Judgment of the Court
JUSTICE.-This is an application for leave to appeal from a judgment of the Supreme Court of Alberta en bane, the highest court of final resort in the province. The two questions to be determined are: Have we jurisdiction to grant the application? and, Is this, assuming that we have jurisdiction, a proper case in which to grant the leave asked for ?
The "Supreme Court Act," section 37, enacts that an appeal shall lie on special leave, to this court, from any judgment of the highest court of final resort in the provinces of Saskatchewan and Alberta when the action, suit, cause, matter or other judicial proceeding has not originated in a superior court. The proceedings here originated in an application made by Andrew Finseth, the appellant, before Mr. Justice Harvey in July, 1910, for the cancellation of a retail liquor license granted to the Ryley Hotel Company, Limited, under section 57 of the "Liquor License Ordinance." The first question to be decided is: Was this a judicial proceeding within the meaning of that section ?
The sections of the Alberta Acts to be referred to are sub-section 15, section 2 of the interpretation clause of the "Liquor License Ordinance" and sections 2 and of chapter 7 of the statutes of 1908(1). The judge to whom the application was made is the judge of the Supreme Court usually exercising jurisdiction in the judicial district in which the license district is situate, and the inquiry lie was called upon to make was really a judicial inquiry. He could not properly exercise his discretion -without hearing all the parties interested and lie was obliged to bring to the performance of the duties assigned to him a judicial mind so as to determine what was fair and just in respect of the matter under consideration.
Further the statute which provides for the enforcement of any order that may be made granting or refusing the application gives to the judge the same jurisdiction as a judge the court to which he belongs; and his order, when made and filed in the office of the clerk of the court, becomes an order of the Supreme Court enforceable in like manner and by the like process, and from that order there is an appeal to the court en banc (section I can entertain no doubt, therefore, that this is a judicial proceeding.
See per Lopes L.J., in Royal Aquarium and Summer and W1inter Garden Society v. Parkinson (1).
I am also of opinion that this is a proper case in which to grant leave.
The appeal to the provincial court of appeal was limited to the question whether or not the judge to whom the application was made in the first instance had jurisdiction under section 57 of the "Liquor License Ordinance" to investigate and try the complaint.
The majority of the court en bane delivered judgment allowing the appeal.
The party moving here contends that the majority of the court overruled the unanimous judgment of three judges of the same court on the same point in another case. (In Re Richelieu Hotel License(2).) In view of this difference of opinion in the court below, we grant this motion, as it is desirable in the public interest that the point raised on this appeal should be definitely and finally settled.
J. (dissenting).-I do not look upon this case as one where special leave to appeal should be granted.
I think it was intended that proceedings of the nature in question in this case should be summary. Motion granted.