VOL. II.] EXCHEQUER COURT REPORT. 49 THE QUEEN, ON THE INFORMATION OF 1888 THE ATTORNEY—GENERAL FOR THE PLAINTIFF ; Dec. 13. DOMINION OF CANADA AND JOSEPH N. POULIOT, FORTUNAT F. ROULEAU AND ARTHUR P. DEFENDANTS. LETENDRE .Information----Statutory defence—Demurrer Illegality of contract—Do- minion Elections Act, 1874—Interpretation Act (R.S.C.c. 1 s. 7 sub-sec. 46). The information alleged an agreement with Her Majesty whereby in consideration of the conveyance by the Intercolonial Railway of certain passengers between certain stations, the defendants agreed to pay Her Majesty, through the proper officers of that railway, the fares or passage money of such passengers at the rate therein mentioned as agreed to between the defendants and such officers. The defendants, admitting the agreement as alleged, sought to avoid it by setting up as a defence that such passengers were carried on bons in blank signed by one of the defendants only. Held,(on demurrer to the plea) to be no answer to the breach of contract alleged. 2. The Crown is not bound by sections 100 and 122 of The Dominion Elections Act, 1874. 3. The 48th clause of the 7th section of The Interpretation Act, (R.S. C. c. 1.) whereby it is provided that no provision or enactment in any Act shall affect in any manner or way whatsoever the rights of Her Majesty, . Her Heirs or Successors, unless it is expressly stated therein that Her Majesty shall be bound thereby, is not limited or qualified by any exception such as that mentioned in The Magdalen College case (11 Rep. 70b), i 0 that the King is im-pliedly bound by statutes passed for the general good " * or to prevent fraud, injury, or wrong." DEMURRER to defendants' pleas. • By an information filed by Her Majesty's Attorney-General for the Dominion of Canada the court was informed as follows :— " 1. The Intercolonial Railway is a public work of 4
50 EXCHEQUER COURT REPORTS. [VOL. H. 1888 the Dominion of Canada vested in Her Majesty The THE QUEEN Queen, and is managed and worked by officers duly v. POULIOT. appointed by and under the control of the Government of the said Dominion. Statement or Facto. " 2. That, in the month of September A.D. 1878, the defendants entered into an agreement with Her Majesty, through certain of the officers managing the said Inter-colonial Railway, whereby in consideration of the carriage and conveyance over and upon the said railway, between certain stations, of certain passengers, they the defendants would pay to Her Majesty, through the proper officer of the said railway, the fares or passage money of the said passengers at the rates hereinafter mentioned, as then agreed upon between the defendants and the said officers. " 3. That in pursuance of the agreement mentioned in the preceding paragraphs, .there were carried and conveyed over and upon the said railway a large number of passengers, to wit : eight hundred and fifty-four, at the prices, and between the stations, following:- 34 passengers, return tickets, Bie to Rimouski, at 20e $ 6 80 160 do do St. Fabien do at 38e 60 80 191 do do St. Simon do at 58c 110 78 100 do do Ste. Luce do at 20e 20 00 208 do do Ste. Flavie do at 36c 74 88 100 do do Metis Rd. do at 46e 46 00 61 do do St. Octave do at 54e 32 94 854 $352 20 Whereby the said defendants have become indebted to Her said Majesty in a large sum of money, to wit :— the said sum of $352.20. " 4. The defendants have not paid Her Majesty the said sum of $352.20, or any part thereof, and the whole of the said sum is now due, together with interest thereon from the 10th day of September A.D. 1878. "t1 1010.
F VOL. II.] EXCHEQUER COURT REPORTS. 51 Whereby Her Majesty is entitled to demand judg- 1888 ment against the defendants. THE Q E N CLAIM. V. POULIOT. " Judgment against the said defendants for the sum Statement of $352.20, with interest thereon at the rate of six per of Facts. cent. per annum, from the 10th day of September, A.D. 1878, and costs of suit." To this information the defendants pleaded as fol- lows : - " 1. The said defendants in this cause, for plea or answer to the information of the Honourable the Attorney-General for the Dominion of Canada, on behalf of Her Majesty, not confessing or acknowledging any of the matters and things in the said information set forth and alleged to be true, but on the .contrary hereby expressly denying the truth of each and every the allegations of the said information, saith " 2. That the said passengers, in the information mentioned, were so carried and conveyed to Rimouski from certain places therein mentioned and back, on bons in blank signed by the defendant Joseph N. Pouliot in the following form :'• " Good for return tickets to Rimouski and back on the tenth September instant. " J. N. POULIOT. " Rimouski, 7th September, 1878. " And that the plaintiff should, and ought to have brought Her said action against the said Joseph N. Pouliot on the said bons. 3. That the said alleged agreement in. the informa- • tion mentioned (which said alleged agreement, except for the purposes of this plea, the defendants do not admit) was made on or about the 7th day of September, A.D., 1878, and that the 10th day of the said month of September was the day appointed at the last general elections for the nomination of candidates to serve as 4%
52 EXCHEQUER COURT REPORTS. [VOL. II. 1888 members of the Parliament of Canada, and that the said THE QUEEN alleged agreement was an executory contract, promise, V or agreement unlawfully made between the plaintiff, POULIOT. Her said Majesty represented as in the information Statement or Fact,. mentioned by the said certain officers managing the said Intercolonial Rai] way and the defendants, and was an executory contract, promise, or agreement to carry and convey on the said 10th day of September certain passengers, as in the said information mentioned, to the town of Rimouski and back to the respective homes of such passengers,for the purpose of being present at the said town of Rimouski at the said nomination of candidates to serve as member aforesaid for the county of Rimouski, and for the purpose of hearing the election speeches of the said candidates, with the intent and in view of influencing the electors aforesaid to vote for Doctor Romuald Fiset, hereinafter mentioned, a fact well known to the plaintiff, represented as aforesaid, at the time of such agreement, and for other election purposes,or for purposes arising out of or connected with the said election; and that at the nomination the said Doctor Romuald Fiset, a member of the Parliament of Canada for the said county of Rimouski and the Honourable Hector L. Langevin, C. B. were nominated as candidates to serve as member, as aforesaid ; and that the said passengers in the said information mentioned, being supporters of the said Doctor Romuald Fiset, and duly qualified to vote as electors at the said election for the county of Rimouski, were carried under the said alleged agreement for the election purposes aforesaid and not otherwise ; and that the said conveyance of the said passengers unlawfully did influence the whole election in favor of the said Doctor Romuald Fiset ; and that at the time of entering into the said alleged agreement, and at the time of carrying the said ~ —
VOL. II. j EXCHEQUER COURT REPORTS. 5g passengers, the plaintiff, represented as aforesaid, had 1888 full notice of the premises. TxnQUEEN Wherefore the defendants say that by reason of the POULIOT. premises, and of The Dominion Elections Act, 1874 (1), Statwe ment the said alleged agreement in the information men- of acta. tioned was and is void and of no effect ; and pray that the said information be hence dismissed and set aside with costs." " 4. That the said alleged agreement in the informa. tion mentioned (which said alleged agreement, except for the purposes of this plea, the defendants do not admit) was made on or about the 7th day of September A.D., 1878, and that the 10th day of the said month of September was the day appointed at the last general election for the nomination of candidates to serve as members of the Parliament of Canada, and that the said alleged agreement was an executory contract, promise or agreement, made between the plaintiff; Her said Majesty, represented, as in the information Mentioned, by the said certain officers managing the said Intercolonial Railway and the defendants as agents of, and as representing, one Doctor Fiset hereinafter re- (1) Sec. 100 reads as follows :— of claims within one month after "Every executory contract, or the day of the declaration of the promise, or undertaking, in any election, to such agent or agents way referring to, arising out of, or as aforesaid ; otherwise such per-depending upon, any election un- sons shall be barred of their right der this Act, even for the payment to recover such claims, and every of lawful expenses, or the doing or any part thereof, * * * proof some lawful act, shall be void vided that such bills, charges and in law ; but this provisi8n shall claims shall and may be sent in not enable any person to recover and delivered to the candidate, if back any money paid for lawful and so long as, during the said expenses connected with such.elec- month, there shall, owing to death tion." or legal incapacity, be no such The portion of sec. 122 which agent ; and provided also, that the affects the case is as follows :— agent shall not pay any such bill, "All persons who have any bills, charge or claim without the au-charges or claims upon any candi- thority of the candidate, as well date for or in respect of any- elec- as the approval of the agent." tion, shall send in such bills, charges
54 EXCHEQUER COURT REPORTS. [VOL. II. 1888 ferred to and was an executory contract, promise or THEQ II EN agreement to carry and convey on the said tenth dap of September certain passengers, as in the POULIOT, statement said information mentioned, to the town of Rimouski of Facts. and back to the respective homes of such passengers, for the purpose of being present at the said town of Rimouski at the said nomination of candidates to serve as member aforesaid, and for the purpose of hearing the election speeches of the said candidates and for other election purposes, or for purposes arising out of, or connected with,the said election, and that at the said nomination the said Doctor Romuald Fiset, a member of the Parliament of Canada for the said county of Rimouski, and the Honourable Hector L.Langevin,C.B. were nominated as candidates to serve as member as aforesaid, and that the said passengers in the said information mentioned, being supporters of the said Doctor Fiset and duly qualified to vote as electors at the said election for the county of Rimouski, were carried under the said alleged agreement for the election purposes aforesaid, and not otherwise ; and that at the time of entering into the said alleged agreement and at the time of carrying the said passengers, the plaintiff, represented as aforesaid, had full notice of the premises. " 5. And that afterwards the election was duly holden and the said Doctor Romuald Fiset was duly elected as member as aforesaid, but the plaintiff did not, within one month after the day of the declaration of the said election, send in or transmit to thé defendant, Fortunat F. Rouleau, the duly appointed agent of the said Doctor Fiset at the said election, any claim for the said carriage and conveyance of the said passengers in the information mentioned, in pursuance of section 122 of The Dominion Elections Act, 1874. "Wherefore the defendants submit by reason of such default in sending in such claim, and by force of the
VOL. II.] EXCHEQUER COURT REPORTS. 55 said The Dominion Elections Act, 1874, the said alleged 1888 agreement in the information mentioned became and is THE Q II EN void and of no effect,and pray that the said information POU v L IOT. be hence dismissed and set aside ; the whole With costs. Statement " 6. And the said defendants for a further plea to the or Facts. said information of the Honourable the Attorney-General of Canada on behalf of Her Majesty, in this cause filed, hereby expressly deny the truth of each and every allegation of facts stated and set forth in the said information. " 7. Wherefore the defendants pray that by the judgment in this cause the said information be held and declared to be not well founded, and that it be hence dismissed and set aside ; the whole with costs. The plaintiff joined issue upon the pleas of the defendants, and also demurred thereto as follows:— ." 1. The plaintiff joins issue on all the pleas or defences of the defendants herein to the information of the plaintiff. "2. The plaintiff demurs to the first plea or answer of the defendants herein, and says the same is bad in law on the grounds following : Because the claim of the plaintiff is based upon a contract made by the defendants, which is set out in the information,whereby the defendants agreed to pay to Her Majesty the moneys mentioned in the information, and it is no answer to the breach of said contract to allege that the passengers, for the carriage of whom the claim is made • under the contract set out, were carried on bons signed by one of the defendants. "3. The plaintiff also demurs to the second plea or defence of the defendants herein, and says the same is bad in law on the grounds following : Because the provisions of The Dominion Elections Act, 1874, referred to in the said plea or defence, do not prevent Her Majesty from recovering upon the
56 EXCHEQUER COURT REPORTS. [VOL. ii. 1888 contract set out in the information, as such provisions TuEQ v Ex do not apply to the Crown. Pov v li oT. "4. The plaintiff also demurs to the third plea or de- fence of the defendants herein, and says the same is Argument of Counsel. bad in law on the grounds following : Because the provisions of The Dominion Elections Act, 1874, referred to in the said plea or defence, do not prevent Her Majesty from recovering upon the contract set out in the information, as such provisions do not apply to the Crown." November 29th, 1888. Hogg, in support of demurrer : The Crown is not within the purview of the prohibitory clauses of The Dominion Elections Act, 1874: [1.] Because the Sovereign can do no wrong, and therefore Parliament could not be supposed to have intended to legislate against the Crown in such a case ; [2], the provisions. of The Interpretation Act (R. S. C. c. 1, s. 7, sub-sec. 46) explicitly except the Crown from the operation of any Act wherein it is not expressly mentioned that it shall be bound thereby. Cites Chitty on Prerogatives (1) ; Maxwell on Statutes (2). Sinclair, contra: The word " rights" as used in sub-sec. 46 of sec. 7 of The Interpretation Act, means prerogative rights only, and the Crown never had any prerogative right to enforce a contract such as the one set out in the information in this case. The Legislature by this sub-section only intended to re-enact the rule at common law, that the Crown may be bound by express words or necessary implication ; and this sta. tute being for the public good, upon well recognized principles, impliedly bound the Crown. In order to accede to the argument of the learned counsel for the Crown that no statute can affect the Sovereign (I) P. 382. (2) 2nd ed. p. 161.
VOL. Ii.] EXCHEQUER COURT REPORTS. 57 ' unless the Sovereign is mentioned therein, this sub- 1888 section must be construed as if it read " no provision THE Q EN in any statute shall affect Her Majesty," &c., leaving poULIoT. out the word " rights " as superfluous. He cited Argument Chitty on Prerogatives (1), Hardcastte on Statutory ofuountrccl. Law (2). BURBIDGE, J., now (December 1.8th, 1888) delivered judgment. It is alleged in the information in this case that the defendants entered into an agreement with Her Majesty, through certain officers managing the Intercolo-nial Railway, whereby, in consideration of the carriage and conveyance over and upon the said railway between certain stations of certain passengers, the defendants agreed to pay to Her Majesty, through the proper officers of the said railway, the fares or passage money of such passengers at the rate therein mentioned, as agreed upon between the defendants and such officers. The defendants, admitting the agreement, seek to avoid it, by setting up as a defence thereto that such passengers were carried on bons in blank, signed by the defendant Joseph N. Pouliot in the following form:— Good for return tickets to R.imouski and back on the tenth of September instant. (Signed) J. N. PoULior. Rimouski, 7th September, 1878. and that the action should have been brought against the said Joseph N. Pouliot on such bons. To this plea the plaintiff demurs on the ground that it does not present an answer to the breach of contract alleged ; and of that there can, I think, be no doubt. If the defendants promised, as alleged, to pay the fares mentioned, their liability cannot be in any way affected by the fact that the passengers were carried on the • production, to the officer in charge of the train, of such (1) Pp. 4-7. (2) Pp. 180-185. .
58 EXCHEQUER COURT REPORTS. [VOL. IL 1888 bons or orders, or that such bons were signed by one THE +v Ex and not by all the defendants. v. The second and third pleas suggest a number of POULIOT. questions, but the argument was confined to the single Reason» for Judg ment. issue raised by the demurrer as to whether or not the Crown is bound by the provisions of the 100th and 122nd sections of The Dominion Elections Act, 1874 (81 Vic , c. 9). By the 100th section of the Act mentioned it is provided that every executory contract, or promise, or undertaking in any way referring to, arising out of, or depending upon any election under the Act, even for the payment of lawful expenses or the doing of some lawful act shall be void in law, but that no person shall receive back any money paid for lawful expenses connected with any such election. This provision first occurs, I think, in an Act of the Province of Canada for • the more effectual prevention of corrupt practices at elections (23 Vic. c. 17, s. 6). By the first clause of the 122nd section of The Dominion Elections Act, 1874, it is enacted that all persons who have any bills, charges or claims upon any candidate for or in respect of any election, shall send in such bills, charges, or claims within one month after the day of the declaration of the election to the agent of the candidate, otherwise such persons shall be barred of their right to recover such claims. A similar provision is to be found in au Act of the Parliament of the United Kingdom to amend the law relating to corrupt practices at elections (26-27 Vic. c. 29, s. 3). The law as to what statutes are binding on the Crown is to be fouud in the 46th clause of the 7th section of The Interpretation Act (R. S. C., c. 1), where it is enacted that no provision iu any Act shall affect, in any manner or way whatsoever, the rights of Her
VOL. II.] EXCHEQUER COURT REPORTS. 59 Majesty, Her Heirs and Successors, unless it is express- 1888 ly stated therein that Her Majesty shall be bound Ta E n EN thereby. v. POULIOT. This provision occurs for the first time, I think,` in Reasons an Act of the Province of Canada for putting a legisla- Jnafeigeut. tive interpretation on certain terms used in Acts of Parliament, and for rendering it unnecessary to repeat certain provisions and expressions therein,. and for as- certaining the date and commencement thereof, and for other purposes (12 Vic., c. 10, s. 5, (25)). From this Act it found its way into the Consolidated Statutes of Canada (c. 5, s. 6 (25)), and was made applicable to the Consolidated Statutes of Lower Canada and of Upper Canada (C.S.L.0 , c. I., s. 13,—C.S.U.C., c. 12, s. 19). It is also found in The Interpretation Act passed. in 1867 . by the Parliament of Canada (31 Vic., c. 1, s. 1 (33)) ; in 1868, by the Legislature of Ontario, (81 Vic., c. 1, s. 7 (31)) ; in 1871, by the Legislature of Manitoba (34 Vic., c. 1, s. 7 (27)) ; and in 1872, by the Legislature of Brit- ish Columbia (35 Vic., c. 1, s. 7 (30)) ; and has been continued in subsequent revisions of the statutes of the Dominion and of the Provinces named. In the Quebec Interpretation Act (31 Vic., c. 7, s. 5) the lan- guage of the older statutes was not followed, it being provided that " no Act affects the rights of the Crown unless they are specially included." The general rule to be deduced from decided cases is that. the Crown is not bound by a statute unless named therein, or included therein by necessary implication.. When, from the language used, it is manifest that it was the intention .of the Legislature to include the Crown, it is sufficiently named within this rule (1 ). (1) Moore v. Smith, 1 El. & E1., App. Cas.. 102 ; Cushing v. Dupuy , 597 ; Thebe ge v. Landry, L. R., 2 L. R., 5 App. Cas., 409.
60 EXCHEQUER COURT REPORTS. [VOL. II. 1888 The Intrrpretation Act, however, in its literal and THE QUEEN grammatical meaning demands more than this. Not v. only must the Queen be named, but her rights are not POULIOT. to be affected unless it is expressly stated in the enact- Reaso for ns Judgment. ment that she shall be bound thereby. It is not necessary, however, in this case to come to a conclusion as to whether or not the general rule to which I have referred has been narrowed by The Interpretation Act, for it is not contended that there are in The Dominion Elections Act, 1874, any words which, either expressly or by implication, indicate an intention on the part of the Legislature that the Crown should be bound thereby. The defendants' contention is that The Dominion Elections Act, 1874, falls within the exception to be found in the older authorities " that the King is im-pliedly bound by statutes passed for the general good ; the relief of the poor ; the general advancement of learning, religion• and justice ; or to prevent fraud, injury or wrong (1)." It is to be observed that the language of the exception is very general and large enough to include many statutes that have never been thought to apply to the Crown. In Maxwell on the Interpretation of Statutes (2), it is stated that probably it is more accurate to say that the Crown is not excluded from the operation of a statute where neither its prerogatives, rights, nor property are in question ; and though it may be true that there is no case in which the very general propositions propounded by Lord Coke in the Magdalen College case (3), have been expressly denied or over-ruled (4), (1) Chitty on Prerogatives, p. Statute Law, pp. 40-41. «382 ; Magdalen College, case 11 (2) P. 167. Rep. 70b ; Bac. Abr. Prerogative (3) Cited ante. (E.) Vol. 8 ; Maxwell on Statutes (4) Hardcastle on Statutory p. 166 ; Harcicastle on Statutory Law, p. 190. Law p. 185 ; Wilberforce on
r VOL. II.] EXCHEQUER COURT REPORTS. 61 they have not, I think, been approved or followed in 1888 later cases. THE QUEEN With reference to the fact that the enactments in POULIOT. question occur in statutes for the prevention of corrupt practices at elections, and were passed with a view of R or J ud g ment. preventing such practices, it appears to me for obvious reasons that the proposition that the law is primel facie made for subjects only applies with peculiar force to such statutes. Then, too, it is to be observed that the 100th and 122nd sections of The Dominion Elections Act, 1874, create . statutory defences to actions upon contracts arising out of Parliamentary elections—the former by making any such executory contract void, and the latter by barring the remedy against the candidate if its provisions are not complied with. But the law is that a defendant cannot, in a proceeding on behalf of the Crown, plead a defence given by statute unless the Crown is named therein ; and it has never been doubted that the right of the Queen to collect debts due to her, and the remedies that she may employ therefor, are not impaired by any Act of Parliament unless the Crown is by express words or necessary implication included therein (1). Looking at the language used by the Legislature, " All'persons shall send in such bills &c." (122nd section)—" this provision shall not enable any person to recover back any money paid for lawful expenses " (100th section)—and having regard to the context and the relation of the Crown to the election of members of the House of Commons, I would, apart from The Interpretation Act, be of opinion that the Legislature did not intend the provisions of The Dominion Elections Act, 1874, referred to, to apply to the Crown (2). (1) Chitty on Prerogatives pp. mood 1066 ; The Queen y. Benson 366-383. 2 P. R, (U. C.) 350 ; .Regina v. (2) R. y, Tecchin 2 Ld, Ray- Davidson 21 U.C.Q.B.41.
62 EXCHEQUER COURT REPORTS. [VOL. I.I. 1888 But in my opinion The Intrepretation Act is con- THE QUEEN elusive. Its language is explicit and I fail to discover PoULIOT. any good reason for modifying its plain negative Bensons words by reading into the Act a provision of such gen- Juagiment. era! character, and doubtful authority, as the exception to which I have alluded. The defendant also contends that the word " rights " in the 46th paragraph of the 7th section of The Interpretation Act means prerogative rights ; that Her Majesty has no prerogative right to interfere in the carrying on of elections for the purpose of unlawfully influencing the result ; that the provisions of The Dominion Elections Act, 1874, directed against such unlawful interference, do not impair or affect any of Her Majesty's prerogatives, and are therefore binding on the Crown and subject alike. This contention, it seems to me, is open to a number of observations; but I do not propose to discuss it further than to repeat that the rights affected by the 100th and 122nd sections of the Act last mentioned are rights of action, and that in the case of the Crown such rights, and the remedies by which they are enforced, are not affected by any statute unless there are words therein manifesting on the part of the Legislature an intentiôn so to affect them. Briefly stated the case is this :—The defendants, admitting that they promised the Crown to pay the fares or passage money as mentioned, allege that the action cannot be maintained because the promise arose out of an election under The Dominion Elections Act, 1874, and the 100th section thereof makes such promise void, and the 122nd section bars the remedy,—no statement of claim having been sent to the candidate's agent within one month after the day of the declaration of such election. To this plea the plaintiff demurs on the ground that, assuming the promise to have arisen
VOL. II.] EXCHEQUER COURT REPORTS. 63 out of an election under the Act relied on, neither Her 1888 Majesty's right of action, nor her remedy for enforcing THEQUEEN the same,is defeated or affected by the Act,as the Crown POULIOT. is not included therein either by express words or nec- Rensons essary implication ; and in my opinion the demurrer Juaf :ens. should be sustained. There will be judgment for the plaintiff on demurrer to the defendants' pleas. Demurrer allowed with costs. Solicitors for plaintiff : O'Connor 4- Hoag. Solicitor for defendants : J. N. Pouliot.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.