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Territories and the offices, both judicial and ministerial,
of such court. The Dominion parliament also continued in
force within the new provinces the laws of the North- West
Territories existing at the time of the creation of such
provinces, so far as they were not inconsistent with the
provisions of the new enactments.

Province of Saskatchewan

On March 8, 1907, the legislature of the Province of
Saskatchewan passed a judicature act whereby (section 3)
it was enacted that ' for all purposes affecting or extending
to the Province of Saskatchewan, the Supreme Court of the
North- West Territories and the offices both judicial and
ministerial thereof, as well as the jurisdiction, powers and
authority belonging or extending to the said Court, are hereby
abolished.' By other provisions of the act a Supreme Court
for the province was constituted and established, which, in
addition to exercising the jurisdiction, rights, powers, incidents
and privileges, and authorities which, immediately prior to
the coming into force of the act, were capable of being exer-
cised by the Supreme Court of the North- West Territories,
was endowed with all the jurisdiction, powers, and privileges
vested in the following courts of England prior to the passage
of the Supreme Court of Judicature Act, 1873, by the parlia-
ment of Great Britain : namely the High Court of Chancery,
the Court of Queen's Bench, the Court of Common Pleas,
the Court of Exchequer, the Court of Probate, the courts
created by Commissions of Assize, of Oyer and Terminer,
and General Gaol Delivery.

Procedure and practice in the new tribunal are regulated
by rules of court made in pursuance of the act, and where
no special provision is to be found in the act itself, or in the
rules, its jurisdiction is to be exercised in accordance with the



388 JUDICIAL SYSTEMS OF PRAIRIE PROVINCES

practice of the Supreme Court of Judicature in England as
it existed on January i, 1898. The judges, individually, are
deemed to have conferred upon them by the act the same juris-
diction as was exercisable by the judges of the Supreme Court
of the North- West Territories. The court sitting en banc at
the seat of government of the province has all the appellate
powers and jurisdiction £is had the Supreme Court of the
North-West Territories, sitting, en banc, immediately prior
to the passing of the new act, as well as the appellate juris-
diction of any divisional court of the High Court of Justice,
or the Court of Appeal, in England on January 1, 1908. Any
three judges of the court constitute a quorum of the court
sitting en banc. It is not necessary for all the judges who
have heard the argument to be present in order to constitute
the court for the delivery of judgment in any case, but the
judgment may be delivered by a majority of those present
at the hearing. Any judge who has heard the case, but is
absent at the delivery of judgment, may hand in his opinion
to be read or announced in open court. No judge whose
judgment is appealed against may be present at the hearing
of such appeal by the court sitting en banc. At present the
bench of the court consists of a chief justice and four puisne
judges appointed by the governor-general in council. The
chief registrar of the court resides at Regina. There are
local registrars of the court appointed in and for the various
judicial districts.

The judges of the district courts, except the judges of the
district court for the judicial district of Regina, when sitting
at the seat of government are ex officio local masters of the
Supreme Court. Rules of court have been made under the
authority of the Judicature Act based upon the English
Judicature Rules.

The lieutenant-governor in council may appoint an
' official guardian ' for infants in and for each judicial district.
Such ' official guardian ' must be a barrister of at least three
years' standing.

Under the provisions of chapter 9 of the acts of the
legislature of Saskatchewan the province has been divided
into eight judicial districts with a court, called the ' district



ALBERTA AND SASKATCHEWAN 389

court,' established in each. These courts are presided oyer
by a judicial officer called the ' district judge.' The district
judges must reside in their respective judicial districts, and
cannot carry on the practice of the legal profession while
holding office. In addition to their jurisdiction in civil
matters, which is similar to the civil jurisdiction of the county
court judges in Ontario, the district judges exercise certain
criminal jurisdiction under sections 823 to 842 (part Liv)
of the Criminal Code of Canada. When sitting in the
exercise of his criminal jurisdiction, the district judge's court
is styled the District Court Judge's Criminal Court.

The principal ministerial and executive officers of the
district courts are the clerks, the sheriffs (each judicial district
constituting a bailiwick), and the bailiffs.

The procedure in the district courts is similar to that
prevailing in the Supreme Court, the judges of the Supreme
Court having power to make rules of practice for the district
courts from time to time. Appeals lie to the district courts
from the courts of justices of the peace. From the decision
of a district court in every civil action where the amount in
controversy is over fifty dollars, an appeal lies to the Supreme
Court en banc.

Under chapter 10 of the acts of Saskatchewan for the year
1907 there is a court of record established under the name
of the Surrogate Court. The judge of each district court is
clothed with jurisdiction as surrogate court judge within his
district. There is also a surrogate registrar, deemed by the
act to be an officer of the Supreme Court, appointed by the
lieutenant-governor in council. In and for each court there
is a ministerial officer known as the clerk of the surrogate
court. By the 17th section of the act it is provided that the
surrogate court shall have jurisdiction voluntary and con-
tentious in relation to matters and causes testamentary, and
in relation to the granting or revoking probate of wills
and letters of administration of the effects of deceased persons
having estate or effects in Saskatchewan, and all matters
arising out of, or connected with, the grant or revocation of
probate or administration, as was vested in or exercised by the
Supreme Court of the North- West Territories immediately



390 JUDICIAL SYSTEMS OF PRAIRIE PROVINCES

prior to the coming in force of the act. This provision,
however, is not to be taken as depriving the Supreme Court
of Saskatchewan of jurisdiction in such matters. An appeal
Hes from the judgment of a surrogate judge to the Supreme
Court of Saskatchewan.

By chapter 14 of the acts of the legislature of Saskatchewan
for the year 1907 provision is made for the appointment of
police magistrates for the incorporated towns in the province,
by the lieutenant-governor in council. These police magis-
trates are paid salaries by the municipal authorities for their
services. They are rigidly chosen from the members of the
bar, no other person being qualified for appointment. Each
of such magistrates has the jurisdiction exercisable by two
justices of the peace in civil and criminal cases before the
erection of the province.

Province of Alberta

On February 11, 1907, by chapter 3 of the acts of that
year, the legislature of the Province of Alberta passed the
Supreme Court Act, which abolished so far as that pro-
vince is concerned the Supreme Court of the North- West
Territories, and created a superior court of civil and criminal
jurisdiction styled the Supreme Court of Alberta. This
court now consists of a chief justice and five puisne judges
appointed by the governor-general in council. It is much
the same in respect of its constitution and jurisdiction, both
at common law and in equity, as the Supreme Court of
Saskatchewan, described supra. The rules of equity applic-
able to the subjects of equitable jurisdiction specified in the
act are declared to be the same as those which governed the
Court of Chancery in England in like cases on July 15, 1870.
The practice and procedure of the court are based on those
prevailing in the Supreme Court of Judicature in England at
the present time. The court sitting en banc has all the
jurisdiction and powers possessed by the Supreme Court of
the North- West Territories en banc immediately prior to the
coming into force of the act, and has all the appellate juris-
diction over inferior tribunals as any divisional court of the



ALBERTA AND SASKATCHEWAN 39i

Supreme Court of Justice, or the Court of Appeal, in England.
Trial judges are not allowed, except in special circumstances,
to sit en banc on the hearing of appeals from their decisions.

The chief ministerial and executive ofificers of the court
are the sheriffs and the clerks in the several judicial districts
(of which there are six at the present time) .

The Province of Alberta has a system of district courts
similar to those of the Province of Saskatchewan, and exer-
cising the like jurisdiction. The judge of every district court,
with certain exceptions defined in the District Courts Act,
exercises in his district the power, authority, and jurisdiction
of a local judge of the Supreme Court of the province. The
district courts also exercise jurisdiction, within their territorial
limits, in respect of probate and administration.

An appeal lies to the Supreme Court en banc, subject to
certain limitations, from the decision of a judge of the district
court ; but where the parties agree in writing before the
decision is pronounced that the same shall be final, no appeal
can be asserted against such decision. This is an ouster of
jurisdiction calculated to make the legal Quintilian stare and
gasp ! Even so broad-minded a man as the late Lord Bowen
once said, touching the right of appeal in a certain class of
cases : ' If no appeal were possible I have no great hesitation
in saying that this would not be a desirable country to live
in. . . . If there is no appeal at all possible the system
would be intolerable.'

The district judges also exercise certain criminal juris-
diction within their respective districts, under part Liv of the
Criminal Code. In this behalf the court presided over by a
district judge is called the District Judge's Criminal Court.

There are also inferior courts in the province presided
over by justices of the peace and police magistrates. These
courts exercise civil and criminal jurisdiction of the same
character as that appertaining to minor tribunals in the
other provinces of the Dominion.




MUNICIPAL INSTITUTIONS



VOL. XX 11



MUNICIPAL INSTITUTIONS

Growth of Municipal Institutions

IN the prairie provinces, as elsewhere in Canada, municipal
institutions owe their existence to the enactments,
and are subject to the jurisdiction, of the provincial
legislatures, in accordance with the British North America
Act of 1867. They are the agencies called into being by
the provincial legislatures for the management of purely
municipal and local affairs, and their character has been
determined by the circumstances under which they have
arisen and the needs they have been called upon to meet.

The first legislature of Manitoba in 1871 was at once
confronted with the necessity of providing some form of
local organization. Two acts were passed in that year
dealing with local finance — the County Assessment Act and
the Parish Assessment Act. The County Assessment Act
provided for the annual preparation of a general tax roll
for the province, at a meeting of the county assessors con-
vened for the purpose by an officer known as the clerk of the
peace. At the court of sessions held at Fort Garry the grand
jury submitted a statement of the sums required in the
different districts for the maintenance of roads, bridges,
ditches, etc. The clerk of the peace then apportioned this
among the taxpayers on the roll in proportion to their assess-
ments, the actual collection of taxes being left to the
constable. This somewhat primitive system was probably
not ill-suited to the conditions then existing in Manitoba
with its thirteen thousand square miles of territory and a
mixed population of about twelve thousand. Under the
Parish Assessment Act each of the five counties — Selkirk,
Provencher, Lisgar, Marquette East, and Marquette West —

306



396 MUNICIPAL INSTITUTIONS

was divided into parishes. Purely local improvements in
these parishes were secured by a formal resolution passed at
a public meeting of the heads of families and presented to
the clerk of the peace, who thereupon assessed the inhabitants
of the parish.

The first general municipal act for Manitoba was passed
in 1873. Under it two- thirds of the male freeholders of
twenty-one years of age, in any district containing not less
than thirty freeholders, might, on petition to the lieutenant-
governor in council, secure the issue of letters patent con-
stituting a local municipality with powers for the construction
of roads, bridges, slaughter-houses, etc., and for raising the
necessary revenue by taxation, limited, however, to one per
cent of the value of the real estate.

In 1883 a new system was introduced based on the prin-
ciple of the Baldwin Act, which since 1849 has governed
municipal institutions in Ontario. The province was divided
into twenty-six counties, each with its county council and
officers as in Ontario, and the counties were in turn grouped
into three judicial districts, each with its board formed by the
county wardens and the mayors of incorporated cities and
towns within the district. Each board prepared an estimate
of the funds required for the maintenance of its court-house
and gaol, and levied this sum on its own group of counties.
So faithful indeed was the imitation of the Ontario system,
that many of the provisions of the law proved quite unwork-
able in the conditions then prevailing in Manitoba. The
system proved expensive and inefficient, and the dissatis-
faction thereby engendered led to the abolition of the district
boards and a return to the old system. The duties performed
by these boards now fall within the purview of the attorney-
general's department of the provincial government. The
system of smaller administrative districts was then intro-
duced, and the law now governing municipal organization in
Manitoba outside the city of Winnipeg is embodied in the
general municipal act of 1902. Under this act the inhabitants
of every city, town, village, or rural municipality become a
body corporate, with all the powers and privileges essential
to the management of exclusively local affairs, and subject



GROWTH OF MUNICIPAL INSTITUTIONS 397

to all the liabilities of a corporation. The supreme power
of the provincial government is asserted in restriction of the
amount of taxes which may be levied by the municipality,
and in supervision by a municipal commissioner and his
staff, but otherwise the provincial government abstains as
far as possible from interference in municipal affairs. The
department of Municipal Affairs as a branch of the pro-
vincial government is, it should be mentioned, as yet peculiar
to the three prairie provinces.

In order to secure incorporation as a village there must
be a population of over 500 within an area of 640 acres, or
over 2000 within 800 acres. For a town the necessary
population is 1500 to 2000 within 640 acres, and for every
additional 160 acres there must be another 1000 inhabitants.
A village of over 1500 may by proclamation of the lieutenant-
governor be erected into a town, and a town containing over
10,000 into a city. Prior to the recent (1912) great extension
of territory, the Province of Manitoba was divided into four
city municipalities — ^Winnipeg, Brandon, St Boniface, and
Portage la Prairie — forty-two town and village municipalities,
and one hundred and four rural municipalities. The council
of a rural municipality consists of the reeve and six or four
councillors, as determined by by-law. That of an incor-
porated village consists of the mayor and four councillors.
The town council consists of the mayor and in general two
councillors for each ward, while the city council consists of
the mayor and two aldermen for each ward.

Up to September i, 1905, the country that now forms
the Provinces of Alberta and Saskatchewan was governed by
the ordinances of the North-West Territories, and it is in
these ordinances that we find the origins of municipal
government in this part of Canada. Municipal development
in the two provinces has been governed by similar conditions
and has naturally followed similar lines. The case of
Saskatchewan may therefore be taken as representative.
There were in Saskatchewan, in February 1912, four cities,
sixty-one towns, two hundred and eight villages, and
one hundred and seventy-two rural municipalities. The
population necessary to attain the status of a city is



398 MUNICIPAL INSTITUTIONS

five thousand, that for a town five hundred. A village
must have a population of fifty within an area of 640
acres. When the density of population is less than this,
there is the rural municipality or the local improvement
district. The legislation now governing these different
grades of municipal institution is embodied in the city, town,
village, and rural municipality acts and the amended Local
Improvements Act of 1908 and 1909, with some later amend-
ments.

Of the cities and towns comparatively little need be
said. Save in respect of assessment and taxation, to be
dealt with later, their system of government is on the whole
like that prevailing in Manitoba. It should, however, be
noted that the necessity for concentration on the work of
city government, and for the expert skill and vigilance which
can only be thus obtained, is becoming felt in the West as
elsewhere. The system of government by commission has
already been adopted by Regina, Saskatoon, and Prince
Albert. But in these cities the commissioners are appointed,
not as the controllers are in Winnipeg by a direct vote of
the citizens, but by the council, to which they are responsible
and by which only they can be removed. This system prac-
tically amounts to the delegation by the council of those
branches of city government which require expert skill and
special knowledge to men who tend to become virtually
permanent officials, only the broader questions of policy
being reserved for decision by the council.

Saskatchewan is above all an agricultural province, and
it is in the case of the smaller municipalities that her experi-
ence is most instructive. Under the Village Ordinance of
1895, ^^^ example, it was possible to form a village when
there were ten houses within three hundred and twenty
acres. As if this were not sufficiently extensive, the Village
Act of 1906 recognized as a possible village an area of 1280
acres having fifteen dwelling-houses. The tendency, however,
has since been to insist on greater density of population as
essential. The Village Act of 1908, therefore, limits the
area to 640 acres with a population of not less than fifty,
and there is said to be a strong tendency to insist on a



GROWTH OF MUNICIPAL INSTITUTIONS 399

minimum population of one hundred. The older system
under which the village overseer was practically supreme
has been superseded by the act of 1908 which requires the
ratepayers to elect three councillors, who in turn elect one
of their number as chairman or ' overseer ' and appoint a
paid secretary-treasurer from outside their own body. This
system has made representative government in the village a
reality. For current expenditure the council may arrange
a temporary loan not exceeding sixty per cent of the taxes
of the current year ; and, subject to the approval of the
minister of Municipal Affairs, it may by by-law secure loans
by debenture extending over fifteen years, and may provide
for the general government of the village, including health
protection, the care of the sick, and a fuel-yard in case of
need.

The rural municipalities and local improvement districts
especially deserve attention. In 1884 an ordinance provided
for the establishment of a number of rural municipalities,
but under it the system of government proved too expensive
for the stage of development then reached by these small
western communities, and this led to further legislation with
a view to attaining the ends of local self-government by
a less expensive method. Under the Local Improvement
Ordinance of 1898 each district, covering on an average
one township, elected an overseer who was responsible for
the improvement of roads and similar work. In 1903 these
one-township districts were superseded by districts including
on the average four townships or ' divisions.' There was a
council board of four to which each ' division ' elected a
councillor. This system was practically re-enacted by the
Local Improvements Act of 1906. But in 1904 preliminary
steps had been taken by the legislature of the North- West
Territories towards a systematic inquiry into municipal
organizations in general. This inquiry was carried through
by the government of Saskatchewan, which appointed a
commission for the purpose. The result was the establish-
ment of the department of Municipal Affairs in 1908, and
the passing in 1908 and 1909 of the series of acts, already
mentioned, covering all grades of municipalities. The



400 MUNICIPAL INSTITUTIONS

province was then divided into ' territorial units,' the normal
unit including nine townships. The rural municipality and
the local improvement district each embrace a territorial
unit. The two are thus identical in area, and it is left
entirely to the ratepayers of any given unit to decide whether
it is to be a local improvement district or a rural municipality.
The chief advantage of the latter is that it constitutes a
permanent corporation, able to construct durable public
works such as good roads, since within certain limits it can
arrange debenture loans, and thus distribute the burden
between present and future taxpayers. In this as in many
other matters the rural municipality is subject to the super-
vision of the minister of Municipal Affairs. But so general
has been the appreciation of the reality of the advantage
referred to, that within three years after the passing of the
Rural Municipality Act the greater part of the province had
discarded the local improvement district organization, and
it was therefore proposed in the government measure of 1912
to transform the remaining local improvement districts into
rural municipalities.

Municipal Taxation

We have seen that the British North America Act gives
to the provincial legislature exclusive authority in regard
to direct taxation within the province for provincial, local,
or municipal purposes. This power has, however, as already
mentioned, to a considerable extent been delegated to the
municipalities, together with the responsibility for certain
public services which the provincial governments might
otherwise have been constrained to undertake. Among the
sources of revenue thus placed at the disposal of the munici-
palities are : the taxation of real estate, the personal property
tax or its modern substitute the business tax, the income tax,
and the special franchise tax, and licences on a variety of
occupations.

Taxation of Real Estate. — Throughout Western Canada
the most important source of municipal revenue is the
taxation of real estate. In the cities, towns, villages, and



MUNICIPAL TAXATION 401

rural municipalities of Manitoba ail real and personal
property may be assessed at less than actual value, or in
some uniform and equitable proportion of actual value, so
that the rate of taxation shall fall equally upon the same.
For the purpose of assessment, ' real property ' is taken to
include lands, buildings, and improvements, while ' personal
property ' includes all goods and chattels and all plants and
machinery of any kind, also buildings when not the property
of the landowner. Actual value is defined as * the fair market
value of such property regardless of a prospective increase
or decrease, either probable, remote, or near.' An estimate
of market value as thus defined is clearly an unattainable
ideal, since fair market value will certainly be affected to the
extent of the discounted present value of any expectation
of a change in value. But in practice actual value is taken
to mean what the estate is estimated as competent to fetch


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Online LibraryAdam ShorttCanada and its provinces; a history of the Canadian people and their institutions → online text (page 10 of 27)