1891. KILLAM, J. Protestant schools, and that, on the 29th of April last, a Judgment. similar estimate and requisition were submitted on behalf of "The School Trustees of the Winnipeg Catholic School District," for the levy of $2,550 for the support of their schools for the year 1890, with a list of names of persons liable to assessment for the same. It is shewn that these estimates and requisitions were submitted to and approved by the City Council, and are those on which the bylaws, in so far as they impose a rate for school purposes, are based. It is not contended that if The Public Schools Act is valid and in force, it was improper to levy a rate based on these estimates alone. The contention of the applicant is, that the old law is still in force, and that the amounts of these estimates should have been levied separately upon Protestant and Roman Catholic ratepayers. The argument for this view is based upon a claim that The Public Schools Act of 1890 is ultra vires of the Provincial Legislature, and that the repeal of the former statute was intended to operate only for the purpose of substituting the one system for the other, and should be deemed inoperative. It is sufficient, however, for present purposes to consider whether it was intra vires of the Legislature to establish such a system of schools as is provided by the new Act, and to authorize the raising of money for their support by a general assessment upon the property of all, irrespective of religious belief, and without providing for the support of separate schools for any class. I have referred to the old Acts as shortly as possible, rather in order to explain the form of the objection taken in the summons, and as illustrative of one system which the applicant contends to have been within the powers of the Legislature to establish, than because I can conceive that the adoption at one time of such a system could limit the authority of the Legislature thereafter. By the second section of the statute usually known as The Manitoba Act, 33 Vic., c. 3 (D.), confirmed by The Im 1891. Judgment. perial Act, 34 & 35 Vic., c. 28, the provisions of The British North America Act, 1867, " Except those parts thereof which are in terms made, or by reasonable intendment may KILLAM, J. be held to be especially applicable to, or only to affect one or more, but not the whole of the Provinces" then composing the Dominion, and except so far as the same might be varied by The Manitoba Act itself were to "be applicable to the Province of Manitoba in the same way, and to the like extent as they apply to the several Provinces of Canada, and as if the Province of Manitoba had been one of the Provinces originally united by the said Act.” By The British North America Act, 1867, s. 92, "In each Province the Legislature may exclusively make laws in relation to matters coming within the classes of subjects next hereinafter enumerated, that is to say" "(2) Direct taxation within the Province in order to the raising of a revenue for Provincial purposes." "(8) Municipal institutions in the Province." And by section 93, “In and for each Province, the Legislature may exclusively make laws in relation to education, subject and according to the following provisions: (1) Nothing in any such law shall prejudicially affect any right or privilege with respect to denominational schools which any class of persons have by law in the Province at the Union; (2) All the powers, privileges and duties at the Union by law conferred and imposed in Upper Canada on the separate schools and school trustees of the Queen's Roman Catholic subjects shall be, and the same are hereby extended to the dissentient schools of the Queen's Protestant and Roman Catholic subjects in Quebec; (3) Where in any Province a system of separate or dissentient schools exists by law at the Union, or is thereafter established by the Legislature of the Province, an appeal shall lie to the Governor-General-in-Council from any Act or decision of any Provincial authority affecting any right or privilege of the Protestant or Roman Catholic minority of the Queen's subjects in relation to education." A fourth sub-section provides for the enactment by the Parliament 1891. Judgment. KILLAM, J. of Canada, so far as may be necessary, of laws requisite to the carrying out of the decision on such appeal. By the 22nd section of The Manitoba Act, "In and for the Province the said Legislature" (i. e. the Provincial Legislature) "may exclusively make laws in relation to education, subject and according to the following provisions : (1) Nothing in any such law shall prejudicially affect any right or privilege with respect to denominational schools which any class of persons have by law or practice in the Province at the Union; (2) An appeal shall lie to the Governor-General-in-Council from any Act or decision of the Legislature of the Province, or of any Provincial authority affecting any right or privilege of the Protestant or Roman Catholic minority of the Queen's subjects in relation to education." A third sub-section is added similar to sub-section (4) of the 93rd section of The British North America Act. Now it is obvious that if there were merely the authority to legislate in relation to education, without the limitations imposed by these sub-sections, it would be quite competent for the Provincial Legislature to enact such a statute as The Public Schools Act. It is in the sub-sections that the difficulty lies. It appears to me that these sub-sections can only be properly understood by a comparison of them with the corresponding limiting subsections of The British North America Act, 1867, and by a consideration of the laws of the four original Provinces of the Dominion at the time of their union, as well as that of the law and practice with reference to education in this portion of British North America at the time of its union with Canada. In each of the Provinces originally united to form the Dominion of Canada there existed at the Union a system of public schools, supported, partly by grants of money by the Provincial Legislature out of the general funds of the Province, and partly by direct taxation through municipal bodies or boards of school trustees or commissioners, with, in Lower Canada and New Brunswick, an option to localities to substitute voluntary subscriptions for compulsory taxation. There was, however, this difference, that in Nova Scotia and New Brunswick there was no provision for the support of separate schools for any class in a similar way, or for the exemption of any class from liability to be taxed for the support of the general system, as there was in the old Province of Canada. Of the latter Province there were, as is well known, two great political divisions, at one time forming separate Provinces, for which the laws in some respects differed. In Upper Canada, now the Province of Ontario, the public schools were regulated by the Acts C. S. U. C. cc. 64, 65, with some amendments, the most important of which were contained in the Act 26 Vic., c. 5. By the second of these Acts Protestants could establish separate schools in school sections in which the teachers of what were called the common schools were Roman Catholics, and were then exempted from contributing to the support of the common schools, by sending their children to, or contributing to a certain. extent to the support of such separate schools. And by the same Act, as amended by the third one mentioned, similar provision was made for enabling the Roman Catholics in any school section to establish separate schools for themselves, and to become exempt from contributing to the support of the common schools, as long as they should continue to be supporters of such separate schools. For the purposes of these separate schools, Protestant or Roman Catholic, it was requisite that there should be a certain number of the particular religious faith to initiate the proceedings necessary to the establishment of such separate schools. In Lower Canada, now the Province of Quebec, the public schools were regulated by the Act C. S. L. C. c. 15, with some amendments. If the rules and regulations for the government of a common school were not satisfactory to any number of the inhabitants of a municipality professing a religious belief different from that of the majority, these inhabitants could establish dissentient 1890. Judgment. KILLAM, J. 1891. schools under the government of their own trustees and Judgment. become exempt from taxation for school purposes by any but these trustees, where there were such. KILLAM, J. Both in Upper and in Lower Canada the supporters of the separate or dissentient schools were by express enactments entitled to have proportionate shares of Provincial moneys granted for the support of common schools, applied in aid of such separate or dissentient schools, and to have rates levied for the support of the latter upon those of the appropriate classes respectively. In Nova Scotia the schools were regulated by the Acts R. S. N. S. [3rd series.] c. 58; 28 Vic. cc. 28, 29; 29 Vic. c. 30, and in New Brunswick by the Act 21 Vic. c. 9; in each case with some subsequent unimportant amendments. Upon the face of the statutes, it is clear that in Nova Scotia these schools were not in any respect denominational, in the usual sense of that term. For New Brunswick, any possibility of contention that they were denominational in the sense in which that term is used in The British North America Act, 1867, is precluded by the decision of the Supreme Court of New Brunswick in Ex parte Renand, 1 Pugs. N. B. R. 273; 2 Cartwr. Cas. 445, affirmed on appeal by the Judicial Committee of the Privy Council. The reasoning in this case would also seem to apply to the common schools of Upper Canada. In Lower Canada, an element of a denominational character not found in the other provinces was attached to the common schools, in a requirement that the text books relating to religion and morals were to be chosen by the officiating priest or clergyman of each school section, for use in the schools by children of his religious belief. See C. S. L. C. c. 15, s. 65, s-s. 2. From the judgments in the New Brunswick case referred to, it appears also that at the Union there existed in that Province distinctively denominational schools, to which the Provincial Legislature had from time to time made grants of public moneys. The same was also to some |