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JUDGMENT--BARNARD V. WALKEM.
Sessional Papers of the Province of British Columbia
British Columbia. Legislative Assembly
application/pdf
43 Vic. Judgment—Barnard v. Walkem. 429 IN EQUITY. IN THE SUPREME COURT OF BRITISH COLUMBIA. Before the Honourable the Chief Justice, Hon. Mr. Justice Crease, and Hon. Mr. Justice Gray. Judgment—F. S. Barnard, Plaintiff, vs. G. A. Walkem, Defendant. C J. This matter now stands for judgment on the application for an interlocutory order upon the defendant to restrain him from sitting and voting in the Legislative Assembly. The defendant has already demurred to the bill for want of interest in the plaintiff, and that demurrer has been overruled in the usual way. The plaintiff now moves on notice for an interlocutory injunction, and evidence has been taken, the most important part of which is the statement of the defendant himself, whose examination has been reduced to writing. The jurisdiction is, so far as I am aware, entirely novel, being founded on tho 9th section of tho British Columbia Statutes of 1879, No. 9.—(: The Court, or a Judge, may "restrain from sitting or voting in the Legislative Assembly any person elected to or " sitting or voting in the said Assembly contrary to the provisions of this Act." Section 1 declares that "No person accepting or holding any office, commission, or employment, "permanent or temporary, to which an annual salary or any fee, allowance, or emolu- "ment, or profit of any kind or amount whatever from the Dominion of Canada is "attached," shall be eligible to, or sit or vote in, the House of Assembly. Section 2 contains a similar declaration of incapacity as to any person undertaking any "contract" or "agreement" with respect to the public service of the Dominion, or under which Dominion money is to be paid for any service or work. Section 10 provides that "the "words 'contract' and 'agreement' in this Act .... shall not apply to a mere isolated "and single instance of ordinary work done, where immediate payment therefor respectively " is intended to be made." It was strenuously urged at the bar that this exemption extended to the "employment, &c, permanent or temporary," mentioned in sec. 1, even though no immediate payment was made or contemplated, and was not confined to the words "contract or agreement" mentioned in sec. 2 and the other dependent sections. But as this is completely contrary to the plain meaning of common English words, and to the grammatical construction of the sections, the suggestion can only be noticed to be overruled. The bill is filed by F. Stillman Barnard, a duly registered voter in Victoria. It alleges an arbitration case, discussed and debated at considerable length—viz., on 36 days in all, during July, August, October, and November last, in Victoria, and also on several days in January and February last, in Toronto and Ottawa,—in which one Mr. F. Jones Barnard claimed damages against the Dominion in respect of the non-fulfilment of a contract concerning the public works of the Dominion,—viz., a telegraph line in the Kamloops district. Tho bill avers that the Dominion Government employed the defendant, who is a Barrister-at-Law, to appear before the said arbitrator and defend the said Government against the said claims; that the defendant did so appear and defend them at Victoria, Toronto, and Ottawa; and that he, in undertaking the said service for the Dominion, did hol.d and accept a temporary office and employment to which fees, emoluments, or profits of some kind or another are attached; that the defendant, at the time of his accepting such employment, &c, was a member of the House of Assembly here, and also, and that he still is, Attorney-General and Chief Commissioner of Lands and Works in the Provincial Government; and it avers that such acceptance by tho defendant vacated his seat, under sec. 6. The bill then prays that the defendant may be restrained, by the order and injunction of this Court, from sitting and voting in the House of Assembly until re-election, and for general relief. 32 480 Judgment—Barnard v. Walkem. 1880 The plaintiff has made an affidavit generally substantiating the statements in the bill, and speaking positively to having seen and heard him, the defendant, acting as Counsel in the arbitration on one day—viz., 26th November; and also to having seen and heard him sitting and taking part in the proceedings in tho House of Assembly here, on the 5th and 6th instant. Then there is an affidavit by Mr. Fell, the Clerk in the arbitration, who speaks to the defendant's having acted as Counsel. But the most important evidence is contained in the statement of the defendant, who has been examined and made a statement. It appears by it that he was requested by the Dominion Government (both by the Minister and Deputy Minister of Justice) to act as Counsel for the Dominion in the arbitration—whether before or after the commencement of that investigation does not appear. Nothing was said as to remuneration, i. e., I suppose at that time, for certainly communications respecting remuneration took place at one time or another, as mentioned by the defendant himself:— "I had a communication from the Dominion Government requesting me to act as " Counsel for them in the matter of the said arbitration. First, a private note from the "Minister of Justice; next, a communication from his deputy. The request was to see "that the claim was fully investigated; nothing was said with regard to remuneration. " I don't know how many days the investigation lasted. I subsequently went to Ottawa "in January, 1880, and the investigation was continued there by Attorneys appointed "by the Dominion Government, Messrs. O'Connor and Hogg. I appeared as Counsel " for the Attorneys, having positively refused to act for the Dominion Government, " which refusal was made to the Deputy Minister, who begged of me to attend to it as "he was going away. He called to see me, and I told him at the time that there was a "question raised about my acting as Counsel in British Columbia, and that I would not "wish to jeopardize my seat in the House by acting as Counsel for the Government and "taking fees from them. This conversation took place before I appeared for the " Attorneys, Messrs. O'Connor and Hogg. I believe both the Attorneys called on me "individually at different times, on the same or two successive days, and begged of me "to act for them as Counsel as they were completely in the dark in the matter, and as " evidence was voluminous and I must be well acquainted with it. They neither paid " nor offered to pay me anything, and I have since refused to accept what I thought " was fairly coming to me for acting for them, on the grounds again ' that I would not "like to jeopardize my seat in the House by accepting the money,' although I stated to "them in Ottawa that the Chief Justice of British Columbia had given his opinion in " Cariboo, in 1877, in the case of the Queen at the instance ot Houseman against Graham " and another for misdemeanour, that our local Act, with reference to employment by "the local Government, could not mean that a Counsel who should act for Attorneys in "a private prosecution could be considered as acting for the Crown, although the "Attorneys might be acting for the Crown and receive money from the Crown; and, " even further, that the private prosecutor might pay his Counsel and be recouped by "the Government if so ordered, and that in such a case the Counsel could not be said "to act for the Crown but for the private prosecutor; that under such circumstances it "would be monstrous and would debar gentlemen of the bar in the Province from "dealing with the Crown business at all if they had seats in the Assembly, and there- "fore work a positive injustice to public interests. Although I was a member of the "House I therefore undertook the prosecution, which was in the name of the Queen, " and was paid by Mr. Houseman, and after applied to have the fee repaid to Mr. House- "man out of the Treasury by order of the Court. The order was refused, because the " Chief Justice was not satisfied with the trial." As to what the defendant reports as having been said by myself in the case of the Queen against Graham, I retain the same opinion still. But it is to be remembered (a) that it was impossible for me then, or now, to give any decision on the point, for it was not then, nor is it now, in litigation or dispute. (6.) Our local statutes, which are supposed to apply to members of the local Assembly taking paid employment from the' local Government, are in very different terms from this Act of 1875, which deals with local members accepting employment from the Domiuion; the latter Act is very much more stringent, and there is very strong ground for arguing that the statutes which are supposed to forbid paid employment from the local Government do not apply at all to members of the present House of Assembly, (c.) Lastly, what I said in Graham's case had and could have practical reference only to the class of cases of which Regina v. 43 Vic. Judgment—Barnard v. Walkem. 431 Graham was one,—viz., private prosecutions. In such a case it does seem clear that the Attorney or Counsel is retained by the private prosecutor, and can only look to him for payment. The indictment, it is true, runs in the name of the Queen; but no pecuniary interest of the Crown is at stake, nor is the local Treasury in the least bound by such a use of the name of the Queen, who merely represents society. In a republic, prosecutions run in the name of the people, or the state; nor could the Attorney or Counsel in such a case ever raise the least shadow of a claim against the Treasury on the ground of their retainer. After the trial, it is true, the prosecutor may try and get an order from the Judge, upon the Treasury, to recoup to him (not to his Attorney) the expenses incurred by him in and about the prosecution. The prosecutor then acquires, by virtue of that order (which is not always made), a claim upon the Treasury (which is not always satisfied). By virtue of his retainer, his employment, the Attorney never has any shadow of a claim on the Treasury. The position of the parties is made clearer perhaps, by considering the English practice and statutes, upon which our own practice is based. In England, at the assizes, each Attorney's bill which the Judge may have ordered to be paid being taxed (including all payments to Counsel, witnesses, &c.,) and receipted, is produced to the County Treasurer," who pays the amount to the prosecutor out of the county rates. When the circuit is over, the County Treasurer in his turn presents an account of the sums paid by him on the whole assize, duly vouched, to the Treasury in Downing Street, who recoup to him such sums, under authority of a Resolution of the House of Commons (it used to be one-half only, but now the whole), out of a fund voted by the House annually for that purpose. In British Columbia there are no divisions into counties, and the payment may perhaps in most cases be made direct by the local Government Agent in each assize town to the prosecutor's Attorney, under the Judge's order. But the principle remains untouched. And I confess I do not see how holding a brief on an ordinary private prosecution at the assizes can, by any straining of words or of facts, be deemed to be the acceptance of employment under the Government of British Columbia. I shall only add, as the defendant has referred to it, that the reason why I refused to order Mr. Houseman (the private prosecutor in Regina v. Graham) to be recouped by the Treasury, was because I was not at all satisfied that the prosecution had been conducted bond fide. But all this is entirely aside from the present case. Employment in this arbitration was not so much of a different as of a contrary nature from holding a brief for a private prosecutor against a criminal. The question under the arbitration was entirely of a civil nature, in which the Dominion Treasury had a deep pecuniary interest. The fee on a brief on a private prosecution does not issue from the Treasury to the Barrister by virtue of the retainer, but is repaid to the prosecutor out of the Treasury by virtue of the Judge's order. But in this arbitration case, Counsel's fees and Attorney's costs justify a direct demand on the Treasury by virtue of the retainer alone. Mr. Walkem continues thus:— "I gave a further reason to the Attorneys, which was that in my position as "Attorney-General I would not for the sake of the money, which was $460, wish to sub- " ject myself, as a public man, to the constant attacks, though it might not be true that " I had evaded the law. The amount was refused unconditionally without any prospect " or arrangement, direct or indirect, as Messrs. O'Connor and Hogg will no doubt state, " of obtaining it. I made no charge for my services here, on account of the question " that was raised on the construction of the Act. I made no charge to any one or the " Dominion Government for what was done here. I went in with the business here as "instructed and never looked at the Act till it was nearly over; and I continued to " transact the business here, after looking at the Act carefully, under the belief that as " Counsel I did not come within its operation, as money if paid to a Counsel is paid as " an honorarium and not as a fee, and cannot be recovered, nor can he sue for it." Question—" Are you not the legal adviser to the Dominion Government with reference to the Dominion lands in this Province ?" Objected to by Mr. McCreight as being no part of the Bill. Mr. Walkem declines to answer. Question—"Were you not asked to undertake this duty subsequently to the closing of Mr. Barnard's arbitration?" Objected to by Mr. McCreight. No part of the Bill. Mr. Walkem declines to answer, 432 Judgment—Barnard v. Walkem. 1880 " I have never been appointed to any position, or promised any position, as a reward " for my services in the arbitration. I voluntarily submitted to the loss of my time in " Victoria, rather than run the gauntlet of losing my seat. The Minister of Justice, after " stating that there might be a question in our local Act, although he believed it would " not reach Counsel, still thought it was better, and approved of my proposal that it should " be definitely understood that no agreement for payment of services of Counsel ren- " dered in Victoria had been made at any time, as he would like to state in the House " of Commons, if asked the question, that nothing had been paid or agreed upon to be "paid, and that all claims had been waived, lest I should lose my seat in the House of " Assembly. Tbe question of payment in the case never crossed my mind at first, " because I believed that like many other Dominion matters that I had acted in and not " been paid for, I thought it would last a short time, as I was informed that there was " no evidence for the Dominion Government, so that my position was more to check tho " examinations and the amounts sworn to. After it had gone on for some time, and I " had received further instructions for a full investigation, I certainly did anticipate that " as Counsel I would be paid, and it was.in consequence of what I have stated I gave up " all idea of payment. I have acted since 1873 as Counsel for the Dominion Government " except, I think, during one period when Mr. Richards may have acted. I never re- " ceived from that Government, either directly or indirectly, any sum except one pay- " ment of $10 prior to the passing of the Act; and never sent in any account to the "Dominion of Canada for services rendered, to the best of my knowledge and belief. "Lest there should be any misunderstanding about this, I have to state that the Marine " and Fisheries Department, shortly before 1 left for Canada in December last, asked me " to advise them about the temporary lease of a ways in a shipping-yard. I gave the " advice and made no charge for it, and told Mr. Harrison that as they wanted the "agreement drawn up and I wao ;.ot going to do Attorney's work, he might draw it up " himself and charge for it in his own account if he liked. This, I believe he did, and he " has received the money on his own account as he tells me. I make this statement lest " this amount—which he tells me is $15— should appear in any manner as having been " paid to me or my department. I do not know what work he did for the $15. Respecting " the $460 which I refused to accept from Messrs. O'Connor & Hogg, a large proportion " of it was for Counsel fee, to draw a special report on the legal points involved in the " Barnard arbitration case, which report I have not had time to make, and could not "therefore be paid for. I believe the Ottawa Attorneys must have dealt with the legal " points themselves. It had been settled that $100 would be a fair Counsel fee for a "special report, as the case was important and involved legal questions of a different " character in many of the items of the claim made. "Geo. A. Walkem." I do not think that anything can be more explicit than the last few paragraphs of this statement. It is perfectly clear that one item in the $460 was in respect of a special report in this arbitration case, which the defendant as Counsel for the Dominion had undertaken to make, but which he has not yet had time to make and could not therefore, he says, be paid for. The force of the " therefore" is not apparent. Counsel's fees are always in theory, and often in practice, handed in along with the instructions, whether to report on an abstract of title, to draw conditions of sale, to advise on a case, &c. Conveyancer's fees are often, for convenience of calculation, postponed till the draft is prepared, but that is where the fee is proportioned to the length of the draft. Here the amount of the fee for the report had been " settled " beforehand at $100. It is, inmy opinion, absolutely impossible to say that this is not an employment to which a fee of any kind or amount from the Dominion was attached. The services rendered by the defendant may be classed under three heads. 1st. Those in Victoria, from July to November last, as to which he took his instructions from the Minister direct. It is difficult to see as to these how tbe defendant can maintain the proposition (not that I think it important, but his advocate seemed to lay great stress on it) that he acted purely as Counsel. The test usually is that a Barrister, when acting purely as such, never takes instructions directly from the litigant himself, but always through the intervention of a Solicitor. In British Columbia, by the Statute of 1877, s. 18, any Barrister then on the roll (and the defendant was then on the roll) may, if he choose, act as an Attorney and charge accordingly. It is very possible, therefore, that as to his services in British Columbia, or some of them, the defendant has a right 43 Vic. Judgment—Barnard v. "Walkem. 433 to sue the Dominion. An Attorney's costs, it is true, are generally called costs and not fees, but they are clearly profits or emoluments attached to the employment, and which the employer bjr giving instructions binds himself to pay. 2nd. The services in Ontario, as to all of which the defendant appears to have acted purely as Counsel, properly speaking, i.e. always on instructions from Messrs. Hogg ;& O'Connor, and never on instructions direct from the Minister's office. It is true, the phraseology is peculiar; he says "I appeared as Counsel for the Attorneys, and refused to act for the Dominion." He is not asked to explain that. The only intelligible meaning of the words must be that he refused to act for the Dominion without the intervention of Solicitors. The word "for" cannot mean "in lieu of," for that would involve a contradiction. Nor can it mean "on behalf of," for the Attorneys were not parties to the litigation. There is no doubt but that he did continue in Ontario to act in the arbitration as Counsel for the Dominion, properly instructed by Messrs. Hogg & O'Connor. But these services are divisible into two heads: the special report, tho fee for which, $100, was settled beforehand ; and the rest of the services, the fees on which were settled, apparently, after the services were performed, at $360. It is to be observed that the Statute does not say that the employment, to disqualify, must be accepted from the Dominion. Any employment will disqualify, if any fee or emolument of any kind or amount from the Dominion lie attached to it. As to all these fees, therefore, the plaintiff's contention must be that they, or some of them, issue from the Dominion, and are attached to the employment, or some employment undertaken by the defendant. The defendant, not denying the employment or the services (partly on instructions from the Minister, and jiartly through the Solicitors), denies that any part of the fees, &c, was attached to the employment, which he undertook, within the meaning of section 1, insisting that "attached" in section 1, must mean "indissolubly attached," or "so attached as to be recoverable at law." No such qualifying words are found in the Statute, which speaks in the most general way—"any "employment to which any fee," &c, "of any kind or amount whatever from the " Dominion is attached." It seems to me quite impossible consistently with the English language to say that the drawing up a special report by Counsel, under instructions from the Attorneys for the Dominion, for which a fee of $100 is settled as a fair amount, is not an employment of such Counsel to which a fee or profit of some kind is attached. It is quite wrong here to give its technical meaning to the word " attached." The rule for construing words which have both a popular and technical sense is exactly the reverse as to Acts of Parliament from the rule as to deeds, In the latter, a word which may have a technical sense shall have that sense (unless it make arrant nonsense of the context) and not the popular sense. But an Act of Parliament loquitur ad vulgus : it is addressed to Englishmen of ordinary education ; and no word shall have its technical sense, but its popular sense, unless this latter make the context unmeaning. Any good dictionary will tell us the popular sense. The verb "to attach" has, besides its popular sense, a technical sense, viz.: "to lay hold of person or property by virtue of some process of law." To attempt to give it that sense here would make the sentence un- grammatical and unmeaning. "Any employment ... to which any fee .... is laid hold of by process of law " is nonsense. Even if this passage occurred in a deed, therefore, we must take the word in its popular sense. And I take it that inordinary English the word "attached" means no more than "annexed." The notion of "enforceable at law" is quite foreign to the word itself,—just as much as the notion of being un-enforceable at law. We have no right to add any qualifying words one way or the other. Then, the word "fee," in its primary use, means a voluntary gift—in Latin "beneficium"—often, perhaps always, intended as the reward of services performed, or to be performed; but always proceeding mero motu from the grantor: entirely voluntary. The word lies at the root of the nomenclature of the "feudal" system,—the fundamental notion of which is, a conqueror bestowing at his pleasure among his soldiers the'lands of the vanquished. A very common meaning now given to the word fee is a "gratuity," which does not at all signify a gift gratis. The return for a gratuity is often much more important than the consideration for a legal debt of like amount. It signifies a gift or payment not compelled, nor compellable. To say that "any fee of any kind" cannot.include a gratuity, or that a gratuity attached to an employment cannot include any gratuities except such as are enforceable at law, appears to me to involve a mode, of argument and of expression which I cannot follow. There are, it is true, some cases in which money demands 434 Judgment—Barnard v. Walkem. 1880 in respect of official acts are called fees, although recoverable at law. But they are confined, so far as I can recollect, to payments on legal or quasi-legal proceedings, taken generally to the use of the Crown now, formerly to the use of Judges and other officials. Centuries ago these were quite indefinite in amount, and quite voluntary. In that condition they afforded a ready means of bribery and extortion. By the Judges first, and then by Act of Parliament, these payments were regulated and fixed at definite amounts. But they formed part of the regular income of the Judges and the main or whole income of many clerks till quite recently. With these exceptions, the popular meaning of the word "fee," taken by itself, is quite apart from any notion of being enforceable at law; just as much as, perhaps even more than, the popular meaning of the word "attach" taken by itself. It is generally in fact used in speaking of payments to counsel and to physicians. And as to the suggestion that the word "attached to the employment" is to De construed as if the Statute were written "attached so as to be recoverable at law,"— there is at all times a great objection to importing words into a Statute ; but the objection becomes insuperable when the words proposed to be imported would defeat the whole object of tho Act; possibly defeat it in every case. Of all the contingencies struck at by the Statute of 1875, the Legislature would probably have been most anxious to guard against the case of the Provincial Attorney-General and Premier undertaking services on behalf of the Dominion Government of the most confidential character and involving very large sums, in respect of public works pointed at by the Terms of Union; services of such a nature as to afford the Premier ostensible grounds for accepting remuneration, which yet the Dominion should be under no obligation to pay, if they afterwards became dissatisfied with his conduct. Or again, take this very case in arbitration, which gave rise to the present discussion,—nobody, I suppose, would at first sight maintain that Mr. Jones Barnard could have retained his seat in the Local Legislature after entering into that telegraph contract with the Dominion. But I believe he has been able to recover nothing at law; and therefore, according to the defendant's view, he did not forfeit his seat. It will be said, his failure at law is owing to his own misconduct in performing his work: if he had worked properly, he would have recovered. That again makes the matter worse. Our local House of Assembly could, according to that, be filled with Dominion contractors, who need not vacate their seats, but may continue to sit and vote, if they will only take care so far to misconduct themselves under their Dominion contracts as to deprive themselves of their profits or right to payments. The whole object of this Act is to exclude Dominion influence from our local House. It is called the "Independence of Parliament Act." Evidently that influence would be much better secured by indefinite, unfulfilled promises than by cash payments for work done and ended. (It is not 1, but the Legislature itself which contemplates the possibility of such unworthy acts being attributed to the Dominion Government and to our members here.) And that seems clearly enough indicated, and indeed expressed,.by the words at the end of section 10 already quoted. It seems obvious that if the defendant be indeed accessible to undue influences (there is not a shadow of such an imputation in the Bill, which very properly goes merely on the dry legal question of the meaning of the words of the Statute, and. I allude to the hypothesis only for a moment, and because it seems necessary in dealing with this part of the arguments of defendant's counsel) then, an honorarium as yet unpaid, but which he may receive at any time, after the Minister is no longer exposed to be questioned in the House (the defendant actually, refers, in his examination, to the possibility of such questions) is much more likely to influence him than the recollection of a fee paid six months ago, frankly, along with his retainer. The conversation on this point as narrated in the defendant's examination is very singular. It is no doubt quite accurately reported from the defendant's point of view, and with his knowledge of facts. But a person who did not know all that he knew might perhaps take quite a different view of what was said. Coupling this conversation with the defendant's admitted anticipation of payment for his services in Victoria, and his refusal of the $460 (including the $100 "settled" as a fair fee for the special report) at Ottawa, the question arises which was put by Lord Cairns in a case in the House of Lords "Was this to be said in the House because no remuneration had in fact ever " been arranged ? Or was all claim for remuneration then waived by the defendant in " order that this might be said in the House ? " 43 Vic. Judgment—Barnard v. Walkem. 435 Such reserved fees, being more potent, are therefore more deeply within the mischief of the Act than open payments, as is clearly indicated by the concluding words of section 10 already quoted, and are not to be excluded by straining the meaning of particular words from their ordinary sense. And this, which is the true rule of construction in any case, is here merely in conformity with the "Interpretation Act, 1872," sec. 7, sub-sec. 38. I consider it therefore quite unnecessary to examine whether fees for services rendered purely as Counsel are, either here or in Ontario, recoverable at law. It appears that there are conflicting opinions in Ontario (where, it at all, the $460 would probably be sued for) whether a Counsel can or cannot sue for his fees. I do not remember to have heard of any such action elsewhere; not I mean for fees, whatever may be the case under special agreements. As to tho defendant's services in British Columbia it appears at least an arguable proposition that the defendant did not act purely as a Barrister, but as Attorney as well, and so, perhaps could sue here on his retainer, for some at least ot the services at Victoria. Whether the defendant could sue or not in respect of all or any part of the services rendered, either here or in Ontario, I am of opinion that those services, and the fees or emoluments attached to them, coming as they do direct from a Dominion officer or agent—and the Dominion, of course, can only act by means of its agents—bring him distinctly within the express words of the Statute. It becomes therefore unnecessary to discuss Flewitt v. Gauthier, Regina v. Francis, Regina v. York, and the other cases which were cited to show that the disabling contract need not be binding on the employer, or the Ontario cases as to the right of a Counsel to recover his fees (as to which I own my inclination is quite in accordance with the opinion indicated by the Court in Gordon v. Adams, 43 U. C. R. Q. B., 208, against the right to sue), or the authority from Todd, 260-278, to show that a subsequent abandonment of claim under the employment will not exonerate defendant from the consequences of accepting the contract. It is quite clear—defendant says so in his examination,— that at one time he expected to be paid. It is quite clear that at least one fee—the $100 —was named and acquiesced in by all parties. It is quite clear that the Dominion agents intended to pay, for defendant says he refused to accept the $460. A man cannot refuse that which has never been offered to him. And it is the acceptance of the employment, not the receipt of the money, which creates the disqualification under the Act. Neither is it necessary to consider^ the effect of the Public Works Act (Canada, 1867, c. 12). I am disposed to think that Act could not have any application to the present case. Neither is it necessary to discuss the decisions as to the disabilities of Town Councillors contracting with their corporations. There is no doubt a strong analogy to be drawn between those cases and the present case. But wherever there is an analogy, there is also a distinction. And no case of Town Councillors has been cited in which the disabling provisions were nearly so strong as in the present case. That would make tho decisions against Town Councillors in one sense more clearly fatal to the defendant's view. But section 1 of the present Statute is so clear and strong that it requires no support from mere analogy. Being therefore of this opinion, that the case is, on the defendant's own admissions, within the letter and the spirit of sec. 1, wo have to consider the application immediately before us, which is "to restrain the defendant from sitting in the Legislative Assembly " here during the present Parliament, or until he shall be re-elected thereto." This is a jurisdiction in a Court of Justice, 1 believe, quite unprecedented. The nearest analogy appears to be that exercised over town councillors; but to interfere by injunction is, I believe, a novelty even as to them. The injunction asked at the Bar. was stated to be in accordance with sec. 9 of the Independence of Parliament Act. But that section simply authorizes the Court to restrain an offending defendant; it does not say how that restraint is to be exercised, whether by writ of injunction or by the simple order of the Court. The difference perhaps in ordinary cases would not be important—perhaps it is unimportant here—but 1 think it right to notice it, as tho question of prerogative is to be considered, when a writ is asked to be addressed to a Minister of the Crown, not in his private capacity as, e.g , a witness, or a family trustee, or a defeudaut in an ordinary action. In such cases, no doubt the writ might issue just as to any person not a Minister. But the issuing of this writ evidently might, and I think certainly would, interfere with his ministerial efficiency. It is true, many instances are well known in the Parliamentary history of England in •Judgment—Barnard-v. Walkem. 1880 which officials—but not, I think, Cabinet Ministers—have been for some space of time without a seat in either House. And the loss of his seat would not, as was pointed out at the Bar, deprive him of his offices, of Attorney General and Chief Commissioner of Lands and Works—in fact ho lost his seat when he accepted office, and had to be reelected. The Assembly was not then sitting, and that caused but a slight public inconvenience. But I think we are bound to consider that at present the order prayed for probably would interfere, at a very critical moment, with the public business. It was said, during tbe argument, that there ought to be no distinction of persons in a Court of Law, and that a Minister of the Crown ought to be treated just like a private member. Courts of Law ought, of course, to follow fixed rules, irrespective of any individual favour or preference. And so they do, even when they show a marked difference in their different treatment of different offenders for the same offence. Often, different sentences are passed for the same crimes—even, sometimes, from quite personal considerations. A sick man, or a child, or woman, is not always sentenced to the same rigorous sentenc.e as a sturdy rogue. And the Court—every Court—ought to possess, and does always exercise, a large amount of that discretion which it was hinted was only a eujihemism for tyranny. There is, however, a well known class of exceptions, which come much nearer to the present case. Members of Parliament, during tbe sitting of Parliament and for forty days thereafter (though their privileges have been of late much curtailed), and Judges, Attorneys, and Suitors in going and returning from Courts of Justice, were all protected from civil process. This is a personal privilege granted to them on public grounds; not from any the slightest fear or favour towards the protected person, but on the ground that free and undisturbed access to Parliament and to the Courts of Law, by representatives and litigants, is of far higher public importance than the enforcement of individual rights. Public convenience is therefore a matter which we ought to take into consideration. Another reason which occurs to me against granting this interlocutory application is this, that such applications are not usually granted—i. e., before the hearing of the suit—unless they are ancillary to some relief which will probably be obtained by the plaintiff at the hearing, or unless they are necessary for the subject matter of the suit, until the rights of the parties are determined which are in litigation, either in the suit itself or in some action at law. But this is a bill for an injunction or rather a restraining order pure and simple, unconnected with any relief sought or obtainable by the plaintiff in this or in any other suit or action. It is 'rue, there is a prayer for general relief, but I do not see what relief to the plaintiff can be founded on the allegations in the bill; and the general prayer will not authorize any other relief. The relief one would have expected to be sought would bo the declaration of a vacancy, with a new election. But who can declare the vacancy? Certainly no power to that effect is given by the Statute to this Court. By tho Controverted Elections Act this Court alone, it is true, is invested with power, on petition, to declare vacancies. But that Statute deals only with irregularities and malpractices at an election. The present Statute deals only with certain disabilities which attach to membership after due election, which may attach, as in the present case, long after the period at which the election itself could be contested, and indeed where the propriety of the original erection is admitted on all sides. But under the present Statute, no Court or tribunal whatever appears to be invested with power to declare a vacancy, either under sec. 1 or sec. 2. The difference between the two Statutes is immense. When the Legislature intended to confer jurisdiction they knew how to do it. The inference is obvious, that they did not intend to confer it by the present Statute. At all events, they have not done so; and we have no express power, and cannot surely have an imjilied power, to declare a vacancy. It will be said—"The Act itself declares the vacancy." But the Act itself must by some competent tribunal be declared to apply to the case; the facts must in some way be legally ascertained; and the consequent results legally declared. It cannot surely bo that any person in the Province has a right and power to declare a forfeiture, and to have the seat treated as vacant, merely on his own opinion. That was one error in the lamentable transactions which led to the litigation in tho Bishop of Columbia v. Cridge. There, a canon of the Anglican Church had declared that persons acting in a particular way, or holding certain doctrines, should be ipso facto excommunicated. The defendant and his advisers had formed the opinion that certain persons had done the things forbidden by the canon, and that these words entitled them (and apparently anybody in the world) 43 Vic. Judgment—Barnard v. Walkem. 437 to say that the plaintiff had been guilty of the forbidden acts, and stood excommunicated without more ado; that he had forfeited his property, and that they themselves had become entitled to it, &c, &c. Such a contention is seen to be absurd as soon as it is stated in plain words. Perhaps tho House itself could, by Resolution, declare a vacancy, though this would be a very dangerous doctrine. All that is clear is that, so far as this Court is concerned, tho declaration in the Statute is mere brutum fulmen; that this Court can make no declaration cither of right or of disability; that there is no proceeding alleged to be pending before any other tribunal for declaring any rights or forfeiture of rights; and that this interlocutory application appears to me completely "in the air," whatever may be the case at the hearing, not "attached" to any relief or declaration respecting the status of the defendant or of the plaintiff. I should not in any case feel greatly disposed to favour such an application, even where the matter was within the ordinary jurisdiction, always clastic; much less do I feel disposed to do so when the jurisdiction is purely statutory, and quite inelastic. Again, the injunction asked is, to restrain the defendant from sitting "until re-election." The Act does not say that the Court may restrain for any definite time, but only " may restrain." Suppose an order made in the terms of the Act simply—i.e., restraining the defendant from sitting, without any limit of time; suppose the defendant to jirofess perfect submission to the order of the Court, to abstain from sitting to-morrow, and to sit again on Monday. On any application for enforcing the order, might he not say that it had been complied with, and was exhausted? I give no opinion as to what the effect of that argument would be. Or, if we made an order in the terms of the notice of motion would it not be a very reasonable ground for impeaching the order, that we had gone, beyond the letter of our powers? Again, 1 give no opinion upon the objection; but I feel more difficulty in proceeding when the uncertainty of result is so obvious. The literal meaning of the clauses of the Act might make the injunction "until re-election" a perpetual injunction, and practically create a perpetual vacancy of the seat. One section may be read as for ever disqualifying the individual, although in sec. 4 it is contemplated that the disqualification be removed. At any rate he cannot be re-elected, nor can any representative sit for Cariboo in his place, until a vacancy be first declared; and there does not appear to be, anywhere, any provision for declaring a vacancy. If we were allowed to set a limit on the duration of the injunction, it might seem more reasonable to follow the words of sec. 4, to which I have just referred, and restrain the defendant "until the disqualification is removed." If I am asked what these words mean and how the disqualification is to be removed, I answer that I do not know. If an injunction therefore were to issue, limited till the removal of disqualification, I should have perhaps the greatest difficulty in saying when the order had been complied with, or when broken, or when at an end; and the defendant would, perhaps, be quite unable to decide what the order meant, and yet would have to do so at his peril. This is another reason against making an order under this Act, which, indeed, appears to have been framed in a most righteous spirit of indignation against presumed malpractices of a very sordid and mischievous nature; but virtuous zeal is generally more successful in denouncing malpractices than in making provision for restraining or punishing them. The object of the Act is obvious; but, when you attempt to put it in force, incongruities and omissions beset you on all sides. The difference between a restraining order and a'writ of injunction (which latter is possibly, but not very clearly, intended in sec. 9) is, perhaps, only important in this respect—viz.: What is asked for is a writ; that is, a command from the Queen is asked to be directed to a person already, by command of the Queen, authorized and bound to perform certain functions, in the execution of which this second command (now asked for; evidently tends to embarrass him, without, however, relieving him from the exigency of the former command. I wish, with Lord Chief Justice Cockburn,* to avoid even the semblance of authorizing contradictory commands, interfering with the prerogative. And I say this, notwithstanding what was very properly said during the argument about treating an offender in high place, and presumably acquainted with the Statute, with even greater severity than an offender of low degree, and in whom ignorance might be pardonable. It is not the alleged offender I look to, but those whom he serves, and those for whom he servos. * Videh, R. 7, Q.B., 394. 438 Judgment—Barnard v. AValkem. 1880 To sum up:—The jurisdiction as to interlocutory injunctions being to a great extent discretionary, and being generally exercised only where the Judge thinks that it will be useful for the probable result of the suit, or necessary for the preservation of the subject matter; and then only, as a general rule, where on the balance of convenience and inconvenience it appears that the party enjoined (or other persons) will not be thereby injured much more than the other party will be advantaged,—what do I find? That this order will be ancillary to no possible result in this suit or in any other action which can be brought; of no use therefore to anybody; of probable great inconvenience to the public (I disregard the convenience of the defendant altogether)—possibly trenching on the prerogative; of very doubtful efficacy and enforcement; and, perhaps in practice, amounting to an order for the perpetual disfranchisement of an innocent constituency. I feel, besides, great doubt as to the form of order and the limits of duration (if any) which the Court has power to impose. Under these circumstances, although entertaining no doubt but that the defendant is conclusively proved, by his own admission, to be clearly within the scope of sec. 1 of the Statute, I think that no order should be made on this application. Crease, J. This was an application to the Supreme Court under a Bill of Complaint by Francis Stillman Barnard, a British subject and a duly qualified and duly registered voter for the Electoral District of Victoria City in this Province, under the provisions of Chapter 42, Consolidated Statutes, Sections 15 to 24 inclusive, generally known as " The Independence of Parliament Act, 1875," to restrain the defendant, Hon. G. A. Walkem, who since 1878, has been a member of the Legislative Assembly for the District of Cariboo, from sitting and voting in the Legislative Assembly during the present Parliament, or until he might be elected again thereto:—and for further relief. The sections of the Constitution Act, on which the plaintiff principally relied (Chap. 42, Consolidated Statutes), were sections 15, 16, 18, 19, 20, and 23 (Independence of Parliament Act, 1875). The 15th section says:—" That no person accepting or holding any office, comhiis- " sion, or employment, permanent or temporary, to which any fee, profit, allowance, or " emolument of any kind or amount whatever from the Dominion of Canada is attached, " shall be eligible as a member of the Legislative Assembly of this Province, nor shall " he sit or vote in the same." The next section—Sec. 16 in Consolidated Statutes, chap. 42—makes a similar provision with regard to any person holding any contract or agreement with the Dominion under which any public money of the Dominion is to be jiaid for any service or work, and declares that every such person " shall be ineligible to sit or vote" in the Legislative Assembly. The Bill stated that the said George Anthony B. Walkem, at the request and on behalf of the Dominion Government, while a member of the Assembly and Attorney General and Chief Commissioner of Lands and Works, acted as counsel for the Dominion Government in an arbitration between the Dominion Government and Francis Jones Barnard. That the Dominion Government employed the defendant, who is also a Barrister- at-LaAv, and that he did appear and defend the Dominion Government on the thirty-five days mentioned in the Bill. That during January and February, 1880, he appeared and acted on behalf of the same Government in the same arbitration against Francis Jones Barnard at Toronto and Ottawa. That in undertaking these services the defendant hold and accepted a temporary office, commission, and employment, to which fees, allowance, emoluments, and profits from the Dominion Government are attached. That thereby defendant's seat in the House became vacant and his election void, upon his accepting or holding" such temporary office and employment. To this Bill the defendant demurred, on the ground that supposing the statements in the Bill had been true, the. plaintiff had not sufficient interest in the subject matter of the Bill to enable him to maintain it. 43 Vic. Judgment—Barnard v. Walkem. 439 That Barnard was not entitled to relief, as tho alleged services were only performed by defendant as a Barrister, without fee, and the employment was only an isolated instance, and not during a session of the Legislature. In support of the demurrer, Mr. McCreight, Q.C , argued:— That the remedy by injunction was confined to property and rarely to persons, save occasionally infants And that such an application as the present was novel, and, as a remedy, entirely so. That, by analogy with the Controverted Elections Acts, Barnard ought to have been at least a voter for Cariboo District; though, even then, he did not admit he would have had sufficient interest. That in nuisances only tho parties affected by the nuisance could be heard, and not then if the interest were too remote. That defendant had acted for the Dominion Government in an isolated instance only, and so under Sec. 24, chap. 42, Consolidated Statutes, was therefore absolved. That the application for such an injunction should be construed very strictly. Defendant's services were only those of a Barrister, and might have been terminated in one day. Urging that before plaintiff could be heard he should have settled by action first whether defendant came within the purview of the law. [Spencer v. Birmingham, &c, Railway Co. 8 Sim., Chan. Rep., p. 193. Cap. 70 Consolidated Statutes, Sec. 5. Wynne v. Lord Loughborough, 1 Ves., p. 164. Joyce on Injunctions, p. 1052. Saltau v. Lehell, 21 L. J. Chan. 31 L. J. Chan. 97. Todd's Parliamentary Gov., vol. ii., p. 260. Sec. 18 Legal Professions Act.] Mr Drake, for the plaintiff, contended that as "any person" might sue the defendant for the penalties, any person might prefer a Bill of Complaint and ask for this Injunction. Plaintiff ought not to be debarred because he did not ask for a money penalty. The Act is silent as to who shall set the application for an injunction in motion; That this ought not to be construed with the Controverted Elections Act confining objections to voters of the district; That Barnard's interest as a voter in the purity and independence of Parliament was of quite sufficient interest for any person to petition. He pays taxes; That Sec. 23, chap. 42, Consolidated Statutes, governs the Act; That the same principle governs as in a quo warranto under the jurisdiction of this Court. [The King v. Parry, 6 Ad. & Ell., 810. Reg. v. Quail, 11 A. & E., 508.] He also contended the demurrer admitted the allegation of the fee attached to the employment in respect of tho services set forth in the Bill, as a demurrer admits all the facts; That if it did not, it was not necessary to prove it was paid; That the Statute of Anne supported his view, as did also Todd on Parliamentary Government, vol. ii., p. 260, et seq., and the Interpretation Act, p. 11, Consol. Statutes, chap). 3. Sub-sec. 38 of Sec. 7, Consol. Statutes, chap. 3. Mr. McCreight, in reply, contended it would not be remedial to put all lawyers out of the House, citing in support Regina v. Whale on quo warranto, the Controverted Elections Act, and Maxwell on Statutes. If called on to indicate what kind of interest would be sufficient, he thought perhaps the interest required might be a private Bill in the House affecting Barnard's interest. In this he was supported by Rex v. Smith. The demurrer was, however, overruled, in the usual way, upon the ground that tho interest of any voter in the Province in seeing that the defendant, who was a member for the whole of the Province directly he was elected for one district, and which involved payment of taxes and many other vital interests, was a sufficient interest to authorize plaintiff in filing a Bill and asking for an Injunction. Every voter, possibly every resident in the Province paying taxes, was interested in the purity and independence of Parliament and of every member thereof. The second ground of demurrer was struck out—thirty-five days not being "an isolated instance," and that part of the demurrer not being allowable as combining a plea and demurrer together. The demurrer was overruled in the usual way, without prejudice to the right of Mr. McCreight to raise the point of the employment being an isolated instance by plea, or on the affidavits. The hearing of the motion for an Injunction then proceeded. 440 Judgment—Barnard v. Walkem. 1880 Mr. Pooley read the notice of motion served on defendant on 8th April, 1880. Read over all the evidence in the case supporting the Bill. Frank S. Barnard proving Mr. Walkem attended and acted as counsel for the Dominion in the arbitration between the Dominion Government and F. J. Barnard during many certain days on behalf of the Dominion Government. That subsequently to his engaging in such service he had seen defendant in the House of Assembly taking part in the proceedings as a member. Thornton Fell, Secretary to the Arbitration, deposed to the arbitration, the employment of Mr. Walkem therein, and his acting on behalf of the Dominion Government. Glassey was there and was paid as a witness. He himself had been paid as Secretary. Did not know of Mr. Walkem's being pmid at all. George Anthony Walkem deposed, inter alia, that at the request of the Minister of Justice he was requested to see Barnard's claim properly investigated. Nothing was said about remuneration. He entered on the investigation without thought of any pay, but on the second invitation thought he was going to have it. He appeared as counsel for the attorneys appointed by the Dominion Government, Messrs. O'Connor and Hogg, at Ottawa and Toronto. That he had positively refused t© accept $460 which they tendered him; and relying on a dictum of the Chief Justice in Cariboo in a private prosecution, which the Chief Justice considered he might with safety undertake, notwithstanding this Act and his being a member, considered he was not violating the Act. That he had arranged with the Minister when at Ottawa not to accepit the pay for the service, for the very object of not perilling his seat in the House. Mr. Pooley, for the plaintiff, as a first point, contended as to defendant's services, that when at Ottawa in Ontario the defendant did perform the services for the Dominion Government in respect of this arbitration. This is practically not denied, for the defendant's case is that he did the services there, but only for the attorneys, Messrs. O'Connor and Hogg, and not for the Government,—a position which he considered altogether untenable. As to counsel's fees in Ontario, Mr. Pooley's contention was that they could be sued for there, and cited McDougal v. Campbell, U. C. Reports 41 L. J., Q. B. 332, in support. That was a case where plaintiff recovered by action the amount of his counsel's fees in full, and as counsel's fees. In that case McDougal, the plaintiff, was counsel for the wife, retained by attorneys at Ottawa, sued the husband for counsel's fees. There was no privity between plaintiff and the defendant. In the present injunction case we have Mr. Walkem retained by attorneys at Ottawa, they retained by the Dominion Government; and defendant could therefore, Mr. Pooley argued, sue the Dominion Government. At all events, there were fees attached to tho employment, or emolument within the Act. Under the Legal Professions Act, Consolidated Statutes, 190, s. 9, it was declared that when the duties of counsel and attorney were performed by the same person he shall be entitled to the costs, and counsel fees allowed and taxed in cases where the duties are performed by the same person. In 1879, chap. 16, the Fees Act, sec. 9, provided for the creation of a tariff of fees between attorney and client, as well as party and piarty, and counsel fees. These referred to fees on trials. Last year, 1879, by chap. 10, sec. 4, the Local Legislature provided respecting costs in arbitrations, that the arbitrators shall make up an account of the costs, charges, and disbursements of such meeting, and charge the amount against the party making default, &c. This for proceedings within the jurisdiction of this Court. There is a scale of fees attached to this Act. As to the contention that the defendant had renounced fees at Ottawa, he considered renunciation in Ottawa means nothing under this Act. Then, under the Public Works Act of Canada, 1867, introduced into British Columbia by Dominion Statute, chap. 37 of 1872. By sec. 47 of chap. Ii of 1867, Dominion Statute. The Minister of Public Works, if the award is greater than the tender, the Minister shall pay the costs in addition to the sum awarded; and, if less, the pierson who refused the tender. Such costs to be taxed by the proper officer of the Court of the Province where the arbitration takes place. In Macdougall v. Campbell the costs arose outside of the ordinary Courts—viz , in tho Senate—and were taxed by the Chairman of the Senate. Under all conceivable 43 Vic. Judgment—Barnard v. Walkem. 441 circumstances, in all countries, provision was always made for counsels' fees as a substantial payment. Mr. Pooley submitted that in section 47 the Minister is to pay the costs of the arbitration. How the claim for costs could be enforced is another matter. But at present the Dominion had not declined to pay, but had pressed the payment. The next point advanced was that a binding contract for piayment, such as that contended for by Mr. McCreight, is not necessary to disqualify a member from sitting in the House of Assembly. That in Fleuitt v. Gauthier, 5 prac, rep. of Canada, p. 24, a quasi contract, not suable, was sufficient. And in Reg. v. Francis, 21 L. J. Q. B. 304, there was a disqualification of councillors " by employment" where a quasi contract was held by Lord Campbell as a disqualification. It is true £50 had been paid there on account, but that did not make it a suable contract; and the objection that had been raised here was that no employment would disqualify to which fees not actually suable as a debt were attached. In Reg. v. York, 11 L. J. Q. B. 127, he considered Lord Denman in his judgment had strengthened the same position. The learned counsel then discussed the position of the defendant as gathered from his own evidence. At first he had entered on the employment without the idea of payment. But, after the second letter of instructions, that his services should be paid for. Thenceforward, he was working for pay. This, according to Todd, vol. ii., p. 260, was of itself a disqualification. Defendant acknowledged he was to be paid for his services. Now by Todd, vol. ii., p. 278, the mere agreement vacates a seat. Then he proceeds to Ottawa, conducts the business; does not say O'Connor and Hogg, or the Dominion Government, refuse to pay him. But he does say that after the work was done or nearly so, it was agreed between himself and the Dominion there was to be no declared agreement for pay between him and the Minister of Justice, so that the Minister of Justice might be able to get up in his place in the House and say there is no contract between us And yet the Dominion not only did not refuse to pay, but was piressing the money upon him, and does not refuse now. It was impossible to get over the conviction that he did the services at request for over thirty days. The Government expected to pay for it, and he knew it, and that in some shape or other—meal or malt—and it was only a reasonable deduction that it was to be paid and would yet be paid, and that defendant was within the mischief of the Act and therefore liable. Mr. McCreight, in reply, commenting on McDougall v. Campbell in 41 U. C. Reports, cited Gordon v. Adams 43 U. 0. Reports Q. B., p. 208, to show by an obiter dictum of the Judge that, instead of being settled, the question whether counsel can sue for their fees in Canada was still an undecided question. As to the Legal Professions Act, as tho Crown was not named in it, that Act did not bind the Crown. By the Ontario Digest, p. 470, " Barrister" counsel could sustain actions for such fees to be paid to themselves by their clients as established by the table of fees under Statute '2 Geo. IV., c. 2 (1822); beyond that they would be the same as in England, claiming that fees in this case would not come within that definition. That counsel have no right to fees generally, The Public Works Act of 1867, sections 47 and 48, he contended refers merely to costs between party and party. There is no evidence of any tender. Mr. Drake—Then how could $460 have been "refused?" Mr. McCreight continued—As to Fleuett v. Gauthier, nothing but a seal was wanting there to make a complete contract. But with a barrister no contract can be made. [Kennedy v. Brougham; 32 L. J., C. P., 137.] Even a promise by a client to pay money to his counsel is not binding. Suggested a preliminary reference to a jury would be more satisfactory than proceeding by injunction. That a grave reason for adopting that course here was so as not to interfere with a public department, which the Courts were very shy of doing. Ker on Injunctions, Ellis v. Earl Grey, 6 Sim., 750, objc injunction, which was therefore needless. The Bill says nothing of any mischief by his remaining in the House, and none was to be presumed; and contended strongly that the -. 442 Judgment—Barnard v, Walkem. 1880 public would suffer endless injury by issuing an injunction, and this was to be considered by Courts of Equity in the exercise of their discretion in granting injunctions. Any action of this Court might be practically set aside by the House by legislation, citing Stockdale v. Hansard, Lumley v. Wagner, De Gex, McNaughton, and Gordon. Courts show great delicacy in interfering with the functions of the Legislature. [Ker on Injunctions, p. 8.] The balance of public convenience not only may, but must be considered in applications of this kind before an injunction can be sanctioned. In the Queen v. Lords of the Treasury, L. R. 7, Q. B., 387, a mandamus case, the Court refused to make a compulsory order for payment of money against the Lords of the Treasury—that is the Crown—as being protected by the prerogative, so that a Court could not look at the application. Mr. Drake, in reply, considered the question was—Had the defendant been brought within the mischief of the Act? Mr. McCreight's whole argument had been ab incon- venienti on the balance of inconveniences. The Constitution Act, sections 8 and 10, showed that no danger would happen to the business of this country by .enforcing the Act and granting the injunction. A Minister, or member of the Executive, was not necessarily a member of the House. Mr. McCreight himself had been on one occasion for several months a Minister before he was elected as a member of the House. The learned counsel had suggested a vote of the House as a more appropriate remedy than an injunction. But that would not effect the object intended by the Act. It would not affect the peccant member's seat. This Act would. Employment does not necessarily mean such a service as must of necessity create a suable contract. It may be created in many ways. On that point the Act is silent. It does not limit the employment to employment with a salary. The expression " fee attached" does not necessarily imply a contract on which one may sue. The learned counsel dilated on the meaning of the word " attached." That it means attached in any way, by any tie however slight, whether as pay or honorarium to the service, or by mere custom. This defendant has done. He does not deny the service, only the technical construction of it. He has engaged in such a service and brought himself within the meaning of the Act, and has vacated his seat. Instead of the Court being called upon to give a strict construction to this Act, as invited to do by Mr. McCreight, Nicholson v. Field, 31 L. J., Exc. 283—which was an action for an actual pecuniary penalty on a Commissioner for acting after he was disqualified—is an authority for giving an ordinary construction to this Act,—an ordinaiy construction, that is according to the ordinary sense of the words of the Act as in common everyday use. In that case, Baron Wilde said a Penal Act should be construed like any other Act—any ordinary Act. It follows, then, this Act should be so construed in testing the question, does the case come within the scope of the Act or not? We contend it does, and that defendant is liable, and ask for tho injunction accordingly. Tho Court adjourned to Friday at noon to deliver written judgments. The Chief Justice delivered his decision at length, deciding against the issuing of the injunction. This is a very important matter from the peculiar nature of the Act, the position of the parties, and the public interests involved. The Act (Consolidated Statutes, 42, sections 15 to 24 inclusive,) was instituted, we are told, by defendant's counsel, under the title of the " Independence of Parliament Act, 1875," in a fit of legislative suspicion lest certain Dominion contractors, among others those who it was imagined were about to build a line of railway from Esquimalt to Nanaimo, should procure such an overwhelming influence over the members of the House of Assembly as to sully, if not destroy, the purity and independence of the House. The same kind of Act obtains in other Provinces, but with this important difference that there, if we be rightly informed, the disqualification ceases with the cessation of the employment or contract which created it. So limited, it may be good. But here it is made fatal at once. Similar provisions carried to such an extent can only be found in Municipal Acts, and counsel have been driven to these to seek for precedents. There was a marked intention in tho wording of the Act to make it as sweeping and comprehensive as possible. There is a notable difference between sections 15 and 16, to which attention must be called. The latter refers especially to contracts or agreements, matters decidedly 43 Vic. Judgment—Barnard v. Walkem. 443 suable and in an especial contrast to the matters treated of in section 15, under which the present proceedings are brought, and which only refers to matters not so,distinctly suable as in section 16 (as though to point the distinction) such as "accepting or holding " any office, commission or employment, permanent or temporary, to which an annual " salary, or any fee, allowance, or emolument, or profit of any kind or amount whatever " from tho Dominion of Canada is attached," as though more clearly to enforce the distinction between these two classes, and include as much as possible in the legislative net. I say nothing of the suspicions which we are told prompted this kind of legislation and its alleged effect in excluding good men from the House. With these we have nothing to do. It is sufficient for the Courts that Parliament thought fit to enact it to move them to discharge faithfully the unwelcome duty thus thriiEt upon them. To do this we have to gather from the Act itself what is the true intent and meaning of such of its sections as apply to the state of facts now before us. Much argument and many cases which 1 have already referred to have been brought forward by counsel on both sides in support of their views, but the exceptional nature of the Act has made their task unusually difficult. The. mischief which this law was intended to reach was the holding or accepting of any employment, however temporary, to which any fee, or allowance, or profit of <iny kind or amount whatever is attached which would give the Dominion an influence in the House which the Local Legislature, for five years past, has deemed injurious to its independence. There is a similar clause in the statute book applicable to employment under the Local Government of the Province (there called Colony), but that does not concern us now. The mode in which the plaintiff now seeks to enforce the Act is by asking a restraint to be put upon defendant's sitting or voting in the House by an injunction, which being interlocutory, would only be at first temporarily issued until the hearing,—i.e., the actual trial of tho case on its merits. It is for such an injunction we are now asked. The power to proceed for a remedy by injunction is a statutory one, so I do not share the Chief Justice's doubt, if I have rightly interpreted him, of the plaintiff's right to apply for it. Our .judgments have all been prepared separately, but you have just now heard the learned Chief Justice's judgment as to the inapplicability of injunction in the present ease and the failure of the provisions of the Act generally to provide the means and machinery necessary to enable any Court to carry its objects successfully into effect, as one of the reasons why the Court should not grant this injunction. Without at all impugning or contesting that view of the inefficiency of the Act, I do not myself doubt but that tho Act gives a power to commence some proceedings, however temporarily and ineffectively, by injunction, should the Court in its discretion think fit to grant one. Our present enquiry, however, is to ascertain whether the defendant has brought himself within the four corners of tbe Act. Turning to the evidence, we find it is stated on oath, and not denied, that the service rendered was one of a barrister pleading the cause of the Dominion in an important arbitration between it and Mr. Barnard, the telegraph contractor. It is admitted, also, that for at least a certain portion of the time during which the services were rendered the defendant expected to receive pay of some kind. It is a service which usually carries pay. Barristers don't generally work for nothing. It is also clear that in Ontario ho knowingly engaged in the same service, ostensibly, or rather as he believes, for the attorneys of the Dominion in the matter, but in point of law actually for the Dominion itself. It is-singular such a pioint should have escaped him. Mr. Pooley, counsel for plaintiff, in a long list of authorities, which I have already quoted, endeavoured, with a certain amount of success, to prove that the fees of barristers were in Ontario recoverable by law as a debt, and that for his services there Mr. Walkem was acting under a contract for pay, and whatever might be the law here as to counsel fees, by his services in Ontario became specially liable under the Act. That point, however, whether barristers' fees are a debt, if wo may attach any weight to a casual obiter dictum of the Judge in the Adams case, is not yet finally decided, although in an elaborate judgment, as yeV ^unreversed—Macdougall v. Campbell, 41 U? C. Reports Q. B.—it was distinctly settled by & majority of two out of three Judges of a Court of Appeal, that in Ontario such fees were recoverable in law. There is nothing to show that the Macdougall v. Campbell case has been appealed. I specially called counsel's attention to that fact in reading the case. Mr. Drake, however, the leading 444 Judgment—Barnard v. Walkem. 1880 counsel for the plaintiff, went further than his junior, and contended with much force that whether fees -were a legal debt or not, and the service rendered an enforceable contract or not, mattered not. That it mattered not for the purposes of this application whether a Barrister's fees were merces or honorarium, they were " fees attached" to the temporary employment which had been admitted, and so brought Mr. Walkem within tho purview of tho Act. That such employment was within the mischief aimed at by tho Act, as it brought the defendant under the influence of the Dominion Government the very object which the Local Legislature in 1875 in its wisdom determined to prevent. Much was said during the hearing as to the meaning to be attributed to the word "attached," and when a fee, &c , should be said to be attached to a temporary service or employment such as that which was admitted to have existed in the present instance. I cannot but think it would be a very strained construction indeed, looking to the wording and spirit of the Act and the admitted object of the Legislature in passing it, to narrow its meaning down to something that could be sued for as a debt, and only that. That could never have been the intention, I think, of the framers of the Act. They went out of their way to make it more stringent than any other Act of the kind to which we have'access. The learned counsel for the defendant, who declared himself to have been the framer of the Act, confesses that to have been the clear object of the Act, and it would be veiy difficult to conceive that any counsel who had employed such language throughout the Act intended to have confined its restrictive efforts to onfy direct infractions, where the commonest every clay experience shows that in the great majority of cases they must of necessity be indirect. It seems also to have escaped the counsel for the defendant that where the object to be guarded against by the Act was the influence of tho Dominion over the members of the House, that there would be infinitely more danger to be apprehended from that influence if it had then been openly paid for than if it were left as a sort of thankful hope of favours to come. On this head tbe words of Harrison, Q.C.—afterwards Chief Justice Harrison—in Fluett v. Gauthier, vol. 5.Canada Practice Reports, p. 28, 29, are pregnant with meaning, on a similar point arising in a Municipality:— "It is not necessary (he says) to show a contract binding on the Corporation, or " formal contract, so as to subject them to a successful suit; for if there is no binding " contract it is more likely that a party would use his position to enforce a claim which "he could not legally substantiate. .The amount mentioned may be small, but the " principle involved is of high importance." The learned Judge (John Wilson), in giving judgment, says:— " I do not think it necessary that a valid contract should be shown binding on the " Corporation to disqualify the contractor from sitting as a Councillor of such Corpora- " tion. If there is no contract binding on the Corporation the danger is the greater of " the party improperly using his position to his own advantage and to the prejudice of " the Municipality. The policjr of tho law is that no man shall be a member of a "Municipality who cannot give a disinterested vote on a matter of dispute that may " arise. If his judgment is likely to be clouded by self-interest in a matter of contract " or quasi contract, ho should not be a member of the Council." The renunciation of defendant in this case made in Ottawa, according to Todd, vol. ii., 278 et seq., would appear to have come too late, and does not affect this Act. The agreement during any part of the period, according to that authority (Todd), as I read it, under tho circumstances set forth—so far as tho evidence has up to this time been disclosed, and subject to any further evidence to bo hereafter produced at the hearing of the case—brings the defendant within the mischief of the Act, and therefore makes him liable to its provisions. The occasional delay of the English Parliament, spoken of by Todd, in carrying out the principle (that a mere agreement to accept the disqualifying appointment vacates the member's seat,) by immediate exclusion#from sitting and voting in the House, arises, no doubt, from uncertainty whether the appointment will after all be conferred. Here no such doubt can exist, for tho agreement w^carried into effect and the service confessedly performed. Moreover, the Local Act contemplates no such dela.y, for the injunction, if granted, must be in the terms of the Act, and would stop the peccant member's sitting and voting at once. Moreover, if the defendant be still able, when, and if he chooses, to bo remunerated fcr the service undoubtedly rendered, that is one of the kinds of possibility which the Act is intended to meet; and in that sense the 43 Vio. Judgment—Barnard v. Walkem. 445 word "attached" would bring the defendant within the mischief and spirit of the Act. It was contended by defendant's counsel with great force, and supported by authorities of weight such as Eden on Injunctions; Ellis v. Earl Grey, 6 Sim., 750; Queen v. Lords of the Treasury, 7 L. R. Q. B., 387, and others which I have already referred to, that in considering an application for an interlocutory injunction of this description, which is merely a temporary provision until the hearing, the Courts were very careful and chary, not on personal or individual, but public grounds, in interfering, at all events before the hearing, and with full and complete evidence before them, with the political duty of an officer or department of a Government, which he alleged would in this case be the inevitable result of an injunction; that it would in effect be prejudging the case and productive of great public injury. The law, though it made no difference between one man or another, did require the Courts not to grant injunctions, interlocutory or temporary, against a public officer without studying the public, not the individual, inconvenience. Now, though the Act is not directed against the Minister, but against the member, and the application is against the defendant as member, still the law, which knows no distinction of persons, does impress upon the Judges, in the authorities quoted, the propriety in exercising their discretion in cases of injunctions against public officers, of considering the effect it will have on tbe public business and the public interest. The one sole object of the Act is the public benefit,—not the man, but the public interest. Now it is impossible to shut one's eyes in the exercise of the discretion which, notwithstanding all the learned counsel has said in favour of judicial discretion in a strait- jacket, is still a discretion ; and in injunctions (which are not the decision of a case) the law recognizes as a discretion which lawfully ought to regard the public interests—it is impossible, I say, to shut one's eyes to the great public injury and detriment that would ensue from granting this application at such a critical moment in our Federal relations and of impending public works as the present. The case might be different if the charge were for any criminal offence; but here the offence is a purely statutory one,—not a malum in se, a moral wrong or crime, but a malum prohibitum—the creation of a Statute. I do not see, therefore, that any public or other injury can, but rather that much public benefit must, result by exercising that judicial discretion which the law sanctions and practice prescribes by not disregarding the public interests in considering the present application for an injunction until the hearing. For these and the other reasons already alleged by the Court, my decision is against the issuance of the injunction at present, and to refuse the application. Henry P. Pellew Crease, J. Judgment of Mr. Justice Gray. I agree with my brother Judges that the Injunction must be refused, but on grounds entirely different from those which have induced them to come to that conclusion. Recognising to its full extent the doctrine of public convenience as influencing the discretion of the Court in granting or refusing Injunctions, it does not appear to me in any way applicable to this case. Judicially to assume that because there is but one lawyer in the House, who is at the same time a Minister of the Crown, his removal would reduce the Legislature to chaos, bar all useful legislation, alt progress, and leave the Lieutenant-Governor without tho means of communicating with the Legislature, is a reflection upon the other members of the Assembly and the constituencies which returned them, in addition to being directly contrary to the practical experience of Constitutional Government. There is no allegation in the Bill, no evidence or statement in the Affidavits, on which such an assumption, or indeed the assumption of any public inconvenience could rest. The life of a State does not depend upon one individual. This case must be governed by the strict language of the Statute. I say the strict language, because the rights of two parties are involved. 1st. Of the member himself. 2nd. Of the district which returned him. The first is entitled on his legal return to his seat. The second is entitled to be represented by him. Both parties have agreed, not only as between themselves but with the whole Province, as to the conditions which 33 ♦ 446 Judgment—Barnard v. Walkem. 1880 shall work a, forfeiture of that seat, and have embodied those conditions in a distinct Act which has become the law of the land. What is that Act ? By its title it is only to affect " persons accepting or holding offices, contracts, or employment" under the Dominion Government. The disqualification is defined in three sections—1st, 2nd, and 10th. The 1st section says—"No person accepting or holding any office, commission, or " employment, permanent or temporary, to which an annual salary, or any fee, allowance, "or emolument, or profit of any kind or amount whatever from the Dominion Govern- "ment is attached, shall be eligible as a member of the Legislative Assembly of this "Province, nor shall he sit or vote as such." The 2nd. That "No person whosoever holding or enjoying, undertaking or executing, " directly or indirectly, alone or with any other, by himself or by the interposition of "any third party, in whole or in part, any contract or agreement with Her Majesty, or " with any public officer or department, with respect to the public service of the Dominion "of Canada, or under which any public money of the Dominion of Canada is to be paid "for any service or work, shall be eligible as a member, nor shall he sit or vote in the " same." The 10th section explains that the terms " contract" and " agreement" mean a continuing contract, not an isolated instance of ordinary work done, for which immediate payment is to be made. The defendant's alleged offence comes, if at all, under the 1st section, and in my opinion must be governed by the legal meaning of the word "attached" as in that section used. This section works a forfeiture, not only as to the individual member, but to the unoffending constituency he represents, and under the rules of construction applicable in such cases, means—that some fee, allowance, emolument, or profit, whatever it may be, has been definitively promised and agreed upon, or accepted, or flows as a consequence or right from the office or employment, that is, pertains to the office or employment, and is not a mere gratuity dependent upon the will of the employer, both as to the gift and the amount, and which (having received the service) he may give or withhold as he pleases. The Bill of Complaint states that the defendant was a Barrister and acted as Counsel for the Dominion Government, but the law is clear and distinct, and recognised by every English Court, that a Barrister has no right, and cannot recover from his client his fee, or any compensation for his services as Counsel, when no statutory provision, or other distinct legal authority, provides for or enables him so to do. The Americans far more sensibly enable the Barrister under such circumstances to recover on a quantum meruit, but the Canadian Courts, from Nova Scotia to British Columbia, have adopted the English rule ; and no authority has been shewn, or can be shewn, by which the defendant can recover from the Dominion Government any fee or compensation for the service rendered on the occasion referred to in the Bill. No doubt he expected to be paid and, as in the ordinary transactions of life between honest men, he had every reason to think he would be paid. Nay, it may even be admitted that the contemplated evil proposed to be guarded against by the Act would be as likely to arise where the compensation is purely dependent upon the will of the employer as where it is defined, certain, and capable of being enforced ; but the Legislature has not said so. It has not said the expectation of the employe shall disqualify, and the Court must be governed by what it has said, not by what any Judge thinks it ought to have said. It is a mistake to suppose that the local Statute is an original conception of the local Legislature. It is a mere transcript as to its 1st section (with which in this case •we have to deal) of the Dominion Act, c. 19, 1871 "An Act to amend the Act further securing the independence of Parliament," simply varied to suit its local title. It may therefore be desirable to note the subsequent legislation by the Dominion Parliament on the subject of claims against the Crown. The Dominion Act, 33 Vic, c 12 (1875) provides for the institution of suits against the Crown by Petition of Right for relief, comprehending claims to real and personal estate, or property or chattels, or payment of money, or damages, or otherwise; defining the procedure, Courts, &c, &c, but expressly embraces a clause that "Nothing in this Act shall be construed to give to the subject "any remedy against the Crown in any case in which he would not have been entitled " to such remedy in England under similar circumstances by the laws then in force there "prior to the Imperial Statute, 23 & 24 Vic., c. 34" (1860-61) amending the law relative 43 Vic. Judgment—Barnard v. Walkem. 447 to Petitions of Right. Now, at no time could Counsel fees be recovered in England from anybody, much less from the Crown. Thus we see that by the express words of the Dominion Statute, the Dominion Government employing and the Barrister employed, both knew that not one shilling would in law be due, or could be recovered, for the service rendered. How then can fee or compensation be said to be "attached" to the office or employment? It is not equivalent to say the Government may give something, because equally the other party may refuse to accept. If the offer of a gratuity, though refused, could create a forfeiture or impose a penalty, no member would be safe ; nor in law does it alter the case, that the Government after, or pending the service, named a specific sum and the Barrister admitted that would be a fair compensation, if nevertheless he refused it. It is not the service which is forbidden, but the taking compensation for it. The unlimited construction contended for would place the seat of every member of the Local Assembly at the mercy of the Dominion Government, or utterly prevent, even in the direst public emergency, any service being voluntarily rendered. Therefore it is that this statute working a forfeiture and imposing a penalty must be construed strictly. The case of Macdougall v. Campbell, 41 U. C. Q. B. R., 332, has been much relied on as deciding that Counsel fees can be recovered in Ontario, but when carefully examined it does not establish the position that, apart from any statutory provision, or any special contract, or other consideration, they can be recovered. In that case, in the first place, the action was not against the client, but against the husband, who was by law bound to provide the expenses of the wife in her defence, on his application for a divorce; and being so bound in law, made a distinct promise, that in consideration that the plaintiff would forbear, during those proceedings, to put in force a power he then possessed to compel the defendant to pay, de die in diem, those expenses (whereby the Counsel fees could have been met by the wife) he, the defendant, would pay, &c, thus creating a new consideration and a specific contract. It is true Wilson, J., after much faltering, expressed himself to that effect, viz., that Counsel fees were recoverable, and was briefly concurred with by another Judge. The Court, however, divided in opinion, the learned C. J. Harrison expressing himself decidedly to the contrary. Moreover, Wilson, J., based his opinion upon the effect of certain local Statutes, providing a scale of fees in the Courts in that Province, in which scale allowances were made for Counsel fees, and upon the combined functions of Barrister and Attorney in one person, thence deducing a presumed abolition of the distinctive character of Barrister and Attorney in this respect as hitherto considered ; but the service here rendered was not in a suit or proceeding in any Court of Ontario or British Columbia, to which any such scale would be applicable, but in a proceeding to which the Dominion Government was a party, under a Statute passed by the Dominion Parliament, in which no such provision exists ; for surely it will not be contended that local Statutes altering the Common Law in particular Provinces (admitting that they did) would govern Dominion proceedings under Dominion Statutes pointing out and determining its own line of action in matters to which the Crown is a party. That very decision, however, has not been accepted in Ontario, for the appeal from it is. yet undecided. But even if it were law in Ontario as between private individuals, in this case, the defendant's claim being against the Crown (if there were any claim) would have to be under the Petition of Rights Act, and that pointedly adheres on such a subject to the English Law. The costs referred to in the 47th and 48th sections of the Public Works Act of Canada, chap. 12, 1867, creating the arbitration tribunal, in which the claims of Mr. Barnard were being heard, and in which the defendant was acting for the Crown, apply solely to costs between the parties to the arbitration, and not to any fee or compensation from the Dominion Government to the person it may employ. The construction I have put upon the word " attached" is further confirmed by the authority cited, though for another purpose, by the Counsel for the complainant, from Todd's Parliamentary Government in England, page 260. "The disqualification attaches immediately upon accepting an office of profit," that is flows from, is a necessary consequence of the acceptance, not dependent upon the will of one party or the other. In reference to that part of the argument of the learned Counsel for the complainant, referring to the defendant's expectation of being paid, and his subsequent refusal, attention must be called to another passage in Todd, which doubtless escaped his observation. Speaking of the analogous case where a new writ has to be issued in consequence of 448 Judgment—Barnard v. Walkem. 1880 disqualification at 278, as to what constitutes an acceptance, he says—"Ordinarily, and "as a matter of convenience, mere agreement to accept a disqualifying office vacates the " seat." Bat at 280, " While it is customary to issue a new writ so soon as a member "has agreed to accept a disqualifying office, mere agreement itself does not disqualify. It "is true that by agreement to accept an office from the Crown, a member places himself " under the influence against which the Statute of Anne is directed, nevertheless, if there " be a reasonable excuse to justify delay, it has been usual for the House to await the ilperformance of some formal act of acceptance before proceeding to order the issue of a "new writ. Meanwhile the member is not debarred from the exercise of any of his legisla- " tive functions." Todd is of the very highest authority on constitutional questions and the practice of Parliament, though I have not before heard him cited as a legal authority on the construction of Statutes. The weight of his opinion, however, is decidedly against the complainant, and does not support the point to which it is sought to be applied. Under the evidence, a disqualifying fee or emolument was not only not accepted but refused. The eases of Flewett v. Gauthier, 5 Prac. U. C. O, 24, and the Queen v. Francis, 21 L. J. Q. B., 304, have been cited by the complainant's Counsel, to shew that a contract, though not valid or enforceable may disqualify. Without admitting that there can be a legal contract, or indeed any contract, which is not mutually binding and therefore enforceable, except perhaps in the case of an infant, it will be observed on the examination of the report of the latter case—the Queen v. Francis—that money had been paid and received under the so-called contract, which it was contended failed in its binding effect, from not having the seal of the corporation affixed to it, the receipt of which money was regarded as evidence of employment and payment on account, thus bringing the case within the spirit of the disqualifying clause, the Court at once stopping the argument. Consequently, that authority does not establish the position assumed, nor is it analogous to the present case. With reference to the former—Flewett v. Gauthier—it certainly as reported is strongly in favour of the position assumed ; hut without seeing the local Statute on which it was based, and the Canadian authorities cited by the Counsel in the argument, I am not prepared to change my opinion, particularly as the only English ease referred to, the Queen v. Francis, as above shewn, does not go to that extent, and the Judge himself refers to no authority, proceeding more upon the danger likely to arise, from the evils legislated against, than upon the language of the Statute. The Queen v. York, 11 L. J. Q. B., 127, also cited for the same purpose, simply decides that under the terms of a Municipal Ordinance, disqualifying contractors with the corporation from holding seats at the board, a lease from the corporation to the contractor came within the meaning of the word "contract" in the Ordinance used, and consequently disqualified. But in seeking to apply all these cases it is overlooked that an engagement with a Barrister is regarded in law not as a contract, but simply on his part as the discharge of a duty, for which he can claim no remuneration, but may receive a reward. He is not responsible, as in a contract, for non-fulfilment or mismanagement, and cannot therefore enforce compensation for performance or good management. Moreover, the Statute under which the proceedings in the present instance are taken, in the two sections makes a distinction between "office or employment" and "contracts or agreements," itself defining what it means by the latter term. As to the 1st section, Webster's definition of the meaning of the word "attach" is 1st. In a general sense, "to seize and hold fast." Hence, 2ndly. To take by legal authority "to arrest the person, or lay hold of property by writ, to answer for a debt or demand." It is unnecessary to cite that part of the definition which refers to moral force, affection, &c, &c. If the world were governed by moral force or affection a Legislature would be useless. It must be assumed in law that legislators know the meaning of the words they use> and also that they use the very words necessary most closely to convey the idea they mean. Their legislation affects the whole people, and their selection of terms in legislation must consequently be received, not only as adequate but as appropriate to accomplish the particular object they had in view. The moment the Court in construing a Statute attempts to give figurative meanings to words, or to construe them in any but their ordinary legal sense, it undertakes to legislate, and thereby departs from its line of duty. 43 Vic. Judgment—Barnard v. Walkem. 449 Under this definition of the word, how can the defendant "by legal authority take" or recover from the Dominion Government his fee or compensation for services as a Barrister and Counsel, when every Court in England and in the Dominion has time out of mind adjudged that such fee or compensation is in the nature of a gratuity and cannot be recovered at law, even though the service has been most honourably and efficiently performed. This Act is exceptional in the power it gives to the Court to issue an injunction against a member of Parliament, relative to his seat in Parliament, and unquestionably, if the case were brought within the Act, it ought to issue, for 1 cannot assent to the position advanced by the learned Counsel for tho defendant, and to some degree acquiesced in by the Bench, that while it might be right to grant it in the case of a private member, yet, because the defendant is a high public functionary and an influential leader of the House, it ought not to be used against him. On the contrary, in my opinion, that is the very reason it should be used against him. The higher the man the greater tho fault. Si Apollo Magnus, Culpa Major. The Legislature doubtless legislates for the best interests of the country, yet it may be questioned whether Statutes of this character should not be swept away. They may answer in large communities, where there is a great field of talent to choose from, but in the scattered and limited 'population of this Province they are apt to deprive the country and government of the services of some of its ablest men. They imply a distrust of every public man. For seven years past, the unceasing demand of this Province upon the Dominion Government has been for the expenditure of large sums of money on public works, yet during the same period Acts are passed forbidding the leading business men of the country, who may be members of tho House, from having anything to do with the expenditures. At this very day, with contracts of several millions to be expended by the Dominion Government, not a member of the House, be he merchant, trader, farmer, dealer, shipowner, lawyer, or doctor, can " hold, enjoy, Undertake, or execute, directly "or indirectly, alone or with any other, by himself or by the interposition of any trustee " or third party, in whole or in part, any contract or agreement with Her Majesty, or " with any public officer or department, with respect to the public service of the Dominion "of Canada, or under which any public money of the Dominion of Canada is to be paid "for any service or work," under a penalty of $500 a day for every day he sits in the House after so doing, besides the forfeiture of his seat. (Nothing in splendid alliteration ever equalled it, save the old Anti-Popish Test Oath, fifty years ago.) Though several of the members are merchants, others owners of vast tracts of grain- producing land, or of fine herds of cattle—main staples of the country—they may not contract to supply a Dominion party on the railway works, " directly or indirectly, in whole or in part, by themselves or any third party," &c, &c, with one pound of flour or beef, or a shilling's worth of goods, nor, under the " Qualification and Registration of Voters Act Amendment Act, 1878," c. 22, can any officers receiving Dominion salaries (other than employes of the Post Office—why this particular exception is not declared) vote or even advise relative to the election of members, under heavy penalties. In most countries, the impression is, that the conflict of mind with mind promotes intelligence, but here, while these Acts remain, a dull suspicion reigns. Burke has said "The country that lays the foundation of its greatness in the pos- " session of extraordinary virtues, will find its superstructure reared in folly, hypocrisy, and extravagance." Perhaps it were well for British Columbia not to attempt to be too virtuous. The injunction must be refused.
Legislative proceedings
J110.L5 S7
English
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IN EQUITY. IN THE SUPREME COURT OF BRITISH COLUMBIA. Before the Honourable the CHIEF JUSTICE, HON. MR. JUSTICE CREASE, and HON. MR. JUSTICE GRAY. JUDGMENT--F. S. BARNARD, Plaintiff, vs. G. A. WALKEM, Defendant.
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