L'UNION ST. vincial Constitution, Public Lands, of the Province, Reformatory JACQUES Prisons. 7. The establishment, maintenance and management of v. BELISLE. Hospitals, Asylums, Charities and Eleemosynary institutions in and Q. B., Quebec. for the Province, other than Marine Hospitals. 11. The incorporaBadgley, J. tion of Companies with provincial objects. 13. Property and civil rights in the Province; and 16, generally all matters of a merely local or private nature in the Province. Looking to the enumerated subjects of legislation exclusively belonging to each Legislature, the division between the general and local subjects is apparent and manifest. Now, with reference to the contested provincial enactment, looking to its object and intent, and comparing these with the legislative powers intrusted to the Local or Provincial Legislature of Quebec, it cannot be denied that the appellant, the Corporation of the Union St. Jacques, is of the eleemosynary character, classed in the 7th subsection, that it does fall within the terms of the 13th Section as to property and civil rights in the province, and that it is not excluded from the general terms of "a matter of a merely local or private nature in the province." As included then manifestly within these local subjects, the Provincial Legislature has passed this Act, simply as a settlement of claims upon the diminished funds of the Society, between the Society and its beneficiaries, with the view of the maintenance and management of the Union as a continuing corporation, the Act involving in its provisions private property and civil rights in the province, and a matter of a merely local or private nature, which its provisions have regulated between the parties in the manner proposed and contemplated by its managers, as a settlement enforced under the provisions of the Act. I would merely add that, as between the Corporation and the recalcitrant beneficiaries, including the respondent, considering the Act of Incorporation as nothing more than a legislative contract touching property and rights between them, even as such and to that extent, the Act is manifestly within Provincial Legislative powers, which do not in the compulsory settlement of the contract between the parties, necessarily fall within the exclusive powers of the general legislature, as for bankruptcy and insolvency. The objection raised upon this point is the only one which has a shadow of plausibility about it, and yet it is manifestly untenable and unfounded. This kind of legislation has been by no means uncommon. The Statute Books of the former Legislature of Lower Canada, now Quebec, and of the united provinces of Upper Canada and Lower JACQUES v. BELISLE. Canada, are full of Statutes of this private nature for settling of L'UNION ST. Estates, construing terms and conditions of Wills and Testaments, explaining Contracts, &c., &c., and none of them have ever given rise to doubts as to their constitutionality or to litigation on that Q. B., Quebec. head before the Provincial Courts of Justice, after they had been duly sanctioned by proper authority. The Provincial Act in itself may also be tested with reference to its subjection of the enumerated exclusive subject of Bankruptcy and Insolvency attributed exclusively to the Dominion Legislature, by the fact, that the Dominion has made a general law upon the Statutory subject, the provisions of which apply to this contention. A Statutory Bankruptcy and Insolvent Legislation had been in force in the two Canadas since the first Insolvent Act of 1864, which was continued with amendments to the time of the making of the Dominion Law for Insolvency in 1869, which repealed the Provincial enactments and substituted a general Dominion Law upon the subject. By the Provincial Act of 1864, the first section specially enacts that "the Act should apply in Lower Canada to traders only," "and in Upper Canada to all persons whether traders or not," and this provision was not interfered with in the subsequent statutory amendments of that Provincial Act. By the Dominion "Act respecting Insolvency" of 1869, the Lower Canada statutory restriction is extended throughout the Dominion of the four Provinces, and it is enacted by the first section of the Dominion Act of 1869, "This Act shall apply to traders only." Now it is nothing but just to read the general subject of Bankruptcy and Insolvency by the light of the Dominion Legislature itself, as indicating the intent of that Legislature as to the enumerated subjects for its action, and it becomes undeniable, therefore, that the Society, the appellant, here comes within the express limitation and restriction of the general law, and being neither in character nor purpose commercial nor a trader, and solely and simply what it has always been, a charitable and eleemosynary institution in and for the Province of Quebec, the Provincial enactment for its relief can, under no circumstances, be brought within the operation of the laws of Bankruptcy and Insolvency attributed to the Dominion Legislature, and as explained by its own general enactment. It is not my intention to examine the special provisions of the Act in question, because, assuming the Act to be within the local legislative powers, and as to its subject matter or inducement not conflicting Badgley, J. v. L'UNION ST. with the general exclusive power of the Dominion as to the general JACQUES bankruptcy and insolvency, it is necessarily constitutional, BELISLE. and therefore, as a necessary result, its provisions must be obeyed Q. B., Quebec. and observed even by Courts of Justice, as being within the class of Badgley, J. matters within the action and powers of the Provincial Legislature. I will merely add that it has received its proper sanction by the Provincial Governor, it has not been disallowed by the GovernorGeneral-the only constitutional authority capable of setting it aside or invalidating it—and that it stands recorded amongst the provincial statutes of Quebec as an effective provincial statute and law, with legal attributes for its existence within its province, equal to those of any Dominion or Imperial statute in the Dominion or in Great Britain. In the face then of these supreme powers within the purview of its jurisdiction, the Province of Quebec, what legal authority has been given to the Provincial Courts of Justice or to their judges individually to deny to the Provincial Legislature the supreme power in its result, to enact and pass this Provincial Act? It is manifest that the Provincial Act in question here, like all other Legislative Acts which come before the constituted judiciary, are only subjects of interpretation, and only as such can be examined and treated by Courts of Justice, which are stopped at interpretation, because any beyond that as to legislative acts is legislation, which it is idle to say Courts of Justice have no authority to exercise. Their mission ends where legislation begins, and, therefore, it is of primary importance to keep Courts of Justice within the bounds limited by law for subjects such as these. The powers of the judiciary in such a case can only be interpretative, certainly not disallowing; and as this Act was within the local powers and did not conflict with the general powers, and was not disallowed by the Dominion Executive, the only competent or qualified authority for that purpose, the judgment of the C. C. is nothing less than an unauthorized judicial repeal of the legislative act. It is objected that it is an interference with the law of contracts between the society and the beneficiary, but even in that case the judiciary have no repealing power; they may interpret, but cannot ignore or set aside a legally constituted law-in such case the judiciary are powerless. It may not have been a right thing to do, it may even have been unprecedented; of this I am not called upon to express my opinion, but the Provincial Legislature notwithstanding had the power to do it, and acted upon their powers. The parties interested had their recourse they should have applied in time to the Dominion Execu JACQUES v. BELISLE. tive to exercise its power of disallowance; there is no other legal L'UNION ST. mode of evading an existing Act, and if that course is not applied for or not adopted, the Act, of necessity, stands supreme as a law. Assuming then, that the Act is, in all respects, valid and constitu- Q. B., Quebec. tional, the rules for the guidance of the judiciary, as applicable in Great Britain in respect of legislative acts, also govern here. Dwarris, at page 647, says, "The general and received doctrine certainly is, that an Act of Parliament, of which the terms are explicit and the meaning plain, cannot be questioned, or its authority contradicted in any Court of Justice." Even in the United States, where the Constitution has given to the Judicature the power and right of examining their legislative acts, that power is restricted to the discovery of violations of the Constitution or of its provisions; but at the same time they all admit, as a settled principle, that the Legislature is the supreme power in the State, and if the Act be within the Constitution-in other words, within the powers attributed to the exercise of the action of the Legislature-it is paramount to all judicial authority, and perforce must be obeyed by Courts of Justice, who are only the ministers and expounders, and not the makers of existing laws. It is within the principle of the supreme power of the Legislature that what are denominated private Acts of "Parliament, introduced and passed for the settlement of particular matters or estates, are not only considered, but at the same time upheld as common assurances amongst those interested in their provisions, but do not go beyond to strangers or parties not interested in them, the rule being founded in wisdom and justice, because as it is laid down, "every person is considered as assenting to a public Act, yet he is not so far a party as to give up his interest." It is true this Act may be called a private Act, although it is desig. nated as a public Act by the Legislature; yet it may be observed that however supreme the power of the Legislature may be in such cases of binding private rights by Acts of Parliament, caution should be duly exercised in reference to them. Still, whether public or private, the Act is existing law, and in a case of an Act of the Legislature of Ontario, such a private Act as this was upheld by the Court of Appeals for that Province. There it was an Act by which an important condition of a duly executed and recognized will was set aside and controlled by an Act of that Legislature, which, like this, was assented to and stood allowed. I refer to the case of the will of the late Hon. Mr. Goodhue.* Chief Justice Draper and five [* In re Goodhue, 19 Grant, 372.] Badgley, J. L'UNION ST. V. BELISLE. other Judges of the Court concurred in opinion as to the legislative validity of the Act, although they differed as to the expression and interpretation of the terms enacted in it. I cannot do better Q. B., Quebec. than repeat some of the citations made in that case as to the Badgley, J. assumption by Courts of Justice to override a legislative act. In Logan v. Burslem, (1) Lord Campbell says: "As to what has been said as to a law not binding if it be contrary to reason, that can receive no countenance from any Court of Justice whatever. A Court of Justice cannot set itself above the Legislature. It must suppose that what the Legislature has enacted is reasonable, and all therefore that we can do is to try to find out what the Legislature intended. If a literal translation or construction of the words would lead to an injustice or absurdity, another construction possibly might be put on them, but still it is a question of construction -there is no power of dispensation from the words used by the Legislature." Mr. Sedgwick, in his treatise upon Statutory and Constitutional Law, argues unanswerably that the judiciary have no right whatever to set aside, or arrest or nullify, a law passed in relation to a subject within the scope of legislative authority, on the ground that it conflicts with their notions of natural right, abstract justice or sound morality, p. 187. And Chancellor Kent, 1 Com. 408, writes, "Where it is said that a statute is contrary to natural equity or reason, or repugnant, or impossible to be performed, the cases are understood to mean that the Court is to give them a reasonable construction. They will not, out of respect and duty to the lawgiver, presume that every unjust or absurd consequence was within the contemplation of the law, but if it should happen to be too palpable to meet with but one construction, there is no doubt in the English law of the binding efficacy of the statute." To the opinions of these able men might be added those of other eminent jurists, Sir W. Blackstone, for example, amongst the number, who fully corroborate what is above stated. Now, if unreasonable Acts of Parliament are not thus, by authorities cited, allowed to be set aside by Courts of Justice, because, as old Chief Justice Hale, cited by Dwarris, says, "it was magis congruum that Acts of Parliament should be corrected by the same pen that drew them, than be dashed to pieces by the opinion of a few judges;" or, as observed by Lord Chancellor Ellesmere, "that when the three estates have "spent their labour in making a law, three judges on the bench "shall destroy and frustrate their pains, advancing the reason of a (1) 4 Moore P. C. C. 296. |