeal, deehu'ed an enactment of the lej,dslaluro of Maiutolt.'i relaiiiii.' to ediicatiul the Parliament of Canada is oidy empowered to legislate as far as the circumstances of the cas<' rfi|iiire " for the due tvxecul ion of the pro\ jsions " of the 'Jl'iid section. If it Were to lej^islate in such a cu.sp as has heen supposed, its Ic^'islation would necessarily he declared ii/fra r/yv.v liy the I'ourt.s which had decided that the pro\isif)ns of the section had not heen \ iolated hy the lej,'islat urc of the jiroN ince. If, on the other liaiul, the GoNernor (iencral declared a provincial law to he iiitrti riri's, it wotdd be an ineffectual declaration. It cotdil oidy be niaile effectual iiy the action of the courts, which would have for theinsehos to determine the ipU'stion which he (lecide view. That remedy is eithtu' a provincial law or a law passed by the l'arliaim;nt of Canada, ^^'hat would be tlu! utility of passinj; a law for the purpose merely of annullinj,' an enactment which the ordinary tribini;ils would without legislation declare to l)e nidi, and to which they would refuse to ;{i\e t^U'ect ,' Such lej,'islatioii would indeed be futile. So far the matter has been dealt with apart from an examination of the terms of the itul subsection itself. The cunsiderations adverted to would .seem to justify any possible construction of that sub.section which would avoid the conse(|uences pointeil out. lUit when its lanjiua^'e is examined, .so far from presentin;? any ditliculties, it ;jreatly sireiiijthens the t'oiiclusion sii;,'j^este(l by the other parts of the section. The tirst subsection is conlini'd to a riylit or pii\ilej,'i' of a " class of per.sons " with respect to denominational education "at the union," the ,,'nd subsection ajiplies to laws affecting a ri^iit or privilege "of the Protestant or Uoman Catholic minority" in relation to eilucation. If iIk^ object of the 'Jnd subsection had i)cen that coiiteiideil for by the respondent, the natural and obvious mode of expressint,' such iiilcntion would have been to aiithoii/.e an appeal from any Act of the Provincial Lej,'islatuic affectini^ "any such right or privilei^e as aforesaid." The limiting words " at the Cnion ' are, however, omitted, for the expression " any class of persons " there is substituted " the Protestant or Homan Catholic minority of tlu^ <,^>ueen s subjects," and instead of the words " with respect to denoininational schools," the wider term " in relation to education " is used. The 1st. subsection invalidates a law aff(^cting prejudicially the right or privilege of "any chuss "' of jiersons, the iJnd subsection gives fin appeal only where the right or privilege affected is that of the " Protestant or Itoman Catholic minority." Any class of the majority is clearly within the purview of the 1st subsection, but it seems ecjually clear that ni> cla.ss of the Protestant or (Catholic majority would have a focKs xtanili to ap]ieal under the L'nd subsection, becau.se its rights or privileges had been affected. Moreover, to bring a case within that subsection it would be essential to show that a right or privilege had been "affected." Could this be said to be the ease because a void law had been jiasscd which purported to do something but was wholly inettectuaH To prohibit a particular enactment and render it iiHra vireti, surely prevents its affecting an)' rights. 8 MANITOBA SCHOOL CASE. It woulri do violoncf! to sound canons of construction if the same meanin;,' were to be attributed to the very diflVrent languaj;o employed in the two subsections. In their Lordships' opinion tlu" 2nd subsection is a substantive enactment, and is not designed merely as a means of enforcing the provision which precedes it. The question then arises, does the subsection extend to rights and privileges acijuired by legislation subsecpient to the union? It extends in terms to " any " right or privileges of the minority atfccted by an .\ct passed by the legislature, and would therefore seem to embrace all rights ami privileges existing at the time when such Act was passed. Tiieir lordships sei- no justification for putting a limitation on language thus unlimited. There is notliing in the.surrouniling circu.iistances, or in the apparent intei\tion of the legislature, to warrant any sucli limitation. (^)uite the contrary. Ft was urged that it wuuld be strange if an appeal lay to the (Jovernor (ieneral in Council against an Act passed by the Provincial Legislature, beciuse in abrogated rights conferred by previous legislation, whilst if there had been no pre\ ious legislation, the Acts complained of would not t)niy have been itiira vivn, but could not have afforded any ground for any appeal. There is no doubt force in this argument, lait it aihnits, their Lordships think, of an answer. Those who were stipulating foi' the jirovisions of section "J'J as a condition of the union, and those who gave their legislative assent to the act by which it was brought aliout, had in \ii>w 'he jierils then appichended. The immediate adoption by the U-gis- latiire of un tMlucational system obnoxious either to C'litliolics or Protestants would not be contemplatetl as possible. As has Ijeen ali'cady stated, the Koman Catiiolics and Protestants in the province were about eipial in number, it was impossible at that time for either party to obtain legislative sanction to a scheme of education obnoxious to tlie other. The establishment of a syst( prospect. The legislature of Manitoba first met on the lath of .Nlan n, 1S71. On the '.\n\ of May following, the l']ducation Act of 1871 received the royal assent. Hut the future was uncertain. Eitln-r Homan Catholics or I'rotestants might become the preponderating power in the k'gislature, and it might under such conditions be im|iossible for the minority to prevent the ci'eation at the public cost of schools which, though acceptable to the majority, could oidy be taken advantage of by the minority on the terms of sacrificing their cherished convictions. The change to a Koman Catholic system of public schools would have been regarded with as much distaste by the Protestants of tlie pro\ince as the change to an un.sectarian system was by the Catiiolics. Whether this explanation be the correct one or not, their Lordships do not think that the ditViculty suggested is asuflicient warrant for departing from tiie jilain meaning of the words of the enactment, or for i-efusing to adopt the construction which apart from this objection woidd seem to be tlu> riulit one. Their Lordships being of opinion that the enactment which go\-erns the present case is the lil'nd section of the Nlanitoba Act, it is unnecessai-y to refer at any length to the arguments derived from the pii visions of section lt3 of the Jlritish North .Vmerica Act. But in so far as they throw light on the matter, they do not in their Lordships' opinion weaken, but rather strengthen the views derived from a study of the later enact- ment. It is admitted that the ."ird and 4th sul)sections of section !).'{ (the latter of whidi is, as has been observed, identical with subsection .'$, of section '22 of the Manitoba Act) were not intended to have effect merely when a provincial legislature had exceeded the limit imposed on its powers by subsection 1, for subsection I? gives an appeal to the Governor General, not only where a system of separate or dissentient schools ("xisted in a province at the time of the union, but also where in any })rovince such a sj'steni was " thereafter established by the legislature of the prctvince." It is manifest that this relates to a state of things created by post-union legislation. It was .saifl it refers only to acts or decisions of a " provincial autliority,' and not to acts of a provincial legisla- ture. It is unnecessary to determine this point, bi'l their l. been important. But the reason for the difl'erence between the subsections is manifest. At the time tlie Domii.ion Act was passed a system of denominational schools adapted to tlie demands of the minority existed in some provinces, in others it might tlicreafter be estal)lished by legislation, whilst in Manitoba, in 1870, no such system was in operation, and it coulil only come into existence liy being "there- after established." The words which jirefacc the right of appeal in tin Act creating the ])ominiou would therefore have lieen nuite inappropi'ifvte in the Act by winch Manitoba became a pi'ovince of the Domiiiiim. lUit the terms of the critic J sub- section of that .Art, are, as has been shown, (piite general, and not made subject to any condition or limitation. Hefort^ leaving this part of the case, it may be well to notice the argument urged by the respondent that the construction which their Lonlships have put upon the 2nd and 3rd subscfticns of section 22 of the Manitoba Act is inconsistent with the ])ower conferred upon the legislature of the province to " exclusively make laws in relation to educatir.i." The ai'gunicnt is fallacious. The power conf(;rred is not absolute but limited. It is exerciseable only "subji'rt and according to the following provisions." The subsections which follow, therefoi'c, whatever be their true construction, define the conditions under which alone the Provini'iid Legislature may legislate in relations to education, anil indicate the limitations imposed on, and tin; exceptions from their power of exclusive legislation. Their right to legislate is not indeed, properly speaking, exclu.^ive, for in the c.isi' specilied in subsection .'{, the Parliament of Canada is author- ized to legislate on the same subject. Thei-e is, thei^efore, no such inconsistency ius was suggested. The learned Chief .Justice of the Supreme Court was much pres.sed by the eonsi- diM-ation that there is an iidierent right in a legislature to repeal its own legislative Acts and that "every jtresumption nnist be made in favour of the constitutional right of a legislative body lo repeal the laws which it has itself enacted.'' He returns to this point more than once in the course of his judgment, and lays down as a maxim of constitutional construction that an inherent right to do .so cannot be deemed to be with- hi^ld fiiim a legislative body having its origin in a written constitution, unless the consti- tution in expi'css words takes away the right, and he statics it as his opinion that in construing the Manitoba Act, the court ought to j>rocf>ed on this principle, and to hold the legislatui'e of that province to have absolute powers over its own legislation, untiammelled by any appeal to federal authority, unless it could find some restriction of its I'ights in that respect in express terms in the Constitutional Act. Their Lordshijis are unabl(> to concur in the view that there is any presumption which ought to influence the mind one way or the other. It must be remembered that the Provincial Legislature is not in all resjiects supremi^ within the province. Its legislative power is strictly limited. It can deal only with matters declared to be within its cognizance by the British North America Act, as varied by the Manitoba Act. In all other cases, legislative authority rests with the Dominion Parliament. In relation to the subjects specified in section 92 of the British North America Act, and not falling within those .set forth in section 91, the exclusive power of the Provincial Legislature may be saifl to be absolute. But this is not .so as regards education, which is separately dealt with, and has its own code, both in the British North America Act and in the Manitolm Act. It may be said, to be anomalous, that such a restriction as that in question should be imposed eal of tlie Acts of ISDO, or the re-enactment of the prior legislation. Bearing in Uiind the circumstances which existed in 1870, it tloes not appear to their Lonlships an »'xti'avauaiit UDtiun that in creating a legislature for the province with limited jjowers it should have been thought expedient, in case either Catholics or Protestants became preponder-aiit, and rights which hail come into existence under different circumstances were inteifered with, to give the Dominit)n I'arliament power to legislate upon matters of education so far as was necessary to protect the Protestant or Catholic minority as the case might be. Taking it then to be established that the "iiid subsection of section 'I'l of the Manitoba Act extends to rights and privileges of the Roman Catholic minority acquired by legislation in the [)ro\ince aftei- the union, the next question is, whether any such riiiht or privilege has been att'ected by the Acts of liS90! In order to answer this question, it will be neces.sary to examine somewhat more closely than has hitherto been done the system established by the earlier legislation, as well as the change effected by those Acts. The JIanitoba School Act of 1N71, provided for a I>oard of Education of not less than lU nor more than 11 mend)ers, of whom one-half were to bo Protestants and the other half Catholics. The two sections of the l>oai- sui)port the Pidtcstant, the other moiety the Catholic schools. Certain ('istricts in which the jiopulation was mainly Catholic were to be considered Catholic school district^, and certain other districts where the pojjulation was maiidy I'rotestant we:etob(! considered Protestant school districts. H\ei-y yeai' a meeting of the male inhabitants of each distiict, summoned by the supi'iiiitciulent of the section to which, the district belonged, was to appoint trustees, and todeeide whether tlieir contributions to the support of the .school were to bo raised by subscription, by a collection of a rate per scholar, or by assessment on the property of the district. They might also decide to erect a school-house, and that the eost of it should be I'aised iiy assessment. In ca,se the father or guardian of a school child was a Protestant in a Catholic district or r/iv; viTsd, \w nught .send the child to the ■school of the nearest district of the other section, and in case he contribut"d to the school the child attended, a sum equal to what he would have been bm; .1 to pay if he had belonged to that district, he was exenq)t from payment to the school of the district in which he lived. Acts amending the (ducation law insonu: res) lects were passed in snbse(|uent years, but it is not neci;ssary to refer (o them, as in iNSl the Act of 1«71 and these amending Acts were ri'pealed. The Manitoba School Act, 1881, followed the same general lines as that of 1871. The number of the hoard of Education was fixed at not more than 21, of whom iL' were to be Protestants and t) Catholics. If a less nundjer were appointed the same relative proportion was to be observed. The Poard, as l»efore, was to resolve itself into two sections, Protestant and Catholic, each of which was to have the control MANITOBA SCHOOL CASE. u of the schools of its seftion, and all the books to be used in the schools under its control were now to he selei ted Ity each sci-tion. Then- were to ho, as before, a Protestant and a Catholic suptMnr ;• lent. It was jirovided that the establishment of a school district of one d(Muiniini,t sliould not prevent the establishment of a school district of the other noniinatif ui the same |)lac(;, and that a Pi'otestant and ( "atholic flistrict might include the same tei ruoiy in whole or in part. 1'he sum appro[)riated by the lej,'islature for common school purpo.ses was to be divided between the Protestant and i{oman Catholic sections of the |->oard in proportion to the number of children between the ages of live and fifteen residing in the \arious Protestant and Itonian Catholic school districts in the province where schools were in operation. With I'egard to local as.sessments for school pur|iplied. Their Lordships pa.ss now to the J)epartnu>nt of Hduc.ition and Public Schools Act, 1890, which certainly brought a great change. Under the former these Ibiiniui Catholics were not entitled cs smth to any representation on tht; lioard of Education or on the Advisory Hoard, which was to authorize text books for the use of jiupiis and to prescribe the forms ot religious exercises to be used in schools. All Protestant and Catholic school districts were to hf subject to the provisions of the i'ublic Schools Act. The public schools were ail to be free, iiiid to Ijc entirely non-.secturian. No religious exer- cisi's were to be allowed uidess conducted aciording to flm regulat ictns of the Advisory lioard, and with the au.hority ol' the school trustees for the district. It was made the duty <'f the trust,e(;s to take possession of all pulilic school property which had been acfiuired or gi\cn for pulilic school [)urposes in the district. The murucipal council of every city, town and village, was dir(>cted to hnv and tollect upon the taxable propeity within the municipality such sums as might lie re(|uired by the public sciiool trustees for scIkhiI purposes. Xo municipal couMcil was to have the right to exempt any pro|ierty whatever from school taxation. And it was exprt^ssly enacted that a'ly school not con- ducted according to all the pro\ isions of the Act, or the regulations of the hepartment of Ivluca ion, or the Advisory ISoard, should not be deemed a public st'hool within the meaiiin of the law, ami that such school should not particijiate in the legislative grant. Willi the policy of these Acts their Lordships are not concerned, nor with the reasons which led to their enact'uent. It inav be that as the })opu!ation of the province beciine in jiroportioii more largely Pro'estant, it was fouml incre;isiiigly ditlicult, espe- cially in sparsely populated districts, to work the system inaugurat'd in li^71,even with the moditii'ations introduced in later years, iiut whether this be so oi' not is iniina- terial. The sole (|uestion to be determined is whether a riglit or privilege which the IJoinan CithfiMc minority previously enjoyed has b(!en alTected by tiie legislation of 181)0. Their Lordships are unable to see how this (juestion can receive any but an athrmative answer. Contrast the position of th(> Koiiian Catholic-; pi ior and subsequenf t'.i the A<'(s from whit'h they appeal Mefoi-e these passed into law there existetl denomina- tional schools, <^f which the (ontrol and management were in the hands of i{oman Catholics, who coiiM select the books to be used ami tleterniino the character of the reli- gious teiiching. These schools receiviMl their proportionate sliare of the money contri- buteil for school purp0? Schools of their own denomination, con- It MANITOBA SCHOOL CASE. ducted according tu 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 the Catholic inhabi- tants remain liab'e to lo --d assessment for school purposes, the proceeds of that assess- ment are no longer destined to any extent for the suj)port of Catholic schools, but aftbrd the means of maintaining schools which they regard as no more suitable for the educa- tion of Catholic children than if they were distinctively Protestant in their character. In view of this compaiison, it does not seem possible to say that the rights and privileges of the lionian Catholic minority in relatiim to education, which existed prior to 1890, have not been attected. Mr. Justice Taschereau says that the legislation of 1890, having been irrevocably held to be hifm (■/>■<.<, cannot liav<» '"illegally" affected any of the rights or privileges of the Catholic minority. But the word "illegally" has no place in the subsection in question. The ajtpeal is given if the rights are in fact affected. It is true that the religious exercises prescribed for public schools are not to be distinctively Protestant, fur they are to be "non-sectarian," and any parent may with- draw his child from them. There may be many too, who shai't^ the view expressed in one of the athdavits in Barretts case, that there should not be any conscientious objections on the pait of Boman Catholics to attend such schools, if ade(]uate means be provided else- where of giving such moral and religious training as may be desired. But all this is not to th(> purpose. ^Vs 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 rooteti. If this had not been so. if there had been a system of publit; eflucation acceptable to Catholics and Protestants alike, the elaborate enactments which have been the subject of so much controversy and considei'ation would have been unnecessary. It is notorious that there were acute ditl'ereiices df opinion between Catholics and Protestants on the education (juestion ju'ior to 1870. This is recognizeil and emjiliasized 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 parliamentai'y comjiact, must be read. For the reasons which have licen given, their Lordships are of opinion that the 2nd subsection of section 22 of the .Manitoba Act is tlu^ governing enactment, and that the appeal to the Governor Ceneral in Council was admissible by virtue of that enactment on the grounds set forth in the memorials and petitions, inasnnich as the Acts of 1890 affected rights or privileges of the Roman C.itholic minority in relation to education within the meaning of that subsection. The further iiueslioii is submitted whether the Governor General in Council has power to make the declarations or remedial orders asked for in the memorials or petitions, or has any othet' jurisdiction in the jiremises. Their Lordships have decidi?d that the Governor (jleneral in (Council has jurisiliction, and that the appeal is well founded, but the ))articular course to be pursued must be determined by the authorities to whom it has been connnitted by the statute. It is not for this tribunal to intimate the jnvcise steps to be taken. Their general chaiacter is sutticiently detined by the .{rd subsection of .sectictn 22 of the Manitoba Act. It is certainly not essential that the Statutes repealed by the Act of 1890 8hf)uld be re-enacccd, 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 commends itself to, and adequately stipplies the wants of the great nuijority of the inhabitints of the province. All legitimate grounds of complaint would be removed if that system were supplemented by provisions which would remove the grievance upon which the appeal is founded, and were moditied so far as might be necessary to give effect to these pro\'i- sions. Their Lordships will humbly advi.se Her Majesty that the questions submitted should be answered in the manner indicated by tlie views which they have expressed. There will be no costs of this appeal. IMPERIAL ORDER IN COUNCIL [L.S.] At the Court at Osborne House, Tsle of Wight, The 2nd clay of February, 1895. Present ; The Queen's Most Excellknt Majesty. Lord President, A[ar((uess of Ripon, Lord Chamberlain, Lord Kensington, Mr. Cecil Rhodes. WHEREAS there was this day read at the Board a Report from tho Judicial Com- mittee of the Privy Council, dated the 29th Jnnuary, 1895, in the words following, viz. : — " Your Majesty having been pleased by Your (Jenoral Order in Council of the 23rd Novcmbor, 1893, to refer unto tliis Committee tlie nuittcr of an .Appeal from the Supreme Court of Canada, between Uerald K. Broj>hy, NoeChevrier, Henry NapoleonBoire, Roger Goulet, Patrick O'Connor, Francis McPhillips, Frank J. Clark, Joseph Lecomte, Michael Hughe;-, Henry lirownrigg, Frank Browurigg, Theophilus Tessier, L. Arthur Leveque, EdmondTrudel, Joseph Honort- 1 )ctjivien Lanibert, J can BaptistePoirier,(Jeorge Couture, J. Ern(!st Cyr, Frani;ois Jean Da\ id Dussault, Charles Edouard Masse, Frani,'ois Hardis, Joseph Buron, Louis Fournier, Phileas Trudeau, Edouard Guilbault, Romuald Gilbeault, Alphonse Phaneuf, W. Cleophas (Jlerman, Edward R. Lloyd, Louis Laventure and Louis J. Collin, all of the province of Manitoba, in the Dominion of Canada, on behalf of themselves, and of all other persons forming the Roman Catholic minority of Her Majesty's subjects in the said province, appellants, and 'he Attorney General of Mani- toba, respondent, and likewise the humble petition of the al)ove named appellants, setting forth that this is an appeal from certain opinions pronounced by the Judges of the Supreme Court, of tJanada, on the 20th February, 1894 : that the case in reference to which such opinions were rendered, was on the 7tli July, 1 ><9.'?, referred by the Gov- ernor GeiKiial 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 Supremo 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 tha case, and in this appeal turn upon the construction of certain .sections of " The British North America Act, ISfi?" and of "The Manitoba Act 1870 "and upon the effect of certain statutes of the province of Manitoba, in relation tt) education in that province ; that the following questiens were by the said case submitted for the opinion of the Supnune Court : — "'(1) Is the appeal referred to in the said Memorials and Petitions, and asserted ' thereby, such an appeal as is admissible 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 "I 14 MAXITOttA SCHOOL CASE. " '(2) Aio tlie j,'i'oun(ls set forth in the Petitions iuul AFoniorials 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 Connnittee of the Privy Council in the cases 'of Barrett rs. The City of Winnipeij;, and L(nj;an rs. 'J'he City of Winnipeg, dispose of 'or conclude the ai)pliciition foi- 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 l)een interfered with by the two Statutes of ISKO, complained of ' in the said Petitions and .Memorials ' .' '"(4) Does subsection ."{ of sect io'i 9.'5 of the British North America Act, 1807, 'apply to Manitoba' .' "'(.")) Has His Ivxcellency the (iovernor General in Council y)ower to make the ' declarations oi- rciiicdial orders v liitii are asked for in the said Memoi'iids and Petitions, 'assuming the material fa'ts ti'i\ilei,'e in relation to educa- tion " within the meaning of subsection "_' of section '2'2 of tiie Manitoba Act, or establish a svstem of separate or ilissenlient schools within the meaning of subsection '.\ of section '.)!! of the liritish North America Act, ISti",' if said section !t.'5 be found to lie applicable to Manitolia; and if so, did the two Acts of 1S90 complained of, or either of them, atiect anv right or jirivilege of the minority in such a manner tl.'t an appeal will lie thereunder to the uncil, 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 apjteal into consideration and that the said opiidons of the judges of the Supreme Court of Canada of the 20th l'\'bruary, lSlt4, may be reversed or varied or for other relief in the })remises." "The Lords f)f the connnittee in obedienc(> to Your Majesty's said general order of reft nee, have taken the said huuible petition and appeal into consideration, and having heard counsel for tli(> paities on both siiles, their lordsliips do this day agree humbly to report to Y''our .Majesty as their opinion that tln^ said (juestions hereinbefore set forth ought to he, answered as follows : — "(1) In answer to the first (juestion : — That the appt-al ref(>rred to in the said memorials and petitions, and asserted thereby is such an a]>])eal as is admissible under subsection 2 of section 22 of the .Manitoba .Vet, .'J.'i Vict. (1870), c. 3, Canada. " (2) In answer to the second question : — That grounds are set forth in the petitiftns and memorials, such as m.iy be the subject of a)tpeal under the authority of the sub- section of the Manitoba Act iunnediately above referred to. MANITOBA SCHOOL CASE. lA )f tlie iwor tpeal, and that the sum of £300 sterling so dcjiosited by the appellant^' as aforesaid, be rep.iid to tlnmi.'' Her .Majesty liaxing taken the said report into consideration, was pleased by and witli the advi(U' of Her I'i'ix y ( 'ouncil t'l approve tliei'cuf and to ordei' as it is hereby ordereil that the recomniendalions and directions therein contained be punctually observed, obeyed, and carried into elFect in each and every particular. Whereof the (lovernor (lenerai of the Dominion of Canad.i for the time being, and all other persons whom it may concern are to take notice and govern tlieinscl.es accordingly. C. L. PEEL. der of laving bly to forth HI c] n (■> 1" IV 111 of I"- re (U (hi cai in; an till H( aril sill cor am riii oi< as i suj pas can res] sid( wor 833. REMEDIAL ORDER IN CJOUNCIL At tiik Wovkknment IToitsk at Ottawa, TuKSDAY, tlu' lOtli day of March, 1895. Pirsenl : Ills KxCKI.t.ENCY TMK (ioVKRNOK CiKNBKAL IN CoiINClL. Tlie Coiiiiiiittoe of the Privy Council have the honour to report that by the Act jiHssi'd l)y tho rnrlianient of Canada in the thirty-third year of Her Majesty's reign, chapter tliree, intituled ; " An Act to amend and continue tlie Act 3'J and t'J3 Victoria, chapter 3, and to ostalilisli niul provide for the (lovernment of the Province of Manitoba (commonly called and lieicinaftcr ciled as the Manitoba Act") which Act was contiruied by "The Hritish North America Act, 1871 " (31-35 Vic, cap. 28, Imp.) it is provided that: " In and f(jr the Province of Manitoba tho said Legislature of the province may exclusively make laws in lelation to education, subject and according to the following provisions : 1. " Nothing in any such law shall p'-ejudicially 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 l^nion. '1. " An Appeal shall lie to the Governor (Jeneral in Council from any Act or decision of the Legislature of the I'rovini-e or of any pro.incrial authority affecting any right or privilege of the Protestant or Roman Catholic minority of the Queen's subjects in relation to (Klucation. 3. " In case any such provincial law as from time to time seems to the Governor- (Jenoral in Council requisite for the due execution of tho provisions of this section is not duly executed by the proper provincial authority in that behalf, then and in every such cast , ar.d as far only as the circumstances of each case reipiire the Parliament of Canada may make remedial laws for the due execution of tho provisions of this section and of any decision fif 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 Htir Majesty's reign, chapter four, which may be cited as "The Manitoba School Act" and by tho Acts amending the same, the Roman Catholic minority of H<' r Majesty's subjects in Manitoba acquired the rights and privileges in relation to educaiion thereby conferred upon them, including the right to build, maintain, equip, manage, conduct and sui>port Rf the Konuin Catholic minority of t he Queen's subjects in relation to education. 4. "That it iMii.'ht he declared that to His Kxcellency the (Jovernor (ioneral in Council, it seems i<(|uisiie tha. ilic i)rovisiiinsof the Statutes in force in the Province of Maiutoha, print' tu the passaf;e of the said Acts, should he re i-nacted in so far at least as may he neccssarv to secure to the iloman Catholics in the said pri>vince the right to build, nuuiitain, et|uip, manage, contluci and support these schools in the manner pro- vided for hv the said Statutes, to secure to them t heir j>ropor(ionate share of any grant made out of the puhlic funds fur the purposes of education ami to relieve such niend)ers of the Roman Catholic Cluir<'h as Clint riliute to such lioman Catholic schools from all paymontor ccmtrihution to tlie support of any other schools, or that the said Act of 1890 should he so niodilied or ametuled as to aiVect such jiurposes. 5. " And that such further or other declaration or order might be made as to Ifis Ecxellency the (!o\eiii(ir (icneral in Council might, under the circumstances, seem proper, and that such directions might he given, ]irn\isioiis made and all things done in the premises foi the purpose of atl'ording relief to the said Homan Catholic niiiu)rity in the said province as to His Ivxicllency the (loveriior (Jeneral in Council might seem meet." That the said petition v.as referied by the Governor (teneral in Council to a sub- committee of Council. Tiie stih-coinniittee sat on the "JOth day of Novend)er, 181)2, when Mr. Ewart, Q.C., on behalf of the Moinan Catholic minority, jiresented the said petition and stated reasons in su]p[)i>rt of tin' right of ap|ical. That the r. port of the sub-coumiittee thereon was approved hy Older of His Excellency in Council on the "JOth day of Decendier, 18'J2, and the 21st day of .lanuary, I8t)3, 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 suhcommittee, it is staLetl as follows • - As to the recpiest which the petitioners make in the second paragraph of their prayer, viz. : — " That it may be declarecJ that the said Acts (o."! Vic, chapters 37 and 38) do prejudicially affect the rights and privileges with regard to denominational schools which the Roman Catholics had by law or practice in tin; Province of Manitoba at the time of the union," the suhc(innnitt(>e are of opinion that the judgment of the Judicial Committee of the I'rivy Council is conclusive as to the rights with regard to denomina- tional schools which the l{oman Catholics had at the time f)f the union, and as to the bearing thereon of the Statutes complained of, and Your K.xcellency is not, therefore, in the opinion of the sui) committee, properly called upon to hear an appeal based on those grounds. That judgmcMU, is as binding on Your Kxcellency as it is on any of the parties to the litigation, and, theieforo, 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 <.)f ajijieal under the sections of the British North America Act and of the Manitolja 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 jiowers of the Legislature of Maiutoba, but it remains to be considered whether the appeal should be entertained and heard aa an appeal .against Statutes vhich are alleged to have encroached on rights and privi- leges with regard to denominational schofils which were acquired by any class of perRona iu Manitoba, not at the time of the union, but after the union. MANlTOItA SCrrnOL CASE. Tlin sub-cointnittee were achhvasetl \>y counsel for the potitioners as to tlie right to have th(! iippfal hoiird, ami fvoni liis ir;,'imitiit, us woll as from the dooumonts, it would soeiu that tho fullowitif^ arc the ^;rouiids of ihi^ iip|i('iii. A uomplt'tf system of separate and dcndiiiinational schools, /.'., a system providing for j)ublie schools and fur separate Catholic sdionls, was, it is allej^ed, established by Statute of .Manitol)a in IS71 and liy a series of sui)sei|uent Ads. Tiiat system was in operation until the two Acts of ISOO {elia|iters .'i7 and .'IS) wen* jiassed. The '.Kh'd section of the hritish North Aniei'ica Act, in conferring; power on the provincial legislatures, exclusively, lo make laws in relation to education, imposed on that {Miwer certain restrictions, one of which was (sntisectiun 1) to preserve the right with respect to denominational schools which any class of persons had by law in tho province at the union. As to this restrii-tion it seems to impose a condition on the \ali(lity of any Act relating to education, and the sub oommitteo have already observed that no tpiestion, it seems to them, can arise, since the. (lecision of the Judicial Com- mittee of the Privy Council. The third subsection, liowevtM', is ns follows ; — " Where in any province a system of separate or dissentient schools exists l>y law at the uidon, or is thereafter establisheii by the legisiatuif; of the province, an appeal shall lie to the Oovernor (■eniMal in Coumil, from any Act or decision of any provincial authority, affecting any right or privilege of the Protestant ov Koman ('atholic minority of the t^ueen's subjects in relation to educaiion.'' The Manitoba Act passed in 1^70, by which the Province of Manitoba was con- stituted, contains th(f following pro\isions, as rcgar the public. It is apparent that several other ((uestions will arisi , in addition to those which were discussed by counsel at that meeting, and the sub com mittee advise that a date be fixed, at which the petitioners, or their counsel, may be heard with regard to the appeal, a.-coi-ding to their tirst request. The sub-committee think it proper that the Government of Manitoba should have an opportunity to bo represented at the hearing, and they further recomiiv nd, with that view, that if this report should be approved, a copy of any minuti* approving it, and of any minute Hxing the dat^ of the hearing with n^g.vrd to the appeal, be forward ed, 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-conmiittee, the attention of any person who may attend on behalf of the petitioners, or on behalf of the Provincial (ioverninent, should be called to certain preliminary questions which seem to arise with regard to the appt>al. Among the questions which the sub i iiumittee regard as preliminary are the fol- lowing : — (1.) Whether this appeal is such an appeil as is contemplated by subsection 3 of section 93 of the British North America xVct, or by subsection "J of section 22 of the Manitoba Act. (2.) Whether the grounds set forth in the jietitions are such as may be the subject of appeal under either of the sub-sections above referred to. (3.) Whether the decision of the Judical Committee of the Privy Council in any way bears on the application for redress based on the contention that the rights of the Roman Catholic minority whish accrued to them after the union have Vieen interfered with by ie two statutes of 1890 before referred to. (i.) Whet' er sub.section 3 of section 93 of the British North America Act applies to Manitoba. (5.) Whether Your Excellency in Council has power to gram .such t>itlers as are a.sked for by the petitioner, assuming the m.'erial facts to be as "stated ir. th.» petition. (G.) Whether the Acts of Manitoba, passed before the sessi . ■ • \'u)' ■ conferred on the minority a "right or privilege with respect to education,' wiliiin the meaning of subsection 2 of section 22 of the Manitoba Act, or established " a .system of separate or dissentient .rchools," within the meaning of subsection 3 of section 93 of the British North AnKnca Act, and if so, whether the two Acts of 1890, complained of, artect " the right or pri vilej^e " of the minority in such a manner as to warrant the present appeal. Other quesHoni < ? a lil' ) charac':er may be suggested at the hearing, and it may be desirable thai, ar,'»r.men*. M.ould hi 'leard upon such preliminary points before any hearing shall take plvc? ou the meri .,< of the appeal. MANITOBA SCHOOf. CASE. arise, in sul» I'tini , may he att»Mul - api)li('s That aiKrli appeal accorditij^ly caini* on for hoariiix liefore the (Jovernor (lenoral in Couiu'il oil the "Jlst (lay ct ' vmiary, IHD.'l, in tim proscnco of ckuiisoI for the Roman Catholic minority, tlio I'rovini' of Manitohii, thoujjh cluly iiotiHcd, not appciirinj; and wIk^ii after luMiiiiiK what was nlio^^cd on hehalf of tliH Utiinan (.'atholic: minority, it was consifk'ttid that certain c|iicsti<»r»s oi law ;nisiin» upon tlm appeal should be referred to the Sujjreme (louit of Canadii fill ' arinjur and iisidfr.ition pursuant to the Supreme and KxcluMpier Courts A< t ( Ueviseit **»»tutps ot' C mada, chapter l.'Jo) us amended liy the Act (»f I.S'JI {'t\!)') \ I foria, cap. . ' and tii't the further hcai ; should be adjourned until the advice of ilie cr)urt had Jx;en ohtaincit thereon. Tliat pursuant to the Supreme Mid I'iXi lietpier Cour' Aits us so aincii ', the fol- lowing; ipiestions were therefor*! inferred to the Huprem* < oui't of Caiuu. hy the (iovi'iioi (Jeneral in C uncil, miinely : — (1.) " Is the appeal leferred to in the said ii. lorials ad petitions and a-^erted tlierchy, such an appeal a'^ is iidmissihle liy subseci >ri ;< of m lion !).') of 'The liriti.sli North America .\ct, IStlT,' or I)j sul)secti(m 2 of si ion 'J2 of 'The Afanito' a Act,' ■V Victoria (iS70), chapter '.\ of Canada I (2.) " Are the grounds set forth in the petitions and meinurials sucli as may he Mie sul'ject of appeal under the authority of the subsections above referred to, or either i them?" (3.) " DotM the decision of the Judicial (,'oinmittee of tli' Privy Council, in the ciise of Harrett r.i. The (Jity of Winnipef;, and Ijo^'hii vm, Tlie city of Winnipej;, dispose of or i'oiiclnde the application foi- redress ha^ed on the i-onteiitioii that the riyhls of the Uoman Catholic niimirity whii'h accrued to them after the uiimh under tiie Statutes of the pro\ince, has been intei'fered with by the two Statutes of 1^' *, complained of in tlie said petitions ami memorials. (4.) "Does the subsection 3 of section 03 of 'The Hritisti North America' Act, 1867,' apply to .Manitoba 1" (5.) "Has His I'iXcelloncy the (tovernor ('eneral in Council newer to make the declarations or remedial orders which are asked for in the .said mein rials and petitions, assuming the material facts to be as stated ther«'in, or has His Kxcc, ■ncy the Covernor General in Council any other jurisdiction in the premises? (6.) " Did the Acs of Manitoba rolatinn tt> education, passed pri. r to the session of 1 890, comer on or continue to t he minority a " rij^ht or pri vilejje in rela ion to education" within the meaniiii,' of subsection 1' of section 22 of 'The Manitoba A t,' or estab ish a system of separate or dissentient schools within the nieanini; of subse< tion 3 of .secticm 1)3 of ' Th(! Ib'itish N'orth Amerii^a Act, l^3 be fo oul to be applic- able to Manitoba ; and if so, did the two Acts of IS90 complained of, o either of llicm affejt any rij^iit oi- privilege of the minority in such manner that an appeal will lie there- under to the (Jovernor (leneial \n Council ? ' That upon the hearing of the said reference before the Supreme Court of Canada, counsel for the Moman Catholic minority of Her Majesty's subjects in the Province of Manitoba, ami t-ounsel fortius J'rovince of Manitoba appeart^d before the Sii[)reme Court, as did also tli.> Solicitor (Jeneral for Canada, who appeared to submit the < ase on behalf of Her Majesty's Crown ; that the Counsel for the Pn>vince of Manitoba not desiring to be hears the Supremo Court pursuant to section 1 of the Act of 1891, hereinbefore referred t.., re<(Uisted counsel to argue the case in the interest of the said jirovince, and counsel thereupon appeared aiul ai'gui'd the case for tlie said province as did also counsel for the Moman Catholic minority as aforesaid. That the case came on for argument before live jiulges of the Supreme Court, who, on the 20th February, 1894, delivered their 0|>inions thereon in tht! manner provided by the Statutes : That in the result the opinion^ «// tie- judges of the Supreme (^lurt showed a majority of three judges out of five foi a Tie^i ne answer to all the six questions submitted for the opinion of the Supreme Ciairi That the Roman Catholic minority feeling aggrieved by the said opinions, presented a petiti.n to Her Majesty in Council, praying for special leave to app-al tlui-froni to Her Majesty in Council and by Her Majesty's Order in Council of the 27th JuiK, 1H94> Ivokve to appeal was granted accordingly. 22 MAXlTOliA SCHOOL CASE. Tli.it sm-h appeal to I [er M.ijt'sty in Council was li\ (MU'd judi^nient aliowini; tlir appeal and reversini; theopiinoii of the SuprcMne Court of C:uiada, their Lordships statiiii; that tliey were unable to s(>o how the (]uestion as to whether a rii;ht or ]iri\ile;ie wiiicli the Konian t^atliolic minority pre- viously enjoyed had Ix-n all'e ted by tiie Icifisialion of lf<',tO could receive any but an allirinative answer ami added : " Contrast the pr.sitiin of the Konian Catholics pi'ior ami sul)se(pient to the Acta from wliidi they appe.il. Hefoi'c thes(> passed into law tliere existed dtmoininationid schools of which i lie cont rul imd maiia^remeiit were in the hands of Honian Catholics who could select the l)ooks to be ncd and dciei'mirie the character of the religious toaeli- inys. These schools recei\'ed thi'ir jjroport ionale share of the money contributed for school purposes out of the tteneral taxation of the province, and the money raised for those purposes by loral assessment was, so far as it fell upon Catholics. ap|)Iied oidy towards tht> support of (Catholic schools, \\'liat, is the position of the Homan C'atliolic minority under the Acts of 1S90? Schools of their own denomination, conducted accord- ing to their views, will rrccive no aid from the State. They must ilepend entirely for their supjiort upon the cniil ributions of the Ibiman Calholircominunity, while the taxes out of which State aid is ^I'antid to the schools provided for by the statute fall alike on Catholics and Protestants. .Abireover, while Catholic iidialiilants riMnain liable to local assessment for school purpo-^es, the proceeds of that assessment are no longer destined to any extent for the supi'ort of Catholic schools, but atVord the means of maintaining schools which they I'egard as no more suital)le tor the education of Catholic children than .if they were distinctly Protestant in their I'haracter. " In view of this coiniiarisnii, it does not seem possible to say that the rights and privileges of the Uouian Catholic min.'rity in relation to education which existed prior to 18!t0 have not been affected." Their bordshijis also stated : — "As a matter of fact the objection of Homan Catholics to schools such as alone re- ceive State aid umler the Act of IS!)0 is conscientious and deeply rooted. If this had not been so, if there had been a system of public cilucation accejitable to Catholics and Protestants alike, the elaborate enactments which have been the subjc^'t of so much controversy and consi(l(>ration would hii\(! b-en uiniecessary. It is notorious that there were acute (lilVerences of opinion between (,'atho'ics and Protestants on the education ipiestion prior to 1^70. This is recogni/cd and eiiiphasi/ed in almost vsi^vy line of those eiiactincnts. There is no doubt eillii'r what the points of di'lerence w(!fe, and it is in th(- light of these that the I'l'nd section of •'The .Manitoba Act" .,f 1870, which was in truth a Parliamentary c impact, must be read." And in con, l;!-)')ii their bordships added: — '■ For the reasoi ■ which lia\c lieeti given, their Lordsliips ar<' of o|iinion that the 2iul subsection nf 'I'l of " The Manitoba Act. " is the governing enactment and that ap- peal to the (;overiior(!eneral in Council was admissible by virtue of that enactment, on the grounds .sc' fo tli in the memorials and petitions, inasmuch as the Acts of 1890 affected rights or piivilegcs of the Uoman Catholic minority in relation to education within the meaning of that subsection. The further ipiostion is submittd whether the {Governor (icneral in Council has power to make the- declarations or remedial orders asked for in the memorials or petitions or has .any other jurisdiction in the premises. Their Lordships have decided that the Covernor (leneral in Council has jurisdiction and that the appeal is well fouiuled, but the jiarticular course to be pursued must i)e determined by the authorities, to whom it has been c(. The ('ity of AN'innipeg and l.iogan vs. The City of Winnipeg, does not dispose of or conclude the application for redress based on th(! contention that the right.« of the Houian Catholiti minority which accrued to them after the union under the St.-itutes of the piovince have been interfered with by the two stiitut(>s of 18!)(), complained of in the said [)etition ;ind memorials. 4. "In answei' to the llh (piestion ; That subsection .'i of .section O.'i of 'The Ih'itish North .America Act 17,' did not apfily to .Manitoba. ;"). "In answer to the "ith (piestion: That the (Jovernor Ceneral in Council has jurisdiction and tin; .\ppeal is well founded but that, the |);irticular course to be pursued must b(! ileltMinineil by the authorities to whom it has bctui committed bv the Statutt; ; that the general character of the^.t^!ps to b(! taken is sulliciently ilernuMl by subsection 3 of section S'J of 'The Manitoba Act ' of 1870. (». " In answer to the (1th ipiestion : That tin? .\cts of Manitoba relating to education pa-^sed prior to the .session of 181)0, did confer on the minority a right or privilege in relation to edtu'ation within the meaning of subs(>ction 2 of section '2'2 of 'The Mani- toba Act' which alone applies ; that the two Acts of 1890 complained of did afl'ect a right or privilege of the minority in such a maimer that an appeal will lie thereunder to the (iovernor (Jeneral in Council."' And Her Majesty at the Court at ( tsboriK; Mou.se in the Isle of Wight, on the 2 .d day of Kebruaty, 181)."), afttn- taking the said report into consideration was pleased by and witli the advice of Her Majesty's I'rivy Council to approve of the said report of the Lords of th(> Counnittee and to order that " the reconnnendation and directions therein contained be jainctually oliserved, obeyed and carried into elli'ct in each and evei'y particular, whereof the (lovcirnor (Jencral of the |)ominion of Canada for the time being and all other persons whom it may concern, arn reijuired to take notice and govtjrn tlunnselves accordinidy. " 'I'hat after the iletermination of the said nuestions by I lei- Majesty in Council .is aforesaid the said a) peal of the Uoman (Catholic minority of Her Majesty's subj(>cts in .Manitoba from the two Statutes of the liCgislature of the I'rovince of Manitoba lierein- before mentioned came on for further hearing before Your K.xcellency in C-'ouncil on the 2()th day of I'Vbiuary, and the .')th, (Itli and 7th d.'iys of .March, I8',(."), in the presence of (/'ounsel both for the Homan Catholic minority of Her .Majesty's subjects in the I'rovince of .danitoba aiid for the sai necessary to give effect to the provisions restoring the rights and privileges in paragraphs (a), (b) and (c) hereinbefore mentioned. The Connnitte desire to add that : Their Lordships of the Judicial Committee state in their judgment : — " Bearing in minil the circumstances which existed in 1870, it does not appear to Their Loidships 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 preponderant, and rights which had come into existence tinder different circumstances were interfered witii, to give the Dominion Parliament power to legislate upon matters of education so far as was necessary to protect the Protestant or Cathi^lic 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 tliat no cotirse is open con- sistent with both the letter and the spirit of tlie constitutiun 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 th.at 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 ihe Committee do not perceive upon what principle consistently witii a declara- tion that effect is not to be given to this appeal, the Protestant or lioman Catholic minority in Quebec or Ontario could invoke the corresponding provision of section 93 of " The Piritish 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 reconmiendation, 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 re(|uisite will confer upon Parliament authority to pjuts sucli a law. In this con- nection, it was urged by t'ounsel 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 concerned. The Committee, without necessarily adopting this view, observe tliat .section 22 of " The Manitoba Act " may admit of that construction. The Coiiniiittee, theretV)re, recom- mend that the Provincial Legislature be requested to consider whether its action upon the decision of Your Kxcellcncy in Council should l)e permitted to be sucli as wliile refusing to redress a grievance which tln^ higliest court in the Empire has declared to exist, may compel Parliament to give the relitif of which under the constitution the Provincial Legislatute is the proper and primary source, therel)y according to this view, permanently divesting itself in a very large measure of its authority and so establisiiing in the province an educational system which no matter what changes jnay take place in MANITOHA SCHOOL CASE. 26 ret'oiu- the cirt'uinstiiiices of tlic country or tlio views of thf people, cannot \m' altered or repealed by any legislative IkkIv ni C'anada. The Connnittee, further and for the reasons hereinbefore stated, reeoniinend that if Your Kxeelleney in Coumil should be plejised to approve of this report, Your Excellency in Council do make an Order in the premises in the form a!id to the effect as set forth hereuntf) submitted, and that a certifiefl copy of this Minute and of the said Order be transmitted to His Honour the Lieuteuant-CJovernor of Manitoba for his information and that of his "government and Provincial Legislature, also that a certiiied copy of this Minute and of the said Order bo transmitted to Mr. Ewart, Q.C., of Winnipeg, as repre- senting the Roman Catholic minority of Her Majesty's subjects in Manitoba. All of which is respectfully submitted for Your Excellency's approval. JOHN J. McGEE, Clerk of th<- (Jiiefni'ti Privy Council for Canada. 20-3 26 MANITOBA SCHOOL CASE. (Sd) ABERDEEN. Privy. Seal. 834. At THK GOVLIIN.MENT IfoUSE AT OTTAWA, Thi'Ksday, the iMst day of .^rart•h, 1895 I'resent : His Excellency the Governou (ienekal. The Honourablo Sir Mackenzie Hmvell. Tlie Honourable .1. A. Ouimet. Sii-Adolplie P. Caion. T. Mayiie Daly. .John Costigan. A. W. Angers. Cieorge K. Ko.ster. W. 15. Ives. 8ir diaries Mihhert Tupper. A. H. Dickey, .lolin Haggart. W. H. Montague. In Council. Whereas, on the -(itii day t)f N'ovenilier, 181)"2, a ))etilion by way of apj)eal under the provision of section 'I'l of chapti'r ."5 of the .Acts of the Parliament of ('anada, passi;d in the 3.'h'd yeai' of Her Majesty s re'gn, and intituled " An Ad to aiiK'nd and continue "the Act ',V1X\ Victoria, chaptei- 15, and to estal»!ish and pros ide for the government "of the province of Manitoba (conimonly called 'The ^fanitoba Ac-t ') and conhrnied by "The British North America .\ct of 1S71," was ]ii<'st'nted to Mis {''xcellency the (Jover- nor (ieneral of ( 'anada in ( "ouncd, by and on behalf of the Koinati Catholic minority of Her Majesty s subjects, in the pro\ince of Manitoba, which j)etition, among other things, alleged in effect that by certain Acts of the legislalurt- of the province of Manitoba, }iassed after the union, and l)y an Act passed by the .said legislature in the forty-fourth year of Her Majesty's reign, cha|)ter four, which may be cited as "The Manitoba Hchool Act"and by the .\cts amending the sanu-, the Kunian t'atholic min- ority of Her ^lajesty's subji'cts in .Manitoba acipiired the rights and ])rivileges in relation to education thereby conferred upon them, including the right to build, maintain, eijuip, manage, conduct and support lioman Catholic .schools in the manner provided by the said statutes, the I'iglit to a [iroportionate sliare of any grant, made out f»f the public futids for the purposes of eilucation, and the right of t'.xempiion of such niend)ei"s of the lioman Catholic Church, as contribute to such lioman Catholic schools, from all payments or contrii)utioiis to the support of any other schools. That subsequently, in the HSi'd year of Her .Majesty's leign, two statutes wi^re passed by the legislature of the province of .Manitoba, relating to edijcatif)n, which Statutes came into force on the first day of May, 181)0, and .arc intituled respectively " An Act respecting the Dispartment of Kducation," and '"An .\ct respecting Public Schools," and that the effect of tlit; two last named statutes was to repeal the previous Acts of the province of Matdtoba in relation to education, aiul to de[)rive the Komiiri Catholic nnnority of the i-ights and privih-ges which it had acipdred under such previou.s statutes ; and by the said petition, the said Roman Catholic nnnority prayed among other things : — That it might be declared that the said hist mentioned Acts did affect the rights and privileges of the said Roman Catholic nnnority of the Queen's subjects in relation to education : — MANITOliA SCHOOL CASE. m That it might be declared that to His Excellency the (lovernor General in Council it seems requisite that the provisions of the statutes in force in the province of jVIanitoba. prior to the passajje of the said Acta, should be re-enacted in so far, at least, as may be necessary to secure to the Homan Catholics in the said Province the right to build, maintain, equip, manage, conduct and support their schools in the munner provided for by said statutes, to secure to them their proportionate share of any grant made out of the public f lids for the purposes of education, and to relieve such members of the Roman Catholic Church, as contribute to such liomaii 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 effect sucli purposes : — And that such further or other declaration or order might be made as to His Excellency the (lOvcrnor (ieneral in Council should, under the circumstances, seem proper, and that such directions might be given, j)i't>visions matle, iind all things done in th^ premises, for the jturposo of affording relief to the said Roman Catholic minority in the said Province, as to His Excellenccy in Council might seem meet. And whereas the 'J6th day of February, Ic-^O"), having been appointed for the hear- ing of the said appeal, and the same eom'.ngon to l)e heard on that day, and on the oth, 6th and 7th days of March, 18!)f), in the presence of counsel fii- th(! Petitioners (the said Roman (>atholic minority of llor Majesty's subjcicts in the province of Manitoba) ami as well for the f)roviuce of Manitoba, upon reading the said petition and the statutes therein referred to, and upon iieai-ing what was allt^ged by counsel on both sides. His Kxeelleney the (lovernur tSfuiei-.il in Council w.is pleased to order and adju !ge, and it is hereby ordered and adjudgeil, that the said appeal be, and the same is hertiby allow(!d. in so far as it i-elates 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 Flis I'^xeelleiicy the (Jovernor (ileneral in Council was pleased to adjudge aiiil declare, and it is iicreby .idjudgefl and ileclared that by the two Acts passed by the Legislature of the [uiiv ince of Manitoba, on the first day of May, I8!)0, intituled respectively " An Act respecting the Department of K(lm;ation," aiul " An Act respi-eting Public Schools,' thi' I'ights and pi'ivileges of the Homan C/atholic minority ftect to the pro- visions restoring the rights and pi'ivileges in paragraphs («),(/>), (f), hereinliefore men- tioned. Whereof the laeutenant tJovernor of the province of Manitoba for the time being, and the legislature of the saifl province, and all persons whom it may concern, are to take notice and govern themstslves accordingly. JOHN .1. McGEE, Clerk of the. Queen' x Privy Council /or Canada.