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Les diagrammes suivants iilustrent le mAthode. 1 2 3 1 2 3 4 5 6 DOBIE vs. TEE TEUFORALITIES BOARD IN THK SUPERIOR COURT ; MOISTTREAL, vJ TJ X) a- Di^ E IsT T BY THE HONORABLE MR. JUSTICE JETTfi, 29th DECEMBER, 1879. MACMASTEE, HALL & GREENSHIBLDS for Petitionbr. HON. J. J. C. ABBOTT, Q.C., M. M. TAIT, Counsel. JOHN L. MORRIS for Respondents. STRACHAN BETHUNE, Q.C., C. P. DAVIDSON, Q.C., Counsel. (From The Oazette, January 5, 1880.) Reverend Hobert Dobie, petitioner, vs. BOAKD FOR THE MANAGEMENT OF THE TEMPORA- LITIES Fund of the Presbyterian Church op Canada in connection with the Church of Scotland, et al., respondents. The Reverend Robert Dobie, a minister of the Presbyterian Church of Canala, in con- nection with the Church of Scotland, a mem- ber of the Synod of the said Church, and a minister of the Saint Andrew's Church and congregation of Milton, in the Province of Ontario, obtained an injunction, the 31 De- cember, 1878, against the Corporation, re- spondents, and against the Reverend M. M. Gordon, Cook, Jenkins, Lang and Mackerras ; M. M. Morris, Walker, Darling, Dennistoun, Mitchell and Sir Hugh Allan, members of the Huid corporation, ordering them to ab- stain specially from disposing of the fund of the said Corporation, by making any pay- ments therefrom, and generally from all acts of administration of the property under their control, until further order of Court. In spite of the proceedings of the respondents, to have tins order set aside, the injunction thus far stands, and the question now before me is on the merits ofr the petitioner's claim. Although I have already given, in connection with an incidental proceeding in this case, an analysis of the legishtion on which the present litigation is based, the importance of the suit, and the large number of persons, not parties thereto but interested th(!rein, almost equally with the litigants themselveH, leads me to recur to this legisla- tion, so as to make the claims of the parties clear and easily understood. The Quebec Act (1774) had guaranteed to the Roman Catholic clergy, the right they possessed before the cession of this country to Fingland; to demand and receive their customary dimes or tithe.s. The Protestant clergy saw in this guarantee a privilege accorded to the Roman Catholic Church which justified them in claiming a cor- responding favor. Jn 1791, by the Statute 31 Geo. III., cap. 31 (amending the Quebec Act), the Imperial Parliament, wishing to acknow- ledge this claim, made provision for the sup- port of a Protestant clergy in the two Provinces of Upper and Lower Canada, in sanctioning an appropriation by the govern- ments of these two Provinces, of a reserve for this purpose of certain lands from the public domain. These lands thus appro- priated were styled Clergy Reserves. In 1827, by the Act V and 8 Geo. IV., the Impe- rial Parliament authorized the sale of a part of these lands, on condition that the pro- ceeds were invested in the public funds and the revenues exclusively ap- plied to the maintenance of a Protestant clergy. In 1840 the Statute 3 and 4 Victo- ria, ch. 78, sanctioned the sale of all these lands, under certain restrictions as to the quantity to be sold annually. In 1853 the Imperial Parliament authorized the Legisla- ture of the United Province of Canada to legislate for the management of the Clergy Reserves, with this restriction, that the moneys theretofore given to the clergy of the churches of England and Scotland, or to any other denomination of Christians, should not be withheld, reduced, or in any manner affected by the legislation of the said Province during the lives of the persons having a right in the said annual grant, (16 Victoria, cii. 21). By virtue of the powers conferred on it the Legislature of Canada en- acted in 1854 (18 Victoria, ch. 2) that the proceeds of the lands con- ■i|i i Htituting the "Clergy RcservcH" Hituated in Upper Canada and those in Lower Canada should form two Hepurate and diHtinct funds, wiiioh Nhould lie styled, reniiet-tively, " The Municipal Fund of Upper Canada" and the " Municipal Fund of liower Canada," and that, conformably to the Imperial Acts, these funds should he charf,'ed firstly, and in pre- ference over any other charge, with the pay- ment of the ahove-mentioned annual allow- ances tt) the Protestant clergy, son. Esq., of Quebec, and the Hon. Thomas McKay, of Ottawa city, bo the Synod's (Commissioners, with full power to give the formal sanction of the Synod to such commutation as they shall approve, the said Commissioners being hereby instructed to use their best exertions to obtain as liberal terms as possible ; the Rev. Dr. Cook to be Convener ; three to be a quorum ; the deci- sion of the majority to be final, and their formal acts valid ; but that such formal sanc- tion shall not be given, except in the case of ministers who have also individually given them, the said Commissioners, power and au- thority to act for them in the matter, to grant acquittance to the Govern- ment for their claims to salary to which the faith of the Crown is pledged ; and to join all sums so obtained into one Fund, which shall be held by them till the next meeting of Synod, by which all further regulations shall be made ; the following, however, tc be a fundamental principle which it shall not be competent for the Synod at any time to alter, unless with the consent of the Ministers granting such power and authority ; that the interest of the fund shall be devoted, in the first instance, to the payment of £112, 10s each, and that the next claim to be settled, if the Fund shall admit, and as soon as it shall admit of it, io the jE112, 10s; be that of the Ministers now on the Synod's Roll, and who have been put on the Synod's Roll since the 9th May 1853 and also, that it shall be considered a fundamen- tal principle, that all persons who have a claim to such benefits, shall be Ministers of the Presbyterian Church of Canada, in con- nection with the Church of Scotland, and that they shall cease to have any claim on, or be entitled to any share of said commu- tation Fund whenever they shall cease to be Ministers in connection with the said Church. 2nd. That so soon as said commutation shall have been decided upon, and agreed to by the said Commissioners, the Rev. John Cook, D. D., of Quebec, shall be fully empowered and authorised and this Synod hereby delegate to the said Rev. John Cook full power and authority to endorse and assent to the several Powers of Attorney from the individual parties on behalf of the said Synod and in their name, and as their Act and deed, as evidencing their assent thereto. 3rd. That all Ministers be and they are here' enjoined and entreated, (as to a one Tlie vide of: 3 this Id in lution That lation, be ef- ttthie- Cook, Mont- x, and ity, bo power nod to )vc, tho tnicted i liberal to be c deci- d their al sanc- tawe of ly given and au- raatter, Govern- lary to [fledged ; into one 1 till the 11 further allowing, lie which i5ynod at mnent of wer and the fund ce, to the ;the next ill admit, it, io the 1 now on ■n put on 1853 and mdamen- o have a inisters of a, in con- land, and claim on, commu- ease to be id Church, ition shall reed to by John Cook, iwered and delegate )owcr and the Kcvei-al individual ,id Synod Act and ; thereto. they are (as to a i measure by whicli, under I'rovidence, nut only their own i»reHent interests will be secured, but a permanent endowment for the maintenance and exteuHJon of rclij^fiouH ordinances in the church), to grant such authority in the fullest manner, thankful to Almighty God that a way so easy, lies open to them for ci.aforring so important a be- nefit on the church. 4th. That the aforesaid Commissioners be a committee to take the necessary steps to get an Act of Incorpora- tion for the management of the General Fund so to be obtained ; the aforesaid Com-" missioners to constitute the said Corporation till the next meeting of Synod, when four more members shall be added by the Syn(Hi." Agreeably to this resolution all the ministers of the said church gave full power to the Commissioners, named for this purpose by the Synod, to arrange willi the Government, and to unite all the sums thus realized in a common fund, according to the terms of the said resolution. The commutation of the several individual rei lamations produced a sum total of ill 27,448 us Od. which the Gov- ernment handed to the commissioners named by the Synod. In 1858 these Commissioners, acting according to the instructions con- tained in the aforementioned resolution (§4), demanded and obtained from the Parliament of United Canada an Act creating a special corporation for the administration and the possession of this fund of £127,448 5s Od, and of all other sums by which it might thereafter be increased. This corporation received the name of " The Board for the management of the Temporalities B'und of the Presbyterian Church of Canada in con- n ction with the Church of Scotland" and is one of the respondents in this case. (22 Victoria, ch. 66). It is declared by tliis Statute that this corporation is created '• tor the management and holding of certain funds of the Presbyterian Church of Canada in connection with the Church of Scotland, now held in trust by certain commissioners, hereinafter named, on behalf of the said church and for the benefit thereof;" biit by the first section it is enacted that " such holding is subject always to the special con- dition that the annual interest and revenues of the said moneys and fund now in their hands shall be and remain charged and sub- ject, as well as regards the character as the extent and duration thereof, to the several annual charges in favor of the several minis- ters and parties severally entitled thereto, of the several amounts and respective charac- ters and durations as the same were consti- tuted and declared at the formation of the said funds and the joining of the same into one fund." •»•••» The second section of this statute then pro- vides for the mode of election and replacing of members of this hoard created a corpora- tion us aforesaid. According to the disposi- tions of this section, the board shall be com- posed of twelve members, five being minis- ters and seven laymen ; four of these mem- bers in order of seniority, viz., two ministers and two laymen retiring each year on the third day of the annual assembly of synod ofs.;d church, and being replaced by two ministers and two laymen elected by said synod. In case of death, resignation or ab- sence from the Province, or withdrawal from communion in said church, the vacancies siiall be filled by the other members of the board, subject to ratification of the appoint- ments thus made by the synod at its next ensuing meeting, so that, as stated in the second section, "this board shall always consist of twelve members, five ot whom shall be ministers and seven laymen, and all being ministers or members in full commu- nion in said church." The members of this board, thus organized, thenceforth adminis- tered the property of said church conform - alily to the powtsrs conferred on them without their right having ever been nuestioned until the occurrences which gave rise to tlie present litigation. It results from the facts proved, that from 1870 to 1874 a proposed fusion of the Presbyterian Church of Canada in con- nection with the Church of Scotland, with three other churches, viz. : The Canada Presbyterian C/hurch ; the Church of th«4 Maritime Provinces in connection with the Church of Scotland ; and the Presbyterian Church of the Lower Provinces, had been more or less discussed at different times. In 1874, the conditions of this fusion ap- pearing to be acceptable to the parties in- terested, an Act was sought and obtained from the Legislature of Ontario, authorizing the union and fusion of the said churches, so as to form but one body or denomination of Christians, under the name of the " Pres- byterian Church in Canada." This Act is the 38th Victoria, ch. 75, of the Statutes of Ontario, and was sanctioned the 24th De- cember, 1874. The provisions of this Statute, of which tlie existence and authen- ticity are admitted, are of great impor- tance, and have considerable bearing on the rights of the parties in this cause. It is therein firstly declared : That all the pro- perty situated in the Province of Ontario, and held at the time of the union of the said churches by every congregation in connection or communion with any of them, shall thenceforth belong to the said United Church, with this restric- tion, nevertheless, that those c(mgregations of the said Churches which are unwilling to enter into this union might, within six months, d'^clare their dissent by a vote of the majority of their members, and in such case the property of such congregation dissenting f Hhould not 1)0 alLxtuil l)y tlie .said Statute. Tlien Soctlon 8 of tliis Statute derlares that UH the ministers of the Presbyterian Church of Canada in eonnection with the Chureh of Scotland are entitled to receive an anntial revenue, proceeding from the funds styled the •' TemporalilieK Fund," administered by a board in( orponited by the heretofore Pro- vince of Canada, and as it is proposed to maintain intact for titesc ministers, during life, this annual revenue, it is ena( ted that the present members of this board shall con- tinue in office and administer the said fund on behalf of the ministers now deriving a re- venue tlierefrom ; tliis revenue being pre- served intact for tlie said ministers, so long as they shall remain Presbyterian ministers in good standing in tlie Dominion of Cana- da, whetlier in active service or retired, and whether tiiey are or are not in connection with the said United Chunih. Lastly, that BO soon as any part of the revenue provided from this fund is not required to meet the payment ol the annual alloAvances coming to the said minis- ters, or of any other cliarge or expense on said fund, sucli part of said revenue sliall be placed at the disjK^s;!! of the said United Church; and after tlie death of the Inst sur- vives of said ministers, any balance of said fund shall belong to tiie said United Church. By a final enactment of the said statute, it is tleelared : tliat tlie union of the said churches sliall be accomplished so soon as the terms of the said union are signed by the moderators of each of them. Such are, in substance, the provisions of this statute which bear on the present litigation. At the same time that this legislation was obtained from the Legislature of Ontario, a similar law was sought from the Legislature of Quebec, which passed the statute 38 Victoria, ch. 62 (sanctioned the 23rd February, 187.5.) This statute corres- ponds exactly with that of Ontario, and enacts firstly : that the ownership of the pro- perty situated in the Province of Quebec and belonging to every congregation in connec- tion witli any one of the said United Churches, shall pass immediately, on the consumma- tion of the union to the said United Church, unless a vote of the majority of such congregation rejects such union, in which case the said property shall not be affected by this law. The 11th section of this statute then rej)eats, with certain modi- fications, the provisions of section 8 of the Statute of Ontario, relative to the Temporali- ties Board of the Presbyterian Church of Canada in connection with the Church of Scotland, and after having stated that this fund is administered by a Board incorporated by the hertofore Province of Canada, and that it is proposed to maintain the revenue of the said fund for the ministers having a right therein, and to their Buccessors, even if the congregation over which they preside does not enter the union of the said churches, the section enacts : — "That the present mem- bers of the said Board shall continue in office and manage the said fund on behalf of the said ministers now deriving revenue there- from, and the income to said ministers shall be continued to them and to their successors, us aforesaid, so long as such Presbyterian ministers are in good standing in the Do- minion of Canada, whether exercising their ministry or retired, or whether they arc or are not in (connection with the united Church ; provided that the successors of min- isters of congregations, in the Province of Quebec, in existence at the period of tlie union, and not entering into the same, shall preserve the same rights to the benefits of the Temporalities Fund, as they would have had if such union had not occurred." It is further declared by the same section of this Act, that so soon as a part of the accu- mulated revenue of the said fund shall not be required for the payment of the annual allow- ances to the ministers entitled thereto, it shall pass to the said United Church, which shall have the property therein, and may dispose of it, and tliat it shall be the same with that which shall remain of the said fund, after the death of the last of the incumbents having a right in the said revenue. This 11th section also enacts, that each vacancy occurring in the said Temporalities' Board (namely, the Corporation respondents), shf.ll not be filled in the manner heretofore adopted, but in 'he manner provided by nii Act passed during the same session and entitled, " An Act to amend the Act intituled ' An Act to incor- porate the Board for the management of the Temporalities' Fund of the Pres- byterian Church of Canada in connec- tion with the Church of Scotland.'" Lastly, section 14 enacts : that the union of the said churches shall be complete, so soon as a notice shall be published in the Quebec Official Gazette declaring that the articles ot tills imion have been signed by the modera- tors of the said respective churches. As ap- pears by this analysis, the enactments of these two statutes of Quebec and Ontario are substantially identical. The only differences to be observed are, Ist. That the statute of Quebec secures the right in the revenue of the Temporalities fund of the said Presby- terian Church of Canada in connection with the Church of Scotland, not only to the actual ministers as the Ontario statute does, but also to their successors ; and 2nd, Tliat the statute of Quebec subjects the filling of vacancies on the Temporalities Board, to the special pro- visions of the Act to which I am about to refer, while the statute of Ontario maintains purely and simply, the administration of this fund to the actiuil members of the Board. At the Bamo tiiiio that the Quebec Legislature pat<8«id the Act fur the union of the wiid ckurchcH it paHHod another Act, 38 Victoria, vh. 64, to amend the Act of incorporation oil the Temponilitiejj Board of the said Pr«Hhy- terian Churcli of Canada in ctmnec- tion with the Church of Scotland. This Becond act which is a nutural sequence of the former one may he naid to he ito complement. The liC^iHliitnrc communces by declaring- that the union of the said thurclu'K an»l the resolutionH of the Synod of the HBid Presbyterian Church of Canada, in connection with the Church »>f Scotland, adopted in consequence and referring to their temporalities, render it necessary to change certain regulations in the charter in- corporating the said Board, wherefore it enacts: — I. That until the rights of the ministers and ))robationers of the »aid church in the said temporalities fund shall have ceased to exist, this property shall continue, a» heretofore, entrusted to a Board, whose functions shall be continued, after the com- pletion of the said uidon, in the manner pro- vided in the said Act, which Board shall ad- minister the property according to the same principles and for the same objects as at present, and it is declared that these rights shall be established as follows : — 1. The annual payment to minintcrsnow receiving four hundred and fifty dollars ($450), four hundred dollars (400). or two hundred dollars ($200), will be the same amount during their lifetime and good stand- ing in the Church. (2.) The annual pay- ment of two thousand dollars ($2,000) grant- ed to Queen's College, will be continued in perpet\iity. (3.) The annual payment of two hundred dollars ($200) to all the min- isters who shall be on the Synod's roll, and by all recognized probationers and licenti- ates engaged in active service at the time of the union, will remain the same during the lifetime and good standing in the Church of 8uch ministers, probationers or licentiates ; all salaries of two hundred dollais to be increased to four hundred dollars each when the reci- pients of them shall have retired from the active duties of the ministry. The Tempo- ralities Board shall if necessary draw upon the capital of the fund to meet the aforesaid requirements. Then it is provided that so soon as any part of the revenue accruing from said fund, or any part of the f''.nd itself which is not required to meet the payments of said charges, shall be subject to the dis- posal of said united Church. 2. That all ministers and probationers pos- sessing rights in the said temporalities fund who decline to become parties to such union of the said churches shall be entitled nevertheless to all their rights as if they had entered into such union, •o long as they shall continue to be Presby- terian ministers in good standing within the Dominion of Canada; and that the succes- sofs of these ministers shall retain the same rights in the said fund, as if the union of the said churches had not taken place. 3. That as often as any vacancy in the l)OArd of maniig(Mtii;nt of said temporalities fund oc- curs, these beneficiaries may each nominate a person being aminiKter or member of the said united cliurch, or in the event of their being more than one vacancy, then one per- son for tiach vacancy and the remanent mem- bers of the said said board shall thereupon, from among the persons so nominated as aforesaid, elect the person or number of per- sons necessary to fill such vacancy or vacan- cies, selecting the person or persons who may be nominated hy the largest number of beneticiaries, but in the event of failure on the part of the benetieiarieH t.) uiuninate as aforesaid, the remanent ineniberH of the board shall fill up the vacancy or vacancies from among the ministers or members of the said united church. Section 8 provides that the third section of this Act shall continue in force until the niunber of beneficiaries is reduced below fifteen ; and so soon as the number of beneficiaries is reduc(;d below fifteen, the said board shall be continued by the remanent members filling up any va- cancy or vacancies frimi among the ministers or members of the said united church. The remaining enactments of this act apply only to the rules of procedure to be followed in the «le«:tion of new members of the board, in case of vacancies, and for the auditing of the accounts of t' ulministrators. The last provision is that mis act shall come into fon e so soon as a notice shall be published in the Quebec Of- ficial Gazette that the union of said four churches has been consummated. These several statutes having been sanc- tioned and in force, the Synods of the four churches, the union of which was author- ized by the corresponding statutes of Quebec and Ontario, assembled in Mon- treal in June, 1875, to consummate the pro- posed union. Agreeably to a previous imder- standing with the other churches, the Synod of the Presbyterian Church of Canada in con- nection with the Church of Scotland, assem- bled in St. Paul's Church, in Montreal, and on the 14th June, 1875, decided by a very large majority, that on adjourning ne.xt morning it would proceed to the Victoria Hall the appointed place, for the consummation of the said union and the holding of its general as- sembly of the said churches, under the name of the general assembly of the "Presbyterian Church in Canada," and at the same time gave full power to its moderator to sign in the name of the Synod, the preamble and the basis of union and also the resolutions adopt- ed relating to those documents. The peti- tinuor and nino other momborw of Synod protiiNtod in writing H^HinHt tiuH roHolution. The fidlowinK day, tho Iftth .Fnnu 1875, the Synod being uHHcml)led in tlio Kaino place, a notarial protoHt wan Horvod on the M(Mlerator against the projected union of tho Haid churcheH, in the name of Huverul mcmhorH of the Haid TreHbyterian Church of Canada, and among otiiers of tho petitioner. NotwithHtanding thiH proteHt, the Syncnl adjourned to llie Victoria Hall, an reHolved the previoiiH evening. Agreeably to thiH rc- Rolution, the great majority of tho meraborH of the aforesaid Hynod proceeded to tho Victoria Hall, where tho moinberH of tho HynodH of the other cLurchoH had alHo as- eemblod, the documontu relative to the union of tho Haid churchcK were nigned, and the membcrH of tho Haid SynodH then organized thomsolvoH into a general anKembly of the said united church, under the name of tho " Presbyterian Church in Canada." NeverthelcHH after tho departure of thiH ma- jority of tho memborH of Synod of the Raid Presbyterian Church of Canada, in connection with tho Church of Scotland for the Vic- toria Hall, the minority who had protested against the union, and who had remained in the building where the Syimd mot, chose tho petitioner as Moderator, in place of the one who had loft with the majority, and con- tinued the proceedings of Synod of the said church. Por.-'isting thenceforth in their re- fusal to enter the said united church, this minority continued to hold, each year, its annual Synodical meetings, deilaring that it formed and constituted " J Presby- terian Church ot Canada in connection with the Churcli of Scotland, and that those persons who had adopted tho Union, had abandoned the said church, and had voluntarily separated themselves therefrom, and no longer formed a part thereof. St^irting from this point, tho petitioner, after having stated in his petiti»m, his (juality of minister of the Presbyterian Church of Canada, in connection with tho Church of Scotland, and his right to an annual revenue of $450 for life from the Tcinporalities Fund of the said church, as being one of those who in 1855 profited by the conmiutation oflered by the Government of Canada, and alleged that this fund had boon created, subject to the condi- tions formally stated in the resolution of Synod, conditions recognized and guaranteed subsequently by the Act of incorporation of the board to whom was entrusted the admin- istration of the fund, adds : — That tho statute of tho Province of Que- bec, 38 Victoria, ch. 64, amending the Act of incorporation of the said Tem- poralities board, is unconstitutional, that it exceeds the jurisdiction and author- ity of the Legislature of the said Pro- viacc, and consequently is null and of no ofTect. Tho reasons stated l)y the pntitionor in support of this allegation are: iHt. That tho powers granted to tho corporation under tho Act of tho Parliament of Canada, 22 Victoria, c. CAi, are not limited, and applicable to one Province only, but are of a general na- ture, and affect tho rightn of persons resident in the two Provinces of Quebec! and Ontario. That (lonsequently the Act of tho Legisla- ture of Quebec amending this Statute is not of a local and private nature, but affects the rights of persons not resident in this Pro- vince, and not subject to the jurisdiction of its Parliament, and therefore is in excess of its authority. 2nd. That the rights and in- torcsts of tho petitioner in the Temporalities Fund of the said Presbyterian Chunih are not of a private nature, but are a mat- ter of general interest. 3rd. Lastly, that tho said Provincial Act is unconstitu- tional : 1st. In that it authorizes the payment of tho annual allowances to tho ministers who have ceased to be members of the Pres- byterian Church ot Canada in connection with the Church of Scotland. 2nd. In that it allows the corporation respondent to draw on tho capital of this fund to pay tho annual al- lowances. 3rd. In that it provides for the filling of vacancies in the TemporalitioH Board with membors of the United Church ; thus depriving the beneficiaries of all right of administration of the said fund, contrary to the dispositions of the Act creating the said corporation. Consequently tho peti- tioner alleges that tho Provincial Act has no legal existence, that tho Statute of 1858 alone is in force, and that the rights of tho parties are governed by its provisions. The petitioner then alleges that since the 15th June, 1875, the Revs. John Cook, James C. Muir and George Boll became members of the said United Church, styled the Presbyterian Church in Canada, which is an entirely distinct organization from the Presbyterian (Miurch of Canada in connection with the Church of Scotland ; that they abandoned this latter Church and ceased to be members thereof, and therefore have no right in tho benefits resulting from said Temporalities Fund. That the Revds. John Fair lie, David W. Morrison and Charles A. Tanner, who receive annual allowances from the said fund, have no right therein ; firstly, because they are not among the num- ber of those ministers who, in 1855, commut- ed their claims with tho Government, and secondly, because they have also abandoned the said Presbyterian Church of Canada in connection with the Church of Scotland, to become members of the now Presbyterian Church in Canada. Let us say, before proceeding fur- ther, that of the six ministers just named only one is a party to this cause, the Rev. John Cook, and consequently ng fur- era just is cause, equentlf tlio riglitK of th«' otherH, who have not bo«!n imploiulcd, cannot in any manner bu utTucted by th(! JiidKiniint of thJH (,'ourt. LiiHtly, tlio i)ctitionur allcKos that, by tlio ttirinH of tlio Stutiito ot 1858, four of till! luumbors of the Tem- ponilitioH Hoard were bound to retire and to Ix; rejilaccd each year, and that in order »)f Honiority, the Uev. MoHHrK. JenkinH nnd LanK and Mimsth. Walker and DenniH- toun ceaHed to bo niemborB of the lioard in June, 1870; the Uev. MoHsrn. Cook and (lordon and MesHrs. Morris and Sir Hugh Allan, alNo (easod to be moniberH of the Hoard in June, 1877 ; that the Uev. Mr. Mackerras and MeswrH. Darling and Mitchell ceased to be members of the Board in June, 1878, and tliat none of them have been regularly replaced agreeably to the Statute of 1858 ; lastly, that the only re- maining member of the said Hoard, namely, Mr. James Michie, withdrew from the said church and joined the Presbyterian Church in Canada, and consequently has ipso facto lost his quality as a menibur of the said Board. That consequently all the said respondents administer illegally the property of the said Presbyterian C!hurch of Canada in connection with the Church of Scotland, and have no right to act as members of the Temporalities Board of the said churcih. The petitioner concludes: — 1st. That the Provincial Act, 38 Vic, ch. 64, amending the Act of incor- poration of the Temporalities Hoard of the said Presbyterian Church of Canada in con- nection with the Church of Scotland be de- ■clared unconstitutional, as beyond the com- petency of the Legislature of Quebec. 2nd. That it be declared that the corporation respondents have acted illegally and have exceeded their powers in allowing the re- spondents to act us members of the said Boaid without their being elected in accord- ance with the law. Mrd. That it be declared that the respondents have no right to act as members of the said Board, and that they be restrained from so doing. 4th. Lastly, that it be declared that the fund administered by the said Corporation respondents, is in itself only a trust for the benefit of the Presbyterian Church of Canada in connection with the Church of Scotland, and of the members and missionaries who liave remained members of the said Church, and for no other purpose. Tiiat the Revds. John Cook, James C. Muir and George Bell, have ceased to be members of the said Church, and consequently have no right to the benefits of tlie Temporalities' Fund, and that the said John Fairlie, David W. Morrison and Charles A. Tanner are also without any rights therein. Two of the respondents, the Rev. Gavin Lang and Sir Hugh Allan, declared that they did not contest this application and put themselvoH in the hands of the Court; the otiier respondents have pleaded. The respondents who pleaded have declared in substance, that the I'hurch heretofore styled the Presbyterian Church of ('anada in cN iiforv inuntiontti, thoHu four rhiirchfH liiiviiif^ fhu Hiinit! faith, tho ■ame holi«;fH tind tliu Hiiinc doc trinu, iind tliut in HO doiriK the Miid Synod iiiid not renounced to any of thu priucipleM, hc-liufH or d(>2, QiioImm', and Tf) (On- tario)- '"'ol' if these two Lejjisia- tiires iia.e not exceeded tlieir powers in pasHitif,' tiiese laws, the petitioner has not in the present hiw any remedy for redrosH- in>j; the Kri''vances of wliicli ho coniplainH. It is nnicli to bo regretted thattliesc impor- tant qnestions as to tlie conHtitntionality of the hiwH liavo not been intrnstcd by our now political constitution to a special tribunal, whose jurisdictiftn and authority in like mat- ters would be unquestioned. The ordinary tribunals thus find themselves charKcd there- with unaided by any very precise rules to Ruide them, and it is noifssary to seek else- where what our too short experience of a federal system does jiot enable us to find here. Although there exists a fundamental diflference between the American federal constitution and that of the Canadian Pro- vinces, since in the United States, the Federal powers have been delegated by the States to the central government, wliilst here it is ratlier tlie powers of tiie provincial Legislatures whiih have Ix-en specially dele- gated, and consequently limited; neverthe- less the principles accepted l)y the American jurisconsults and liy the tribunals of tlie neighbouring republic on questions of the constitutionality of the laws, iippear to me to afford rules of inclisputable wisdom for the decision of like difhculties. " It has been said by an eininent jurist, says Cooley (On constitutional Limitations, ]>. 182) that when Courts are called upcm to pronounce the invalidity of an act of legislation, jjassed with nil the forms and ceremonies requisite to give it the force of law, they will ai)pronch the question with great caution, examine it in every jjos- sible aspect, and ponder upon it as long as deliberation and patient attention can throw any new light upon the subject, and never declare a statute void unless the nullity and invalidity of the act ure placed, in their judgmtuit, beyond reasonable doubt. A reasonable doubt must be solved in favor of the legislative action, and the Act be sustained.' And further he adds, citing the words of Chief-Justice Marshall : << It is not on slight implication and vaei onjecture that the Legi.iiature in to be pri iiounceu to have transcended its powers, and its acts to be considered as void. The opposition between the Ci.iiHtitution and the law slKMild be such, that (he Judge feels a clear anry vindication of it. It is but a (Uu'ent respect due to the wisdom, thr; in- tegrity and the patriotism of the legislative body iiy which any law is passed to presume in favor of its validity until its violation ot the constitution is proved beyond all reason- able doubt." Such, in effect, is the fundamental rule whicti should guide a .Judge in like cases. The presumption is always in favor of the constitutionality of the law. Let US examine at present. I)y the light of these principles, the dispositions of our constitu- tion relative to the powers of the Provincial Legislatures, and the special statutes now umU-r consideration, and see if there be even room for doubt, as to the right or power of the Provincial Legislature to pass the laws in ipiestion. The 91st section of the Hritish North America Act 1867. declaring the jiowers of the Federal Parliament, says; — 'Tl shall be hiwful for the Queen. l>y ind with the advice and consent of the SeiLite and House of Com- mons to make laws for the peace, order and good government of (.'anada. in relation to all malters not coming within the clas.ses of s\ibj(H'ts by this act assigned exclusively to the Legislatures of the Provinces." • • • • * • Tills section then enumerates a general list of subjects, exclusively entrusted to the Federal Parliament ; but declaring that this enumeration is not limitative, except as to the subjects exclusively intrusted to the local Legislatures. The ;>2nd section regu- lates ami determines the exclusiv. powers of the Provincial Legislatures, an I ('.'clares: — "Section 92. In each Province t.i. Legisla- ture may e::clusively make laws in relation to matters coming within the classes of subjects next hereinafter enumerated; that is to say; — nth. The incorporation of companies with provincial object.s. 1 3th. Property and civil rights in the Province. Property and civil rights are thus, in virtue of this disposition of our present constitution, submitted to the exclusive con- trol of the Provincial Legislatures. Now, what was the obj>.ct of the corporation created by the Statute 22 Victoria, cap. 10 6ti? Nothing elwi' tliuii the ownership and the possession of certain property ; that is to say that the Legislature of United Canada has aecorded, by tiiis Act, those rights which are ineluded specially in the category of subjects exclusively (intrusted at the present time to the Provincial Legisla- tures. It is true that under the former ri'gimf the two Provinces licing subject to a Legislative imion tlie-^e same rights were under the control of tlie Legislature of the Union, and consequently the privileges ac- corded in this res])ecl to corjioratiorts created by this Parliament cxten innot be affected by this legislation. This obje^ction is not serious. The constitution, in subjecting property and civil rights to the lontrol of the provincial Legislatures dlil not make and could not make a distinction between tlie possessors of these rights ; it ha; no! limitci! Ihe legisla- tive authority to the case where the property belonged toa- resident only 1 No, all rights of property, whether possijssed by a resident or or a non-resident, are under tlie authority of the legislative power of the Province. Any other interpretation of our constitution would l.)e contrary to the best established principles of the civil law and of Ihe pub- lic law. Therefore, either the rights which the petitioner claims exist in this Province, or they do not. If they do not, what can he seek from this Court ? If thev do, they only exist as recognized by the laws passed or maintained by our Legislature. Now. 1 find that this Legislature has changed the disposition of the proiierty from whence How the rights oi the petitioner in two im- portant respects ; 1st, as to the iidminis- tration ; 'Jnd, as to the tinal dis- position of the fund constituting this property. Firstly, as to the ad- ministration, the statute 38 Victoria, caj). 04, of which the annulling is sought, completely justifies the action of the corjioration rc- spcmdents, and of the members composing it. Secondly, as to the tinal disjmsition of the temporalities fund, the statute '.W Victoria, cap. ()2, which is not attacked, while securing to the present ministers th<'ir annual inccmies intact, transfers finally the projierty of this fund to the united church under the name of the Presbyterian Church in Canada. Now, it appears to me incontestable, according to the provisions of our Constitutional Act, that these two Acts, in .so far as they aifect civil rights and rights of property (and there are none other in (juestion before this Court,) were within the authority and jurisdiction of our Provincial Legislature, and therefore that they irrevocably settle the rights of the parties. In the face of this legislation it is imjiossible for me to declare that the re- spondents have acted illegally and without right in the administraticm of the fund en- trusted to them ; that these same respond- ents are not legally members of the said corporation respondents, and that the "Temporalities Fund" does not belong to the Church, to which the law attribi;*es it, and that it cannot be applied in the man- ner jnovided by that law. And if the peti- tioner seeks to complain of the arbitrari- ness and injustice of these legisla- tive enactments which deprive him of rights of property which he con sidcred inviolable. 1 must answer that it is not my mission to accord to him a protec- tion which the law refuses, and that nothing would be more dangerous than for the courts to assume the jxtwer if rejecting a positive law under the pretext that it was unjust. •'There would be(saysCooley. iiage IGT.) very great probability of unpleasnnt and danger- ous confiict of authorities if the courts were to deny validity to legislative action on subjects within their control, on the assumption that the Legislature had disregarded justice or sound jiolicy. The moment a Court ventv.i-es to sub.stitute its own juilguieiit for that of the Legislature in any case wluMe the Constitution has vested the Lcgislatuie with i)ower over the subject, that moment it enters u|)()n a field where it fs impossible to set limits to its authority, and where its discretien alone will measure the extent of its interference. The rule of law upon this subject appears to be, that, 11 lie oonrts positive unjust. |GT,) very (langei- iL' COUl'tS le action vol, on Igislaturo \u-y. The itute its tUitur:! in IS vested subject, where it authority, uieasuro |e rule of be, that, except where the Constitution has imposed limits upon the legislative power, it must be considered as practically absolute, whttlurr it operate according lo natinal Jus- 1 tice or not in any particular case. I The courts are not the guardians of] the rights of the jieople, except as those rights are sec^ned by some conHtitntional provision which comes within the jiidii iai ; cognizanie. The prot(!ction against unwise or oppressive legislation within coiistitu- ti(mal bounds, is by an appeal to the justice and patriotism of the representatives of the people. If this fail, the people in their sovereign capacity tan correct the evil, but courts cannot assume their rights. The judiciary can only arrest the execution of a statute when it conflicts with the constitution. It cannot run a race of opinions upon points of right, reason and ex|)e(lieniy with the law-making power. Any leu'islativc act whi