It is, we may say, entirely beyond the scope of this work to discuss the general law and practice in reference to elections and election trials. We simply desire to assign these subjects their proper place in our constitutional system.

(iii) "The trial of controverted elections and proceedings incident thereto."-Prior to confederation, the legislatures of the various provinces followed the example of the British parliament, and retained in their own hands the right to decide all questions as to the status of their members, and for some years after Confederation, both the Dominion and provincial legislatures retained this jurisdiction.

"As the House of Commons in England exercised sole jurisdiction over all matters connected with controverted elections except so far as they may have restrained themselves by statutory restrictions, the several Houses of Assembly always claimed and exercised in like manner the exclusive right to deal with, and be the sole judges of election matters, unless restrained in like manner, and this claim, and the exercise of it, I have never heard disputed; on the contrary it is expressly recognized as existing in the Legislative Assembly by the Judicial Committee of the Privy Council in Théberge v. Landry," per Ritchie, C.J., in Valin v. Langlois (3 S. C. R. at p. 10).

See also his short historical sketch of English practice and legislation on this subject, (pp. 12 and 13). In the judgment of the Judicial Committee of the Privy Council (2), to which the learned Chief Justice refers, Lord Cairns (p. 106), speaks of the Quebec Controverted Elections Acts of 1872 and 1875, as "peculiar in their character":

"They are not Acts constituting or providing for the decision of mere ordinary civil rights; they are Acts creating an entirely new, and up to that time unknown, jurisdiction in the particular court of the colony for the purpose of taking out, with its own consent, of the legislative Assembly, and vesting in that Court, that very peculiar jurisdiction, which, up to that time, had existed in the Legislative Assembly, of deciding election petitions, and

(x) Théberge v. Landry, 2 App. Cas. 102.

determining the status of those who claimed to be members of the Legislative Assembly."

and the Committee, held, in that case, that those Acts did not annex to the decisions of the tribunals constituted by them, the ordinary incident of being reviewed by the Crown under its prerogative right to hear appeals from colonial

courts.

Were there any question of the right of a colonial legislature to set up and exercise such a claim (see notes to section 18, ante, p. 262, and section 69, post), the above section 41, and the corresponding section (section 84), as to the legislatures of Ontario and Quebec, would seem sufficient statutory acknowledgment of it, and, as noted by Ritchie, C.J., Théberge v. Landry is a distinct recognition of its existence. The particular point involved in Valin v. Langlois was as to the power of the Dominion parliament to confer upon provincial courts, jurisdiction to try petitions under the Dominion Controverted Elections Act, 1875, and this will be found discussed in chapter XI, ante, p. 231, et seq. and in the notes to section 92, sub-section 14, post. held that the statute was intra vires (3 S. C. R. 1, and 5 App. Cas. 115), and we need here only note that, in the view of the Judicial Committee of the Privy Council, the opening clause of section 41: "Until the parliament of Canada otherwise provides": impliedly conferred upon the Dominion parliament full power to make laws in relation to the matters enumerated in the remainder of the section, although not enumerated in any of the various sub-sections of section 91-and this, irrespective of the construction to be put upon the general words of the opening clause of

section 91.

66

It was

It

That other clause, the 41st, expressly says that the old mode of determining this class of questions was to continue until the parliament of Canada should otherwise provide. was, therefore, the parliament of Canada which was otherwise to provide. It did otherwise provide by the Act of 1873, which Act it afterwards altered and then passed the Act now in question.

CAN. CON.-19

So far, it would appear to their Lordships very difficult to suggest any ground upon which the competency of the parliament of Canada so to legislate could be called in question."per Lord Selborne, 5 App. Cas. at p. 119. See also per Ritchie, C.J., 3 S. C. R. at p. 11.

The legislative jurisdiction of the Dominion parliament with respect to the election of members of that body has been said by the Court of Appeal for Ontario to be "beyond dispute." See Doyle v. Bell, 11 O. A. R. 326 (affirming 32 U. C. C. P. 632), in which the provisions of the Dominion Controverted Elections Act, for the prevention of corrupt practices at elections, and for their punishment, either criminally or by the forfeiture of money to be sued for and recovered by an informer, were upheld as the exercise of power necessarily "incident to the power to regulate the mode of election of members of parliament.' The contention of the defendant was, that the giving of a right of action to an informer was legislation as to “civil rights in the province," and therefore ultra vires. See notes to section 92, sub-section 13, post.

The trial of controverted elections was transferred to the courts, in England in 1868; in Ontario in 1870, (34 Vic. c. 3); in Quebec in 1872 (36 Vic. c. 5); by the Dominion parliament in 1873. See also 35 Vic. c. 10 (Manitoba); Con. Stat. c. 40 (British Columbia): R. O. 1888, c. 5 (N. W. Territories): 32 Vic. c. 32 (New Brunswick); 37 Vic. c. 21 (P. E. Island): and 38 Vic. c. 25 (Nova Scotia).

Writs for first election.

42. For the first election of members to serve in the House of Commons the Governor-General shall cause writs to be issued by such person, in such form, and addressed to such Returning Officers as he thinks fit.

The person issuing writs under this section shall have the like powers as are

possessed at the Union by the officers charged with the issuing of writs for the election of members to serve in the respective House of Assembly or Legislative Assembly of the Province of Canada, Nova Scotia, or New Brunswick; and the Returning Officers to whom writs are directed under this section shall have the like powers as are possessed at the Union by the officers charged with the returning of writs for the election of members to serve in the same respective House of Assembly or Legislative Assembly.

As to casual

43. In case a vacancy in the repre- vacancies. sentation in the House of Commons of any Electoral District happens before the meeting of the Parliament, or after the meeting of the Parliament before provision is made by the Parliament in this behalf, the provisions of the last foregoing section of this Act shall extend and apply to the issuing and returning of a writ in respect of such vacant District.

of Speaker of House of

44. The House of Commons on its As to election first assembling after a general election commons. shall proceed with all practicable speed to elect one of its members to be Speaker.

As

up vacancy in office of

45. In case of a vacancy happening as to filling in the office of Speaker by death, resigna- Speaker. tion or otherwise, the House of Commons shall with all practicable speed proceed

Speaker to preside.

to elect another of its members to be Speaker.

46. The Speaker (i) shall preside at all meetings of the House of Commons.

(i) "The Speaker."-See R. S. C. (1886), c. 11, s. 24, which provides that the salary of the Speaker of the House of Commons shall be $4,000 per annum. The duties of the Speaker are not defined in the B. N. A. Act, otherwise than by section 46, but his position (the same is true of the position of the Speakers of the various Legislative Assemblies) is practically the same as that of the Speaker of the House of Commons in England. His functions are to a certain extent of a semi-judicial nature, and he is supposed to have thrown aside all party bias upon his elevation to the chair. See Bourinot" Parl. Proc. and Prac." (2nd ed.) p. 202, et seq., where will be found a succinct statement of his position and duties. By way of contrast, see Prof. Wilson's "Congressional Government" for a clear statement as to the position of the Speaker of the House of Representatives at Washington. There he is supposed to exercise the powers of his office in furtherance of the aims of his political party, and is practically the leader of that party in the House; the chairmen of the various standing committees of Congress are appointed by him, and by exercising judicious selection in this respect he is able to ensure that his views upon public matters will find practical expression in the work of Congress.

Provision in case of ab

sence of

Speaker.

47. Until the Parliament of Canada. otherwise provides (i), in case of the absence for any reason of the Speaker from the chair of the House of Commons for a period of forty-eight consecutive hours, the House may elect another of its members to act as Speaker, and the member