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A FURTHER RETURN To an Address of the Legislative Assembly for copies of all correspondence with the… British Columbia. Legislative Assembly 1878

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 41 Vic. Further Correspondence—Acts of 1877. 699
A FURTHER RETURN
To an Address of the Legislative Assembly for copies of all correspondence with,
the Dominion Government respecting the Acts of last Session.
By Command.
A. C. Elliott,
Aitorneij-Ceneral.
Attorney-General's Office,
Wth March, 1878.
1 he Secretary of State to the Lieutenant-Governor.
Ottawa, 2nd March, 1878.
Sin,—I have the honour to transmit to you herewith, for the consideration of your
Government, a copy of an Order of His Excellency the Governor-General in Council,
and of tho Report of the Honourable the Minister of Justice therein referred to, upon
two Acts pnssed by the Legislature of tho Province of British Columbia in the Session
of 1877, which had not been reported on, viz.: Chap. 22, "An Act to provide for the better
Administration of Justice," and Chap. 24, "An Act to consolidate the Laws relating to
the Legal Professions in this Province.'
I have, etc.,
(Signed) E. W. Scott.
Copy of a Report of a Committee of the Honourable the Privy Council, approved by His
Excellency the Governor-General in Council, on the 28th day of February, 1878.
The Committeo have had under consideration a Eeport, dated 21st February, 1878,
from tho Honourable the Minister of Justice, upon two Acts passed by the Legislature
of British Columbia in the Session of 1877, which have not yet been reported upon,
namely, Chapter 22, "An Act to provide lor the better Administration of Justice,"
Chap. 24, "An Act to consolidate the Laws relating to the Legal Professions in this
Province;" and on the recommendation therein submitted, they advise that Chapter 24
of tho said Acts be left to its operation; and with reference to Chapter 22, that the attention of the Lieutenant-Governor be called to tho remarks contained in said Report, and
that ho bo asked to request his Government to promote, at the present Session of the
Legislature, tho repeal of the section therein alluded to; and that, unless the section be
repealed before tho time for disallowance of tho Act expires, the Act be disallowed.
Certified,
(Signed) W. A. Himsworth,
Clerk Privy Council.
Department of Justice,
Ottawa, 21st February, 1878.
I have now the honour to report upon two Acts passed by the Legislature of British
Columbia in the Session of 1877, which have not yet been reported upon, namely:—
No. 22. "An Act to provide tor tho better Administration of Justice."
This Act comes into operation only upon the proclamation of the Lieutenant-
Governor in Council, published in the British Columbia Gazette. It has not, as far as I
can ascertain, been yet proclaimed.
It establishes County Courts for certain districts in the Province, and provides by
Section 9 that each Court shal  be holden before a Judge to be called the " Judge of the 600 Further Correspondence—Acts of 1877. 1878
County Court of " (as the case may be).    That each such Judge shall be appointed
by the Governor-General of Canada, and shall hold office during the pleasure of the
Governor-General.
Upon this provision I may remark that in other Provinces where County Court
Judges have been appointed the tenure of their office has been declared to be during
good behaviour, but in the present state ot the County Courts in the Province of British
Columbia it is probably better that the Judges of the County Court should, as declared
by this Act, bold office during the pleasure of the Governor-General.
The only other provisions of this Act which calls for special remark is Section 27,
which is as follows, viz.: "And whereas the Governor-General of Canada, on the 27th
" day of April, 1871, referred tho question of retiring allowances of certain officers in
"British Columbia to the decision of Her Majesty's Secretary of State (or tho Colonies,
"who on tho 3rd day of June, 1871. gave his decision, stating that the present incumbents
"of the County Court Bench should not be removed unless and until they received from
" the Dominion Government either suitable employment of at least equal value or an
" annual allowance of two-thirds of five hundred pounds. Therefore it is provided that
" tho present incumbents of the County Court Bench shall not be removed except on the
"terms aforesaid, for the purpose of appointing professional men."
One of tho provisions in the terms agreed upon for the confederation of the Province
of British Columbia, is as follows: —
" Suitable pensions, such as shall bo approved of by Her Majesty's Government,
" shall bo provided by the Government of tho Dominion for those of Her Majesty's ser-
" vants in the Colony whose position and emoluments derived therefrom would be affected
" by political changes in the admission of this Colony into tho Dominion of Canada."
It seems to bo necessary to a proper understanding of the position of the present
incumbents of tho County Court Bench to refer to tho documents connected with the
question of retiring allowances ot certain officers in British Columbia, including the
County Court Judges, in respect of which communication was had with her .Majesty's
Secretary of State for the Colonies.
On the 6th February, 1871, tho Executive Council of the Province of British
Columbia passed a Minute which was transmitted to the Governor-General of Canada by
Governor Musgrave, of British Columbia, by despatch of the 9th February, 1871. This
Minute of Council refers to the cases of—
L The Colonial Secretary.
2. The Attorney-General.
3. The Commissioner of Lands and Works.
4. The Collector of Customs.
5. The Auditor-General.
6. The six Stipendiary Magistrates,
" and states " that the Committee gather that tho Canadian Government are prepared to
"rotain tho officers Nos. 3 to 6 in their present situations or similar ones."
The Minute further states that "inasmuch as by the Minute of the Privy Council
"of Canada, two-thirds of the present emoluments have been mentioned, the Committee
" would suggest thatasum not exceeding two-thirds of the actual salary of the officer
" should be fixed in order to compensate such officer for any other emoluments of which
" he might be deprived, namely: —
" Colonial Secretary £600 per annum.
" Commissioner of Lands and Works   600 „
"Six Stipendiary Magistrates  350 „
"Auditor General    350 „
On the 26th April, 1871, a Report from tho Honourable the Minister of Finance,
dated 24th April, 1871, upon the subject, was approved by the Governor-General in
Council, and tho recommendations therein submitted adopted. This Report was made
upon a despatch from Governor Musgrave, dated 9th February, 1S71
The Minister of Finance in his Report dealt with the cases of the several officers
in the employment of the British Columbia Government.
As to the case of Stipendiary Magistrates the Minister remarked, "It appears that
"no difficulty exists as to the Stipendiary Magistrates who are to continue to serve at
"their present salaries," and in concluding his Report the Minister recommends that
the papers and despatches boaring upon the subject should be transmitted to Her 41 Vro. Further Correspondence,—Acts of 1S77. 601
Majesty's Principal Secretary of State for the Colonies, "with a request that Her
"Majesty's Government will docido how the office)s in British Columbia are to bo dealt
" with under the sixth section of the terms of Confederation with British Columbia."
On the 27th April, 1871. tho Governor-General accordingly transmitted to tho Secretary of State for tho Colonies the papers referred to, and on the 3rd June, 1871, tho
Secretary of State replied, and in reference to the Stipendiary Magistrates wrote as follows:-—" Your Pr.vy Council remark that no difficulty appears to exist as to the Stipen-
" diary Magistrates who are to continue to serve at their present salaries.
'■ I understand from this that.your Government concur in and accept the proposals
"of Governor Musgrave as contained in paragraphs ?> to 8 of bis despatch, .No. iiO, of
"22nd November lust, and that whenever, from any cause, any of them ceases to hold
" his piesent employment, he will receive either suitable employment of at least equal
"value, or an annual allowance of two-thirds ot £500.
"I do not, however, consider that the Stipendiary Magistrates havo the same claim
"as the other superior officers of the Government, to the option of retiring at present
" upon a pension.
" I look upon them, to use Governor Musgravc's words, 'as a class apart' whose
"position is not necessarily affected by political changes on the admission of British
" Columbia into the Union."
It will be observed that the recital in the section now under consideration as to the
decision of the Secretary of State for tho Colonies is inaccurate, and were the section
in providing "that the present incumbents of the County Court Bench should not be
"removed except on the terms aforesaid, for tho purpose of appointing professional
"men" within the powers of the Provincial Legislature, the inaccuracy in the recital of
the decision of the Secretary of State for tho Colonies, would be a sufficient reason for
disallowing the Act were it not amended; but lam of opinion that the enactment is
ultra vires of the Provincial Legislature, inasmuch as it assumes to limit the power of
the Dominion Government in respect of the retirement or removal of officers appointed,
paid by, and holding office during the pleasure of the Government of Canada.
I say nothing as to the implied want of confidence in the good faith of the Dominion
Government contained in the section, as it is unnecessary to deal with it upon that ground.
I recommend that the attention of the Lieutenant-Governor bo called to these
remarks, and that he bo asked to request his Government to promote at the present
Session of the Legislature the repeal of the section. I recommend, further, that unless
the section bo repealed before the time for disallowance of the Act expires, the Act be
disallowed.
Chapter 24, "An Act to consolidate the Laws relating to tho Legal Professions in
this Province."
Tho provisions of this Act places certain restrictions which did not prevoiusly
exist upon tho admission of Barristers and Attorneys to practise in the Courts of tho
Province, and although the wisdom of these restrictions in the present limited state of
the legal profession in British Columbia may bo questioned, yet, as the subject matter of
the Act comes within the Legislative authority of the Provincial Legislature, the power
of disallowance could not properly be exercised in respect of the Act, unless some
Dominion interests were prejudiced thereby.
The only way in which it could be said that Dominion interests would be prejudiced
by the Act, would be in reference to tho appointment of Judges to the Courts of the
Province, if those Judges had to be selected from the Bar of tho Province.
After carefully considering the provisions of the British North America Act, as
made applicable to British Columbia by the terms upon which that Province entered
Confederation, I am of opinion that the selection of Judges for British Columbia is not
confined to the Bar of that Province.
This, no doubt, was the opinion of the Minister of Justice at the time that Mr.
Justice Gray, of the New Brunswick Bar, was appointed a Judge of the Supreme Court
of British Columbia, and such being the case, the Act appears to me to be one which
should be left fo its operation, and I recommend accordingly.
(.Signed) Z. A. Lash,
I concur, D. M. J.
(Signed) R. L.
M.J.

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