Majority
OF
THE
- CITY OF STE. CUNRGONDE DE
APPELLANT; *Dec. 9.
MONTREAL (DEFENDANT)..
.....
AND
J.
(PLAINTIFFS) ...........................
E
ON APPEAL FROM THE COURT OF QUEEN'S BENCH FOR LOWER CANADA (APPEAL SIDE).
Judgment of the Court
THE CHIEF JUSTICE:-The respondents, who are municipal electors of the City of Ste. Cun6gonde, by a
Jur.
so
SUPREME COURT OF CANADA.
[VOL. XXV. petition to the Superior Court ask to have annulled Ta by-law 73 passed by the City Council in regard to the CIrOFsTE.imposition of taxes for the construction of a certain drain, so far as it affects the petitioners and their pro- GOUGEON..
perties.
The Chief
This petition was presented pursuant to article 310 of the city's special Act of incorporation (53 Vic. ch. 70) which is as follows:
Any municipal elector may, in his own name, petition presented to the Superior Court, demand and obtain, on the ground illegality, the annulment of any by-law, resolution, assessment roll or apportionment; but the iight of demanding such annulment prescribed by two months from the date of the passing or completion of such by-law, resolution, assessment roll, or apportionment in the terms of article ; and after that delay every such by-law, resolution, assessment roll or apportionment shall be considered valid and binding for all purposes whatsoever, provided the subject matter thereof be within the competence of the corporat ion.
The Superior Court (Doherty J.) annulled the bylaw upon certain grounds which, in view of the way in which the matter comes before this court, it is unnecessary to specify.
The City of Ste. Cunegonde then appealed to the Court of Queen's Bench and that court, holding that it had no jurisdiction to entertain the appeal, quashed it with costs.
The consid6rants of the judgment of the court are as follows:
Considering that the procedure in this cause commenced petition to the Superior Court under the special provision of section 310 of the charter of the said City of Ste. Cunigonde, Vic. (Que.).
And considering that section 439 of the Town Corporations Act, Vic. which is applicable to the said special Act of incorporation of the said City of Ste. Cundgonde, expressly prohibits any appeal from a judgment of judge of the Superior Court in procedure taken under said Act.
The appellants thereupon a pplied to the registrar in chambers for leave to give security in appeal under section 46 of the Supreme and Exchequer Courts Act, which application was granted, the registrar being opinion that the nature of the proceeding was similar to the one taken in Webster v. Sherbrooke and not to be distinguished from it. the petition in that case having been filed under sec. 4389 R. P. Q. which is identical in words with the first part of sec. 310 of the
Act of incorporation of the appellants, and that therefore, so far as the mere right of appealing to the
Supreme Court was concerned, the case came within sec. 24 (g) of ch. 135 R. S. C.
Sec. 4389 R. P. Q. is as follows:
But the respondents have now moved to quash the appeal, 1st. because the appeal will not lie under sec.
24 (g) of the Supreme and Exchequer Courts Act, and
2nd, because the Court of Queen's Bench was correct in holding that it had no jurisdiction, and that therefore no appeal would lie to this court, inasmuch as all appeals from the province of Quebec must, with the exception only of certain appeals from the Court of
Review specially provided for, come to this court fronm the Court of Queen's Bench, and be appeals in which that court at least entertained jurisdiction, and not in which, upon good and valid grounds, it has declined jurisdiction.
I think the motion should be granted upon this.
second ground, which was one with which the registrar very properly did not deal.
The question to be decided is: Was the Court of
Queen's Bench right in holding article 439 of 40 Vic.
ch. 29 applicable to the special Act of incorporation of the appellants ?
That article is as follows
THE
No appeal shall lie under the provisions of this Act from any STE.judgment rendered by any judge of the Superior Court, respecting municipal matters.
Section 1 of that Act provides as follows:
The Chief
The provisions of this Act shall apply to every town, corporation or municipality which shall hereafter be established by the legislature of this province, and they shall constitute part of the special Act relative to such town, as to form with it one and the same Act, unless they be expressly modified or excepted.
And section 441 says :
This Act may apply to city corporations which shall in future be incorporated; and in such case the word "town"
shall be replaced by the word city " every time that the meaning of this Act, thus applied, shall require it.
These provisions were re-enacted in the Revised Statutes of the province of Quebec as follows : Art. 4178. The provisions of this chapter apply to every town corporation or municipality, established by the legislature this province, and unless expressly modified or excepted they constitute part of its charter.
The provisions thereof may also be applied to city corporations and in such case the word '"town " shall be replaced the word "city," whenever the meaning of this chapter, thus rendered applicable, shall require it.
4179. For any of the provisions of this chapter not to be incorporated in the charter, it must be expressly declared that such provisions, specifying them their numbers, shall not form part thereof. Art. 4614 (the article respecting appeals) is as follows:
No appeal lies under the provisions of this chapter, from any judgment respecting municipal matters rendered by any judge of the Superior Court.
Mr. Justice Hall, in delivering the judgment of the 'Court of Queen's Bench says:
Section 439 of that Act (The Town Corporations Act4614 R.S.P.Q.) not having been excluded from the Ste. Cungonde charter is therefore to be read as forming a part of it. The procedure in this case, viz., the petition to the Superior Court by municipal electors, is nota com- This I adopt as a correct statement of the law applicable to the case.
As has been correctly contended by the counsel for the respondents, inasmuch as under-the Supreme and Exchequer Courts Act and amendments thereof, no appeals can be brought to the Supreme Court from any court in the province other than the Court of Queen's Bench, with the exception of appeals from the Court of Review in certain cases, which do not include the present, and as the appeal in the present case did not lie to the Court of Queen's Bench, and that court properly refused to entertain jurisdiction therein, it follows that no appeal will lie to this court.
That the provincial legislature may limit appeals to the Court of Appeal of the province must be admitted, although the effect of so doing may be take away in such cases a further appeal to the Supreme Court. And if called upon to express any opinion on the point, I should say that it is not to be regretted that a limit should be placed on appeals in municipal matters the kind in question here.
The motion to quash is granted with costs.
Appeal quashed with costs.
Statutes and regulations cited
-
Unresolved citations
- section 310
- section 439 of the Town Corporations Act
- section 46 of the Supreme and Exchequer Courts Act
- Section 1
- section 441
- Section 439