t-owssss... ..........* l» 11mm iv notion of motion m‘

+1 i’. saunas; next at 12 oblockwgz-"ffudwrcnt l1

agnvc: and nhlilmijv

.. . .,_..._..... __.._

Ne» an ap-

ml orpus proceed- . it is significant that Beck, J.,

In Judgment at p. 459 saya-,-_

Pflwlpie has of course no lplillfiflllvfl in the case of an ap- peal to another Court. a right of appeal in such be provided by Statute."

And from the Appellant's Brief I take the additional quotation from Beck, no doubt taken from anoth- er report of the Case:-

Beck, J.:

Court. and not exercising an en- tirely independent jurisdiction con- ferred upon him by Statute. acts as a deputy or perhaps be said as a Committee of tire Court 6:0."

The iialim are my own and the words underlined qualify the prin- flule enunciated and place a quite different meaning on the dicta of Beck J. than that sought to be conveyed 5y Counsel for the Ap- pllcant.

This principle has been so well

the en-

and so long established that it is 1939

hardly necessary to quote further authority in support. In Ontario, as far back as 1886, Wilson. C, J.. in the Case of Re Paquette, 1i Prac. Rep. at p. 4T1. where the Judge was acting under the pro- visions o! a Statute, says:-

“I am of opinion the Junior Fudge" (of the County Court) "was not exercising the powers of the Court" (County Court) "but an in- dependent Statutory authority con- [erred upon him, “and in a mat- ter which was not to be adjudicat- ‘od upon in “a Court or in any matter which required to be trans- acted "in Court. He was persona ilesignata, "could be no appeal to the County Court. not in such matters "as he had to decide upon, to the Cour pf Appeal."

It is evident that in Ontario it was considered that should be provided, even where the ‘sludge. under a statute, acted as periona design-std, and accordingly ln 1893 a remedy was provided, and an Act R..S.O. 1927 C. 111 was passed by which orders by such a Uudge are entered as orders made by him and pending in Court and which may be enforced in the game way as Judgments of thel Court. We have no such Act in this Province.

Another reason, urged upon m}; Court. why it should hold that the Chief Justice was acting in Court is that he sat in the Court Room in his gown, that he instructed Coun- lel to put on their gown.

The action of the Chief Justice in this respect, or that of any of- Iicial. could not confer a jurisdic- tlon where none is given. The Chief Justice was at perfect liner- ty, if he thought fit, to sit at this hearing in his gown and to m. struct Counsel to wear gowns. There is no law to govern the mat- ter. As a matter of practice, the Judges in this Province wear gowns. tilde same practice applies to 0mm. ael. some of the Judges of the County Court follow the same prac- tice. but not all of them.

It is purely a matter of dignity and decorum and if the Chief Justice thought to add more dig- nity and decorum to the hearing before him, such action has no bearing on the question of jurisdic- tlon now before this Court. The ‘jurisdiction of the Judges or the Court does not depend on thel Judges or officials wearing gowns, .

The only other point to be con- sidered is the question raised by; the Respondent that even if the; Chief Justice was acting in a Court and not as persona designatll‘) whether the APDellant, having tea signed all his rights to the seati to accept the position of Governor‘ of this Province. had such interest in this matter, at the time of the hearing before the Chief Justice and now before this Court. as to ‘Qntltle him to be heard-

Although this is an interesting point and one on which much might be raid, in view of my de- cision herein 1 do not feel called upon to deal with it.

lastly, the further point has been raised by the Applicant, that unless the Judge of The Supreme Court is actlnfl ln Court then that there are no provisions made in The Election Act by which ho can enforce any order which he may make.

I cannot see that this objection has any weight. If the Provisions of the Act are deficient in this respect. it can have no bearini 011 the question of this court's Juris- diction. The Election Act, i921, providda that "A Judge w found to be in default ls aforesaid. flhill forthwith can-y out the 411' of any order so mid!" M- .

This part of the Act is copied verbatim from the "Dominion Electivn Act" and this Act doe! not otherwise indicate or provide

any further directions as to haw Prdvinnisl Treasurer

1.11s Judge 1| to enforce such order.

Judge by the Provincial Hoof-ion Act, i922.

I am of opinion that this Court has n0 jurisdiction to entertain this appeal and it should accord- ingly be dismissed.

As this case involves the inter- pretation of a Provincial Statute and in conformity with the estab- lished practice of this Court in such case; there will be no costs.

CANADA PROVINCE OF PRINCE EDWARD

m TEE SUPREME COURT

0n appeal from a Judgment of , cafe clearly must chief Justice Mathiesonpsitting in

Court.

In the matter of The Election Act i922. and in the matter oi the application of R. K881111114 Bell for an order under the acid Act

to comply with the pra- visions of the said Act in respect of a recount had before him under the provisions of the 181d A6‘. 0"

it may the 3rd and 5th days of June A.D.

1939.

JUDGMENT, SAUNDERS. J.

lcPage, was declared by Harry A. Jenkins, R/zturnlng Officer, elect- ed as Councillor for the Second Electoral District of Queen's County in the General Provincial mention held on May 18th, 1938. On the 30th day of May A.D. 1939, the Respondent. R. Reginald Bell, ap- plied to His Honour C. Gavan D1111)’. Judge of the County Court oi’ Queen's County, for s, Recount of the ballots under the Provisions of Section 148 of The Election Act. 1922. The said County Court Judge proceeded with the recount on the 3rd and 5th days of June A.D_ 1939 and at the conclusion thereof certified the rrslilt of such recount to the ca!‘ Returning Of- fioer to the effect thlt 121’! Ballots had been cast and allowed for the said R. Reginald Bell and 1219 Ballots had been cast and allowed for the said Bradford W. hePage. The said Returning Officer again declared the said Bradford W. Le- Councillcr as aforesaid and made his Return to the Provincial Secretary on the 7th day of June A.D. 1939:

On the 13th day of June A.D. 1939 the said R. Reginald Bell made application to Chief Justice of this Court for an order under section 159 of the said Election Act. 1922, alleging as grounds:-

(a) That included in the ballots allowed by the said Judge for the said Bradford W. LePage were six ballots with counterfoils attached thereto, which counterfoils bore writings or marks by which the voter using and marking such ballot could be identified.

(b) 111st included in the BiillotS allowed by the said Judge for the said R Reginald Bell was one bal- lot with a qmmferfoii attached thereto. which counterfoil bore writings or marks by which the voter using and marking such ballot could be identified.

(c) That included in the bal- lots allowed by the said Judge for the said Bradford W. fePage were two ballots having the front part thereof. including part of the C811- didates’ Christian names complete- ly torn away and missing.

The said Chief Justice apcinted the 22nd day of June. A. D. 1939. at his Chambers for the considera- tion of the said application at which dais the consideration was ad-

Court again slate-Court opens. Mathleson, C. J. reads his reasons for Judgment.

The Judgment of the Chief Justice delivered herein was fllrd in the Records of the Supreme Court and bears the stamp of the Supreme Court.

The Chief Justice concludes his Judgment as follows:-

"This Court reserves power to make such further and 0th": orders as lie within its jurisdiction and as the circumstances of the ease may require."

m Election Act slmly rive! the Judge power to make such order .5 u... facts of the we warrant either dlsmissiflg ti)? _#1PP11°’"°“ or commanding the Jufi-lB 0! me County Court to comply ‘with the mquiroments of the Elect on Act.

The Chief Justice made his order and no power 1g given in the Elec- Wm A“ w make any further or

rder. otlllfllstlherefore manikst the Chic! Justice considered he wrs deal n8 with this application as an ap- plication in the supreme CW"-

On the 20th day of Srpfember. Counsel for the Respondmt took out a fonnal order on the said

against said Judgment and 01'6"!‘ to the supreme Court en Bane was filed and served by the Appellant upon the Respondent and H. F McPhee. his Attorney.

Counsel for the Respondent now takes objection to the jurisdiction of the Supreme Court en Bane to hear the said apceal on the ground that no appeal llci.

The question now to b? colsider- ed is as followsz- Does an appeal lie from judgment of the learn- ed Chief Justice dillvered herein and the Order taken out in pur- suance thereof?

The relaxant sections of the Eec- tion Act under which this applica- tion before the learned Chief Jus- tice was made are as ‘ollcwsz-

159, In case of any omission. ne- glect, or refusal of the Judge to comply with the foregoing provis- ions in respect of the recount or final addition therein provided for. or to proceed therewith, men any party aggrieved may, within eight days thereafter, make application to a Judge of tho supreme Court of tho Province, for an order com- manding the Judge to comply with such directions and to proceed with and complete such recount or final addition. ,

160. Such application may be made upon affidavit, which need not be en- titled in any way matter or cause. setting forth the facts relating to such omission, refusal or neglect.

(2) The Judge or Court. as the case may be. to which the applioi- l tlon is made shall if it appears that there is such omission, refusal or neglect, make an order appoint- ing a time within eight days and a place for tbs consideration o: such application, and directing the at- tendance of all parties interested at such time and place, and giving such directions for the service of the or- der and of the affidavit or affidav- its upon which the order was grant- ed, upon the judge so alleged to be in default, and upon the other par- ties interested, as he thinks proper.

(3) If the circumstances appear to the Judge or Court as the case may be, to warrant it, the judge or the court may direct that service upon any of such parties may be substitutional or may be made by mall or by posting, or in such other manner an ‘ne thinks fit.

161, The judge complained of, or any of the parties interested, may file in the office of the Prothcn- otary of the Court to which or to a Judge of which appicafion is made. as the case may be. affidavits in reply to those filed by the applica-

journed until July 26th, 1939. when Counsel for the parties amflflrfd before the Supreme Court, pre- sided over by the said Chief Jus- tice, when the said corrideration was further adjourned until Sip- tembei‘ 12

I have examined the minute book of the supreme Court of this Province, and the file in connec- tion with this appllcation which is ncrw in the office ol the Prothonot- ary of the Supreme Court.

This appllcallbn was entered by the Prothonot-aly of the Supreme Court in the minute book of the supremo court and dealt with as a matter in the supreme 0M1"-

Thcre are a number of exhibits filed in connection with this ap- plication: and each bearfi the stamp of the Supreme Court as to dale of their respective reception.

If this application was simolv a preceding in an Election Court proceeding, the Prothonotary of the Supreme Court would not have been an officer of such Court; as no provision is made for such an officer under the Election Act.

Now. I find in the m‘nute boolr of the Supreme Court that the usual and regular procedure was

followed in connection with this application as to any ordinary ap- plication in the Supreme Court. For instance. on the 23rd day of September. the mmutea of the Supreme Court stave-Own opens -present Mathieson, C. J. Mr. H. F. McPhee. Couwel for the

Respondent continues his ‘argu- ment for an order directing the to t"i'u over F“ lvrnis eic_ io the Wtnmlng

gt is no doubt presumed that the officer.

Ih0&|!lflOd UIIIIIPU

The Court: "I'll admit the proof

tlon, and upon demand, shall furn- lsh him wich copies thereof.

1B2. At the time and place ap- pointed by the Judge or Ccurt, a1; the case may be, or at any other, time and place to when the hear-l lng may be adjourn-cc, after hear- ing the parties, or such of them as are present or their coun*el, the Judge or some other Judge of the same Court, or the court shall make; such order as the facts of the case. in the opinion of the Judge or court, warrant, either dismisslng| the application or commanding the. judge in default to takc such ac-l tlon as is necessary in order to a compliance with the requirements of this Act in respect of the recount

BRlNG UP~FATHER

in provided were taken by to; m. spondcnt. ~

‘I'M uui-swnduc m: is that no provision whatever i; madg undgr the Prince Edward Island Electkn Act for an appeal from the County Court Judge's decision on ~a re- count.

What prcceedlngs en by the Responds

He invoked the provisions of sec- tions l59—-160—-l01 and 162 of The Election Act alrcdv cited.‘

Section 159 makes certain reme- dial provisions in case there is any omission, neglect or refusal on the part of the County Court Judge in the discharge of his dudes.

The Rrsowvleot. con-"idering him- self aggrieved. RPDlie-l undir Sec- tion 159 to the Chis-f Justice frr an order under the said Section cam- mandlng the Countv Court Judge to comply with the terms and pro- visions of said Act.

Section 160 says: Such applica- tion may be made on affidavit of facts etc.

And the Judge or Court (meaning the supreme court) as the case may be. to which appllcaticn is made, shall if it appears that there is some omission, refuial or neg‘ect make such order etc.

And the Judge or tho Court (meaning the Supreme Court) may direct subsfltuted service of the or- der etc.

Section 162. The Judge of the Court (meaning the Supreme Court) shall make such order as the facts of the ease warrant either dismiss- ing the appllcatlcn-or command- ing the County Court Judge to com- ply with the requirements of the Act. -

Hhere we have it expressely state- ed-Jfne Court may by its order di- rect etc.

Could anything be more clra: or definite in euabkshing that the Respondent mad-e his application herein to the Supreme Court under the provls‘on o! a Provincial Sta- tute, namely The Election Act, 1922?

then were tak- m?

Under our Judicature Act 1929 Sections 10 and ll read as follows:

10. “'I‘he Supreme Court of Prince Edward Island shall con- tinue to be a court of Record, and subject to the provisions of this Chapter. shall continue to have and exercise the jurisdiction, which at the time of the coming into force of this Act was vested in 0r capable of being exercised by such Court."

l1. "The Jurisdiction of the Su- preme Court shall include the jurisdiction which immediately preceding the coming into force of this Act was vested in or capable of being exercised by all or any one or more of the judges of the said Supreme Court of Prince Edward Island lifting in COME or Cham- bers or elsewhere when acting as Judges in pursuance of any Statute or Law and also all ministerial. powers. duties and authorities in- cident to any and every part of the jurisdiction aforesaid as well Civil as Criminal."

Can there be any question or doubt that the Chief Justice was acting in pursuance of the pro- visions of a Prince Edward island statute, namely, The Election Act. 1922, when he delivered his Juda- ment and made his order? Cer- tainly not.

Therefore, according to section 11 of the Judicature Act the pro- ceedings before the learned Chief Justice are proceedings within the jurisdiction of the Supreme Court of this Province.

Under section 3 of our Judica- ture Act, 1929, the supreme Court o! Judicature is constituted as follows:-

3. The supreme Court of Judica- ture of Prince Edward Island as constituted before this Act a Court of Common Law and having also an equitable jurisdiction as here- inafter defined and limited. and pOSSCSSlIIQ original and appellate jurisdiction in civil and crimlnn cases, shall continue under thi- aforesaid name to constitute one supreme Court o! Judicature for the Province of Prince Edward ls- land.

This Court is declared by the said Section to have Appellate

Jurisdiction in both Criminal and l

Civil Matters and Section 27 thereof authorizes the making of

l Rules “For carrying this Act into effect."

Order 58 of the Rules of the court made under Section 21 deals with the question of appeals and Rules 1 and 3 of said Order are as follows:-

1. All appeals to the court shall

cislon mldo by s 1n or in Chambers, except order; m“; In the exercise of Inch discretion u by law belong; set lulde or discharged upon no. "W- by the court. Discretionary matters are appenlable by leave o: tho Judge when decision is ap- from. ‘ . ave already said and . Peat um u» Judgment élfisfis i 1nd the order made by the loam. ed Chief Justice was a judgment and order cf the Supreme Court; and "llqufltimflbly 1s appealabie under Order 58, Rule 3. I In support of the contention that no appeal lies, the Respon- flem 581's ltvis quite clear the words the Court where they appear in Sections 160-161 and 162 were let in as a result of a draftsmazrg or- r012 It is clear, he says, may gm; have no meaning or significance since it is nowhere indicated what Court is referred to. He continues: “It Ls quite evident that even if "197 Wm‘? I105 l" by error. and even if it were dear what Court was indicated, they can have no force or meaning because m; pm. vision is made for an application to (he Court; but by seem“ 159, PYOVMOII is made for application t0 the Judge alone," 0t (CHOW this cour5e of I would be much more think the draftsmans

dcc in court

l-O 2 B C!

5110111119 that the application may be made to the Court as well as l0 a Judge.

Respondent. also places

his contention. m9 Appeiiziilt has devoted consid- fmblfi time and attention to‘ the {$31M question; and also has cited

many authorities to rebut the Res- pondent's contention.

of the Judicature Act in this Pro- vince the question of "Persona de- slsuflta" cannot possibly arise in this case.

Section 11 of the Judicature Act Sal/SI — "The Jurisdiction of the Supreme Court shall include the jurisdiction vested in any one of the Judges of the supreme court act- ing as Judge in Sta such circum- stances. how can the question of ‘fpgrsona designata" arise? It can- no .

The respondent relies almost ch- tlrely on two cases in support of his contention, namely, on the case of Re North Hump Election. '58 O.L.R. 196 and McIvor v. ‘P11181165, l2 MFR. 393.

An examination of the former case will sllDW a very marked dis- tinction between it and the case under consideration. And the lat- ter case has really no application (whatever.