Kelly v. Sulivan

Kelly v. Sulivan
Collection
Supreme Court Judgments
Date
1877-01-15
Report
(1877) 1 SCR 3
Judges
Ritchie, William Johnstone; Strong, Samuel Henry; Taschereau, Jean-Thomas; Fournier, Télesphore
On appeal from
Prince Edward Island
Subjects
Courts
Decision Content
Supreme Court of Canada
Kelly v. Sulivan, (1877) 1 S.C.R. 3
Date: 1877-01-15
Francis Kelly, Commissioner of Public Lands of Prince Edward Island Appellant;
and
Charlotte Antonia Sulivan Respondent.
June 1876.
Present: The Chief Justice, and Ritchie, Strong, Taschereau, and Fournier, J. J.
Henry, J., during the Sessions, was absent from indisposition.
ON APPEAL FROM THE SUPREME COURT OF JUDICATURE OF PRINCE EDWARD ISLAND.
Jurisdiction of Supreme Court of Canada—Court of last resort in P.E.Island—Jurisdiction of court to set aside award—Remedy by remitting back award.
Held, That the Court of last resort in Prince Edward Island, from whose judgment an appeal lies direct to the Supreme Court of Canada, is the Supreme Court of Judicature in that Province.
Held, also, That by Statute of P.E.I., known as "The Land Purchase Act, 1875," an award of the Commissioners cannot be quashed and set aside and declared invalid and void on application made to the Supreme Court of P.E.I., but can be remitted back to the Commissioners in the manner prescribed by the 45th section of the Act.
In the matter of the application of Francis Kelly, Commissioner of Public Lands, for the purchase of the estate of Charlotte Antonia Sulivan, and the Prince Edward Island Land Purchase Act, 1875.
Appeal by the Commissioner of Public Lands of Prince Edward Island.
Prince Edward Island, long ago granted in large blocks of about 20,000 acres each, was, as time went
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on, let by the grantees in small parcels, generally for long terms of years, reserving an acreable rent of about one shilling.
Out of these terms sprung an agitation which, under various names, occasioned much discord in the Colony, and, in 1862, an Act of Assembly was passed, under the provisions of which a portion of the Island was purchased by the Government from its owners. But a considerable portion remaining in the hands of others who declined to sell, the Land Purchase Act of 1875 was passed. Under its authority a tribunal called the Commissioners Court was organized, and it is out of proceedings instituted in that Court for the purchase of the township lands of Miss Sullivan, the present questions arise.
The nature of the questions decided, and the manner in which they arose, are fully set forth in the Judgments given by their Lordships.
8th, 9th, and 10th June, 1876.
Mr. Brecken, Q.C., Attorney-General, Prince Edward Island, Mr. Cockburn, Q.C., and Mr. L. H. Davies, for Appellant:
1st, As to the jurisdiction of this Court:—The power of the Governor in Council to sit as a Court was given by royal instructions previous to Lord Monck's appointment. In subsequent instructions there are clauses which expressly revoke the power given to the Governor. If this Court exists in Prince Edward Island, it also exists for Nova Scotia, and the practice there shows that the appeal to the Privy Council lies direct from the Supreme Court ([1]). The Act 36 Vic. c. 22, 1873, Prince Edward Island, is copied from the English Procedure Act, and reference is made to a Court of Error and Appeal because it was intended to provide for a Court of Error and Appeal under the British North America Act, it being only two months previous to Confederation that this Act was passed. Since Confederation the Lieutenant-Governor is appointed by the Dominion Government, and he is not given any judicial functions. See Commission to Lieutenant-Governor Patterson, and Royal Instructions to Lieutenant-Governors since 1854.
2nd, As to the finality of the award:—The Act only required that the Commissioners should find in their award, the sum or amount due to the Proprietor for his Estate. Section 28 of the Act, with sub-sections a, b, c, d, e, is merely directory, and as stated in sub-section e" the number of acres, the reasonable probabilities and expenses of the proprietor," are only elements to be taken into consideration by the Commissioners in estimating the value of the lands. The object of the Act is to pay every proprietor a fair indemnity or equivalent for the value of his interest and no more. ([2]) It is the amount of money to be paid they are to ascertain and find; not any collateral facts. It must first affirmatively appear that there was an omission on the part of the Commissioners; to set aside an award there must either be mani-fest fraud, or excess of jurisdiction, or some material matter that has not been taken into consideration. There could not have been any fraud, when the evidence given and accepted was that of the agent of the respondent. The case of Whit worth v. Hulse, ([3]) is not in point because it does not appear in this case that any of the sub-sections were not considered. On the contrary, all Respondent's estate was adjudicated upon. In support of this branch of the argument were cited:—
Duke of Beaufort, v. Swansea Harbor Trustees ([4]); In re Byles ([5]); Mays v. Cannel ([6]); Queen v. Lond. And N. W. R. Co. ([7]); Wrightson v. Bywater ([8]); Harrison v. Creswick, ([9]); Russell on Awards ([10]).
3rd. As to the uncertainty of the award:—All Respondent's estate was adjudicated upon; the Trustee's act was simply ministerial. The Commissioner of Public Lands under the 2nd Section of the Act, notified Miss Sulivan of the intention of the Government to purchase "all her Township lands in the Island, liable to the provisions of the Land Purchase Act." The Commissioners had no power to embrace any lands not part of her estate, or exclude any which were part of it. It was decided lately in the Island that the mere notice given under the Act, brought all the lands of a proprietor under the provisions of the Land Purchase Act, and, therefore, the Commissioners had to estimate only the sum they should award, and their powers were not discretionary as to the lands. There could be no necessity for describing the lands by metes and bounds. The describing of the land is purely a ministerial act. No description they might insert could alter or change the lands really affected, and bound by the award. A prima facie uncertainty in an award does not vitiate it, if capable of being rendered certain. The "Estate" and the lands in this case are capable of being ascertained with accuracy. The following cases cited: —Round v. Hatton ([11]). Willoughby v. Willoughby ([12]). Mays v. Cannel ([13]); Taylor v. Clemson ([14]); Ostler v. Cooke ([15]); Wilcox v. Wilcox ([16]); The Duke of Beaufort v. Swansea Harbour Trustees ([17]); Aitcheson v. Cargey, in error ([18]). On delegation of authority to Public Trustee. Russell on Awards ([19]). Reference made also to: In re Montgomery and Moore ([20]); Duquet v. Greene ([21]); Corporation of the United Counties of Northumberland and Durham v. Town of Cobourg ([22]); Hibbert v. Scott ([23]) ; Thorpe v. Cole ([24]).
The Court had no jurisdiction to declare the award bad (see sec. 45 of Land Purchase Act); but had ample power to remit the award back to the Commissioners, to correct any error, informality or omission, provided application made within thirty days after rendering the award. This remedy was treated with silent contempt. The arbitrator's jurisdiction appears on the face of the award. Presumptions will not be made against the award, but rather in its favor.
They referred to In re The South Wales Railway Company v. Richards ([25]); Faviell v. Eastern Counties Railway Company ([26]); Colonial Bank of Australasia v. Willan ([27]); Thorpe v. Cole ([28]).
Mr. M. C. Cameron, Q.C., and Mr. E. T. Hodgson, for the Respondent:
1st. No appeal lies direct from the Supreme Court of Prince Edward Island to the Supreme Court of Canada. Sections 11 and 17 of the Supreme Court Act declare that all appeals to the Supreme Court must be from the Court of last resort in any Province. In Prince Edward Island there is a Court of Error and Appeal composed of the Lieutenant-Governor in Council. By various Acts of the Legislature of the Island, this Court is recognized, 1 vol. P. E. Statutes, p. 291, Rev. Stat. p. 51, 21 Geo. III ch.17 , and Section 145 of Prince Edward Island Act, 1873, 36 Vic, ch. 22, and 6 Vic., ch. 26, sec. 51. The discussion In re Cambridge ([29]), shows that in the year 1841 the Privy Council decided that an appeal would not lie to them from the Court of the Island except through the Governor in Council. By Section 24 of Supreme Court Act, the practice in appeals to the Privy Council must be followed in similar cases in the Supreme Court here. In all other British Colonies there have been Orders in Council passed to enable parties to appeal direct from the Supreme Courts of the respective Provinces to the Privy Council without recognizing or appealing to the intermediate Court composed of Governor in Council, but in Prince Edward Island no Order in Council or Act of Parliament has changed or affected the law as it once stood. Reference is made to Royal Instructions, Appendix F., Journals of House of Assembly, Prince Edward Island, Clarke's Colonial Law ([30]); Phillips v. Eyre ([31]).
2nd. As to the jurisdiction of the Supreme Court of Judicature of Prince Edward Island: it has always been admitted that an Appellate Court would never enquire into the procedure of an inferior Court, provided it was legally seized of the cause. By the 32 section, "Land Purchase Act," the Supreme Court had a right to restrain the public trustee from executing a conveyance of the estate of a proprietor to the Commissioner of Public Lands. It is not the duty of this Court as an Appellate
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Court to enquire if this was obtained by a rule nisi or otherwise.
That Court is given a jurisdiction which it would not have were it a case of arbitration. When a statutory power is given to deprive a person of his land, the strictest interpretation must be given to the Statute, and every means afforded to the proprietor to find out if any omission or error has taken place. The award was open to enquiry by the Supreme Court, notwithstanding the 45th section of the Land Purchase Act, 1875.
So, though certiorari be taken away by Statute, if cause be decided by a majority of a Court improperly constituted, certiorari yet lies. Colonial Bank of Australasia v. Willan ([32]); Reg. v. Wood ([33]); Reg v. Cheltenham ([34]); Reg v. St. Albans ([35]); In re South Wales R. R. Co. v. Richards ([36]).
3rd. The Commissioners had no jurisdiction in this cause, and therefore their award was bad and should be set aside. First, because the notice required by the Act had not been properly given. The Respondent was not within the jurisdiction of the Court; and to deal with the land only, the notice from the Commissioner of Public Lands should have described the land by metes and bounds. Second, because it did not appear on the record that notification of the appointment of the Commissioner had been given, or that the Commissioners were sworn under sections 9 and 13 of the Act. See Joseph v. Ostell. ([37]). Third, because the notice in the Royal Gazette, required to be given under section 14, of time and place of hearing for three consecutive weeks, was advertised for only two weeks. Laffurty v. Stock ([38]); In re Miles and The Corporation of the Township of Richmond ([39]). In the matter of Coe and The Corporation of the Township of Pickering ([40]).
No appearance of Respondent by Counsel could waive these defects, because (a) no consent can give jurisdiction; (b) the interests of parties other than Miss Sulivan's were affected, whom no consent of her's could bind; (c) the Commissioners derive their authority from the Statute, and not from the consent of the parties.
4th. The award is not final and it is uncertain. It is uncertain. It does not show that the Commissioners adjudicated on matters on which they were bound to adjudicate under section 28 of the Land Purchase Act. Award is not made de premissis, and there is nothing to show that the various matters specified in this section were taken into consideration by the Commissioners.
The Act is intended to convey an absolute and indefeasible estate of fee simple free from all incumbrances of every description, and to divest the proprietor not only of the land, but also of all arrears of rent. Now unless a proper description be given somewhere, how can Commissioners award on these arrears of rent? If it be doubtful whether the award has decided the question referred, it will be set aside for uncertainty. See Russell on Awards ([41]); Tribe v. Upperton ([42]); Pearson v. Archbold ([43]). The award does not embrace sub-sections 1, 2, and 3 of section 28, and if specific matters are referred and there be no specific adjudication upon any of them, award is void. Moreover, the form of conveyance used in the schedule annexed to the Act, implies that the lands should be described by metes and bounds. It was not impossible for the Commissioners to find on the matters and things contained in sub-section e of section 28 of this Act, because section 24 clearly confers authority which would enable them not only to examine the quality of the land, timber, &c., but also to cause such surveys to be made, as might be necessary for carrying the Act into effect. The Public Trustee is merely a ministerial officer, and he could not execute a deed to the Commissioner of Public Lands without exercising judicial functions, in ascertaining what lands to insert in such deed.
Reference is made to the following authorities:— Russell on Awards ([44]); Randall v Randall ([45]); Rider v. Fisher ([46]); Whitworth v. Hulse ([47]); Robinson v. Henderson ([48]); Wakefield v. The Llanelly Railway and Dock Company ([49]); Stone v. Phillips ([50]); Ross v. Boards ([51]).
Further, the award shews an excess of jurisdiction, inasmuch as it deals with all Miss Sulivan's lands, whereas they had jurisdiction only over the excess above 500 acres. It can only be with regard to this excess that the compulsory clauses of the Act were intended to operate. The Respondent's Counsel relied also on the reasons for judgment by the Court below, and referred to the following authorities:—
Rorer on Judicial Sales ([52]); Hopper v. Fisher ([53]); Gray v. Steamboat Reveille ([54]); Little v. Pitts ([55]); Lawson v. Kerr ([56]); Devine v. Holloway ([57]).
Mr. L. H. Davies, in reply:—
In this case Miss Sulivan did not wish to retain her 500 acres. The scope of the Act was to reach proprietors whose lands were not in their actual use and occupation. The presence of Respondent's Commissioner, her appearance by Counsel and affidavit of her Agent, G. W. DeBlois, surely put at rest any contention that certain preliminary formalities of the Act were not complied with. Supposing an omission had taken place, the remedy was marked out in the forty-fifth section of the Act. The Act would have been absolutely unworkable if it had required the mentioning in the award of all the matters submitted to the Commissioners by sub-sections 1, 2 and 3 of sec. 20.
January 15, 1877.
The Chief Justice:
This appeal is from the judgment of the Supreme Court of Prince Edward Island, making absolute a Rule to quash the award made and filed in this matter and all subsequent proceedings, wherein it was ordered that the said award be quashed and set aside, and that the said Commissioner of Public Lands pay the costs of the application and the Rule. Against this Judgment and Order of the Court, the Commissioner appeals. On the hearing, the first objection taken on behalf of the respondent was first discussed, viz: that no appeal lies direct from the Supreme Court of Prince Edward Island to the Supreme Court of Canada.
The latter part of section 11 of the Supreme and Exchequer Court Act reads as follows: "And when an appeal to the Supreme Court is given from a Judgment, in any case it shall always be understood to be given from the Court of last resort in the Province where the Judgment was rendered in such case."
The Respondent in the factum suggests that the
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Lieutenant Governor in Council is constituted a Court of Error and Appeal in Prince Edward Island, by various Royal Instructions, and refers to the instructions to Sir John Colborne, accompanying his commission of 13th December, 1838, appointing him Captain-General and Governor-in-Chief of the Island.
The instructions which, in the absence of the Captain-General and Governor-in-Chief, were intended for the Lieutenant-Governor or Officer administering the Government for the time being, are referred to as being in the Appendix to the Journals of the House of Assembly of the Island, A.D. 1851, Appendix F. The Commission to Sir John Colborne is also to be found in the same book.
The twenty-third and twenty-fourth sections of the instructions were specially referred to on the argument. The first part of the twenty-third section is as follows: "Our will and pleasure is that you do in all civil causes, on application being made to you for that purpose, permit and allow appeals from any of the Courts of Common Law in our said Island of Prince Edward; and you are for that purpose to issue a writ in the manner which has been usually accustomed returnable before yourself and the Executive Council of the said Island of Prince Edward, who are to proceed to hear and determine such appeals." It goes on to provide that the Judges of the Court whose judgment is appealed from shall not vote on the appeal though they may be present and give the reasons of their judgment. It also directs that the sum or value appealed from must exceed £300 stg. and security be given, and when the sum exceeds £500 stg., and either party is not satisfied with the Judgment of the Governor in Council, an appeal may lie to the Queen in Council, the same to be made within 14 days, and security given; and in certain cases, when the rights of the Crown are involved, he is to admit an appeal to the Queen in Council, though the value be less than £500 stg.
The twenty-fourth section directs him to admit appeals to the Queen in her Privy Council, in case of fines to a certain amount for misdemeanors. Clarke's Colonial Law, page 111, was cited, and referring to the position of most of the North American Colonies the following language is used : "From the Common Law Courts an appeal in the nature of a writ of error lies in the first instance to the Court of Error in the Colony and from them to His Majesty in Council. The Colonial Court of Error is usually composed of the Governor in Council who decide by a majority." In re Cambridge ([58]), an application was made for leave to appeal where the amount was under £300, the Court of Appeal in the Island only allowing appeals when the amount was over £500. Lord Brougham in giving judgment refers to the existence of the Court of Appeal in the Colony.
The Act 6 Vic., ch. 26 sec. 5, provides that any person dissatisfied with the decree of the Surrogate may appeal "to the Governor in Council." Under sec. 51, he was to give a bond for the payment of such costs as should be awarded by the Governor in Council, If the decision of the Surrogate should be reversed or altered the Governor in Council should make such order touching the subject of the Appeal as to them shall seem fit; sec 52; and by sec. 53, every license to sell real estate, "shall be made in such form as the Surrogate (or in case of the decision of the Surrogate being altered by the Governor in Council) may prescribe."
The Island Statute 21 Geo. Ill, ch, 17, relates to the limitation of actions,—sec. 4provides that when "judgment given for a Plaintiff is reversed on a writ of Error, arrest of judgment, &c., he may commence another action within a year."
The Island Statute 5 Wm. IV. ch. 10, constitutes the Governor in Council a Court for hearing in matters of Divorce with full power, authority and jurisdiction. The Court to sit on the second Monday in May in each year. The Governor may appoint the Chief Justice to preside.
In re Monckton a Barrister ([59]), the Chief Justice of the Island had made an order in matter wherein the applicant, a Barrister, was interested, striking his name off the Rolls as a Barrister. On Appeal to the Privy Council the order was set aside.
The sections of the Island Statute, 36 Vic. ch. 22, from 136 to 158 inclusive, and section 230, refer to Appeals to a Court of Error or Appeal. Sections 136 to 157 inclusive, are the same as those in the English Common Law Procedure Act, 15 & 16 Vic., ch. 76. Sections 146 to 167 inclusive, are slightly varied to adapt them to the circumstances of the Island. The 136th sec. begins "and with respect to proceedings in Error be it enacted, &c." The 145th section speaks of the setting down of the case for argument in the Court of Error in the manner heretofore used, refers to the Roll being sent into the Court of Error or Appeal and "the Court of Error or Appeal shall thereupon review the proceedings."
The Appellants on the argument contended that as a matter of fact no such tribunal as a Court of Error and Appeal was ever established in the Island. That there is no existing official document of any kind shewing the establishing of such a Court. There is no record of any case ever having been brought before such a tribunal, and the reference in the Island Statute 21 Geo. III, ch. 17, respecting the limitation of actions to a year, for bringing an action when cases are reversed in Error, &c., cannot be considered as establishing or recognizing the establishment of a Court of Appeal as a Court of last resort from the Supreme Court of the Island.
That the Statute 6 Vic., ch. 26, so far as it relates to an appeal from decisions of the Surrogate Court to the Governor in Council, does not form them into a general appellate tribunal, but in those special cases allows an appeal to the Governor in Council, and directs the Probate Court to carry out the decision of that body when the appeal is made to them.
And that the reference to appeals in the Act 36 Vic., ch. 22, arose from hasty legislation in adopting the general provisions of the Common Law Procedure Act, and if no Court of Appeal actually existed would not necessarily establish one.
A copy of the instructions given to Governor Patterson was produced at the argument, but his commission was not. It was suggested that application should be made to the Colonial Office for copies of the commissions and instructions of such Governors as would be likely to throw light on the subject, and any other documents of a like nature, and these documents were to be placed before this Court. Reference was also made on the argument to Stuart's History of Prince Edward Island, printed in 1805, and to Haliburton's Nova Scotia, Vol. 2, p. 380:
Since the argument, copies of the commission of Governor Patterson, of Prince Edward Island, then the Island of St. John, and of two commissions to Guy Carleton, Esq., as Governor of the Province of Quebec, and the instructions accompanying each of the commissions, have been filed with the Registrar of the Court. No other documents referring to the establishment of a Court of Appeals have been brought to the notice of the Court. We must therefore dispose of the preliminary question on the materials before us.
Copies of the commissions of Lord Monck, Sir John Young, Lord Dufferin, and of the present Governor of the Island, Sir Robert Hodgson, were obtained in Ottawa.
Prince Edward Island, or the Island of St. John, as it was then called, previous to the year 1764, was under the same Government with the Province of Nova Scotia, and in giving the boundaries of that Province in the commission of William Campbell, Esq., commonly called Lord William Campbell, dated 11th August, 1766, appointing him Captain-General and Governor of Nova Scotia, the Island of St. John is included.
In the commission to Walter Patterson, dated 4th August, 1769, so much of the Patent to Lord William Campbell as mentioned the Island of St. John was revoked, and Patterson was appointed Captain-General and Governor-in-Chief of the Island and Territories adjacent thereto. Under the commission to Governor Patterson, he had power, by and with the consent of the Council, to erect and establish Courts of Judicature within the Island for the determining and hearing of all causes, civil and criminal according to law and equity, and to constitute and appoint Judges and Commissioners of Oyer and Terminer for the better administration of justice. The commission also refers to such reasonable Statutes as should thereafter be made and agreed upon by him with the advice and consent of the Council and Assembly of the Island. And as soon as the situation and circumstances of the Island would admit thereof, and as soon as need should require, he was to call General Assemblies of the freeholders and planters to be called the Assembly of the Island, and by the consent of the Council and Assembly he had power to make laws for the good government of the Island. By the instructions, he was to constitute a Council to assist him in the administration of the affairs of the Colony, and the Council to have all the powers and privileges and authority usually exercised in the other American Colonies.
He was to give his immediate attention to the establishing of such Courts of Judicature as might be found necessary for the administration of justice. He was to consult the Chief Justice as to the measures proper to be pursued for the purpose, governing himself as far as difference of circumstances would admit by what had been approved and found most advantageous in Nova Scotia. He was to transmit to the Secretary of State copies of all Acts, orders, commissions, &c., by virtue of which any Courts, Officers, Jurisdictions, &c., were established.
The consideration of calling a Lower House of Assembly could not too early be taken up.
There is no authority in his commission or instructions directing him to establish a Court of Error, or Appeal, nor to permit or allow appeals to himself in Council.
The commission of Guy Carleton, afterwards Lord Dorchester, appointing him Governor of the Province of Quebec, dated 12th April, 1768, is similar to that of Governor Patterson, which was dated 4th August, 1769. It appoints him Captain General and Governor in Chief of the Province of Quebec. His instructions differ somewhat from those afterwards given to Governor Patterson and as to summoning a general assembly of freeholders as soon as the more pressing affairs of Government would allow, stated as it was impracticable to form such an establishment then; he was to make such rules and regulations with the advice of the Council as should appear to be necessary for the peace, order and good government of the Province.
He was to establish Courts of Justice, and consider what had been established in that respect in the other Colonies in America, particularly in Nova Scotia.
He was to allow appeals from any of the Courts of Common Law to the Governor in Council, and for that purpose was to issue a writ in the manner which has been usually accustomed before himself and the Council who were to proceed to hear and determine such appeals. (As already mentioned, no such direction or authority as this is contained in the commission to Governor Patterson.)
His second appointment as Governor of Quebec was by a commission, dated 27th December, 1775, after passing of the Imp. Stat. 14 Geo. III, ch. 83, for making more effectual provision for the government of the Province of Quebec. Following the provisions of the Imp. Stat. he was authorized, with the consent of the Council, to make ordinances for the peace, welfare, and good government of the Province, with certain exceptions as to ordinances imposing taxes. He had authority to appoint Judges, &c., as in his former commission.
Under his instructions he was directed, by and with the advice of his Council, to establish Courts of Justice. Suggestions were made as to the kind and Number of Courts—but he was to be guided by circumstances, and amongst other suggestions as to what should be done, was the following, viz: That the Governor and Council should be a Court of Civil Jurisdiction for the hearing of appeals from the judgments of the other Courts when the matter in dispute exceeded ten pounds. The decision of the Governor in Council to be final in cases not exceeding £500 stg., in which case an appeal from the judgment to be admitted to the King in Council. An ordinance was passed by the Governor in Council, on 25th July, 1777, establishing certain Courts according to the suggestions contained in the Royal instructions, and under that ordinance the Governor in Council was constituted a Court of Appeal. On the margin of the Ordinance in the copy in the Library of Parliament here, there is the following entry in manuscript: "vide" ordinance of 17th September, 1773, passed on Ch. J. "Hayes going home." It was the model of this and the next ordinance in some instances. The next ordinance was to regulate the proceedings in the Courts of Civil Judicature in the Province of Quebec. From this it appears that before the Act of 14 Geo. III, and the commission and instructions under it were given, the Governor in Council had passed an ordinance to establish a Court of Appeals in Quebec. And this under, a commission and instructions similar to that under which Governor Patterson was acting in Prince Edward Island, except so far as the power to grant appeals was wanting in the instructions to Governor Patterson which was contained in the instructions to Governor Carleton.
In August, 1769, the commission to Governor Patterson was issued, and he is said to have arrived in the Colony in 1770. The first meeting of the Legislature composed of the Council and Assembly, with the Governor of course, was, according to Stewart's History of Prince Edward Island, p. 177, in 1773, and the first Statute, as appears by the Acts of the General Assembly of the Island, published in 1862, was passed in 1773. It is entitled: "At the General Assembly of His Majesty's Island of St. John, begun and holden at Charlottetown, the seventh day of July, Anno Domino 1773, in the 13th year of the Reign of Our Sovereign Lord George the Third, by the Grace of God, of Great Britain, France and Ireland, King, Defender of the Faith. Being the first General Assembly convened in the Island."
The first statute passed recited that it had been found absolutely necessary and expedient by His Majesty's Governor in Council of the Island to make several resolutions, ordinances and regulations for the good government of the said Island; it then repeats these ordinances, and confirms what was done under them.
Cap. 2, is entitled "An Act to confirm and make valid in law all manner of process and proceedings in the several Courts of Judicature within this Island from the first day of May, 1769, to this present Session of Assembly. The recital states:—
"Whereas this Island has been without a complete Legislature from the, commencement of the Government thereof which took place on the first day of May, 1769, upto this present Session of Assembly, during which time many and various proceedings have been had at the several Courts of Judicature in the Island." It then declares the writs, judgments and proceedings in the Courts from and after the said 1st May, 1769, to the end of that Session good and valid in law. That it should not extend to take away or rectify errors in the using of process, mispleadings and erroneous rendering of judgment in point of law, but in all such cases the parties aggrieved might have their writ or writs of error upon such erroneous judgment in such manner as they might have done before the making of the Act.
Governor Patterson apparently remained Governor until 1786, when he was succeeded by Governor Fanning, who continued in office, it is said, for nineteen years, that would be until 1805.
Governor Patterson was authorised by his commission with the advice and consent of the Council, to establish such and so many Courts of Justice within the Island, as they should think fit for determining causes as well criminal as civil according to Law and Equity, and to constitute and appoint Judges, and in cases requisite to issue commissions of Oyer and Terminer. We have nothing to shew that in Governor Patterson's time, any Court of Error or Appellate Court was established by any Act of his. And it seems admitted that, as a matter of fact, no such Court ever exercised any jurisdiction in the Island, and no case was ever brought before such a Court. If it had been established under any ordinance of the Council before the first sitting of the Legislature, we have not been referred to any such ordinance. It is shewn by Statutes passed at that sitting that Courts of Judicature had before that been established and they have been continued ever since. As to those Courts that have been exercising their functions and powers ever since, with legislation from time to time with reference to them, they would no doubt be considered as established tribunals and as having been legally established. But when it is contended that so important a tribunal as a Court of last resort exists in a Province, it should be shewn there was such a Court actually exercising Judicial functions, or that it was established by some Act of the Legislature or of the Crown.
As far as Governor Patterson is concerned, it does not appear that by any kind of Legislative enactment or order, either by the Governor in Council or by the more perfect legislation after the General Assembly was called, such a Court was established, nor does it appear that he was, by instructions, specially authorized to establish such a Court, or to allow appeals from any of the Courts of the Common Law, as Governor Carleton was in the instructions accompanying his first commission, and as Sir John Colborne was in the instructions accompanying the commission to him in 1838.
Under the instructions to Governor Patterson he was to send to the Secretary of State copies of all Acts, orders, commissions, &c., by virtue of which any Courts, &c., were established. We presume the parties have had proper enquiries made as to the existence of copies of such documents, and that none can be found. It is said none exist in the Island.
"Whether under any subsequent commission or instructions an attempt was made to establish such a Court in the interval between the commission to Governor Patterson, 1769, and that to Sir John Colborne, 1838, we have nothing before us to shew. Under that commission, as already stated, he was authorized to allow appeals, and for that purpose, to issue a writ in the "manner which has been usually accustomed" returnable before himself and the Executive Council who were to proceed to hear and determine the same.
The instructions to most of the Colonial Governors were said to be to the same, effect In Macpherson's Practice of the Privy Council, ([60]) he speaks of the Governor in Council as forming the Court of Error in the Colony.
The instructions accompanying the commission to Lord Monck, in 1861, do not in any way refer to the allowing of appeals, and from what is said on the subject in Macpherson's Practice in the Privy Council, it seems that "in the royal instructions, issued to Colonial Governors of the Colonies (that have Legislatures), for some time past no mention is made of appeals." And the same can be said as to the instructions to Lord Lisgar in 1868. Nor is anything said as to allowing appeals in the commissions to Lord Monck and Lord Dufferin, nor in the instructions accompanying the same.
The reference to the matter in Haliburton's Nova Scotia, ([61]) is to the effect that the Governor in Council conjointly constitute a Court of Error, from which an appeal lies on the dernier resort to the King in Council. He considers the origin of this appellate jurisdiction to have been the custom of Normandy, when appeals ay to the Duke in Council.
In Stewart's Nova Scotia, after stating the only Common Law Court established in the Island 'was the Supreme Court, pointing out how the Chief Justice was appointed, and how the proceedings were conducted, it is added: An appeal, in the nature of a Writ of Error:- is allowed from the Supreme Court to the Governor or Commander-in-Chief in Council when the debt or value appealed for exceeds £300 stg., with an appeal from their judgment when the debt or value appealed for exceeds £500 stg.
There is a chapter on appeals in Clark's summary of Colonial Law, ([62]) in which he refers to the right of determining, in the Court of last resort, all controversies between the citizens of a State, as having been always considered the best evidence of the possession of Sovereign power. At page 111 he uses the language already referred to, and at p. 120, referring to the practice in the Privy Council, and to the case of a party. who has been prevented by accidental causes from applying to the Governor of a Colony within the period limited in the particular Colony for leave to appeal to His Majesty in Council, the Governor having no jurisdiction after that to allow the appeal, he proceeds: "But His Majesty in Council, from whom the right of appeal itself in all cases emanates, may, of course, at his pleasure, relax in any such particular instance, when it appears equitable to do so, the restrictions to which it is generally subject. So it may happen that a Governor not improperly refuses to allow an appeal, from some doubts as to its competency or regularity, or from any other cause, where justice required a contrary decision. In all such cases the party aggrieved is, of course, entitled to apply to His Majesty in Council."
In the report of the case In re Cambridge cited on the argument, Lord Brougham said there is no instance of allowing an appeal from the Supreme Court at once to the Queen in Council, there being, by the Constitution of the Island, a Court of Appeal, namely, the Governor in Council, from whose decisions alone an appeal lies, and then says " the proper course, and the only course their Lordships can take is to advise Her Majesty to allow it to be appealed to the Governor in Council; it may then be brought before us in a future stage, if the parties are not satisfied with the decision." In the statement of the case, it is said (this was in 1841) that by the Royal instructions to the Governor, he was directed to allow appeals to himself in Council in cases where the value appealed from amounts to £300 sterling, and to the King in Council only where the value appealed from amounts to £500 sterling. That the amount being below £300, the case was not appealable either to the Governor in Council or to Her Majesty.
Now if a Court in the sense as contended for by the respondent had been created by the Constitution of the Colony, or in any other way recognized by law where the jurisdiction it had was only in matters above £300 sterling, could an appeal be allowed in that Court by order of the Queen in the manner suggested in Cambridge's case? I should think not. But if it be considered as the exercise of the prerogative right of the Crown to review the judgments of Colonial Courts, and the Crown chooses to exercise that right through the Governor and Council, appeals may be allowed to them according to instructions, which, of course, may be varied from time to time, or according to specific cases as to the Crown may seem just. The Governor in Council may be considered a court as long as these instructions exist, but when they are withdrawn, the Court must fall with them.
At the time of the passing of the Dominion Statute establishing the Supreme Court, the Lieutenant-Governor of the Island was not an officer holding a commission under the Great Seal of Great Britain, nor did he receive any instructions to allow appeals, nor was he authorized to issue writs for that purpose returnable before him and the Executive Council, nor were they directed or authorized to proceed to hear and determine such appeals. In the absence then of any evidence showing the establishment of a Court of Error, or that any tribunal ever exercised within the Island the powers of such a Court, I am of opinion that the unmistakable references to such a Court in the Island Statute of 1873, or in the other Acts to which we are referred, do not create such a Court, if it had not an existence previous thereto. If it had been shown that such a court assumed to exercise the functions of a properly organized Court, and had been doing so for years, the recognition of it by the acts of the Legislature might be considered as affirming its legal existence, but not to create a Court.
In the reference to the Court of Error or Appeal in the Statute referred to, mention is not made of the Governor in Council constituting such Court
The Island Statute of 21 Geo. III, ch. 17, does not necessarily imply that the revising of a judgment in-Error must be by a Court superior to the Supreme Court; or, if it does, that that Court must be necessarily one existing in the colony. The King in Council might revise on error.
As to the Statute relating to the estates of intestates, special jurisdiction is, by the Statute, given to the Governor in Council, who are to decide the matter on appeal, and their decision, I apprehend, is to be carried out by the Judge of the Court.
The fact that in the instructions to most of the Governors in the American colonies, reference is made to the granting of letters of administration and probates of wills, probably suggested that it was desirable to have an appeal to the Governor, and that appeal is expressly given to him and the Council by name in the Statute.
The Act constituting the Governor in Council a Divorce Court, creates them for that purpose, and does not make them a Court of Error or Appeal.
In the Imperial Act of 1791, ([63]) the existence of the ordinance of the Governor in Council of the Province of Quebec, constituting the Governor in Council a Court of Civil Jurisdiction for hearing and determining appeals in certain cases, is recognized under section 34, which enacts: That the Governor of each of the Provinces (of Upper and Lower Canada), with such Executive Council as shall be appointed by His Majesty, for the affairs of such Province, shall be a Court of Civil Jurisdiction within each of said Provinces, for hearing and determining appeals within the same, in like cases and manner, and subject to such appeal, as before the passing of the Act might have been heard and delivered by the Governor in Council of the Province of Quebec, but subject, nevertheless, to such further or other provisions as might be made by the Legislature of the Provinces.
The Legislature of Lower Canada passed a Statute on the subject, ([64]). In Upper Canada, the same year, ([65]) the Governor, Lieutenant-Governor, or person administering the Government, or the Chief Justice of the Province, together with any two or more members of the Executive Council of the Province, shall compose a Court of Appeal for hearing and determining all appeals from such judgment or sentences as might lawfully be brought before them. Sec. 35 declares in what cases an appeal should lie to the Court. Appeals were also allowed under the Upper Canada Act of 1837, from the decisions of the Vice-Chancellor, though the Governor was Chancellor. In Woodcock's West Indies, ([66]) the following reference is made to appeals in the Colonies:—
"Appeals from the decisions of Colonial Courts may be considered as existing at the Common Law as affected by the King's instructions to the Governors, by Colonial Law and parliamentary enactment. It has been said to be an inherent right of the subject of which he cannot be deprived to appeal to the Sovereign to redress a wrong done to him in any Court of Justice, and also an inherent right of the King, inseparable from the Crown, to distribute justice amongst his subjects.
His Majesty, by his instructions, declares his Royal will and pleasure to be that his representative shall, in all cases, on application being made to him for that purpose, permit and allow appeals from any of the Courts of Common Law, and he and the Council, with the exception of such as may have heard the cause as judges in the Court below (who are, nevertheless, allowed to give their reasons for the Judgment complained of), are to proceed to hear and determine the appeal. It is provided, however, that the sum or value appealed for do exceed £300 sterling, and that security be first given by the appellant to answer such charges as shall be awarded in case the first sentence shall be affirmed. And if either party be dissatisfied with the decision of the Governor in Council, then an appeal is allowed to the King in Council, provided the sum or value appealed for exceed £500 sterling; the appeal to be made within 14 days after sentence, and good security given by the appellant that he will effectually prosecute the same, and answer the condemnation, and also pay such costs and charges as shall be awarded in case the sentence of the Governor in Council be affirmed." It is also provided that in special cases the Governor is to admit the appeal. In McPherson's Practice of the Privy Council, ([67]1) the instructions to Governors previous to 1854, are referred to. They were said to be substantially the same in all the American Colonies, and were generally to the effect mentioned in Mr. Woodcock's book. It is added in the Royal instructions now issued to Colonial Governors no mention is made of appeals.
Special orders are made in the Privy Council as to appeals from the Supreme Court in the Colony, named in the Order where the sum or matter in issue is above a certain amount. Such orders appear to have been made in reference to the Provinces of New Brunswick and Nova Scotia.
It may be that after the powers conferred by the Stat. 3 & 4, William IV., ch. 41, on the Judicial Committee of the Privy Council, had began to be exercised, it was found by experience that it was better not to continue to all the Governors of the Colonies the right to permit appeals to the Governor in Council, but rather that the appeals should come direct to the Queen in Council, and that in consequence when it was not desired to continue such powers, the Governors were not authorized to exercise them by their instructions. Whatever may be the reason, the latest instructions I have seen to the Governors of the Island, viz: those to Sir John Young, afterwards Lord Lisgar, dated 29th December, 1868, contain no authority to allow appeals to the Governor in Council from any of the Courts of the Island.
When the Provincial Statute of 1875, called the Land Purchase Act, was passed, and when the judgment now appealed from Was pronounced, the Governor of the Island was appointed by a commission issued under the Great Seal of Canada, and attested and signed by the present Governor General of Canada, Lord Dufferin, and no instructions accompanied that commission.
During the time instructions of the kind alluded to, and the power to appeal to the Governor in Council existed, and was exercised, it might be referred to as a Court in the same way as the Queen in Council, or the Judicial Committee of the Privy Council, is frequently called a Court; but when these instructions were withdrawn, and no other authority existed by which the appeals to the Governor in Council could be made, then I fail to see how the Governor in Council for the time being could be such a Court. If the commission to any Governor had ordered and directed that he and his Exetive Council and the Governor and Council for the time being should constitute a Court to which appeals might be made, it could then with more force be urged that a Court was thereby established. But I do not think such authority as was contained in the instructions to Sir John Colborne, by itself constituted a Court of Appeals as a permanent institution, but for the time being he was to exercise the prerogative right of the Crown to hear appeals from the Colonial Court under such instructions; and when such instructions were withdrawn, the right of the Governor in Council to hear appeals ceased.
I am not satisfied that any Court of Error or Appeal or any Court of last resort, save the Supreme Court, within the meaning of the Dominion Act creating this Court, was established or existed in the Island of Prince Edward, during the time that Mr. Patterson was Governor of the Province. We were not referred to any case that had ever been brought before such a Court, and it was not denied that no case had ever been taken to such a Court within the Island. It is not pretended that such a Court had ever been established by Legislative enactment, though it was contended the existence of such a Court was recognized in Statutes passed by the Legislature. If established at all it must have been by an instrument under the Great Seal or under the instructions to the Governor, if that would establish a Court of that kind. No instrument under the Great Seal, either of Great Britain or of the Colony, has been referred to as establishing such a Court. Now the Governor in Council was constituted a Court of Appeals by an ordinance of the Province of Quebec, when the instructions expressly authorized an appeal to the Governor in Council. The instructions to Governor Carleton with his second commission, when referring to subjects for (if I may use the term) legislation, directs his attention to constituting the Governor in Council a Court of Civil Jurisdiction for the hearing of appeals. The Act of 31 Geo. III, ch. 31, distinctly recognizes such a Court, and the subsequent legislation both in Upper and Lower Canada constitute the Governor in Council a Court. The tribunals so established were properly Courts, and exercised their powers under laws which continued them as long as the laws existed. There is a manifest difference between tribunals so constituted, and those which exercise powers conferred by the Royal instructions alone, and which seem only to exist whilst the instructions are continued. In the one case they exist and continue by positive enactment, and in the other by virtue of the prerogative right to revise the decisions of the Colonial Courts; and when the Governors are not authorized to exercise that right, it seems the natural and logical result that they cease to possess it.
The commissions issued to the Governors since Sir John Colborne's time, which we have seen do not contain any authority to the Governor to hear and allow appeals, and the reference to this matter in Macphersorn's practice indicates that in most, if not all of the commissions issued lately, that authority which was formerly given has been intentionally withdrawn.
On the whole, I come to the conclusion that the present Governor of the Island of Prince Edward had no authority to allow an appeal in the matter now before this Court, and that it is properly brought before us. As already stated I do not think the references to the Court of Error or Appeal in the Island Statute of 1873, create such a Court if none existed at the time.
The other Statutes referred to do not necessarily imply that a Court of Appeal existed in the Colony, and none of these Statutes create a general Court of Appeal.
I do not think that the Dominion Parliament, when they enacted that the appeal given to this Court was to be "understood as given from the Court of last resort in the Province in which judgment was rendered" meant to compel suitors before bringing their cases here, to have them heard in, if I may use the term, a mythical Court that had never been resorted to by them, or to Courts where such resort, if any ever existed, had long been abandoned and ceased to be used.
I think, therefore, this appeal is properly before us, and we have jurisdiction to hear it.
The case states that the Right Honorable Hugh Culling Eardley Childers was duly appointed a Commissioner, by the Governor General in Council, under the seventh section of "The Land Purchase Act, 1875," John T. Jenkins, Esquire, was duly appointed a Commissioner by the Lieutenant Governor in Council under the fifth section, and Robert Grant Haliburton was appointed by Miss Sulivan as her Commissioner, under the ninth section.
That the Commissioners so appointed met at a day and place in Charlottetown, then appointed for the purpose of hearing and considering the matters referred to them, and at the same time and place so appointed, the Commissioner of Public Lands and the proprietress, Charlotte Antonia Sulivan, were represented by Counsel, and evidence tendered on both sides having been heard, the said three Commissioners made an award which was set out.
The notice by the Commissioner of Public Lands served on Miss Sulivan's agent is set out in the case, and refers to the act and the powers of the Commissioner under it, and states that the Island Government intend to purchase all her township lands in the Island, liable to the provisions of the Act, including all such parts or portions of lots or townships numbers, 9, 16, 22 and 61 in the Island, as she was or claimed to be the proprietor of, and as were liable to the provisions of the Act.
It appears, from the Statute, that the Government of the Island was entitled to receive from the Dominion Government a large sum of money for the purpose of enabling the Government of the Province to purchase the township lands held by the proprietors in the Island.
We may, without going beyond what is considered the legal province of a Judge, be supposed to know that there had been difficulties in the Island existing for many years in relation to the collections of rents on these lands ; that there had been legislation on the subject, and that further legislation was deemed necessary. The recital in the Statute that it was desirable to convert the leasehold tenures into freehold estates, indicates that it was a matter affecting the public interests. This Statute ought, therefore, to be viewed not as ordinary legislation but as the settling of an important question of great moment to the community, and in principle like the abolition of the Seigniorial tenure in Lower Canada, and the settling of the land question in Ireland. In carrying out such measures as these, there may be cases where the law works harshly, where important rights may seem to be disregarded, and private interests are made to yield to the public good without sufficient compensation being given. Yet the legislation on the subject generally assumes to be based on the principle of compensation to individuals when their property is taken from them and points out a mode of ascertaining what the indemnity shall be, and how it shall be paid.
It is not doubted in the Court below, and we do not doubt that the Legislature of the Island had a right to pass the Statute in question.
The great object of the Statute seems to have been to convert the leasehold tenures into freehold estates, a matter of very great importance, and one which, if not settled, would be likely to affect the peace as well as the prosperity of the province.
Their intention seems to have been, as to all questions connected with the land, such as rents and judgments obtained for the rents, and claims arising out of the ownership of the land (as far as the proprietors were concerned), that they should no longer be enforceable by them; that those incidents such as arrears of rent and the like rights should, with the soil itself and all interest in it, pass from the proprietor to the Government; that the money value of the rights of the proprietor, taking into consideration, in estimating such value, certain circumstances such as the price at which other proprietors had sold their lands, the annual rentals due and actually received each year, the expense of collecting, the net receipts for six years, &c., was to be fixed by three Commissioners. These Commissioners were to be selected, one by the Island Government, one by the Dominion Government, and one by the party interested. It can hardly be disputed that this was a fair mode of selecting the Commissioners, who were, after hearing the evidence, to make the award; and the money awarded was to be paid into the Island Treasury, to the credit of the suit or proceeding. The object, no doubt, being that the money should represent the land, and the different parties interested should, on application to the Court, receive what they were entitled to from that fund.
They intended the award of the Commissioners to be final; but if either party wished to have any error, informality or omission in the award corrected, he could apply, within 30 days after the publication of the award, to the Supreme Court to have it remitted back to the Commissioners.
A trustee was to be appointed, to convey the estate of the proprietor to the Commissioner of Public Lands, notice was to be given to the proprietor, and the Court or a Judge might restrain the execution of the deed. This conveyance and the payment of the money awarded into the Treasury was to vest the lands in the Commissioner in fee simple.
The money awarded in each case was to be paid into the Provincial Treasury at the expiration of 60 days, and the public trustee, after the money was so paid, was to execute a conveyance of the estate of the proprietor, unless restrained, after 14 days' notice to the proprietor.
Why should not the intention of the Legislature be carried out in this matter? I do not think it necessary to discuss the elaborate judgments given by the learned Judges in the Court below. The view I take of the Statute renders that unnecessary.
The view I take is that the mode pointed out by the Statute is the one which should have been pursued by the proprietor in this matter if there were any error, informality or omissions in the award made, and that the Court had no other authority to enquire into the proceedings of the Commissioners further than to see if the subject matter was properly before them, and, perhaps, to see if they had been guilty of any fraud in their proceedings. And if they had the strict legal right to do so, in the exercise of a sound discretion, according to the best of my judgment, the proprietors' application to set aside the award should have been refused.
I see no reason to doubt that the Commissioners properly entered on the enquiry as to the compensation to be awarded to Miss Sulivan for her rights as a proprietor in township lands in the Island.
It is not denied that Miss Sulivan was a proprietor, within the meaning of the Act, of township lands exceeding in the aggregate 500 acres. Her lands were, therefore, liable to be purchased under the Act.
The appointment of the Commissioners is stated in the case, and the notice to Miss Sulivan of the intention to purchase all her lands is set out. The notice complies with the Act. If only a portion could be purchased, it might be that the portion selected would be that which was most profitable to the proprietor and most desirable for her to keep.
In my opinion the Statute contemplates the purchase of all of the peculiar description of lands owned by a proprietor whose estate exceeded 500 acres, and when the value was to be ascertained, it would be for the interest of the proprietor to shew what the land was in order that compensation might be given for all, and that none should be omitted. If the Statute had required the Commissioner of Public Lands to define by metes and bounds in his notice the lands intended to be purchased under the Act, it would probably induce him to describe such lands as were well known to belong to the particular proprietor, and which, probably, would be those that were most valuable and most for the interest of the proprietor to retain, or it would have the effect of making the Statute useless if the Commissioner could not give a minute description of each parcel of land owned by the proprietor. The Court below thought the notice sufficient, and I see no reason to dissent from that view.
It was suggested on the argument for the first time that it did not appear that the Commissioners were sworn, or that the Commissioner appointed by the proprietor ever notified the Commissioner of Public Lands of his appointment. It was also suggested that the notice of the sitting of the Commissioners was not published a sufficient length of time before the day fixed for their sitting.
The provisions of the Statute as to these matters seem directory, and it is reasonable to presume they were followed, particularly as the objections were not taken on the argument in the Court below, nor in the rule, nor mentioned as relied on in the respondent's factum. It is not now shewn affirmatively that, as to the points suggested, the proceedings were not regular except as to the time of giving the notice of the sitting of the Commissioners, which, as the parties appeared, could be no objection. If necessary to show in any proceeding that these things were done, it could, I apprehend be averred in pleading and proved in evidence.
If the proprietor's Commissioner gave the Commissioner of Public Lands no other notice of his appointment than claiming to sit, and sitting as a Commissioner when the matter was proceeded with, when the Commissioner of Public Lands was either personally present or was represented by counsel, that would be some notice of his appointment; and, on a bare suggestion of this kind, we will not presume that the parties did not do what they ought to have done.
The papers before us show that the case was fully enquired into before the Commissioners, a large number of witnesses examined, able advocates addressed the Commissioners, and two of them made their award, as follows :—
Dominion of Canada,
Province of P. E. Island.
In the matter of the application of Emmanuel McEachern, the Commissioner of Public Lands, for the purchase of the estate of Charlotte Antonia Sulivan, and "the Land Purchase Act of 1875,"
The sum awarded under Section 26 of the said Act by us, two of the Commissioners appointed under the provisions of the said Act, is eighty-one thousand five hundred dollars.
Hugh Culling Eardley Childers,
Commissioner appointed by the Governor General in Council.
John Theophilus Jenkins,
Commissioner appointed by the Lieutenant-Governor in Council.
Charlottetown, 4th Sept., 1875.
The award was duly published 7th September, A.D. 1875, pursuant to the 29th Section of the Act. The application was made to set it aside on the 17th November, the Public Trustee having notified Miss Sulivan's agent on the 3rd of November that the sum awarded had been paid into the treasury of the Island to the credit of the suit, and that after fourteen days from the service of the notice he would execute a conveyance to the Commissioner of Public Lands of the estate of Miss Sulivan, the proprietor, which estate was more particularly described in the four schedules annexed.
The question is whether the Court below had any authority to make the rule absolute to quash the award ; and in discussing this question it is necessary to refer to the 45th Section of the Act, which is as follows :—
"No award made by said Commissioners, or any two of them, shall be held or deemed to be invalid or void for any reason, defect or informality whatsoever, but the Supreme Court shall have power, on the application of either the Commissioner of Public Lands or the proprietor, to remit to the Commissioners any award which shall have been made by them, to correct any error, informality or omission made in their award. Provided always that such application to the Supreme Court to remit such award to the Commissioners shall be made within thirty days after the publication thereof, as aforesaid; and provided, further, that in case any such award is remitted back to the Commissioners, they shall have full power to revise and re-execute the same, and their powers shall not be held to have ceased by reason of their executing their first award, and in no case shall any appeal lie from any such award, either to the Supreme Court, the Court of Chancery, or any other legal tribunal; nor shall any such award or the proceedings before such Commissioners be removed or taken into or inquired into by any Court by certiorari, or any other process ; but with the exception of the aforesaid power given to such Supreme Court to remit back the matter to such Commissioners, their award shall be binding, final and conclusive on all parties."
Could any more emphatic language be used to shew that the Legislature intended that this award should be "binding, final and conclusive on all parties," and should not be held or deemed to be invalid or void for any reason, defect or informality whatsoever.
On the application to the Court below, certain facts were stated by the agent of Miss Sulivan, in his affidavit.
That in Schedule B there is a farm alleged to be 34 acres, purchased by Arthur Ramsay, on Lot 16, whereas Ramsay had purchased 84 acres; this being 50 acres more than Miss Sulivan claimed to own or demanded compensation for.
That in the 15,000 acres claimed to be conveyed to the Commissioner by the trustee, there is included 1,100 acres on Lot 16, held under verbal agreement, whereas, in truth, under verbal agreement, the lands owned by Miss Sulivan, and for which she claimed compensation, amount only to 708 acres. The following matters are in dispute, and evidence given concerning the same:—
The amount of arrears of rent due by several tenants upon the estate. The performance of the conditions of the original grants from the Crown, and how far the performance has been waived. That Miss Sulivan contended the conditions of the original grants had been waived. The Commissioner of Public Lands alleged the contrary, and gave, in evidence, despatches of Secretaries of State for the Colonies, printed in the Journals of the House of Assembly, in support of his claim and in denial of her contention.
That in Schedule B, four several plots of land purchased by Arthur Ramsay and Samuel Yeo, upon Township No. 16, and excepted out of the said Township, claimed to be conveyed as aforesaid, are referred to as " being numbered or coloured green upon the plan of the said Township, in the possession of Miss Sulivan's agent and produced by him before the Commissioners, under 'The Land Purchase Act' "; whereas there was more than one plan of Lot 16 in the agent's possession and produced by him before the Commissioners. There were two produced by him and they differ from each other, and he had no means of finding out from the notice which of the plans is referred to.
The same thing is stated in effect as to Schedule D, Township No. 61.
If, in relation to these matters thus stated in the affidavit, it was necessary to protect Miss Sulivan's interest, or even to prevent inconvenience in carrying out the award, that something more explicit should be stated in the award relative thereto, application might have been made under the 45th Section of the Act to the Supreme Court to remit the award to the Commissioners to correct the same. But that was not done. If an application had been made to the Court, and it had been shewn that the omissions or error referred to in the affidavit would prejudice Miss Sulivan, or were such as ought to be remedied by the arbitrators, the Court would have sent it back for that purpose. But the course taken on Miss Sulivan's behalf in lying by until the time for applying to the Court under the Statute had passed, it can be seen, has worked great injustice and inconcenience to those acting on behalf of the public. If it had been urged that the award was faulty, it could have been corrected. The Commissioner of Public Lands does not complain of it, therefore there was no reason to apply on his behalf. The proprietor does object, therefore she ought to have applied sooner. She might have applied according to the terms of the Statute; she has deliberately chosen not to do so; she must therefore abide by the consequences.
As I understand the judgment of the Court below, the matter in their view was properly before the Commissioners, it was within their jurisdiction, and they were fully authorized to decide on all questions arising in relation to the enquiry and decision they were to make. The objection is that they did not decide matters which they ought to have decided, and that the award is void by reason of that defect, though, if the proprietor had applied within the thirty days, the award might have been remitted to the Commissioners to correct the error or omission.
It is not pretended that after the thirty days the Court have the power of setting aside this award under the Statute, nor am I aware that they have any peculiar powers conferred on them by local Statutes to interfere when the Legislature has declared that an award shall be final. I understand that the Court below proceed on the Common Law right of the Court to review the decisions of inferior tribunals, and to see that they properly carry out the powers and authority vested in them —not that they are a Court of Appeal to review the conclusions at which the inferior tribunal has arrived, but that they can, if that tribunal has not done all that it should have done, declare void its decisions. The more logical course to take under such circumstances would be to require the inferior tribunal to do what it ought to do, and that was what the Legislature authorized the Court to do.
But in this case I do not think any such right existed in the Court below. The Statute emphatically declares that in no case shall an appeal lie from any such award either to the Supreme Court, the Court of Chancery, or any other legal tribunal. Nor shall any such award or the proceedings before such Commissioners, be removed or taken into or inquired into by any Court by Certiorari, or any other process, but with the exception of the power of the Supreme Court to remit back the matter, their award shall be binding, final and conclusive on all parties.
If a power of a Superior Court to review or set aside an award or decision of a special tribunal can be taken away by Act of Parliament, it seems to me that the words in this Statute ought to be held to do it.
In Richards v. South Wales Railway Company, ([68]) Sir William Erle, in his judgment said: "It was admitted that the writ (of certiorari) was taken away as to all proceedings under the Acts (which he referred to), this rule therefore cannot be made abso- lute unless it distinctly appears that in the proceedings the Sheriff and the Jury have taken upon themselves to decide on a matter on which they had no jurisdiction. When that is made out the Statutory prohibition does not apply and the inherent jurisdiction of this Court is unrestrained. * * * There is, however, a great disposition to evade clauses in Acts of Parliament which take away the certiorari, on the alleged excess of jurisdiction, and we feel bound not to yield to attempts of this kind unless they rest on very clear and satisfactory grounds."
In the Colonial Bank of Australasia v. Willan, ([69]) the following language is used in the decision of the Judicial Committee of the Privy Council:—" There are numerous cases in the books which establish that, notwithstanding the privative clause in a Statute, the Court of Queen's Bench will grant a certiorari, but some of those authorities establish, and none are inconsistent with the proposition, that in any such case that Court will not quash the order removed, except upon the ground either of a manifest defect of jurisdiction in the tribunal that made it, or of manifest fraud in the party procuring it," and at p. 450 the following language is used: —" The Court of Queen's Bench, whose exercise of this power is discretionary, would certainly not quash an order of an inferior Court upon the ground of fraud, unless the fraud were clear and manifest."
Here there is no defect of jurisdiction, and it is not pretended that there is any fraud. But as I understand the argument it was urged that all the jurisdiction was not exercised, and that is a defect of jurisdiction, They were to consider and award on the matters referred to in the 28th section, and not having done so the whole proceeding is void. After giving the matter my best consideration I have arrived at the conclusion that the Legislature did not intend that the Commissioners should find as specific facts, the facts and circumstances mentioned in the 28th section, which they were to take into their consideration in estimating the amount of compensation to be paid to a proprietor for his interest or right in any lands.
If it had been intended they should find specifically on each of these points, I think different language would have been used, and if the Court thought some kind of decision necessary on the points, they could have referred the award back to the Commissioners for that purpose. In any view, it does not seem so plain a question of want of exercise of jurisdiction as to justify setting aside the award under such a Statute as this.
The object of this Section 28 being to allow the Commissioners to take evidence on all these subjects, and having all these matters and the evidence relating to them before them, and seeing that the declared object of the Legislature was to pay every proprietor a fair indemnity or equivalent for the value of his interest, and no more, in the land to be purchased. All this was to be taken into consideration and then they were to award, under Section 26, the sum due to the proprietor as "the compensation or price to which he should be entitled by reason of being divested of his land and all interest therein and thereto."
The papers before us shew that the matters referred to in the 28th section were brought before the Commissioners, except perhaps, those relating to the conditions of the original grants. It is said that as Miss Sulivan was one of the parties referred to in the Act ([70]) she was not a party affected by any decision of that question. After hearing the evidence, the Commissioners made their award. They say, in express terms, the sum awarded under the 26th section of the Act is $81,500. Is there any reason why we should presume they did not take the matters into consideration, which the law directed them to do, before they made their award? They were to make the award after hearing the evidence; this, of course, implies they were to consider it, or it would be useless to offer evi-dence. On the contrary, ought we not to assume that as they could not properly make an award under the 26th section unless they considered these matters, that they have done so? In Britain v. Kinneard ([71]) Dallas, C. J., said formerly the rule was to intend everything against a stinted jurisdiction, that is not the rule now, and nothing is to be intended but what is fair and reasonable; and it is fair and reasonable to intend magistrates will do what is right.
It is fair and reasonable to presume here that the Commissioners did what was right. It is a fair and reasonable intendment that they did what the law required of them, unless it appears on the face of the award that they did not. The proceedings before the arbitrators show that these matters were discussed before them, and the only reasonable conclusion is that they must have taken them into consideration. In the view that I take, then, the award ought not to have been set aside. The Commissioners were not required to find specifically on the matters they were to take into consideration, under the 28th section, and the presumption is they did take them into consideration.
Then, as to the necessity of describing the specific lands as to which they made the award, suppose they had, in the award, described lands that Miss Sulivan did not own, or lands that were not liable to be purchased under the Act, would their finding bind anyone not a party to the award? It is not pretended it would. The Commissioner notified Miss Sulivan he intended to purchase all her township lands, that being the kind of land referred to in the Statute, which he was authorized to purchase, and it was concerning all these lands the award was made. The money has been paid into the Provincial Treasury, and represents all these lands. When those claiming the money are before the Court, they will decide to whom and in what proportion the money is to be paid. Prima facie it is Miss Sulivan and those who contest her right must shew how their claims originated. The finding of the Commissioners could not in any way deprive the parties of rights which arose out of matters in which those parties and Miss Sulivan were alone concerned. The Court might say if the Commissioners took a certain view, it would be only fair as between individuals that the other parties should have a certain sum, but the Court would not necessarily be bound to take that or any particular view. The whole matter is open to them, and when the parties are before the Court they will dispose of their rights as they show them to be. Mere speculative difficulties ought not to be very seriously considered when the party suggesting them had an opportunity of having them all settled, but did not choose to avail herself of it.
I do not consider the describing of the property in the deeds by the Public Trustee a transfer of their authority by the Commissioners. There were certain lands, the value to be paid for which was the subject of their enquiry. What those lands were seems to me easily ascertainable, and if the particular maps in the description cannot be identified, and the conveyance is held void for uncertainty, I fail to see how Miss Sulivan is injured by that, or why she should concern herself with it. It seems to me all her township lands and her interest in them and in the rents were properly before the Commissioners, and they have awarded her all the compensation she is entitled to for them. The amount so awarded has been paid into the Treasury, and I see no reason why she should not get what she is entitled to from the Treasury. Why she should concern herself about the conveyance, unless as it may affect her interest, is not so apparent. If the conveyance included any of her land not liable to be purchased under the Act, she might then say she was interested as to that, and insist upon its being put right. She might apply to the Court to restrain the conveyance, under the 32nd section, until it was corrected. I fail to see that the omission to describe the lands in the award is a ground for setting it aside. The Trustee is to execute a conveyance of the estate of the proprietor. If he executes a deed of property not a part of her estate, that cannot prejudice her nor apparently anyone else. It has indeed been suggested that if it was her estate, the conveyance gives a prima facie title; and if a squatter on the estate were sued, the Land Commissioner or purchaser under him would only be obliged to show that title under the conveyance by the trustee, instead of tracing the title from the Crown. I hardly think a Court would set aside an award like this on that ground alone.
The money was awarded under the 26th section for the lands, of which Miss Sulivan was divested, and they were all the lands of a certain description of which she was proprietor in the Island. As it was not necessary to describe them in the notice, I fail to see why it is necessary for the Commissioners to describe them in their award. If she had devised all her township lands in the Island and died, it is not doubted that such a description would carry to her devisee all the lands of that description which she owned in