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Les diagrammes suivants illustisnt la mAthode. 1 2 3 1 2 3 4 5 6 UUiHIUUiUHim nntnnfttti* tfiiiiliiiJiiSfSJ:-sii;ic;::;aTTrf imiwuiuwiuimriUaifniiUWW SUmllsi />//?S/^^/^,- H^I THE SUPREME COURT OF BRITISll COLUMBTA. — ^-•-» — SEWELL AND OTHERS, Plaintiffs, vs. THE B. C. TOWING ANP TRANSPORTATION CO., Limited, and the MOODYVILLE SAW MILL CO., LHmitod, Defendants. COMMONLY CALLtD THE JUDGMENTS OF Sir M. B. BEGBIE, C. J„ and of CiiE.iSE (md\\ (}RA ) ; Justices, (McCREIGHT, J., ahs.) Relative to the Unconstitutionality of Certain Acts of the Pro- ' I vincial Legislature affecting the Supreme Court. 10th Fkbruary, 1882. \\ VICTORIA: THK COLONIST STEAM I'HKSSKS. ■ ■■nih\'..>ii *Wf»*»"|f JJI m liiiSr'^-^'^''"^ im^wmnwmnmmumwmmmiwm lit mt ■*««*-<««Mft4> Tintmunswi //s S H E SUPREME COURT ft ()!• BRITISH COLUMlilA. i The Hon. Sir MATT. BAILLIF. I^MdBlF., Knkiht, ClllKK JrsTK'K. TiiK Hon. m:S\\Y \\ \'VAAA^]\y CKKASl-:. TiTK Hon. .IOHX HAMILTON (JUAV, AND The Hon. JOHN FOSTHR McCRFKIHT, i ... . ■•'♦I'j' ii mm mm iii 's. 1, ►■ «.»«««tMI»« Sowcll 7M'. British Columlna Towing Company and Mooclyvill(! Saw Mill Company. BritJHh Niirth America Act, 18(57— ^'onstitutional powers of Provin- cial Legislatures. Constitutional prmition of Judges of a Superior Court in a Province of Canada. The Provincial Lo«j[i.skture had by a Local Act, 1881, chapter 1, sec- tions 2S, 32, declared that the sittings of theSu|)rumeCourt for reviewing aid priua decisions, niotions for now trials, etc., should be held only once in each year, and on such day na should be fixed by rides of Court, and that the Lioutenant-Governor-in-Council should have power to make rules of Court. Held, by Sir MATT. BATLLTE BEOBIE, C. J., and CREASE mdGRAY, JUSTICES, (McCREWHT, J., absent^). Tliat the appointment of the days on which the Court should ait for such purposes is a matter of procedure, ar.d of purely judicial cognizance, and is not within the power of the local Legislature either to fix by posi- tive enactment, or to hand over to be fixed by any other person or persons, bat bolon^js to the Court itself; and that the above sections are in that respoct unconstitutional and void. The p. *er cri'me Court here had sat on the 27th June, and no day had l)een as yet appointed under the authcrity of the above statute for the sitting of the full Court: and it evidently might not be appointed for a considerable time. It was not concealed on the part of the plaintitfs that if the opinion of the full Court hero should be unfavorable to them, they intended to take the case by way of appeal to the Supreme Court at Ottawa; but thait Court does not generally take an appeal direct from a nisi priwa decision. I therefore suggested that the plaintitfs should apply to that Court for special leave to appeal direct; and authorized tlunn to state that in my opinion, from the magnitude of the amount at stake, the importance of tht points of law involved and, above all, the indetlnite delay which very recent local legislation had imposed upon nny application to the full Court here. I thought it a case in which this unusual sort of appeal should be entertained, if consistent with the practice of that Court. An application to that effect was accordingly made to the Supreme Court of Canada, but that Court declined to entertain any appeal until the nisi priuii decision had been submitted for review before the full Court hero. An application was then made to myself in Chambers (7th November) and ultimately to all the judges on the 24th November, requesting that a full Court might be held by us forthwith of our own authority; and the ground was taken that the above sections 28 and 32 were ultra vires, unconstitutional, and void, so far as they hindered this. A notice, how- ever, had then been recently published in the Gazef^e intituled a "Keport "of a Committee of Council approved by the Lieut. -Governor," in which it was recommended that certain alterations in the rules of practice hereto- fore in use should be made, aitd also that a full Court should be held on the 19th of December. I therefore desired that the application should stand over until that day, when the validity of the objections to the above sections might be considered, and if overruled, that the application might then be made to us as a full Court; and that notice of that order should be given to the law advisers of the Crown. On the 19th of December accordingly the three Judges now in Victoria (Mr. Justice McCreight being detained at Richfield) sat together, not as a full Court, but to determine whether we were then lawfully sitting as a full Court. A technical objection was immediately taken Ill's ciise Ims nrlsen lior," cdinpltstely y two tujji from Court Hg;iiiist tlie 'cciisioMed by the ^H0,000 (laiiiaguH, ociiil jury ill Juno f tlie defi'iidantH, 10 plaiiitifFs were ,'s, aiiU gciiorally trial, or to l,ave "tely to tho full 881, liaci in the aoctioii of wliicli oil a day to hi, rules were to he t of thy iSupreme 'wul been as yot tlio sitting of the "f ii Considerable tliat if the opinion tliey intended to Ottawa; hut that m prius decision. « that Court for state thiit in my fie impurtiince of delay which very tttion to the full d Sort of appeal that Court. An iiprenie Court of ill until the nisi full Court hero. (7th November) requesting that I authority; and were ultra mrea, A notice, how- tuled a "Report nor," in which it practice hereto- ould be held on )lication should •jections to the '' tho application 30 of that order Judges now in Id) sat together, then lawfully lediately taken wn^i that even assuming tho validity of sections 32 and 28, no Order-in Council had ever been made, but merely a report of u Committee of Council had beeti approved by the Lieut. -(Jovernor, in which a sitting on the lUlii L>ecember was recommended. As thin was a matter which could readily bo remedied, however, and as the Attorney (leiieral was in attendance, we asked him if he could remove the doulitn which had been caHt on the validity of the clauses. He Hinted that he felt sure he could do so, and was jierfcctly retidy to ^o on, but that he felt some dith- culty IIS to his nppearing to interfere in a case in which he was not retained on either side. As a grave cuiistitutionni objection appeared to us to be involved, btnking at many autsof the local Legislature for which he is very possibly res|Hinsible, we uave him at once a /ocu.i .-tandi as auiicns niriit. We then asked him to point out the words of the liritish Nortii America Act which ;,'ave any authority to the local legi.slaturu to regulate the civil procedure of the Suj)rtme Court, and ho referred at once to the final words of section 'J'2 sub-section 14. But as soon as it was suggested that those words seemed to be entirely contined to civil procedure in Courts constituted, made and organized by the province, and that this Court wan by divers sections of the Act entirely taken out of that category; and that every topic of legislation not expressly given to the local legislatutc is by section *M expressly given to the Dominion Legislature; he said that was to him an entirely new point, and he re(]ueBted time to consider his argument. Wo adjournea accordingly, not as a full Court, but to consider the (piestion whether we were then sitting as a full Court, until the &th January. Tho Attorney-Cieneral then said that he did not feel that he could prndition of a Province. The Legislature of the colony was com- pletely sovereign, having even power conferred on it to alter its constitu- tion by internal legislation and to adopt a different form of legislature. M iiti i'^iUt.tiUtUititmiiiiilttil'rVrii .,un-*^^tJ*it****i**t*"*4*'*!ii'fH'!nt:i!'iiii:iitH!Uniifin*rjTtn-f=^i'-i-iHf'*t n tr'**Trr'-trtr.',-fj Ho llllu^cd ttiiit prior to confodoration tho Colonial Le^MHluturo alono iind without niiy Iiii|iurial inturfurenou hiid wholly orKani/.ud, iniiintiiinud mid coiiBtituted tho Suproino ('oiirt and tho jiidi{0H thorunf, and (xmscHHod dos- potiu power ovur it and thoiii,and thu whole rules of procudnro and urau- ticu of the Court, to thu ininutoBt detail. He naid then, apidyiiig tho liritiHh North America Act, this power is continued to tho I'rovince, the l, which directed that the Judges aro to be appointed l)y tho (invernor (leneral, merely stipulates winch of several ropresontativos of the Crown .shall e.\erciso tliat particular branch of tho prerogative of the (Jrown — that when once tiie JudL,'o in appointed, he is a mere I'rovincial ofHcer. So as to tho niaintcn- anco of the Judges, tliat is merely a pecuniary airanifcmcnt between the I'rovince and tho Dominion. There is nothinu in that to impair tlie "omnipotence"' of the local Legislattire. Tlio expressions of Lord Sol- borne in Rtj^ina vs. burah (3 a|)poal cases Privy Council U05), are decisive and express, ho said, to show that a local Legislature such as ours is by no ni'^ans the delegate of its creator, but has within its own limits powv^ i as plenary and supremo as the Iiii])orial Par- liament itself. Thei., ho said, secti(Ui 121) of the British North Amer- ica Act is quite clear. Provincial othcers are thereby made express- ly subject to the control of the Provincial Legislatures. From his point of view section 1<10 has been (piite misunderstood. It does not mean that any officer t» the Province (at the moment of confederation) who has to deal with any matter outside of section i)l is to Im an otlicor of Canada, but it applies t > every officer of tho statutory Province, and provides that unle.'^a his duties are wholly outside of those matters, ho i.s not to be deemed an officer of Canada. And various passatjes were cited from Doutre and other text writers which establislied, as he alleged, the pro-potent, inalienable, continuing authority of local Legislatures. He sftid that at all events, the point before us for consideration is a question of procedure; how to get a matter reviewed by the full court. That is beyond dispute embraced both by sub-section lli of section 1)2, as a mat- ter ot "civil right"; and as being a stop in the "administration of justice "in tlie Province" by sub-section 14, both which classes of topics are by section 92 placed exclusively within the grasp of the local Legislature, since this possecaes the plenary powers of the Inqierial Legislature, and the Lnperial Legislature has certainly legislated directly on procedure. Lastly, tho Attorney General suggested to us that our hands were tied by our own decisions; that all tho three Judges now in Victoria, had, in different cases, affirmed that the capacity of regulating procedure resided .solely with the Lieutenant-Governor in Council, viz: in Saunders v . Reed before myself, in Harvey vs. Corporation of New Westminster before Mr. Justice Crease, in Irving us. Pamphlet before Mr. Justice Gray. Before proceeding to examine the British N(>rth America Act, i. e., before discussing the real questiim at issue, I shall endeavor to explain or rectify some errors in much that has been thus pressed upon ua. The At- t(jrney General appeared to me to be freijuently misled by the use of the o«i8lature mIkho and :t'(l, iimiiitfiiuod luid I '">J ixwseascd dos- !»r..co(luro uiid nmc- thoii, ajiplyiiig the " tho I'rov.noo, the extraneous aid, lim JO Stiprome Court. Aiiiorica Act came Jrt, nothing tlioroiti enio C »urt is a I'ro- • ho oxprusH Words U<>, wliich diioutod <«eni)ral, niorely • shall exurcisu tlnit lilt when once the oas to tho inaintcn- r.iii},'onifnt between 1 that to impair the ssions of Lord ISel- Council <>05), are ai Legislature such r. I'ut lias within tlio Inij)orial i»ar- ritish North Amer- ■ehy made oxpross- latures. From his Hood. It does not it of confederation) 1 is to lit; an oHicor tory Province, and those niattors, ho is passages were cited , as ho alleged, the Legislatures. He ration i.s a question ull court. Tliat in ction J)2, as a mat- listration of jiKstice OS of toj)ics are liy local LegLsIaturo, il Legislature, and ctly on procedure, r hands were tied 1 Victoria, had, in procedure resided Saunders v . Reed estminster before Ir. Justice Gray. Unerica Act, i. e. , avor to explain or ipon us. The At- by the use of the term " I'lxjvince," "rrovincial" as aT)plicd to a court, or ofticer; which haw a peculiar meaning when uned of any of the niiiubcrsof the Doniini< n after the u|iplication of the liritihh Noiih Anierua Act. lUit before 1KU7 tlu* three original partners were ecpially called "i'lovinces." and they are t-o termed ihronghout the Act. And ui reading that Act, and also ]jerhap8 in reading some of the judgments in the dilieient courts of the Dominion, it is sometimes necessary to consider whether the old or the new political entity is intended. When tho new and the old " pn'vinces" are sharply contrasted, as in section 12i) uf the British Noi!\ \merica Act, all am- biguity is avoided by using the names of the pnnii.es as they existed previously to, und as they were to exist utter conl"i, oration. In other parts of the htatute it is left to the context to i :plain the ambiguitv. There is also a further ambiguity in the use < ' lie ep Miet "lY incial '; wliich when a])plied to an oliice or department may mean thut it is wholly t'. . lat'jre of und dependent on the I'rovince, or UKnly that its Held of operations is wholly coiiHiied tn the Province. \N'o i.i y with etpial pro- priety speak of a i'rovinciul Lieutenant (jovernui or a I'rovinciul Deputy Adjutant Cieneral, or on the othei hand of a l*ri>vincial Minister or a Provincial Superintendent of Education, iiut the i aiiie ejiithet means two Tory different classes of otiiciuls. The former are allotted to, the latter derive from, tho Province. In tho one case are meant ofhcers np pointed and authorized by some power from without, i. e., by tho Do- minion, to perform certain duties in the I'ravince. In the other case, tho oflicials draw all tlii;ir authority from within tlif Province itself. Tlic former owe no allegiance to tho Province, nor any duty, except indirectly, having to carry out according to their respective commissi. mis, the laws duly established in the Pioviiue, whether common law or statute laws; and as to statute laws, whether of Imperial, Dominion or Provincial enact- ment. And see accordingly the clear expressions if Chief Justice Ritchie in I'alinvH. Lanylvn, (.'{ Can. S. C R. 20). They are not however respon- sible to any I'rovincial authority, but only to the Dominion, whoso crea- tures they are and whoso mandate they bear. The latter class of oflioials owe allegiance to the Province, and are under its sole authority, being of its creation. And I think this distinction lias been sometimes lost sight of in di.scussiiig tho I^ritish North America Act, leading to a]>{)arent anomalies in that Act which do not really exist. It is scarcely possible to avoid some confusion of expression, for it might be misleading to call a call u Superior Court in any Province a Dominion Court simply. That epithet in strictne.ss perhaps might imply a Court which has jurisdiction throughout the Dominion. The proper notion of a Sujierior Court in atiy Province seems to be that it is a Dominion Court, assigned by the Dominion to administer the laws in such Province. It is also, I think, quite an i^.ror to suppose what was contended at great length before us, that any of tho legislative authority existing in any cohjny or dependency before Confo>5anvii)ce 1ms only the as all not .specifically ary, Comity Court 'provingly by Doutre i nut expressly or by inientaiid legislature that any matter, to (ture, must be given " necessary iinplica- ' that, bur exclusive- u;re be any eonllict so far as it is con- accoiding to section ich occupied a large if the legislative au- aiieral endeavored to i local legislature in and a dependency lid thatadependency owers, or more indel- ir of the two latter 1 the first category, rguable that British •lioily by settlement, deal to do both with r Island (1840), and Aards united as the I as a province of the ition placed by the or the first five years eneral much pressed nliia were treateti at o Blackstoiie's view, it seems prcviou.sly and icaine, as has been Columbia into the ires now have pre- cisely the same authority within their respective geographical hmits, viz: that given to them by the British North America Act, and no other authority; and that, not by transmission or inheritance, but solely and entirely by virtue of the Act. But the contention seems no less singnlar than erroneous; and I think it would not, for instance, meet with much favor in the Province of Quebec. It was also strenuously maintained that the Supreme Court of Brit- ish Columbia (under its various successive titles) from 1858 up to the moment of Confederation was wholly organized, maintained and consti- tuted by Colonial authority, and it was especially contended that it was •' organized " by Colonial authority alone. As to this last po'nt it is to some e. tent a question of definition: what is meant by " organization ?" If issuing a commission and nominating every Judge in either Vancouver Island or British Columbia up to the time of Confederation, enter at all into the notion of "organizing" the Court, then, certainly, the Supreme Court of British Columbia from 1858 to the tiu:e of Confederation was not wholly " organized " by tiie then Colony. But the consideration of this question again seems to me entirely immaterial. What is material, and what cannot be denied, is, 4,hat at and up to the moment of Confederation a Supreme Court of British Columbia existed in the then Colony, completely organized, maintained and constituted; possessed of all the jurisdiction, power and authoriaes which had been possessed either by the pi'e.vious Supreme Court on the Mainland, or by the previous Supreme Court of Civil Jus- tice of Vancouver Island: ])osses3ed also cf all the additional powers mentioned in the list consiituting ordinance previous to Confederation, (viz.) the British Columbia ordinance of 1809 (confirmed by an ordinance of 1870.) And all this, before the " Province," in its technical sense, had at all come i ito existence. This I do conside" extremely important. Combined with other circumslances, I think that it places this Court at once under the Dominion Parliament, and removes it from the authority of the l(jcal Legislature, by virtue of section 129 of the British North America Act. By far the Larger portion of Attorney General's suggestions was taken up by the fallacies just pointed out, and which I need not further refer to. The bare question before us is, whether section 28 of the Act of 1881, so far as it forbids any sitting of the full Court oftener than once a year, and so far as it authorizes the executive council to fix the time of !Uttiiig, is constitutional. But in order to support this section it becuiie pretty evident that it was necessary to include a good deal more; and the Attorney-General claimed an " omnipotent " authori'.y over the Judges of the Supreme Court and the Court itself, and over the proce- dure in that Court, by virtue of this "omnipotent" authority. The Judreme Court liere, remains wliere it was liuf ire Coufederatioii, viz: in the hands of tlie Supreme C(jurt itself, subject to legislation in a constitu- tional way by the Parliament of Canada under section 12!) of the liritish Nortii America Act. The attention of the Judges has been called to the various opinions expressed by them in August and September, 1880, with regard to the tirst Order in Council, Kith July, 18S0, purporting to establish rules of court under section 17 of the Judicature Act, 1879; viz: the case of Saunders vs. Heed before myself: Harvey us. Corporation of New West- minster, before Mr. Justice Crease: and Pamphlet vs. Irving before Mr. Justice Gray, with the view of showing that we all three then afhrmed the legality of the power arrogated by the executive to make rules; and that we cannot without self contradiction now deny that power. Now, in fact, that point never came np for decision at all in any of the three cases. I do not mean tt) say thatit wasdenied; but neither was it affirmed. It was never raised by the suitors. All the Judires were much puzzled as to the effect of that first Order in Council (published in Gazdte 17th July, 1880.) It came first before myself, and I changed my mind about it more than once. In order ti clear my views I placed them in writing. At first ] inclined to think that tin; Order in Council was <|uite unmeaning, and so established no rules at all here; in which case, under si'ctiiui 1!) of the Act of 1870, the old practice would have remained; but I finally concluded that the Order in Council had established some rules capable of being proved in evidence, but reijuiring such extraneous proof; and therefore they prevented mo from conducting business in Chambers according to the former practice, without informing me what practice was substituted; re- ducing matters to a deidlock, removable only by evidence in every case bnjiight forward. My statement or memorandum of arguments in sup- port of my first views got into print, I do not know how. The re[)ort, of course, reads absurdly, for the arguments in it are directly at variance with the conclusion. Hut there lusver was any que.stinn raised in that case as to the validity of section 17, (1879), nor as to ihe authority of the Executive to make the Order in Council, 10th July; that was assumed and acquiesced in by all parties. The next Judge, whose opinion was taken, was Mr. Justice Crease, 0th August. He seems t^) have come to the same conclusion as myself; and there also, the power of the Execu- tive seems to liiive been acquiesced in without ever being called in (juestion. Lastly, Pamphlet en. Irving was brought on before my brother Gray. He decided according to the view I had .at first inclined to, viz: that the Order in Council, 10th July, was so utterly dark and obscure as to be a nullity, and therefore that it did not prevent the continuance of the old practice in chambers. Hut in none of these cases was the power of the Executive to make rules (jf procedure, which depends of; and therefore ibers according to the ) was .substituted; re- idence in every case f arguments in sup- low. The report, of directly at variance 'stion raised in that to ilie authority of ly; that was a.ssuined who.se ()[)inion was ms to have come to pwer of the E.\eou- ig called in question. ly brother (Jray. He id to, viz: that the I ob.sciiro as to bo a itiniiance of the old IS the power of the ds on the authority , called in question; binding opinion at )* choose to inquire into the reasons fir now publishing unauthorized reports of those cises with cjuite inaccurate heading-i. It is, perhaps, more important for the Attorney General's argument to observe, that on the ensuing Kith Octo- ber another Order in Council was made, cancelling the order of the Kith July, and declaring a whole body of rules to be in furce as from the 15th November following, called "the Supreme Court Rules, 1880;" and that these rules, never having had their authority tested by any suitor, have ever since from time t^ time construed and suH'ered to be applied by 4II the Judges, who in this way m ly seem to have acquiesced in the legality of the authority or authorities under which these rules were issued. But up to this time no decision has ever been given, nor could have been given, citiier one way or the other on that point. None has ever been requested. The question of their legality is now raised for the first time. The position of a Judge is a very helpless one, especially in British Columbia. He cannot state his opinions except in judgments from the Bench. These are seldom heard, except l)y the parties interested; once delivered, all the reasoning, everything but the dry result is forgotten or impel fectly remembered: often misunderstood, and unintentionally mis- represented at the lime, almost certain to meet that fate in the near future. And in matters not brought before a Judge for actual decision, he is more helpless still. All he can do in sight of legisla- tion, however objectionable it may appear, is to lay a statement of his views before the Ministry. That communication may be considered strictly confidential; the receipt of it is acknowledged with or without thanks, and tlie document is [ngeonholed. A Judge cannot, consistently with liis own self-respect, descend to whisper his doubts into the ears of litigants, or send a brief t > the leader of the Opposition in the Legislature. Hu cannot write leading articles in new8i)a[)ers, though Lord Cairns, C. B. Kelly and Lord Penzance did once each, and only once, I believe, write a letter to the Times. But with resjiect to the power reserved to the Executive in section 17 of the Judicature Act, 1879, since the Attorney General has I'eiied upon our apparent continued acquiescence in its legality, it might be worth while to give the real history of that Act, But it may sullice to say that at every stage of the bill in its passage through the House, we warned the Attorney General, with all the energy at our command, of the more than doubtful constitutionality of two sec- tions, viz: section 14 and section 17, both of which, we urged, would be certainly challenged at some time or other. These two sections, bow- ever, the Governiiieut insisted on retaining, v.ithout condescending to oft'er any argument or explanation. How just the apprehensions of the Judges were, may appear from this, that section 14 probaldy gave rise to the McLean case, and section 17 has given rise to the present discussum. It is rather too inucli for even judicial endurance that we should now be taunted with having acquiesced in ♦he legality of the authiu'ity thus as- sumed by the Executive. We have ovi every legitimate occasion expressed the gravest doubts concerning it. The fact is that all through the year 1880 we conceived the intention of the Executive to be to work out the Judicature Act, 1879, in a useful and projier way, upon the plan which we suggested to the Government, and almost exactly as we should have done ourselves; viz: following aa closely and literally as possible the lines of the English rules; the ''Su- pn J Court rules, 1880," being little else than a transcript of the English '■ff'U-!iHii.,4UiJtii4itnUititii i imimmim mHiijntHW!UUi!'tvttti4{fimmfmHmnni^ MMUHMyMi ^Hmmill' 10 rules, with geogra])hical niodificatuma. And, possibly, if the power rightly or wrongly assumed by the local Le'gislature had been exercised in a svay useful, or at least not intolerable to tlie suitors, no question wiaild even now have l)een raised as to the legality of their assumptions. But at the very end of 1880, two other Acts, "The Better Administration of "Justice Act, 1878," and the "Judicial District Act, J87!)," came into opcr.ition. Ag for the 8aino that if the Local t Judge the duties y impose, and has 'Id Commissioner; auth(jrity to iu)pose rovince, judicial or IS c(pially imposed [for gold mining is of holding mining lys excepted.) All ^'ether. If any one and to cany with usiciis, or some of nd Hatly refused to inpelled the Judges d to look into the tatutes created by ^, at least in the the attention of ilin vs. Langloisin jlonial Parlianien- id CooIey'sConsti- ere brougiit to our IS, even had there ider their validity lould be ashamed nio to see more iver been c; lied over since 1872 K 11 I have more or less closely expressed similar views, nor have I stood alone. For instance, ever since 1870 the Judges of the Supreme Court have insisted upon the two main positions on which Valin r.s. Langlois And Leprohon v.t. City of Ottawa were afterwards determined, and that in the most practical way; we rejected the demands of the Provincial tax- gatherer when he endeavored to levy incom(!-tax on our jmiicial salaries; and we took among other grounds the following: Ist. That we were Dominion oflicials (afterwards so implied, necessarily, in Valin vs. Lang- lois.) 2nd. That the local Legislature had no power to tax Dominion •alaries (afterwards so held in Leprohon's case.) And though the tax- gatherer twice, or thrice I think, repeated his demands, the Government never attempted to enforce them. This, however, was only a passive resistance, though very clear, and acijuiesced in. Again, if I may refer to a matter entirely personal to myself, when I had occasicjn to apply for leave of absence in 1874, 1 applied to the Dominion Government, as being a Dominion officer; sending my application, of course, through the hands of tlie local Executive. And though that was opposed l)y the local Executive, who insisted that they alone had tlie power to grant or refuse leave, and declined to forward my application, and although, in order to save time, I complied with their wishes on that occasion, yet I felt bound to offer apologetic explanatiims (which were graciously accepted) to the Dominion authorities at Ottawa; and my view was upheld there, and the local Executive were informed to that effect; and now, when a Judge desires leave, he applies to tlio Dominion authorities alone. Of course, they receive and consider any report which the local Executive may think proper to make as to the local con- venience of the leave; but the Dominion alone grants or •refuses leave. How can they have this power, if the Judge is a purely Provincial officer ? So that the local Executive is not without notice of the views expressed to-day. Still, if it had been merely the Judges who were personally inconvenienced by recent legislation, matters might never have come to an issue. But what has brought this question at length into serious argument and necessitated the expression of a judicial opinicm by us is the recetit Act of the local Legislature, by which suitors are debarred from having any nisi priu.t decision reviewed except at intervals itf a whole year. And in the examination of the question whether such a denial, or at least delay, of justice is within the competence of the local legislature, principles must be laid down which no doubt desJ with an imi»ortant f)ortion of the local legislation here within the past few year.1. Mr. Justice Cooley in his treatise on Constitutional Limitations (page 195) says: "A judge, conscious of the fallibility of human judgment, *'will shrink from exercising this power of declaring an act of the legis- "lature void, in any case in which he can, conscientiously and with a due "regard to his duty and > fhcial oath, decline the responsibility. * * "But when courts are required to enforce the law as it stands on two "statutes, one local, the other paramount, they must enforce the latter "whenever the local law comes into conflict with it." Elsewhere he says that "the jurisdiction is only to be undertaken with reluctance, and will "be left for consideration until a case arises which cannot be disposed of "without considering it, and when consequently a decision on the point "becomes unavoidable." (page 199) But when it becomes necessary to decide on the unconstitutionality the court cannot refuse to do so. i'. iilH^ jtiHmimmwHmnmmiiuinnivViitimHmfmmniP^ imtnuum ^^^ m thr.ll M 13 Mr, Justice Cni (ley's treatise did not rcich Victoria until a year ago, but this extract describes very accurately the conditiou which this Court ha-s actually i)ursued since April, 1879. Having therefore noticed Mie greater part of the views pressed upon us by the Attorney-CSeueral, which in our opinion were not very impor- tant tu be considered at all, and which we disniisi) as not touching the real prt very iinpor- lot toiichiny the liiiility of tlie ira- |, viz: the British Ir. Justice Coul- those stated by peal cases, pa^e on? Is it witliin tiie power? Does •eating Act (or in 1 1" 1 think these nstitutioiiality of li the same effect 204.) 5 local Act, 1881, er to sit together shall constitute a in each year, at d by this Act be ill have power to w rules, provided irpose of carrying !\.dministration of but may vary as nay require. And ) Rules of Court riourt to be made lisagree with the lerthe Act, 1881, has boon left to titutional it can- ion, wliich incre- e Governor-Gon- il with a matter, sonable implica- egislature. This I 1)2 and its sub- th America Act, ■hed sections iu- North America far as I can see, 13 which can warrant the recent local loj^islation is to be found in section 92 and two of its sub-sections. Section 'J2 is in these words: " In each Province the Legislature "may exclusively make laws in relation to matters coming within the "classes of subjects next hereinafttr enumerated, viz: "Sub-section 13. Property and civil rights. "Sub-section 14. The administration of Justice in the Province, "including the constitution, maintenance and organi/jition of Provincial "Courts, both of Civil and Criminal jurisdiction, and including also Civil "procedure in those Courts." It must throughout l>e borne in mind that by the immediately pre- ceding section, 91, every topic of legislation was swept into the power — the exclusive pf wer — of the Parliament of Canada (viz: the Crown, the Senate and Commons of Canada) except only such matters as by this Act — not by any one section of it, but by the whole Act, — are exclusively assigned to the local Legislatures. If, therefore, a conflict arises between any general words in section 92, and general words in any other ])art of the \ct, or between exi)ress words in section 92, and express words in any other part of the Act, so that any matter which might otherwise have been supposed to be included in the terms of section 92 or its sub- sections, is also equally placed under Dominion control in some other part of the Act, and thus nut given exclusively to the Province, then by virtue of the sweeping force of the words in section 91 the Parliament of Canada has sole cognizance of such matter. For it would be contrary to common sense to suppuse that thn extremely careful framers of this lirit- ish North America Act intended to permit a joint authority in two en- tirely differently constituted bodies (the Parliament of Canada being composed of tiie Queen, Senate and House of Commons of the whole Dominion, and the local Legislature, consisting merely of the Lieut. - Governor and local House of Assenibly), and that, too, at the very moment when they were taking pains to distinguish and separate them. And the express words of the second branch of section 91 shows that when any authority is conferred on the Di)minion Legislature, it was intended to be an exclusive authority. We must also bear in mind that the mat- ters enumerated in the s.ib-sections of section 91 are not to be looked upon f>3 limiting the power of Parliament; and that on the other hand all the sub-sections in section 92 (so far as they are exclusive) are exceptions out of the otherwise universal grant to the Parliament of Canada in the first part of section 91. The first thing to be observed upon section 92 is, that its object and intention jis well as express phraseolgy is to confer a legislative power on a legislative body. The words of sub-sectitm 13 and the first part of sub- •ection 14 are extremely comprehensive. If they stood alone; if "civil rights and the administration of Justice " were handed over to be dea]t with by anyone department of the Provincial Government, the grant would cover everything that can be done by any of the three branches of civil government, the legislative, the judiciary, and the executive. But the sub-sections do not stand alone; nor do they contain any words of grant, '"hey are entirely governed and controlled by the operative words in the body of the section; and merely enumerate the topics upon . which the grant is to be exercised. And the grant is to a purely legisla- tive body, of purely legislative functions, " to make laws " in relation to civil rights aitd the administration of justice; and there is no grant here Mi mii4-:wmr,iitii!:miihwmwimmmnniii 'iumiiui'ir-i' liJSit. trJttt. i 14 to tho local Legislature enabling thonj to exercise either judicial or ex- ecutive powers or functions in respect of any of the enumerated topics. In detining, aasertinu, ascurtaiiiiiig and protecting civil rights, — in administering justice, tho share of the Legislature is probably the most important. Hut tlie Legislature has only a uharo in the work. A very im[)or:ant share in all tiiis business belongs to the judiciary; a very ini- portant share to the executive ahme; and it could not have been intend- ed to give to the Legislature power to perform both judicial and executive functions; and at all events it has not been expressly given. No part of the adnnnistratioM of justice, [)ro))ab]y. is more important than the safe custody (.f al'.ged criminals and the punishment of persons convicted. For these purposes the Legislature have authority to legislate — to pro- vide that prisons shall be built and constables appointed. But tliey cannot carry o:it their own commands; they cann(>t contract for the building of a lock-up, or appoint a constable, or determine whether an accused person is guilty or whether a constable does his duty. These matters are clearly left to the Executive and to tho Courts. The gift of power to legislate in relation to the administration of Justice, therefore, does not give to a legislature power to interfere in every particular in- volved in th it subject; but only in th(jse particulars which are the pr iper subjects of legislation. This may perhaps be made a little clearer by supposing a c<'nverse case. Sii]»pose that the Courts of Justice in each Province were by the British >orth America Act charged expressly (iw they are indeed most clearly charged imiiliedly) with the care of civd rights and the administration i>f Justice, wmild it for a moment ho con- tended that that authorized them to lajidiiir in refeience to civil rights or the administration of justice / And still less would such a p iwer be implied if they were directed to render all such judgments and exercise all judicial authority as may be required for the muintenance "f civil riuhts and in reference to the administration of Justice. Nothing but judicial powers would be conferred thereby on the Courts. And a i, I think, nothing but essentially legislative functions are conferred by sec- tion 92, which grants to a legislative body power " to make laws " in relation to civil rights and the administration of Justice. There might be somewhat to be .said against this view if it reduced section 9'2 to a barren grant; if there were nothing left ui)ou which the grant could operate. But this is by no means the case. The argument leaves to the local Legislature, fully and unimpaired, all essentially legisl itive functions in respect to all the matters enumerated in section 92; all matters of substantive law; all, surely, that could have been intended to be given to the Legislature of the Province. The manatremont of pul)lic lands and works, a large part of taxation, the whole law of inheritance to real and [)er8onal property, the rights of creditors against the person and property of their debtors, of husband and wife, the law of juries and Attorneys and numberless other matters are left to the local Legi.slature; executive and judicial functions, however, are net given, and therefore are expressly fiirV)idden to them, even in regard to these topics. The necessity, especially in a constitutional Government, of distin- guishing between the functions of the Legislature, of the Executive and of the Judiciary, requires no comment, it is a necessity indeed which may be said only tc) exist in a constitutional Government; for if these unctions be allowed to be usurped by any one branch, the Government will cease to be constitutional, and will be in reality a despotism; fftn Ttff judicial or ex« erated tuples, tiivii rights, — in ibably the most work. A very !vry; a very iin- |av« been intuiul- ial and oxouutiv* |ven. No part of lit than the safe jrsons convicted, esjisliito— to pro- ntc'd. But they contract for the nine whether an his duty. These ■ rts. The gift of ustice, therefore, ry particiihir in- ioh are the pr 'per little clearer by Justice in each ged expressly (as the care of civil moment bo con- ice to civil rights such a p iwer be ents and exercise intenance "f civil ice. Nothing but I'urts. And a>>, I conferred by sec- make laws " in ice. There might 1 section 92 tu a I the grant could ■guineut leaves to utially legislative ' in section 1)2; all ! been intended to lairenient of public A- of inheritance to 1st the person and aw of juries and local Lej[islature; n, and therefore e t'ipics. nment, of distin- he Executive and ity indeed which ent; for if these the Government ity a despotism; 15 whether vested in a Louis XIV., in a Venetian Council of Ten, or in a Liinj; Parliimeiit. And this may be one of the mecnings of Lord liiir- leigh's apotiiegui, " That England can never be ruined liut by a parlia- "meat." " I'ul.lic liberty,"" says HlackstMie (2 Stephen Hhickstnne, 4".>;J) "cannot subsist long in any State unless the administration of common "justice be in some degree separated both from the Legislative and iha "Executive power." And Chef Justice Harrison in his luminous judg- ment in Leprohon's case insists on the impurtancu of preserving the distinction (40 Upper Canada, 487). As to the line of demarcation between the Legislature and the Exe- cutive it has been well ob erved by a distinguishud writer (Doutre, Con- stitution Canada, page 104) that "in a constitutional Government the "Executive is merely the committee of management of the majority in "parliament." Ditferences of opinitm, therefore, as to whether any particular exercise of authority belongs of right purely to the legislature or purely to the executive are not very likely to arise. And if nny act of either should be called in question by the minority, as an encroachment on the other, the majority in parliament will generally sustain the action of their own committee, or be sustained by them, as the case may Vie, And this is especially probable in a single chamber constitution. But it is not necessary here to inquire into the boundaries between the functions of ihe legislature and of the exe-^utive. We shall endeavor, however, to distinguish to some extent the functions of the Legislature and of the Judiciary, and in the first place consider the subject of procedure, which, in the case of a Superior Court, is generally allowed to be under th« control of that Court. But then, what is proteJure? what is not ( It is clear that a Court of Justice ought not, under color of regulat- ing practice, or procedure, either to make a new law, or repeal an old law, affecting a suitor's rights in anything which may be the subject matter of a suit. But the forms, and ihe times, Jind the proofs to be observed and adduced in claiming those rights are matters for the Court to determine; unless the power be taken away. These constitute, I think, what may be called the jirocedure of the Court. Even such a matter as the limitation of actions in point of time is part of the modus procedendi (Story's Ccuiflict of Laws, [lage 677, section 99, and the authorities there qu'ited). So is evidence (Taylor's Evidence, section 4i). And as to moulding the commencement of actions, that was so ccmipletely in the hands of the Courts, that each had its own forms of writs; and it was in order to bring about uniformity of practice that the Imperial Parliament from time to time interfered in all these matters, as it had a right to do by virtue of its sovereign authority. But no legislature not sovereign ean interfere with or alter the procedure in a Superior Court unless special authority to do so be conferred on it by the Sovereign, i.e., here, by tlie Imperial Parliament. This power of Sujierior Ciuirts is, I think, unduubted. It is called a common law right (3 Cliitty, Statute 505, and the authorities there quoted, and re Story 8, tJ.xch. Rep. 198). When the Imperial Parliament has intervened, it has generally been cautious not to cast doubt upiui the power of the Court (as in the Common Law Procedure Act, 1862, chapter 70, section 223, sub fina,n). But this leaves the question still open, whether any particular matter is matter of procedure, or of substantive right or law. The i|uestion was very clearly raised and discussed, but ntit, I think, dttcided, in Poyser rs. Minors, (7 L. R. App. Cases, page 331). Iher© ml m •.■♦-•JVfi'ifi;*.- 16 the pr )per quDnim of County Court Judges had establish ml, as a rule of County Court proccduro, Uulo 9 of the 8cl)cduh> to the Judiciiture Act, 187.J, (giving a very stringent effecf to all judgiucnta of nonsuit). The majority urt of Appeal gavo etlect t<( tliar. rule of court, treating it ii» C'lucerning a matter of procedure mer.ly. Lord Justice Hramwoll dissented, thinking that this was a ma'ter of hubstantive law, and so, not within the coinpetuncy of a (piorum of County Court j>:dges to establish. The aiitual decision in Poysor rs. Minora could perhaps be supported in eithur view. If the rule tliere discussed were matter of procedure, then th»i County Court Judges had power to establish it. If it were substan- tive law, then beiu'^ in fact a provision of the schedule of the Imperial Judicature .\ct, 1873, which liy section (59 is part of the Act, it became by section 91 binding on all County Courts as well as on the High Court, whether they adopted it by general order or not. The majority of the Court in Peyser vh. Minors, and Lord J. Bramwell himself in Palles vs. Nepiune Insurance Company (5 C. P. D. 39), hf)Wt,ver, clearly expressed the opinion that the piiniseology in the Judiciiture Acts of 1873 and 1876, amounts to a legislative decLintion that all the topics treated of in those schedules arc matters of pure procedure, and on that accuunt, within the cojfnizance of the Judges to regulate. " 'Practice,' in its Lirger sense," says the lamented Lord J. Lush in delivering the judgment of the Court in Poyser vs. Minors (page 333), "the sense in wliich it was obviously used in the Act of 1856, like 'pro- "cedure' which is used in the Judicial Acts, denotes the mode of pro- "ceeding by wliich a leual right is enforced, as distinguished from the "law which gives or defines t!ie right, and which, by means of the pro- "ceeding. the Court is to administer; the machinery, as distinguished "from the product." If it be lawful for me to put a gloss on the words of that distinguished Judge, I should be inclined to say that the "Rules of Court" with which we more immediately have to deal, do not even mean the machinery, but are merely directions for usiui/ the machinery, including announcements by the managers of the department, of the times at which tlic machinery may be employed. "The orders and rules "under tlie Judicature Acts 1873, 187.'), are matters of procedure, and "are not intended to alter the law or the rights of parties," says Lord Justice Bramwell delivering the judgment of the Court of Appeal in Palles v.i. Neptune Ins. Co., (5 C.P.D., see j)age 41.) The jvords "legal "right," used by Lord Justice Lush, and "law, "and "rights of parties," used by Lord Justice Brannvell, mean clearly what Lord Justice Lu.sh terms a "product," — something quite different from the "right" which every suitor has to the beneKt of the " machinery," or of the directions for using the machinery; though, owing to the poverty of language, the same wnrd " right " may be applied in both cases. And it seems clear that it is only the " product " mentioned by Lord Justice Lush which comes within the meaning of section 92 of the British North America Act, and which the local Legislature has power to deal with. If we had now to decide that point we should probably follow those Judges. But it is not necessary to go quite so far. The only point actually arising for decision is as to the alleged restriction in section 28 on the sitting of a full Court for a whole year, and the attempt to give to the local Executive authority to appoint our sittings. It is more important to observe that what the Imperial Parliament has done is no ■ure test of what a local legislature may do: — and that not \ TiTmiiit^ihnnrsTtiPiUrtTmi'uhifii'fnmfiUi^^ liithi'i'-i!- [ishod, ftsa rule uf lo JuHiciiture Act, lof nonsuit). The I of court, treating [Justice HramwoU fe law, and so, not L'dges to establish, ^s be supported in >f procedure, then If It were substan- lle of the Imperial Ithe Act, It became bn the High Court, [he majority of the ^mself in Palles vs. r, clearly expressed s of 1873 and 1875, treated of in those account, within the 5d Lord J. Lush in Minors (page 333), of 1856, like 'pro- 8 the mode of pro- iiguished from the Y means of the pro- -y, as distinguished 1 gloss on the words say that the "Rule* 1 deal, do not even sint' the machinery, department, of the 'he orders and rule* of procedure, and larties," says Lord Jonrt of Appeal in The tvords "legal ;ht8ofparties,"used iistice Lush terms a ght " which every the directions for ' of language, the kud it seems clear istice Lush which ih North America 1 with. If we had lose Judges. But actually arising for >n the sitting of a give to the local I more important has done is no ; — and that not Tfr^ i // 17 even tlie Imperial Piirlianionf lias ever meddled with the point iif pruci'dKrc now in i|uc.stnin, viz: tlio lixin.; tin- days or inter vals of lioldiiiL; full Courts, (U-as tliey are termed in the KiiLjIisii Statutes, Divisional t'oiii'ls, for the review of iii. " H.f . mi our C'lpi'' tl>r> I'r'ti: b iNiU'tii .Vinerica Act;, " the legislarure cannot e.Kerciso jiowers which are "in their nature es.sentially executive or judicial." " We ai'o only at "lilierty," says Cooley, "to liken the power of State Legislatures to that "of the Imperial Parliament when tlu'y confine their action to the cxcer- "else of legislative [xiwers; and such authority as is in its nature either "judicial or executive, is beyond their constitutional power " (pages 108, 110 — unle-ss, I would add, authority to overstep ordinary legislative limits be expressly given in and by the creating Statute. Cooley is si)eaking of the States legislatures, who have received, he says, certain powers from their Sovereign, the people; but his remarks are, I think, exactly applicable to the provincial legislatures created by the British North America Act, who have received certain powers from their Sover- eign, the Queen in Parliament. And he says that a grant of legislative authority, though as plenary as that of the Imperial I'arliament while exerci.sed on matters essentially of legislation, does not enable the local Legislature to extend its hand into matters properly judicial, although the Imperial Parliament might do so, and might by express words have authorized them to do so, if it had seemed proper. The Imperial Par- liament, in its absolute sovereignty, can neglect at will fundamental principles. Further on he says, page 211: "When only legislative "power is given to (me department and only judicial power to an •b'ir, "it becomes quite unimportant that the legislsturo is not express.^ mt- "biddcn to try causes, or the judiciary to m.ike laws. The assumption "of judicial functions by the legislature is in such case unconstitutional "even though not expressly forbidden; for it is inconsistent with the "provisions which have conferred on another department the powers "which the (local) Legislature is seeking to exercise. " It must be ad- mitted that section 92 confers expressly nothing other than legislative Uih i ?/ii m I Hmtnmni.. W)ll?f""i^ """""'^^^^ yyii MM ^iuui:H4io a tinitter of suhstantivi' law, ariily, licrica Act ho tlie fct of imro le^'islii- lil over to iiiiutlior [is !icciir(liiij{ til the if tlicir jjowlts. Jeiited nur .uitlior- i-ney (leiicral as a iico " \i\ tilt! local 'i'X|iressiiin.s at tlu; ii|>s are of opinion v) is eiToneims, and 10 Judii-ature and of legislation. Tlio by the Act of the course do nothing But wlien acting ir delegate of the lave plenary powers )se of the Imperial |)erfec 'y agree, and ncur in the reasou- krstood here. They the higliest .sanction lerstand the passage, preceding and snc- he top of the next. below had examined ! competence of the H>ted (li'lcydfc," says, ■inciple to apply. A ;•; but has, within its 3n he proceeds imme- e Indian Legislaiure ndia and arm wi:h or, not created nor t creating the Indian t because that power iited by the Imperial e been going beyond hing. Now that is y, it confers on the e, nor conteniplatoa Jovernor-in-Council. "Nothing of that ire," and states what, done; viz: the legisla- purt and simple, was handed over to the Lieut, (lovi-riior to say in what territorial districts of his territory it should be applied, and at wliat date; as soon as these Wire fixed, everythin;; else, that could be called leginlatioi , had been fixed ano duly empowered thereto by section 17 of the Act of 1879. It might alm!'.u to existence, and !), (l!riti.sli North urt, of wliich the by the Dnniinion niericu Act), ction 14 docs not iiey-General's con- iiws m rolatidii to fer absolute iiower leir lu-ocediire and n the intention of aid this grant sliall organization of d: "and shall also ,' that a p( wir " to Ijii/ing Courts '' was ike laws in reference special words; and confer any power to ^ourts. Tnis seems contention, that no [iibsoliite jiower over Ihe st'ction, so far as is: The local "Leg- tid civil rights, and ivs may include laws ? of Provincial Courts in); and may include 'inirts so constituted, lear that the Courts ireme Court. Other- .t the least, superior es would have to be sary by the Dominion in Valiu ex. L,\nglois, Canada, and so by under the control of )rocedure and cvery- ich is contrary to the contemplated in the eluding most probably Coroners, Gold Com- ic supposed that when liners of the British " what is to be done lurts. tlie Judges, we urts, who shall settle 2al Legishiture decide are words of section ■ing Lord Selborne's iritish North America in the local Legisla- 21 ■^'ture?" And the answer to this is. I think, not far to seek. It is imt only extremely clear on tno Act itself, but In-.s in eflect been judicially settled by the ultimate authority in Canada, ai)pri.vod by the .Judicial Conimittee of the Privy Council. The stejis leading to this conclusifin are these: By section 00 thi- Judges are to be appointed by the Governor General. By section fl'J they are I'emovabie by the same authorit}', on the address of the Wetiate and House of Commons. By section 100 they are wholly maintained by the Parliament of Canada. The I'rovince has no voice in any of these matters. How can it be said that the Judges are exclusively Provincial officers! And if not exclusively Pifnincial, then they are officers of f'anada. " If an oflicer is employed l)j' the United States," says Chief Justice Marshall, " he is an officer of the United States." (United States Ks. Maurice, 2 Brock, see page 102). Tlie Governor-General directly represents and, so to speak, personates tlu^ Queen. The Lieut. Governor, from whohi strictly Provincial a])[)ointments emanate, only represents the Governor-Geneial. The effect of the appointments is ditt'erenr accordingly. Surely the Judges of the Supreme Courts, selected, com- missioned and paid, and removaljle by Canada, are employed by Canada, and so, officers of Canada. On that very ground the Province has abandoned their claim to tax our incomes ; and the Dominion Executive ha\ e instructed the Provincial Executive that they alone claim the right of disposing of the judges' services, as by imposing other duties; and to teiii[iorarily dispense with their services, as by granting them lea^'C of absence. These matters are not conclusive evidence ot tlie meaning of the Act; but tiiey are very cogent evidence; deliber- ate opinions of high Executive authority ; repeatedly made by the Domin- ion, and submitted to by the Province ; and what is most important, judicially approved (so far as the (piestion arose) in Valin va. Langlois. In fact, bill for the course of British Columbia legislation for the last 3 or4ye:irs, every authority, both of the Dominion and of the Province, would seem to have been entirely of one mind ever since 1874, that the Judges of the Supreme Court in any Province are Domii'ion officials. The coiise(]uences are not far off. By section 129 (upon the import- ance of which in this argument the Jugdes rel)' in Valin rs. Langlois.) "All laws in f )rce in Canada, Nova Scotia or New Brunswick at the "Union, and all legal commissions, powers and autliorities, and all officers "judicial, executive and ministerial, existing therein at the Union, shall "cimtinue iii < (nta'-io, Quebec, Nm'a Scotia and New Brunswick, respect- "ively, as if liie luiion had not been made, subject nevertheless to "be repealed, abolished or altered by the Parliament of Canada, or by "the Legislature of the respective {irovince according to the authority of "the Parliament or of that Legislature under this Act." Now it is perfectly undoubted tha*. the Supreme Court of British Columbia, and two of its present judges existed in the Colony of British Columbia at the time of the Union. They, therefore, continued to exist in the Province since the Union ; and so do their commissions, their powers and authorities as if the Union had not been made. The change of name from "Canada" to "Quebec" and "Ontario" in the above sections is suggestive. It is not that the former Provincial Courts, Judges, etc., in the old sense of "Provincial" are to become "Provincial" in the new sense. On the contrary, the former Courts and Judges with all the powers and jurisdiction over a'.l matters, both in secti(m 91 and section 92, ttMtUmii,, • \^ ■*,■ SulnMiiM ^^^^^^^ tiuiitiuitm fmmmmmmmmmmnm^ ^ ji Mm 22 92, in short, as they existed in the completely autonomous provinces, are to be continued after the Union in the same geographical limits, though they are now called " provinces " in quite a different sense. All the Judges appointed since confederation are by their commissions expressly to have all the [)0vvers and privileges of the other Judges. Among the powers and authotities which tl'e Judges undoubtedly bad under tlio British Columbia ordinance of 18G9, contirmed by the British Culumbia ordinance of 1870, are all the powers and authoi'ities (which as to rules of procedure are extremely full) of tiie former Courts of Vancouver Is- land, and of the MainLmd, and of the Judges iheroof, (18()9 Merger Act section 11). And besides this, the Act of 18y an ordinance of the ensuing year, immediately before con- federation. All these powers and authorities the section 129 preserves inviolate, until abolished, repealed or altered by the Dominion Legisla- ture or the Provincial Legislature, according as either shall have au- thority under the British Ntirth America Act. But the Judges are Do- minion ofhcers, over whom the Dominion Executive and Parliament have between tliein, by sections 90, 99 and 100, the fullest authority, and over whom the Provincial Executive and Legislation have no authority at all discoverable by the Judges in Valin vs. T .uiglois. The powers and au- thorities, tberefiire, by the British Coluiulua Colonial Ordinance of 1809 remain intact at this day subject to the powers by section 129 expressly reserved to the Dominion Parliament. I do not think it can be argued, at any rate it was not argued, that the distributive words at the end of secti(jn 129 have reference to the subjects handled by the Courts, officers, itc, and not to theCourt3,otticers, &c., themselves. In the first place the words of the statute are perfectly plain, and contain no reference to any particular topics, the passive sub- jects,!, e., enumerated in sections 91 and sections 92, but only toper- sons and their powers, active agents, owing allegiance to the one leg- islature or the other. And when construed of such, it is perfectly reason- able and clear. If it be attempted to be applied to tlie enumerated topics in section 91 and section 02, it leads instantly to quite absurd confusion. It would provide for instance that the Dominion Parliament alone had power to legislate concerning the procedure in trying a question in the Supreme Court here concerning the postoftice, or shii)piiig, or currency, or any of the matters in s-'ction 91, or rather.not expressly mentioned in section 92; but that in trying a question on any of the subjects enumer- ated in secti(pn 92, the Provincial Legislation is to have power to deter- miue the procedure. And we should probably have the D(nninion Par- liament enacting (if it thought tit to legislate on such a topic) that a Full Court might consist of two Judges, and should sit whenever recpiired by the business of the suitors, and on such notice as it should think proper; and the Provincial Legislature declaring that it must consist of three Judges or more, and must not sit oftener than once in a year, or, as was put in argument, once in five years, and at a time appointed by the Ex- ecutive. Nay, we should have greater confusion still, and indeed, abso- lute contradiction. For as the Legislature having authority may under section 129 go so far as to abolish these former c»urts, it is clear that (if we are to ascertain the respective authority by reference to the enumer- \ immif' . • ' < ' •' •4 «.*1.^^, in provinces, are limits, th(iii<,'li Iseiise. All the isidns expressly !s. Aiudiig the liiid under tlie ■ritisli Ci)luiiibi» ich !is to rules If Vjincouver Is- 8(59 Merger Act Jiuthority to the irders, rules and ratiuii of justice lisiscoiifirmed, as [itely before cou- u 129 preserves DUiinioii Legisla- ir shall have au- Judges are Do- Parliament have tliority, and over () authority at all l)o\vers and au- Jrdinance of 18G9 rion 129 expressly not argued, that reference to the he Courts, otticers, atuteare perfectly 1, the passive siih- , Vjut only to per- e to the one leg- i perfectly reason- enumerated tojjics absurd confusion, iameiit alone had ;i question in the )ing, or currency, ssly mentioned in subjects enumer- 'e power to deter- le Dominion Par- topic) that a Full ever recpiired by juld think proper; consist (if three I year, or, as was inted by the Ex- ind indeed, abso- ority may under t is clear that (if B to the enumer- ated topics in sections 91and92) we might have theDominion LugisLiture keeping this Court on foot for determining allquestionsof bankruptcy, currency, itc, and the Local Legislature abdlishiug it so fur as rer^anls all questions of inheritance, (jf legitimacy, or of civil rights generally . And the Local Legislature are to have power to do all tins, though they are to have no vuice in the removal of a single Judge (section 99). It is in my opinion imiiroper to force the words of a statute out of their natural meaning with the sole result of introducing confusion and contradiction. Moreover we must not forget the clear words of section 91. Whatever is not eivdusively given to the province, fills wholly to the Dominion. And even according to the forced view of the latter part of section 129, which I have been endeavoring to indicate, it is at all events quite clear that power over the Supreme Court and prooedure therein would not thereby be exclusively given to the Province. Therefore, by section 91, it is exclusively given to the Dominion Legislature. And with this view agrees al.vo secti(ui loO, which is to be taken in connection with the conxluding words ot section 129 which it immedi- ately follows; being in pari vmte.ria, and, I think, intended to explain them: "Until the Parliament of Canada otherwise provides, all officers "of the several Provinces/ [i. e. before confederation] "having duties "to discharge in relation to matters other than those coming within the "classes of subjects assigned exclusively to the legislatures of the Pro- "vinces" [after confederation] "shall lie officers of Canada, and shall "continue to discharge the dutico of their respective offices as if the ■"Union had not been made." The Attorney (General treated this clause very briefly, dismissing it as quite irrelevant, though I think even if it stood alone, it would suf- fice to dispose of the whole case. He said, as well as 1 could follow him, that it was intended to apply only to officers after confederation whose dutii^s were confined exclusively to matters outside of sub-section 92, 93. But it is evident that this is not the natural meaning which would be put by a person of ordinary understanding on section 130. And an Act of Parliament loquitnr ad nihjas. In fact, in order to support this mean- ing iiome word like "merely" or "solely" must be introduced, and the tenses employed entirely disregarded, "Having duties" means properly "now having," i.e. at the time of passing the Act, though it might mean "who shall at any time have." But the terminating words "shall con- "tinue as if the union had not been made" shows clearly that the sec- tion is speaking of oflicers existing before the unicm, i.e. in the "Provin- ces" while sMU autonomous, and therefore of officers who might well have duties over many matters both in section 91 and also in section 92. As to these officers a ditficidty, it was foreseen, might well be felt, whether they were to fall under the authority of the Dominion Parliament or of the Local Legislature, under the distributive words at the close of sec- tion 129. Thereupon this section 130, following naturally on the last words of the previous section, is obviously intended to meet that diffi- culty and explain the position of these officers with dual duties. They shall be officers of Canada. The construction suggested by the Attorney General, besides the objections pointed out, would lead to this conse-^ quenco, that the framers of this treaty of confederation, as it is not im- properly termed, thought it worth while to provide for a case which was perfectly clear, and omitted to provide for a difficulty which must havi^ been immsdiately present to their minds; indeed, forced on them by the iUU tHtiiU.iiHh. fm mMMiiliW mimmmmmmmm M MiU ! 2i concluding wofds of section 12D. There could be no difficulty, in tin- case of ollicei's wliose duties were pufely of Doniiniou eugni/iance, though locally dwelling and working in a l^rovince. In souio Province they must dwell, aiul work, if they wete to dwell and work in Canada at all. The only difficulty that could arise was in the case of otHcers wiiusc duties partly concerned Canada gener.dly, partly the I'rovince (the statutable Province) alone. This, however, according ti.i the Attorney (Jeueral escaped the notice of the negotiators; and they introduced a merely use- less proviso. Useless, even tor the Attorney Uenerars argument; for on no possible construction can it be su[)posed that suction I'M hands over any officer at all to the Local Legislature, which is the proi)osition he has to establisii. This proviso, section 130, even as the Attorney (General reads it, certainly gives to the Province no exclusive power over any (officer or thing whatever. Tliere is indeeil a short sub-section in section 92 which the Attorney General did nut tiiink it necessary to discuss, but which seems wholly irreconcileable with his position that the Supreme Court Judges are merely provincial officers. I mean the 4th sub-section. "The Local "Legislature shall have power to make laws in relation tu the e?stabhsh- "ment and tenure of provincial othcers, and the appointment and pay- "ment of provincial offices. " But by the almost immediately following sections of the l}ritish North America Act, it is the Dominion aiitluu'iiies which have to appoint, remove and pay the Judges of the snperifjr Courts. If these Judges are provincial officers, it seems to follow that not- \vol"omini(m Parliament 1 oiiicer, t'o nouiiae. en to be purely pro- lier to Provincial or onialous. If held to becomes natural and , 130, are evidently North America Act; d, i. c, concernintj ver absolutely to the nieral importance to iCgislature. And in division of functions I County Courts in lole Dominion, were 2S to be presided over by oflicers of Canada, and to be subject to the con- trol of the legislature and executive in Canada, — Courts inferior to these, if created by the local legislature in any province, being left to be dealt with by the legislatures which called them into existence. And with this seems also to agree section 94, which provides that "after the passing by parliaaient of an Act for Uniformity and civil "rights, etc., and procedure chroughout the Dominion" (ccjiifirmed and "adopted by tli3 provinces as therein mentioned) "the power (jf parliament "to make liiws in respect of such matters shall be unrestricted." That is to say, not that p.irliament shall then for the first time have power, but that the existing restrictiims shall then f(jr the tirst time be removed. There seems to be, as I read the British JJorth America Act, one restric- tion on the interference of parliament, and only one, (viz.,) section liJ9, confining it to Courts held before officers of Canada; and section 94 seems to allude to this. I do not say that this is the only possible gram- matical sense of section 94, but this interpretation supports and is sup- ported by many other sections of the Act, whereas any other interpre- tations seems to raise anomalies. For the language of section 94 and of many other sections seems hardly compatible with the notion that until the passing of sucli an Act as therein referred to, parliament is to have no power whatever to legislate concerning a single court in the whole Dominion; and that by simply refusing consent to any contem- plated Act, any province could forever condemn the Dominion Parliament to perpetual impotency. This would soon compel parliament to exercise its undoubted power of extinguishing all the superior corirts in the Do- minion by simply leaving them to perish; and then it would fall back, probably, on the power of creating new courts under section 101; but whether tiiese would meet the difficulty, tfHmHiitttOttin>4iHp rmTTTrtfffffff/- "f*" ff*# i i that the Registrar t the position that Valin and Langhiis, rity of the I'arlia- ne, for they cannot [t cannot atl'ect the the puv'crs and au- dicial officers") had Mtion, until altered 130, that we are to not been made." ested themselves to ature. Some of the een told, new; not ises; indeed, rather le proper force now n subsection 14 of "exclusive" in sec- i must appear from . 'i'he restriction of IS, so that no grant ded to be conveyed ) The application of , that if the clauses idicial, they are net if essentially leg- The application of rds of section 129, so ly power, the Local have endeavored to s "Province," "Pro- -But the question is ether they are true; with the principles Langlois, (3 Canada hope, explain away cted against that de- demn these sections t them inexpedient; lature. That is un- er, they alone must iiting out that recent 1 but at the non-ad- )f the wisdom of the ! removed these mat- control of the Local , that if the Judges of n no u need the resolu- ul in some respects, jnces, one in Queen I on the Seuiilkameen I further announced 27 that we would not listen to siutors soekinj,' a review if a nhl prina decis- ion, save at intervals of 12 months, it seems highly probable that the indignant and injured suitors might readily have i)rocured addresses from the Senate and House of Commons to remove us from offices, the duties of which it might be truly said wo had practically re- nounced. Not, however, on account of this unreasonableness, nor because it contradicts the text of Magna Charta (an Imperial Act); but for tlie reasons I have alleged, I think that the provision in section 28 of 1881, chapter 1, fcjrbidding a Full Court to be held save at intervals of a year; and section 32, chapter 1, 1881, and section 17, 1879, chapter 20, so far as they assume to create rules of procedure in the Supreme Court, or to authorize any other body of men tu make sucli rules, are unconstitutional and void. Mr. Theodore Davie for the plaintiffs contended that the whole of additional rules ofCourt, theso called "Aniendments"must be condemned, on this ground: They are founded, iu the main, and almost in every detail also, on the words and spirit of section 32 of the Act, 1881, (viz.) with the paramount object as expre.ssed in that section, of carryintiout the Local Statutes of 1878 and 1879 with reference to the districting of the Judges of the Supreme Court. That those Acts are all in pari nuderia with the Acts of 1881 c. 1, and therefore must be read together; (Water- low r.s. Dobson 27 L. J. Q. B. 55, and sec. 2 App. Ca. L. R. 7G2), that they are eminently and flagrantly unconstitutional; and that these ' 'amend - *'ments," made avowedly in order to carry out unconstitutional Acts, an object to which the rigiits of the Dominion and the convenience of pri- vate suitors are alike sacrificed, must be declared to be of no efl'eci.. Mr. Theodore Davie further urged that an Act oi the Local Legisla- ture may be declared void, judicially, not only for direct conflict with or transgressions of the British North America Act, bat for any obvious repugnancy to or hindrance of its intention; according to the observations of C. J. Harrison in 40 U. C. 488, and Hawkins vs. Gathercole (1 Deg. M. and G. 1). And, without iu the least disputing the power of the Local Legislature to divide the Province into such districts as they may think fit (the term "district" since cinfederation seems unimportant) and to appoint and maintain in each district such Judge or Judges as they may choose, and who uuiy be able and willing to serve (persons under other engagements would probably require in the first place the sanction of their employers) and to confer on their new courts such jurisdiction as they pleased (subject always to the review of the Supreme Court) it is of course obvious thai there are many grounds on which divers ckuses of the "Judicial Districts Acts" may be impeached. They may be said to be directly in the teeth of section 129. Can anything, it may be asked, be more clear and express than section 90 of the British North American Act, — "The Governor General shall appoint the Judges of the Superior "District and County Courts in each Province"? Can anything be a clearer infraction of that provision than section 3 of the Local Act, 1878, which says that after that Act comes into force, the existing County Court Judges shall no longer preside in the County Courts, and that cer- tain other designated i)ersons shall perform all the duties of the County Court Judge ? "An office," says C. J. Marshall, cited approvingly by C. J. Harrison (40 U. C. 491), "is a public charge or employment He "who performs the duties of the office is an officer. If employed by the ' ' United States he is an officer of the United States." It may well be ifii m i'.iii, M ijim mi m M tun Xtf.l 1 'itiiil tiUl fit: <**imm^i4^. mimmiuiiiiiuiniminiv} finm uUuiUiuutii, mmmmmmmiummimmmm mmmmm 'MwmHV , tittr ! 1 1 i:J argued, that if tlie Louil LegiHlature can, nutvvitlistanding the above sec- tion, arbitrarily forljid any one class of the officers there mentioned to perform tlie duties of his office, and command such i^erson as they may choose to perform these duties, they may equally displace and appoint Bubatitutes for tliem all, including tlie Supreme Court Judges. If these assumptions are legal, it would soeni, as the Attorney General alleged, that the Lnual Legislature is ruiUy omnipotent; and it is difficult to see why it should not with equal autliority depose the Lieutenant (iovernor and appoint some other person to perform his duties. It is true, by sec- tions 58, 59 and 00 of the Hritish North American Act, the Lieutenant Governor in e.ich l^rovnice is to l)e appointed by the Governor General, removable by the (J5ovcruor General, and paid by the Parliament of Can- ada. JJut tliese are i)recisely the authorities who appoint, remove and pay the Judges of the Superior, District and County Courts in each Pro- vince (District Courts in these sections mean courts constituted before confederation). Indeed it might be argued that the position of the Lieu- tenant Governor was weaker than than that of the Judges of Supreme or County Courts, for these are protected against the etl'orts oi the Local Legishiture by a special clause, secti see ioiitenrint (Juvernor It is true, by sec- Act, tile Lieutenant e Governor General, } Parliament of Can- ppoint, remove and Courts in each Pro- s constituted before position of the Lieu- udges of Supreme or ellorts (jf the Local ■eas the Lieutenant J no such protection. Acts, from their in- 5sible, stronger. The ill the Judges, in the dominion or by the dges in distant local- F hearing or entering reciate their judicial man was so good a ,s at the beginning of inmble advantage of ble the whole Bench. t deprives the suitors 1 by the absentees, our colleague, Mr. rence of oijinion be- ■ould have rendered Icliver a judgment of o real majority. The lall try, or sh ill not do not contemplate, Lgo in any one place, of the local execu- ary. Coke says that several judges shall le Crown enjoy that y, would seem to be ow at the indepen- lew district may be •euted to reside at lin to say that the ict is now to be the judges merely d must act solely on the information of tlie local executive, who would thus acquire complete j)()wer to pnck the Honch as they j)leased, and obtain what docisinna might suit them. IiKlciioiideiit minded men would not accept or retain their apiniintnieiits on such terms, and .lubservieui, miMi alone might oc- cupy the .scat of judgment in those parts of the Province where suits were likely to occur. It may well be argued, and il was argued, without any answer being iittenipted, tliat a grant of power to the Executive (with apparently a l*arli.imentary direction to use it) to liiy down wholly varying rules of jiraclico in ditt'orent parts of the Province with the express oliject of carrying out acts jtrima favAe uncon- stitutional, for the avowed purpose of directing the conduct of non-e.\ist- ing courts, and with tlie result, piilp.ible and obvious, of impeding and, in fact, preventing access to an existing court;, must be for those grounds alone unconstitutional. And ])erhai»s those grounds would be suthcient if, after argnnuMit, we should determine that they were well taken. As these arguments were nii.sed I notice tlicmi. I give no opinion uiionthem, beciiuso I think the sole point before me may he quite satisfactorily de- cided in the fuiswer to these (|uestions : 1st Are the sections 28 and 32 of the Act of 1881 (so far as they hold in Victoria f.T the year 1881 on Monday, the 19th "day of December," — and able thereunder to dispose of the Thrasher case so as to enable the parties dissatisfied to appeal to a higher Court? If we are not a full Court under that assumed authority, are we, or can we become able, as a full Court of the Supreme Court in any other way, to give the relief souyht ? Jf so, it will be our duty to give it. The considerations and reasoning which will be absolutely necessary to enable us to reach such an end, will also of necessity oblige us to deal with the fundamental princ'; '. o ihat underlie the whole case. These will compel us to consider also the points raised by Mr. Theo- •dore D.ivie, for our course must of necessity be dictated by the case before us, and proceed in an inverse order to the argument of the Attorney- General, and in doing so to consider as including all Mr. Theodore Davie's points several vital questions in connection with — (1.) Tlie authority of the Lieutenant-Governor-in-Conncil to make the " amendments " in question. (2.) That of the local Legislature to delegate the power. (:i.) Thit of rhe local Legislature to make such rules of procedure themselves and legislate thereon direct. And as an integral part of the same system of Supreme Court legie- 11 « m w jti 1 i tiil !«!'!!!•.'•».'!»», wnmmm'Mimmmimnmmmmi' 'it^m'tui^ , liliVA m I J 82 liitinii nforiL'd fn us by tlio plaint iff in tliis c iso and nitt'd in lU'ginii v». Vioiix Vii'liml: — (4.) 'i'lio [mwora cliiiuicd by tlio local LegiBlatnio to break up (ho re.si(loiiti;il unity of tliu Jud^os by distributing them about to roside in distant parts oljlhti prov iiice. Tliu lirst matter which ins to be discussed is tliat last advanced by tlio Attnrney-(Juneral, vi/: tlie allei^'atnm tliat l>y three judgments, outt by eacli of the three Judi,'es now hero, viz: Saunders v. Ileid Bros, by tiie Uliief Justice,- Harvey vs. the C(U'[)orjui(Mi of New Westminster by niyselt— and l*ani[)hlet, V3. Irving' by Mr. .Justice (Jray — the inimediato question l)efi>ru us was already settled; fur that each Judge had autliori- tatively aciviiowledged tliat the Lieutenant-(j!o\orn(U'-in ("nuncd was the only i)ro|ier autiiority to make Rules if Procedure for the Supremo Ciuirt. 'I'vvo out of the three were shown to be iimccuiate versions of what was decided and tlie reasons; and 1 regret that I ha\e had no op. poitunity of ci)m|iaring my own judgment with what purjiorted to be a Srinted copy, as the original lias not, that I cm h'arn, been returned, udges iiiul Ciuii'ts can not bo bound by copies of decisions suddenly Bprung on them in a very seri(Uis cise, and which tliey have had no pre- vious opptU'tunity of revising. It i.-* an invariable practice fi>r judges to revise tiieir judgments previous to tluur being produced a^ authorized reports, liut it, ar;,'iienilo, the alleged cojiies were all ciurect, none of them atl'ects to decide (he i>oint; as that (pieslion was never raised in either of the ca-ses; but the contenii(U) was in the oinjusite direction; so of cour.se the point cmild not be jmiicially decided. Tlie headings (Ui each alleged copy, which atl'ected to record a deci- sion allirming the power of the Lieutenant-(iovernor-inCouncil to make rules and regulato what kind of i.-ases slmll l)e !ipi)ealed to the Supreme Court and what not, were entirely unauthorized. All that the product: ui of these jiidgnuuits goes to slmw is, that each of tile three Judges named was eudeavcu'ing to find a way out of a deadlock' in the admin.. .l"ation of Justice which the rule-making body had produced, and sit la.'-t nicceeded m doing so. The jioiuts now raised have, t!n;n!fore, std! to be decided. Reluctant as all ju '.ges are, by ediuiation ami habit, ami the con- servative nature of tiieir daily avocatiou, to enter into delic.ite con.-stitu- tioual (juestious, (U' to shake the stability of either legislative or judicial institutiiuis (the breath of wliose life, the sole seiu'i^t qitestion. VVithi ut our ^iving a decisiiui the appellants wiuild be debarred from obtaining justice. By our rendering a judgment in the premises either party -.ggrieved there may appeal the same to the Su])reme C"nutr vd ill lU'giim rs. til hreiik up til 'J out to rcbitlo ill list advanced hy jUllj^MK'llts, Olltt V. Iluiil IJiiis. Sew West mi lister ' — the iiuniedidte (lyo liiul iiutluiri- Cnuncil WiiH the iir till! Supt'eino iiiito vei'.siiiiis tif l:l\o hiul III) iiJJ- ur|)iirted to lie n I, liucii rotnrued. elisions suddenly have liid im l)ie- ;tice fur jud^'OH to ed !i> authorized correct, none of 1 never niifod in site direction; so to record a deci- [i-Council to make I to the Suprenie to show is, that id a way out of a rulc-iiiakiii;i liody ; jiointa now raised hit, and the con- delicate coiistitu- islafive or judicial f whose iiower for u), they are espe- m-i'lves consid''red vstiyalion. Wiien, ps in and compels shew that there is ipen the door foi have liccii sent Canada at Ottawa on t.h'> question, he debarred froin le premises cither Supreme Court at ;o the Privy CoUn- 33 There was also another matter, thoiij.'h of very fccoiidaiy interest or KiportHUce, and not in any \\t\y nccissary in tlie (leteiniinntioM of any of the points raided; hut alluded to hy ihe learned Attoi ik'.\ -(leiicial in ins •r!,'iiiiieiit, wliicli de>erves a passin;^ notiie. He (|iioleii an imideiital allusion in the judgiiiiiit of tlie 'Snpicine (%iurt in the .%iclA'aii case to all earl .' proclainatioii clothing the Hrilish ('(diimbia Court with QiHcn's Beiicli powers. He stated as the result of his eiKpiiiiis tiiat ni tliiii^^ Could he found hut the rou<>h draft of it ami f dealinsj with th« JO. Indeed, it is a tituted Le;;islatnre, lat Act, 12 and 13 lie 4th April, 1856, Isliind was created Queen's Commission Needham, until the urts and their several led !ind handed ddwn Sir Miitthew Baillie uisne Jud<^e. Now, upreme Court " full rs of C(Uirt to be by e shall seem meet to i and Regulations as and place of holding er of proceedings to pleadings, upon all il information to he nission of barristers Hid fees of Court and us necesaa.-y for the ICourt." '• And all leediiiL^s were to be nd Forms in use in ty at Westminster " sr under the 8i)eci.. o the said Supreme ily, jnflge and deter eafter in force within ron's-Coinmission and rs whatsoever. Civil n Council will shew if were as ample as adn dirt'ct from the ; constituted by the A Colony. And in 35 the consideration of that Act the construction of law is iu favor of the present Court. For if there be .anything more advantageous to it from the Vancou- ver Island Court, to whom it is heir, being of more direct Imper- ial constitution under this Act than under any others, then this Court »nd its Judges are entitled to the benefit of that advantage under the judgment of Jessel M. R. in the case of " The Eiirick 6, L. 11., ProbaU ISJ), where ona question, as towhich of two Acts afl'ecting the same sub- ject matter should apply, —the Thames Ccmservancy Actor a General Act, the learned Judge says: *' The answer is that the powers given by "Thames Conservancy Act are so much more advantageous to them that "of course they were acting under those powers, and not under the gen- "eial Act." In all the period from 1857 up to Confederation no change whatever could be made in the Courts or the Judges, except with the express consent of the Queen through the Colonial OHice first had been obtained; and no attempt was ever made by the Colonial Legislature to deprive the Judges of the power of making Rules and Orders for the regulation of the procedure of the Supreme Courts. Such a thing would never have occurred to them. It was left to a Legislature of far inferior powers to attempt it. The English Law Proclamation of 1858 introduced such of the Stat- ute law of England as was not inapplica))le, and all the Common Law (if any) a-« had not been bi-imght in as their natural heritage by the colonists themselves when they settled in the country; and the Supreme Court of Civil Justice of British Columbia recognized and acted on the procedure in Common Law, and in Chancery, extant in 1858, and contained in the Common Law Procedure Acts, which were then new but whose practice had been tested and settled at home. In this and some similar respects the Supreme Courts here were, little as it is imagined in the East, faraheadtifsouieof the chief Ciuirts of older Canada. It is true these Procedure Actf^ were i'uproved and amended by the Common Law Procedure ()rdin;M;ce of the 9th March, 1809. And the local Legislature always with the s.mction of the Crown and subject to a very active power of revision a'.d disallov^ance made various changes in the Courts. IJut the right of tiie Judges to make Rules and Orders of practice and proce- dure was ciirefully preserved through(»ut. The CioveriK/rof tlioColonyhad always an immediateand unrestricted power of disallowance and reservation in constantuse, and this continued unabated up tol871, when HritishColumbiajoinedtheConfederationof the Provinces, which constituted the Dominion. What transpired up to the Union in the interval between the first establishment of the Supreme Courts and the time when British Columbia joined the Union is, how- ever, scarcely of any great value to the determination of the question which is set before us by the Thrasher counsel f. r solution. Neither is it of any importance to a decision ^hiL the high contracting parties before the Union while the negotiations were going on would have liked or proposed to do. To us in British Columbia— jje/irf'H.s fo'. Linglois, Heginau.f. Burah, Severn (WthoQueen, and others, whe- ther in Canada it self or in appeals to the PrivyCouncil in England, seem tend- ing generally, though gradually, to the development of the jiowers and authority of the Dominion as the nece3. Thv; poin^ to be settled is a legal one. We have to regard it fnun ;. strutly Ijgal point of view. It is this consideration, it is the effort to arrive at this, which ii.v: caused the Jud^'es of this Court so much and buig anxious thoin/lit and deliberation. The whole ()ue'*tion has be^n before them for some time, and individual opinions have changed and varied, Ivickwardand fe projodure of the Courts in matters criminal and civil- -vi/: Sectioij .■ whieli produced the miscarriage of Just'ce in the first trial of the Re:'iija vn. McLean and Hare murder casp, ai ' Section !7, whence arose the preser.t difficulty. This Section 17en.,'-'ed tho Lii-utenant Governor-in- Council to miko llules and Oialers •r:-' govern dl procedure of the Supreme Court in Cuirt and in ChambeiT, all f • uu witnesses, evidence, duties and rights of C(umscl Officers, lescending even to costume; fol- lowing the Judges almost into private life, abolishing the long vacation, mtifiwi'iiF , ■ mnimi ilear, of the con- cially its Cnurfcs, y a careful study vn^e at this day to at ue^^otiatiuiis ara there is no pr(i[)o- s t(i II contract Jire marked reference jchea of the <,'reat Act itielf, ami th© 'ontr;^.;t tb'^ elfect d oh at tilt ■ it of adu -ly (U ■ 3.<.»|)ed, 1 shouil fii'isc, and prnvi.sions, from iiiiinioii. Truth in ccordin'^'ly we learn opinions ot various es tliat have from jsofsuch juil^ I it from i. strictly at this, which ii.v; ixioiis th, u which produced sucli results would not have been possible; or il . mpted, would at onci; have disappeared l)efore the universal op- position and disapprobation it would have elicited; — but the distance of British Columbia from Canada, the difficulty and delay of communication between places tliousands of miles apart the disinclination of Judges to make complaints and the still greater disinclinati(jn of the recipients to listen to them, the utter disc(jnnection of the Judges from the smallest political influence to attract a hearing at headquarters —misrepresenta- tions whether unintentional or otherwise, not only of their motives but their most ordinary acts, made their situation and position a very hel[>- less, it might ahnost liave been said a hoi)elesa one. At length the present case arose. Tlie plaintifi's American merchants of influence were turned over in a case heard l)efore a single Judge of tliis Court in which nevertheless they conceived the right remained with them. They were sent direct from this Court under section 9, (although ev- en that I see is not free Svnn douUt) of the Supreme and Exche(juer Courts Amendment Act, to the Supreme Court at Ottawa. These, after argu- ment, refusing even to receive the application, sent it back t" British Co- lumbia to obtain the decision of Judges in the liighest Cnurt, here, be- fore they could be heard in appeal and with a view to a pi)ssil)le ultimate resort to the I'rivy Council of Euglaiul. There is no help for it but that the Judges here should address themselves decisively to the solu- tion of the issue placed before them. In this Thraslier case therefore called ui)on in due form of law, it is their imperative duty to render a decision. Then for the first time commenced the serious eucjuiry among the Judges, what were the relative autlmritiesand powers of the lfic;il legisla- ture, th(! Lieutenant-Governor in Council, and the 8iii)reuie Cuurt aiul its Judges, in respect of the matters before theui. 'J'heir luvt duty, the rirst duty of every Judge, on a legal (jue.^tion being presented Un- decis- ion, was to satisfy themselves they had jurisdiction to proceed to hear and decide tlie matters at issue. That depends in this case on the valid- ity of Rule 401 A. That again on the power of the Lieutenant-Govern- or in Council to make the Rules. That, on the i)ower of the l>cal legis- lature to delegate it to them; tl\at, in its turn, on the power of the local legislature to pas from the smallest rters — niiHrepresenta- of their motives but position a very helii- i American merchantB jre a single Judge oi e riyht remained with !cti(ni 9, (although ev- and Exclu'ciuerCourts . These, after argu- , it back t" British Co- hest Court, here, be- ' to a pi)ssil)le ultimate I is no help for it but decisively to the solu- irasher case therefore ,tive duty to render a is enijuiry among the ers of the local legisla- lie Supreme Cuurt and Tiieir fir>t duty, the g presented for decis- II to proceed to hear this ease on the valid- e Lieutenant-Oovorn- jwer of the bical legis- the power of the local lurts jirocedure. That to the distribution of DUg the l*rovinces and le Terms of Union, no investigatiiins, that we d reasons for our de- ,rinciple are we to pro- exclusively legal point 39 of view? The learned Attorney General argues quoting the address of Counsel (Mr. Mowat Q. C.) when an advocate in the case of Severn vs. the Queen — Volume II., Canada Supreme Court Rep. : — "that if there "was one jioint which all parties at Confederation agreed upon" (and British Cnbimbia lie said, subject to the terms of Union, is in the same position IIS if it had been one of the original I'rovintes included in the Ac'.) "It was that all locd powers should be left t(^ the Provinces and "that all powers previously possessed by the local legislatures should be "continued unless express" ^^ repealed by the British North America Act" adding liimself in effect a^ I'm.'! jfjfj.' i' 42 It will be seen under the 01st clause that the classification is not to restrict the f^oiienility of the powers previously given to the Central Par- liatnout, and that these powers extend to all laws made " for the peace, "order and good govorninent of th(i confederation, terms which acctjrding "to all precedents wdl, I understand, carry with them an ample measure "of legislative authority." Ho adds to that effect, that while Dominion Acts are confirmed, disallowed or reserved f(jr Her Majesty's pleasure by the Governor-GoMoral, Acts of the local Legislature are transmitted only to the Governor-General, and are subject to disallowance within the space of twelve months by hi>n. G Wynne J. (re Niagara election case, 29 U. C, C. P. 275) distin- guishes between the distribution of powers in the Ch North America Act to impose a tax upon the olticial income of an officer ( f the Doiniuioii Goveriiniant. Th.tt cise furtlier determines that all Gt)vern- ment officers as public servants of the Dominion are an essential part of the means and insirumeiits by whicli the Government of Canada is car- ried on, and as such are not objects of taxation by the local Government. The dicta and reasons whicli led to that co'iclusiou are very instructive in considering the position of the Supreme Court Judges in British Col- umbia. , and the effort to compel them to do many kinds of Provincial duties beyond those of a Supreme Court Judge, and apply even with greater force to occu[)ying their time to the exclusion or limitation of their power to serve the Dominion. Spragge, C, in that case laid down the dictum that the powers of the Dominion Legislature and of the Provincial Legislature are distri- buted in classes assiiiued to eivch. The Provincial Legislature having only the powers specifically conferred; the Dominion Legislature having, besides those specifically conferred, all powers not specifically conferred upon the local Legislature. L'Union St. Jacques de Montreal vs. Belisle, 1874, (L. R., 6 P.O., 3) was quoted to show that a Provincial Legislature couid interfere and fication is not to the Central Par- " for the peace, 3 wliich according lu ample measure while Dominion esty's pleasure by transmitted only ivance within the P. 275) distin- nstitution of the up of concessions to the fiirincr the this is the case. (ial Governments Parliament. The but what is ex- s them into exist- iral's contention.) anient is conferred pari icular subjects within the classes the Province. latiou which it was 1^., regulations as he' tlie Dominion , any subject sp< - L Act. , it was held by an 26, C. P., burtiin lUre has no power the Briti.-h North i)f an ofhcer if the is that all Crovern- n essential part of of Canadi is car- local (government, e very instructive ^es in British Col- inds of Provincial I apply ev(>n with jn or limitiition of hat the powers of islature are distri- Legislature having Legislature having, icitically conferred (L. R., 6 P.O., 3) uid interfere and 48 legislate on subjects exclusively given by section 91 to tlu? Dominion, naa)ely, Inscjlvency; but there the decision turned on the point that the local Act complained of as dealing witii insolvency was merely dealing with a local and private association in such a manner as to prevent it from becoming insolvent; and, therefore, as Lord Selborne decided, "to '"keep the Act out of the category of the Olst section, and not to bring it "into it." This, therefore, if an authority at all, would be against the Attorney- General, and even the powers of the Dominion Legislature, though so potent under section 91, do not e.xceed those of the former Colony, and were limited e.g., as regards the Imperial Parliament; for in Smiles v. Bedford (1 Out. App. , 430, 1877) it was iield by an unanimous Court that under the Britisii North America Act, (section 91, sub-section 23) no greater pawers were conferred on the Parliament of the Dominion to deal with the subject than had been previou-sly enjoyed by the local Legislatures. In Frederickton City vs. the Queen and Baker (3 Can. S. C, 505), it was decided that the Canada 'I'emperance Act, 1878, could not be enacted by the local Legislature, tliere being no express power given to that effect — that power necessarily falls under the control of the Domin- ion Parliament (by virtue of the sweeping force of section 91). Also, that inasmuch as the riglit to |)rohibit any trade has been excluded from, by not being assigned to, the Provincial Legislature, it must necessarily be taken under section 9i to have been delegated to the Federal Govern- ment. The powerful judgment of Mr. Justice Ritchie in this case will repay perusal, as also in the case of Regina vs. Justices of Kings County, 2 Pugs. , 535, where it was held the local Government had not the power (iu the presence of section 91) to prohibit. I have been thus ))articular in referring to the powers granted and implied in favor of the Dominion Parliament under section 91, because the learned Attorney-General almost ignored it altogether and based the strength of his posi ion on behalf of the local Legislature on the "omnipotent" powers of section 92, and argued throughout that the Provinces went with powers unchanged into Confederation, save as to such specified subjects as they gave up to the Dominion, and that whatever of such previous Provincial powers was not so specified in section 91, in favor of the Dominion, was retained by the Province. And from that he argued, on the case more immediately before us, that the local Legislature having for a se -ies of years nearly absolute power (subject to the Governor and Imperial authority) over Courts, Judges, Residence, Rules and Orders of Procedure, and every- thing relating to the administration of Justice within the Province had exactly the same powers, still after Confederation, except mere criminal Procedure — even to antagonism with the Dominion Parliament itself. In order to construct such a theory it became necessary to ignore secticMi 91, and the Imperial Vancouver Island Act of 1859, and that the learned Attorne}' effectually did. But then what is the value of a legal argument on the British North America Act, which entirely ignores sec- tion 91? We have seen the sweeping character of section 91, let us now see what section 92 contains as bearing on tlie present case. It says : — "In each Province the Legislature may exclusively make ■'laws in relation to matters coming within the classes of subjects next "herein after enumerated. " i i p im ill , mil iUUi h ■ntiiiHtmtUiHH>iHH*iHiitiTiti^mhnttun4*^txUUUii f miuuUmi '^HHmi lMflftJmnnH ^mHmamumu"'fu < If I 44 [Then follows the enumeration siih-sections 1, to 13, which need not be mentioned here. Suffice it to say that they refer entirely to matters within the province.] "Sub-section" 14, Property and civil rights in the province," Now at first sight this would seem a very sweoi)iiig power to give exclusively to the local legislature, yet read by the light of the wliole act, and the vari- ous decisions up ii it, bears a very ditferent aspect from that souj^ht to be given to it by the Attorney-General. Tried by the rule which h is been adopted in all similar cases, its exclusiveness and coinprehensiveiiess both nearly disappear. It is the rule adopted in Fredericton City va. the Queen as an unening guide in determining whether any given subject is within the jurisdiction of the Provincial Legislature or of the Parliament, namely, "all subjects of what- ever "nature, not exclusively assigned to the local legislatures are placed "under the supreme control of theDomini(jn Parliament; and no mutter is "exclusively to the local legislatures unless it be within one of the sub- "jects expressly enumerated in section 92 and at the same timk does not "involve any interference with any of the subjects enumerated in sec. 91." The grefit distinction between sections 91 and 92 is, that while in the former the subjects enumerated are only designed as examples of ex- clusive legislative powers, in the latter the exclusive legislative powers appear to be all enumerated. L'Union St. Jacques de Montreal vs. Belisle L. R. 6 P. C. 31, — 35, and Dow vs. Black, L. R. (i, P. C. 272,-380. In Oowan vs. Wright (23 Grant Ch. (ilG) via. Chancellor Blake said that the true principle is set forth hire Goodhue, "that to the Provin- "cial Legislatures are committed the powers to legislate upon a range of "subjects which is indeed limited but that within the limits prescribed "the right of legislative is absolute." (This sounds very like tlie Queen vs Burah.) The real (jiiesti jr. is what are those limits, and that is a chief (luestion in this Thrasher case. That subsection 13, of section 92, gives tlie hjcal legislature exclusive power to legislate on property and civil rights within the province, without reference to the exclusive powers of the DominiiMi Parliament, will I ex[)ectbe scarcely nianitained; and yet the words taken without qualitication run so— Harrison J. in Parse ns u>!. the Citizen's Insurance Company 43 U. C. Q. B. 261, (affirmed by 4 Ont. A pp.) says : "For the powers of the Dominion and Provincial legislatures we "must refer to the fundamental law on the subject, the British North "America Act. The only exclusive powers expressly conferred by that "act on the Provincial legislatures are those enumerated as in section 92, "of that act. One of these is the incorporation of companies with pro- vincial objects (sub-section 11) another is "property and civil rights in the province" (sub-section 13, j The last is " all matters" of a merely lo- cal or private nature in the province, (sub-section 16r) Subject to these and the other powers enumerated in section 92, it is in the power of the Legislature of the Dominion to "make laws for the peace order and "good Government of Canada. " "No words in reference to legislation "could be more comprehensive than these words. Examples however are "given of the exclusive legislative powers as to different classes of sub- "jects intended to be vested in the Dominion Parliament by section 91. "These it is expresr,l_y dcdarod are not to restrict the generality of the "foregoing terms of the section (91)." '(»( 'HHt'iHtKfl 13, which need not ntirely to matters )r()vince," Now at jj'ive exclusively to act, and the vari- om that souuilit to similar cases, its ippear. It is the uneninj^ j^uide in jurisdiction of the 111! subjects of what- islatiires are placed t ; and no mutter is hin one of the sub- SAMB TiMK does not imerated in sec. 91." 2 is, that while in i as examples of ex- legislative powers R. 6 P. C. 31,— U5. ancellor Blake said that to the Provin- late upon a range of he limits pruscribed 'ery like tin; Queen w.s , and that is a chief , of section 92, jjives property and civil ! exclusive powers of manitained; and yet jon J. in Pars( na iw. 1, (affirmed by 4 Ont. iicial leiiislatures we :, the British North ly conferred by that rated as in section 92, companies with pro- f and civil rights in tters" of a merely lo- on 16r) Subject to 2, it is in the power or the peace order and erence to legislation Ixamples however are arent classes of sub- iament by section 91. the generality of the 45 And no matter coming within any of the cliisses of subjects cnunier- ati'd in section 91 is to bo " deemed to come within llie clnhs of m.itti'ra "of a local or a private nature coinprLscd in the iiiumeration of the "classics (if sulijects by this Act a.s.signed exclusively to tlie Ltgislatuies "of the Provinces." Tho learned J udt.ie adds: "It is not ))nssible for each of the legis- "lative bodies as between themselves exclusively to exercise tiie tame "powers. If the jiower l)e shown to lielmig t(t one of the bi dies, this "under such a section excludes tlie other frnm tlio exercise of the i^ower. " I have taken |>ains to cdUjct such of the various docisions as have refei'enco t) the construction of these sections of the Act, U) aid in ap- plying the Act to the case and the puinls rai.'^ed before us. 'rreatiuu of the rights of Incal Legislatures, after a clear reference to the powers of the Dnminion Parliament, Chief Justice Ritchie in Valin «.<. Langli.is, page 15, .^ays: — " liut while tlie Legis'ative rights of the Incal Legislatures are in "this sense subordinate to the right of the Dominion Parliament, I think "sucii Lifter ri^dit must be exercised so far as ni.iy be, consistently with "the right of the local Legislatures; ami, tlierufore, tlie Dominion would "only have the right In interfere with i)roperty e necessary for the purjioso of legislating yen- "erallv aii'l "rtectualiy in relation to matters coniided to the I'arliament "ofC'nada." We uow come to suV)-8ection 14 of section 92 — "Tile administration of -Justice in the Prov',.jes, including tlie con-' stitution, maintenance and ni/.Mtion fif Provincial Courts, lioth of Civil and Crimin il jurisdiction, and including procedure in civil inatlera in THosK Courts." This sul>- section taken by it.self would at first sight appear to include all those omnipotent powers tho learned Attorney-General contends for. But followiiiL' the ordinary rule for the construction ofStatutes, and re.'id by the litrht of the Act itseif and its various provisions, and com- paring these with the Virions decisions thereon, it will be seen tlmt the exceeding generality of the vords must lie applied with very considera- ble modific.itions, indeed; and in that respect accords exactly will) the principles of constr.iction I have already laid di wn. Valin vs. Langlois clearly estalili bed that the Dominion Parliament has the right to inter- fere with civil rights when iiecessMry for the jinrpose of legislat^;\" gen- erally anil etlectually in relation to mutters confided to the Pf<'';,'.ii;eiitof Canada It also establisheil ilnit the Dominion I'arliament has u perfect right to give to the Sujiremc Courts of the resfiective Provinces, and the Judges thereof, the jiower and duty of trying controverted elections of inemliers of the House of Comm.uis, and did not, in utilizing existing judicial oHicers and esta'ilished Courts to di.-'ciiarge those duties, in any particular, invade the rights of the local LcLtislature; and that its power' over procedure in civil matters means procedure in civil matters within the [lowers of the Provincial Legishitures. The Chief Jintice liere very truly said, and we are here to bear wit- ness to it this day. that that question involving the respective Legishitive rights of the Dominion Pjirliainent and the local Legishitures, was one of the most important questions thiit could come before that Court, and that its logical conclusion and effect must extend far beyond the question then at issue. In page 14, that learned Judge draws attention to the 1 I r.)iia,certiiiii previous judicial (luciHioiis mi tliu 8>ii)joi:t, wliicli atiril)utu(l too nuicli iiuportaiicu tu suction 101, and to suli-soctioii^ 13 and 14 of section !)2, wiiicli v-fst in the Priviiii-ial Leuislaturoa thuexcUi- sivo povviT as to itro|iurty and civil riylits in tlio Trovincus, and tlio adniinistiMtio!) of Justice and [jrncedure in civil matters. Neitlu'c this nor the right to or^ranizo Provincial Courts by tho Pro- vincial I.jgislatures v.as intended in any way to interfere witli, orgive to flucli .'lovinuial Legis aturcs any right to restrict or limit tho powers in i.tiier parts of V he Statute conferred on tlie Dominion I'arliament, or to direct tiie mmlo of procedure to l)e adopted in cases over whicli it has jurisdiction, and where it was exclusively authorized and empowered to deal with the suhject niatter,or take from tho existing Courts the duty of Administering the laws of the land. Ani(>ad rule for our guidance. "If," says Lord Sell)orne, "what has been done in leuisla- " tion is within tho general scope of tho afhrmativo words which give the *' power, and if it violates no express conditicui or restriction by which " that power is limited (in which catoL'ory would bo included any act of " tho Imperial Parliament at variance with it) it is not fm- any Court of " Justice to en(iuire further, or to enlarge constructively those conditions " or restrictions ;" and that is the real test by whijh to try this case. The case of Valin d,s, Langlois established conclusively that which has never boon doubted in this Court — that tho Dominion P.uliament has ■ i"'<'''">*i'ii)titl>l»niO*i'rn'r^ii,ff>if aim, I. e., cor- lu 8iil)jiict, whicb CI stih-Hoctidiis 13 sliitiirus the exclii- •viiicus, iiiid tho rs. Ciiurts by tlio Pro- ro witli, (iryivo to it tlio powers in I'urliiimcnt, nr to ovor wliioli it hiis itnil cmiiiiwered to Ciiurta thu duty uf re in ho subject to I I'arliiinifnt. The ra. Biiifili, L. R., 3, tlie Uri»i«h North tlieoiii' tence of jj;e8,tli Odeiice, I HI us' . cIdso lusioii thiit it is a inariiiji t'le pinvcr of biiros, lie (pioted that IS [lowers expi essly ch croatiid it, and it circiimscrihe those not ill liny sense an has and was intended of the s line nature ^y stopiieil. Had lie I have naturally had efore us: id limits have been • necessity determine [irop'uly do so is by irtirmativoly tlm leg- tively they are re- -General, j'ou must up to its enactment ! ourlei^al inter] irctn- II tlrs hroad rule for i been done in le^isla- words which i,'ive the •eatrittinii by which included any act of lot for any Court of ively those conditions 1 to try this case, jlusively that which linion Parliament has 47 a perfect rinlit to utilize established Courts in tho Province, and tt-o Judges theieiif, who, as the learned Ciiief Justice most, aptly oliserved, are appointed by tho Dominic ui, paid out of the 'I'leasury of tho Domin- icui, anil lemovaltle iciily by address of the House of Cciiniiioiis and Sen- ate of tlie J*arliament of the Doniuiion, to enforce tluur legislitimi. That is a doctrine which has always been accented and acted upon by tliis Court, e.'j;(in In olv«'iny,Customsand the like) which is established not oily to carry out local laws but thos-e of the Dominion. In ilie Docninioii there is scat' I ly an Act that must not in some part beheld k/^ a viren if any other d cc'..riiie were well founded Indeed. I always under- Bt 'I'd that the Suii»eme Court Jiidyes going into Coiifedeiatioii, were en- tiro'y Dominion (btic-ers of a Doniinion Court in the I'rovince— to cany it the laws of the Province and the Dominion. Im iho great majority of Doiniiiioii Acts there are [H'ovisions not only vesting jurisdiction in tlie C'lirts in the Province, but a'so regulating in man}' instances and particu- lars the procedure in such matters in tlmse Courts, e.g. Customs, Inland Revenue, Public Works, lianks and Buildings, Tr ule Marks, Fi-sheries, Public Linds, Tnspec ion of Staples, .Miens and !" itiiralizafion, Patents, Insolvency, and a host of others Without the u>eof these Courts for the above purpose, or new ones established for the purjiose, Dcuninion aH'airs vo lid soon be at a deadlock. In Valin vs. Latigl lis therefore, (p. 35), the Court saw no reason why thev should not delegate to the Judges of the several Provinces in- dividuallj', collectively, or both, whom they appoint and pay, and can by address rouMve, and establish Courts by eiujrafHiui o/^ (or establishing in- depemlent of) those Courts throughout their resjiective Provinces tribu- n lis eminently (pialified to discharge! the important duties assigned to tiiem. "They have not thereby invaded the rights of local legislatures " or lirousiht the new jurisdiction or the procedure under it in any way " in conflict with the jurisdiction or procedure of any of the Courts of " the Province." And each of tliose Doiiiinitui Acts h.is reference to the procedure necessary to enforce it, and that in each case dealing with civil rights, many of them civil rights in llie Province ; and yet over which the local legislature h is not any control or say. 'J'he fact is, the Constitution Act of Canada only lays down broad but distinct well guarded juinciples aud lines of den)arcatioii between the dill'erent le^ishitive [lowers of separate legislative bodies, sciinetimes over the same subject, leaving these principles to be .applied from time to time according to tho ever varying growth and changes in the subjects of legis- l.ition incident to a new and ]irogressive country. Now to ai»ply the aforegoiiii: general i>riiiciples of ccuistruction to the case before us. 'lliis provision as to the administration of justice gives the Province authority to provide for the administration of justice : that is to see that it is administered in all Courts sitting in the Province, and to declare the powers and the subjects of jurisdiction (within the limits of their own statutory authority) of such Courts as they may think proper themselves to 'constitute, organize and maintain' in the Province, and to iimvidefor civil procedure in ''those" Courts (still within the statutory limitations) in the Province. Now Courts answorinu to this description have been established by tho Province, such as Gold Commissioners' Courts, Miu- ing Courts and the like to which these powers over procedure can apply. No other Courts are ex pres.sly referred to, and we have seen that section 91 reserves to the Dominion everything that ia lot assigned ex» ■.'.'^f.i'H'.ifiHmamHH ifimf^mnmfmwm ^ftmm mt ifmf^' ^ '^ ^ ml m t i X 1 1/ \ Liiuu uiiu L Lwviii^u oaiiii*>i' iiiLi::iic;ic; »ilii itn [JL uucu ui u. Now it is sulHi^ieiitly cloar tliiit jiisticu ciiii only 1)h administered ii Proviiico thrniii;li tlio (ji-(liii;vry clrumels, tlie 'jdttibliahed Ouiirts, e.<{ >. 0. esitouially, tlio 8ii|>reme CoiU't. Tlieii arisus tiie (inesiidu: Can tlie local le<;islaturo under this anu ,0 previous suhsuution provide directly for tlie iirocedure of tlie Supreme )urt I That deiieuds on wlietlier the Supreme Court is a l*rovincial mrt "constiruied, organized and maintained" by tiie Province. 'I'iie clusively to the Provincial Letjislature, consequently if there be any Court in the Province not 'constituted and maintained and organized' by the Province the Province cannot interfere vvitii its procedure. / clear tliat justice can only be administered in the in B. ^. ..J,. .,, ...,._ Then arises tiie (iuesii(Ui: Can the local legislature under this and the C C. ...... „ - „,. ., _.., Cliief Justice informs me tliat he has entered into that point at great lenglli and with much |)articularity; so that it will not be necessary, con- curring as I do generally in his views on that subject, to enter at .similar' length upon the (piestion. Still it is one of such iinportmce to the point at issue, whuiher we are or can sit as a Full Court or not, that I am constrained to enter somewliat into the consideiaiion (jf it, even at tho risk uf repeiit;on ; especially as I have notseen or heard what the Chief Justice has actually wriiten respecting it. I have ah\ady shewn that the Supreme Court of British Columbia and its Judges are tlie lieirs of the jurisdictimi, status and authi r.ty of the Su[)reuie Court of Civil .Justice of Vancouver Island and its Judges. That was an Imperially coiistiured Court. Its Chief Justice was em- powered under the Act and Order of The Queen in C v diction over every kind of plea exceiit admiralty; indeed the Puisne Judge til if tly if there be smy fl and nrganized' by foceduru. |he adiiiiiiistered in ilislied Ouurts, e.g. lire under this and [lure of the Su|irenie Jurt is a I'lMvinoial Itiie Province. 'I'lie hat point at gvaat it be neces.sary, coii- f, to enter at similar' inii>ortince to the lift or not, that I am I (jf it, even at tho uard what the Cliiuf if British Cobimbia us iind auth. r.ty of laud and lis Jud^'es. ief Justice wa^ eni- ouucil to make Rides ii't. 'I'liis ])o\ver was fi'dt'vation. Without lecossary,) that Court of Eugluud iipidica- ir this statute had the ler Ciiuit) in the col- are also the acknow- e Su|)ieme Court of irt of the Mainlunil 1871,thaitersr.I, 52, ITS and autiiorit us in 1871, tli;it a Supreuie >s the uigiual Judge liT the Hi'itish Cobini- lion uiidei'Hrr Ma jes- Tlio Senior Puisne ■ also under Her IM i.|- dcration with Canada iiul Mutliority as tha nted in 1872 iii'der a lutes and jurisdiction I criniiual whatsievcr. the Dominion, tin's r over all other Courts lud Criminal; ami the n tint same jios t on ;;ivd and criminal in M II 1.1 I' lll|. >. leed tlie Puisne Judge 49 too in the absence of the Chief Judge in Admiralty had that. The Judges by a long succe.ssi(ui (.f Statutes, indeed nearly every one whicii touched on the question of lUdis, and Orders from lt57 and liibS down to and jmludiMg th'< lasr whiih was passed in ISdl), (British Columbia Consoli- dated tStjitutes 1871, chap. 5;)). [The Supienie Court Ordinance 18(i!»] The Jmlge or Judges ha\e been tlie only authoiities previous to confed- eration t) make the Rules of Procedure for the 8u|!reme Court. 'J he Supreme Cnurt Act 18Gi), and the [ireviiuis one (Consol. Stat. C. 52.) were sjiecially sanctioned and sent out f ro n D(nvning street, and not iiltered liy the Courts ftlerger Ordinance 1870. 'Ihesegiixe or rather confirmed that iidierent juiwer in the Ji.dges which existed in them pre- viously at Common Law and still t.x'.st in them as their inherent rights. (2, Chit. Stat., ii. 505, n. (juoting Dowi. N. C. 3L'c>, o Scott N. R. 52. ;M. d (3. 125, Readen r.s. Lnril Aioiingion ,'50 L. J., (1(3. IV. oj, o m. aiui Kj. iz;i, lieacien vs. Lua-a xMoiington ,5U 1j. d., bio. That power has *i*»Jy been distnrlieil or sought to be taken away from them by section 17, of the BritishColumbia Judicature Act 1879, and plac- ed ill the hands of tlie L' cal Coveinmeiit. It is this assi niptii n which is challenged by Mr. Theodore Davie as Counsel for the Thrasher as being unconstitutional and ultra vires, and therefore void. •As the valiiiity of tliis contentiuu must dejiend uinn the l^ritish North America .Act and the terms of Union, and we have already jiar- tially considered .sections !)l and !)2, we must continue our investigation into the efl'ect of sections 129, 90, 99, 100 and loO, as read by the light of the whole Act and the various judicial dec'sioiis that have taken place upon the legal relatiniis bet ween tin; Suprenu; Court and its Judges and tliu Loc d and Doininioii Tjcgislatures, and then proceed to apply the (irinciples and law deducible therefrom, to theiioints and the case before us. Tn this rese.irch we have already seen that we must not expect to find tlifit an (h'gainc Act of this kind will attempt to sjiecif}' particularly even all till! general heads of file subjects (Ui wiiieh eith.er Dominion or Local legislature can be expected to loL'islate. It would recjuire omnis- oiciice to fore see what in ihe course "f time may arise to callfor legislative interference. All the framers of it cuild be exiiectcd to do wuild Le what tluy have done in sections 91 and 92, lay down clear principles of dis- tinction lietweeii the clashes of subjects which were to be dealt with by the several liegisl ituivs, enunciate clear princ'; les t-i guide them in their res])! ctive legislations, and compile the other jections lied nr altered by ilie Farliiiuieiit "of Ginada 'ir by tiie Lei,dslatiire r of th it Le.^islature undor tliis Act." This section Mr. Attorney contends is the stron^'e.-t in his favoi; f.T according to his theory (the same whioli was started and overruled in Re.jiina vs. Taylor and Severn vs. tlie Queen), the Pro- vince and its Legislature under Section 92, and tiiis ^ection entered into Confederation with all its
re sworn to obey the Law independent of the Law, luit that they sliouid be si.bject to such legislation only as i.-' [jrovided by c 'Ui- peteiit authority under tiie British North America Act. What that is will hereafter af)pear. The local Legislature have no such clause in their favor as Section 129, handing down or returning tmicih ante-Confederation powers un- broken. There is no such section beyond the restricted though exclu- live poweif of Section 92. Whence then do they derive legal authoritv to authorize, "it shall "be lawful for," His Excellency the Governor-General-inCouncil to pie- Bcribe the re-iidonjes of the Supremo Court Jui'.ges ufurliurl the elder ones, say in Cassiar on the Arctic Slope: at Kootenay inthe Rocky Moun- tains, or at Cariboo ? or to destroy the residential unityof the Supi'eme Court and its Judges, so valiinl)Ie i'l a young country for unifiu'inity of practice ami decision, and rhe fostering of a healthy legal atmosphere and of a learned and exi)erieiiced Bar/" Whence comes the authority to breakthrough the Treaty obligations of the Terms guaranteeing their status and privileges, thit passed with labored care thrmigh three se))arate iiide[)endeiit Legislatnies and received the grave sanction of both Hon so of the Imperial Parliiiment ami the solemn im|)rimatur of Her Majesty's Assent? If they have not the power under Section 92 thcv have it not at all; and if they have it not how can they bestow it on His FJxcellency, who since Confederation would appear to have no legis'ative power of himself. If he liave, then the (ioveriior-General-in-Council could nullify the British North Ameri- ca Act, which in such case would have been passed itJ vain, and all tlie studied care of the illustrious statesmen who framed it to secure the in- dapendence of the Judges as indispensiblo to the administration of Jus- tice, has been thrown to the winds. (except with rrs- lie Parliiuiient of y (lie Pailiauieiit nice ajC'-'i'diii;^ lo J iiiidtT tins Act." .-^t in his favDf; f.'f jiiid ovoiiMiloil in ueen), tlie Pm- iid tills t-ection (vn and auihurity ;e, and its iiroce- [atiun, except what hat is not enunii-r- xactly the reverse Joleai-ly pointed out ief Justice Ha"arty inada. Their prin- tled to he sliaken. in their phiiii and e to this Courc and ih'm'S, powers and fore Ctinfederatioii; to render Courts lent of tlieLiiw, hut i is" proviiU'd hy c lui- A.ct. What tliat is iir favor as Pectio» leration powers un- icted thougli exclu- autliorizo, "it shall ral-iii-Coiincil to pre- i ctfurliiiH the ekler y in tile Rocky Mouii- iinityof the Supremo ry for iiniforinity of ly leyal atmosphere he Treaty oblifiations 3S, th;it passed with it Legislatures and [inperiiil Parliauieiit ,? If they have not and if they have it since Confederation F. If he have, then iritish North Aineri- in vain, and all the [ it to secure the in- ininistration uf Jus- ( 51 Put to return; — Now this Court is, no doubt, so far a "Provincial" Court thatitisin the Province, and its juribdici ion confined to the I'rovince. Cwiny to the poverty of our language the same woid is often made to do duiy in many and various senses, e. g , government soveieigii, quasi sovereign and many others. Here the words "Province"' aiid"liovincial." Put the Province now is the Province of the British America Act; and has not "ci nstituted" this Supreme Couit. '1 hat was diiie hy the Imperial Glovernment, confirmeil hy the Colony before Coiifederatiin, and Section 97 of the Uritish North America Act and tiie Terms of Union placed that since the Union, in the hands of the (iovirnor Gemral as regards Super- ior District and County Courts. Neither has the rroviiitc "maintained" the Supreme Court, fir altiioiigh it pajs the expenses of Court Hoi.se, Buildings, Registrar, witne.'-ses and the like, under the charge for "ad- 'minisiration of Justice." Still it has not "maintained" the Judges, although they com[)ose the (-ourt, ill salaries, allowances or circuit ex- penses. Indeed, Secti' n 130, I think, sh^ws this. That says: — " Until the Parliament of Canada otheiwise provides, all ofhccrs of "the several Province.-^ lia\ingdu tics to discharge in relation to mat! ers other "than those coming within the classes of suhjecis by this Act assigned "exclusively to the Legislatures of the Provinces, shall be ofhceis of "Canada, and shall continue to discharge the duties of their iesiecli\e "I'Hices under the same lialiilities responsihilities and penalties as if the "Union had not been made." That indicates, as I consider, incontestilily that even such paj'inents would not have coiLstituted the Supreme C nrt Judges Provincial ofli- cers, (or, as Mr. Attorney contended, Pro\ cial ofhceis for occasionally Doiuiiiion piii'iioses a sort of loan to the I'Munnioii). That section in efl'ect siys that notwithstanding certain OHicers did at Confederation occupy a i)ositioii which made them Provincial as well ;is Dominion ofh- cers, [such as the old stipendi.iry magistrates, who were also County Court Judges, local Governii eiit agents, etc.] they should now be only Doininion oHicers. The other alternative construction that il cuily meant to say cfHcers discharging Douiiuioii duties shoiitd lie Dominion otiicers bears a reductio ad alisiirdum on the face of it. The ratio decidendi ill Le|>rolion vn. the City of Ottawa, page 543, proves tiot only th i the Judges are Dominion ofhcers, and their Court a Dominion Court .u the Province for carrying out Dominitui and Provincial laws, and that in no respect whatever has the Province any more control over tiiem to send them here, to "district" them there (for that point was also specifically raised for solutiiui by Mr. Drake and Mr. Theodore Davie in this and ill the Vieiix Violand case) than they have tosend the Collector of Cus- toms, the Collector of Inland Ke\enue, the Postmaster or Dominion And tor to "usually reside and discharge their duties" at Dease Lake, Carib:>o or Francois Lake. 'Ihe (|uestioii in LeiU'ohon's case was merely as to the light to tax a Dominion ofhcer. But the dicta in it are of great value in applying the fjr'iu'ip'e; on which it was decided to the cases of all other Otiicers of the Domini, n. At pige 543 of the Report we find the following; 'I ho exemption of Dominion ollicials from taxation rests in both cases (i. e., in State and Federal Governmeiita) upon the necessary implication and is upheld by the great law of self-preservation, as any government fHiii unit Wif ti! m f f ggwnw | B | W i ff i if|wi mmmmiFmii :tih: ^mnifmmmm'mmmmm^ f i f i t tftf^ it i^utu$ttftfrittft' 52 mm Itfitrt , wlinse means are eninloyed in conducting its operations if subject to tlie control (if iiiKitlier and distinct government can only exist at the mercy of that governnieiir. Of what use are these means if another juiwer may tax them at discretion. Tlie ratio decidendi hero applies to the prest-nt case. Of what use will Di any extent, and in " the event of anv I'rovince being dissatisfied with the Dominion Gov- " ernmeut it would hold in its hands a weapon, to which it might resort, " to h irrass the (lovi'rt.ment and enforce its demands." Has liritish Cidumhia no demands to enforce? 'ihe same power if it existed would enable the local legisl.ature to impose new and foreii/n duties on r Supnune Court Judi/e belonging to the Dominion. The learned Attorney-General ta'ked viu-v much r deference and respect \ jurist Chief .Justice ncies are to he rccon- * There is no securi- ib'e of being exercised Teiitral noveriinient, by a judicious regard 53 " for the harmonious wcuking of all the departments of the Constitution. " Wliat Miotic e uiay be found sufticie'itly powerail to lead to aiitagimistic " legi^laticui, or wlietlier any such niotivo may ari.se ; or whether from " ci|irice or rude the iries of pilitioal economy or from any ciu.se what- "ever the power now in dispute may be exercised in a ve.\atious, manner •' must be a m itter of a, ecidatioii " The le lined Juuj^e spoke of Ontario; is it applicable to British Columltia J Let any one familiar with the Incil legslation of the 1 ist five years attectiiig the Supreme Court and its Judges make reply. Chief Justice M irshall in AlcOulIoch vs. Maryland, 4 Wheaton, 310, at ptge 428, comparing the respective rights of taxation of Federal and State G I veruinents, and the check the people of the State are on the aliuse of Srate taxation, adds: " Now the means, i. e. , the officers employed by the Government of "the Union, have no such security, nur is thrf right to tax them sustaintd "by the same tlieory. These means are not given by tlie people of a "particular Srate, not given by the cmi.stituents of the Legislature which "claim the riglit to tax tlieiii, but by the people of all the .States." "They are given by all for the benetit of all; and ujion theory should "be subjected to that goveriiiuent only which liehuig^ to all." Apply this to the Sujireme Court and its Judges and substitute Pro- vince for States, and Duninion for Government ot the Union, and the analogy is m ire than complete, it is dfjrtiori ap[)licable. In cases like this, where we have no, or scircely any, English deci- sions to guifle us, for such federations do not exist there, the authorities of the United States, where very similar political legislative bodies exist, though not l)iudiug on us, are entitled to the greatest attention and re- spect, as the production of some of the greatest jurists the world has produced, ami who li ive given this class of questions long and i>rof(,und study, while still in the prime of life and yet of great Judici il exper- ience. All these aiitliorities and our Can idi an decisions concur in de- Bjribiug the Uuitel .States otiijers, (in our ciso it w luld be tlie D unin- ion olficers), "the means and instruments by which the affairs of the "D,)iniuion are administered." And this applies t(j the Supremo Court Judges. It follows, therefore, that appointed by the Dominion, paid by the Dominion, removed by the Dominion by address through the Dominion Houses of Parliament, they are entirely olKcers of Canada; and to endea- vor to force them by local legislation so to till up their time by pi tty local work as to impede, delay or presfeut D)iniiiioii work, (for if they cm do it for a day they can do it f(jr ever), is in etiect by li'gi.slation t(} limit the right which, on general principles, and sections 9(i, 9!). 100, 129, 130, 131 of the British North America Act, the Dominion has to their Judicial services. Suppose for a moment the scheme for a general uniforinity(under sections 97 and I0l)of laws througli outthe Dominion, Cexcept, of c lurse, Quebec) actually carried out, as it surely one day will be, and the Supreme Court Judires employed to execute them in British Columbia. could the local Legislature for one moment legislate their time awiy in local matters to the hindrance of their Domuiiem duties; yet legally they are in the same position now. They are Dominiou olticL-rs for the discharge of Dominion duties and local Judicial duties in the Pro- vince so long as they do not conflict with the Dominion, and though they put in force all Provincial and Dominion laws they are in no respect fiiii ttitia I II '.'itiiiiuiHHfiHf^imim^Hmmfmim^ hfi mimm mmtmmmfmmmmmmnmm** *^^******^^HmHH'mtlt:-!-; Il f 54 officers of the Province. The ratio decidendi of Valin vs. Langlois effectually establishes that position. In the same manner it in;iy be shown that the Province has not "organizod" the Supreme Court, ao that in neither of these three senses is it a Provincial Court. And unlesi it were all tiiree cmnbined, "oon- "stituted," ''maintained" and "'orf^anizud" by the Provinctj it could not be one <»f ''those" Courts within tlie purview of sub-secti m 14. Ajjain, it is a rule of c instruction of Statutes that if it be possible a Statute should be so read that the whole of it should speak and be sen- sible, so that it beotmes necessary to en juire, if there are any Courts in the Province which answer to the description iu sub-section 14, to wiiom it can apply. Now there are (as we have saiil) such here.. There are Courts constituted, organized and n> lintainud by the Province, viz: the Gold Commissioner's Court, the Miniii:^ Court, Courts of Rovi- Bion and other Courts to which this description does apply. They, therefore, and not the Supremo Courts are the Provincial Courts within sub-section 14; and over the Procedure of all "those" Courts the Pro- vincial Legislature has complete authority. It is singular tiiat this point as to the actual and literal meaning of this sub-section 14, in fact, that all this constitutional question sliould not before have formed the subject of a single decision in the Courts of the Dominion. It was stated l)y Governor Musgrave to the Judges as an inducement to them before entering into Confederation that they were to be Dominion olticors and Courts. It was incidentally brought up when theniw repealed Circuits Act was being rwshed through the House befoi'e the ink was dry; and was clearly enough stated and raised when Mr. Richard Woods, a Registrar of the Suiiremo Court and an OfKcer in Bankruptcy, and therefore an officer of the Dominion, was removed by the Province, an act protested against in more than one communication from the Judges, through the Chief Justice, to the L )cal and Dominion Governments, but never formulated as it has been now in the Thrasher case. I 8upi)0se the reason was tiie time was not ripe for a (lecision, the injury resulting to the public service from allowing it had not yet' been practically exhibited. People go on in the oldgro i^ve notwithstand- ing all kinds of radical changes, so long as it does not actually affect the little World of which each individual is the centre, ai^d so it remauis until as in this case some m irked event in pra^ iice compels a close ex- amination into cause and title. liut to return to Provincial Courts: — By the operation of Section 121) of the .British No.i^th America Act the status, jurisdiction and authiu'ltie-s of the Supreme Court and its Judges, as they existed at Confederation, was i)y that positive enactment handed down to us unimpaired in any respect, including the comm m law powers of the Judges to make Rules of Practice and Procedure, confirm- ed by the local Statutes passed before Confederation, particularly the "The Supreme Court Ordinance, 1800 " The Attorney-General contends to the effect that this power ceased altogether on the 19th July, the day before Confederation, when British Columbia first became a complete representativB Government. But that consideratimi would not affect the case one whit, inasmuch as if they had the power they did not exert it while they had it, for cm the 20th July they went into Confederation with the Court and Judges in full vigor and power, as t have described them, and section L29 cnitintied and confirmed Courts and Judges in itiifiniinfui: T3. Linglois l>vince has not Ise three senses linbiiied, "con- lice it cuuld nut l>ii 14. it be possible l)eiik ;inc1 l)u sen- fe any Courts in jioii 14, to wliom |h hero. There the Province, [Courts of Rovi- apply. They, il Courts \yithin Jourts the Pro- eral moaning of question sliould n the Courts of t the Judges as ration that they loiitally brought lirough the House and raised wlion and an Officer in was removed by lie connnuuication !al and Dominion w in the Thrasher je for a (lecision, iig it had not yet Ovve notwithstand- ,ctually atFect tlio ii^d So it remauis mpels a close ex- n;'tli America Act ne Court and its lositive enactment i, the comu)')!! law rocedure, confirm- , particularly the ■Genoral contends 9tli July, the day came a complete would not affect hey did not exert ito Ciuifederatiim I have described ta and Judges in 66 their prior estate and importance without the losa of a single particle of their power, status, jurisdiction or rights. Th.it is ap|)Iying the positive test commanded by Regina vs. Burah. But where is there any section of the Act which gave in any similar num- ner back to the Province the control over this Court and its Judges and Procedure that is now claimed for it / There is nothing but section 92, Bub-section 14, and that is always under the correction of the controlling force of section 91, which so many Canadian Judges of eminence have in- sisted on. It is not my province on the present occasion to define with even approximate exactness the full meaning of the words "administration of "Justice" and "Pmctdure," but suHicient will be gatliered from the authorities cited to-day to tnake it clear that while under section 91 and the various secti(jns of the British North America Act, the Dominion has several large directly statutory (as well as constructive) powers over the administration of Justice, and can engraft its powers on its own Judicial OfKcers and Courts throughout the Dominion, such as this Supreme Court, and makes the Criminal law and criminal jn'octdure entirely its own, the phrase Administration of Justice in subsection 14 when applied to the Province must have but a very limited application. " Procedure" may be defined to include all the means and modes by which causes "proceed" to such a final decision as will procure the determination of the issues raised, and the lendering of comjdete justice in the case. The enactment of substantial law is, within statutory liini s, withni the com- petence of the local legislature; as what shall constitute a contract ? What additional local Courts are wanted; when and where? and a host of other necessary provisions in aid of the meteing or ministering of Jus- tice within the Province to all who claim the aid of the law. But all such local Couits must from the principles and decisions I have set forth necessarily be infi^rior to and under the revising supremacy of this Supreme Court It would, of course, include a pnwerto see that Justice is pid[ierly administered, and when not, that a jiroper constitutional re- medy should be applied; but the process and means by which Justice is to be administerod in a Court not within the meaning of sub-section 14, must be left to the Judges of the Superior Courts themselves. And here I note tljat tlie moment a Judiie gets a Commission he steps at once into the possession of all the Comnujn Law and other rights, powers and status which attach to the position, like an Ollicer of one of the. Services stepping into a conimand. .As to what is procedure, Poyser vs. Minors, 7 L. R., Q. B. D. , 333, I{34, is a conclusive authority. Lord Justice Lush in delivering the juflgment of the C(!urt says: "Practice in itii larger sense, the sen.'-e in which it is used in the "English Judicature Acts, like ' jirocedure ' as there used, denotes the "mode of proceeding by which a legal riyht is enforced, as distinguished "from the law which gives or defines thfs right, and which the Court is "to administer by means Pi>f>t»' m HilHi 06 "restriction, such Rules are within the competence of any Court to make "f..r itself." Now the rules of procedure here spoken of cover all the same ground and matters and pmcuudingsiis rlie "Sui)reuie Ci>urtRulesl88U"anda for- tiori tlie "Aniendnientfi" to the Supreme Court Rules of 1880 and iinmng these Rule 401 A, underwhicii we are now supposed to be sitting as a Kuil Court. Consecpiently I consider that the Local Legislature weie legislat- ing on a matter nut witliin their cimipctence when legi.slating on tiie matter of the Procedure of the Supreme Court of JJritish Cohinibia and winch Poyservi-. Minors declines to lie witiiin the competence of tiny Court (meaning if course the Courts he was sjjeaking about,, the Superior Courts, the Higii Com ts and Courts of Appeal, which answer to our Supi eme Court) apart fiom statutory restrictions, to make for themselves. Tiie Common Law rigiit of tiie Eii^flisli Judges to make the Rules of Proce- dure in their own Courts has not lieen taken aw.iy by the Judicature Acts though tiie Lnperial Parliament is really sovereign in the highest degree; which even the Domiiiiun Parliament is certainly not. It de- clared and defined also whose presence should be necessary to make Rules and provided for their presentation to tiie House, but the general power of the Judges was carefully preserved throughout. It was contended in argument in this case that local Colonial Stati tes could alter the Common Law, and the Colonial Laws Validity Act was quoted in suppoit. liut assuming such to have been the case, here there was no exertion of the li^ht- thus claimed — liut the very reveise for the loeiil Act — Supreme Courts Ordinance, 1809, section 13, (saved by the subsequent Supreme t'ouit Act of 187(0 exiiressly coiitiinis that inherent right ill the Supreme Court and its Judges, which previous Acts had al- ready declared, and in that state CoufederaticMi found the Court, and in that condition handed it down to us now, subject only to the rights of the Dominion, and such Courts and priorth. America Act. It follow.-, therefore, as a logical consequence frmn Peyser vs. Minors as applied to the facts of this case, and the judicial C(Mistruction of the British North America Act, that the local legislature were ultra virea in legislating on the procedure of the Supreme Court, and as a necessary con- ee(iuence could not delegate a power which was itself beyond the.r own competence. I'.ui assuming, arguendo, they liad the power of h^gislating on this procedure .lirect,ihen by section ii2 of the Adiiiinistratimi of Justice .Act of 1881, they would have mule tlie Su|irenie Court Rules of 1880 into Statute Law, aiid have given the Lieutenant-Governor-in-Cuuncil power to report or alter that law. That, I think, was idtra vires. Cooley on Constitutional Limitations, page 141, tells iis that one of the settled maxims of Constitutional Law is that the power conferred upon the Legislature to make laws cannot be delegated by that Legislature to any other body or authority. Wlif-re the sovereign power of the state has located the authority there it must remain ; and by the constitutional authority alone the laws must be n.ade, until the constitution itself is changed. The jiower to whose judgment, wisdom and patriotism the high pre- rogative has been entrusted cannot relieve itself of the ros|K)iisibility by choosing other agencies upon whom the power .shall be devolved, nor can 57 any Court to make nil tlio same ground ulesl88U"ainla for- i)t 1880 and iiiiioiig ) be sitting as a Fuil ature were K'gislat- legi.-slating on the tish Cohiiiibia and )etence of any Court lie Superior C9. altering the words of a statutory enactment by a mere rule. 400a. Limiting the statutory power of appeal; enacting substantive law by Rule and Order, instead of Act. Now leaving the lower ground of Icprnl infereme and probability, legal comparis.(m and ciuiclusions thereon and deduction, section by sec- tion, let us try the proposition laid before us: th^it the Lieutenant Gover- nor-in Cnnncil, i. e. , the local Government, or eveii the local Legislature are the only proper person.^ to make Supre le Court Rules, Practice and Procedure l>y a higher standard. Regarded in the higher light we shall be struck with the grave ob- jections on the ground of princi|)le, amounting absolutely to disijualifica- tion, in both these bodies, to the adoption of such a course. r*'J w Hi Hi m tt.iiiitikfiHftiffiH ^iHfjfffwmiffmffHnf 68 W;;f5, Wl luliii fti w« i;t It is a gpnernl principle of univtirsal acceptance among jurists that the Legishitivo, Executive and Judicial dcpaitments of Government should be kept entirely distinct from eacli other; and the reason fur this separation of functions is obvi')U8. They tire a constant constitutional and conservative chock on each other. If the Legislature goes beyond its power in the enuctinent of substantive law, there is the Judicial de- partment, an independent body, presumably well trained and experienced for the purpose, at hand to indicate the extent to which their powers lawfully go. If the Judiciary overstep the proper limits of their consti- tutional functions, there are first the Executive, where tlie law is clear to call attention to the excess and suggest, and if need be enforce, a return to the correct path. If the substantive law at issue be not clear, there is the Legislature at hand to remedy the defect, and clear the way for the smooth and harmoniuus working of Constitutional Government. It is for the Legislature to make the law, the Judiciary to interpret it, and the Executive to execute it; and it is the acknowledged experience now of centuries in every civilized community on tlie glol)e, that those who have to interpret tlie law, whose daily study and avocation it is tt- ascertain and follow out all the best modes of' carrying it out, sliould be charged with and respoiiHible for the more immediate duty of declaring and defining the Procedure by which justice is in ail cases to be obtained through the medium of the Court. If the Legislature and the local Gov ernment for such we must consider the Lieut. -Governor in Council to he concur in the enactment and carryiiiL; out of a measure which is in excess of their constitutional power — and that may readily hapjien with the iiMst honest and patriotic intention — then so long ivs the Judiciary aie distinct and free from improper control the error can besetriiih*,and the mischief remedied or prevented. The local Excciit.ve are gem rally chosen out of the le!.'islature,for tlieir influence in thiitLegisLiturv-. They are therefore very likely, nay alino-it cer'ain, to agree not only in t!io CGi^iilete propr.ety of any given law thoy may en ict.liut in the execution of it. The impor tance therefore vision i» xecutive "and lottiNliitive functions not only by the ccntr.il authority but by the "autiioritics of each Province." CooKy on Constitutional Limitations, page 57, note, citiny Webs- ter, vol. III. There is no du[);irtmcnt on which it is more necessary to iiiiposc restiainta than upon the Lc|j;iMlature. The tendency of things is almost always to augment the power of that Department of governmunt in its relation to the Judiciary. After explaining the reasons of this, the power of the purse, political influence and so forth, and the mode in which this overshadowing influence insensilily grows, he concludes, "It "would seem to be plain enough that without Constitutional provisions "which should be fixed and certain, such a department in the case of "excitement would be able to encroach on the Judiciary." In another place (i>age US') the same American author in speak- ing of the powers of a Legislature and ({uoting Thompson J, in Dush vs. Van Kleck, Johns, 498, says. "To declare what the law is or has been is a judicial power, to declare wlmt the law shall he is legislative." "One of the fundamental [irinciples of all (jur United States Govern- "ments is (and the same applies to Canadian Pivnincial Governments) "that the le^ishitive jiower shall besep.irate from the judicial." Poineroy, also a great authori'y in his Constitutional Law, Jiage 71, siiys, "It is a "fundamental principle of the United Stites constitution (and the remark "applies with equal force to the Pritish America Act) that the Executive, "Legislature and Judiciary are three distinct bodies nut to be trenched "upon or destroyed by each other." And that being the general intent and spirit of our own Act, we are, I think, bound to ap|)Iy that principle of coustructicm to its provisions, deciding the natter before us on the hi<;h ground of its relation to a well understood principle of Constitution- al law. On this ground tlierefore I consider fh;it it is not legally within the competence of the local legislature to make or depute to the Lieut.- Governor in Council, or for the Lieut.-Governor in Council to make Rules and Orders for the Supreme Court of British Colnmliia, tind had there not been several other valid grounds for arriving at the same con- fmHi>ftm^i**imfiHHHHH w ut.'um iHm u 'liumium (UlAY, J.— Ill tJuly, 1S80, the American sliii) ThraHluT loailcd ut X;inaimn with cu;i!. On loiiviug \n>vl tho Dcfcmlaiil.s were ciiijayud tu tuw lior out. lii 81) iloiug, owiii;^, as tho Plain! iH'n alle;^u, to ini.siiiiUiayomciit on behalf of tiie Di'fi'iidants, siie ninioU ujion a rciuk a .short iii.->iaiieo from the en- iraiiee to the hiilxrr, had to he abaiidnneil, and wa.s hi.st. Ship and caiijo v.iliu.'d at v^SDjOUO. Suit was conmienceil on the IStli of October, liSbO. Issiio joined and notice of trial given on the li'Jth of April, 1881. Trial took place before the Cliiof Justice at Victoria, on tho 27th, 28th, and 21)ih June, 1881. .V .H[)ecial verdict was returned in ta\or of Dcfendant.s. Several objections were taken by the I'laintilf.'i counsel to the ch.irtje of t!ie duel' Jus ice to the Jury. Leave was given to ni ivo for a now trial and a hearing in Banc un point.s reser\ed and for misdirection. Tliat leave has from time to time been extended, and tho right tu hear tho motion is now the (juestioii to be decide( upon the Judges of the Ccmrt ac- cording to old ami iiiiinemorial usage. The whole .Act was not to eoiuo into force until proclamation tu that ell'ect duly made — but that part as to making the Rules wa,s to take [ilai:e miinediately. At tho same session in A[)ril, 187'J, an Act termed "The Judicial District .'.ct, 187I> " was passed dixidiuLT the Province into districts and enacting that tlu- Judges of tlie Supreme Court .should severally discharge llieir duties and lesitle in the dii?trict assigned to them. This Act also was only to come into foi'ce by proclamation. In .March, 1881, an Act to carry out tho (d>jects of the Better Ad- ministration of Jn>tice Act, 1878, and the Judicial Di.^trict Act, 187!), was passed, called the "Local Administration of Justice Act, 1881," (Chap- ter 1), This Act made snme slight alterati(Uis in thi' provision.-) as * dis- tricting the Judges, and declared it lawful for the (governor General by order in Conncil to direct that the Judges of tho Supreme Court should ffoverally resile and usu.illy discharge tlieir duties in the defined districts, exceiit in cases of inability or incapacity, wli'ii the nearest was to dis- chai'ne the duties of the iiica]):ilde Judge in addition to his own. It th'/u proceoiletl to regulate the pirocedure of the court in many minute details. It declared valid the " Suproine Court Rules, 1880," made under authority of the Judicature Act, 1878, by the Lieutenant- HI m iiim m null M m m m firm 'm^ iHHiii mm fill il-ili iifliU ■nm. im mi ml mi inm mail i'liliUi i'i'.i-i Governor in Council as modified by that Act (Chapter 1, 1881) and gave the Lieutenant-Governor in Council power to "vary, amend or rescind "any of the said rules or make new rules not inconsistent with the "Act for the purpose of carrying out its scope and aim, and that of the "Better Administration of Justice Act, 1878," and by a di.stinct section enacted that "the Judges of the Supreme Court should sit together in the "City of Victoria as a Full Cdurt, and such Full Court should sit only once "in each year at such time as may be fixed by Rules of Court." This Act was also to come into force by nroclamation. The Judicial District Act, was on the 0th of June, 1881, proclaimed to come into force on the 27th June, 1881, and the Local Administration of Justice Act on the 28th June, 1881, on which day the Full Court was sitting and rose. There was no saving clause in these Acts as to any pendinsr proceed- ings, and thus so far as they were legal, being matters of procedure, their provisions applied to the plaintiH"s case on trial o]\ that very day and the day following tlie 28th and 29th June, and he was thereby arbitrarily de- prived, without reason or fault oi his own, of the common right incid- ent to all suitors in a LJritisli court, of having the ruling of a single Judge at nisi 2)rius inji heavy cause of tliis nature, reviewed without unneces- sary delay by the Full Court, an injury ditticult to estimate in such a case where the witnesses were [)riiicipally seafaring men. The plaintiii's counsel being dissatisfied witli the ruling of the Chief Justice, who tried the cause, obtained a stay of ^ww^jo and immediately applied for a hearing before the Full Court. The learned Chief Justice felt himself restrained by the section 28 before mentioned, but facilitated plahititi"s application to the Suiireme Court of Canada at Ottawa. There a hearing was refused on tiie ground that the court of last resort in the province iiad not di>alt with the question. Plaintitl's counst'l tlien a:;ain applied for a sitting of tl>.e B'ull Court, as he contended under its common law right and immemorial usage to expedite the cl.iims of suitors. Pending the consideration of that applic- ation the Lieutenant-Governor in Council, under the alleged power of section 32 of the Local Administration of Justice Act, L'>81, promulgated a new Rule ordering a sitting of the Full Court in Victoria on tlie lOtli of December. On that day the .rudgcs met in deference to tlie older of the Lieutenant-Governor in Council and called the attention of the coun- sel in the cause anil the Attorney-General to the fact, that that order was inconsistent with and in direct antagonism t<> section 28, tlie (^ourt hav- ing already sat within the year, and tli:it where an alleged Rule of Court conflicted with the direct enactment of the statute, for the purpose of carrying out which it was authorized,and under which it was made, the en- actment must prevail. The counsel for the plaintiff thereupon contended that the legisla- ti;art in the argument, being perfectly content with matteis as they were. On the litth December the Cliief Justice handed to the Attorney-dleneral a memorandum of certain points he thought deserving of cimsideiMtion, and tlie argument w«s continued on the Oth, I'Mi, lOtli and 17th of January. The Judge.s ni;w severally deliver their opinions. 'J'he (questions involved are of the utmost importance as affecting the administration of justice and almost of the Dominion itself. For if the "onniipotence" claimed for the local Legislatuie be conceded, all Domin- ion legislation is futile; Dominion rights only nominal, and the Domin- ion itself not sui)erior to, but siaqdy a subordinate part of British Columbia. As must necessarily be the case the discussion turns mainly on the *.)ist and 92nd sections of the IJritish North America Act, 18b7. This Act has hitlierto been ciaisidered by all Courts, all Judges, all statesmen and public men, as a new departure in the constitution of Canada as well as of the several provinces forming the Dominion. The author ties are so numerous that the position may be assumed as a recognized axiom of ct)nstitutional law when applied to Canada or its constituent parts. Says ('hief Justice Hagarty in Leprohon vs. the City of Ottawa: "We must take the Confederation Act as a wholly new "jjoint tif departure. The paramount authority of the Imperial i'arlia- "meiit created the now existing legislatures; delining and limiting the "jurisdiction of each. The Duminion Government and the Provincial "Governments alike spring from, the same st>urce." I do not proi)ohe to discuss at any length the antecedent history of tlie Supreme Court of l>riti.sh Columbia, its powers or incidents. What- ever thoy were, when British Columbia went into the union she surren- dered tlmin for good consideration to the General Government and re- ceived back exactly what is defined in tlie British North America Act — nothing nupre, nothing less She went in subject to all of the provisio na of the British North A merica Act, api)licablo to the Province. Not only m mi P mh I It fit mm ttiiiT 5i M I ■ wi mti*i4itrtitititi*iH*MrtH! TSM*i^f!fMffm!Vmfm'fnmTij:U:^^iM^ iiiiiil I VW l/fffi hm\ m m M pi littui (.•Mr:l p/A P J/jp 64 is tliis tho necessary Cnnsfqueiico of yijiu!^ into the union, but it is ex- pressly doehived so to ho intended by tlie 48th section of the Local Constitution Act, 1871, (consolidated statutes, cha|iter -42, section 83,) passed by the Local Legislature ii couteniplation of such uiii' n, viz: /^ If the projected Union nf this C'llouy with the D.inrniv)u of Canada shall be carried into eii'ect, this Act shall be construed after this Colony has been so united as afmo.said, anytiiing hereinbefore cuntaiued to the contrary notwithstanding, as being subject to all the provisions contain- ed in tlie " Brilish North Vnietica Act, 1877," which may b}' such nui(jn beciune ap[)lical)le to this Colony, and to the provisi(jus c )iitained in any Order of Ilea ilajesty in Ciumcil fur the adniissinn of this C(dony into such union as aforesaiil, under the authority of that Act, and to the i)ro- visious contained in any Act of the Pai'lianient of the Union Kin^dnni of Great Britain and Iiela'.id, made fm- tho tlie i)uri)o.se of eli'ecting such union as afoicsa.id, or tn any other provisiiuis framed by competent authority, other tiian already nientinned, for such purpose." Whit, then, bearing on this question, did she receive back? Subject to the controlling power of the Ol.st section and the genera! tenor of the wiioie Act, she received by the !)2iiil section, sub-section 14, the I'xclus- ive power to legisate as to "The Administration of Jiii^tice in the Pro- "vince, inr^luding the constitution, maintenance and organization of "Provincial Courts, 1) ith of Civil and Criminal jurisdiction, and includ- 'iug procedure in civil matters in tliose Courts.' Sianding by itself as a distinct Province, bound by no controlling oonnecnon with any other or liii^hei- authority, the powers in this sul) -section would wiihotit (juestion give an al)solute ilominaut Provincial control; but read uith tlio whole of the British Nmah Amirica Act, tliey must lie read as ati'ected by and subject to tlie general objects, uses and powers for which the Union was made, and for maintaining which eltici- ently tiiat Act wa.s passed. If by the terms and couilitioin embraced in the Act tlie General Government can use for Dominion purposes Courts in the <'rovince — but Provincial only in the sense that their sphere of duty iy confined to tlie territorial limits of a Province; the Province can- not so legislate as to render those Court inetlicient, and admitting th.it the I'rovince can use the same Courts for its local purjioses tliis powo)' only gives to the in.strunient a conjoint character, prevent- ing its reduction to inutility by eithei', and readers the preservation of its elKciency the more distinct, when tlie expense of maintenance i.'j .-hand by buth p.uti(vs, and the ap])ointmiMit of the directing hand given ex- clusively to the one which cm use it for the geneial purpo.se. 'I'his prin- ciple was recognised in Leprohon vs. Tho City of Ottawa, 2 Ont. ap-p. C. 522 where it was held that the power of taxation by the Local Legislature did not extend to those means or instruments employed by the Doinin- iiMi Government to carry into efl'i.'ct tho ))o\vers conferri'd u[>on that body. The same re isoning wouhl render suiconstiliitional tlie possession or ex- ercise of a power l)y tho Local Legislature to render inefficient courts the Dominion Government was entitled to use to carrj' into effect the powers conferred upon it. Valin vj. Langlois, clearly decides that tho Dominion P.'rliaiuent may utilize the Superior (Jourts in the Provinces for the pur|iose of en- forcing Canadian laws enacted by that Parliament witliin the scope of the Legislative power given to that Parlianienl by the P.ritish North America Act, 18G7, a view which had been recognized and acted upon by this nri ttrmt rfftf BBBBOBttn , • i^^n^ ! . > it»iHi^if »f »j fFHH ■;T!:Hjir;!rii»MHf*i»»fiH»wii?nf*n'f»: 65 ciuirt previous to that decision. Thetnie cl.ara.'ior and position of tlicso courts are an cle.irlj' defined by the Cliief Justice in Yalin i'.;. Langlois that it aluiiist renders argument unuece.ssary. ''Tiu-y are not," he .says ''mere local courts for the adniinistratioii of tlu mmimm Ml I i ,1 ho "ment of Canada, or by tlie h-gislatures of the respective Provinces ac "cordini( to tlio autlioriij' of parliament or nf (hat legislature under thii "Act. They are the Queen's Courts, bound to take cogni/ance of am "execute all laws whether enacted by the Dominion Parliament or the "Local Legislatures. Provided always such laws are within the scope of "their respective legislative pow(»s." A higher autliority or a better ilelinition we could not have. I'he l*\>deral (lovernnicnt \)y Parliamentary autliority appoints, I'ays and removes the judges asi)iiiiited nut by imperial and Dnnutiion Legjs- latinn. The Local (ii'veriniient merely provides tile subordinate oiiicera and local machinery. Without a judge there lan be no court, and the Laical O'lvernment cannot apiioint one to that court. The Supreme Court of Prirish Columlii.i canuot theri'fore be exclusively a Provincial Court. D5y the ellcct of the British North Americi Act it becomes a Federal C'ourt, acting within a dt _ _- imes a - , ,..v....^ letined territori t! jurisdiction, and as in- cident thereto for the pni'tmse of its oxisti;nce aud efliciency in carrying out both the Federal and Provinci.il laws, cainiot t)e controlled in such a way by local liigislation, in regard to procedure or otlicrwisi.:, .i?. to render its action inell'ectual. It was so intended by the Pritish North .America Act, in order that the .\dmii;istration of Justieo, and the judges them- selves miuht be uninfluenced l)y local, political or personal cmisideiations louder the ]'_'l)th section, the Canadian Parliament adopted the Coui witli its power and authorities as e:\.istiiu previous to confed^ratic t 11, \>M.ii ^.1[M^\^uI film ,iui iioi'ii lua ti^ i".\.ini. iii_; [iii\iou.'5 lu i;i 'iiii;v.it.:i (II iwu , clothed it witii combined duties, and increased jurisdicticni, to carrj' mit as the law of the laiul in civil as well as in criuiinal matteis, statutory enictinents made beyond the territorial limits of the Province, reuder- iug their ooer.ition coni[)idsory, Uvit operative through comity only, and iireservi's the Ctuirt, subjoct only to be abolished, altered or afFi'Cl- od by the Dominion Parliamen' or the local Le;iislatu)e, as the British North .Vmcrica Act jiermit.). The 14th sul)-sectioii is divisible. 1st. It confers on the Loc:\l Leg- islature the exclusive power of m.ikini,' laws relative to the administratiiui of justice, in the province. That power it has been decided means limit- ed to the matters on which the Local Legislature cm constitutionally leg- islate, that ia as defined in the Oliml section, otherwise the whole Diun- inion legislatimi so Iay as it has to be carried out in the Province might bt! rendered nugatm'y. 2nd. Tt confers the power of constituting, main- taining and organizing " Proviiuial Courts" b the subjects defined in section 91. It has exclusive power over all subjects Jo which the exclusive power is not given by section 92 to the local L(>gisli.ture. Again, to quote the language of the Chief Justice in Valin va. Lang- lois: "This may be termed a Constitutional Grant of Privileges and "Powers which cannot be restricted or taken away excejit by thoanthor- "ity which conferred it, and any power given to the Local Legislature "must besubordinato thereto. " Itwas decided in that easethat theDomin- ion Parliament had the right to utilise the Superior Courts of the Pro- Tince,and to legislate as to the Procedura in those Courts, in the civil mat- ters in which it so determined to use them. If so, the Local Legislature hai not the exclusive right to legislate a.s to Procedure in civil mat- ters in those Courts. firfi it til _ m Uttt m uini mi m iiiii tilt: mil tt'tixt ml mi m ffsHf UV.H ifihl i um mi'.\ ihi ml i '•MM luiy ^swmwA mttmn iiminuiiii I tmtitmtmm 'rtrd''.'u<>j mm tJii*fltfi' ■im uiml ittt atit'i f\ 68 The "procedure" therefore in that sub-section 14 specified must have reference to Courts in the I'mvince, over wliicli the Local Legisla- ture of the I'rovince has exclusive control, because, ex-rationi, if the Do- minion Parliament has a power to Letjislate as to procedure in civil matiers in certain courts in the Fr(ivinco,t,iiose must be courts over which the Local Legislature has not the exclusive power to Legislate as to pro- cedure. It is a clear canon as to the construction of statutes, that you must give force and effect to every word, as far as it is possible. The guvern- ing words in this iubsi'ctinn, and section d'J, as bearing on this sub-sec- tion, ar(i "exclu.sively" and "those Court.'*." They are thus "linked" and tlu! character of the court is clearly specified. The general authority conferred by !U, being to legislate on all mat- ters not coming exclusively wifhin '.W, thus pertaining to the Dominion Parliament, the iLJl'tii section steps in, autimrizing k-gislation as to the existii;;' Courts in the Province, by the Parliament of Canada w the local Lc'gi.-blaiure, as one or the other under the British North America Act may he entitled. The Parliament of Canada has legi.slated upon the sul)ject, has by imposing certain duties "iton tlie Su[)reme Court for Douiinion ])urposes in matters couiiectod with the Civil Administration of Justice in the Pro- vince altered tlio coustitiitimi (if that Court, increased its juristliction, and exinessly sliown by legislative enactment that it is not a Court over which the local Legislature has the e.xclusive power to legislate. Tlie exercise of tlii.. jiowe'" has by the Supreme Court of Canada in N'alin va. L;inglois, been dechued constitniioiud. ] i furtherance of the ob.serva- tious of the (Jh of Justice, .Mr. .Justice ^^>UI•lller referring to the ovten- si\'e powers given to the Federal goverumont over these (Jiu.u'ts liy the 12!)th .section s lys: "Could stronger or fuller language be used to give "jurisdiction over tliese Courts f 1 tliinlc n it i I'iie oil'ect uf this sec- "tioii to which they owe tluiir very existence is (ividcutly to place them "under tlie le^islitive power of the Federal (ioverniucuit, as well as it "is true under that of he loci Govenunent, and to make tlicin, in fact, "common to both these Governments, for the administration of tlie laws "adopted V)y them within the limits of tiieir res[»ective [lowaM's.' Mr. Justice Henry: " 'i'ha \vh ole^purview of the Act, with a pro[ier "consideration of iis objects, is evidence of its policy t- limit local legis- "huio" to those civd rights in the I'rovince not iucludetl specially, or "otherwise in the poweis given to the Dominion Parliament." As to sections i;{ and 14, — " Guided, by the purview of the whole Act, deduct- "iiig the indirect and incidental powers of legislation given liy the Aet "to Parliament, the loeid Legirshitures iiavt; the I'xclusive I'ight to legislate "only ill I'egard to the rem 'iuder. 'I'lie 14th sub-.'^ection gives local "autiiority to deal with the admini.stration of Justice in the Province, "in reifnrd to the subjects given by the Act. And to thitt e.xtcnt onlj'to "provide for the construction, mainfeu.ance and organization of Provincial "Courts, in reference to tliosc^ and kindred subjects. 'I'hc words 'Pro- "cednre in Civil matters in those Courts' must be considered witir the "context and with the objects and other provisions of the Act." (77) Mr. Justice Ta.'-c'iereau says: " The .Administration of Justice is "given to the Province, that is true; but that c inn it be underst lod to 'ineia all and everytiiiug concerning the Aduiinistration of Jus- "tice." (81). by th ■">^^'v">f'"f*rffHf'iHmmtnnHmim mirpi7 mi iii *mH. TTTfJffT^Tffff^ffW st la- o- ch ■o- Gt) Mr. Justicu Gwynne is equally decided. As the local Legislature caiiimt sui)ei'sedo the action of the Doinin- ioM Pai'liauient, it jaimut dejii-ive the Court of tho character thus given to it l*y sucii legiblatinii, ov the Dominion I'arliauieiit of the use they may Uiake of it. If so, it his no exclusive control, and if it has not exclusive control it cannot legislate as to that Court's [jrocedure, because by the Dlst section, wiuit it cannot exclusivelj' legislate upon the Don iniou I'arliament ah)ne has the oxclu-sive power to legislate on. If thos terms, so used in the '.(Ist autl !)2ud sections, are to liave any legal mean- ing, they negivtive a joint autlmrity It is tin; logical se(p,ience,that if tiie local Legislatuie alone has [(ower to legislate on niatteis cuning within 92, and the Dominion Parliament has legislated on the duties and proce- dure of the Superior Courts in the Pi'ovnicj, and that legislation has been declared constitutiiuial, then timse superior (^uuts cannot ctune within the class embraced in sub-sectiiui 14, section 02, because with reference to that class the hjcal Legislature, having the exclusive power, the Dominion Parliament cannijt legislate. The action, therefore, of the Donunion Parliament and tiie Judgment of tin; Supreme Court of Canada, a nount to a Legislative and Judicial declaration to tliat ell'ect. The term "exclusively," in 02, it must lie burne in mind, has re- ference to, and is legally a part of every sub-section, and every sub- division of a sub section, and tiierefore a[)plies to each of the sub-divi- sions into which the subsection can be divided. It cannot be contended that in the same Court on the same subject, the rights of suitiu's in Civil matters, there can be two ditteient Rules of Civil procedure, that you can say to one: Your case shall be heard imniediately, and as often as your business requires, because the redress yon are seeking s[)rings out of Dominion legislation; but to the other, \'o I cannot be heard, fo.' one, five or ten years, because the debt you k to rocover pei'tains, so far as procedure goes, to the control of the local Legislature. Yet such must be the case, if one or the other has not the exclusive power, the Dominion Parliament or the local Leg- islature. If a Provinciid Legislature positively euncts, that on a jiarticular sub- jec, and in a I*r.ivincial Court, within its legislative jurisdiction, and under its exclusive control, a particular course siuiU he adopted, the '^^^uitor may or ni:iy not avail himself of that Court. But to adjudge- that in the only Court to wliicli he can resort, a Court used for Domin- ion as well as I'rovincial ])uriioses, and in which tlie Dominion I*arlia- ment has coTistitutionally exercised the right o( reu'ulating procedure, he niiiy be tM- used, is introducing an element entirely at variance wuh an impartial administration of Justice, and one never contemiilated under the British North America Act. The procedure in such last-named Court uuist be eitlier under Diuninion or I'rovincial control, and the fiu'uier has legally assumed it. N(U- is this assunqition limited merely to matters of Dominion Legislation. Tlie .Su[ireme and Exchequer Courts Act, c. 11, 38 Victoria, A. D. 1875, is especially created and clothed with power for hearing and granting appeals, not only in matters over which the Dominion Parliament has power to legislate, and arising out of laws .and pi"Uoedings with which the Dominion Parliament and Gov- ernment alone are connected, but also for hearing and gi'anting a[)p(!al8 in matters falling sti'ictly within the purview of the administratii.'n of Justice in civil matters assigned to the local Legislature under section 92. mil Im UhUititimih Ui 4Hi u »k ftMt i Hriim i mi Hi{Hhfmkm^t^ luriuiprimmm 70 The lltli section of that Act restricts the .appcfil to an appeal from the Court of last resort in the I'mvino* where the Judgment was ren- dered in such case, and by the 17tli section enacts that " subject to the "limitations and provisions hereinafter made, an appeal shall lie to the "Supreme Court from all final Judyuients of the highest Court of Final "Resort, whether such Court be a Court of Appeal, or of original juris- "diction (nipw or hereafter established in any Province of Canada) in "cases in whicli the Court of original jurisdiction is a Superior Court." Here is i.i clear statutory right given to suitors (defined as to the mode of Procedure by wliich it is to be obtained from its inception in the Court of last resort in the J'rovince to its hearing in the Supreme Court of Canada) to an appeal from the .ISu|ierior Court of the Province in Jill final Judgments, not judgments limited to matters springing from Do- minion but equally from local legislation. By the first Act of the Dominion Parliament passed in that same session, C. I. 38 Vic. 1875, 2nd section, it is enacted as an amendment to the 18 thesubsection of section? C. I. 1807, the "Interpretation Act" that the term Superior Court shall in the Province of British Columbia denote "The Supreme Court of British Columbia." Thus in the Supreme Court of British Columbia we have enforce a Dominion statute regulating procedure even to staying an execution in the sheriti's hands ui matters arising or that may arise out of Local Leg- islation. How then can it be said, that this Court comes within the class of Provincial Corrts, over which the exclusive jiower is given to the Local Legislature to legislate as to procedure, when if so, tliat Legisla- ture may take away from the suitor, as by its action in the present case, if legal it has done, the very highest right conferred upon him by the Dominion Parliament? The infei'ence is irresistible, that this superior Court, with jurisdic- tion t(j deal in civil matters arising from Pruvincial as well as Dominion Legislation, was by the Parliament considered as not coming within the class of courts specified in thel4th subsection and therefore not under the control of the Ijocal Legislature as to procedure, and it was so con- sidered by the Parliament of Canada, because it was essentia! to the good government of Canada as affects the administration of Justice that it should be so. This view again is in accordance with the principle laid down in the Queen vs. Burah 3 L. R. ap. Ca. 889. In order that an Act passed by the Local Legislature should be valid, it must be within the powers ex- pressly limited by the act of Parliament which created it. Within those limits its powei's are n*. doubt plenary, but it can do nothitig beyond the limits which circumscribe those powers. Apply the limitation here. Such subjects as being exclusively given to the local legislature theDo- minion Parliament cannot legislate upon. Whatever, therefore, the Dominion Parliament can constitutionally legislate upon must be beyond those limits, and, therefore, the local Legislature cannot legislate on the same subjects. Though this local legislation be pronounced unconstitutional, the Court itself for the purpose of the administration of Civil Justice ni the Province is not left without am])le power of Procedure. What it had at the time of the union, under the 129th section, still remains, and for what may be required the existing law of that date still continues which gave power to its Judges to make rules, besides the inherent power in niutttmtn '""^'''""*ff^*ftff>fnnhH»mmmmm{Hm MMMmdmlllhhiR 71 nn tlie the Courts ofsuperiorJurisdictionateoinmonkw iiiLltpondeiit of any statutory authority to govern their own |)rocotlnre in the interest of suitors — '' 'it:>ii4tuntn»t*nfT iffsmffnsnrnmtnfsmmjnmfwrfTimnnn U-lur - rilifJJI;' livm tUnt 72 heard, duterinincd, and dis(i(j8ud of beforo a Hiiif^lc Jiidgu sittiiiir in Coiii't or ill ("liainhur.s, ass firciiuistaiicfs may re'(|nirii; and in Yictoiia sncli .sittiuLjs in Conrt or in Clianihcra rcspuciively sliall, ho far as is reanon alily practicable, bo hold continuonsly thron^^hout tlio year or as often as tlio InisinosH to l>o disuo.sod of may rench^r nouossaiv. 2. A l'"idl (Jonrt uliall consist of not loss than two Judges of tlio Supreme Court sitting togetlier, and sliall, besides exercising tho juris- diction assigiHul to it by the Act, hoar and determine appeals, or ap- plications in tho nature of ajipeals, from any judgment, ruling, ov order of a single Jndiio, exce[iting orders mentioned in Section S of the Act; and sluill hear and determine Special Cases whore all parties agree that tho same i)0 heard before a Full Court. '3. Sittings of tho Full Court in Victoria shall bo hold as often as tho business to bo disposed of may render necessary. 4. All appeals to the Full Court shall be by way of re-hearing, and shall be bi'ought by notice of nuition in a sunnnary way. The appellant may by tho notice of moti(ui appeal Trom the whole or any part of any judgnuuit, rulnig, or order, and the notice of nutiiMi sliall state wliether the whole or part only of sucli judgment, ruling, or order is comiilaiued of, and in the latter case shall specify such jiart. By an act passed on 25th .March", 1881, C. 1, called, "Tho Local Ad- ministration of .Justice .\ct, 1881," section 10, the section 4 of the Judi- oatiiro .\ct of 187'.* (heretofore i|ui'ted) isameiided by substituting in lieu of the part ther(!in as to thosittings tlie following. "Sul)jt!ct to tin; Rules "of Court and tho I'l'ovisions of this Act, and of the .ludicature .\ct, 187!', "tho Sui)r(une C'oart and any Judge or Judges tln-reof shall have nower "to sit and act at any time and at any jilace for the transaction of any "part of the business of such court or of such Judges or for tlie discharire "of any duty which by any Act or otherwise would horotoforo h ivo 1)0011 "oris reipiiiedto be disciiarged (biring or after toi'iii." By section .'5'J, " The Su|)retiie Court ilules, 18S0," (it is enacted,) "shall, as modified by this act be valid, and the pro\ i.-^ions of any Act or "ordinance inconsi>tent therewithareheieby repealed andtho Liout.-Gov- "ornf)r in Council shall liavo power to vary, amend or rescind any of the "said Ilules, or make new Tiules [)rovided the sinie are imt inconsist- "ont with this Act for the purjiose of carrying out the scope and aim of "this Act and the I'.etter Administration 'of Justice Act 1878. The said "Rules need not be uniform, but may vary as to dill'erent districts in tin; "province as circumstances may I'cquire, and section 17 of tho Judi- "cature Act 187'J, with n^spect to Rules of Court shall contiiiuo to bo in "ft)rce subject to said I'roviso." Conceding for the sake of argument that the Local Legislature has power to regulate the procedure of the Supreme Court, it is ])lain that under tho amendment to s(!ction 4 of the "Judicature Act, 1879," and tho "Supreme Court Itules, 1880," assumed and made valid Ijy legislative enactment in this section, the Sui)reme Conrt C(juld sit to ex[pedite busi- ness whenever re(]uired, but C(mtcmpult for a;:\' period at the will of the local Legislature, H liliil U "of tho D(imiiiii)n do not exercise their functions within the bnnnda of "iiny Province by tiie [lennission of the hjcal (government. They are "thero by autliority of a higlier power. The Province ha.s no sovereign- "ty over tlieni or tlieir saliries as exi.sting by it.s authority, or introduced "by ihH [JLiruiission." If tho riL;ht hero coiituntled f'lr could l)e sustained, cfjually could tiie Dominion (Sovernment interfere with tiio I'rovincial olHcers a[)i)ointed and paid by the local (jiovurnnient and Legislature, a doctrine too unconstitutional to bo thougiit of. Tlie reason for this separate control is expressed in a few words'. In Collector vs. Day, 11 Wall, li;}, also cited in Le[)ri)lion"s case, " Any Oovernnieiit whose "means are employed in conducting its operations, if subject to the con- "trol of another and distinct Government, can only exist at the mercy "of that CSovcrnment." We are thus brought dowji to the broad question how far the sec- tion 28, 0. 1., the local Administration of ,Justice Act, 1881, comes within the power given by subsection 14, section 92, British North America .\ct, and to whit e.vtent tiie local Legislature has power to make rules, or to delegate to the Lieut.-Governor-in-Conncil the jiower to make Rules regulating the procedure of Supreme Court. This latter power, (it was [)ressed by the Attorney-General at the close of his argu- ment) had been recognized by the Sn[)reme Court of the Province in three separate Judgments delivered by the three several Judges on ditf- erent occasions, and hid tiioreby become the Judicially declared Law of the Land. With reference to these Judgments each Judge h;is to speak as to the one delivered by himself, because, increilil)le as it seems, in a Province wlu^re many of the most comi)licated cpiestions have iirisen .since the Uninn, affecting tlie (Jonstitiition and powers of the Goveiii- nient, no provision whatever is nnule for reporting tho decisions of the Court, or of the separate Judges, or of making any reference to what might be termed an otlieial declaration of what the Law is. All know- ledge of the reasons for the decisions depends merely upon verbal st ite- ments, or the voluntary action of a Judg(! in giving a copy of his Judg- ment to one of the newspiipers, which may or may not publish it, as in- clination dictates. A degree of parsimony, which in the interests of suitiirs coming Viefore tlie Court, and of tiie public at large, it is not ex- ceptional to pronounce as inexcu.sable. Ill the case of Pamphlet vs. Irvine, heard before myself in Auugst, 1880, the (juestions now raised did noc then arise. In that case the point was: That under the local Adinii isfration of Justice Act, 1881, the local Legislature having under section a.7 '/t ,the Judicature Act, 1878, directed the Lieut. -(lOvernor-in-Council to make Rules of the Supreme Court for carrying tliat Act into effect, he had no [)ower to issue a Pro- clamation directing somebody else to make those Mules. And it was held that he had no such power, that the Legislature having selected him to discharge that duty, upon the principle of " Delegatus non potest delegare," he could not transfer either the power or the duty to any one else, a dociMon to which I still adhere; Init the questions were not then raised which are now raised for the first time in the Province, namely: First, That the local Legislature itself had no power to make Rules regulating tho proct-dure of the Su[)reme Court. Secondly, That if it had such power, it must exercise it itself, and could not delegate it to the Governor-in-Council. Thirdly, If it had sucli power and had exer- cised it by adopting certain Rules called the " Supreme Court Rules, itiiiiftmum ''•''*y»'>''''***>iHHHtt>nHU'ih»imituuiUiiimi1H}fHfifHHIWHH wmmfmrnmrn iMmuam, 1 "1880," iiiid milking them L;iw bj Stiitutdty cnactnioiit, it could not delL'Ltfito to tlio Lii)iit.-(jiovornoriii Council tlio power of milking Rules to alter or revoke the Itiilessoiidctpted and iiiiide Stututoiy; and fnurtldy, That the Rule made, iiniler such last-named a.ssumed [lower, directing tlie Full Court to .sit on the iltth of December, was not only illegal on that ground, hut also as being directly incidet vs. Irving, til which I nnw refer and add a co[iy hereto, as there are n(j re|;ortH from which it can he (juoted, thus become on the (juestion of delegated au- thoi'ity, so far as bearing u[)on the (juestions n(jw raised, in point, and are fi.lly sustained by Cooley on Constitutional Limitation, 141 et. section '29. Such legislation as the present, it may further be said, though it does not in words, yet it dues in fact indirectly, if not directly, interfere with the trade and commence of the country. For what shipowner, Brit- ish, Foreign or ColoP.ial, will .send his ship and cargo into a ciuntry where under an alleged olaim of riigulating procedure in Civil tnatters in the Courts of the Pmvince, the Loc.il Legislature or its (Jovernment, authorized l)y its Legislature, can when legal troul)les .ir difhculties have arisen, and the intervention of the Su[ierior Courts in the I'rovinco has been in\'oked between such owners and the inhabitant.^, close down the diiors of Justice, ''03' tlie right of Iteing heard, and tell him all ad- judicati2, and in the presence of the fact that in one or more of the Provinces, local legislation has been occasionally l)as3ed under a dillerent impression, it is, I say, only after long and careful consideration that I have felt compelled to come, to the conclu- sion that the Local Legislature has not the power to make Rules to govern the Procedure of the Suiireme Couit of the Province, or to delegate that power to any one else, and that it cannot legislate in a way to deprive suitors (jf the rightof access to that Court, in matter.s coming within its jurisdiction, or impair the use the Dominion Government and Parliament can make of that Court; and that it is not necessary to wait until a ease arises in which Dominion interests are involved, so to decide; but if the legislation Ijo cajjable of iieing so used, it must, whenever the objection is taken, be pronounced ultra vires. I have said in the absence of any Judicial authority, for it must be remembered that the case of Valin vs. Langlois, conclusive as it is, to the extent to which it goes does not yet cover the whole ground raised in this case, for the points now raised were not then brought up. That case established conclusively the right of the Dominion Parliament to 1 I I Mll'i i I Uii\ dr. I luVtitiUiiimiMHiiiHi 3rrfsi»»i- itmimuummmmrinnsfmnumfifmmmmi^^^ ihnti WMMHMUHHIIIIIfillllf fWMtniKaRS^ifegfiSSSisammmi 1t$ii't^t$ttt^rfi ml P ■lust wtiiiti liifii-i nnff if!! tHiii um hnvA *'f!!'! ..:isii: m mm Jm w liUtsi ttt •.:!i tiittn i:iitiv, fi:iit: Vfhn Mff.trt |:»;f;r im ..■nti hi"-'- pirn tnm\ 0i ml VifiiU hiPH 7« the iiai; <>f tlie Siiperi'ir Cnurts of rho I'roviiices fur Dnmiiiinn piirpcses, ;iikI to tlic furtliur iiiiiliiiil)tcd rii^ht of rogulating pnjcorhiro in those (JiiiirtH, so fur ;iH wii.-v os>oiit:;il f'lr tliose [)uri)oie.s, l)iit it wws not necessa- ry tlieu to considef, or to doeidf, \vlu;tlu;r the eiiiire control of tlie pro- cedure ill th 'SO OiiirtH w:is not vvitlidniwn from the hic.d J^egishituro by tiie uU'ect of tlie 91st section, and the words uf limitation in the !)2nd section and sub-section 14 of tlie It'iud section and of the I'J'.Hli section, and tiiiit tliMiiirh till' Locil Lfgislatui'e might liuve the uiidouhti'd riglit to legislate- as to all matters relating to llie Administration ot Justice conslitu- tiojially coming within their control under the IVind sectitm, yet whether the mode or procedure ft^r carrying out th.it legislation, when suits were instituted in the yiij)erinr Conns, must not bo left to the Courts them- selves to i'i'giil;i;e, under their Common Lawpuwers, or statutory [lowers, existing at the time of the Union, or under such Rules as the Dominion Parliament might piescribe or authorize to lie made for heir governance. Whet'Uer in fact siicli Courts could be considered as coming within the exclusive! term " Provincial Courts," designated in that suli-section o\er which the local L.'gislature, it is not (piestioiii'd, has the absolute con- trol, and also the exclusive power and privilege of constituting, organiz- ing and maintaining. There is yet another p induceme igency it will tai injustice. Inth "that tak "restrosi Coo "subject "done in tfnniKinnfnffUftp iiiHUii'' t.»f J.«t«.»*W*»J ^mUulfmiiutiiiiiMitiiUiiiiiiiiiiiiiiiiiUiil Wii m 77 sorvicc, is ii breach of the conditions of his aiijiointnient, and in viohi- tioii of Constitutioniil Law and I'ractico. Tliu IJritisli Xortli Aniuric.i Act is tiio fand.uuontal Law and di-lines with cloarui'SS the tcaiire of iIr! judicial olHcf. 'I'ho I'arlianuuit of Ca- nada has [laasod no Law in coutrivcniiun of or trciicliiui; on tl.is doli.;i- tioa. A Local Le;^islatai'e cannot cnnfcr or the tJuvcrnnuait of tlie Do- minion power wliich tlie Britisli North Am irira Act or Canadian Parlia- ment itself has not j^iven. At page at Cooicy says, '"'riie constitution of "tlie state "isinglierin authority than law, direction or order niach; liy any "body or "any otiicer assuming to act under it. In any casi; of contlitt tlio "funilamental Law must govern and the Act in conliict witU it must he "treated as of no legal validity. The courts iiave tUua devolved upon "tiiem the duty to pass upon tlie Constitutional validity sometimes of "Legislative and sometimes of executive acts (05)." In tlie notes at page 'Jtl., "It is idle to s.iy that the authority of each "branch of the Uovernment is defined and limited liy the cuiistitution if "there be not an indepeudant power able and willing to entorce ,;lio "limitations. E.Ki)erience pmves that the Consitution is thnuglitlessly but "habitually violated and the sacrifice of individual rights is too remotely "connected witli the objects and contests of the masses to attract tiieir "attention. The judges ought to regulate their decisions by the faiida- "mental laws rather than by those which are not fundamental. " Nor is it necessary, says he at [nges 210 ami IL "That the Courts "in every case, before they cm set asidt; a law as invalid, should be abU; "to find in the Constituti(jii smne S[)ecitic inhibition whicii has been dis- "reirarded, or some express command which has been disobeyed. Vm- "hibitions are only important when they are in the nature of exceptituis "to a general grant of [jower, and if the authority to do an act has not "been granted by t,! ■ sovereign to its ilein'eseiitative it cannot be nec- "essary to prohiliii it . being done," The Bi itisa North .America Act is the fundamental Law; it gives ))ower to tiic Governor General to appoint the Judges and to remove them from oflice on address of the senate and House of Comiuons, but nowhere wlieii once a[)pointed without condition or limitation as to resi- dence save that it lie within the Province to which they may be appoint- ed, does it give the [)ower to order the Judges to change thi;ir residences to particular sections of that Province, at the dictation of the Local Leg- islature contrary to the terms of their Commissinn and the law under which their a[)pointments were made. It was not necessary therefore to inhibit the exercise of such a power, for it never was granted. A furtiori where such change is in i\o way essential to the eliicient discharge of the lUities attached to the appointment. The privileges conferred by tlio British North America Act and the Dominion Legislature are statutory inducements. Tiie power which confers, may remove, should public ex- igency demand, but that Power has not yet spokim, and, .should it do so, it will take care that the exercise of any autlun'ity it gives shall not work injustice. In the case of C aider r.?. Rule Ji, Dallas, .'SDO Chase J. says "every law "that takes away or impairs rights vested, agreeably to existing Laws is "restrospectivc, and is generally unjust, and may be op[)ressive." Cooley at page 325, speaking of ex-post facto laws, says. "If it shall "subject an individual to a pecuniary [lenalty for an act which wlien "done involved no responsibility, or if it deprives r. party of any valiia- m iiJMiMS'M ufmrnHHi' UitUxllV Ult'.lUilUUU: ' titti ■m mil Vlnh Erf > -• ' Vt'"' T/iVYf'l ... :|ii IsJlfjr p/ij liHH M Vitsih pam [•:j»J!, •:;»■•» II P//i Hill /«! ^ 78 "l)lo right, like tli'j ri'^'lit to follnvv a lawful calliiiji, fur acts which were "iiiii looiitDi" atlo istiiMt [>'jiHsliablo when committed, tlio law will. bo ox-jjost "f iiti) ill the Cou.stitutiiiii.il sense, notwithstundin,:^ it does ngo 1138, after referring to powers specially conferred by the constituticm upon the CJoven^'r or any other specificfd officer, ho adds, "( )ther powers or duties the Executive cannot exercise, (jr assinno ex- "cept by Legislative autiinrity, and tiie j^ower which in its discretion it "confers, it may also in its discretion withhold or confer to other hands, and in a note bearing on this i).)int he (piotes from an American case the following observatitms. "In deciding this question, as to tlie autluu'ity "of the (Jovernor recurrence must be had to the constitution; that fur- "nishes tlie only Rule by which tlio duirt cm be governed. Tliat is the "(yharter of the Governor's autlmrity, all the powers delegated to him "or in accord.inci^ with that Instrunnint ho is entitled to exerci.se and "mnie oihers." See also the Ciiief Justice's observations in Valin va. Langlois, hereinbefore (pioted, as to Statutory ri'ghts. Where then in the Constitution —the IJi-itish North Vmerica .Vet, is any power of the char.icter claimed given to tlie Governor-General, a power, it is contended to be exercised at the instance of the Local Legislature, whether the movement, in the language (jf Mr. Justice Patterson, may "spring from "caprice or from crude tiieories of political econ(nny, or from any cause "whatever, being a matter of speculation." So strongly is this principle of the inviidahility of the status of the Judges regarded under the Feileral Government of the United States, that that Government never impose<, or permits to be imposed upon, the Judges once appointed by the Federal Goveiannent, any additional bur- dens or restrictions, without special legislation by Congress to that effect, and should it in view of paramount [iuV)lic interest do so, not without providing additional compensation, thus shewing that in the American view, the C(mstitution re(|uire.s the presumed compact, resulting from tlu; ap])onitment, to be construed in the light of the existing law at the time of the iippointment, and this has been the rule from the dawn of the Republic. Vide Act of Congress, May 2(;, 1824, section l.'i, 4 United States Statutes at Large, page 50, relative to Federal Judge of Missouri; D I. do. June 17, 1844, 5 do. (570, relative to Louisiana, Arkansa-s, Mississippi anil Alabama; Do. do. June 14, 18(i0, section 7, 12 Statutes do. page 35, relative to California. It must, therefore, bo considered that in Law no authority is given to the Dominion Ministry to advi.so the Governor-General to order the 'win the 1 >>i»«^«U i»*»*'«k_ "^fmmffi^^nnm. •iir.l 79 Judges in British Columbia, or any ono of them, holding his or their Coininissions and appointments antecedent to the local Judicial District Act, 1879, to reside in any specially assigned District of the Province, and conseiiuently any order to that eftect made under auch advice would be uncon:^titutional. A judgment to this effect was given in this Court in December last, in the caie of 'i'he Queen ex relatione the Citj' of Victoria vs. Vieux Vio- land, from whicli the counsel engaged declined to Jippeal. As to this Judicial District Hill, it may be urged, the Judges are in- terested, for if legal, it atlects their position and tenure of ollice. That objection, however, where all are ccmceivned, cainiot be sustained, for if >o the suitor would be denied access to any Court of competent jurisdic- tion in the Province. Tn such a case it is held that the hearing becomes a matter of necessity and is nnimpeacliable as if "An action were brought "against all the Judges of the Court of Common I'leas in a matter over "which tliey Iiad exclusive jurisdiction." Per Lord Cranworth, C, Ranger vs. (;!reat Western Railway, C. , 5 House of Lords Cases, 88. See also Broom's Legal Maxims, Edn. 1874, and the ca>e3 there cited. I think, therefore, that the objections taken by the learned Counsel, Mr. Tlieodoro Davie, for tiie i)laintifr, must bo sustained, —that the legis- lation restricting him from being heard is unconstitutional and void, and the Rules of l^rocedure alleged to have been promulgated by the Lieut. - Governor-in-Council for the governance of this Court are inoperative, and that tliis Courtis bound in duty to exercise thcauthorityit possesses to afford hiu) an opportunity of liringing the plaintiffs case at as early a day as possil)le before tlie (Jourt, in order to test the validity of tl>e [)oints raised by liim at the trial of this cause. And 1 may add tliat the uonclusionsat whicli I have arrived havebeen materially confirmed by the fact that every conceivable and almost inconceivable argument has in a lengthy, most careful and able contention by the AttorneyOeneral as iDuiriis rurid been brouglit forward against such conclusions without any efl'ect other than to strengtiien them. The following are the conclusions at which it may be briefly said the Chief Justice, Mr. Justice Crease and myself, who have heard and con- sidered the argument, have arrived, (Mr. Justice McCreiglit wliose as- sistance would have been most valualjle, having since July last been ab- sent at Cariboo, and not having had any opportunity of conferring with liis brother Judges on the imiau'tant legal (juestions constantly coming before the Court:) 1st. That tlie Supreme Court is not a Provincial court within the meaning of the 14,siibsectit)n of section 92 of the British North America Act 18(;7. L'nd. That the Local Legislature has no control over its procedure. and cannot legishite so as to prevent suitors having access to that court, and Iiaving their causes hoard, and carried on to final adjudication, so as to liave an a[)])eal to the Hupreme Court of Canada. lird. That the Local Leu'islature cannot itself make Rules to govern the procedure of the Court or delegate the power to the Lieut. -Governor in council to do so. 4th. That (he application of the Judicial District Act to Judges ap- pointudand liolding their commissions prior to its enactment is uncon- stitutional and void. 6th. That the Judges uro Di)minion, not Provincial ofticors. mil n l!^!f; ; .■■■:; ; ''f*f*!ffw»f»f »t> tUiir. wm m \tt tlSf ii'ifs; mm F/ff vm mil: urn ixnrt ilt-ii |;/f.-:': Irtiirs i'.liiU 80 Cth. That in these respects the Judicial District Act; the Better Administration ot Justice Act, 1878, and the Local Administration of Justice Act, C. I., 1881, are ultra vires. 7th. That the Plaintiff is entitled to have the relief asked for, and the court is bound in Law to hear his motion, and permit him to proceed with his cause. The Hon. GEO. A. WALKEM, Q. 0. , Attorney-General, Amicus Citrur. THEODORE DAVIE, Esq., Counsel for the Plaintiff. MONTAGUE TYRWHITT DIIAKE and CHARLES EDWARD POOLEY, Esqs. , of Counsel for Defendants. JAMES CHAKLES PREVOST, Esq., Registrar. l'.V(iK. 1 (! 10 10 10 11 14 I lo 10 1(! 17 1!) 1 21 22 2."^ 24 27 27 28 20 r{2 36 37 38 38 38 40 40 41 42 43 44 44 44 46 46 48 48 49 rmi ttifn^i^ammmmhih ^ w>i;£v;i?| iudiiiiiiUi ij:».'fff? y^mffH'fmitvtHmff ffffnfffiift f ifS f^- wmt ti'.'iiM I:KRATA HT CORRKiliXDA. l'A(i -;. LINK. 1 K\ (i ;J4 (; s 10 u 10 47 10 47 IJ •J 1.2 •) 14 last but 1 15 41 l(i 24 1() 4(i 17 2:) U) liist line 21 :\r, 22 25 2;j •x\ 24 M 27 1 27 15 28 •M 2. insert date: lOtli Februrj', 18S2 12.) fur "rated" letre "rai.sed". fur "lieeu" lege "and", after "to do" comma, "then", for "18(19" lege "1807". after "couiplaints", comma, for "these" lege "That Court", dele "to". for "Doutro" lego "Doutre". ■oin oottoni. ifter "legislatures" insert comma "so". all t!»e jadgmeut of (Jwynne, J., m inverted commas, for "is" lege "us". for — ever "nature, insert "ever nature", for "via" lege "Vice", for "legislative" read "legislation.' for "in" read "is". dele "is". for "will be" insert "with", for "statutes" read "status", for "N.C." lege -'N. S." Hi!! ami 'M m af5i.^:;iiiv>*: ;ti! ;> mil hiliir, VAwn \\W.i\ mm: Im .•I mil him run] I 50 60 50 50 51 .11 50 52 55 56 56 I'AOK. 63 94 66 68 70 70 75 76 1 1 78 64 79 79 66 78 1 ;{4 ■u\ Hi to 52, III)' 24 42 LINK, ;',4 I 9 11 3 17 19 14 16 trnin 'JO 5 9 36 18 30 82 dole "ror'.()ective". "ii fortiori tlu! clfUir onos" in l)rackets. for "iiulispeiisilile" rend "inliiiponsable". for "His Evu'lleucy ' loge "'His Kxcollency the (Governor. (ictiural. fn- -'.Tiiatioe, Still" le<;e "Justice, still'', (small s.) for ■';nid"' road "l)iit". 4, "M.o iliscrotion" in inverted cninmas. after "Jiidije'" add "who (juoted this," for "ineteiiij^" lege "meting", for "exertion" lege "exercise", for "report" lege "repeal". 1581 to 1881. nitra to ultra. 1877 to 18(57. strike out "ex." ralioni to ratione. 18the to 18th. enforce to "in force", section 20 to "seq." heir to their, helow- -Itnlo to Hull, confer to confide. from "If the pr ijected", to line 16, "for such purpose", in inverted commas. Bill to "Act." July to Mav. 90, 99, 130"to "96, 99, lUO and 130. ' aftor Gov. -General, i : It m I . .^:.^TVTrF W=: j*r*#t •■?*"'*^*" ' ii\iim*i^ %H*t^^ /fffTfjnnmTipj/