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HAGARTY

C.J.O.

Judgment. My brother Rose says: "Upon looking at the various sections of chapter 194, I observe that section 11, sub-section 14, provides that 'No license shall be granted to any applicant for premises not then under license, or shall be transferred to such premises, if a majority of the persons duly qualified to vote as electors in the sub-division at an election for a member to the Legislative Assembly petition against it.' I think that I must read 'electors' in that subsection and in section 42 as referring to the same class, and full effect can be given to the language of section 42 by confining the application of the clauses of the Municipal Act to the manner' of holding the election. And I come to this conclusion the more readily as the subject legislated upon by the Liquor License Act is rather one of morals and police regulation than of finance, and so all residents in the municipality have an interest in the question, whether they be property owners or not."

I find a difficulty in accepting this view. In the interpretation clause it is declared that "polling sub-divisions shall mean the polling sub-divisions for the last general election for the Legislative Assembly.

Sub-section 7 of section 11 declares it shall be the right and privilege of any ten or more electors of any polling subdivision to object by petition to the granting of any license and sub-section 14 is as quoted above by Rose, J.

Sub-section 10 allows the council to authorize any person to appear on behalf of the ratepayers of the city or town &c., as to the granting of a license.

I do not think we should confine the right to vote on a by-law like this to the parliamentary electors unless the statute requires this either expressly or by necessary implication. I cannot understand why the sub-section cited in the judgment below did expressly so enact as to petitioning against a license.

The section 42 of chapter 194 already cited says "to be approved of by the electors in the manner prescribed by the Municipal Act," and sub-section 3 of this section declares: "Any by-law so approved shall not be varied or

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repealed unless the varying or repealing by-law has been Judgment. in like manner submitted to and approved of by the electors HAGARTY of the municipality."

The first clause of R. S. O. ch. 184, sec. 293, as to voting on by-laws, says, "In case a by-law requires the assent of the electors of a municipality, the following proceedings should be taken."

In the interpretation clause of the Municipal Act it is declared: "Electors shall mean the persons entitled for the time being to vote at any municipal election or in respect of any by-law in the municipality, ward, &c., as the case may be."

I come to the conclusion, first, that the restricting clause as to leaseholders can only be applied in the case of bylaws creating debts. Second, that the persons who should have been allowed to vote on this by-law were the electors entitled to vote at any municipal election.

BURTON, J. A.:

If we were dealing with this as an original statute, and called upon to place a construction upon section 42, I should have come to the same conclusion as the learned Judge below, that the electors referred to in that section were parliamentary and not municipal electors; they are the parties intended under sub-sections 7 and 14 of section 11, and it would be at least reasonable to presume that the same meaning was intended for the same expression in every part of the Act. But the Act to be found in the Revised Statutes is not an original enactment but is a consolidation of various Acts, and there can be no question that at the time of the passing of the original section, to be found in the R. S. O. (1877,) ch. 181, the electors named were the municipal electors, and that the amendments made from time to time, and now to be found in chapter 19+ of the revision of 1887, have not in any way interfered with or varied that section. It may be that the law as it now stands is, as it was not very inaptly described by counsel, a legislative muddle;

4-VOL. XVII. A.R.

C.J.O.

BURTON
J.A.

Judgment. but much of the difficulty disappears if we interpret the word "electors," as here used, in the widest sense, viz., persons entitled, for the time being, to vote at any municipal election. The statute does not say electors entitled to vote in respect of any by-law, but electors generally.

The class of electors, therefore, is defined, and the reference to the machinery provided by the Municipal Act, is required only for the purpose of ascertaining their approval.

That machinery is to be found in clauses from 293 to 306, inclusive. Clauses from 308 to 312, become inapplicable, inasmuch as the description of persons entitled to vote has been already defined.

I expressed an opinion in Canada Atlantic R. W. Co. v. Cambridge, 14 A. R. 299, and in another case, that certain provisions of the Municipal Act were inapplicable to by-laws relating to bonuses to railways, and must be regarded as passed for a different object; but my view was not sustained by the other members of the Court. I may say, without disrespect, that I still retain that opinion, and in the present case I think we have a right to reject the clauses I have referred to, as inapplicable, inasmuch as they are manifestly inconsistent, if my view of the meaning of the word electors" is correct, although the law may require to be amended for the purpose of preventing personation and other frauds at the poll.

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This is, as I understand the decision, in accordance with the view taken by the Court in Canada Atlantic R. W. Co. v. Cambridge, where it was held that a provision, though found in a group of sections prescribing the proceedings to be taken, was inapplicable to the case then under consideration and should therefore be rejected.

But the conclusion we must arrive at is the same as that of the learned Judge below, though for different reasons. The by-law was not submitted to the electors who were entitled to vote upon it, and is therefore void.

OSLER, and MACLENNAN, JJ.A., concurred.

Appeal dismissed with costs.

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MAGEE V. GILMOUR.

Landlord and Tenant-Expiration of term-Notice to quit-Sub-lease-
Overholding Tenant.

THIS was an appeal by the defendants from the judgment Statement. of the Queen's Bench Division, reported 17 O. R. 620, and came on to be heard before this Court (HAGARTY, C. J. O., BURTON, OSLER, and MACLENNAN, JJ.A.) on the 26th and 27th of November, 1889.

McCarthy Q. C., and W. H. Barry, for the appellants.

J. H. Macdonald, Q. C., for the respondent.

January 14th, 1890. The Court, agreeing with the judg- Judgment. ment below, dismissed the appeal with costs, holding that the tenancy, though by oral lease void under the Statute of Frauds, was a tenancy for a term certain and not from year to year; that the sub-tenancy came to an end with the tenancy, and that the subsequent proceedings fully set out in the report below, did not operate to create a new term as between the sub-tenants and the plaintiff.

Statement.

Judgment.

ANDERSON V. FISH.

Sale of goods-Stoppage in transitu-Consignor and consignee-Right of carriers to prolong period of transitus.

THIS was an appeal by the plaintiff from the judgment of the Queen's Bench Division, reported 16 O. R. 476, and came on to be heard before this Court (HAGARTY, C. J. O., BURTON, OSLER, and MACLENNAN, JJ.A.) on the 14th of November, 1889.

G. T. Blackstock, for the appellant.

J. B. Clarke, for the respondent.

January 14th, 1890. The Court dismissed the appeal with costs, agreeing with and adopting the reasons for judgment of the majority in the Court below.

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