The Municipality of Lunenburg v. The Attorney-General of Nova Scotia

Sir W. J. RurCHIE C.J.-Are the defendants, appellants, in this case not endeavouring indirectly to do they have no legal authority to do directly, viz., to change the shire or county town of the county of Lunenburg from the town of Lunenburg to the town of Bridgewater ? I think the new county court house and jail should not be erected in Bridgewater until the RitchieC.J. legislature has authorized the change of the place for the transaction of the judicial business of the county from Lunenburg to Bridgewater; and until such legislative action, in my opinion, the county court house and jail cannot be erected elsewhere than in Lunenbuig. Therefore I think the judgment of the Supreme Court of Nova Scotia right and the appeal should be dismissed.

J.-I am of opinion that this appeal must be dismissed with costs.

J.-I am of the same opinion.

I think there is nothing in the appeal.

GWYNNE J.-Long prior to the year 1863 the town of Lunenburg was by divers acts of the legislature of the province of Nova Scotia established as the county town of the county of Lunenburg, and the place where the court house and jail for the county were erected and where it was enacted that the sessions of the Supreme Court of the province should be held.

In 1863 the township of Chester which constituted a part the county of Lunenburg was by ch. 52 of the acts of the legislature of that year erected into a separate dis-. trict municipality for certain purposes having a General

Sessions of the Peace with the same powers as if it were a separate county, but it was enacted that the district should contribute and pay annually one-fourth part of the sum necessary in each year for the county jail and court house and all expenses connected therewith and with the administration of justice, and it was further expressly enacted that nothing in the act should be construed to exempt the inhabitants of the district from serving as jurors " at the Supreme Court at Lunenburg."

At this time the town of Lunenburg G where the said jail and court house were erected and where the sessions of the Supreme Court for the county were required to be held was an unincorporated town situate within the county of Lunenburg. In 1879, by an act of the legislature of that year now embodied in ch. 56 of the 5th series of the Revised Statutes enacted in 1884, the inhabitants of the district of Chester were declared to be a body corporate under the name of the municipality of the district of Chester and the inhabitants of the residue of the County of Lunenburg to be a body corporate under the name of the municipality of Lunenburg. In 1885, by chapter 72 of the provincial statutes of that year, the inhabitants of the said town of Lunenburg, within the limits in the act defined, were declared to be a body corporate under the name of the town of

Lunenburg for municipal purposes, and it was thereby enacted that the said town thereby incorporated the cost of maintaining in the county jail all prisoners committed E to jail by sentence of the stipendiary magistrate of the town or committed to jail under process out of the municipal court-an amount equal to the cost of maintaining all paupers chargeable to the town who shall be maintained in any poor house or like institution supported by the funds of the county, and its proportion of county school rates under the provisions of ch. 29, Revised Statutes. In. the following year the legislature by ch. 27 of the statutes of 1886, passed in amendment of ch. 58 of the Revised Statutes, 5th series, made provision for ascertaining and determining the amounts in each Gwynne j. year payable by all incorporated cities, towns and districts within the limits of a county municipality for county purposes, and for levying such amounts in case of default in levying any of them being committed by any of such incorporated cities, towns or district municipalities.

Section 1 of ch. 20 of the Revised Statutes, 5th series, enacted that :

County or district jails, court houses and session houses may be erected and repaired by order of the municipal councils in the respective municipalities.

By way of amendment of this section it was enacted by ch.

11 of the statutes of 1886 that the -word " established " should be inserted between the words " be" and " erected," making the section read

County or district jails, court houses and session houses may be established, erected and repaired by order of the municipal councils in the respective municipalities.

We are called upon now not to give an exhaustive meaning to the word " established " as thus here introduced; that would perhaps be a very difficult task; but we are called upon to determine whether, by the introduction of that word, the municipal council of the municipality of Lunenburg are empowered to repeal in effect the statutes of the legislature which had established the jail and court house for the county in the town of Lunenburg in which court house the sessions of the Supreme Court for the county are by statute required to be held; and by erecting a jail and court house in a different part of the county to establish such place as the county town and the place where the jail and court house for the county should in future be maintained, and at the same time to hold the district of Chester and the town of Lunenburg liable to contribute to the erection and maintenance of such jail and court house in the same manner as they had been obliged to do by the provisions of the statutes which had subjected them to liability in relation to owynne the jail and court house which the legislature had located in the town of Lunenburg.

I cannot concur in the contention that the ch. 27 of the acts of 1886 is open to any such construction.

We cannot upon such language as is used in that act attribute to the legislature an intention to vest in a municipal council power at their pleasure to repeal, alter, modify or annul acts of the legislature in such a manner. It may be that Bridgewater is a much better place than Lunenburg for the site of the jail and court house for the county, but that is a matter for the legislature expressly to determine and at the same time to say whether the district of Chester and the town of Lunenburg should be subjected to the same liability as to the jail and court house if Bridgewater should be made the county town as they were subjected to while they were maintained at the town of Lunenburg. That neither the municipal council of tne county nor the legislature entertained the idea that the chap. 27 was open to the construction now contended for on behalf of the municipality of Lunenburg appears from the following circumstances in the evidence laid before us.

On the 22nd January, 1891, the council of the municipality passed the following resolution:- Whereas this council has passed a resolution that they would with the co-operation of the town council of Lunenburg and of the municipal WARDEN council of Chester take steps to build a court house and jail at as early a date as possible: Therefore resolved, that a committee three be appointed to obtain information in regard to the kind of MUNICIPA- building or buildings suitable.

Also respecting the cost of the same and the best site for the same, and submit to the council such information at the next semi-annual or special session.

This committee to THE co-operate with a committee to be appointed by the town council for the same purposes.

NOVA

It was then moved and passed that- - Mr. Chesley draft a bill to borrow money and present for approval Gwynne J. at evening session.

Accordingly at the evening session of that day, as appears by the minutes of the council,

Mr. Chealey read bill prepared to be presented at the ensuing sion of the local legislature, to enable this municipality to borrow a sum of money not to exceed twenty thousand dollars for the building of a new court house and jail for the county of Lunenburg, and it was thereupon moved, that the bill so read should be placed in the hands of the municipal clerk to be cortified and forwarded to the Provincial Secretary.

The session of the legislature commenced on the 2nd day of April, 1891, and the bill so prepared was introduced and upon the 19th day of May became law by an act passed that day intituled " an act to enable the municipality of Lunenburg to borrow money for a court house," whereby the council of the said municipality was empowered to borrow a sum of money not exceeding $20,000 upon debentures to be issued under the act- For the purpose of erecting and furnishing a court house and jail for the county of Lunenburg, or repairing and improving the present court house in said county.

And for the purpose of paying the principal and interest of the debentures to be issued under the act, it was enacted that :

The municipality of Chester and the town of Lunenburg shall respectively contribute towards the sums required to pay off the principal Now, if the municipal council had the power now insisted upon under the ch. 27 of the act of 1886, erecting the court house and jail Bridgewaterwholly irrespective of the above act, for the municipality now say that they are not at all proceeding under this act, there would have been no occasion for the procuring the passage of the above act. While the above bill was before the legislature, and shortly before it was passed into an act, the council of the municipality

Lunenburg, not in co-operation with the municipalities of Chester and the town of Lunenburg, but in despite of and against the remonstrances of those municipalities, upon the 7th May passed a resolution that the new court house and jail should be built at Bridgewater. It was argued that the municipality

Lunenburg had at any rate the right under that resolution erect local municipal court house and jail, but the order for the injunction granted by the

Supreme Court does not interfere with their doing so.

All that it prohibits is the erecting or causing to be erected a court house and jail for the general county business for the county of Lunenburg at Bridgewater, and it restrains and enjoins the defendants from expending or causing to be expended in the erection of a court house and jail at Bridgewater, any funds in which either of the municipalities of the district of

Chester or of the town of Lunenburg is interested.

The order and the injunction issued thereon must, in my opinion, be maintained and the appeal must be dismissed with costs. Further legislation must, in my opinion, be obtained before the council of the municipality of Lunenburg can attain the object which manifestly they have been endeavouring to attain by the course which they have pursued, namely, the removal of the county town and the court house :ind gaol for the county and the sessions-of the Supreme Court from Lunenburg to Bridgewater.

J. concurred.

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J