Queen's County, P.E.I., Election Case (Davies v. Hennessy) & Prince County, P.E.I., Electi

Election petition-Preliminary objections-Personal service at Ottawa- Security-Beceipt--R.S.C. ch. 9, 8 & 9, sub-ss. e and g, and s. In Prince Edward Island two members are returned for the Electoral District of

Queen's County.

With an election petition against the return of the two sitting members the petitioner deposited the sum of $2,000 with the deputy prothonotary of the court, and in the notice of presentation of petition and deposit of security he stated that he had given security to the amount of one thousand dollars for each respondent "in all two thousand dollars " duly deposited with the prothonotary as required by statute. The receipt was signed by W. A. Weeks, the deputy prothonotary appointed by the judges, and acknowledged the receipt of $2,000, without stating that $1,000 was deposited as security for each respondent.

The petition was served personally on the respondents at Ottawa.

Held, 1st. That personal service of an election petition at Ottawa with- :-Sir W.

APPEALS from orders of Chief Justice Sullivan of the Supreme Court of Prince Edward Island, made on the twentieth day of July, A.D. 1891, dismissing certain preliminary objections filed by the appellants to the election petitions against them filed by the respondent.

[It was-agreed that the appeal in the case of Prince County should follow the result of the decision in the Queen's County case.J

In the Queen's County case the petition was filed by the respondent, Hennessy, and copies of petition, notice of the presentation of same and of the security were served personally upon the appellants in the city of Ottawa, Ontario.

No order for service outside of the jurisdiction of the Supreme Court of P. E. Island was obtained in the matter of the petition.

The appellants filed preliminary objections to the petition and service which practically resolved themselves into two.

First, that the service of the petition, at Ottawa, and out of the jurisdiction of the Supreme Court of P. E. Island, was illegal and void, having been made without any statutory authority or rule the court, or special order of the judge permitting it. Secondly, that no security was deposited pursuant to the statute, as each defendant was entitled to have $1,000 deposited as security for the costs that may be incurred by him, whereas, as a fact, the security was given by depositing $2,000 in one lump. sum for the costs of the petition generally; and further, that the money constituting the deposit was not made with the proper officer, it being paid to a deputy of the Prothonotary, who gave the receipt, this deputy not being one of the officers named in sub-section of section 9 of the Controverted Elections Act, as defined by subsection i of section of the said act, and the amending act of 1887, ch. 7 section 1.

With respect to the illegality of the service out of the jurisdiction, I submit as a general proposition that the power to serve process out of the jurisdiction of the court is not inherent in the court, and that apart from statute. the court has no power to exercise jurisdiction with respect to any person beyond its limits. In support of this proposition I rely on the following authorities:-Re Maugham ; Ex parte Bernard (2); In re Busfield (3); In re Anglo African SS. Co. (4); sec. ch. R. C.; Day's Common Law Procedure Act (5); Annual Practice, 1891 (6).

Next, as to the objection of the illegality of deposit. The deputy prothonotary is not the officer to receive deposit or give receipt.

Sub-section of section 9 says the security shall be given by a deposit of money with the " Clerk of the Court."

The interpretation clause sub-sec. i, as amended by 50-5 i Vic. cap. 7, 1887, defines what officers are included in the expression " Clerk of the Court." The prothonotary is one of those officers The deputy prothonotary is not.

The court has the right by rule to prescribe that the deputy shall be one, but it has not done so.

Parlia- '~s ment has by statute chosen to name certain officers as the only ones authorized to do an act under the Controverted Elections Act. It gave power to the judges to name others.

It did not give power to the local legislature, and the latter body cannot therefore, either directly or indirectly, by saying that the deputy shall have all the powers of the principal, confer on the deputy the specific powers the Dominion statute gives the prothonotary, and the prothonotary only.

Further, the deposit has not been legally made. It is, according to the receipt, a single deposit of $2,000 in the matter of the petition against both respondents. There should have been separate deposits of $1,000 each as security for each respondent.

The 8th section of Controverted Elections Act allowing two or more candidates to be made respondents, and permitting their cases, for the sake of convenience, to be tried at the same time, explicitly enacts " as regards the security, and for all other purposes, such petition should be deemed to be a separate petition against each respondent."

If, therefore, as regards security, the petition is a separate one against each respondent it follows that each respondent is entitled to have the security of $1,000 deposited as required by the 9th section " for the payment of all costs, charges and expenses that may become payable by the petitioner to member whose election is complained of" Pease v. Norwood (1).

This is a statutory right of the respondent and a statutory duty of the petitioner.

It won't do to say that lumping the two sums together will do as well be as good security. As a matter of fact it may not. One member may have his election voided and the other may retain his seat.

Both elections may be voided, and on the other hand, after prolonged litigation, the petition may be dismissed as against both. One may appeal, the other may not.

The first out of the fight might get an order for the payment of his costs, and so also might each and all of the witnesses summoned by petitioner, and eat the whole $2,000 up and nothing would be left for the other respondent. The two members elected may defend in common, and have a common interest, or they may be politically and otherwise opposed, and fight the petition on different grounds.

Davies and Jenkins or Davies and Brecken were instances of one case; Davies and Welsh of the other. The court cannot take judicial notice whether they are united or opposed. Each member has his rights guaranteed by statute, and one of these rights is, that if his seat is attacked the person attacking shall deposit $1,000 " as security for all. costs, charges and expenses that may become payable by the petitioner " (inter alia) to the member (not members) whose seat is complained of. It seems therefore that the deposit is illegal, and not in compliance with the act.

The main object of the statute was to have $1,000 deposited to answer any order that might be made as to costs or otherwise, as regards proceedings against each respondent petitioned against. In this case there are two respondents to the one petition, and the sum of $2,000 was deposited when such petition was presented; the receipt states that it was deposited as security in the matter of that petition, and the notice of the presentation of the petition, served on the appellants, with the copy of the deposit receipt, specifies particularly that $2,000 was deposited as security in the matter of the petition, viz., $1,000 for each respondent to the petition, and the respondent IN submits that the deposit is to be appropriated to the objects designated by the depositor and not by the QU'7s officer receiving it, and that in this case the notice was such an appropriation.

On the other objection that the money was not paid (P. E. 1.) to the proper officer, the learned counsel referred to CASES. and relied on 50-51 Vic. ch. 7, sec. 1, and R.S C. ch. 1, sec. 7 sub-sec. 40, and as to the service-R.S.C. ch. 9, socs. 10-11 ; 36 Vic. c.'22, ss. 20-21. See also Yardley v. Jones (1) ; Ablett v. Basham (2) ; Blackwell v. England (3) ; Walcot v. Botfield (4) ; The King v. Sargent

(5) ; The Shelburne Election Case (6).

Sir W. J. RITCHIE C J.-The preliminary objections in this case resolve themselves into the payment of the money to the deputy prothonotary, the insufficiency of the receipt and the insufficiency of the service.

think the payment to the deputy prothonotary was sufficient; the money is now in court subject to the order and disposition of the court under the terms of the statute.

As to the insufficiency of the receipt, the receipt is as follows:

Province of Prince Edward Island,

In the Supreme Court.

THE

Election of two members for the House of Commons, for the Electoral District of Queen's County, in province of Prince Edward

Island, holden on the fifth day of March, A.D.

I bereby certify that I have this day received from Walter A. 0.

Morson, agent for William Hennessy, of Charlottetown, in said county the sum of two thousand dollars in legal tender money of the Dominion of Canada as security in the matter of the petition of the said

William Hennessy, this day filed with me against the return of Louis

E. & B.

T. R. 466.

E. & B.

Can. R. 256.

Henry Davies and William Welsh at said election as members for the - House of Commons for said electoral district.

Dated this 27th day of April, A.D. 1891.

The notice served with the copy of this petition and with the copy of this receipt was as follows:

Ritchie C.J.

Notice of presentation of petition and deposit of security. Take notice that on Monday, the twenty-seventh day of April, A.D. 1891, the petition of William Hennessy, of Charlottetown, in Queen's County, was duly presented and filed with the prothonotary of the Supreme Court of the province against the return at said election of Louis Henry Davies and William Welsh as members for the House of Commons, in the electoral district of Queen's County, Prince Edward Island, for the reasons therein set forth. And further take notice that at the time of presenting said petition, security to the amount of one thousand dollars for each respondent, in all, two thousand dollars in legal tender uoney of the Dominion of Canada, was duly deposited with the said prothonotary as required by statute, and further take notice that the name and address of the agent of the petitioner is as follows:- WALTER A. 0. MORSON,

0ffice

Brown's Block, Charlottetown, P.

(Signed)

To Louis Henry Davies and William Welsh.

Reading the petition, the copy of the receipt and this notice together, I think there was a full and substantial compliance with the statute, and there was at the time of the presentation of the petition security to the amount of $1,000 for the payment of all ctsts, &c., for each respondent. And as to the service, Mr. Davies swears:

H.

I, Louis H. Davies, of Charlottetown, Prince Edward Island, one of the members elected for the House of Commons for the electoral dis- I. That on Friday the first day of last past, A.D. I Now what does the statute say ? The petition must be served on the respondent within a certain time. Here we have a personal service 'on the respondent at the city of Ottawa, from whence the. writ issued for holding this election, and the place to which the writ was returned, and at the place where the Parliament was being held, the right to sit in which Parliament was by the petition brought in question.

We cannot ignore such a service and say that there was in fact no service at all on the respondent which he is called on to answer.

I am of opinion that these appeals should be dismissed.

As to the deposit I quite agree with what has been said by the Chief Justice.

The officers mentioned in the statute are the clerk the peace and the prothonotary. In Prince Edward

Island, there is a deputy prothonotary not appointed by the principal prothonotary but by the judges. The money was paid to a person who was an officer of the court, who has authority to receive money ordered to be paid into court, and it is now subject to the control of the court. The objection is a purely technical one. , and I see no reason why we should not say that the deputy prothonotary was a proper officer to receive it just as much as if he had been appointed by the principal prothonotary

This objection therefore fails.

I also think, after consideration, although at the argument I took a narrower view, that when the legislature speaks of the service of an election petition within the -jurisdiction it means to authorise service anywhere within the jurisdiction of the Dominion Parliament.

These petitions are not personal actions, but more properly actions in rem. Their object is to oust a party from office and therefore these proceedings strong although sui gener's'are still in the nature of proceedg p ings in rem, and I cannot think after the view taken by this court and by the Privy Council in the case of Valin v. Langlois that such a narrow construction should be given to these words.

In the 10th section it is provided that:

I do not think that parliament ever intended that a member while attending to his duty in parliament should be considered as exempt from service. Without some extraordinary reason to limit the service to certain parts of Canada would be to split up the act, and I therefore agree with the Chief Justice in saying that we should read the words of the section as meaning personal service within any place 'in Canada, and not within the limited jurisdiction of the court or judge appointed to hear the petition.

It would be going back to a practice much more narrow and technical than that which prevailed when election petitions were tried by committees of the House; and the transfer of the jurisdiction to the courts was certainly intended rather to amplify than to abridge the former remedy. The appeals must be dismissed. J.-La validit6 de l'6lection des appelants a 6t0 attaqu6e par une ptition, dans laquelle tous deux sont assign~s comme d6fendeurs.

Ce proc6d6 est permis par la section 8 de l'acte des elections contestes d~clarant que plusieurs candidats pourront subir leurs prochs en m~me temps sur une seule p6tition,-mais que pour le cautionnement et toutes les autres fins de 1'acte, la p6tition sera consid6r6e comme une p6tition distincte contre chacun des d6fendeurs.

La section d~clare qu'au temps de la pr~sentation de la p6tition, un cautionnement sera donn6 par le p6titionnaire, pour le paiement des frais qui seront payables an membre dont 1'6lection est contest6e; que ce cautionnement consistera dans le d6p6t de mille piastres entre les mains du greffier de la cour qui en donnera un recu qui sera une preuve suffisante de cc d6p6t. Ce requ est en la forme donn6e ci-haut (1), et est sign6 William A. Weeks, Deputy Prothonotary, pour la somme de deux mille piastres en argent de la

Puissance, (in legal tender of the Dominion of Canada,) comme cautionnement sur la p6tition de William Hennessy, produite contre 1'61ection de Louis Henry Davies et William Welsh, comme membres de la Chambre des

Communes pour le district 6lectoral de Queen.

Les appelants font objection A cc d6p6t d'une somme de $2,000 en bloc, et pr6tendent qu'il aurait 6tre fait en une somme de $1,000, pour chacun d'eux pour leurs frais respectifs.

L'avis de presentation de la p6tition, du d6p6t, du cautionnement que l'on trouve au dossier ne peut laisser de doute sur la destination de cc d6p6t; il n'est pas fait pour l'usage commun des d6fendeurs, il est au contraire fait sp6cialement de la somme de $1,000 pour chacun des d6fendeurs en argent 16gal de la Puissance en la manidre suivante:- YOL. XX.]

E.

Cet avis prouve. clairement que le d6p6t a t fait, suivant le statut, de mille piastres pour chacun des Fournier J.d~fendeurs, en tout $2,000, ce qui 6tait suffisant pour le nombre des d6fend6urs.

Ces derniers reconnaissent avoir requ cet avis.

Une autre objection c'est que le dip6t n'a pas 6t6 fait entre les mains de l'officier indiqu6 par le statut, que le d6put6 protonotaire n'est pas le "'Clerk of the Court " mentionn6 dans le statut, et qu'un d6p6t entre ses mains n'est pas fait suivant la loi. Cette pr~tention n'est pas fond6e.

L'acte d'amendement A l'acte des 6lections contest6es, ch. 7, 50-51 Vict., dit que 1'expression " the Clerk of the Court," signifie entre autres choses "le protonotaire " et 1'acte d'interpretation, Stat. Rev. Can., ch. 1, sec. s.s. 40, declare entre autres choses que:- Par les 4e et 5e objections les d6fendeurs se plaignent que l'avis de pr6sentation de la p6tition et de d~p6t du cautionnement avec copie de la petition ne leur ont pas 6 signifies 16galement, que la signification leur a 6t faite & Ottawa, en dehors des limites de la juridiction de la Cour. Je ne crois pas qu'il soit n~cessaire pour la d6cision de cette question d'entrer dans l'examen de la manibre d'apris laquelle la signification de ces documents aurait pu 6tre faite d'apres la loi de 1'lle du Prince-Edouard on d'apris les r~gles de pratique faite par la Cour Supreme de 1'le A ce sujet en vertu de 1'acte des 6lections contest6es.

Pour que cette signification soit 16gale il suffit qu'elle ait 6t6 faite en la manibre indiqu~e par l'acte d'61ection. O'est sans doute pour obvier aux difficult~s qui pourraient tre caus6es par les differents modes de signification adopt~s dans chaque province, que 1'acte d'6lections contest~es en indique un qui pent 6tre adopt6 sans difficult6 dans toute la Puissance. C'est celui dont paTl la section de 1'acte des 6lections contest6es,- J. le service personnel on au domicile.

Il est dit dans la dernire partie de cette section que si le service ne pent tre fait soit personnellement, soit h domicile, qu'alors la cour on un juge peut ordonner qu'il soit fait d'une autre maniere, A la demande du p6titionnaire. Cette disposition considare comme suffisante, la signification personnelle ou domicile et ne d6cr te le recours A une autre manibre que lorsque le service n'a pu 6tre fait de l'une de ces deux maniares.

C'est donc un fait d~cr&t6 que le service personnel ou A domicile sera 16gal, sans recours A l'autorit6. du juge ni a, aucune autre formalit6.

Cette disposition devant avoir son effet dans toute la Puissance, il s'en suit que la signification personnelle faite aux d6fendeurs, en la cit6 d'Ottawa, est parfaitement ligale.

Les autres objections concernant la juridiction et la forme de la p6tition ne sont pas fond~es non plus. Tous. les faits qui, d'apris le statut, doivent 6tre all6gubs l'ont t6 et la p6tition est dans la forme voulue. Toutes les objections sont renvoy~es.

GWYNNE and JJ., were also of opinion that the appeals should be dismissed.

Appeals dismissed wuith costs.