CURRIE (HON. JOHN S.) et al vs. MACDONALD (SIR GORDON, GOVERNOR OF NFLD) et al.
Constitutional Law—Proceedings of the Imperial Parliament and the Commission of Government of Newfoundland, with a view to the union of Newfoundland with Canada — Action of certain citizens for declarations and injunctions as against governing authorities — position of the courts in relation to governing authorities.
Certain citizens, stating themselves to be former members of the Legislature of Newfoundland suspended by the Crown following the Newfoundland Act 1933 (of the Imperial Parliament at Westminster) took action for a declaration that the National Convention Act 1946 and the Referendum Act 1946 were ultra vires the Commission of Government and void; that union of Newfoundland with Canada could be effected only under the strict provisions of s.146 of the British North America Act 1867; and that the Imperial Parliament had no power to make a law for the incorporation of Newfoundland with Canada: and asked for injunctions against the Governor and Commission of Government to prevent their conducting terms for the union of Newfoundland and Canada; or requesting the Imperial Government to pass legislation for effecting such union; or doing anything other than take measures for the restoration of separate Responsible Government for Newfoundland.
HELD—By Dunfield, J. in Chambers; the statement of claim must be struck out under 0.XXIV rule 4 as disclosing no reasonable cause of action.
On Appeal—Held by Emerson CJ, and Winter J. that the decision of the judge in chambers was right.
The statement of claim was as follows, and is necessary to be quoted for the better understanding of the judgments
STATEMENT OF CLAIM
1. The plaintiffs are inhabitants of the Dominion of Newfoundland and have their permanent residence therein and were all members of the last Parliament of Newfoundland.
2. The defendants are members of the Commission of Government.
3. On the 17th day of February A.D. 1933 His Majesty was pleased to order, on the advice of His Ministers in the United Kingdom of Great Britain and Northern Ireland, in the Dominion of Canada and the Island of Newfoundland that a commission should issue to examine into the future of Newfoundland and in particular to report on the financial situation and prospects therein and to suggest such measures as might appear to them best calculated to meet the situation, and appointed William Warren MacKenzie, Baron Amulree, Charles Alexander Magrath, and Sir William Ewen Stavert, for that purpose.
4. On the 4th day of October A.D. 1933, the said Commission submitted their report to His Majesty.
5. Inter alia, the said Commission recommended that the Newfoundland Government should make an immediate appeal for the sympathetic co-operation of His Majesty's Government in the United Kingdom in the adoption and execution of a joint plan of reconstruction, of which the following were to be the main features:
(a) the existing form of Government would be suspended until such time as the island may become self-supporting again.
(b) A special Commission of Government would be created vested with full legislative and executive authority, and would take place of the existing Legislature and Executive Council.
(c) The Commission of Government would be composed of six members, exclusive of the Governor, three of whom would be drawn from Newfoundland and three from the United Kingdom.
(d) The government departments in the island would be divided into six groups. Each group would be placed in the charge of a member of the Commission of Government, who would be responsible for the efficient working of the department in the group, and the commission would be collectively responsible for the several departments.
(e) The proceedings of the Commission of Government would be subject to supervisory control by Your Majesty's Government in the United Kingdom, and the Governor in Commission would be responsible to the Secretary of State for Dominion affairs in the United Kingdom for the good government of the island.
(f) Your Majesty's Government in the United Kingdom would, for their part, assume general responsibility for the finances of the island until such time as it may become self-supporting again, and would, in particular make such arrangements as may be deemed just and practicable with a view to securing to Newfoundland a reduction in the present burden of the public debt.
(g) It would be understood that, as soon as the island's difficulties are overcome and the country is again self-supporting, responsible government, on request from the people of Newfoundland, would be restored.
(h) The appropriate procedure for bringing a joint plan of this character into operation would, we suggest, be the submission of an address to Your Majesty by both Houses of the Newfoundland Parliament, followed by legislation in the United Kingdom.
6. His Majesty's Government in Great Britain signified readiness to accept the main recommendations of the said commission and if these recommendations should be accepted also by the Newfoundland Government and Legislature they would propose on being informed to that effect to invite Parliament to pass legislation necessary to give effect to them.
7. Accordingly resolutions were introduced by the Government of Newfoundland in both Houses of Parliament in His Majesty's Dominion of Newfoundland and were duly passed that the following address be presented to His Majesty the King and the said address was duly presented.
TO THE KING'S MOST EXCELLENT MAJESTY
Most Gracious Sovereign:
We, Your Majesty's Most Dutiful and Loyal Subjects, the Legislative Council and Assembly of Newfoundland humbly approach Your Majesty praying that
WHEREAS in the present emergency Your Majesty's Island of Newfoundland is unable from its own resources to defray the interest charge on the public debt;
AND WHEREAS the Royal Commission appointed by Your Majesty's Warrant bearing date the Seventeenth day of February, 1933, to examine into the future of Newfoundland has recommended that for the time being, until such time as the Island may become self-supporting again, the Governor acting on the advice of a specially created Commission of Government and that during such period Your Majesty's Government in the United Kingdom should assume general responsibility for the finances of Newfoundland and should, in particular, make such arrangements as may be deemed just and practicable with view to securing to Newfoundland a reduction in the present burden of the public debt;
AND WHEREAS Your Majesty's Government in the United Kingdom have signified their readiness, subject to the approval of Parliament, to accept the recommendations of the Royal Commission, and have made detailed proposals for carrying these recommendations into effect;
NOW THEREFORE, Your Majesty may be graciously pleased to suspend the Letters Patent under the Great Seal bearing date at Westminster the Twenty-eight day of March, 1876, and the letters patent under the Great Seal bearing date at Westminster the Seventeenth day of July, 1905, and to issue new Letters Patent which would provide for the administration of the Island, until such time as it may become self-supporting again, on the basis of the recommendations which are contained in the Report of the Royal Commission, and of which a summary is set out in the Annex hereto.
AND FURTHER that Your Majesty may be graciously pleased to cause to be laid before the Parliament of the United Kingdom at its present Session such a measure as may enable them to be given immediate effect.
8. On the 21st day of December A. D. 1933 an Act known as the Newfoundland Act 1933 was passed by the Parliament of Great Britain and duly received His Majesty's assent as a result of the Address from the Parliament of Newfoundland.
Section 1 of the said Act reads as follows:
"I. It shall be lawful for His Majesty by any Letters Patent under the Great Seal of the Realm to make provision for the suspension of the operation of the existing Letters Patent dated the twenty-eighth day of March eighteen hundred and seventy six, constituting the office of Governor of Newfoundland, and of the existing Letters Patent dated the 17th day of July nineteen hundred and five, regarding the absence of the Governor, and to make provision for the administration of Newfoundland during the period while the operation of the existing Letters Patent is suspended on the basis of the recommendations of the Royal Commission referred to in the said Address.
2. Any Letters Patent issued under the foregoing subsection may contain a provision reserving power to His Majesty to revoke or amend those Letters Patent, but before the passing of any further Letters Patent terminating the suspension of the operation of the existing Letters Patent or making any such altered provisions for the administration of Newfoundland during the period while the operation of the existing Letters Patent is suspended as would empower the Governor to act in the administration of Newfoundland otherwise than on the advice of a Commission of Government constituted in accordance with the said recommendations, a draft of the further Letters Patent shall be laid before each House of Parliament for a period of twenty-one days during the Session Parliament and, if an Address is presented to His Majesty by either House of Parliament against any of the provisions contained in the draft, no further proceedings shall be taken on the draft, without prejudice to the making of a new draft:
Provided that in reckoning any such period of twenty one days as aforesaid, no account shall be taken of any time during which both House of Parliament are adjourned for more than four days."
The said Act conferred no power on His Majesty's Government of the United Kingdom to decide what laws should be made for Newfoundland or to impose such a decision upon any Commission appointed under Letters Patent made under that Act.
9. By Letters Patent dated 30th January A.D. 1934 His Majesty suspended the existing Letters Patent and made provision for the administration of Newfoundland and constituted thereunder a Commission of Government of six members with the addition of the Governor as Chairman and by Proclamation dated the 16th day of February A. D. 1934 the said Letters Patent dated 30th January 1934 came into operation and pursuant thereto a Commission of Government of seven members appointed by His Majesty on the advice of His Ministers in Great Britain was sworn in as the Commission of Government of the Dominion of Newfoundland, and with various changes in personnel has carried on the Government of the Dominion of Newfoundland to this date, although His Majesty's Dominion of Newfoundland has been self-supporting since the year 1941. Under the said Letters Patent it was the legal duty of the Commission of Government, as soon as the Dominion of Newfoundland became self-supporting, to seek the restoration of Responsible Government and the revocation of the Letters Patent of 1934. In breach of this duty the Commission have failed to seek the restoration of Responsible Government and revocation of the Letters Patent of 1934.
Clause 7 of the said Letters Patent reads as follows:
"And we further authorize and empower our said Governor with the advice and consent of the said Commission, to make laws for the peace, welfare and good -government of our said Island and any such law may amend, add to, alter or repeal any law passed by the Legislature heretofore subsisting in our said Island."
Under the said Letters Patent the Commission has no power to make laws for the purpose or with the effect of preventing the restoration of Responsible Government and that it was the duty of the Commission under the Letters Patent in making laws to exercise an independent judgment upon the question whether the law was one for the peace, welfare and good government of Newfoundland.
10. On the 21st day of May A. D. 1946 the said Commission of Government passed an Act known as the National Convention Act. The Preamble of the said Act reads as follows:
"WHEREAS it has been decided that provision should be made for enabling the people of Newfoundland to examine the future of the Island and express their considered views as to suitable forms of Government for the Island, having regard to the financial and economic conditions prevailing therein, and that this provision could most appropriately be the holding of an elected National Convention of Newfoundland."
Section 3 reads as follows:
"It shall be the duty and function of the Convention to consider and discuss among themselves as elected representatives of the people of Newfoundland the changes that have taken place in the financial and economic situation of the Island since 1934, and, bearing in mind the extent to which the high revenues of recent years have been due to wartime, to examine the position of the country and to make recommendations to His Majesty's Government in the United Kingdom as to possible forms of future government to be put before the people at a National referendum,"
The said Act was ultra vires the Commission of Government in that it was not a law for the peace, welfare and good government of Newfoundland.
11. On or about the 11th day of September A.D. 1946 and various days thereafter the said National Convention met and considered the matter to them referred and on the 30th day of January 1948 recommended that, in accordance with the National Convention Act 1946, two forms of Government be submitted to the people of Newfoundland viz:—
(i) Responsible Government
(ii) Commission of Government
A Resolution to recommend that Confederation with Canada be added was defeated by 29 to 16 votes.
12. Contrary to the desires and recommendations of the said National Convention Act the said Commission of Government passed the Act No. 9 of 1948 entitled the Referendum Act in which was included another choice known as Confederation with Canada, and further, contrary to the decisions and recommendations of the National Convention. Confederation with Canada was placed on the ballot paper submitted to the people of Newfoundland on the 3rd day of June 1948.
In the Referendum Act 1948 the penultimate preamble reads as follows:
"AND WHEREAS His Majesty's Government in the United Kingdom have decided that the forms of government hereinafter in this Act set forth should be put before the people at a national referendum."
The Commission in making this law did not exercise any judgment or any independent judgment upon the question whether the law was one for the peace, welfare and good government of Newfoundland but purported to give effect to a decision of His Majesty's Government in the United Kingdom, which had no legal power to decide the question whether a law was for the peace, welfare and good government of Newfoundland or to impose its decision of such a question upon the Commission.
13. The result of the said Referendum was that Responsible Government received 68,239 votes, Confederation with Canada 62,441 votes and continuance of Commission of Government 21,775 votes.
14. In accordance with the provisions of the said Referendum Act a further Referendum was held on the 22nd day of July 1948 with the following results. Confederation with Canada 78,525 votes and Responsible Government 71,334 votes.
15. Notwithstanding the votes of the Referendum of June 3rd, 1948, in which continuance of Commission of Government received only a small percentage of the total votes cast, viz, about 15 per cent thereof, the Commission of Government is still carrying on the Government of the Dominion of Newfoundland and has recently appointed a delegation of which the Hon. Albert Walsh, Vice-Chairman of the Commission of Government and Attorney General is Chairman, to proceed to Canada to conclude the terms of Union with that country.
16. The plaintiffs will suffer by Confederation with Canada a change socially, economically and politically, but above all, in common with the other people of Newfoundland, they will be seriously affected in their allegiance and national status and citizenship.
17. Section 146 of the British North America Act provides as follows:
"It shall be lawful for the Queen by and with the advice of the Privy Council on addresses from the Houses of Parliament of Canada, and from the Houses of the respective legislature of the Colonies or Provinces of Newfoundland, Prince Edward Island and British Columbia, to admit these Colonies, or Provinces, or any of them into the Union."
The Commission are not the Houses of the Legislature of Newfoundland with the meaning of the said section.
18. The preamble to the Statute of Westminster reads as, follows:
"And whereas it is in accord with the established constitutional position that no law hereafter made by the Parliament of the United Kingdom shall extend to any part of the law of that Dominion otherwise than at the request and with the consent of that Dominion."
Section I of the said Statute reads as follows:
"Meaning of 'Dominion' in this Act:— In this Act expression 'Dominion' means any of the following Dominions, that it to say, the Dominion of Canada, the Commonwealth of Australia, the Dominion of New Zealand, the Union of South Africa, the Irish Free State and Newfoundland."
The established constitutional position requires that the request and consent of a Dominion shall be expressed by the elected Parliament of that Dominion.
19. The Plaintiffs humbly seek a declaration
(A) That it was the legal duty of the Commission of Government as soon as the Dominion of Newfoundland was self-supporting to seek the revocation of the Letters Patent of 1934 and the restoration of Responsible Government.
(B) That the National Convention Act of 1946 is beyond the powers conferred on the Commission in that the said Act is not one for the peace, welfare and good government of Newfoundland and that it is repugnant to the provisions of the Newfoundland Act, 1933.
(C) That the Referendum Act 1946 was invalid and the proceedings taken under it null and void on the grounds:
(i) that the said Act unlawfully made provisions for the inclusion of Confederation with Canada as a choice on the ballot paper and that the effect of such inclusion was to prevent the restoration of Responsible Government to Newfoundland and that the Commission had no power under the Letters Patent of 1934 to make a law for that purpose or with that effect.
(ii) that in making the law the Commission did not exercise any judgment or any independent judgment upon the question whether the law was one for the peace, welfare and good government of Newfoundland, but in breach of their duty under the said Letters Patent purported by this law to give effect to a decision of His Majesty's Government in the United Kingdom, and
(iii) that His Majesty's Government in the United Kingdom had no power to decide what laws should be made for Newfoundland or to impose their decision on the Commission.
(D) (i) That under the constitutional law of the Commonwealth, including Newfoundland, Confederation between that country and Canada can be established only by the means prescribed by Section 146 of the British North America Act, 1867, or under the provisions of a new Imperial Act.
(ii) That under Section 146 of the British North America Act Newfoundland can be admitted into the Union of British North America on an Address to the Crown from the Houses of the Legislature of Newfoundland to admit Newfoundland into the Union, and that the Commission are not the Houses of the Legislature of Newfoundland within the meaning of Section 146 and that they have no power under the Letters Patent or otherwise to present such an Address to the Crown.
(iii) That under the constitutional law of the Commonwealth, including Newfoundland, the Imperial Parliament has no power to make a law providing for the confederation of Newfoundland and Canada except at the request of a parliament elected by the people of Newfoundland, that under the Letters Patent or otherwise the Commission have no power to request the Imperial Parliament to make such a law, and that if such a law is made otherwise than at the request of a Parliament elected by the people of Newfoundland it will not be binding upon the people of Newfoundland.
20. The Plaintiffs further seek an injunction restraining the defendant or any of them, their servants, agents or appointees from
(a) Concluding terms of Union with the Dominion of Canada.
(b) Requesting the Parliament of Great Britain to pass legislation for furthering any Union with said Dominion of Canada,
(c) And generally from doing any act or thing to alter the constitutional and legal status of the Dominion of Newfoundland in any manner whatsoever except to seek a restoration of Responsible Government, and a revival of the Letters Patent and Instructions which were suspended in 1934.
Dated at St. John's the 13th day of November A.D. 1948.
DUNFIELD, J.—In this case the plaintiffs have taken an action asking this Court to give a declaratory judgment upon various powers, actions and legislation of the Governor and Commission of Government of Newfoundland (some of those actions being things past and done); and a declaratory judgment upon the powers of the Imperial Parliament; and injunctions against the Governor and Commission of Government as to future legislation and action; all with a view to preventing any further steps towards the Confederation of this country with Canada. These requests are detailed later in this judgment.
I am now asked by the defendants to strike out the statement of claim under Order XXIV, Rule 4, as disclosing no reasonable cause of action and to dismiss or stay the action.
* * * NOTE THAT THERE ARE EDITORIAL CHANGES HERE.
This purports to be a constitutional case, and we cannot deal with it in a rarefied atmosphere of theory, apart from the facts. Constitutional law, in non-Federal British countries, like the so-called international law, is for the most part not law at all, but a system of customs and conventions which the Courts do not enforce; and it deals with the distribution and nations. If I may put it somewhat metaphorical Leviathan can be bound only with ropes of steel, and the attempt to bind him with gossamer webs of words lacks reality. I will review the facts surrounding the case, all of which are common knowledge, and official, so that I can take judicial notice of them.
1. In 1933 the Imperial Government, at Newfoundland's request, suspended the Responsible Government system existing under old Letters Patent and set up a Government consisting of the Governor and a nominated Commission of six, three Britons and three Newfoundlanders, to be both Executive and Legislature (The Newfoundland Act, 1933 (Imperial) and Letters Patent of January 30th 1934).
2. Parliament by an Annex to the Act may perhaps be inferred to have indicated its then intention that Responsible Government should be restored if and when the colony became self-supporting (a matter of opinion) and the people requested it, (I use the words "indicated its then intention" advisedly. Parliament is supreme, cannot be bound, cannot bind itself, and may change its intention without limit. I also insert the note "a matter of opinion" because it is a matter for plentiful argument (a) what the phrase "self-supporting" means (b) whether that condition has been achieved or not, and only the Government or Parliament can be the judge of that; most certainly no Court can determine it).
3. In 1946, economic conditions having improved, the Newfoundland Government, with the approval of the Imperial Government sought to ascertain public opinion as to the future form of Government by assembling a National Convention of selected persons to discuss the matter (see the National Convention Act, No. 16 of 1946). These were selected by the electoral districts by an election process. (I use the words "selected persons" advisedly. They were neither delegates nor representatives, but merely appointees to a debating body, having no powers save to recommend; and the Government was not bound to take their opinions).
4. This convention of its own motion sent a delegation to Canada to ascertain what terms if any might be available for Confederation of Newfoundland with that Dominion.
5. As a result of this visit on October 30th, 1947, the then Prime Minister of Canada offered specific terms to the Governor of Newfoundland.
6. The convention voted by a majority against submitting these terms to the electorate; but the local Government and the Secretary of State in England, considering that the terms ought to be submitted to the people, rejected the advice of the Convention on that point.
7. In 1948 these authorities enquired of the people by Referendum (see the Referendum Act, No. 9 of 1948) whether they would prefer as their future form of Government (a) Confederation with Canada (b) Responsible Government as in 1933 (c) a temporary continuance of the Commission system,
8. The electorate clearly rejected the Commission system.
9. The electorate was then asked in a second referendum (the same Act) whether it would prefer (a) Confederation or (b) Responsible Government as in 1933. The result was a majority for Confederation. That was in July 1948.
10. The British and Canadian Governments announced that they accepted this as a decision of the people.
11. An official delegation appointed by the Newfoundland Government has been in Ottawa conducting a re-discussion of the terms, and reported finally a day or two ago.
12. All this obviously has been done, with the approval of the Imperial Government, because the Speech from the Throne at the commencement of the current session of Parliament at Westminster has announced that legislation will be introduced at this session to give effect to any agreement which may be come to in the said negotiations at Ottawa
It is in the face of this long succession of Statutes and Acts of political authority, and at this late stage of the game, that the present plaintiffs come in with this action, and seek to have this Court restrain by declaration that power, the Parliament at Westminster, which has unlimited control over our destinies, and is not subject to any restraint save by the facts of nature and its own moderation. They also seek to have us restrain the Government of Newfoundland by injunction from going further in the matter of Confederation. And they seek to have certain past events, the National Convention, and the referenda, declared to be void, and future steps looking towards Confederation to be ultra vires.
I will set forth some basic propositions which every lawyer knows:—
1. This Court is the King's Court. It enforces the law of the realm, and restrains those who would break the law, refuse their obligations, or illegally oppress their fellows. But it takes the law from the legal sources of law. The Courts are regulative, not originative. The Crown in Council and the Crown in Parliament are the ultimate casettes of Governmental power. Once we know that it is their will which is being done, the matter is beyond us.
2. In this country the Governor represents the King, Under the present system, with his advisers, the Commissioners, he is also the legislature. As such, he can pass any Act he thinks fit, subject to the overruling power of the Crown, which means of the appropriate Secretary of State, the British Government and Parliament. I need not go into the legal basis of this; it was set forth cogently and at length by our late brother Fox in Dillon vs. Canning et al. in March 1946, in this Court.
3. The Crown cannot be summoned by writ into its own Court by a subject. The subject can take a Petition of Right (which requires the Crown's permission) if he claims something from the Crown; and under the judicature Act the Crown can be sued on a contract, again by petition. But no writ, which is an order to appear, can go to the Crown, And you cannot sue a legislature.
4. It appears however from Musgrave v. Pulido (1879) 5 A.C. 102 and the cases there reviewed, that in certain cases a Colonial Governor representing the Crown could be sued. Three situations are possible. First, a governor has been sued personally for debt (Hill v. Bigge (1841) 3 Moo. P. C. C. 465); or he might well be sued if he ran someone down with his motor-car; though in no case could he be arrested. These are personal liabilities. Secondly, he may do something in his official capacity which injures some individual. In Musgrave v. Pulido (1879) 5 A. C. 102, he arrested a ship in Jamaica; in Mostyn v. Fabrigas (1774) 1 Cowp. 161, he banished a rioter from Majorca (which was then a British possession); in Glynn vs. Houston (1841) 133 E.R. 775 he had a person unlawfully detained in Gibraltar. In such a case the question is whether the complainant has a remedy or is barred because there is a lawful act .of public policy. But thirdly, he may do acts in his official capacity as head of the state, which affect the whole state, not an individual. Such is the present case. It appears on the very face of the paper that all the acts complained of are political acts or acts of State, i.e. acts of a public character in respect of the whole colony and its people; and we are not asked to give somebody a remedy for his wrong, we are asked to interfere in the political management of the country. As Sir Montague Smith said in delivering the opinion of the Judicial Committee of the Privy Council in Musgrave vs. Pulido — the Courts entertained jurisdiction to enquire into the nature of the acts complained of; and it was only when it was established that they bore the character of political Acts of State that it was decided they could not take further cognizance of them". In our present case, on the face of them they bear that character and are attacked as such.
5. The Imperial Parliament can pass any Act whatsoever without any limit whatsoever except those set by nature and its own moderation and what is called "practical politics". As DeLolme wrote "Parliament can do anything except change a woman into a man or a man into a woman", which saying has passed into a legal proverb.
6. And further, Parliament can make any law whatsoever binding on us or on anybody else in the Empire. Certain Dominions have adopted the Statute of Westminster, and Parliament will not legislate for them without consent. But Newfound land has not adopted it. Dicey (Law of the Constitution) observes Parliament can legally legislate on any topic whatever which in the judgment of Parliament is a fit subject for legislation. There is no power which under the English Constitution can come into rivalry with the legislative sovereignty of Parliament. No one of the limitations alleged to be imposed by law on the absolute authority of Parliament has any real existence, or receives any countenance either from the Statute Book or from the practice of the Courts". And Lord Justice Farwell, in R. vs. Crewe, (Earl of) 1910, 79 L.J.K. 13. at p. 891 says "I fail to see how any Court can say that the legislature — that is, the Crown, the lords and commons — has not jurisdiction to set up a despotism in any of the Dominions of the Crown, or indeed in the United Kingdom itself, although the results might be even more disastrous than the attempt in the 18th Century to tax the American Colonies."
7. The British North America Act 1867 (and amendments) which is the Constitution of Canada, is an Imperial Act, and call be altered by the Imperial Parliament. In practice Parliament never touches it save on the request of Canada; but on that request it will change it and to any extent.
8. Anything done by the Crown, in its capacity as the sovereign power in the state, and for the general public purposes of the state, is what is called all Act of State. A treaty is all example of this. No Court can interfere with an Act of State.
Next, who are the plaintiffs in this case? They are six citizens, differing is no way from other citizens. They observe that they were members of the last Newfoundland Parliament, but ex-membership in a Parliament defunct for fifteen years does not give them any special status.
I know of no precedent for a case where ordinary citizens take legal proceedings against their legislature in respect of its legislative Acts, nor has any been cited by counsel; but the ordinary principles in a case of complaint of excess of authority against a public body is that those complaining must show themselves to be as individuals peculiarly injured over and above citizens generally. But the plaintiffs do not show that; on the contrary they proceeded simply as citizens. It appears to me that they have no right to proceed, to set themselves up as representing any part of the public. The protection of the public generally is a matter for governmental authority, and specifically for the attorney general.
The plaintiffs' main contention, so far as it can be extracted from the lengthy statement of claim, which mixes tip allegations of fact, conclusions of law and claims, may be put shortly thus:—
"Parliament in 1933, by annexing an extract from the Amulree Report to the Newfoundland Act of 1933, promised by implication the restoration of Responsible Government as before 1933 as soon as this country became "self supporting" and as soon as such restoration was requested by "the people".
Therefore: (a) It was and is illegal for the Commission of Government to do anything which might result in the establishment of any form of Government other than pre-1933 Responsible Government; (b) even Parliament is bound by its own act; (c) It was the duty of the Commission of Government to promote the return of pre-1933 Responsible Government and to do nothing which might tend to any other result."
But this main contention is pulled from beneath the feet of the plaintiff by facts, either obvious or set forth by themselves, and these facts are as follows:
(a) "Self-supporting" is an ambiguous phrase. It may mean a state of budgetary balance; but the Budget may be balanced by such drastic means as to leave the country in a parlous condition. For example, the Government might stop all government construction, stop military pensions, cut off all support to the poor, cut the Civil Service in half and give the remainder starvation wages, and double the taxes. Thus the Budget might be balanced by executive decisions; but it would be hard to say then that the country was self-supporting. Again, it may mean a state of affairs where production, import, export and taxes are so adjusted that the country can meet its external and international obligations while leaving to its people a decent scale of living by North American standards; and this is a better definition. But in either case a great number of executive decisions on the part of Government are involved; and with these obviously the Courts can have nothing to do. The Courts do not govern, or settle estimates or taxes. Again, to determine the position under the latter definition might involve extended economic enquiries which the Courts neither can nor will make. Thus the bare allegation of the plaintiffs that the country was self-supporting in 1941 cannot be tested in this Court. The Government, or the Imperial Government, is the only judge of that.
(b) Whether the country is self-supporting or not, the most Parliament can be pretended to have undertaken in 1933 was to restore the pre-1933 Responsible Government at the request of "the people"; and in fact the people have been afforded two official opportunities under the Referendum Act 1948 of requesting the return of pre-1933 Responsible Government and have not requested it, as appears from the statement of claim even if we did not otherwise know it.
(c) Parliament in 1933 at most merely indicated its then intention; it cannot be bound; it cannot bind itself; it is omnipotent in these matters; it may change its mind to any extent.
(d) In point of fact the Government or the Secretary of State elected to offer, side by side with pre-1933 Responsible Government, another form of Responsible Government, which has since become available, viz. Responsible Government as a Province of Canada, which might well stand as an implementation of Parliament's original intention in an altered form; and the people have in fact preferred that altered form.
But Mr. Furlong, for the plaintiffs, put it in another way. He says be does not claim that Parliament is bound by any promise, but that the Newfoundland Act 1933 acts as a limitation on the powers of the Governor in Commission, and prevents it from doing anything which diverges from the line contemplated by the Act, viz: the ultimate restoration of responsible government as before 1933. So at least I understood him.
But what does the Act do? We must read it with care. I seem to remember that it was criticized in Parliament as a queerly constructed Act. What are the reasons behind it?
It must be remembered the colonies were originally ruled by the Crown, not by Parliament; indeed time was when the Crown regarded them as its private domain. In Newfoundland, in early days, as in many others then and now, the Crown's governor ruled unchecked. Then in 1832, again as elsewhere, the Crown (not Parliament) directed him to call an assembly, i.e. to set up representative institutions; and gradually, over the century, these were allowed to grow up into responsible institutions. Every stage of this growth is to be seen in the Empire still. And the doctrine grew up in the Courts that this right of self-government, subordinate always to the Imperial power, once given, could not be recalled by the Crown. Lord Mansfield stated that doctrine in Campbell v. Hall I Cowp. 204 (re Grenada in 1774); the Exchequer Chamber of seven eminent judges repeated it in Philips vs. Eyre 40 L. J. Q. 28 (re Jamaica, in 1870) and it has become settled doctrine. So then, to terminate our legislature the all-powerful Parliament had to intervene; for that, and also because some financial provisions, involving English funds, became necessary.
The Act recites (a) that our legislature has passed an address asking for this (b) that our legislature has passed a Loan Act 1933; and it schedules them both to the Act. So at best they are recitals. The address of our legislature carries with it a few paragraphs from the report of the Amulree Commission on which the new scheme was based. Those paragraphs suggest the suspension of the existing form of government until the island becomes self-supporting again; propose a commission of six to advise the governor; and make certain financial suggestions. These schedules seem to amount to memoranda of the facts; they record the reasons why Parliament acts. Parliament then authorises the Crown to put an end to our legislature by its own order; to issue Letters Patent and amend or revoke them at its pleasure. Parliament makes only two stipulations; it says in effect to the Crown "Please restrain Your governor by binding him to the advise of a commission of six, If You should think fit to change that aspect of the arrangement, or You should propose to command him to call fresh Assemblies, please inform us by laying the proposed documents on the tables of both our Houses for twenty one days, so that we may object if we think fit. Otherwise, the whole matter is in Your bands. And so long as Your government is of the kind we have indicated, we will lend money." All the rest of the Act deals with money.
On the face of it, no Act would be needed to give the island back self-government; the Crown would merely instruct its governor to call fresh Assemblies. It would lay the documents before Parliament first, and if Parliament said nothing against the idea, it would issue them.
To my mind nothing can be clearer than that all this reduces the island to the status of a pure Crown Colony, wherein the Crown's governor, with his nominated council, is the ruler without any assistance from the people. Parliament says nothing about any limitation on the Crown's power. It retires from the field for the time being. And it seems to be perfectly clear that the Crown is the judge of when if at all, representative institutions are to be restored. For no one, save Parliament, can force it.
It follows further that only the Crown is answerable to Parliament for the government of the island; and that neither the Governor and Commission nor the Crown are answerable to the people of the island, or any part of them. And whatever the people of the island may say, as for example in answer to the question put to them in any ,manner, it is for the Crown to say what shall be done, and when steps are to be taken to call a new Assembly. No one else can intervene; certainly not the Courts.
This clear position alone answers the case of the plaintiffs.
Now the Crown has seen fit to ask its people whether they would prefer to have back separate responsible government or whether they would rather join another of its Dominions, Canada; and they have preferred Canada. How can anybody challenge this procedure? Who can challenge the Crown for asking the question? Can this Court arbitrate between the Crown and the Imperial Parliament, both outside and above our sphere?
In the Cape Breton case, 5 Moore P.C., 259, the Crown under constitutional documents technically the same as ours, joined two colonies, separated them, and reunited them; and the judicial committee of the Privy Council said this infringed no legal right. In our present case the Crown has gone further, because it is in process of obtaining the consent of both territories to be united, and apparently proposes to enlist the help of Parliament, as indeed in such cases it must do. What Court can prevent or hinder this?
In truth the plaintiffs' grievance is that the people were offered the alternative; and as the people four months ago expressed their preference for the alternative, the plaintiffs' complaint seems both surprising and belated.
Next, who are the defendants? It is not correct to say as the plaintiffs do that they are the seven members of the Commission of Government of Newfoundland. The Governor is not a member of the Commission. There is no such person as a chairman, as plaintiffs allege, of the Commission. When the Governor presides, he presides as Governor, not as a member. Articles two, five and ten of the Letter Patent make that perfectly clear, and the recommendations of the Amulree Commission itself do so.
It is clear, however, that the combined body, the Governor,. the Commission, are proceeded against in their capacity as the legislature of Newfoundland under the present system, and also in their capacity as the executive Government of Newfoundland, in which the governor represents the Crown and usually, though not necessarily always, acts on the advice of the Commission. It is to be noted from Article IV of his instructions that in certain cases lie can act without them; and it is well settled law that his instructions are merely directory, so that if lie does act in contravention of them it may expose him to censure from the Secretary of State but will not render his Act challengeable at law. This point also was covered by Fox J. in Dillon vs. Canning. If, therefore anything other than legislation is challenged in this action, it must be the Governor who is challenged, and that in respect of general acts of government.
In so far as the defendants are the legislature, with full powers, as clearly decided, they cannot be sued; you cannot sue a legislature, nor tell it what acts it may or may not pass. And it is not a legal person, like a company.
In so far as the governor is the Crown's representative, acting in public matters under its instructions, he cannot be controlled by the Courts; his acts would be, on their very face, acts of state; and if by the Crown's direction, Its acts, not his.
But turning to the Governor's executive capacity, and admitting that lie could be sued by a person specifically injured by his acts, as in all the cases on the subject so far, (and as it is not in this case) he would, according to Musgrave vs. Pulido have to justify by his Letters Patent, Commission and Instructions. In the present case under the Letters Patent he is to govern for the peace welfare and good government of Newfoundland, an all-inclusive phrase and "according to such instructions as may from time to time be given him, under Our Sign Manual and Signet, or by us through one of Our principal Secretaries of State." In other words, besides the old common-form instructions dating from the days of communication by sailing ships, he is, in these days of cables, wireless and airmails, to get other instructions from time to time, indeed perhaps from day to day, as indeed we know tie does; and so bow are we to know his instructions? We could not require them to be shown to use. It is useless to argue from the limited contents of the formal Instructions. What be has done, from internal evidence in the statement of claim itself if we had no other, is obviously under the instructions of the Secretary of State, who speaks for the Crown.
Mr. Furlong argues that this writ can go against the defendants in their personal capacity to forbid them to advise the governor in certain ways or to give their votes for certain measures. But this suggestion is impossible on its face. Is any Court to tell the Crown's advisers what they may advise? And can it prevent their advising?
Finally, what are we asked to do? I will take the items in the statement of claim one by one.
(a) To declare that it was the legal duty of the Commission of Government, as soon as the Dominion of Newfoundland was self-supporting, to seek the revocation of the letters Patent of 1934 and the restoration of Responsible Government.
As to this: first; I know of no such duty, and plaintiffs cannot point to anything to create it except their general vague argument. Second; what "self-supporting" means is, as already pointed out, a matter of opinion, and the Crown is the judge of it. Third: the plaintiffs pass over the fact that the very best they can say is that pre-1933 Responsible Government was intended to be restored on the request of the people; and on the face of their statement of claim the people have rejected the idea.
(b) To declare that the National Convention Act of 1946 was ultra vires, because not within the phrase "peace, welfare and good government", and argument to the Newfoundland Act of 1933.
As to this: First, it is already settled that the Commission has full powers of legislation. Second, it is already settled that the phrase "peace, welfare and good government" is ample, that the government is the judge of what it is to include, not the Courts. Third: the Court will certainly not make a useless and empty declaration about an event which is past and gone. The Convention is a thing of the past. But, fourth: as to the alleged repugnancy, which would have to be clearly made out: as I have said before, Parliament quite clearly left the question of the restoration of our former institutions at the discretion of the Crown, subject to its comment. Now, all the Crown did in this Convention Act, (or in the Referendum Act, for that matter) was to ask the people how they felt about the matter, apparently with a view to deciding what it would do in the exercise of its discretion. I am unable to see how that can possibly be repugnant to the Newfoundland Act 1933, which on the face of it looks like an Act whereby Parliament set up certain safeguards because it was about to lend money, but left administration to the Crown.
(c) To declare the Referendum Act of 1948 invalid and the proceedings under it void, because it included Confederation in the Referendum, and because the Commission did not exercise any independent judgment on it but purported to pass it on the instructions of H. M. Government in the United Kingdom; and because that government had no power to impose its decision on the commission.
As to that: First the Court will not make useless and empty declarations about past events. The referenda are long over, and their result known. There can be no evidence that the Commission did not exercise that judgment. The Preamble to the Referendum Act 1948 says that the Secretary of State decided what subject should be put before the people. But we cannot enquire into the councils of the Crown. Hennessey vs. Wright (1888) 21 Q.B.D. 509; Wyatt vs. Gore (1816) Holt, N.S... There can be no means of ascertaining whether the Governor endorsed the Commission's views or overrode their views. Certainly the latter cannot be assumed. And, in any event, what is there to prevent any government in the world from asking its people a question? That is not an exercise of power. They need not answer unless they want to.
(i) To declare that under the constitutional law of the Commonwealth, including Newfoundland, Newfoundland can enter the Canadian Confederation only under section 146 of the British North America Act or under a special Imperial Act.
As to that: There is no such thing as a constitutional law of the Commonwealth in any sense comprehensive to the Courts; there are only constitutional understandings. The plaintiffs' proposition above is a statement of obvious fact, and we do not make declarations about obvious facts. But what is section 146 of the British North American Act? It is a section put in in 1867 or thereabouts by the Canadian and British draftsmen, with which Newfoundland representatives may or may not have had anything to do. At that time it was contemplated that Newfoundland was going to join with the other North American Colonies in forming the new Dominion; and a quick and easy way of entry was accordingly provided. But that was merely a matter of convenience. There is nothing binding about it today. There can be nothing to prevent the same power which provided that way from providing another way convenient to the circumstances of the present day. Section 146 was meant to facilitate, not to exclude.
(ii) To declare that the commission is not equivalent to the two Houses of the Legislature called for by section 146 of the British North America Act, and has no power to present an address praying admission tinder section 146.
As to this: whether the Commission of Government is or is not for the purposes of section 146 the equivalent of the two Houses, there is no allegation that it has presented such an address and no suggestion that in fact it is going to do so, and no Court would make a declaration until the matter arises, if then. Moreover, a request by way of address or otherwise is not at) act of power, it is a suggestion to another authority, which may act without it; no one can be said to be without power to make a suggestion.
(iii) To declare that under the constitutional law of the Commonwealth, including Newfoundland, the Imperial Parliament has no power to make a law providing for the Confederation of Newfoundland and Canada, except at the request of a Parliament elected by the people of Newfoundland; that tinder the Letters Patent or otherwise the Commission have no power to request the Imperial Parliament to make such a law, and if such a law is made otherwise than at the request of a Parliament elected by the people of Newfoundland it will not be binding upon the people of Newfoundland.
As to this: The paragraph can be described from a lawyer's point of view as a mass of nonsense. Every lawyer knows, or should know, (a) that there is no such thing as a constitutional law superior to the will of Parliament; (b) that Parliament could make the law suggested regardless entirely of the wishes of all of us if it were so disposed; (c) that there is no such thing as a universal right to parliamentary representation known to the law; at present we have none, and can gain none save by the will of the Crown with the. assent of the Imperial Parliament; and many other parts of the Empire have none; (d) if such a law is made it will most certainly be binding upon the people of Newfoundland regardless of whether or not we have a Parliament of our own, and, being made at Canada's request, it will when made become binding upon the people of Canada also; (e) the Parliament at Westminster is geographically outside our jurisdiction; how could we declare its powers?
I am not sure that reference to the Letters Patent or other present document is not wholly irrelevant for this reason: The whole trend of events is towards a situation where the competent powers, namely, the Crown and Parliament will make an end of the Letters Patent and other present constitutional documents by ordering a completely new departure. Thus in essence this case is an attempt to deprive these powers of the use of a tool, namely, the present Commission Government, which they are about to cast away. They will soon, apparently, no longer need that tool their own machinery will change the shape of the state. Thus in the last resort this action asks us to stand in the way of Parliament. To put it another way; what difference would it make if it were decided that an address was necessary under section 146 and that Governor and Commission could not pass that address? Parliament, knowing the result of the referendum and negotiations, could act without an address, and alter section 146 accordingly.
When we review the facts, we find that all the Governor and Commission of Government have done, or apparently are to do, so far as we can now see, is to ascertain public opinion and to ascertain facts, such as possible Confederation terms. The actual decision and action resulting from these investigations rests with the paramount power. And there is no law against investigations.
Then in paragraph 20 we are asked to issue an injunction against the Commission of Government of Newfoundland restraining it (I abbreviate) from
(1) Considering terms of union with Canada.
(2) Requesting the Parliament of Great Britain to pass any necessary legislation for carrying out such a union.
(3) And generally from doing anything further to alter Newfoundland's legal and constitutional status, except towards restoring pre-1933 Responsible Government.
Disregarding the fact that all these things appear to be pretty well concluded, I have merely to say that (a) these things are overriding acts of state, done by a paramount power which is the sole judge of its own actions, and done with the assent of a majority of our people; (b) as we do not make declarations relating to matters outside our own jurisdiction, so we do not issue injunctions which we cannot enforce.
It would seem that there exists in the minds of the local public certain hazy and erroneous notions about constitutional law, and these may possibly be shared by the plaintiffs. They may be due to the reading of a good deal of American literature. In a country such as the United States, which has a Federal structure and a written constitution, there is a form of true constitutional law. The actions of the legislature and the executive may conflict with the provisions of the written constitution, and the Supreme Court is clearly vested, under the constitution, with the power of checking the legislature and executive. Again in Canada, another Federal state, the British North America Act 1867 and amendments is the controlling written constitution, and the Courts have authority to interpret the Act, as for example, in connection with the distribution of powers between dominion and provinces. Legislation may be held to be ultra vires if it transgresses the Act. Here again is true constitutional law. Similar situations, with variations, may arise under other federal constitutions, such as those of Austria or Switzerland. But the British Empire is a unitary state, with one Supreme Legislature, the King, Lords and Commons, and no written constitution; New Zealand is unitary; Newfoundland is a subordinate unitary, and many other overseas territories; and in these cases the supremacy of the legislature is the central principle of the law. The Imperial Parliament is supreme in the Empire, subject to the observation that in the cases of Canada, and some other Dominions, it has by Statute of Westminster abdicated the right to legislate for them without their consent. Other unitary legislatures in the Empire are still subject to the overruling power of the Imperial Parliament, which could abolish anything from Magna Carta downwards. What is called constitutional law under that system is a mass of conventions and customs, which are not law. For example, the obligation on a government to resign when defeated in its Parliament is al obligatory custom; not a law. No Court could enforce it, though failure to resign would eventually and indirectly bring about collisions with the law. In British unitary constitutions no Courts can overrule the legislature.
I have listened to Counsel at some length; but this statement of claim is a dead horse, and flogging it will not bring it to life, or make any difference to their position. The action is based on fundamental errors of law and logic which are apparent on the face of the papers, and which are fatal to it no matter what counsel may say. Legally logically and practically, it seems to me to be nonsense.
I have gone into the case at some length because it deals with matters in which the public is interested and concerned; and I think the public should have a chance of understanding what the Court is doing and why. The law should not be made a mystery to the average man. If I were speaking only for lawyers I should have been more summary.
Under Order XXIV rule 4, pleadings which disclose no reasonable cause of action which are defective in substance, not merely in statement, and could not be made good by any legitimate process of amendment can be stricken out, and the action stayed or dismissed as frivolous and vexatious. This in my view is a proper case for such an order. Accordingly the whole statement of claim is stricken out and the action dismissed. The defendants are to have judgment for their costs, to be taxed .
R. S. Furlong K. C., B. A. Parsons, K.C., E.J. Phelan, K.C. and T. P. Halley for the plaintiffs, J. Power for the defendants.
ON APPEAL
SIR EDWARD EMERSON C. J.: This is an appeal from the judgment of Dunfield J. who dismissed the action as being frivolous and vexatious and as disclosing no reasonable cause of action under Order XXIV r. 4. He had heard the summons in chambers and moved it into Court for the purpose of judgment. In this he deals with the principles involved and the merits of the cause in considerable detail. There seems to be, even in the minds of counsel, some misconception at some of his findings and I propose to limit myself to a disabuse of these misunderstandings and to add, in so far as I consider it necessary, just one or two additional reasons why this action is clearly not maintainable.
First as to the plaintiffs' right to take any action of this kind: They describe themselves as being inhabitants of and permanently resident in Newfoundland and members of its last elected legislature, this by way of qualifying themselves to take an action to enforce rights which, if they exist at all, arc common to all residents of the island. No argument was addressed at the bar which suggests that membership in a legislature defunct now for fifteen years places the plaintiffs in a position any different from that of other people, and I see nothing in the judgment under review to indicate that any was adduced before the judge of first instance. Unaided by counsel, I have been entirely unable to imagine my reason to give to these plaintiffs any particular status only because of their former membership in the last Parliament of Newfoundland
The question then arises whether any resident of this country has the right to take action to enforce rights common to all of it very great number of people. I would have thought it quite beyond argument that no such right exists, unless the plaintiffs are, for any reason peculiar to themselves, suffering or liable to suffer injury greater than or different from that suffered by the rest of the public. It has long been established that the proper and only one to enforce such rights is the attorney general. In London Association of Shipowners & Brokers vs. London & India Docks Joint Committee 1892 3 ch. 242, quoted by appellants on another point, Lindley L J. says at page 257 "The Peninsular and Oriental Company, if aggrieved by the defendants' regulations, has a clear locus standi as plaintiffs in an action brought to have its grievances redressed. At the same time the Peninsular and Oriental Company is not like the attorney-general, and is not entitled to sue on behalf of the public for the purpose of preventing the defendants from exceeding their statutory powers irrespective of any particular injury to my particular individual. The Peninsular and Oriental Company must show that it is itself aggrieved before it is entitled to any declaration or relief in an action brought by itself. Had this action been on information by the attorney-general, there would be no difficulty in declaring the regulations complained of not to be binding on the public, and in granting an injunction to restrain the joint committee from enforcing them;" and Kay L.J. says at page 269 "If the attorney-general were suing on behalf of all shipowners who have a right to use the docks, I should have no doubt that it would be the duty of the Court to make a declaration that these regulations have not the force or effect of bylaws, and are not binding on any shipowner who has not agreed to be bound by them. In such a suit the Court in its discretion might restrain the defendants from attempting to enforce these regulations against any shipowner who had not agreed to them, and also, I think, from representing to the public that they are in any way binding in the absence of agreement", and the same judge at page 270 says "The main difficulty in the case before us is one of a rather technical character. The attorney-general is not a party to this action. His right to sue on behalf of the public to restrain a company from committing illegal acts, without giving any evidence of damage, has often been maintained. The cases on this point are collected in the recent decision of Attorney General vs. Shrewsbury (Kingsland) Bridge Company. An individual or body of individuals, suing for in injunction against a public company for committing some excess or breach of its statutory powers, is required by a most necessary rule to show that he or they have incurred or may incur special damage by the acts complained of."
Now, these same principles apply here. The injunctions and declarations sought in the statement of claim relate to matters of the widest public interest. The plaintiffs are themselves no more interested in the rights sought to be enforced than all other inhabitants of Newfoundland. They will be no more injured by a denial of these rights than thousands of their fellow countrymen all over the island. Surely if ever there was a case in which action could be taken only by the attorney general this is one . On this ground alone the summons to strike out was justified and Dunfield J. dismissed the case for this reason.
The position of the defendants is to be ascertained from the Letters Patent of January 30th, 1934. The office of Governor and Commander in Chief is created and six Commissioners are constituted the Commission of Government. These seven appointees of the Crown are created a legislature in the same language and with the same legislative powers as the Governor and the two Houses of the Legislature constituted by the letters patent of 1876 and 1905 which were effective up to January 1934. There appears to me to be only one limit on the legislative capacity of the governor and the Commission of Government-they could not alter their own constitution. Brought into being, as was our previous legislature, by the exercise of Royal Prerogative their Constitution could be altered only by the same process or by Act of the Imperial Parliament. it is true that the Instructions associated with our previous and our present Letters Patent enjoined that laws should not be made in relation to certain specified subjects, but the Colonial Laws Validity Act 1865 Section 4 provides that no instructions can override the powers granted by the Letters Patent and if our present or past legislature acted in defiance of these instructions, the law enacted by them would be operative and would be enforced by this Court unless and until it was disallowed by His Majesty in Council, a right of disallowance of any law being restrained in the Letters Patent on both occasions. To bring the individual members of an almost omnipotent legislature into Court as defendants because of their having enacted certain laws is I think unique in the history of the British Empire. I feel free to predict that is an act which will never be initiated elsewhere.
The executive power is, as it was under Responsible Government, vested in the Governor. The Commissioners as in the case of former ministers are his advisers. If he acts contrary to their advice be does so it his peril, and that does not make them more than advisers. How than can they be made defendants to an action of this sort? Are we to say "You as the governor's advisers, are hereby enjoined against advising him?" Are we to prohibit them from performing their obvious duty? And are we to take their place to decide what advice they are to tender? One has only to pose the questions in this form to see how obvious is the answer and how frivolous and vexatious this proceeding is as against them. If the plaintiffs, therefore, had any status to sue, the six commissioners defendants would have been summarily dismissed from the action.
I now turn to the position of the Governor acting in his executive capacity. The right to sue a Colonial Governor by writ of summons in the. Court of the colony which lie is administering Cannot be denied. Musgrave vs. Pulido, 18-19, 5 A.C. 102 is the leading authority on the subject and sets forth the legal position with exactitude and clarity. A colonial governor may be made liable for any wrongful act causing injury if such act is outside the scope of the Letters Patent and the Commission. He is not a viceroy and exercises the powers and prerogatives of the Crown only in so far as they have been delegated to him. If he has acted within the scope of his authority his acts are Acts of State and lie has a good defence. It may be a question of fact or one of mixed law and fact as to whether his acts are challengeable, in which event the action must proceed to trial. What Dunfield J. has decided after a very exhaustive analysis, is that all the acts alleged in the statement of claim in so far as they are executive acts are so clearly within the orbit of the governor's power and that no question arises for proof by evidence or argument in law. Anyone who accepts the conclusions arrived at by Dunfield J., as I do, cannot but say that he has not denied the full force and effect of Musgrave vs. Pulido; rather has be found that the instant case does not stand the test which that case says shall be applied.
All the foregoing is of course subject to the determination of the question as to whether order XXIV, Yr. 4 and 5 (which are rescripts of the English Order XXV rr. 4 and 5) was properly applied. Mr. Furlong has asked us to construe rules 4 and 5, the latter as being complementary to the former. That is quite impossible. Both by nature and history they are distinct and separate. Rule 4 deals with all kinds of cause of action and defence. They may be struck out as frivolous and vexatious or as disclosing no reasonable cause of action under certain circumstances. Rule 5 deals with a limited kind of claim, one for a declaration. Prior, to the fusion of law and equity declaratory judgments were obtainable only in the Chancery Courts and then only if consequential relief was also sought. When it came to settling the new rules it was decided to broaden the scope of the rule, and now in all divisions of the High Court declarations may be sought even though no consequential relief is claimed. I give full value to Mr. Furlong's contentions that his clients can seek a declaratory judgment in isolation and that declaratory judgment may be sought against the Crown (Dyson vs. Attorney General 1911, 1 K.B. 410) but I cannot follow him to the end to which he sought to lead me. A claim for a declaratory judgment either isolated or in combination with other relief is not in itself sacrosanct. It has no greater standing in law than say a claim in negligence or breach of contract and it is just as much entitled to summary dismissal as such claims are, if it is frivolous and vexatious, or discloses no reasonable cause of action.
Only one other argument under this bead calls for comment. In Attorney General for the Duchy of Lancaster vs. London and Northwestern Railway 1893, 3 ch. 2947 and in Dyson vs. Attorney General (Supra) the Court of Appeal said in effect that a judge should not exercise his discretion under this rule if extrinsic evidence has to be sought or if the argument entails historical research into law. In the instant case we assume, as did- Dunfield J., that all the facts as related in the statement of claim are correct and I feel with him that, notwithstanding the length of the arguments addressed both before him and before us; there is no matter of law involved here which is not so simple as to be almost self -evident. But even if this were not so, I apprehend that because of the differences in procedure between the English and our Courts the reasoning upon which these decisions were reached is not compelling in this jurisdiction. Applications of this kind in England are dealt with summarily, first before a master and then before a judge in chambers in neither case is the research exhaustive nor the argument detailed. This is made clear in the judgment of all three judges in the Dyson case. In this Court a judge hears the application in chambers it is true, but with us the chambers is one of the Court rooms and the case is as fully dealt with as if it were , point of law set down for argument. Apart from the fact that a summons to strike out may be brought forward for argument with comparative expedition, the practice and procedure differs from trial only in that neither the judges nor counsel are robed. Counsel are expected to and do prepare and argue at full length as they did in this case. These differences in practice make the reasons for the foregoing decisions inapplicable in our jurisdiction.
My comments on the merits of the issues raised will be brief, firstly because Dunfield J. has already dealt with them exhaustively and secondly because for reasons already stated, I am of opinion that the proceedings cannot go further. I am only justified in dealing with the merits at all because of the wide public interest in the matters before us.
A great deal has been argued on the basis that there was some form of contract to be gathered from certain words used in the schedule to the Imperial Newfoundland Act 1933, as follows "It would be understood that, as soon as the island's difficulties have been overcome and the country is again self-supporting, responsible government, on request from the people of Newfoundland, would be restored." These words are contained in no other statute and if any agreement or contract was made it is one made by the Imperial Parliament. This statute cast no duty, burden or obligation on the Commission of Government except to do such acts as would be required by the Imperial Parliament or His Majesty in council to give effect to this so-called contract, Whatever duty there was rested upon authority higher than that of the Commission of Government which has, as I hold, and as plaintiffs argued no power to alter its own constitution To carry out this duty two questions had to be resolved (1) Had the island overcome its difficulties and become self -supporting? (2) Do the people of Newfoundland request the return of responsible government? To resolve the first question the Commission of Government, at the request of the Imperial Government, passed the National Convention Act 1946. Now, for the purposes of enquiry into a country's financial and economic structure a National Convention may not be ideal. It may not be the best method. But between criticising the plan adopted and holding that it was illegal there is a very wide gap. Not only that, but it cannot be gainsaid that it was a step in carrying out this so-called contract. The convention met and found that the country was self-supporting and proceeded, in accordance with the request contained in the act, to make certain recommendations to His Majesty's Government in the United Kingdom as to various forms of government to be submitted to the people of Newfoundland in a referendum. The British Government considered their recommendations, as they would the recommendation of any other body, e.g., a Royal Commission, set up for the same purpose. They were not bound to accept or to act upon all or any of the recommendations, and the convention had no power or authority to force its views or wishes down the throats, as it were, of the British Government.
To resolve the second question it was necessary to hold a referendum. This was strictly in accordance with the terms of the schedule of the Newfoundland Act which I have quoted. Responsible Government was to be restored "on request from the people of Newfoundland". The only way in which the people could request such restoration was by referendum. Surely no one would seriously aver that responsible government should be restored and then the people asked to request its retention? That is not only an absurdity but it would be in breach of the so-called contract. It could be a restoration before the people requested it. A referendum therefore was clearly in contemplation by the last Newfoundland Parliament when it made its address to the King in 1933 and the holding of it in 1946 was in implementation of the so-called contract.
Retreating to the last ditch, because all these arguments were dealt with on appeal, Mr. Higgins and Mr. Parsons were forced to suggest that what was in breach of the so-called contract and what was illegal was the inclusion in the referendum of the question of confederation. I have yet to hear an argument, certainly none was made before us to the effect that it is illegal to take the opinion of the electorate by plebiscite or referendum. The only point made to us was that this has never been done in England Whether this statement in historically accurate or not I do not pause to enquire. It is of no importance. What counsel did not support in any form was the contention that it is illegal there, or what is more important, that it is illegal in Newfoundland and this for the very good reason that such a contention cannot be maintained.
As to this so-called contract; there never was and there never could have been any such thing. Parliament cannot bind itself and it cannot bind further parliaments. It may order one thing one day and revoke its decision the next, regardless of results. The only consequences that can follow any act of parliament are political. No Court can question its authority and it cannot be enjoined by any Court in respect thereof.
The word "unconstitutional" has been used in the statement of claim and by counsel to describe the various laws and Acts of the Government concerned. I have studiously avoided the use of that term. It is a term of ambiguous significance and capable of several meanings, In his judgment Dunfield J. has defined it and shown its inapplicability in these discussions. I have also had the advantage of reading the judgment about to be delivered by my brother Winter who further clarifies the word. I agree with both of these judges. The term has no significance for the purpose of the discussions before its.
This is all I wish to say on the merits of the case. In so far as I have not been exhaustive I Content myself with saying that I agree with the reasons and conclusions of the judge of first instance. The appeal should in my opinion be dismissed.
As to costs: I see no reason to interfere with the discretion exercised by Dunfield J. and nor do I see any reason to deprive the successful respondents of their costs of appeal.
WINTER, J.: In writing all opinion upon the merits of this appeal, which is from a judgment of Dunfield J. setting aside the statement of claim in its entirety, I feel that I am faced by two large difficulties. The first is, in examining the statement of claim as if I saw it for the first time awl when no judgment has been passed upon it, to know where to begin in pointing out its many faults, almost any one of which is in my opinion fatal to the success of the action. The second is, to give my reasons for supporting the judgment of my brother Dunfield upon . any points I might select without repeating in another form or words what lie has already so tersely and clearly and, for the purposes of the law, so completely said. I feel t could sufficiently discharge my strict legal duty by stating simply that I concur with him in all that his judgment contains and with the Chief Justice in the judgment which he has delivered and leave it at that. But this action while I cannot conscientiously say that it is in itself of great public importance deals with matters which unquestionably are; that importance however, is in my opinion purely a political, and in no sense a legal one and there is all obvious confusion of the two spheres running through the statement of claim and apparent in the arguments of plaintiffs' counsel before us; so that there may be some excuse, which I would not admit in the ordinary run of cases, for stepping beyond the line, which clearly separates the two, if only because the plaintiffs themselves have repeatedly done so and because I thereby be able to show a little more clearly just where that line lies With this thought in mind I propose to omit altogether some of the many points that have been raised, to mention others merely to concur with my brother judges upon and finally to deal shortly with what I might call certain broad features of the matter.
As both the Chief justice and Dunfield J. have pointed out, the plaintiffs have no standing because they cannot show any cause of action or ground for relief peculiar to themselves Still more striking is the case of the defendants who, putting aside altogether the joining of the Governor as a defendant, are sued in both their executive and their legislative capacities. The former would be bad enough, but I think this must be the first time on record anywhere, in the British Commonwealth at least, that anyone has sought to bring all the members of a legislature to account in a court of law for their actions in that character . Both these defects are fatal of themselves to the statement of claim, and I shall not add to what my brother judges have said on the subject.
Although it is not strictly necessary to the merits of the appeal to go any further, I next ask myself the question was this defect curable? Could someone else have asked for the same kind of declarations sought for here in an action against some other party or parties? Is there, in the facts set out in the statement of claim, some substantial cause of action or something justifying a claim for relief, in anyone and against anyone" it is in the search for all answer to these questions that one discovers the fundamental weakness of the whole case. As I see it, there is no such ground for an action; and there are no such persons otherwise I feel sure the plaintiffs' legal advisers would have found them. I Might Put it in this way: if a complaint or grievance can be aired in a Court of law only by making plaintiffs and defendants those who cannot possibly sue or be sued it seems a fair inference that there cannot exist any real cause of action or ground for relief in the fact of the case.
And indeed this appears plainly when we examine the facts here. The crux of the whole matter is that this Court is asked to declare ultra vires and invalid the National Convention Act of 1946 and the Referendum Act of 1948. (They have also repeatedly been attacked as unconstitutional, a point which I treat later on). The former set up a body of Newfoundland citizens entrusted with the task of examining certain forms of government and the duty of making certain recommendations to His Majesty. It was, as my brother Dunfield has aptly termed it, only a debating society: true, a debating society of very great importance, whose decisions might affect vitally the lives and fortunes of all their fellow countrymen, but none the less merely that in the eyes of the law. The Referendum Act in turn provided a means by which the people might express a preference for one or another form of government. Neither of these acts, nor anything done under them, of themselves effected any change in existing law; they created no new rights and imposed no new duties; in short, it seems to me impossible to imagine how any cause of legal action or any grievance which the law recognises could have grown out of them. They merely gave the imperial Government (and, as it so happened, the Government of Canada) certain information upon which it might or might not act. I might add that in pure theory—and that is what really matters in this sort of case—the Imperial Parliament might or might not implement the wishes of the Imperial Government itself, and indeed might ignore those of the people of Newfoundland altogether. Now, in all this
we are in the field of practical politics, not of law. The matters involved concern law in the making; the Courts have to do only with law that is to say, statute law, when made The information obtained as the result of these two Acts could conceivably have been got through the efforts of public-spirited citizens, through some movement initiated outside of government altogether and indeed that is how many statutory reforms are in fact brought about. I find it therefore difficult to see how it can be argued that it was, or could be, ultra vires the Commission of Government to enact these measures. It seems to me as sensible to suggest that an act creating, say, a historical society would be ultra vires.
However, the statement of claim does indicate one ground, and one alone, as to the validity of these acts upon ,which it deserves a hearing. It states that they are invalid as being repugnant to the provisions of the Imperial Newfoundland Act of 1933. If that were indeed so, we should have no choice (assuming the other difficulties did not exist) but to declare them invalid; but, unfortunately for them, the plaintiffs have altogether failed to substantiate the claim For that purpose they must show the "understanding" in the schedule to that statute must be read as a substantive and operative part of it. Their counsel did contend this. I do not agree with them, but for the sake of argument will suppose that they are correct. Now, where is the repugnancy? As Dunfield J. points out, and as the statement of claim itself shows, the people of Newfoundland were twice given the opportunity of choosing the restoration of responsible government and twice rejected it. Even if that form of government had been omitted altogether from the list, I still do not think the Referendum Act could in strictness have been called repugnant to the 1933 Act: at the most it could only have been said that the latter had not yet been obeyed. In fact the only possible repugnancy I can imagine would have been the enactment by Commission of Government of a measure explicitly forbidding the inclusion of responsible government in the list, I contingency which did not happen and which it is fanciful to suppose. I can see no grounds whatever for the repugnancy argument.
Before leaving the question of the validity of these two statutes I think it is not irrelevant to point to one feature of them which might possibly be overlooked. Where, as sometimes does happen, a colonial enactment is attacked as being invalid and inoperative, the statute in question is always one initiated by the colonial legislature itself.
The Acts I am here considering were plainly initiated by the Imperial authorities with a view to carrying out the very undertaking or pledge upon which the plaintiffs base their whole complaint. In effect, the King, empowered to legislate through his Governor for Newfoundland, and acting on the advice of the ministers, enacted this legislation; and, while it is not strictly a legal argument, it seems to me proper to observe that it would be surprising indeed if his legal advisers approved legislation, necessary to complete the purpose of an imperial statute, inconsistent on the face of it with that very statute itself.
Next, as I have stated above, these two acts and the whole procedure adopted to solve this large political problem have been impugned as unconstitutional, whatever that term may mean in this context. Here, I think I may perhaps usefully add a few words to what my brother Dunfield has said on this subject. I think that a large part of the confusion of thought and misunderstanding that exists in this connection, and of the frequent misuse of the words constitutional and unconstitutional, is due to the fact that they are used, and correctly used, in three distinct and separable sense and applications. In the first place writers and judges speak of 'constitutional' law using the word as descriptive merely of a large department Of the whole body of law and legal principles. In that category are included such different matters as the Royal Prerogative and the right to freedom from arbitrary arrest enjoyed by the humblest citizen. It is a mere classification, and the legal rules and principles that come under it are construed and applied in the same way as the law of property, commercial law and so on. In this connection the use of the negative word 'unconstitutional' would be meaningless. In the second place, the words are used in a very narrow and exact sense, as pointed out by Dunfield J., in countries possessing a written constitution, where the question may arise whether an enactment of a legislature is or is not repugnant to such written constitution. In the United Kingdom, which has no written and binding constitution, an Act of Parliament cannot possibly be unconstitutional; there is no limit in legal theory to its powers. In this second class we are still in the domain of pure law. As I see it, the criteria applied by the Courts in deciding whether an act is constitutional or not are exactly the same as those which; British Colonial Courts or the Privy Council would use in determining whether a colonial statute is repugnant to an imperial one. The written constitution in federated states is for this purpose the same as the Imperial statute that may happen to be involved. The question whether a Newfoundland statute could in this sense be called unconstitutional cannot arise. It must be valid and effective or invalid and of no effect. In the third and last place, we have still another use of the words and it has been mistakenly imported by the plaintiffs into this action. In the British polity there are a large number of rules of procedure which are really nothing but conventions and usages, though in their own way and with different sanctions behind them they are just as binding as genuine rules of law. To these conventions the adjective constitutional is applied; any action violating them is termed unconstitutional. An example is that given by Dunfield J., who states that it would be unconstitutional for a government defeated in an election or on a vote of non-confidence not to resign. Here we are outside the law altogether. I do not think I overstate the case when I say that this context the word constitutional is used to contradistinguish such a rule from one of law; it is precisely because it is outside the law that it is called constitutional. That means of course that it is not necessarily void, as an illegal act could be; whether or not it becomes effective depends upon various factors, including, it may be, the strength of public opinion. The chief importance of the distinction between the two kinds of rules lies in the method of enforcement. Not merely has a court of law no power to redress directly a violation of a genuinely constitutional rule, but it is I should think, the last place in which redress should be sought.
Yet that is just what the plaintiffs have done in this action. Condensed and simplified, their complaint is that the only constitutional way in which the terms of union with Canada could be negotiated and the people of Newfoundland asked to accept or reject them was through the medium and agency of a duly elected and responsible government. What merit there may be in that proposition in the domain of politics and statesmanship it is not for me to say; though I can imagine that there might be strong arguments for and against it. Such a discussion is outside the province of this Court, but it is certainly proper for me to point out that there is a strong, if not conclusive, answer to the proposition on logical grounds contained in the statement of claim itself. The Letters Patent under which Newfoundland enjoyed responsible government were suspended in 1933. The first declaration prayed by the plaintiffs is that "It was the legal duty of the Commission of Government as soon as the Dominion of Newfoundland was self-supporting to seek the revocation of the letters patent of 1934 and the restoration of Responsible Government." This prayer is based upon the Newfoundland Act 1933, as above stated, and it ignores altogether the pregnant words "on request from the people of Newfoundland." Those words are not an empty formality, as if that request could be assumed and taken for granted. It was evidently in the mind of the Imperial Parliament that the people of Newfoundland, notwithstanding a return to state solvency, might regard such solvency as merely temporary and desire a further continuance of government by commission. And how their request could be sought and obtained otherwise than by some form of referendum or plebiscite I find it hard to imagine. The plaintiffs' argument is thus reduced to this absurd paradox, that the people of Newfoundland must first have responsible government restored to them in order that it may be ascertained whether they desire that restoration or not.
The necessity for some kind of referendum seems to be recognised by the plaintiffs themselves, for in the next paragraph but one of their statement of claim they complain that the inclusion of Confederation with Canada on the ballot paper was unlawful "and that the effect of such inclusion was to prevent the restoration of responsible government." This naive allegation I find it hard to understand, or how the presence of several candidates' names on a ballot paper could prevent any voter from marking it in favour of his own choice. I mention this paragraph specifically because it seems to me to put in a nutshell the real nature of the plaintiffs' grievance, which is not with the governing authorities at all but with their own fellow countrymen, who were misguided enough to be of a different opinion from that of the plaintiffs and those they profess to represent and inconsiderate enough to outnumber them. The same reasoning encourage me to feel that I may be forgiven for stepping for once outside the strict bounds of the judicial sphere and adverting to a matter which is of such general and public knowledge that I may fairly take judicial notice of it. This is the charge, made, in many, and some of them high, places, that the present situation is the result of a "deal" between the governments of Canada and the United Kingdom. If there is any substance in that charge it must follow that some eighty thousand Newfoundlanders were somehow included in the conspiracy.
I shall touch briefly upon the last of the large aspects of the matter I have proposed to consider. This is the contention that the Newfoundland Statutes in question are also ultra vires as being contrary to the directions of the Letters Patent and not for "the peace, welfare and good government of Newfoundland". Here, the plaintiffs in their claim, and their counsel in the argument before us, totally misconceive the real function and effect of the Letters Patent and of the Royal Instructions issued under them. Counsel urged, in effect, that these should be regarded in the same light and as having the same force and effect as provisions of an Imperial status, so that a Newfoundland Act clearly in contravention of them must of necessity be void. Actually, they are merely exercises of the royal prerogative; the instructions are from a superior, the King, to his subordinate, the Governor. Regarding the dignified but really empty phrase "the peace, welfare and good government" of the country it is for His Majesty, and him alone, to decide whether an Act is within that description, and presumably his allowing, or not disallowing, a particular Act is evidence enough on the point. The same is true of the specific matters named in the instructions, divorce, currency and the like. It is Dot, as counsel contended, that legislation on these subjects is ultra vires the local legislature: quite to the contrary, it may be the only suitable method of effecting a described reform; but that, for obvious reasons, the Governor's assent must be withheld for a time sufficient to enable His Majesty's advisers to examine all the implications of the measure. The prospect, if it were as plaintiff's contend, of a court having to test the validity of a statute by the "peace, welfare and good government" standard is disturbing, to say the least. I can conceive it doing little else. Finally, I can see no evidence in fact of any departure from the Letters of Instructions.
Summing up all that I have said above, I consider that in these enactments and the actions attendant upon them there is nothing that I can pronounce invalid, ultra vires, repugnant to overriding law or otherwise faulty in law. But, even if that were not the case, the last word has yet to be said. Even if, by a great stretch of the imagination, we could suppose that such invalidity did exist, in however great measure, the essential legal position would not be affected. At the moment of writing nobody's legal status has yet been changed. Nothing of any real effect can be done unless and until the Imperial Parliament enacts the legislation necessary to consummate the union between the two countries concerned. In pure legal theory — and I have to repeat that that is all this court must consider — that body is free, and cannot be trammelled, to act as it pleases. It is not bound even by the Statutes of its own predecessors, still less by those of other Dominions, so that it is possible for it to reject altogether the Addresses which presumably will shortly be laid before it. The great importance to this action of that position, which strangely enough was insisted upon by plaintiffs' counsel, is that, the Imperial Parliament being bound by no law, everything that comes before it and enters into its discussions can only be regarded as a fact, including statutory enactments of other countries and even its own. It follows from this that the matter is still in the domain of practical politics, not of law. And it follows from this again that the plaintiffs, and those associated with them, in urging before the last tribunal, namely Parliament, every practical and worldly c they can in support of a cause which I presume they sincerely believe in, are not merely within their rights but are performing a duty of conscience of the highest kind and one essential to the very life of real democracy. But in turning it into a question of so-called law they ire. if I may use a familiar colloquial phrase, barking up the wrong tree altogether.
There remains it seems to me, only one other argument advanced by the plaintiffs to examine, and I feel I should do so because so much emphasis was laid on it before the Appeal Court. In effect, their counsel say that what I have written immediately above might have been all very well, say, twenty years ago, before the Statute of Westminster was passed. Their contention is expressed in paragraph 19D(iii) of the statement of claim as follows:
That under the constitutional law of the Commonwealth including Newfoundland, the Imperial Parliament has no power to make a law providing for the confederation of Newfoundland and Canada except at the request of a parliament elected by the people of Newfoundland, that under the Letters of Patent or otherwise the Commission have no power to request the Imperial Parliament to make such a law, and that if such a law is made otherwise than at the request of a Parliament elected by the people of Newfoundland it will not be binding upon the people of Newfoundland.
As to this I have to say, first, that we have another instance here of the inconsistency that runs through the pleading. If it is indeed true that the law indicated is beyond the power even of the, Imperial Parliament, what can it matter who requests it? And if it is ultra vires, then obviously it is riot binding on anyone. Secondly, the reference is clearly to the Statute of Westminster. Now, as to that enactment, while some very complex difficulties have resulted from it, one thing is abundantly clear, and that is that, Newfoundland expressly requested that it should not apply to her and that her own status should remain unchanged. Had it not been so it is a nice question for constitutional jurists whether the establishment of government by Commission in the 1933 crisis in the way it was established was proper or even possible at all. That, however, does riot seem to me the really important question, which is rather this: will even the plaintiffs contend that the matter of Confederation should not in any case have had to be submitted to, and decided upon, by the people of Newfoundland themselves? So to contend would make it possible for an elected government to force Confederation upon the people against their will, or that of a majority of them. In a matter of this sort the government acts, so at least it seems to me, solely as the agent of the people. If the plaintiffs' view is the correct one, it means that the trouble, expense and, it might fairly be said, the unpleasantness of preparing for and carrying out a general election was necessary in order to create an agent to do what the principal could himself do directly, and what in fact he has now done. The simple truth seems to me to be plain, that the peculiar constitutional status of Newfoundland in 1946 and 1948 was, for this purpose at least, a distinct advantage in that it permitted a question of such vital importance to the Newfoundland people to be referred to them directly and immediately.
In conclusion, I feel I need hardly comment upon the last point of all, the nature of the relief we are asked to afford. If indeed any of the proceedings complained of had exhibited any illegality or even irregularity, I should think it would be sufficient if this court so declared. The Imperial authorities and legislature could be trusted to take note of such a declaration and give to it all the weight it deserved. But we are asked to go much further and to enjoin the Newfoundland executive government from proceeding with the matter of union; in effect, to dictate to them how they should govern. We are even asked to restrain them from requesting the Parliament of Great Britain to pass certain legislation. Even the humblest subject has the right to request even Parliament to do, or abstain from doing, any particular act, provided he does so by lawful means; and no court has power to forbid or restrain him.
I agree with my brother judges that this appeal should be dismissed with costs.
DUNFIELD, J.: I have little to add to what I said in my original judgment, and have not heard anything in the appeal to lead me to change my views. But I will add a few short observations in the hope of making it clear to the plaintiffs why they cannot possibly achieve anything in this case.
Their arguments are somewhat vague and difficult to pin down; but they seem to me always to circle back to their basic idea, which is (1) that Parliament in 1933 made some sort of promise that separate Responsible Government should be restored eventually to Newfoundland, and (2) that they, as individuals or as a group, or even as representatives of a minority, which they would claim to be (though of course they have no legal status for it). are entitled to call for a performance of that promise. and to prevent a step in any other direction.
But even allowing them their premise (which I do not in law) as the best they could claim, the position is that the people of Newfoundland were the body entitled to claim the performance of that alleged promise; and that the people, with the only voice they have, the voice of a majority, have dispensed with that promise, and have said that they do not wish to have it carried out, but. would prefer to have something different, namely Confederation with Canada on the terms put before them.
Now what the plaintiffs try to set up is that they, an opposed group, or they with all other minority opposers, can call for the performance of that alleged promise, though the majority do not wish to have it performed; and can insist that the people be given separate Responsible Government against their expressed will, in order that by means of it they may decide, as almost certainly, being a majority, they would do, not to have separate Responsible Government. It amounts to saying that the will of the people cannot be validly ascertained by a referendum. But what better way could there be? A referendum must give a clearer view of the will of the people than a general election, because it gives every man's vote an equal weight; whereas in an election by districts the votes in constituencies of different populations have different weights, and the clear issue tends to be confused by the personal claims of candidates and the injection of other issues.
The Referendum is not unknown in this country; there was one in 1917, as a result of which the sale of alcoholic liquors was taken over by the Government in the name of prohibition and the businesses of liquor dealers destroyed without compensation; but it was never suggested that the holding of a referendum was illegal.
As my brother Winter observed, how could it ever have been discovered whether the people did or did not desire the abolition of the commission and return of Separate Responsible Government, except by holding a Referendum, whether a third course was offered them or not? To say that the people could decide whether they wanted a Parliament only by means of a Parliament is a contradiction in terms.
And the only right of the individual citizen that I can see is the right to put in his little contribution, his one vote, towards the general decision. He cannot have a right to stand in the way of the majority and prevent them from having their will, or to get a court to prevent them, even if it could. There is no magic formula which will enable a minority to defeat a majority.
If a minority have a right to demand at law the carrying out of the alleged promise, surely a majority have a right to dispense with it. And if both have a right, are we to have two opposite courses followed, and how? I cannot see how, consistently with democratic theory, any other voice can be attributed to the people than that of the majority; in that way lies chaos.
These are observations on the logic of the plaintiffs' arguments, rather than on the law; but after all the law is usually logical.
I concur, of course, in the unanimous view of the court.