case, it appears that the constitutionality of an act of the legislature of the province of Quebec is impeached. The first question raised certainly is that as to the ronarrox construction of the by-law, but if that point should be decided against the respondent, there would still remain, before the appeal could be decided, the question of the constitutionality of the statute of Quebec under the authority of which the by-law purports to toJ have been passed. Should the by-law be held invalid it would be impossible to give judgment without pronouncing upon this constitutional question.
question of waiver by counsel is entirely immaterial. The city of Sherbrooke would have the right to say that the constitutional question was still before this court being patent upon the record andthat they were entitled under sec. 29 (a) of the Supreme Court Act, to maintain their appeal inasmuch as the judgment appealed from
" involves the question of the validity of an act of the legislature of the province of Quebec." For this reason
I am of opinion that the motion to quash should be dismissed.
J.-Was of opinion that the appeal should be quashed.
J.- The respondent's counsel has demurred to the jurisdiction of this court in this case, and I think his objection is well taken. The appellant has attempted to support his appeal on sub-sec. (g) of sec. 24 the Supreme Court act, as being in a case in which a bylaw of a municipal corporation has been quashed by rule or order of court.
But that enactment, probably of no possible application- in the province of Quebec, does not help the appellant. There is no by-law quashed by a rule or order here. In fact there is none quashed at all by the judgment appealed from. We are all agreed on this point I believe, neither could it be contended that the case is appealable because it relates to a tax or duty. The statute gives a right appeal only in matters relating to a duty payable to Her Majesty, where rights in future might be bound, which the tax in controversy could it be called a duty, is clearly not.
Ts r
It is contended however that the appeal in this case lies because the matter in controversy involves the question of the validity of an act of the legislature of the province of Quebec.
If that was so, the appeal would undoubtedly lie. But I cannot see that there is anything in controversy on such a point on the appeal to this court, as the case is presented to us. The respondent has abandoned that part of his pleas which put into question the right of the legislature to authorize this corporation to levy a tax of $100 on compounders, the only one now in contestation. He has succeeded before the conrt of appeal on another ground. He asks now that that judgment be confirmed. appellants of course do not question the validity the act, they support their action on this very act itself. Under these circumstances I cannot see that the matter in controversy here involves the validity of the Quebec act.
STRONG J.-I entirely dissent from the opinion arrived at in this case by the majority of the court, c00o both upon the express words of the statute allowing appeals from the judgment in any case of proceedings for or upon a writ of mandamus (sec. 24 (g), and also upon this consideration that if an appeal in mandamus proceedings is confined to final judgments it would, under the Ontario system of procedure in such cases. be useless- The words of the statute are: (An appeal shall lie) " from the judgment in any case of proceedings for or upon a writ of habeas corpus not arising out of a criminal charge, and in any case of proceedings for or upon a writ of mandamus," nothing indicating that the legislature intended to limit it to an appeal from the final judgment on the writ of mandamus ; and we all know from experience that the final judgment in a mandamus case is seldom reached.
To say that there must be a final judgment before there can be an appeal would imply that the returnto the writ must be traversed, pleaded or demurred to and a final judgment given on such pleadings. If an appeal is to be confined to such a case, inasmuch as the proceedings seldom reach the stage of final judgment, there would be nothing left to appeal from.
I think the legislature in enacting the clause in question, intended that the appeal in such cases should be assimilated to appeals in equity cases, as provided in sub-section
In such cases appeals from interlocutory orders may be brought to this court, and from the nature of the proceedings in mandamus, it is reasonable to infer that the intention was to give an appeal in like cases.
The intention therefore (having regard to the express words of the statute) being to allow appeals from any judgment in proceedings for or upon a writ of mandamus, and not from the final judgment only, I am of opinion that the judgment appealed from in this case was a judgment upon a proceeding for a writ of mandamus, and, therefore, one coming exactly within the precise words of the Act. The motion to quash should therefore be refused with costs.
FOURNIER J.- Le jugement dont est appel a td rendu sur une d6fense en droit qui avait t maintenue par la Cour Sup6rieure et que la Cour du Banc de la Reine a ~renvoy Ce jugement n'a certainement aucune finalit6 Fournier J. et partant n'est pas appelable.
Mais 1'appelant pr6tend que dans les causes de mandamus 1'appel n'est pas limit6, comme dans les autres, au jugement final.
II fonde cette pr6tention sur le langage de la ss. g. de la sec. 24 concernant les habeas corpus, mandamus et r~glements municipaux oi il est dit
Cette disposition est-elle une exception au principe g~ndral 6mis en tite de la section 24, limitant 1'appel au jugement final? est 6vident que le statut a voulu proscrire les appels devant cette cour sur les jugements interlocutoires dont on avait reconnu les inconv6nients et qui avaient fini par 6tre consid6rbs comme une entrave A l'administration de la justice. Cette disposition me paralt fond6e sur le principe qu'il est de l'int6rAt public de mettre, le plus t6t possible, un terme aux procks. Elle doit s'appliquer aux affaires mentionn6es dans la ss.g, A moins que les expressions employees ne fasse voir une diff6rence que l'on ne pourrait m6connaltre.
N'y a-t-il pas autant, et plus encore, de motifs d'arriver promptement au jugement final dans ces causes que dans lesautres ? Je ne vois pas de diff6rence et les termes de -la section n'en font pas non plus suivant moi.
O'est dans la section (24) n'accordant 1'appel que du jugement final que se trouve cette disposition, et elle n'y forme pas une exception.
L'appel n'y est donn6 que "du jugement," ce qui, sans doute, signifie le jugement final, comme dans les ss. etf.
Il n'y a d cette signification qu'une seule exception, celle faite par la ss. concernant les jugement des cours d'Equit6. Mais le langage est different. Le 1gislateur n'emploie plus comme dans les autres sous-sections 1'expression " The judgment," mais an contraire, il se sert des termes " from any judgment"
de tous jiugements et non pas " du jugement," et les mots de " tous jugements " sont suivis d'une 6num6ration de proc6dures (decree, decretal order, or order in any action or suit), qui fait voir que dans cette section l'appel n'est pas limit6 au jugement final et qu'il peut avoir lieu de jugements interlocutoires. Je vois dans cette disposition une exception bien formelle A celle qui n'accorde 1'appel que du jugement final, mais cette exception n'existe pas dans les autres sous-sections.
Cons6quemment je suis d'avis que la motion doit 6tre accord~e et l'appel renvoy6.
J.-In this case, it is conceded by the appellant that the judgment he appeals from is merely interlocutory, but he contends that under sec.
24, sub-sec. (g) of the Supreme Court Act the appeal lies, because the case here is one upon a writ of mandamus, as to which, he contends, the right of appeal is not confined to the final judgment.
I am of opinion that the statute does not bear that construction.
First, I cannot see why such a distinction would have been made.
Why allow the right of appeal only from the final judgment, so as to prevent parties from multiplying appeals, as the statute clearly does, yet make an exception as to cases of habeas corpus and mandamus, and allow an unlimited number of appeals in every case of that nature ? Would it be because, more so than in ordinary cases, a prompt judgment is desirable in such proceedings?
There is certainly, that I can see, no reason why the exception contended for by the appellent should have been made.
And it has not been made, as I read the statute. The judgment in any case of proceedings upon a writ of habeas corpus, or mandamus, in sub-sec. -.
(g) of sec. of the act means the final judgment the same words do in sub-secs. d, f In sub-sec. the statute makes an exception, but there, it says, any judgment, not the judgement. The appellant would read the words in sub-see. (g) "an appeal shall lie from the judgment in any case of proceedings for or upon a writ of mandamus " as if they meant from any judgment ; or from the judgment on any proceeding. Now " the judgment is not " any "judgment," and " in any case of proceedings" does not mean "on any proceeding." " The st atute reads by simply reversing the sentence "in any case of proceedings upon a writ of mandamus an appeal shall lie from the judgment." Now, I repeat it, this means, it seems to me clear, the final judgment, not any judgment, nor the judgment upon any proceeding in a case of mandamus.
Otherwise, a case on habeas corpus or mandamus may be brought up here on a motion for security for costs, for instance, or on any motion or interlocutory order or proceeding whatever in the case, and at any stage, and an unlimited number of times.
I do not think that such is the law. Sec. 30 of the act does not affect this case, and Dan jou v. Marquis (1) is no authority on this point. This question could not arise there at all, for the judgment appealed from was unquestionably a final judgment. The only point determined in that case was that an appeal does not lie from a judgment of the Superior Court.
I would quash this appeal.
It is well settled law that an appeal never lies unless expressly given LANGEVIN by statute. Rex. v. Cashiobury (1), Rex. v. Hanson (2), The Queen v. Trustees of Waroickshire (3).
Crompton J. says :- The appeal is the creation of the statute and can only exist where it can clearly be collected from the language of the statute that it was the intention of the legislature to give the appeal.
Taschereau Exparte Chamberlain (4), Lord Oampell C.J. says:
J. appeal can be made except under an express enactment.
Attorney General v. Sillem (5), in the Exchequer
Chamber and in the House of Lords (6) :
The creation of right of appeal plainly an act which requires legislative authority.
Lord St. Leonards:
Now it clearly laid down that no right of appeal can given except by express words.
And in Chagnon v. Normand (7) in this court.
Sir
W. J Ritchie C.J. for the court :
We think that an appeal which unknown to the common law must be given by statute in such clear and explicit language that the right to appeal cannot be doubted.
We should, in my opinion, be careful not to assume jurisdiction where the statute does not clearly give it. I am against grasping at jurisdiction. We have gone too far already in that direction. In Levi v. Reed (8), for instance, amongst others, and City of Montreal v. Labelle (9), Joyce v. Hart (10), Lordv. Davidson (11), Bender v. Carrier (12), The Ottawoa v. Sheridan (13) Dorion v. Crowley (14), in which we entertained the appeals, (1) & R.
Can.S.C.R. 482.
4 B. & Ald.
Can. S.C.R.
E. & B. 837.
1 Can. S. R.
E. & B. 664.
Can. S.C.R.
H. &
Can. S.C.R.
H. L. Cas. 704.
Can. S.C.R.
Can. R.
Cassels's Dig.402.
we have had since to determine that, in cases of that class, no appeal lies to this court (1).
PATTERSON J.-The appellant instituted proceedings in the Superior Court of the Province of Quebec, praying, for reasons set out in his petition, for the issue a writ of mandamus commanding the school commissioners forthwith to carry out a decree of the superin- J.
dent of public instruction which ordered the formation of a new school district. The application was made to Judge Mathieu under article 1022 of the C. P. which authorises the issue of a writ'commanding the defendant to perform the act or duty required or to show cause to the contrary on a day fixed. The application was supported by affidavits as required by article 1023, and the judge, on the 24th July, 1889, ordered the issue of a writ returnable on the first of August following.
After the return of the writ the defendants filed pleas, the petitioner answered them; and the defendants replied, raising issues in law and in fact, and on the 21st of September,1889, judgment was given by Mr. Justice Mathieu in favour of the petitioner. This entitled the petitioner to a peremptory mandamus under article 1025, but the commissioners appealed to the Court of Queen's Bench, and that court reversed the decision, holding, by a majority, that the petitioner had not established the duty which he asked to have enforced by the writ.
The question now is whether an appeal from that decision lies to this court.
The objection taken to our jurisdiction is that the judgment is not a final judgment.
Conceding, but only for the sake of the argument, that the judgment is not final within the definition the term " final judgment " contained in the interpretation clause of the Supreme and Exchequer Courts Act, I have no doubt that the right of appeal is given. LAGvin I think that is the clear result of sections 24, 28 and 30.
That this is a judgment, and not a mere ex parte order such as that made on the 24th of July, is not and cannot be disputed. Section 24 enacts that an appeal shall lie in various cases specified in seven articles numbered from (a) to (g.)
Mandamus is one of the subjects of - ~Patterson
J. article (g), and the enactment may be read thus omitting all matters irrelevant to this subject:- The only reference to final judgments contained in the section is in article (a) which specifies final judgments of the highest court of final resort in any province. No restrictive words such as " final judgments only " are used. The article has no grammatical connection with the subsequent articles, and some of those subsequent articles specify judgments which obviously may not be final.
Article (d) is one instance:
An order for a new trial is only interlocutory.
Now, while it is true that an appeal will lie only when given by affirmative enactment, and while article
(a) specifies final judgments only, it is not laid down by section 24 as a general principle, either in terms by implication, that an appeal 'vill not lie from any judgment that is not final. As to mandamus and habeas corpus, it will be noticed that article (g) specifies proceedings for the writ as well as proceedings upon it.
The restriction of appeals to final .judgments is found, not in section 24, but in section 28, which enacts that
We have here a two-fold restriction-first, to actions, instituted in a Superior Court, and secondly to final judgments in those actions. Proceedings in cases oISSAIRES of mandamus, being necessarily commenced in a Su. perior Court, would thus have come under the restriction that required a judgment to be final in order to be appealable, unless those cases were covered by the words except provided by this act."
I am inclined to think they would be covered by those words ; but section 30 puts the matter beyond question by enacting that
Thus, on the assumption that the judgment in question is not a final judgment, the appeal is,in my opinion distinctly given by the statute.
I am not prepared, however, to concur in regarding this judgment as interlocutory. It concludes the controversy between the parties which was respecting the legal duty of the commissioners to do the act to enforce which the writ was prayed for. It is a final judgment just as any judgment dismissing an action is final. It would be equally so whether the peremptory writ were granted or refused.
It has been refused, and the right to it is resjudicata. If it had been granted the question of right could not have been again brought into contest by any return to the writ. All that would have remained to the commissioners would have been to do the act commanded, after which any attempt to appeal would have been labour lost.
For these reasons, I think we ought to hear the appeal.
Appeal quashed with costs.
Statutes and regulations cited
-
Unresolved citations
- section (24)