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department of executive government. If this be its
proper position, it is hard to see how any colonial officer can exercise such prerogative. All the other prerogatives which fall within this category are treated as prerogatives pertaining to mutters of Imperiul concern, such as, for instance, the appointment of knights, baronets, etc., etc. If, on the other hand, the prerogative is one connected with the administration of justice, it would appear that it is one proper to be exercised both by the Governor-General and the Lieutenant-Governors of the various provinces—by the former in relation to courts of Dominion creation, hy the latter in connection with provincial courts. It is laid down in all the books that members of the Bar are officers ” of the courts, and the assignment of precedence to certain of those members, would seem to be a matter relating either to the organization of the courts or to procedure therein. In Lenoir v. Ritchie, it was not necessary to the letermination of that case to decide whether or not a LieutenantGovernor is entitled to exercise this prerogative—the question there involved being as to the precedence given to provincial over Dominion Queen's Counsel.
At the same time, some of the judges, both in the Nova Scotia courts and in the Supreme Court of Canada, expressed very decided views against the right of the Lieutenant-Governor to exercise the prerogative in any case. The question is now standing for argument before the Court of Appeal for Ontario. Subject to the assignment of this prerogative to its proper place in connection with executive governmentto detining the subject matter within which it properly falls—the general principle which must govern in regard to all these questions of "prerogative” would now seem to be authoritatively stated in the judgment of the Privy Council in Liquidators of Maritime Bank v. Receiver-General of New Brunswick. See notes to section 58, ante.
(ii) “Subject to be abolished or altered by the respective legislatures of Ontario and Quebec.”—See notes to section 12, (Inte, p. 257 ; also to section 129, post. The decision
in Dobie v. Temporalities Board, 7 App. Cas. 136, is directly applicable to the interpretation of these two sections, 12 and 65. All the various subject matters in respect to which, before Confederation, these “powers, authorities, and functions” could be exercised, are, by the effect of these sections, divided, and, in relation to each division, all these powers, etc., are vested in the executive head of the Dominion and of each province respectively. But in respect to each division, the Dominion parliament or the provincial legislative assembly may abolish or alter these powers in such fashion, and to such extent, as may be thought necessary to the proper government of the Dominion or the province, as the case may be. The holding in Dobie v. Temporalities Board is thus expressed in the head-note :
“ The powers conferred by the B. N. A. Act, 1867, section 129, upon the provincial legislatures of Ontario and Quebec to repeal and alter the statutes of the old parliament of Canada, are precisely co-extensive with the powers of direct legislation, with which those bodies are invested by the other clauses of the Act of 1867.”
See further as this section, Attorney-General (Canadla) v. Attorney-General (Ontario), 20 O. R. 222 : affirmed in appeal, 19 O. A. R. 31.
66. The provisions of this Act refer- Application ring to the Lieutenant-Governor in Coun- Lieutenantcil shall be construed as referring to the Council Lieutenant-Governor of the Province acting by and with the advice of the Executive Council tliereof (i).
(i) Compare section 13, ante, p. 258. A reference to section 65, suggests that there may possibly he powers vested in the Lieutenant-Governor of a province which he may exercise individually; that is to say, that his exercise of such powers, even contrary to the advice of the Execu
tive Council, would be legally valid. So far as the B. N. A. Act itself is concerned, the only powers which a LieutenantGovernor may exercise otherwise than by Order in Council, are those conferred by section 63, in reference to the appointment of members of the Executive Councils of Ontario and Quebec; by section 72, in reference to the appointment of Legislative Councillors in Quebec; by sections 82 and 85, in reference to the summoning and dissolving of the provincial Legislative Assembly; and by section 90, the giving or withholding of the assent of the Crown to bills passed by the Legislative Assembly. But, with regard to all of these, with the exception of the last named, the “conventions of the constitution” which, as we have shown, are as fully operative within Canada, in relation to the various governments here existing, as in relation to the parliament of the United Kingdom, require that all such acts must be done upon the advice of ministers having the confidence of the legislature of the province. As to the appointment of members of the Executive Council, the LieutenantGovernor must ex necessitate, so far as the legal position is concerned, appoint, without advice, the new members upon the defeat and resignation of an entire administration, but even in such cases, the in-coming ministry or Executive Council must accept entire responsibility for the acts of the Lieutenant-Governor in connection with the formation of the new Executive Council. With regard to the giving or withholding of the assent of the Crown to bills passed by the Legislative Assembly of a province, a Lieutenant-Governor acts as a member of the Dominion executive staff, or, at all events, is supposed to be subject to “instructions” from the Governor-General, although, in practice, the supervision of provincial legislation entrusted to the Dominion executive is exercised after the event, by " disallowance," rather than before the event, by “instructions” to withhold the Crown's assent. See notes to section 58, unte, for some further observations as to the position of a LieutenantGovernor in relation to the federal executive.
67. The Governor-General in Council may from time to time appoint an ot Lieutenantadministrator to execute the office and functions of Lieutenant-Governor during his absence, illness, or other inability (i).
(i) With this section compare section 14, ante, which (coupled with the Letters Patent) empowers the GovernorGeneral to appoint a Deputy Governor-General. This section, it will be noticed, conveys no such power to a Lieutenant-Governor, and as to him, therefore, the maxim tlelegatus non potest delegari applies. We do not overlook the rule of law that a colonial legislature has as full power to alter and mould the lex prerogativa in the colony as has the Imperial parliament in Great Britain; but, on the other hand, the provisions of section 92, sub-section 1, must not be overlooked. See notes to that sub-section, which expressly prohibits a provincial legislature from amending the provincial constitution “as regards the office of Lieutenant-Governor."
Reference has already been made to Attorney-General (Can.) v. Attorney-General (Ont.) (e), in which there arose for discussion the question of the power of a provincial assembly to vest in the Lieutenant-Governor powers in connection with the Executive government of the provinc other than those expressly vested in him by section 65 of the B. N. A. Act. See ante, p. 305. The language of the various judges who delivered opinions in that case supports the view that there is the power in a provincial assembly—to use the phrase of Boyd, C.-to impose upon a LieutenantGovernor any executive functions “ germane to the office.” In view of the recent decision of the Privy Council already noted, the legislation impugned in this case would appear to have been, as Mr. Justice Burton considered it, unnecessary. A somewhat different question is suggested by this
(e) 20 O. R. 322 ; 19 O. A. R. 31.
section 67, taken in connection with sub-section 1 of section 92, conferring upon provincial legislatures power to amend the provincial constitution “except as regards the office of Lieutenant-Governor.”
During the last illness of the late Lieutenant-Governor Campbell, an Order in Council was passed appointing Deputy Lieutenant-Governor, and this action on the part of the provincial government gave rise to considerable discussion. It is understood that the Attorney-General of Ontario prepared a "state paper" in support of this action of his government, but this we have not seen. A Lieutenant-Governor-standing as he does in the same relation to the
government of a province as the Governor-General does in relation to the government of the Dominion-has vested in him the appointment of all subordinate executive officers throughout the province, but we do not see how this could extend to authorize the appointment of a deputy. Under the B. N. A. Act this would seem to be clear, that the executive head--the person carrying on the government-of a province is to be one link in the chain of federal connection between the provinces and the Imperial government, and his tenure of office is (section 59) during the pleasure of the Governor-General, subject to certain restrictions upon the exercise of the power of removal, already adverted to. This would seem to be one of those essentials in connection with the office of a Lieutenant-Governor which a provincial legislature cannot alter, under section 92, sub-section 1. By section 62 (ante, p. 310) the provisions of the B. N. A. Act relating to a Lieutenant-Governor apply also to "other the chief executive officer or administrator for the time being carrying on the government of the province, by uhutever title he is designated," and the express provision of this section 67 was harlly needed to negative the power of a Lieutenant-Governor to appoint a deputy to "carry on the government” of the province during the absence, etc., of the Lieutenant-Governor.