1901-04-24

PLAINS OF ABRAHAM.

Mr. NORTHRUP asked :: 
Hon. R. R. DOBELL.: In answer to the hon. gentleman (Mr. Northrup), I would say that I have already answered that question. I claim that my conscientious objections are not a matter for consideration in this House.



CHINESE AND JAPANESE IMMIGRATION.

[Stage Direction]
Mr. MORRISON-by Mr. Fraser-asked :
1.	Does the government expect the commission now taking evidence in British Columbia touching Oriental immigration to report before the close of this session of parliament ?
2.	Is it the intention of the government to have copies of the evidence and report thereon printed and distributed before the next session of parliament ?
The PRIME MINISTER (Rt. Hon. Sir Wilfrid Laurier).: The commission is now taking evidence and it is not probable that its report will be received before the close of the session. It is the intention of the government to have the report printed and distributed as soon as received.



I.C.R.-CLEVELAND CYLINDER.

[Stage Direction]
Mr. BORDEN (Halifax)-by Mr. Taylor-asked :
1. How many engines on the Intercolonial Railway are equipped with the device known as the Cleveland cylinder ?
2.	How many of the engines now in course of construction are to he so equipped ?
3.	What tests have been made with engines so equipped as compared with ordinary engines, and with what results?
The MINISTER OF RAILWAYS AND CANALS (Hon. A. G. Blair) :: 1.	There are at present two engines equipped with the device known as the Cleveland cylinder, one passenger and one freight engine. But before adopting this cylinder, one of the smaller freight engines at Moncton was fitted with the cylinder and put on the road ; the men operating the engine were very well pleased with its work-sufficiently so to justify us in having one of the new engines built by tlie Baldwin Company fitted out with this device, with a considerable improvement. This engine has been in operation on the road and has given satisfaction.
2.	Twelve engines are now in course of construction with the Cleveland cylinder.
3.	Various tests in various ways have been made from time to time ; a test was made with a Baldwin compound engine of the same size and capacity, by an independent engineer, Mr. Geo. S. Hodgins, of the Canadian. Locomotive Works, Kingston-four round trips were made during this test with each engine, and the average consumption of fuel was found equally favourable in the case of the Cleveland as with the Baldwin compound. The Cleveland showed some evidence of superiority on two of the trips and the Baldwin on the other two, but the average speed was higher with the Cleveland engine ; the Cleveland also doing her work easier on our heavier grades. One great advantage of the Cleveland over the Baldwin compound, in the opinion of competent engineers, is that the cost of repairs would be less. On the whole, the department has felt itself justified in having a portion of the engines which are now being constructed for the Intercolonial Railway to the number of twelve, constructed with cylinders on this principle.



BUBONIC PLAGUE.

Mr. MORRISON asked :: 1.	Has the government received any authentic report of the existence of bubonic plague in Australia ?
2.	What precautionary steps have been taken at the ports of entry on the Pacific coast as against the appearance of the plague ?


The MINISTER OF AGRICULTURE (Hon. Sydney Fisher) :: 1.	No, but it bas been reported by captains of vessels arriving, and notification of this bas been sent to my officers.
2.	All Asiatics arriving, even on healthy vessels, have to go through the process of disinfection of their persons1 and effects.
Articles subject to soil contamination such as water chestnuts, salt eggs, yams, lily bulbs, and similar products packed in loam are disinfected unless accompanied by a

satisfactory certificate from a sanitary authority at the port of departure that they do not come from an infected district.
The addition of a bacteriological laboratory to the appliances of the William Head quarantine station near Victoria and the appointment of an assistant medical officer at the quarantine who is a trained bacteriologist.
The notification from time to time of my officers as news of -the disease reaches my department and the repeated warning to all quarantine officers on the Pacific coast to keep- the possibility of this disease in mind in making all inspections.



WRECK OF THE STEAMER WILLAMETTE.

Hon. E. G. PRIOR (Victoria, B.C.).: Before the Orders of the Day are called, I would like to ask the right hon. Prime Minister (Sir Wilfrid Laurier), as I see the hon. Minister of Marine and Fisheries (Sir Louis Davies) is not in his place, whether he knows anything in regard to the case of the steamer Willamette, which was wrecked not long ago on the east coast of Vancouver Island at Denman Island. The wreck, I believe, was bought by Moran Bros., of Seattle, two American citizens, and it iss now, I am informed, being salvaged, or wrecked, by these two Americans. I would like to ask the right hon. gentleman whether they have any right, under the laws of the Dominion, to do that work, or whether it is not fair that the wrecking should be done by Canadian wreckers ? I am not exactly au fait with the law on that matter, but it seems to me if it is possible for the government to interfere and see that the work is done by Canadians instead of Americans it would be well to do so.


The PRIME MINISTER (Rt. Hon. Sir Wilfrid Laurier).: We have received a complaint to the effect that this work is being performed by American wrecking parties. Complaint was made to us and we have inquired of the Department of Justice in regard to it. That is the latest information I have on -the subject. I may be able, perhaps, at a later day, to give the hon. gentleman fuller information.


Edward Gawler Prior: The right hon. gentleman has received a complaint ?


The PRIME MINISTER.: We have.



SUPPLY-NIPISSING ELECTION.

[Stage Direction]
The MINISTER OF FINANCE (Hon. W.
S.	Fielding) moved that the House again resolve itself into Committee of Supply.
ill'. W. B. NORTHRUP (East Hastings). Mr. Speaker, I rise to call the attention of the House to the proceedings under the writ issued at the general elections of last fall, to the returning officer for the electoral district of Nipissing ; to the proceedings un-Mr. FISHER.
der that writ; to the subsequent writ issued on the 10th of November last to the same returning officer for the same electoral district, and to the proceedings under that writ. I take this course with diffidence and regret ; with diffidence because, realizing fully the dignity of this House and its paramount duty to preserve the rights and privileges of the people of Canada, whom we represent, I fear lest even unwittingly any chance or unguarded expression on my part might happen to light the flames of partyism, and thereby fire the passions and warp the judgment of hon. members of this House. I do so with regret because I feel that no Canadian, proud of his birthright and holding dear the honour of his country, can read the story told by the returning officer for that electoral district, himself under oath, without a pang of shame.
I shall endeavour to state the case as calmly and dispassionately as possible, and if my friends on this side of the House think that I am not stating the case as strongly as it might be stated ; if they think I am overlooking suspicious circumstances and failing to call attention to tell-tale omissions, I wish to assure them that my reason is simply this : That in order to avoid a controversy as to the facts I lay before the House, I will confine myself, as to the statement of the facts, exclusively to documentary evidence, and to the admissions made by the returning officer himself under oath.
The House, of course, is aware that a writ was issued to the electoral district of Nipissing in common with all other electoral districts of this country last October. The writ was received by the returning officer of that district, and his proclamations were posted up the full eight days before nomination day, as required by law. I call attention particularly to this point because I think it is most material when we come to consider the powers of the returning officer to postpone an election, to remember that he himself admitted that his proclamation had been posted up more than eight days before nomination day. Some time after this proclamation had been posted, in looking into the question of his voters' lists, he found a difficulty staring him in the face. He found, on the one hand, a clause of the statute which required him to use the voters' lists which were in force sixty days before the issue of the writ; and he found, on the other hand, another clause that said, that in case the lists were more than a year old, then in such a district as ids, certain steps were to be taken to provide new lists. Accordingly, confronted with this difficulty, he did, I think, a very proper thing, and he came to Ottawa to see the Secretary of State (Hon. Mr. Scott), and to take his advice on the subject. The returning officer tells us himself that he called on the Secretary of State in the morning, that he mentioned the difficulty that had
3645 APRIL 24, 1901 3646	
arisen, that the Secretary of State said he would consult with the board of legal advisers-that was the expression used by the returning officer. At all events, the Secretary of State was to consult his legal advisers, and he informed the returning officer that if he returned later on he would give his reply. The returning officer did return later in the day, and was advised that he should use the lists for 1898. He, therefore, returned to his home with the instructions of the Secretary of State as to the voters' lists he should use. However, after he returned home, the difficulty still seemed to exist in some minds in Nipissing as to whether or not proper advice had been given by the Secretary of State. The returning officer tells us he was called upon by a gentleman, who asked him to take legal advice there, and on the returning officer declining on the ground that he might be subject to expenses that would not be allowed by the government, he was informed that the Reform candidate, Mr. McOool, would pay the expense of the opinion if the government refused to pay. The returning officer accordingly took an opinion from a local lawyer which was adverse to that given bv the Secretary of State. The returning officer then wrote to the Secretary of State, telling of the opinion he had received, and it seems that in a day or two afterwards, on the 23tli of October, an order in council was passed directed to the sheriffs of Algoma and Nipissing-this returning officer being the sheriff of Nipissing, but the order in council gave instructions, not to him as returning officer, but to him as sheriff, along with his brother sheriff of Algoma. This order in council directed that new lists should be prepared according to the provision of the statute. This order in council was assented to by His Excellency the Governor General on the 26th of October, and the returning officer was at once notified. He thereupon decided to postpone the election, and he posted on the door of the court house a notice, that having received this instruction to prepare new voters' lists, it would be impossible for him to hold the election on the day fixed by law, and that, therefore, he would postpone the election to a subsequent date, when the lists had been prepared. This postponement was, I will contend, wholly without his powers. The day of nomination came on, and the returning officer himself states that he went to his office in the early morning and told his step-son, who acted as his deputy, that he was going out of town, that he would not tell him where he was going, so that in case any person inquired he could answer that he did not know where the returning officer was. The returning officer then sent for the election clerk, and the two together went across the road to the house of the returning officer, where the returning officer told his wife that if any one called for him she should say he had gone away, and she did	not know where. The returning officer and his clerk remained hidden in the house all day, and although various inquiries had been made, the answer was given that he was away, and it was not known where he had gone to. The Conservative candidate, being unable to find the returning officer, was consequently unable to make a proper deposit of his money, and of his election papers. This was the 31st of October. A few days afterwards application was made, on behalf of the Conservative candidate, to the officer to see the order in council and any papers he had that would justify this postponement, but he was refused the right to see any of these papers. Subsequently, as we are all aware, the general election was held on the 7th of November, and thereafter, on the 10th of November, and at a time when this parliament had been elected ; on the 10th of November a new writ was issued by the Clerk of the Crown in Chancery to the same returning officer for this electoral district of Nipissing, and he proceeded thereunder as if the said writ had been wholly regular, and held an election at which only one candidate being nominated, he returned Mr. Mc-Cool, the candidate so nominated, as a member to this House from the district of Nipissing. X will contend that the issue of this writ under which the election was held, and by virtue of which this gentleman occupies a seat in the House, is a writ which was issued wholly without authority, was perfectly invalid ; that, therefore, the proceedings thereunder were invalid, and that the seat for tile electoral district of Nipissing is at present legally unfilled in this House. Having thus frankly given the circumstances, I may as well freely admit that I presume hon. gentlemen opposite will take the preliminary objection, that this is not a case for this House to consider at all. I take for granted that the government will contend that his parliament, having passed a Controverted Elections Act, and having referred disputed questions touching elections to the courts, that it thereby divested itself of ii;s authority, and that the motion I am about to bring before the House is, therefore, out of place, and should not be adopted. My motion was printed in the Orders last Friday, and I presume that most members are acquainted with it. My motion is two-fold. One part asks for an inquiry as to the deputy returning officer, and the other part asks for a reference to the Committee on Privileges and Elections, to consider the validity of the writ issued on the 10th of November. Speaking in regard to the question as to whether or not this House has authority to investigate the acts of the returning officer, and, if necessary, to reprimand or punish him therefor, there is very little room for difference of opinion on that point. As far back as 1875, there was a petition presented to this House in refer-
[Stage Direction]
ence to an election held in Victoria, in which the conduct of the returning officer was impugned. At that time the ease was pending in the courts, and it was admitted by Mr. Blake on the one hand, and Sir John Macdonald on the other, that while it would be improper to consider the question at that stage, it being then before the courts, yet, the House had not divested itself of its power to control, and, if necessary, to punish its own officer, one of whom was the returning officer. Again, a case in our courts in the province of Ontario, 44 Q.B., in re Centre Wellington, a case in which the judge, when applied to for a recount, had refused to proceed with the recount as by law he should ; the court of Queen's Bench differed from the learned judge as to his duty, and in giving their judgment, they pointed out that in regard to a judge sitting in that position-and they expressly referred to the returning officer as being in a similar position-they were both officers of this House, that this House had always ample power to punish its own officers, and that there was no jurisdiction in the courts to do so. On the other point in this very case, indeed, the Nipissing case, I find that the judges themselves, in giving judgment, pointed out :
It does not form part of our duty under the statute to investigate or pronounce upon the constitutional right of the executive to direct the issue of a new writ in the circumstances of this case. That is a matter, not for the election judges, but for the House of Commons, to whom the ministers are responsible, if there was not plenary power and prerogative in the Governor General to act summarily upon the return of the first writ.
Speaking now, not only on the point touching the returning officer, but also on the question of the jurisdiction of this House to inquire into such a matter as this, I would call attention to the fact that our Controverted Elections Act does not by any means refer every case to the courts. Prior to the passing of that Act, it was the practice in all cases, when questions touching elections were brought to this House, to refer them to a parliamentary committee; and when power was taken away from that committee, there was no more power given to the courts than would necessarily follow from the exact words contained in the statute. Looking at the statute itself, I find that certain matters are referred to the courts; but I submit that the particular point on which I rely in this case was not one of those matters; and, apart altogether from the decision given, it is abundantly clear that the Controverted Elections Act does not apply to such a case as the present. The 5th clause of chapter 9 of the Revised Statutes of Canada is the clause on which I rely. It says :
A petition complaining of an undue return, or undue election of a member, or of no return, or of a double return, or of any unlawful act
by any candidate not returned
['I think it a great pity they have not selected a somewhat easier and more euphonious name, for I do not see how people are going to pronounce this.\nBill reported, read the third time, and passed.']
William Barton Northrup: May be referred to the courts. The point I take in this case is that there was no return, or double return, or undue return, but that there was no election at all. I say that the writ issued on the 10th of November was wholly void, and all proceedings under that writ were necessarily void also.
I therefore hold that the returning officer has returned a gentleman as a member of this House for Nipissing when as a matter of law he had no more power to make that return than he would have had if the writ of election had been issued by an usher of this House; and if the writ was illegally issued, then it is perfectly clear that the seat of Nipissing in this House is still vacant.
As to the power of hon. gentlemen to issue that writ on the loth of November, we shall all agree, I presume, that these writs were issued originally as a lbatter of prerogative. All must admit, I presume, that the many assemblies of the nature of parliaments that were held from the days of the old Witanagemote which first met in the forests of Germany or under the oaks of England down to the 13th century, must have been called by royal prerogative. The first parliament itself must have been called by royal prerogative, since there was no statute under which it could be called. But from the very beginning there was a struggle between the Crown and the parliament as to the privileges of parliament. As long ago as the reign of Queen Elizabeth, as laid down by the historian Hallam, parliament succeeded for the first time in wresting from the sovereign the admission that parliament was entitled to full control over its own proceedings and elections. The power of prerogative of course still exists: but we all know that the prerogative of the Crown can be taken away, not only by express words, but by necessary implication. I am quite aware that in the ordinary text books the doctrine is laid down broadly that the Crown cannot be bound by any statute unless it is distinctly named; but this, like many legal rules, is one that with many exceptions. No one can contest the soundness of the rule, but there are so many exceptions to it that the rule might almost be as well stated the other way.
To illustrate the point I am making, it is well known that before constitutional powers of self-government are given to a conquered colony, the Crown has a prerogative right to govern that colony ; but as soon as constitutional powers of self-government are given to the colony, the very giving of those powers, by implication, even although the Crown is not named, deprives the Crown of its prerogative to the extent of the constitutional powers so given. We know too that the Crown is entitled to all the minerals in a colony; but a grant of land to the Canadian Pacific Railway would deprive the Crown itself of that right unless it were directly named. Again, we all know that


Mr. MCCARTHY.: Where is that reported?


William Barton Northrup: I am quoting from May, page 723. It will be seen that the case which I bring before the House to-day is very closely like that of Sir Sydney Waterloo in principle. The question whether the sitting member was a government contractor or not could have been ventilated before The courts and there was no reason why it 1154
should not be fought out there ; but it was not. But, when parliament's attention was called to the fact that a gentleman was occupying a seat who, for some reason should not fill it, parliament took action and the seat was vacated. In this ease, if the view of. the law I am submitting be wrong, if the Parliamentary Committee decide that the issue of the writ of 10th November was legal, no harm is done-the country knows that the hon. gentleman who was returned was entitled to the seat, and can retain it. If, on the other hand, it is decided that the writ was illegal, I am sure that no gentleman on the other side would for a moment think of abrogating the privileges of the people and lowering the dignity of the House by retaining as a member a gentleman whom the committee has solemnly decided should not be here. I know that hon. gentlemen will raise objections to having this matter brought before the committee, on the ground that it is a partisan body, and that party politics are bound to have weight there. It will be said that this has always been the case. But in 1882 Hon. Edward Blake, one of the most distinguished men [DOT]who ever sat in this House, giving his opinion on this point, stated that he had sat on many parliamentary elections committees, and had always found that, no matter whose seat was at slake, the committee endeavoured to do justice. I hope the right hon. gentleman who leads the House will see the impropriety of a Liberal government refusing to protect the privileges of this House and the rights of the people. A fossil Tory government might be accused of a want of consideration for the rights of the people, but surely it will not be said at the beginning of this century and in our Canada that a Liberal government backed by an enormous majority, as the right hon. gentleman's government is, are unwilling to do justice to the people and to the House, that they feared to have a matter of this kind referred to a committee, and, by a hostile vote have shut off an opportunity to investigate and consider this case, and so prevent justice being done. I shall not occupy further time of the House, but will submit the motion of which I gave notice the other day :
That all the words after the word ' That ' In the proposed motion be left out and the following substituted therefor :
At the general election of members to serve in the House of Commons for the Dominion of Canada which was held on the 31st October and the 7th November, A.D. 1900, a writ for the election of a member of the House of Commons for the electoral district of Nipissing was duly issued to H. C. Varin, sheriff of said district, as returning officer for such district.
That the returning officer received such writ and duly posted in the said district his proclamation in the form and manner required and prescribed by section 24 of the Election Act, 1900, more than eight days before the 31st day of October, 1900, being the day fixed for the nomination of candidates at such election.

That the returning officer alleges that on or about the 18th October, 1900, he came to Ottawa and consulted with the Secretary of State, the Hon. R. W. Scott, as to what lists should he procured by him and used in the said election, and that he was instructed to use those of 1898.
That subsequently the returning officer further alleges that on the 23rd day of October, he wrote to the Secretary of State touching the voiters' lists, and on the 26th October received a telegram from him in the following words :-
* H. C. Varin,
' North Bay.
* You have been authorized to use voters' list, 1900, already prepared or in course of preparation in the unorganized district of Nipissing- official letter goes up to-nght. Notify all parties interested. This will supersede lists for 1898 where more recent ones have been prepared.
[DOT] (Sgd.) R. W. SCOTT.' That the returning officer further alleges that on the 28th of October aforesaid he came to Ottawa, called on .the Reform candidate, Mr. C. A. McCool, and with him again interviewed the Secretary of State regarding said lists.
That in accordance with a report purporting to be signed on the 25th of October, A.D. 1900, by four members of the government, an order in council was passed bearing date the 26th of October, A.D. 1900, instructing the sheriffs of Algoma and of Nipissing to prepare voters lists for such districts, a copy of which order in council is alleged to have been received on the 30th of October, A.D. 1900, by the sheriff of Nipissing, who was the returning officer aforesaid.	. _
That on the 31st day of October, A.D. 1900, the returning officer posted notices up near the court-house door, and in the court-room where, under his proclamation, the nomination was to be held, which notices postponed the said election tp a future day to be hereafter fixed and were in the words following :-
'[DOT]By order to me directed from His Excellency, dated 26th October, 1900, to take the necessary steps to put in force and effect the_ 1900 unorganized voters' list for Nipissing district, by virtue of said order I hereby adjourn the nomination and election, as per my proclamation dated 10th October, 1900, and will issue new proclamation as soon as His Honour the district judge certifies to said list, or sooner if possible.
' (Sgd.) H. C. YARIN,
' Returning Officer for the District of Nipissing.
* Dated at North Bay,
' 30th day of October, 1900.'
That it is alleged that one J. B. ICloclc and his agent attended the said court-room on the 31st day of October, 1900. at the time fixed by the returning officer's proclamation for the nomination of candidates, haying with them a duly executed nomination paper and his deposit of $200, which they desired and intended to give to the returning officer, but neither that officer nor tlie election cleric attended at said
time or place.	,	,
That tlie returning officer lias admitted that with the object of preventing any nomination being made on the said 31st day of October, 1900, he took his election clerk, one Flannery to his own house and there both lay concealed during the day fixed for said nomination.
That the returning officer has admitted that he gave instructions to his deputy at his office


William Barton Northrup: on the said day to say to inquiries that he had left town, and it is alleged that he also compelled or induced his wife on the said day to reply to inquiries made for him at his house that he was not at home and she did not know where he was.
That in consequence, as it is alleged of the matters aforesaid, the said Kloclc was unable to secure a uomination on the 31st day of October, as he desired.
That on the 10th day of November, 1900, the returning officer is alleged to have received from Ottawa a telegram in the following words :-
* Return election writ, endorsing on It reasons for omission to hold election. New writ goes up to-day, dated 10th of November, nomination 28th November. On this information you can proceed with posting a proclamation.'
That shortly thereafter the returning officer received a new writ of election for the said electoral district of Nipissing, bearing date the 10th day of November, 1900, accompanied by a letter from the Clerk of the Crown in Chancery in the following words :-
H. C. Varin, Esq.,
' Returning Officer,
' North Bay, Ont.
' Sir,-I beg to transmit herewith a new writ dated this day, returnable 27th December next, and fixing the 28th November as nomination day, for a candidate in the electoral district of Nipissing. Please return first writ when acknowledging receipt of this.
' I have the honour to be, &c.,
' H. C. LaMOTHE,
*	' Clerk of the Crown in Chancery.'
That although the new lists referred to in the returning officer's notice postponing the election liad not been prepared and the returning officer could not procure any other lists than those available on the 31st of October then past, he proceeded to hold an election under the new writ, posted up his proclamation, received a nomination paper and deposit on behalf of the said A. C. McCool, and no other nomination having been made, he returned the said A. C. MOCool as a member of this Honourable House for the electoral district of Nipissing, and the said A. C. McCool now occupies a seat in this House.
That in view of the matters herein set forth, the question of the validity of the writ of election bearing date 10th November, 1900, and the conduct of the said returning officer be referred to the Committee of Privileges and Elections for the purpose of inquiring into all the circumstances of the case and reporting on the validity of the said election and on the action of the returning officer, and that the House do also order that the Clerk of the Crown in Chancery do attend the said committee with all writs, papers and documents relating to the said election.
I think, Sir, that enough has been said to show that an inquiry should certainly be held in regard to the conduct of the returning officer. I think enough has been said to show that, to put it the least strongly, there is grave doubt as to the power of the government to issue this writ that was issued on the 10th of November. There is another grave reason why this matter should he referred to a committee. Hon. gentlemen are aware that a case lias been before the courts

in connection with this first election; but a perusal of the records in that case will show that there was no action brought before the judges which could possibly have resulted in unseating the present occupant of the seat of Nipissing. It was an action brought by Mr. Kloek against the returning officer to declare that he, Mr. Kindt, had duly made his nomination deposit and filed his papers on the 31st of November, and therefore was entitled to be returned member under the first writ. That was the only question considered there at all. Therefore I feel justified in saying that the questions that we ask to have referred to the Committee on Privileges and Elections, the validity of the second writ-for we are not bothering about the first writ-and the conduct of the returning officer, are . cases that have not been before the courts, and therefore are fit cases to go before the committee. One further argument in conclusion I may be permitted to allude to, and it is this : In this case which was brought before .Sir Alexander Boyd and Mr. Justice McMahon, an official of one of the departments in Ottawa produced a record showing that a minute was passed in council authorizing these new lists to be prepared, which necessitated a postponement of the election. Now we all know that the rules require that there should be four ministers present at a meeting of council, and the names of four ministers were given in court there as the ministers who were present when this order in council was signed. Now I am quite prepared to admit that, I do not for one moment impugn on the floor of this House the honour of the ministers who were stated to be in Ottawa on the 25th of October and to have joined in that order in council ; but the fact remains, the people outside are apt to comment upon it, for it had been made public property through this trial, that these four ministers who were present and joined in that order in council, are found, by a reference to the newspapers of that day, and at a time when movements of the ministers were very naturally observed and chronicled -for it was within a few days of the elec tion-we find, I say, that the leading Reform newspapers gave accounts of visits made by these ministers and meetings addressed by them in various parts of the country, which accounts, if they were true, and if these ministers were indeed attending these meetings, would have shown that it was quite impossible for them to have been in Ottawa on the 25tli of October. But I do not for one moment accuse the ministers of not having been here. I only say in justice to themselves, this matter having become public property, being a matter of public notoriety and comment, I think that is an additional reason why hon. gentlemen opposite should wish to have this case referred to the Committee on Privileges and Elections in order that charges such as these, which no doubt are ill-founded, may
be disproved, and doubt thereby removed from the public mind.


The SOLICITOR GENERAL (Hon. Charles Fitzpatrick).: I have listened, and I am quite sure that all the members of this House have listened with considerable pleasure and a great deal of profit, to the interesting and instructive address that has just been presented to the House by my hon. and learned friend from 'Hastings. (Mr Northrup). I am quite sure that notwithstanding all that he has said in support of thq motion which he has offered to the House, shorn of all its legal technicalities, that motion may he reduced to this statement, that he asks this House to refer to the Committee on Privileges and Elections a question of the validity of the writ that was issued -on the 10th of November last, and also a question of the conduct of the returning officer appointed to carry on the proceedings with respect to the Nipissing election. Now I have always understood that the object of a reference to the Committee on Privileges and Elections was to provide an easy and convenient means of getting evidence in support of some question that is submitted for the consideration of the House. I think lit will be admitted, I think it is an undoubted legal proposition, that it is in the power of the House to summon before it the returning officer or any other official of whose conduct the House has occasion to complain, and having summoned that officer before the House, it would be competent for the House to examine witnesses for the purpose of inquiring into all the circumstances attending the offence complained of. Now in order to save the necessity for adopting that proceeding it has been sanctioned by parliamentary usage that a committee should be appointed to which the duty would be assigned of making an inquiry that the House itself would have the right to make. While that committee lias been appointed for the purpose of making that inquiry, the House has retained the inherent power to conduct the inquiry itself. Let me draw my hon. friend's attention to this fact, that while the Committee on Privileges and Elections was appointed for the purpose of making inquiries into matters of this sort, it is not to be overlooked that in 1873 parliament determined that questions affecting elections should be detenmied by the courts. I am not going to state, I have no desire to state, I think it would be improper for me to state, that parliament has divested itself of power to deal with matters of this sort ; on the contrary, I submit that while parliament has delegated to the courts the right and duty to inquire into matters affecting elections, it. has still retained the power to deal with the conduct of returning officers, who are officers of the House, and also to deal with any matter which may affect the position of a member of the House. But while it has re-
36J9

tained that power iii Its own hands by the choice that it has made, or rather by the delegation it has made to the courts, it has decided that this is the preferable course to pursue ; that is to say, a preferable course, in the opinion of parliament when it passed the Elections Act of 1873, was to have these matters inquired into by the courts of the land. Now what would be the result of a reference to the Committee on Privileges and Elections ? The result of a reference to the Committee on Privileges and Elections would be a report on all the facts connected with the issuing of the writ of the 10th of November, and on all the facts connected with the conduct of the returning officer who refused to hold the election as directed to do by the writ. For the purpose of that inquiry it will be open to the Committee on Privileges and Elections to summon before it all those witnesses who might be able to give evidence, and all those witnesses who might be able to produce documents for the purpose of enlightening- the committee. My hon. friend said, in the course of his argument, at least I understood him to say, that the committee would decide this, or would decide that. The committee can decide nothing. All that the committee can do is to inquire and to make a report to the House, and the House decides upon that report. Under the circumstances of this case why refer this matter to the Committee on Privileges and Elections V The matter has been before the court. All the facts have been inquired into on the petition which was a petition to seat Mr. Klock. because it was not a petition to contest the election. It was a petition by virtue of which it was attempted to seat Mr. Klock as the member for Nipissing, after he had failed to obtain the sanction of the electors. That was the object of the petition and that was the petition that was dismissed. In connection with that petition you had all the facts inquired into, all the facts connected with the conduct of the returning officer, with the conduct of the election clerk, and in respect to every question connected with the issuing of the writ, we have the facts here. There can be no dispute about that. Under the Contested Elections Act, these facts having been inquired into in the manner I have described, the judges are obliged to report, not only their finding, but they are obliged to report the evidence upon which their finding is based to the Speaker, and as a matter of fact, these facts having all been made the subject of a judicial inquiry, the evidence is here now at the disposal of the House and the finding of the judges also. Now, how much better off would we be if we had at the present time, another inquiry held before the Committee on Privileges and Elections ? What would be the use of it ? Of what avail would it be ? It would be of no use, it would be a sheer Mr. FITZPATRICK.
waste of time on the part of the committee and on the part of the House. We have all the facts before us, and therefore, being in possession of these facts, I cannot see what is the use of having this reference to the Committee on Privileges and Elections. Now, my learned friend said that the question of the validity of the writ issued on the 10th November was not before the courts. It was before the courts, but it was not decided. I have the report of the proceedings here, and I will ask my hon. friend to listen to me while I read from page 163 of the official record. The question is whether the validity of the writ of the 10th of November was before the court. Here is what the Chancellor says, addressing Mr. Macpherson who appeared for the petitioner :
As to your statement as to the power of the Crown to withdraw its writ and issue another, the legal position, assuming your petition to be provgd as to the legal effect resulting from it by way of demurrer from the petition, &c.

He asks for argument on that very point. It is true that he does not find on the point, but the question was argued before him. Dealing with that question, the writs for the general election were issued on the 9th October. I have forgotten the return dky, but it was after the 7th November at all events. Nomination day was fixed for the 31st October, and the 7th November was the day fixed for voting. By the act of the returning officer, with which act I shall take occasion to deal later on, that writ was null and of no effect. That is to say, rightly or wrongly, by his act, no election was held on the 7th November, and no nomination was held on the 31st October, although, by the writ, he was empowered to hold an election on the 7th November. What was the result ? If you adopt the argument of the hon. gentleman the result would be that the constituency would be disqualified. The result is that the constituency will be unrepresented. My hon. friend has dealt with the case of' a byelection. My hon. friend, in all the cases he referred to, dealt with the cases of by-electious, where a writ was issued by the Speaker of the House pending a parliament, but you must remember that there is no parliament, that this is at a time when parliament is dissolved. You had no House, you had no Speaker. The conditions were at a time when there was no authority to whom you could appeal for the purpose of issuing the writ. Now, I admit that there is no case in point; at least. I have not been able to find a case in point. Perhaps my hon. friend, who has certainly given this matter a great deal of care and study, has found a case, but, as far as I am concerned, there is no case in point. Then, let us reason by analogy. In the Election Act it is provided that the Governor General issues the writ. Section 11 says :

This person to whom a writ is addressed, as hereinbefore provided, shall be the returning officer at the election to which such writ relates: Provided always, that if the person to whom the writ has been addressed refuses, or is disqualified or unable to act, the Governor General may appoint another person to be such returning officer.
That is to say, that if the returning officer to whom the writ is addressed, refuses to act, it is optional with the Governor General to appoint another returning officer. Now, here, the returning officer refuses to act at the eleventh hour and returns his writ when it is impossible to appoint another returning officer for the purpose of carrying on the election, and if, at the last moment, immediately previous to nomination, the returning officer, by his act, makes it impossible to carry on the election, is it conceivable that this constituency is to be disfranchised and that it is not in the power of the Governor General-because if it is not in his power there is no power in the land-to deal with it-but that the whole matter must remain open until parliament is convened for the purpose of dealing with it ? I submit that it is a very delicate and intricate legal question. It is a question which is not at all free from doubt, but, bringing to bear upon it. not only the legal acumen that some people are supposed to possess, but common sense, is it to be assumed that this constituency, by the tortuous act of the returning officer, is to remain disfranchised, and that there is no remedy ? The only remedy is the one that is adopted in this instance here. But, before I pass from that question, assuming that we did refer it to the Committee on Privileges and Elections, what information could we get that the House is not now in possession of at the present time ? What information could we get which will enable us to come to a conclusion more satisfactorily than we can come to with the information we have now got ? In so far as that question is concerned it is undoubted that the writ was issued on the 10th November, it is undoubted that the writ issued by the action of the Governor General, and it is undoubted that there is no provision in the statute which prevents the issue of the writ. These being the facts, what benefit could we get from a reference of this matter to the Committee on Privileges and Elections, and has the House at the present time not sufficient information to enable it to come to a conclusion?
I come now to the second question; that is the question in respect to the returning officer. What is the position in respect to that official ? The writ issued on the 9tli of October, under section 10 of the Election Act, the nomination was fixed by the election writ for the 31st October, and the voting day for the 7th November. On the lOtii October, the day after the writ issued, the returning officer issued his proclamation.
He immediately applied ior the lists under section 22 of the Act, and it should be borne in mind, when dealing with this returning officer, that Nipissing is geographically one of the largest constituencies in the province of Ontario. It is 250 miles from east to west, and 200 miles from north to south. The proclamation had to be posted in the whole of that area within eight days after the proclamation issued.
Not only have you this large territory to cover, but in addition to that there were within the limits of the district, sixty-one polling divisions; three in the county of Renfrew, twenty in the district of Algoma and thirty-eight in Nipissing proper. Of these sixty-one, twenty-eight polling divisions were within what we call the unorganized territory. Now, within the limit of this unorganized territory there are 2,206 voters, the total vote of the constituency being something under 9,000. Upon inquiry the returning officer found that there were no legal lists in force for the whole of the unorganized territory; that is to say, that if he had proceeded to hold an election on the 7th of November, as he was directed to do by the writ, 2,200 voters out of something under 9,000 would be disqualified, or practically one-fourth of the voters of the constituency would not have been able to exercise their franchise at all. The returning officer finding that to be the case, applied to the authorities at Ottawa for the purpose of endeavouring to have this difficulty removed. It appears that under the law as we have it in the province of Ontario, the lists in force in the unorganized territory were those which had been made in 1898 under the provincial law. A provision was made by 62 Vic., that the lists in that territory so made in 1898 would be available for all purposes until such time as the Lieutenant Governor in Council would determine to make new lists. When this election writ was issued, the lists then in force were those made in 1898. They were, therefore, lists that were more than a year old, and being lists more than a year old, under section 9 of our Franchise Act, they were not available for the election then pending. At the same time the lists for that territory were being prepared and at a subsequent date would be available. Now, previous to the Election Act of 1900, if this writ had been issued to the returning officer it would have been in his power to fix the nomination and the voting day; he might of his own motion have postponed the nomination and voting day to meet the difficulty that occurred. As a result of the Election Act of 1900, with respect to the district of Nipissing this power was taken from him. Further than that, if there had been any unforeseen accident or delay, or any other cause why the proclamation had not been posted within the delay required or in the case of the death of a candidate, it would be within the power of the returning

officer under section 30 to postpone the elec-1 tion. The returning officer having this power to postpone under the conditions that I pointed out, finding that this large pro-porton of the electorate would be disqualified took upon himself to determine that the writ would not follow its due course or have its effect, and he returned the writ to Ottawa making thereupon a special return. I am not here to say that the returning officer had a right to do that I am not here to say that he was legally technically right. On the contrary, I admit that the returning officer had not power to suspend the operation of this writ, that he had not pow-er to suspend this election. I admit all that. But under the circumstances, lie having acted in perfect faith, he having done what under those circumstances would apparently be perfectly justifiable; what are we going to do about it. Are we going to condemn him now ? He having-acted under the conditions I pointed out, are we going to proceed to condemn the returning officer because under the circumstances, in the exercise of the discretionaiy power which he thought he was vested with, postponed the election, are we going to determine that he was guilty of a wrong and punish him. Why, if the returning officer was guilty of wrong-doing, if any offence can be traced to him we have provided machinery which enables hon. gentlemen to punish him. That machinery is provided under sections 19 and 20 of the Act, by which he can be made liable to a penalty of $500 in addition to all damages if he committed any wrong whatever in respect to the return of the writ.
As I have said, the election was postponed and my hon. friend (Mr. Northrup) says that the conduct of the returning officer on the day of the nomination was such as to merit condemnation. Well, if a man is to be condemned for being a man of peace, then I admit the returning officer ought to be condemned. On the nomination day the returning officer, knowing how people were excited about this election, decided he would conveniently keep at home and keep out of the way of the persons who had come for the nominations to North Bay. He kept out of the way. That is all that took place. He having decided to postpone the nomination, kept out of the way, because on that day not only Mr. Ivlock, but Mr. McCool were both in North Bay, both having their nomination papers and their deposits ready. They were both there for the purpose of proceeding with the election. Notice having been given to both of them that the nomination would not be proceeded with, the returning officer, knowing that he had no duty to perform, conveniently kept out of the way. It may be that the hon. gentleman (Mr. Northrup) and others would have acted differently, but after all, we are not here to determine the courage or valour of the returning officer; we ai*e here to de-Mr. FITZPATRICK
termine how far his conduct was proper or improper in connection with the election. My hon. friend (Mr. Northrup) said a great injustice had been done to the electors, I say respectfully that no injustice had been done at all. A great injustice would have been done them if the elections had taken place on the 7th of November, because then a large proportion of the electorate would have been disqualified, and as they became qualified at the time the election took place no injustice was done anybody. On the contrary, even-handed justice was meted out to all.


Mr. MONK.: I would like to call the attention of the Solicitor General to the allegation in the motion; that the new list was not prepared, but that the election nevertheless was held upon the old lists.


The SOLICITOR. GENERAL.: That is the allegation in the motion. The answer to it is in-the certificate which I have got here, giving the date at which the voters' lists were made available for the election, and I find on reference to that certificate that they were all available before the nomination. The certificate gives the date at which the voters' lists for the different portions of the unorganized territories were available, and the statement is as follows :
Airey, Sabine and Lyell, November 26; Dryden, Neelon, McClelland and Carson, November 24 ; Chisholm and Boulter, October 30; township of Chisholm, October 30; MacLennan, Rathburn and Street. November 13 ; Murchison, Lyell and Preston, November 26;' township of Hugel, November 7; Casey, Harris, Hilliard, Brethour and Ingram, October 30; Blezzard and Halmr, November 24; Sabine and Lyell, November 7; Long Sault, October 30; Lauder and Wilks,	;
Montreal River and Temiscamingue, October 30; Field, Badgerow, Gibbons, Grant, Bastedo and Crerar, November 13; township of Buck, October 30 ; Peck, Hunter, Canisby and McLaughlin, November 26; Hagar, Loughrin, Aurey and Hawley, November 28; Casimer, Appleby and Jennings ; Kirkpatrick, Badgerow, Appleby and Casmier, November 26 ; Dymond, Harris, Harley, Hudson and Kearns, October 30.


Frederick Debartzch Monk: What is the hon. gentleman reading from ?


The SOLICITOR GENERAL.: A certificate I got from the Secretary of State. Now, it is to be noticed that after the writ had been returned to Ottawa, a new writ issued ; and if it had been the desire of Mr. Klock to offer himself as a candidate, it was open to him to do so. Why did he not avail himself of the opportunity offered to him, as the sitting member did ? Why did he not have his nomination paper prepared, so that he might offer himself as a candidate under the new writ ? He did not choose to do that. But, my hon. friend says it was not open to him to contest the election with Mr. McCool on the second writ. There I take issue with him. Under the new writ, it was open to Mr. Klock, as it was to any other elector of the electoral district, to contest the election with Mr. APEIL 24, 1901
McCool, because there had been an undue return. If there had been no writ, there had been no election, and the whole issue would have been tried out ; and I submit that, having contested the election, and not having raised any question at the time, Mr. Klock and his friends practically acquiesced in the election of Mr. McCool ; and the raising of this question of the validity of the second writ is a complete afterthought ; because if they had no confidence in it at the time, they would have submitted it to the courts for adjudication, as it was open to them to do.


Mr. BORDEN (Halifax).: I would like to ask the hon. gentleman what date he refers to in making the statement in this document ? It says the date of final certificate- what does that mean ?


The SOLICITOR GENERAL.: It means the final certificate of the legal custodian in possession of the lists-the certificate fixing the date when they came into force.


Robert Laird Borden: I do not know that my hon. friend quite meets the difficulty I have about this. Do these dates mean the dates on which -the lists were finally completed by the officer having charge of them ?


The SOLICITOR GENERAL.: Yes ; there was nothing more to be dealt with. Now, my hon. friends have not thought proper to test this question of the validity of the election in the courts, and now they seek to have it tested in this House of Commons. Substantially, the position I take is this.
I say that the reference to the Committee on Privileges and Elections, asked for by this motion, will be absolutely of no avail, because we are now in possession of all the facts that might be made available to us by the committee ; and being in possession of these facts, it is for this House to determine whether or not, in the first place, the writ of the 10th of November was a valid writ legally issued ; and, in the second place, whether, on the facts stated-and I think my hon. friend and myself have substantially stated in the same words the facts with reference to the returning officer-it would be justifiable for this House to take action with respect to him. After all, it must be borne in mind that the returning officer, if guilty of wrong-doing, is liable to be proceeded against under the Elections Act. and liable to be condemned in a very heavy penalty. Under these circumstances, I submit that there is nothing further to be inquired into, that there is no possible reference to the Committee on Privileges and Elections which can be of any avail, and that the House is now in possession of all the information it requires to enable it to come to a conclusion.


Mr. GEO. O. ALCORN (Prince Edward).: Mr. Speaker, I desire to offer a few observations on the motion made by the hon. member
for East Hastings (Mr. Northrup) with reference to the Nipissing election. The charge is, as I understand it, that the executive has no power by statute or prerogative to issue the second writ, which has been referred to by both the hon. gentlemen who have addressed the House. It appears to be admitted that they had no such power by statute ; and I submit, carrying the argument a little further than the hon. member for East Hastings has done, that considering the facts and circumstances which surrounded this case, even if the right to exercise the prerogative does exist, it was not proper for the government in this case to exercise it; because if we examine the antecedent facts and circumstances which preceded the issue of the second writ, it will be found, that it was the government themselves who created that condition of affairs, which they rely upon as creating the necessity for them to exercise the right of the prerogative in the issue of the second writ. In other words, I would put the case in this way-that it is not competent for the government to exercise that right, because the government would then be in a position of taking advantage of their own wrong ; and I think it is a sound principle of law that a man or a corporate body or a government cannot take advantage of their own wrong. If we examine the facts, we shall find that the report of council on which the order of the 26th of October was based, contains the foundation on which the government acted, apparently, in issuing the second writ. I am aw-are that it may be said that there is no necessary connection between the report of council on the order in council, and the issue of the second writ. But, I submit that that is not a fair view of the case. I think this House is justified in investigating, and the country will require that we should investigate, the entire facts and circumstances which preceded the issue of that writ, and on which the government must have relied for their legal excuse for issuing it. Either that order in council must have been and must now be relied upon as the foundation for exercising the prerogative right, or the government must take the other horn of the dilemma, that they were prepared to fix the date of the election, and in fact did fix the date of the election, at a time when they must have known that it was impossible for the lists in the unorganized territory in Ontario to be ready. So that, in either case, I submit, their action was unjustified. Looking at the first ground, I may premise that the office of a returning officer is a semi-judicial office. He is not in any sense the agent or servant of the administration which appoints him. He is largely in the position of a judge crying- a ease. His duties are minutely laid down in the various statutes, and he is bound to guide himself, in the exercise of his office, by the best construction which he or his counsel may be able to place upon those

statutes. X am aware, of my own knowledge, that the late Conservative administration absolutely refused to advise or direct returning officers, acting under writs issued, as to the course they should pursue when difficulties presented themselves. I know that applications for advice or direction were made and were met with point blank refusal, the Conservative government holding that a returning officer is a semi-judicial officer, and must be guided by the statute law and the precedents which have grown up from time to time. But the course pursued by this government was entirely the opposite. From the time of the first visit of the returning officer to Ottawa, to which the hon. member for Bast Hastings (Mr. Northrup) has referred, on the 15th November, from that time forward the course of dealings between this administration and the returning officer was that of an agent or servant and his master throughout the entire transaction.
On the 15th October the returning officer came to Ottawa and consulted the Secretary of State with regard to what lists he should use. But the statues are explicit on that point, and I submit that no advice or direction should have been given him by the Secretary of State. The Franchise Act, section 5, subsection (c), lays down what lists shall be used, and provides that they shall be the lists which were then in force or which were last in force iu the electoral district to which the writ applied. Clearly in the district of Nipissing, even in the unorganized territory, there was a last list in force, and that was the list of 1898. The answer given by the Secretary of State on the 15th October was that the list of 1898 should be used. The returning officer went home and apparently intended to proceed upon that advice. But it is clear, in the light of the subsequent facts, that this administration, becoming particularly seized of the situation in Nipissing, conceived the plan, whicli'they eventually carried out, of stealing a seat from the opposition. It was well known that Mr. Kloclc had held that seat by a very large majority in previous elections, and that, in the ordinary course of events, he would again succeed on the 7th November ; but by postponing the election and bringing it on as a byelection, the administration would then be enabled to put their whole force and power into that fight, and have a far better chance of gaining the seat. That was the plan which they made known to the returning officer on October 15, and which they applied themselves to carry out. As proof that the administration, throughout this transaction, dealt with the returning officer as their servant and agent by whom they hoped to manipulate this contest, let me point to a telegram of October 26 :
_ You have been authorized to use the voters' lists of 1900, already prepared or in course of preparation, in unorganized districts of Nipis-Mr. ALCORN.
sing. Official letter goes up to-night. Notify all parties interested. This will supersede lists of 1899, where more recent ones have been prepared.
(Sgd.) R. W. SCOTT. There we have the plainest possible evidence that the administration were dealing with this semi-judicial officer, who should have been guided entirely by the statute, as their servant for the accomplishment of the object they had in view. Then we find this returning officer again making a visit to Ottawa and having an interview with the Secretary of State, and on that occasion he was accompanied by the government candidate, as appears by the evidence in the trial of the election petition. Surely that was a most extraordinary proceeding. The officer of the law, who should have been guided by the statute alone, considers it consistent with propriety to not only seek the advice of the government- which he had no right to do-but to bring with him to an Interview with the Secretary of State, the candidate of the government. During the trial of that election petition, we had the admission of the solicitor for the returning officer, which admission was made in these words :
The solicitor for the returning officer admits that the returning officer made the special return to the first writ on order received from the Clerk of the Crown in Chancery, in which same communication was also contained a second writ of election.
That order was in the form of a telegram dated the 10th November, as follows :-
Return election writ, endorsing on it reasons for omission to hold election. New writ goes up to-day, dated 10th November. On this information you can proceed to post proclamation. Nothing could be more explicit as showing the relations between the government and this officer. I understood the hon. the Solicitor General (Mr. Fitzpatrick) to say that the necessity for the issue of the second writ arose through the act of the returning officer. I hold that this telegram and the admission of the solicitor are the very best possible evidence that the necessity for the issue of the second writ did not arise from any act of the returning officer, but from the act of the government themselves in sending this telegram, in accordance with which that return was made. I say that the plan formulated by the government, consequent upon the visit of the returning officer on October 15, is clearly proved and appears in the order In council to which reference has been made, an extract from which I would like to read :
On a report dated 25t,h October, 1900, from the Secretary of State,, stating that the Ontario Act 62 Vic. (2), chap. 4, Intituled ' An Act respecting Voters' Lists in Unorganized Territories,' provides (1) that Part III. of the Ontario Voters' List Act is suspended for two years from the passing of the Act unless when otherwise ordered by the Lieutenant-Governor in Council, and (2) that until a new voters' list has been pre-

pared for unorganized territories under the said Part III. or under any other enactment of the legislature of the province, the voters' lists prepared and certified under the said Part III. in the year 1898, shall in any election to the legislative assembly be the lawful voters' lists for the polling subdivision for which such lists are applicable.
Now, the argumentative part of the report proceeds :


Part III.: of the Ontario Voters' Lists Act, here referred to, is that part of the Act which provides for the preparation annually of voters' lists for the unorganized territories where there are no assessment rolls, and under it the voters' lists would normally be prepared at regular intervals within the meaning of section 9 of the Franchise Act, 1898. During the two years suspension of Part III., the law of the province does not make provision for the preparation of these lists at regular intervals, but (in the words of section 9 of the Franchise Act), only ' at such times as are fixed by the Lieutenant Governor in Council,' and as the lists prepared and certified in 1898 are more than a year old, it becomes necessary for Your Excellency in Council to take the action prescribed by section 9 aforesaid for the preparation of new lists for the territory for which Part III. applies, for the purposes of a general election about to be held.
Now, the Act referred to in that order in council is there properly epitomized. It is chapter 4 of the Ontario Act of 1898, and it simply suspends the operation of Part 3 of the Ontario Voters' List Act, which is that part dealing with the making of lists in unorganized territory, and providing, by the second section, that until new lists for such territories are made the lists for 1898 shall he the lists for electoral purposes. Now, by the Dominion Franchise Act of 1898, as hon. members are aware, it is provided that the Dominion adoptts the provincial franchise for all purposes. Therefore, as to the unorganized territories, the provincial franchise is adopted, and the Act 62 Victoria would apply, and, until new lits are made, the lists of 1898 would be the proper lists. Then, having reference to section 9 of the Franchise Act, I would like to call the attention of the House to its provisions :
Where under the laws of a province the voters' lists for any provincial electoral district or division or any of them are prepared not at regular intervals, but at such times as are fixed by the Lieutenant Governor in Council or some other provincial or local authority, or only from time to time for the purpose of a general or other election in immediate contemplation, the last preceding voters' lists, so prepared shall be used for the purpose of any Dominion election in the territory comprised in such provincial electoral district or division or the parts thereof for use in which they were prepared, if such lists have been prepared not more than one year before the date of the writ for such Dominion election.
Now, it is perfectly evident that the argument made in the report upon which the order in council of October 26 is based, is that section 9 of the Franchise Act applies to the making of the lists in unorganized territory in Ontario. But
I submit, Sir, that whatever may have been the intention in framing that section, its terms do not effect that object ; and I think section 9 applies only to the making of the manhood franchise voters' lists, which, under a recent enactment in Ontario, are made in the cities and county towns of that province. If I am correct in that view, section 9 has only the meaning and application I submit it has, and if it does not apply to the making of the lists in unorganized districts, I submit that the entire fabric built up by the government with regard to this election, falls to the ground, and with it the return of the gentleman who now holds the seat for the district of Nipissing. There are a number of reasons which suggest themselves in support of the proposition which I have made. Referring to the order in council itself, it speaks of the lists to be made ' at such times as are to be fixed by the Lieutenant Governor in council,' and says that the Governor General has a right to go on and prepare lists in cases in which the Lieutenant Governor of Ontario is called upon by the law there, to fix a time for making the lists. Thus, it must he inferred that the Lieutenant Governor in council is the officer who would call the lists in unorganized districts in Ontario into existence, and therefore we must assume that we would find, when we refer to Part 3 of the Voters' List Act, that it contains such a provision. But if hon. gentlemen will refer to that portion of the statute, they will find that such is not the case-that the Lieutenant Governor in Ontario is not concerned with the making of the lists in unorganized territories, which are made annually in the month of June by the sheriff or police magistrate of the county in which they lie. Therefore, one of the grounds laid by the order in council- that section 9 of the Dominion Franchise Act refers to cases in which the Lieutenant Governor in council in Ontario fixes the time for making the lists-fails. And that fact I cite as corroborative of and leading up to the conclusion that I ask this House to draw-that section 9 of the Dominion Franchise Act does not deal with the making of the lists in unorganized territories, but only with the manhood franchise lists. Then, it is apparent, from several portions of the [DOT] order in council in question, that the government did not expect as a matter of fact, that the new lists would be complete in the unorganized districts even for use at the time fixed by the second writ for holding the election in the riding. They were prepared, as the report of council shows, to not only go on and hold the election in the absence, or probable absence, of the lists or portions of lists relative to that constituency, hut they were prepared to override the provisions of the electoral laws of Ontario as to the preparation of those lists by way of shortening the time and otherwise. And, therefore, we find that the tele-

gram to which I have referred, the telegram of the 20th of October, referring to the sending of the second writ, concludes with this sentence : ' This will supersede lists for 1899, where more recent ones have been prepared '-the inference being that where more recent lists have not been prepared, you may use the lists which are in existence, independent of the lists which will come into existence in 1900. Then, referring to the order in council, we find this expression used :
In consequence, however, of the limited time available for the work

That is for making new lists for 1900 in the unorganized territory.
-it is not possible that the delays provided for by Part III.

That is the Ontario Franchise Act.
-should be observed in connection with the preparation and revision of the new lists.
As I have said, the government were not only prepared to go on without the preparation of new lists, but they were prepared to go on contrary to the provision of the Ontario statutes with regard to the preparation of these lists. The report concludes :
The minister is of opinion that the work so far done under provincial direction may properly be adopted for the purpose of the coming election, and he so recommends that Your Excellency should intimate to all concerned that, under the circumstances, only ten more days' notice for the hearing of such appeals is to be required.
That is in line with the observation that I have just now made, that the government were careless whether the election law was observed or not so long as they secured the postponement of the election to a subsequent date. Then I submit, when we come to examine the phraseology of section 9 of the Franchise Act, it contains in itself evidence of the truth of the contention which I raise, namely, that it points to the franchise lists solely, and not to the lists in the unorganized territories. The lists in the unorganized territories are made, as 1 stated, at regular intervals, therefore they do not fall under the classification first adverted to in section 9, of cases in which the lists, or any of them, are prepared, not at regular intervals, but at such times as may be fixed by the Lieutenant Governor in Council. I have already pointed out that the Lieutenant Governor in Council is not concerned in the preparation of the lists in unorganized territories, nor do the lists in unorganized territoires fall under the second class,-the only remaining class,-of cases referred to in section 9, namely, ' lists which are prepared only from time to time for the purpose of a general or other election.' These words eminently and aptly do apply to the case of the perpetration of the manhood franchise lists, because they are ' prepared from time to time in immediate contemplation of an election about to be held,' but they Mr. ALCORN.
do not refer to the preparation of an annual list in the unorganized districts. Therefore, Mr. Speaker, I submit that the argument that 1 have laid down is well founded upon the language of section 9 itself,-that these descriptive terms are entirely inapplicable,- the preparation of lists in the unorganized districts, and they are directly applicable to the making of the manhood franchise lists. Then, Sir, we find that the Dominion Franchise Act containing this section 9 was assented to on the 13th of June, 1898, while the Act 02 Vic., which the order in council relies upon as doing away with the existence of lists in the unorganized territory, and therefore authorizing the Governor in Council to make new lists in those territories and so leading up to the necessity of issuing a new writ and holding by-elections -that Act was not assented to until the 1st of April, 1899. Therefore, it follows that the exceptional case arising under the latter statute could not have been in contemplation when the former Act was passed.
But, Sir, if it be necessary to establish by the most direct testimony the correctness of this contention, I would refer the House to the words of the right hon. the premier, as reported in the ' Hansard ' of 1898, volume 2, page 5702. On that occasion section 9 of the Franchise Act was under discussion in Committee of the Whole; and I may state that the particular matter under consideration was a motion proposed by the hon. member for West Toronto (Mr. Clarke) asking that the period of one year as to the ave of the lists should be reduced to six months. Speaking to that motion, the right hon. gentleman said :
This amendment to section 0 is intended to apply to these constituencies in Ontario in which there is registration, and when there is registration this Bill provides that if the registration has taken place more than twelve months before the time for a Dominion election, then new lists will be prepared; if it be less than twelve months, then the old list will serve. That is the Bill such as it is framed now. I understood my hon. friend from West Toronto (Mr. Clarke) to ask that six months should be substituted for twelve months, and I was agreeable to that on the advice of my hon. friend the Solicitor General.
These two lion, gentlemen taking part in that discussion should be aware wbat was in their minds, and in the minds of the committee at that time, and whether I am correct in the contention which I have made that this section 9 lias the application which 1 submit it lias. But at all events, there is the express declaration of the right bon. Prime Minister upon which I submit we have a right to rely. It appears to me. Mr. Speaker, that the hon. the Secretary of State, upon my construction of the statute, was correct in the advice which he first tendered, though improperly, to the returning officer to use the lists of 1S98, and that he was incorrect in the statement of law which is spread out upon the face of the

report of council of the 25th of October,
With certain exceptions, of which Nipissing
and which it is plain was Drought into existence for the purpose of effecting the object to which I have referred. But there is another view of the ease which supports the contention that 1 have submitted, and it is that the executive themselves had power to fix the date of the election. They fixed the date when the nomination and election should take place, and it was a dereliction of duty on their part, and an evidence of gross carelessness-because they are charged with official knowledge of the Act 02 Vie., and of the results and effects of that Act taken in connection with their own Franchise Act-I say it is an instance of gross carelessness on their part to have made the writ returnable and to have fixed the day of nomination upon a date when, having regard to the Ontario Act, they [DOT]must have been well aware that the lists in the unorganized territory could not have been in existence and therefore could not have been used. I say also with regard to that, that the government are estopped by their own wrong in that respect from taking refuge in the exercise of the prerogative right to issue the second writ. I think this assertion is founded upon the well known principle of law, that no man can take advantage of his own wrong. If that is the case, then even though the prerogative right may exist, yet, as I have had the honour of pointing out, under the circumstances of this case and by virtue of the two contentions I have raised, the government had no right to protect themselves by that exercise of assumed prerogative right in this particular case.
I assume. Mr. Speaker, that it will not be contended that the government have any statutory power to postpone this election ; I assume also. Sir, notwithstanding the remarks of the lion. Solicitor General, that it will hardly be contended that the returning officer had any statutory, or any other, power to postpone this election. He could have had none but statutory power, and he had no statutory power to postpone it. The only two cases in which he could have the power to jiostpone are those laid down in the two sections adverted to by the bon. Solicitor General. I do not desire to detain the House with any lengthy references to the sections of the Act appertaining to that power, or to other matters in this election, but I would like to say that these powers governing the general conduct of the election, so far as the returning officer is concerned, are contained in sections 27 to 30, both inclusive, of the Election Act, in section 39 and in section 50. Let me state shortly the effect of these sections. By section 27 the Governor General, by his writ- it is personal in himself-fixes the day of nomination :
At every general election he shall fix one and the same day tor the nomination of candidates in all the electoral districtis not one.
The day so fixed by the Governor General shall be named in the writs of election.
By section 29, the returning officer, in certain constituencies, of which Nipissing is not one, fixes the day of nomination. Then, we have section 30, which allows the returning officer, under certain circumstances, therein detailed, and which do not affect the present case, to postpone the day of nomination. That section cannot be cited as any authority for the action of the returning officer in this' case. Then, the other case adverted to by the hon. Solicitor General is section 39, if the candidate dies, which, of course, is not applicable here. Then, we have section 50, to which I may call attention :
Except as hereinbefore provided, the day for holding the poll shall be the 7th day next after the expiration of the day fixed for the nomination of candidates

The exception being in the four constituencies in which the nomination is to be fixed by the returning officer.
These, then, are the statutory provisions and it cannot be*fcontended, nor, I think, will it be contended, that either the returning officer or the executive can derive from these sections of the statute, or from any other statutory source, any power to take the action which was taken here, of postponing the election and holding a by-election under the writ of the 10th of November.
Then, Sir, upon the other portion of the motion, I would like to call attention to the strongly partisan action of the returning officer in regard to this case. I have adverted to the circumstance, that he brought with him the government candidate to Ottawa on the occasion of his visit on the 15tii of October, shortly preceding the time of nomination. We find by the evidence at the trial which I have referred to, that on the 27th, the returning officer wrote to the government candidate advising him that he was authorized by the government to use the lists of 1900. Now, there could be only one conclusion drawn by the government candidate from the communication of such a fact, and that was that it was the intention of the government to postpone the election, because, otherwise, it would be perfectly evident that the lists of 1900 could not possibly be used. I submit that this was a most improper action. Then, we have the fact also appearing from the evidence, that Mr. Klock, and his financial agent, Mr. McNamara, made repeated applications to this officer to be shown a copy of the order in council which he asserted he had in his possession. As often they were refused. All the information which the returning officer vouchsafed to Mr. Klock, or to Mr. McNamara. was the exhibition of a copy of an alleged letter which that officer said he had written to the Secretary of State, asking .which lists he was to-use. Manifestly that

[DOT]conveyed no information, because tbe letter might not have been answered, and that officer should have done, in regard to Mr. Klock and Mr. McNamara, what he has been shown to have been done in the case of the government candidate, namely, be should have shown him the order in council, and the other communications which he had from the government. There is the further fact that no notification of the intended postponement of the nomination on the 31st of October was made until the day preceding that postponement. Surely, in a matter of such importance, in a matter involving the interests which were involved in that nomination, as soon as the government came to the conclusion to advise their officer, because they treated him as an officer, of the intended postponement, an official announcement of that decision should have been made. But, we find again from the evidence, that the only notice given was on the day preceding the nomination, and that consisted merely of a written notice posted up in the office of the sheriff of the district. Then, as lias been referred to, both the returning officer and his clerk-and the evidence shows that the alerk acted under the order of the returning officer-were hidden during the entire day fixed for the nomination and the succeeding night, so as to make it an absolute impossibility that a legal nomination of candidates could be held upon that day. The evidence furthef shows that Mr. Klock was in attendance with his financial agent at the proper time and place, pursuant to the notice contained in the proclamation, that he then and there deposited his nomination paper and the proper sum of money. It further appears that the returning officer, although hidden in his residence, as he admits, together with his election clerk, was informed by the deputy sheriff that the nomination paper and deposit had been produced by Mr. McNamara, and left in his office. He says that being so informed, he after dark visited his office and nailed up the windows, thereby evincing the fact that be had qualms of conscience consequent upon being officially entrusted with the nomination paper and money. Although he states that he would refrain from touching the money or the paper, he evidently considered himself responsible for their safe-keeping, and took the step which 1 have pointed out. The returning officer purposely refrained from communicating to Mr. Klock the fact that a postponement of the nomination was intended. That fact, it appears, was well knowm amongst other gentlemen resident in North Bay connected with the returning officer, because we have the evidence of a witness named Robinson, who, upon the trial of this election petition, swore that Mr. Peter Proulx. the deputy to the sheriff, who was also the returning officer, told him on the 27th. in North Bay, of this plan to be carried into effect, that the nomi-Mr.- ALCORN. *
* nation was to be postponed, that there would be a by-election, and that the Liberal can. didate would, in consequence, win. Mr. i Peter Proulx was in court, and was within ? hearing of the giving of that evidence, and 1 he was not called to contradict it. Then,
I Sir, as a most significant circumstance, we have the fact that this returning [DOT] officer, having been advised that it would be proper for him to obtain some apparently independent legal advice upon the question, applied to a legal gentleman in North Bay for such an opinion. Who was that gentleman ? He was a local officer of the Ontario government. He was the clerk of the peace and County Crown Attorney for that district, a gentleman who held his office by virtue of his ardour in supporting the Liberal cause. That gentleman strangely enough, by a letter dated the 27th of October, advised the returning officer that he could legally postpone the election; the letter was put on file at the trial of the petition. I would call the attention of the House to the fact that on the date of this letter, the 27tli of October, it is perfectly evident that the returning officer was on the train coming to Ottawa, because he admits that he arrived here on the morning of Sunday the 28th, and in that case the letter could not have been communicated to him until the 30th October, the very day before the nomination should have taken place. Before that date, it is perfectly apparent (from the fact that the order in council of the 25th of October had been communicated to the returning officer), that he was well aware of the intention of the government to postpone the election. I therefore submit that upon these two grounds, I am justified in saying that even though the government had the right to exercise in general this power of prerogative, yet under the particular circumstances of this case, it was illegal and improper and incompetent for this government to avail Itself of that power, if that power exists, which I do not admit. I may say, Mr. Speaker, that the facts disclosed in this case give another instance of the apparent practice under Liberal rule in this country to attempt to govern Canada by orders in council. The order in council of the 25th of October is the foundation upon which the issue of the second writ was based by the government. We have recent cases similar to this. In the face of the existence of a standing order in council that no minister shall expend more than $5,000 of the public money without the sanction of parliament, we have had brought down to this House as completed transactions, the Yukon deal, the Drummond County deal, and only yesterday the Clergue transaction, all of which involved the expenditure of enormous sums of the public money, and all of which were based on orders in council. In this very transaction before tbe House, we have the

government even going further than that, because by this order in council they have created lists of voters for use in this election contrary to the machinery provided by their own Franchise Act. They seem to have been quite indifferent as to whether their own Franchise Act was really observed or not. We have had a most striking instance of this kind of Liberal rule recently oh the part of the Ontario government. The right lion, the Prime Minister has referred to the government of Ontario as his strong right arm, and that strong right arm at a recent session of the legislature assumed to pass a law unheard of before, by which they sought to set aside the sacred constitution of this country, so as to prolong the life of the legislature and incidentally the life of the government. Such practices as we are now discussing, and which are entirely contrary to our constitution, merit the condemnation of this House. The passage of this order in council in the Nippising case was an attempt to lay out a plan by which the majority of the government in this House would be increased, and such being the case, it should not be approved of. I submit, Sir, that for the sake of preserving inviolate the laws of this 'country and the free exercise of the franchise by our people, the motion of the hon. gentleman (Mr. Northrup) should be adopted by this House.


Mr. OHAS. MARCIL (Bonaventure).: I have not the necessary qualification to discuss this question from a legal point of view, but I shall call the attention of the House to a precedent which occurred in the county of Huntingdon under the good old Conservative regime of ten years ago. The general elections occurred on the 5th of March, 1891, and the good people of Huntingdon who had stood by Mr. Scriver, who represented that county for thirty years in this House, awoke one fine morning to learn that the election would not take place in that county on the same day as in all the other counties of the Dominion. We never knew exactly the reason why that election was delayed. We were told that it was on account of the illness of the returning officer who refused to act, but for one reason or other the election in Huntingdon was postponed for a fortnight, and a very strong suspicion existed that the postponement was an attempt to defeat Mr. Scriver by hook or crook, as they knew they could not defeat him in a general election. However, Mr. Scriver did not do as Mr. Klock did in Nipissing, but fifteen days after the Conservatives had been sustained in power he went to the polls like a man, and in spite of the united efforts of the Conservative party, led by the late Mr. Chaoleau and by Sir Charles Hibbert Tupper. Mr. Scriver was elected for Huntingdon by over 300 majority. In the Huntingdon case a second returning officer had been appointed. The Huntingdon case, I believe, has a bearing
on the present case, and it shows at all events that there are precedents for delaying an election. I remember very well that election in Huntingdon, and I would remind my hon. friend from East Simcoe (Mr. Bennett) that I, with other Liberals, had the pleasure on nomination day to speak for one of the noble thirteen who was elected by a great majority on that occasion.


Frederick Debartzch Monk: This question has been very fully dealt with, and I do not feel disposed to take up unnecessarily the time of the House. Nevertheless, I believe it to be my duty to state the principle ground on which I support the present motion. Let me say at once that the hon. member for Bonaventure (Mr. Marcil) has not touched upon what I consider to be a very important point in this question. 1'he Huntingdon case does not stand on all fours with the present one. In the Huntingdon case, the hon. gentleman will not contend that the Crown exercised the prerogative of recalling the writ for the election, and issuing a new one. It was the returning officer, who, under a different law from that in force at present, took upon himself to postpone the election. That makes a very essential difference between that case and the present one. Those who listened to this discussion will bear me out when I say that they with me must have reflected that at the beginning of this century we have indeed immense guarantees of liberty, when, with a question of such vast importance as this brought before the House, there are so few members- at any rate on the other side-who pay any attention to it whatever.


Mr. FRASER.: Look behind you.


Frederick Debartzch Monk: To my mind it applies to any one who was not prepared to listen to an argumeut which, I agree with the Solicitor General, was most interesting. For my own part, I rest my reason for voting for this motion on the ground that the precedent set by the government in this case is clearly an invasion of the privileges of this House. By recalling the first writ and issuing the second one, the government have made a step backward, and have invaded the privileges of this House which it took so many years in England to obtain and consecrate. The hon. member for East Hastings, and the hon. gentleman who spoke last, alluded to the prerogative of the Crown. Those who have studied constitutional history know that for centuries in England the Crown retained, in addition! to the prerogative of calling parliament, proroguing parliament, and dissolving parliament, very often at its own caprice, the prerogative of withholding writs, recalling writs, changing writs, and creating new constituencies. That is no news to hon. members who have studied constitutional history. I regret to say that I have not had time to give this matter sufficient attention in that connec-

tion ; but anybody who takes the trouble to look into Stubbs' Constitutional History of England, will find numberless instances of these things, and the efforts made during more than three centuries by the Commons of England to obtain absolute control of the time and manner in which elections to parliament should be held. Any one who looks into the work of Count Franque-ville, who went to England and spent considerable time there, and wrote three admirable volumes on the British constitution, will find in the second volume, I think, whole sets of the instances in which the Commons of England have vindicated the very right which to my mind has been invaded in this case. If lion, members will turn to the law on this point-I do not wish to read the sections, because that has been done already-and examine the sections relating to the issue of the writ, sections 27, 28, 29 and 30, they will find In the very wording of those sections, that the intention of the Commons is clearly to withhold from the Crown the right to issue the writ on which an election is held except in a clearly specified case. The reason is that that very right, which the government has arrogated to itself in this case, has been so often abused in the past. Let the House consider how far we shall be taken if we admit this right in this instance, and the extent to which it might operate in some other case, even against lion, gentlemen opposite. Is it not easy to suppose a number of circumstances in which the Crown might avail itself of the right to recall a writ and issue a new one ? Suppose the case of the total destruction of the lists and no list being available, and the Crown having the right to recall the writ, and that right being consecrated by this House, how long could the Crown withhold the issue of the second writ ? Suppose the returning officer had left the country, or bad died- these cases are not provided for by the statute-would the Crown have the right to recall the writ, and how long would it have the right to withhold it ? The principle is. to my mind, a most grave and serious one ; and the moment we allow the slightest latitude to the Crown outside ,of the strict words of the statute, we open the door to immense abuses-abuses which it has taken centuries to correct in England. That is the ground on which I for my part feel disposed to refer this case to the Committee on Privileges and Elections.
Now, there is more than that important principle, which we should be so jealous of, that, even if the facts were not as strong as they are in this case, the moment a member alleges facts which would lead us to suppose that any of our privileges had been Invaded, we should be ready to refer the matter to a committee, which in this ease is not hostile to the present government. There is more than that : there is the conduct of the returning officer. The return-


Frederick Debartzch Monk: ing officer not only solicited the preparation of the new lists, but-and I join issue with what the Solicitor General said-I do not think we have satisfactory proof before us that the allegation contained in this motion, that the elections were really held on the old lists to which objection had been taken, is not well-founded. I find in the record of the evidence in the case referred to by the Solicitor General, that this question was put to the returning officer-Question 456 :
Q. So that you did not have any lists even at the time Mr. McCool was nominated, on the 28th of November?-A. No, I had not.
At the time of the nomination he had not those lists, and there might have been men there who were not in a position to place a candidate in nomination. There are other allegations in the motion which to my mind call for investigation by the committee. Now, I do not think the Solicitor General is right in saying that this question of vthe return of the writ and the issue of a new one lias been decided by the court. I think what the judges decided was that they could not go behind that writ-that it was a matter for investigation by the House of Commons.


The SOLICITOR GENERAL.: The judges did not decide that question at all. If I said that, I made a mistake. The question was put to the judges by counsel, and counsel was about to argue the question, but the judges said it was not a matter for them to decide.


Frederick Debartzch Monk: I think the Solicitor General is mistaken in saying that the object of referring this matter to the committee is merely to obtain evidence. Matters of this kind have been referred to the committee time and again, not only to obtain evidence and to lay the facts before the House, but on questions of law. I think there are precedents'for that. I do not think it is fair either to my learned friend to say that there is some question here of Mr. Ivlock. Mr. Klock, who is not a lawyer, and who seems to have been advised, considered his nomination was perfected by what he did at the time of the first nomination and that he was not called upon to take any steps on the second writ, and the position he took would be affirmed if this House were to find-as to my mind it should-that the second writ was illegally issued. I do not think that the hon. the Solicitor General is well advised in saying the position this House would take, if this motion were affirmed, would be a step towards disfranchising the electoral division in question. We have delegated our powers to the courts to decide upon certain questions in contested election cases, and delegated them with great caution. I think it is admitted that this certainly is not one of the questions which could be entertained by the courts upon a contestation of election. But there remains the jurisdiction which always continues in this House. We

are still seized of the question, and, supposing, after having referred this to the Committee on Privileges and Elections and having ascertained the facts to be as stated in this motion and having precedents in law laid before parliament, the House came to the conclusion that that election was improperly held and that the second issuing of the election writ constituted a violation of the privileges of this House, surely the Solicitor General will not deny that it would be in the power of the House to declare the seat vacant and order a new- election.
There are noi authorities absolutely bearing on this point, but I wish to call attention to a passage in Hearn's Government of England on the Independence of the House of Commons. On page 518, I find a passage which bears on this case :
Lord Coke observes that the substance of writs of summons ' ought to continue in their original essence without any alteration or addition unless it be by Act of parliament, for if original writs at the common law can receive no alteration or addition but by Act of parliament, a multo fortiori, the writs for the summons of the highest courts of parliament can receive no alteration or addition by act of parliament.' This principle seems to date from the latter part of the reign of Edward III., the period at which the development of the House of Commons becomes distinct.
For my own part, outside of any other considerations whatever, I would urge that this matter be referred to the Committee on Privileges and Elections, because I consider that if we allow these proceedings to pass without investigation, the ultimate result will be to lay the foundation for serious invasions of rights which have been acquired to us by the people of England after struggles, the ,importance of which I am afraid we do not fully realize.


Leighton Goldie McCarthy: In dealing more particularly, Mr. Speaker, with what my hon. friend has said in concluding his remarks, >it appears to me that the question which touches the very heart of the subject under discussion is this. Ho we or do we not recognize the responsibility which we, as a House of; Commons, have in connection with the elections of members to this House ? In 1873 the House of Commons saw fit to divest itself of all authority in respect' of certain matters. And in doing so, it delegated to the courts certain jurisdiction in connection with controverted elections. What powers did we exactly delegate ? They are contained in section 5, chapter 9 of the Revised Statutes of Canada, which reads as follows :
Petitions complaining of the undue return or undue election of a member, or of no return, or of a double return, or of any unlawful act by any candidate not returned by which he is alleged to have become disqualified to sit in the House of Commons at any election, may be presented to the courts by any one or more of the following persons:

That created the jurisdiction which our courts possess. Are the words of the statute sufficiently comprehensive to enable the courts to dispose of the question we are now discussing ? To decide this question, we must put aside controverted facts, and analyse this resolution so as to determine what are the questions which come before us to be disposed of. It seems to me that there are but two questions. One is : Was the writ issued on the 10th November a valid one or was it not ? If the writ was a valid one, there is no doubt that the gentleman who occupies a seat in this House as representing Nipissing was properly returned.
The other question is : if the writ was not valid, where is the relief to he obtained ? Where should we place the right to obtain that relief ? I submit that under section 5 of the statute I have quoted, the courts are vested, beyond the shadow of a doubt, with jurisdiction in the matter and are competent to give relief. If there was not a valid writ issued, then there was an undue return and the election of Air. McCool could he attacked in the courts under the section I have quoted in the Controverted Elections Act. His election was not attacked, and his election by acclamation went pro confesso, so far as the Ontario courts are concerned. Under these circumstances, are we going to adopt the principle that every election in which any question with regard to the return of a member of this House comes up, is to be investigated by the Committee on Privileges and Elections ? If we are, then any hon. friend from Hastings is right, but if we are not, then we must support the position taken by the hon. the Solicitor General. If we are to constitute ourselves an election committee or a forum for the investigation of election cases, although such cases come dearly within the jurisdiction given our courts by the Controverted Elections Act, then my hon. friend has made out a case. But if we should do this, we would be clearly acting contrary to our own legislation. We have given the courts jurisdiction in these matters. We did so advisedly, and in this we followed the policy adopted in England, which policy has worked satisfactorily in both countries. That being the case, and these hon. gentlemen not having brought the matter before the courts and there contested the return of Mr. McCool, they are debarred from asking this House to enter upon an investigation. If any dishonest irregularity appeared, committed by the returning officer, who is an officer of this House, that would he a question competent for ns to discuss, and with that I will deal later, hut we have here the statement of the court that it would not deal with the matter on a petition presented to it, because the question submitted was one within the proper competence of the House of Commons and not of the court. What then was the question before the



court on that occasion and with what did the court decline to deal ? It was a petition brought by Mr, Klock against the returning officer, Sheriff Varin. The judges pointed out that that petition asked that the seat be given to Mr. Klock and they said : ' But if we should do this, where is Mr. Klock going to sit ? Is he going to sit in the lap [DOT]of Mr. McCool ? Because until the seat of Mr. McCool is vacated, Mr. Klock cannot be seated.' That seems reasonable, and it was the pronouncement of the learned Chancellor of Ontario, and I give his dictum at all events as being worthy of the most serious consideration. It is a dicta from two judges who constituted that court, for what it is worth. The proper proceeding was to attack the [DOT]election of Mr. McCool on the ground that it was an undue return which gave him the seat he at present occupies. If that is so, the position of the hon. member for East Hastings (Mr. Northrup) is absolutely untenable. There cannot be, so far as that petition is concerned, any adjudication by that court as against the sitting member, because the sitting member was not a party to that petition ; he was not served, he was not named. Had he been named, and had the proper proceeding been taken by the gentleman, it is possible that Mr. McCool's seat might have been vacated ; or it might not, according to the decision of the judges. But, they have not seen fit to do that. They say : 'We will let that- go; we might have attacked the seat within forty days of Mr. McCool's return by acclamation, but we would rather proceed with what has since proved an abortive proceeding, because it was not instituted properly in the first place. They chose their remedy, they decided to proceed in this way in the hopes of doing what ? In the hopes of acquiring the seat for Mr. Klock by acclamation, and not to acquire it by a fair fight. There is no doubt, it cannot be disputed-in fact, my hon. friend from East Hastings, I believe, stated it in opening his case-that up to the 31st of October, when nominations would have been properly had under the first writ, Mr. McCool was in North Bay with his money and papers prepared to be nominated. Mr. Klock also was there with his money and his papers, prepared to be nominated. For some reason, namely, as alleged, that the returning officer was concealed in his house, the nomination could not be properly effected. The courts held that there was, in fact, no nomination, either of Mr. Klock or Mr. McCool on that day. Now, we look to the next step. We find that the returning officer makes a return of that writ. We find that a new writ was issued. The proclamations are posted and a nomination is had. Mr. Klock would not have prejudiced his position if he had been nominated on the second writ to enter the field and fight it out with Mr. McCool, as Mr. Scrlver did in Mr. McCarthy.
the election in Huntingdon, which has been referred to.- But, he preferred to go on with what has turned out to be an abortive proceeding. But if it had not so turned out, it is possible he (Mr. Klock) would have been returned by acclamation. The court has held that they cannot seat Mr. Klock until the seat of my hon. friend (Mr. McCool) is vacated. Now, what is sought here? It can be but one thing in the first instance, viz., to have it declared by this House that the second writ was invalid, and that the seat now held by Mr. McCool is, therefore, vacated. Does any hon. gentleman in this House mean to allege that section 5 of chap. 0 of the Revised Statutes of Canada does not give jurisdiction to the courts to settle that question ? And, if it does give that jurisdiction, are we not now being asked to do something which we should not be asked to do, viz., to investigate something the power to investigate which we have delegated to the courts and so divested ourselves of ? When I say that we have divested ourselves of that power, I do not wish to be taken by any hon. gentleman as saying that the House has not jurisdiction, for I hold that we have jurisdiction-we are all powerful in such matters. But if, after a general election, this House should undertake to refer to the Elections and Privileges Committee every election concerning which any hon. gentleman chose to move a motion, we should do nothing but try election petitions. No deposit is required to go to that committee ; none of the machinery is provided that is necessary under the Controverted Elections Act in the trial of petitions. You go there without expense. It has been thought, in the wisdom of this parliament, that a limit should be put to petitions against members who have been elected. In their wisdom-whether rightly or wrongly, and if wrongly we should amend it-a deposit is required, and safeguards are thrown about the men who are elected, as against what might be termed persecution by persons who, for reasons of their own, might decide to persecute them in this House. The hon. gentleman says that you go to the Election and Privileges Committee to have a judicial investigation. I trust that if this case should reach the committee, there will be a judicial investigation. But, we have had investigations before committees of this House where we have been told that the rules of evidence did not apply ; we have been told that you may let in everything regardless of the rules of evidence adopted by the courts. If that rule were to be adopted in an investigation of this kind, is there any hon. member who would like to have his seat attacked in that way ? Would not any hon. gentleman whose seat is so attacked say : You had your remedy in the courts, you might have filed a petition within forty days and put up your deposit ; and. in that case, you would have been bound by the rules of evi-

deuce, and the way that witnesses are called wonld have been limited by the rules of the court ? That is the way we have limited the right to contest elections


Frederick Debartzch Monk: Is my hon. friend (Mr. McCarthy) of the opinion that the courts wonld have the right to investigate the right of the Crown to recall the writ ?


Leighton Goldie McCarthy: They have the right, under section 5 of chap. 9, Revised Statutes of Canada, to investigate whether the writ under which an election has been held was valid or invalid. If the writ is invalid the election is void or voidable, and can be voided by proceeding in the regular way. That being so, the courts certainly had jurisdiction, and I do not think we should interfere with their rights, or we shall open a door that will let in upon us some very dangerous practice. But, my hon. friend (Mr. Northrup) may say : We want you to investigate the action of the returning officer. The returning officer is a servant of this House-that has been put beyond any shadow of doubt by the courts in Ontario, in the cases referred to by my hon. friend : re Centre Wellington, reported, I think, in 44 U.C., Q.B., and McLeod vs. Noble later on, where it was held that the court had no jurisdiction to restrain the returning officer from returning ballots, &c., to the Clerk of the Crown in Chancery. But, what are we asked to do here ? We are asked to question, not a dishonest act of the returning officer, not to declare that he had made a false return or improperly counted ballots, or anything of that kind, his proceeding upon the writ is alleged to have been erroneous _ or wrong. It is entirely a legal proposition, one that requires no more evidence to dispose of. Either the writ was regular and right and he proceeded properly, or it was not. As a legal question, we have sufficient evidence adduced before the court and now before this House in the return of the evidence brought before the Hon. Chancellor Boyd and Mr. Justice McMahon, to dispose of that question. [DOT] Why should we be called upon to go a step further ? We have the remedy as against any returning officer who does not do his duty* or who exceeds his duty-or, to put it more distinctly and clearly, who works a wrong. Section 19 of the Dominion Elections Act. 03 and 04 Vic., chap. 12, gives you a remedy and a right in these words :
Every officer and clerk who is guilty of any wilful misfeasance or any wilful act or omission in violation of this Act, shall forfeit to any person aggrieved by such misfeasance, act or omission a sum not exceeding $500, in addition to the amount of all actual damages thereby occasioned to such persons.
Now, if any person, by reason of the conduct of the returning officer in this case, has suffered damage, he may appeal to the proper courts in Ontario and recover Hint damage, plus $500 penalty.
116* '
Mr. LaRIVIERE. The hon. gentleman speaks about privileges accorded to the province of Ontario. Are they confined exclusively to that province ?
Mr. MCCARTHY, i did not speak of any privileges accorded to the province of Ontario, I said that this parliament has provided that a penalty of $500 and all actual damages may be recovered, and as this alleged damage was suffered in the1 province of Ontario, your cause of action would have to be tried in that province. I thought the hon. gentleman would be astute enough to observe that as I passed.
Mr. LaRIVIERE. Thanks for the compliment.


Leighton Goldie McCarthy: Now, since any elector or any person injured has, under that section of the Act, a remedy and a right to recover any damage he may have suffered plus the $500, why should we investigate ? If it is for the purpose of ascertaining whether that writ was illegally issued, we require no investigation. The facts are before us, undisputed and admitted, that a writ was issued for an election to be held on the 7th of November, the returning officer did not carry that out, but made a special return to it, and subsequently another writ was issued, a proclamation was made, the nomination took place and an election was made by acclamation. In order to dispose of that legal proposition and to protect our rights, no investigation, it seems to me, is necessary. These being the only two points, I submit, that come before this House upon this resolution, I am forced to the conclusion that it is the duty of every hon. member to vote against the resolution. In coming to that conclusion I am largely impelled by the fact that if the hon. gentleman from that constituency (Mr. McCool) who occupies the seat in this House, does not represent the true sentiment of his constituency, why do not the aggrieved parties file a petition and contest his seat ? But no elector has come forward to do that. Therefore, the rights of the electors of that constituency have not been jeopardized, and that hon. gentleman, in my humble judgment, must be considered as representing the true sentiment of that constituency. And if he does improperly represent his constituency, the defeated candidate, the gentleman who filed the petition, the gentleman who spent money in contesting the seat, likewise under our Act had a right to contest that election, and he did not do it. Now, we are asked by this resolution to have an investigation under these circumstances in order to protect the rights of the House of Commons. It seems to me that we would be much more effectually protecting our rights, having delegated to the courts the right and duty of investigating just such cases as this, if we were to say to these gentlemen who say they have "a

grievance : We liave provided courts for the especial purpose of trying these cases, you must go to those courts for auy relief you may he entitled to, and which in my humble opinion, ought not to be obtained in any other way.
At six o'clock House took recess.
After Recess.
The House resumed at eight o'clock.



[Stage Direction]
House in committee on Bill (No. 26) respecting the Canadian Pacific Railway Company.-Mr. Fortin.
Mr. DAVIS.: Mr. Chairman, before the preamble is adopted, I want to say that some of the members of the House were not at the Railway Committee when this Bill was passed, because, I think there had been a change in the time when the committee was called. We were, therefore, not in a position to place our views before the committee when the Bill was up for consideration; otherwise we would not now depart from the -usual custom by bringing this question before the Committee of the Whole House. We have asked from time to time to have this Bill stand over for the purpose of moving an amendment. I understood that the parties who are promoting the Bill had agreed to the conditions that we had asked to have inserted in it, and before it goes any further I would like to ask the hon. gentleman (Mr. Fortin) who has the Bill in charge if he lias any knowledge of anything of the kind.


Mr. FORTIN.: I do not understand exactly to what the hon. gentleman (Mr. Davis) refers. If he refers to the amendment which was proposed in the Railway Committee and which was adopted at the suggestion and at the request of the hon. Minister of Public Works (Hon. Mr. Tarte), I may say that the amendment is embodied in the Bill as reported to the House. I would be glad if the hon. gentleman would explain if he wants anything further.


Thomas Osborne Davis: It was generally understood that we were to have an additional amendment to the Bill, and I will read the amendment which we propose to have added ;
And has also constructed and put in operation from its main line at or near Moosomin, or from the present western terminus of the Great North-west Central main line, sixty miles of railway towards Fort Qu'Appelie.
While this may appear to the committee to be a little foreign to the subject under discussion, I may say that the principle was adopted in the Railway Committee the other morning in connection with the Crow's Nest Pass Railway Bill of the, what I may term
Mr. McCarthy.
1 holding up ' process. This charter that was under discussion is a charter in which the Canadian Pacific Railway is asking for leave to build a branch to Sifton's Landing. No person lives in the neighbourhood, or if there are any settlers there they are very few in number. Members from the Northwest are greatlv interested in this Bill, and they take the position that when the Canadian Pacific Railway is asking for new charters it is the time to try to do something to secure relief for the settlers by means of the charters that have already been granted by this House. In the Railway Committee the other morning the principle was laid down by some of the ministers and by some of the members, and it was adopted, that when a company was applying for privileges to parliament was the time to hold it up and have the grievances of the people redressed. We are only carrying out the principle as it was laid down by the committee. Take the case of the Crow's Nest Pass Bill which was passed by the Railway Committee the other morning. There was nothing in common between the Crow's Nest Pass Railway Company and the Crow's Nest Pass Coal Company. The railway company was asking for a charter to build a railway from the Crow's Nest Pass coal fields to the boundary line. The coal company is a commercial company, that is dealing in coal the same as auy person would deal in any commodity, but, when this Bill came before the committee the principle was laid down that as the promoters were asking for this power, and as they were interested in both the coal and the railway company, we should hold them up and make the coal company sign an agreement that there should be no discrimination against the interests of the people of British Columbia. I claim that as the Canadian Pacific Railway is asking for a charter for which it has no necessity at the present time, because it is not getting this charter for the purpose of building a road to Sifton's Landing at all, but for the purpose of keeping other companies out and of preventing them from taking up the work, now is the time to demand terms from it. This charter has been asked for by the Canadian Pacific Railway for the express purpose of preventing any other company from floating its bonds, because it is a well known fact that when another company is in possession of the territory and a company wants to build the road and gets a charter, if it wishes to float its bonds in order to secure money for the construction of the road, it would be met by the fact that the Canadian Pacific Railway had a charter for this same ground and it would not be able to float its bonds. I take it that the Canadian Pacific Railway is getting this charter for the express purpose, not of constructing the road, because there is no necessity for the road in the meantime, but for the express purpose of preventing

other parties from getting money for the construction of the road to Sifton's Landing. This is a portion of the Mackenzie & Mann system from Winnipeg to Sifton's Landing, and is on the direct main line of that great transcontinental route. When these people want to get this charter they should be prepared to give the settlers a railway in the territory where they already have a charter. We are asking that they build sixty miles of the Great North-western Central road, and we are asking it on these grounds. We are not asking anything unreasonable at all. When they got an amendment to their charter in the committee room the other morning they agreed to build twenty miles a year for three years, but, we are asking them in place of doing that, to build sixty miles this year in order to give the settlers relief. I have in my hand a petition, sent to me by the settlers in the locality at the head of the road, asking the members representing the west to take up this question and see if they cannot do something to get the Canadian Pacific Railway to extend that road. The Canadian Pacific Railway came down to the House and got a renewal of its charter. I think this road has been under charter for something like eighteen or nineteen years. That time has elapsed since the first charter was granted to the Great North-west Central road. It was handed down from one party to the other. Mr. Charlebois had the charter in the first place. He constructed fifty miles of road and then it got into litigation. People had gone out ahead of this fifty miles and settled for 150 miles beyond the terminus, taking up land on the strength of the charter that had been granted to this company, and on the strength of the clause in the charter which directed the company to build at least twenty miles of the road a year. These settlers have been waiting for years for the building of this road. The facts of the case are that the Charlebois syndicate, or company, came down and got an extension of time and the settlers were, in the meantime, hoping that something would turn up and they would get relief. After Mr. Charlebois, the Canadian Pacific Railway came in and followed out its line of policy in the west, that is the dog-in-the-manger policy of getting hold of railway charters all over the country and not building any roads but preventing other people from building them. The Canadian Pacific Railway acquired this road. When it acquired the road it had no right to assume that it would come here and get an extension of time, but it did assume that, and it got the extension. It came back to this House again and asked for another extension of time. It has been holding that charter for several years, and all it has done is to build twenty miles of road, and we had to wring that twenty miles of road from the Canadian Pacific Railway the same as we have to do in every other case.
It is within the memory of some hon. members in this House, that on a certain occasion when a Bill came up, the western members took strong ground. It was near the end of the session and we had to take the Canadian Pacific Railway by the throat by saying that we would talk the Bill out if we did not get the necessary legislation to compel it to build twenty miles of road. It built twenty miles of road, but, in the meantime, it should have built sixty miles to give settlers relief. If it is not prepared to go on and build that sixty miles it has no right to come here and ask for a charter until it does something with the charters it has got. It is a well known fact that the Canadian Pacific Railway, not only in Manitoba, but in the North-west Territories and also in British Columbia, has charters for thousands of miles of road covering the whole country, or, as we call it in the west, blanket charters. It got a blanket charter from Manitoba last session covering practically the whole of that province. It has this year come down to the House to get an extension of time for the construction of some of its roads in the province of British Columbia. It is coming here continually and asking for extensions of time and is not building the roads. Surely it is not an unreasonable thing, surely no person can be accused of an antipathy to the Canadian Pacific Railway if, in the interests of the settlers of the west, which are opening up, developing and building that country, when he comes here and asks that a company which holds all these charters, covering the whole country, should do something to give the people relief where it is absolutely needed. I have a petition which was sent to me, and I presume to other North-west members, asking us to exert ourselves to get fifty or sixty miles of this road completed this year. I do not like to trespass on the time of the House to read this petition.


Mr.   ILEYD@: Tell us what it is, and do not read it.


Thomas Osborne Davis: I will read it, and you will know more about it. This is it:
The petition of the undersigned humbly showeth :
That we have been petitioning the Ottawa government for railway relief at various times during the past fifteen years.
That, nothing daunted by our former experience, we again approach you with the same object in view, as follows :-
That settlers in the Saltoun, Balcarres, Aber-nethy, Kenlin, Chickney, Lorlie, Pheasant Porks and many other districts have from fifteen to thirty-five miles to freight their wheat and other produce to market ;
That some of the old settlers have been here nineteen years next spring undergoing hardships that only those similarly situated can fully realize ;
That we have been braving it out from year to year in the hope that the near future might hold something in the way of further railway accommodation for us ;

That many farmers throughout this district have an average of at least 5,000 bushels of wheat to market (see names appended) each year, and taking the average distance to market at twenty miles, and the average load fifty bushels, this would total the enormous aggregate mileage for one such farmer to travel in one year to market his 5,000 bushels, up to 4,000 miles ;
Here are some of these farmers raising 5,000 bushels of wheat a year, situated as they are away ahead of the railway, and when they find this company asking for more charters, they naturally think the line should be continued to accommodate them.
That at this rate we would individually travel around the earth in a little over six years, or the aggregate mileage of six and one-half of us would girdle the globe in one year ;
That notwithstanding this enormous drain upon our resources, we are prospering fairly well, showing the splendid natural advantages of the district ;
The country must be remarkably good where people can prosper fairly well under such conditions.
That we notice with pleasure, by your speeches in and out of parliament, that the policy of the present government is to continue assistance to such lines of railway as will open up important new districts, and thereby bring the residents thereof within reasonable access of the world's markets and a multitude of other social and commercial advantages ;
That we look to the extension of the old North-west Central Railway (or some such located line) for relief;
That we are growing old and at times thoroughly heartsick looking and longing for a railway.
Therefore, we respectfully urge upon you our claims for railway relief as above enumerated, and with our hopes again buoyed up by your before-mentioned outlined railway policy, we pray, yes, beseech you to not again dash them to the ground by further delays and postponements.
And your petitioners, as in duty bound, will ever pray.
This petition is signed by a large number. I suppose nearly a thousand names of actual bona fide farmers and settlers. There is appended to the petition the name of each farmer, the time he went into the country-some of them as far back as 1875-the particular location each is on and the quantity of grain each raised this present year, which totals up to half a million bushels. There are a thousand names, and I venture to say that along the whole of this line they ask a charter for now they cannot find fifty settlers. Surely, it is not too much that we should ask the Canadian Pacific Railway to grant relief to these people. The signers of this petition live outside of my riding, but I presume that they remember that I advocated the extension of twenty miles some years ago, and they have sent me this petition as to some other members. However. I am directly interested in this proposition for the reason that it is chartered into the Saskatchewan district up to Battle-Mr. DAVIS.	-
ford, which is the original capital of the North-west Territories, and the country around Battleford has been settled since away back in the 70's. These people are growing old; this original charter was granted eighteen years ago, and the people have been living in hopes of railway communication since. They naturally expect that the North-west members should protest against any more charters, or against any more extensions of time being granted, until the Canadian Pacific Railway extend the lines which they have already charters for. That is not an unreasonable proposition. We like to see the Canadian Pacific Railway building roads, but we do not like to see them holding charters and playing a dog-in-the-manger policy for the express purpose of keeping other people from covering the ground. In place of asking for new charters like this they should extend existing roads. They should take up the Manitoba and North-western, which is on a par with this. Notwithstanding that they absorb the Great North-west Central; they have leased for 999 years, which is tantamount to buying it, the Manitoba and Northwest Railway. That road is in exactly the same position as the Great North-west Central. The people are living ahead of the railway sixty miles, waiting year in and year out for the Canadian Pacific Railway to extend and give them relief. People cannot haul their produce to market fifty miles and farm at a profit. In the interests of this country as a whole, something should be done to compel the extension of these roads before other charters are given. Nearly all the fertile lands have been taken up and we must of necessity open up new lands for the settlers. When new settlers see the history of the railways in that country, when they know that people have gone in ahead of the railways after charters were granted and expecting that these railways would be extended ; when they see those people waiting for twenty-five years and suffering because these railways were not extended, these new settlers will hesitate before they allow themselves to be treated in the same way. I claim that before we renew any charters for this or any other company, we should compel them to work on the charters they have. There are a great many settlers interested in it, and they have asked the members of this House who are supposed to speak in their interest to look after this matter. It is all very well for the company to say that they want time to finance the work; but when two, three, and in some cases four extensions of time have been given. I think it is time in the general interest of the countrv that we should call a halt.


The MINISTER OF PUBDIC WORKS.: They do not ask for any extension of time.


Thomas Osborne Davis: For the benefit of the bon. Minister of Public WTorks, I want to say that

if the principle announced in the Railway Committee the other morning of holding up a company is to be carried out to its logical conclusion, then it is right to hold up this company as well as others. The Crow's Nest Pass Coal Company had no more to do with the British Columbia Southern Railway Company than night had with morning ; but if it was right in that case to hold up the British Columbia Southern people until some concessions were got from the Crow's Nest Pass Coal Company, surely it is equally right that we should hold up the Canadian Pacific Railway in the interest of over a thousand settlers who have signed that petition, and ask that these people should get some relief before this Bill is passed. There are people settled not only for fifty miles along that road, but there are settlers away off a couple of hundred miles beyond Bat-tleford who have been anxiously waitiug for twenty years for that road, and we should now see that some of it is built. The company have already agreed to build twenty miles of the road in three years ; that I think is embodied in the charter passed the other day. All we ask them now to do is to agree to build sixty miles in one year, so as to give these settlers relief. That is not an unreasonable proposition. Surely a great financial concern like the Canadian Pacific Railway Company, if they are well disposed towards the settlers, will not find at hard to finance that extent of road. In the Bill they are asking for large bonding powers. They have already large bonding powers as well as large land grants for other roads. 1 bolieve a portion of the land grant of the North-west Central has been cancelled ; but they have acquired the Manitoba and North-western by lease, and at the same time I suppose they acquired the land grant of that road. Instead of locating the land, they got land warrants which enabled them to blanket whole districts, so that the asset in the shape of land with which we expected to construct railways in the future has been handed over to these people. If the company would agree to build these sixty miles this year, we would have no objection to letting this Bill go through ; but we strongly object to their getting this charter until they do something for the people in that district. When the Bill was before the committee on the first morning, there was a very wise amendment moved in the interest of the settlers by the Minister of Railways, to the effect that this company should not exercise the right granted under this charter until they built a railway to Gimli, and that amendment is now embodied in this Bill. It was explained that large numbers of Icelanders have been settled in the neighbourhood of Gimli for many years, and that there was no railway there and they toad no means of getting their products to market. The hon. member for Selkirk (Mr. McCreary), who represents that constituency, spoke strongly
in the interest of the settlers, and the Minister of Railways moved that amendment in order to give those people relief, before the company build the extension to Sifton's Landing, for which there is no more need than there is for a railway to the moon, as ittoere are no people living there, and the land is swampy. As the Minister of Railways gave his assistance to secure relief for the Icelanders around Gimli, I hope he will do the same for the people in whose interest I am speaking. I understood that the Canadian Pacific Railway people had agreed to sign an undertaking to build the sixty miles of .road this year, instead of spreading the work over three years ; but when we come to the House to-nigtot, we find that no such undertaking has been signed. We are naturally suspicious of the Canadian Pacific Railway Company, as the Minister of Public Works was of the Crow's Nest Coal Company the other day, and I think we are perfectly justified in holding up this Bill until an agreement to that effect is signed. I would like to ask the member in charge of this Bill if he can tell us whether the Canadian Pacific Railway Company have intimated that they are willing to agree to this proposition.


Thomas Fortin: This Bill was fought by the hon. member for Saskatchewan (Mr. Davis) and some other members from the North-west when it was before the Railway Committee. Suggestions and requests were made, and finally, after a great deal of discussion, an amendment suggested by the hon. Minister of Railways and supported by the hon. Minister of Public Works, was accepted and is embodied in the Bill. Without admitting for one moment that there is not an answer and a good answer to all that has been said by the hon. member who has just taken his seat, I may say that there is reason to believe that an agreement might be reached between the interested parties. Therefore, reserving the opportunity to answer what has been said by the hon. member, I would simply move that the committee rise, report progress, and ask leave to sit again.


The MINISTER OF PUBLIC WORKS.: Before this question is put, I want to say a word. This Bill was thoroughly threshed out in committee after a long discussion. An amendment was moved by my hon. colleague, the Minister of Railways, to which I agreed. The preamble of the Bill was carried. The gentlemen from the North-west, my hon. friend from Selkirk (Mr. McCreary) and others, although the preamble of the Bill was adopted, insisted in the committee that the Canadian Pacific Railway should build a certain line of railway. Although it was a very unprecedented proceeding, that was agreed to, and the Bill was passed with this amendment. Now we are confronted with another amendment asking that the

Canadian Pacific Railway build another railway in another direction this year-sixty miles, nothing less. X do not know whether the Canadian Pacific Railway has agreed to tills or not, and I do not particularly care, but I must remind my hon. friends from the North-west that they are asking us to adopt a proceeding which has never before been adopted by this parliament. I am speaking to them in a most friendly way, but they must not forget that it is impossible for us to put aside all the rules that have been so far followed in this parliament. The North-west is a very great part of the country indeed, but there are other parts of the country which have every possible interest in maintaining some rules and some law. They are asking us to put aside our invariable rule. I have been a long time here, and have never seen anything like this before. My hon. friends are very jealous for the settlers, and to that I do not object, but when a Bill has been adopted and passed by the Railway Committee, it is customary here to let it go through without any more debate. What are our friends doing ? They are simply trying to annul the verdict rendered by the Railway Committee. They are asking the Canadian Pacific Railway to build, not only the branch line that was agreed to before the committee. but another railway, before they can get this Bill through. Whether the Canadian Pacific Railway agrees to this or not, I do not know, but our friends from the Northwest are going very far indeed. My hon. friend has used words that I must resent, and resent at once. He has accused those of us who have been insisting that the Crow's Nest Pass Company adopt, as a condition of its charter, that the Canadian consumers shall be supplied with coal without any discrimination in favour of the Americans, of holding up that company. I am one of those who have insisted with some energy on that point, and have never held anybody up yet, and those who share my view-and they are the great majority of the House-are not people who would hold up anybody. We do our duty to the best of our ability, and in this case I do not feel that we are holding up anybody. Nor do I accuse my hon. friends of holding up any one. They are doing what they believe to be their duty, but they must not forget that there are rules which cannot be violated, even when the Canadian Pacific Railway is in court. I cannot understand why our hon. friends from the North-west are always so hostile to the Canadian Pacific Railway. It is a great corporation which the Canadian nation has built for the benefit, to a very large extent, of our friends in the Northwest. WTe have imposed on ourselves great sacrifices in the past, and while we must not give this great corporation any privileges, it is not in the public interest, it is not in the interest of this Canadian nation, that the only great transcontinental railway we Mr. TARTE.
have, should be always accused and traduced as it is in this parliament.
Coming back to this Bill, I see that my hon. friend from Laval (Mr. Fortin) has agreed to let it stand. I suppose he has been authorized to do so, but for my part I am very sorry he has agreed to that, because it is time for us to know whether, when a Bill like this has been adopted by the Railway Committee, it is to be rejected by the House.


Thomas Osborne Davis: I just want to say in reply that the same extraordinary course which the minister accuses us of taking in connection with this Bill, was taken in the Railway Committee the other morning. I do not say whether it was wise or unwise to hold up the Crow's Nest Pass deal. I believe it was wise, but I was merely following out the precedent there set, and I think it is all right that we should ask the Canadian Pacific Railway to do something to protect the settlers when they come to us and ask for something. The hon. gentleman says that the Canadian Pacific Railway has been traduced in the North-west Territories.


The MINISTER OF PUBLIC WORKS.: I did not say that.


Thomas Osborne Davis: The hon. gentleman practically said it. I have nothing against the Canadian Pacific Railway, but the settlers in the west have been suffering for years. The hon. gentleman says that this road was built for our benefit. But, we know it was built for the purpose of connecting British Columbia with this country in order to carry out the terms of confederation, and a great portion of our land was handed over to this company and exempted from taxation. Its terminals, rolling stock, &c., are exempt for ever from taxation, and by this very wise contract made with them, they are permitted to tax us just as much as they please in the way of railway freight. They charge us three times more than they have the right to do, and because we get up and protest, we are told that we are traducing this company. I do not look at it in that way at all. We are only doing our duty to the people in pointing out these discriminations and overcharges in connection with freight rates, and in showing that they charge twice as much west of Lake Superior as they do east.


The MINISTER OF PUBLIC WORKS.: The Canadian Pacific Railway are charging less freight than their American rivals are doing in the corresponding territory. I state that here, and it is true.


Thomas Osborne Davis: I have pointed out that they are charging double what they are doing in the States of the Union. There may he certain places where they are charging more, but if they are doing wrong in the United States, that is no reason why they should

3G98
do wrong in this country. They are discriminating against the people of the west, and surely we can raise our voices in protest without being accused of traducing this great company,- which has conferred such wonderful benefits on the people-this company which got $110,000,000 in cold cash and land for constructing a road not worth more than $92,000,000, which got more than the whole road was worth to build it, and got besides a free hand to tax the people of the west to its heart's content. It is easy to build up great corporations by such generous gifts. I am not blaming the government for that contract. My hon. friends opposite may console themselves with the fact that if the bargain was a bad one, it is their party which is responsible.
Progress reported.


CONSIDERED IN COMMITTEE-THIRD READING.
[Stage Direction]
Bill (No. 22) respecting the Columbia and Western Railway Company.-Mr. Morrison.
Bill (No. 87) to amalgamate the Northern Pacific and Manitoba Railway Company, the Winnipeg Transfer Railway Company (Limited), the Portage and North-western Railway Company and the Waskada and North-eastern Railway Company, under the name of the Manitoba Railway Company.- Mr. McCreary.
Bill (No. 73) respecting the Vancouver, Westminster. Northern and Yukon Railway Company.-Mr. Morrison.

[Stage Direction]
House in committee on Bill (No. 39) to incorporate the Similkameen and Keremeos Railway Company.-Mr. Galliher.
Mr. SPROULE.: I think it a great pity they have not selected a somewhat easier and more euphonious name, for I do not see how people are going to pronounce this.
Bill reported, read the third time, and passed.



SUPPLY-THE NIPISSING ELECTION.

[Stage Direction]
House resumed debate on motion of the Minister of Finance (Hon. Mr. Fielding) that the Speaker do now leave the Chair.
['My judgment is that LSvis would be the point of delivery.\nResolution reported.\nOn motion of the Prime Minister, House adjourned at 12.55 a.m., Thursday.']
Mr. SAMUEL BARKER (Hamilton).: I listened with much interest and attention to the speech of the hon. member for North Simcoe (Mr. McCarthy) just before six o'clock. The hon. gentleman entered into several questions that have been so fully debated by previous speakers that I do not intend to occupy the time of the House in following him in regard to them. But the legal aspect of the question which was presented by that hon. gentleman, can, I think, be answered in a very few words. The hon. gentleman, with a great deal of confidence, asserted that parliament had
divested itself of jurisdiction over such questions as we have been dealing with, and he made that assertion with a vehemence and a defiance of contradiction that seem rather surprising on the part of a legal gentleman when dealing with subjects so very grave. The Solicitor General has the misfortune, evidently,- to differ from that hon. gentleman. The Solicitor General tells us that the House has not divested itself of the right to deal with this question, but the hon. member for Simcoe says it has. After repeating again and again that the House had divested itself of this jurisdiction, the hon. gentleman, however, went on to say that the House still reserved the right to deal with the subject. I confess that I do not quite understand what the hon. gentleman means. If the House has divested itself of the right to deal with a particular question, I fail to understand how it can reserve to itself the right to deal with it. I think I will have to leave the hon. gentleman to answer himself on that point, and to settle with the Solicitor General any little difference of opinion that may exist between them. Then he goes on to point out that the whole question is in a nutshell ; the whole question he says is this : Was the second writ that was issued valid or was it not? Now, Sir, on this point, so far, I entirely agree with the hon. gentleman. There can be no doubt that this House has a right to inquire into the conduct of a returning officer as an official of the government ; but such an enquiry would not, I think, cover the main subject which we are called upon to consider this evening. The principal question, the matter in the nutshell, is, has this House the right to inquire into the validity of the second writ ? The hon. gentleman was very confident on that point, as he was upon the other. He defied hon. gentlemen on this side to say that he was not correct in asserting that under section 5 of the statute, which he read, the courts of the land have the power to deal with the question whether that writ was valid or not. The hon. gentleman read that section of the statute two or three times, and defied anybody to say that there could be any doubt but that the courts of the land had jurisdiction to deal with this question, the power to remedy a wrong if any has been done. He was so very confident that I would have hesitated to express my own opinion in contradiction to his ; but I will take the liberty of reading a few words written by a gentleman, for whose opinion, I think, the member for North Simcoe will have some respect; I shall read a few words from the judgment of the Chancellor of Ontario, who gave the formal judgment of the court of trial judges in this Nipissing case. The Chancellor expresses in a very few words the judgment of the court upon this very point concerning which the hon. member for North Simcoe was so very confident. The Chancellor says :

It does not form part of our duty under the statute to investigate or pronounce upon the constitutional right of the executive to direct the issue of a new writ in the circumstances of this case. That is a matter, not for the election judges, but for the House of Commons, to whom the ministers are responsible, if there was not plenary power and prerogative in the Governor General to act summarily upon the return to the first writ.
I do not think I need say anything more to my learned friend from North Simcoe (Mr. McCarthy) on that point. The fact that the hon. gentleman happens to differ not only from the hon. Solicitor General, hut from one of the ablest judges in this Dominion, conveys to this House, I think, a subject for consideration far beyond the mere question whether he was right or wrong. The hon. Solicitor General says : We have all the facts before us, and we can decide the question here. What does the hon. member for North Simcoe say to that now ? What does this hon. gentleman who has so rashly given his opinion here, who has given judgment upon this question without very much consideration, what does he say to taking a catch vote in the House without further enquiry ? Does the hon. gentleman think that this question should not be referred to the Committee on Privileges and Elections so that all the precedents can be looked into and the whole question fully and calmly considered, not in a debate of this House, but by a committee tthich' would take the trouble and care to look into the subject from every point of view ? Surely the hon. gentleman, when he has found out how rash he has been in the opinion he delivered before six o'clock, will now agree with us that this is a subject which ought to be referred to a committee and that it should receive, at the hands of such a committee, most careful consideration. The hon. gentleman, X am sure, will vote with its. He cannot do otherwise. There are a large number of laymen in this House. These hon. gentlemen are called upon to decide a very serious and grave question. They have heard legal gentlemen standing up and expressing these opinions on this subject and differing in these opinions. We have heard a legal gentleman standing up and In the most optimistic manner declaring that there is no question about the law upon this subject, and yet that gentleman's opinion Is opposed to the solemn judgment of one of the highest courts in the land. Are hon. gentlemen who are not of the legal profession, but who want honestly to deal wTith this question, prepared at a moment's notice to pronounce upon this subject ? The hon. member for Jacques Cartier (Mr. Monk) has pointed out, in words which I think hon. gentlemen cannot dissent from, the very grave character of the question before the House. It is not merely a question affecting one of the members of this House. It is not a question


Samuel Barker: whether Mr. McCool is or is not entitled to sit in this House ; it is a question affecting the rights and privileges of parliament and of the people of Canada. It is a question whether the government of the day can issue a writ and hold an election for one member in a particular constituency outside of the general provisions of the statute law. It is also a question whether, on some future occasion, a government, having a narrow majority and knowing a dozen or more doubtful constituencies, could withdraw writs or not issue writs, and later on, hold by-elections, and so control the country improperly. What may happen on one side may later on happen on the other, and hon. gentlemen should deal with the question, not as affecting a seat here, but as a question affecting the whole future of parliament, and they should not rashly deal with it in the inconsiderate way in which the hon. member for North Simcoe has done. There is a committee especially appointed for the purpose, the Committee on Privileges and Elections, and if ever there was a case that should be sent to the committee, then, surely, it is this one. Hon. gentlemen seem to think that we have divested ourselves of the right to interfere in such matters. That committee is appointed year after year for the purpose of dealing with such questions and when one of this kind comes up and we have legal gentlemen on the opposite side of the House differing in opinion, when we have one of these legal gentlemen differing from the judgment of one of the highest courts of the land, then, I say, instead of submitting the decision to a catch vote of parliament, the whole matter should be referred to the Committee on Privileges and Elections, so that the precedents may be brought before them and the question, after careful investigation, submitted to this House for consideration and a proper vote on so momentous a subject.


Robert Laird Borden: Mr. Speaker, I think that the question which has been brought before the House by my hon. friend from Hastings (Mr. Northrup), is oue which deserves a little more consideration at the hands of the government than has been given to it. In the first plaee, It is not a political question at all, properly viewed. It is a question entirely as to the relations which should exist between the House of Commons and the executive of this country. It is a question as to whether or not the powers which properly belong to the House of Commons have ben usurped by the executive. I assume that the right hon. gentleman who leads the government (Sir Wilfrid Enurier) will not deny that a question of that kind is deserving of fair treatment and of fair consideration at the hands of this House. Arguments have been made against referring a question of this kind to the Committee on Privileges and Elections. In the

first place the lion. Solicitor General (Mr. Fitzpatrick) says that we have all the facts now before the House. Surely the hon. gentleman, if he were in his place now, would not pretend for a moment that matters of this kind should not be referred to the Committee on Privileges and Elections for the very purpose of considering what the privileges and powers of parliament are on the one hand and what the privileges and powers of the executive are on the other hand. In the case of the Queen's, N.B., election which has been referred to in this House, a motion was made toy an hon. member belonging to the party which now occupy the Treasury benches that a certain return to the writ of election should be amended by this House without any reference to the Privileges and Elections Committee, and it was moved in amendment by the late Sir John Thompson, who then led the government, that the matter should not be dealt with in that manner but that the return to the writ should be referred to the Committee on Privileges and Elections for the very purpose for which my hon. friend from Hastings has asked that this question shall be referred. I may say to my hon. friend from North Simcoe (Mr. McCarthy) that a very eminent lawyer in this House, for whose opinions he lias a great deal of regard and an hon. gentleman for whose opinions all of us have a great deal of regard, the late Dalton McCarthy, supported that motion. That gentleman was a member of that committee ; he thought it was a proper question to be referred to the Committee on Privileges and Elections, and further than that he formed one of a sub-committee to which was referred the task of investigating precedents in regard to that particular question and reporting upon them to the main committee. I have before me the proceedings of the committee and the proceedings of, the subcommittee, and I find that the view which was taken by that eminent gentleman, to whom 1 have referred, is in exact contrast to the view which has been presented by the hon. member for North Simcoe to-day. I am sure that if my hon. friend from North Simcoe had looked into the proceedings of that committee, he might have seen fit to modify the opinion which he has offered to the House with a great deal of confidence that this is not a proper question to be referred to the Committee on Privileges and Elections. This House is not in a position to deal with a matter of this kind as well as the professional men forming the Committee on Privileges and Elections would be able to do. The task which that sub-committee took upon themselves and which appears in this report which I have in unhand was a most important task and a task they very ably performed. I find, on looking at the proceedings of the committee, that the right hon. leader of the government was inclined at that time to assign to parliament, or the committee which had this
matter in hand, much greater latitude than has been suggested by my hon. friend the Solicitor General and by the hon. member for North Simcoe.


The PRIME MINISTER.: What case was that ?	.


Robert Laird Borden: That was the case from Queen's, N.B. I will point out to my right hon. friend what I mean. The hon. member for Simcoe (Mr. McCarthy) has stated with a great deal of positiveness that there is no question at all but that the courts of this country have the right to consider whether a writ of election was properly issued by the executive of this country, and to set it aside. If his argument means anything it means that. I would not have thought that the words of the statute could be construed to that extent, and I am inclined to think that if my hon. friend (Mr. McCarthy) gives that matter a little more consideration than he apparently has done so far, he may be inclined to arrive at the same conclusion. What I desire to point out to the right hon. gentleman is that when a matter admittedly within the jurisdiction of the courts came before this House, my right hon. friend was of the opinion that it might not only be dealt with by the House, but that it was the duty of the House to deal with it, although the time for dealing with it in the courts had passed by. It was not the opinion, I admit, of the majority of the House or of the majority of the committee, because that was so distinctly a matter within the cognizance of the courts under the Controverted Elections Act, that parliament said it should hold its hand because that case did out come within the class of cases in respect to which parliament should continue to act. The class of cases in respect to which parliament should continue to act is well known to gentlemen who have made matters of this kind a study. Parliament does not hold its hand where an improper person has been returned; parliament does not hold its hand where a person has been returned who has no right to sit in parliament, and it declares the seat vacant. But outside of that parliament does hold its hand in case the courts have been given jurisdiction. Now, have the courts been given jurisdiction in this case ? I have not seen any authority-and I will ask any gentleman on the other side of the House to submit any authority if he has it-I have not seen any authority which would show that the validity of a writ of election can be inquired into by the courts. The argument of the hon. gentleman from Simcoe (Mr. McCarthy) would lead to extraordinary results ; the Solicitor General did not go as far as he did. Suppose a writ has been issued under a resolution of the House of Commons, would my hon. friend from Simcoe say that the court should inquire as to whether that resolution had been really passed by the House of Commons ? Would die say that the courts should inquire as to whether Mr. Speaker had properly counted the votes ? Where would he stop ? Questions of that kind have not been submitted to the courts. What has been submitted to the courts, as declared by text writers, is this: The proceedings under a writ of election can be inquired into, but the validity of the exercise by the executive of its powers in that respect cannot be inquired into ; and so it has been declared by Mr. Chancellor Boyd. It is not only his opinion, but it is the opinion of Mr. Justice MacMahon, another eminent judge of that court, because the judgment referred to by my hon. friend from Hamilton (Mr. Barker) was the judgment not of one but of both. Even if we are to admit that the opinion of my hon. friend from Simcoe (Mr. McCarthy) is deserving of every respect-and I am sure I will give it every respect, because I know that hon. gentleman is eminent in his profession- nevertheless, if we have the text books on the other side; if we have the opinion- although it may be but the dictum-of two eminent judges of the courts of Ontario on the other side also, will my hon. friend from Simcoe say that with that difference of opinion between him on the one hand and those judges and text writers on the other hand, we should accept without question his opinion and not refer this matter to the tribunal which has been appointed by this House for the purpose of determining questions of that kind. I find in Todd's Parliamentary Government in England, page 354, this :
Except in the trial of election petitions questioning returns to writs of election

Not questioning writs of election, but questioning returns to writs of election.
-which are now tried by the judges under the Act of 1868, the House still retains its ancient jurisdiction to determine all questions affecting the seats of its members not arising out of controverted elections.
I think there can be no doubt that there is some question here which might properly be referred to some tribunal, and I know of no tribunal to which it can be referred except the Committee on Privileges and Elections, because the argument to the contrary must go to this extent: That the question as to the rights and privileges of the House of Commons on the one hand, and the rights of the executive on the other hand, must be determined not by this House which has always been jealous of its privileges in that respect, but by the courts of the country. Is there a single word in the Controverted Elections Act which says that this House has deprived itself of the right and the duty of inquiring whether its powers have been usurped by the executive o.f this country. If there is a word In the Controverted Elections Act which goes that far, I would be glad if some hon. gentle-Mr. BORDEN (Halifax).
man would point it out, because up to this I have not been able to find it in that statute.
There are other curious circumtances connected with this. As has been pointed out by my hon. friend from Hastings (Mr. Northrup), certain provisions have been enacted by parliament under which writs of election can be issued. My hon. friend (Mr. Northrup) has established, by his argument, a reasonable case for showing that except in these stated cases, parliament must direct the issue of the writ. At all events whether my hon. friend has made out a conclusive case for that or not, he has made out a reasonable case for inquiry. But there is a further point to which my hon. friend (Mr. Northrup) has not referred, and it is this: Under what authority did the executive government of this country see "fit to issue a new writ of election before the other writ was returned. On what principle are you to have two writs of election outstanding at the same time. This is what was done. A telegram was sent to the sheriff to return the writ on the 10th of November, and before that writ was returned, on that very 10th day of November, a new writ was issued and forwarded to the sheriff. I would like to know on what ground that can be justified. I would further like to know on what ground you can justify the fact that a new writ was issued, although the return to the writ was obviously a bad return, as has been established by | my friend from Hastings, and as lias not been contradicted by my hon. friend the Solicitor General or by my hon. friend from North Simcoe. These are proper questions for the consideration of the Committee on Privileges and Elections.
But, there is another matter which has been very lightly touched in this debate, either by the Solicitor General or by the hon. member (Mr. McCarthy), and that is the question of the conduct of the returning officer. In the Queen's, N.B., case, the conduct of the returning officer came in question, and how was it dealt with ? It was dealt with in this way: That the whole question was referred to the Committee on Privileges and Elections, which examined precedents and reported to this House upon these precedents. And having regard to these precedents, that committee reported to the House that the conduct of the returning officer should be inquired into, and that he should be summoned to the bar of the House. He was summoned to the bar of the House, and liis conduct was inquired into, and if I remember the facts rightly, he was censured. Now, in what respect has the returning officer in this case been guilty of misconduct ? I will touch ou that in one moment, but before doing so I would like to point out to the right liou. gentleman this : It was laid down in 1&S7 by eminent men in this House, and not contradicted by any one of the eminent lawyers who were

then members of this House, that with respect to the returning officer there are three courses that might be pursued-three forms in which yon might have a remedy against him for misconduct. In the first place, you might punish him criminally if his conduct came within the meaning of the criminal code; in the next place, you might sue him for the penalties and damages provided by the Election Act; and, in the third place, inasmuch as he is an officer of this House, you might call him to the bar of this House and inquire into his conduct and punish him as such.
Is there anything in the conduct of this particular officer which calls for inquiry by this House ? I think my right hon. friend, the leader of the government, will be disposed to conclude with me that there is ; because it is not alone a question of a seat in this House. The seat of Nipissing is immaterial to one side or the other side of this House, so far as political purposes are concerned. The government of the day holds a large majority in this House, and the possession of the seat of Nipissing is not the important question which this House has to consider. The important question is. what might be the possible result of conduct of this character on the part of a returning officer ? What was his conduct ? He deliberately absented himself on the 31st of October, 1900, for the purpose, as he admits, of preventing any nomination being made. My hon. friend the Solicitor General thinks that is a light matter. Is it a light matter ? Suppose this government or a succeeding government should bring on a general election, and some party heelers, with or without collusion or instigation on the part of the government, should go to the returning officers in a dozen doubtful constituencies, and prevail upon them, by bribery or otherwise, to absent themselves on nomination day, so that no nomination in those constituencies could be made. Hoes not my right hon. friend see the consequences which that might lead to ? Does he not think that the conduct of a returning officer pointing to results such as that should be inquired into ? My hon. friend the Solicitor General dealt with this point very airily ; he said you could fine him $500. What would be the sum of $500 in each of a dozen constituencies conqiared to a result which might be produced by the means I have referred to 7 But the returning officer was not content with absenting himself. I have his evidence here under my hand, and every statement I make I am prepared to substantiate by references to his own admissions under oath. He went to his election clerk and deliberately prevailed upon him to go into hiding. He took him into his own house, because there was a possibility that in hi's own absence a nomination might be made before the election clerk. So that, these two worthy gentlemen, by the admission of the returning officer, went into hiding
for the purpose of preventing a nomination being made on the 31st day of October. Is that not a matter worthy of being inquired into by this House 1 Is an officer of this House to be permitted, for no just purpose, so far as we can see, to deal with his duties under an election writ in that way ? If conduct of that kind is to be passed over by this House, is to be condoned by the government of the country refusing to submit it to an. inquiry by the Committee on Privileges and Elections, then, Sir, the consequences in the future may be more serious than hon. gentlemen on the other side of the House seem to imagine.
We have the returning officer's admission that he was guilty of other minor misconduct in this matter. What is the meaning of this gentleman going with the Iuberal candidate, Mr. McCool, to consult the Secretary of State in regard to this election ? What is the meaning of the fact that although he refused to show this order in council to Mr. Klock, he said he was perfectly willing to show it to Mr. McCool ? It is perfectly clear that from first to last he was in very close communication with Mr. McCool ; and it is also clear that from first to last he had the design, for some purpose or other, of preventing any nomination being made on the 31st day of October.
It may be said in reply-in fact, it was said by my hon. friend, the Solicitor General -that if a nomination had been made on the 31st day of October, it would have resulted in injustice. That is a rather curious remark to come from the law officer of the Crown, because if it means anything, it means that this returning officer is not to obey the mandate of the Governor General to him in a writ of election, but, forsooth, is to say : ' It would be just or unjust to do a particular thing, according ns I deem it right or wrong, and when I receive the mandate of the Governor General in a writ addressed to me, I am to judge whether it is .expedient for me to do or not to do my duty.'
But, Sir. there is even a stronger circumstance upon which I have heard no explanation from the other side of the House, and it is this. Why is it that this government, which -has seen fit to enact a Franchise Act containing certain provisions, to which I shall call attention, was derelict in its duty in not causing the lists to be prepared at the proper time ? My hon. friend the Solicitor General tells us that these lists were prepared in proper time for the election which was eventually held. If my hon. friend were in his place, I would like to ask him, under the statute which he himself framed and passed, eft what time have those lists to be ready when they are prepared under section 9 of the Franchise Act 1 [DOT] There is no particular provision in section 9 as to the date, and I do not know whether or not my hon. friend would say that you must construe section 9 with section 5, subsection

<c). Will the right hou. gentleman who leads the government give me an idea as to the view of the law officers of the Crown on this point ?-because I do not expect the right lion, gentleman himself to keep these matters in mind. Can he tell me what the view of the law officers of the Crown is in regard to that ?


The PRIME MINISTER.: I have not the Information.


Robert Laird Borden: The right hou. gentleman is not informed. Well, it seems to me that it would be desirable that the government of this country should be informed on that point; because, owing to the fact that the government has not been informed on that point, and owing to the fact that the member of this government who is charged with the duty of complying with section 0 has not performed his duty, the whole difficulty has arisen. Why were the lists which were required by section 0 to be prepared for the purposes of an election, why were they not ready for the election to be held in Nipissing	Was this the
duty of the Secretary of State ? I assume, from the course which was taken by that hon. gentleman, from his connection with the preparation of these lists eventually, that it formed part of his duty in the administration to deal with matters of this kind. I suppose the Secretary of State was not so overburdened with duties that he was unable to attend to this ; but, at all events, we are entitled to know why this government saw lit to bring on a general election without taking proper steps under section 0 to have lists ready so that section 27 of the Election Act could be complied with. That section is very specific in its terms, and for good reasons, no doubt. It provides that the Governor General shall fix one and the same day for the nomination of candidates in all the electoral districts, except in certain ridings, of which Nipissing is not one. Section 9 of the Franchise Act of 189S provides that in every riding where lists are not ready under provincial legislation, it is the duty of this government to prepare the lists. WTe have not had a word, up to the present, to excuse the default of the government in that respect. If there had been no such default, there would have been none of this difficulty, the returning officer would not have been tempted to disregard his duty, and the election would have been held on the 7th of November in that district just as It was held in all the other constituencies.
I think we might well ask the right hon. gentleman who leads the House to tell us why this duty was neglected and these lists not prepared.
Under the circumstances which have been brought to our attention by my hon. friend from Hastings (Mr. Northrup), there seems to be no possible reason why this House should not refer this question to the Com-


Robert Laird Borden: mittee on Privileges and Elections. It may be that that committee will report that the action of the executive in this respect is sustained by parliamentary usage and by the law applicable to the division of power between parliament and the executive in that respect, but what I do contend is that a case has been made out for inquiry. Beyond that I do not need to go. And if this is not a proper case for the consideration of the Committee on Privileges and Elections, I would be glad to have any hon. member point out under what possible circumstances you can refer matters affecting the seats of members of this House to that committee ? Of what use is that committee if not in a case of this kind ? It was made use of, and with good results, in 3887 in the ease I have referred to. All we ask is that the matters which have been brought to the attention of the House shall be referred to the Committee on Privileges and Elections for inquiry and report.


The PRIME MINISTER (Rt. Hon. Sir Wilfrid Laurier).: I have nothing to complain of, but quite the contrary, in the manner in which my hon. friend from Hastings (Mr. Northrup) has brought this question to the House. If my hou. friend will allow me to give him my candid mind, I would say that he deserves great credit for the fair and impartial maimer in which he has presented his views to the attention of parliament. He presented them without any passion feeling, without appealing at all to prejudice, but simply calling the attention of the House to what he conceives to be a wrong practiced upon the liberties of the people and parliament itself. My hon. friend said once or twice that he expected that a Liberal government would deem it its duty, even more thap a Conservative government would under similar circumstances, to see that the rights and privileges of parliament were duly observed. I quite agree with my hon. friend, and if I were of the opinion that the privileges of this parliament have been violated, I would not at all object to the motion he has placed, Mr. Speaker, in your hands. Let me observe at once to my hon. friend that in this matter, he has after all brought to the attention of the House simply and purely a technical point. Complaints of undue proceeding in elections have often been referred to this parliament, but there is a difference between this and all the cases which, in my experience, up to this time have engaged the attention of parliament, and that difference consists in the fact that in the present instance there has been no wrong done to anybody nor any injustice committed towards any one. Let me say at once also to my hon. friend that I do not disagree, but on the contrary agree with him. that parliament, in passing the Controverted Election Act, did not at all divest itself of its paramount power over all matters which pertain

to elections, My hon. friend from Simcoe (Mr. McCarthy) did not controvert that principle, and my hon. friend from Hamilton (Mr. Barker) did not fully apprehend his argument on this point. Far from asserting that parliament has divested itself of its paramount power to investigate all matters pertaining to elections, my hon. friend from Simcoe stated in so many words that parliament had retained that power. But the argument made by him is that although parliament has still the paramount power to investigate such matters, it would not be judicious or opportune for it to exercise that power in all cases in which wrong-doing may have occurred in an election. Take a very obvious case, which was the basis of the Controverted Election Act, not only in this country, but in England. Suppose a petition were presented at the Bar of this House complaining that one of its members had been elected by corrupt practices. Parliament, though it has the power to deal with that matter and void the election, would, under the law we have enacted, never dream of using it. In all such questions the law is very clear and the practice is equally obvious. Parliament would refer the matter to the courts. It would say to the complainant:	you have your
remedy in the courts ; if you do not choose to use that remedy, we will not come to your relief.
My hon. friend cited the case of Sir Sydney Waterlow, but there is no parallel between that case and the one we are considering. The charge brought against Sir Sydney Waterlow was that he was a public contractor. If he were a public contractor at the time of the election, his election might have been voided for that reason, but if he continued to be a public contractor, the offence was a continuous one and parliament could take notice of it at any moment. The point in this matter before the House is not whether or not a case has been made out which should have been investigated by the courts, but whether there is such a case that we should take cognizance of ourselves, although the courts have the power and jurisdiction over it.
There are two things to be examined, according to the argument of my hon. friend from Hastings and just repeated by my hon. friend the leader of the opposition. First of all, there is the conduct of the returning officer, and then there is the validity of the writ of election. As to the conduct of the returning officer, let us see what there would be to investigate in his case. A writ was issued at the time of the general election, to Mr. Varin to act as returning officer, at the election to be held at Nipissing. Mr. Varin consented to act in that capacity. Mr. Varin did not act upon the writ beyond a certain point. He accepted the writ, and, if I remember well, posted up the notices, but did not proceed further. Whatever may be said of the conduct of Mr. Varin as to why he refused to proceed further and finally returned the writ to the Clerk of the Crown in Chancery or as to the legality of his conduct, there is no impugning his motive. He did not act from an improper, or dishonourable or fraudulent motive, or from any intention of giving an advantage to one of the contestants over the other. He acted as he did because he had discovered that if the election took place at the time named in the first writ, about one-quarter of the electors would have been disfranchised. He informed the government of the fact. Now, I come to a question which has been asked of me by my hon. friend the leader of the opposition and which he expected me to answer. How is it, said he, that the writ was issued and the government did not take the precaution to exercise the power placed in their hands by the Franchise Act to have a new list prepared ? How is it that they issued the writs without assuring themselves if new lists would be required ? I must say that the hon. gentleman cannot expect, and no one could seriously expect, that the government, before issuing the writs for a general election could look into the 213 constituencies into which the electorate of Canada is divided and ascertain whether the lists were ready in every constituency.


Hon. Mr. HAGGART.: Hear, hear.


The PRIME MINISTER.: My hon. friend (Mr. Haggart) does not seem satisfied with that. If he can show me how it would be possible for the government to know that in every one of the 213 constituencies in Canada all the lists were ready he would show something which this government has not been able to do, and which I am sure he could not do if he were in the place where he once was and which we occupy to-day. We have to be informed of this, how ? By local officers. The returning officer informed the government at the time that the lists were not ready in all the unorganized portions of the electoral district of Nipissing. That riding is composed, as we know, of a new section of country. There is a certain portion of it organized and another portion unorganized. In the unorganized portions there were sixty-one polling sections in which there were 2,000 electors, or thereabouts ; and, if the election had been held on the 7th November, these would have been disfranchised, as the lists were not ready:	The government was informed of that fact.


John Graham Haggart: Is it not only those in the unorganized districts who were put on since 1898 who would be disfranchised ?


The PRIME MINISTER.: That would be 2,000-about one-quarter of the electors. That Information I have under my hand. At that time we discovered that lists were

being prepared and an order in council was prepared to have these lists hastened so that they might be ready as soon as possible. Thereupon the returning officer did not proceed with the election and returned the writ. My hon. friend said he did not return it until the 10th November. That is another point which X shall come to presently. Whether he returned it on the 10th November or not, he did not act upon it, but returned it. As I said a moment ago, he did not act from improper motives-everybody will admit that. Did he act illegally or did he act legally ? The gentleman who was the Conservative candidate and who was the most interested, immediately took proceedings to bring the returning officer before the court, believing that the returning officer had acted illegally and improperly. He proceeded against him in the manner provided by law and brought him before the courts of the land. The returning officer's conduct has been investigated by the court. Before we proceed further, let me illustrate this case. Suppose that a case were now pending before the courts, 1 have no doubt that the hon. leader of the opposition would advise us, under the circumstances. not to proceed against the returning officer and investigate his conduct. I think he would say : As the courts are investigating this officer's conduct, it would not be fitting, nor convenient, nor proper nor just to have his conduct investigated before another tribunal. A case came up iu 1875 on which Mr. Blake spoke. He had been called upon to present a petition against the returning officer of the county of Victoria. He presented it because the matter had been placed in his hands, and he said :
He would be very sorry to believe that the House had been deprived, by the position of the Controverted Elections Act, of its power over returning officers and deputy returning officers-of its power to investigate complaints made against them for improper conduct. But when parliament transferred the trial of election petitions to the judges, and expressly provided that the conduct of returning officers might be complained of, and they might be made respondents to petitions, parliament thereby expressed a preference for that mode of investigation, or at any rate a petitioner could adopt that course. Under these circumstances he did not think it would be proper to ask the House to enter into an investigation of the conduct of that returning officer pending the election trial.
Now, Sir, there is a difference between this case and that referred to by Mr. Blake. In the case referred to in 1875, the trial was pending ; in the case of 1901, the trial has been disposed of and the returning officer has been exonerated from blame. And now, after the matter has been referred to the courts, after the courts have passed upon it, and have exonerated the returning officer, will it be seriously contended that we should refer that case to the Committee on Privileges and Elections to have it investigated again ? What would be the ob-3ir WILFRID LAURIER.
ject of having it referred to the committee ? To have the same trial gone over again that has been gone over before the court ? The court has pronounced one way, and it might be possible to induce the committee to pronounce the other way. Parliament having delegated its power to a tribunal, it would be most unseemly, when the tribunal has exercised the power conferred; upon it, for us to say :	We will take no cognizance of
what has taken place, but will ask parliament to undo what hast been done by the court, and when the court has pronounced this returning officer not guilty in any particular, has pronounced him exempt from blame, we will ask parliament to investigate his conduct-for what purpose ? To declare him guilty of that of which the court has declared him not guilty. Where could be the sense of justice in pressing another investigation into the conduct of the returning officer under such circumstances? No wrong can be done if this proposed investigation does not take place, because the matter has been adjudicated upon by the very authority appointed by parliament to look into such cases. I submit with the greatest confidence to the impartiality, fairness and justice of every member of this House, not only this side but on the other side as well, that when the court has investigated the conduct of the returning officer nothing could be more unfair or unjust than to have it Investigated again by another tribunal.


Robert Laird Borden: Will the right hon. gentleman (Sir Wilfrid Daurier) be good enough to read that part of the judgment which exonerates the returning officer? I may say that I thought the judgment proceeded 'upon the ground that there had been no validity of the nomination. But that was because the returning officer went into hiding and would not receive nominations.


The PRIME MINISTER (reading) :: It does not form part of our duty under the statute to investigate or pronounce upon the constitutional right of the executive to direct the issue of a new writ in the circumstances of this case. That is a matter not for the election judges, but for the House of Commons, to whom the ministers are responsible, if _ there was not plenary power and prerogative in the Governor General to act summarily upon the return to the first writ.
It appears unnecessary to prosecute the trial further with a view to unearthing some vague conspiracy which is hinted at. for the presence or absence of this element will not affect the legal situation as it'is now made manifest.
We are asked now, not to continue the trial further, but to recommence the trial in order to ' unearth some vague conspiracy ' which is hinted at. The court would not do that, because there was nothing to be gained by trying to unearth that vague conspiracy which was hinted at. The hon. gentleman | now asks us to do what the court would not ! do under such circumstances. The court had

nothing before it to satisfy itself that any harm had been done to anybody, or that the returning officer had been guilty. Now, I come to the other point which was brought out by my hon. friend from Hastings, and also by my hon. friend the leader of the opposition. My hon. friend from Hastings took the, position that the second writ which was issued' was absolutely void. Very well, let us suppose that writ was absolutely void, and let us see what would be the consequences and what would be the remedy. If I followed his argument correctly, it was to the effect that the writ of election is no longer a prerogative of the Crown, but that it is now a creation of the statute, aud must be exercised within the limits of the statute. Now, if that be the argument of my hon. friend, and if it be true that the writ is no longer a prerogative of the Crown, but a creation of the statute, and has no existence but that which is given it by the statute, and, therefore, must be exercised under limits prescribed by the statute, then, I say, that if the statute has been violated, if the disposition of this statute has not been followed, then there can be no clearer case for the submission of the question to the courts instead of to parliament. Nothing can be clearer than that. The nullity is caused by the violation of the statute. Now, let me direct attention to the Controverted Elections Act. Section 5, which was cited a moment ago by my hon. friend from Simcoe, speaks in this way :
A petition complaining of an undue return or undue election.
My hon. friend said that he never heard of a case where the validity of a writ had been brought in question in a controverted election ; neither did I. But, because there has been no case in point until the present time, because there has been no election controverted so far based upon the nullity of a writ, does it follow that the nullity of the writ may not be a good cause for controverting an election ? Why, Sir, can anything be plainer than this, that if the nullity of the writ is a violation of the disposition of the statute, this creates an undue election within the terms of the statute ? Therefore, if there ever was a case for controverting an election, it is this very case where the nullity of the writ is set forth as a basis. It seems to me this is a sufficient argument on that point, and I need not pursue it further. I come now to the point upon which my hon. friend the leader of the opposition has laid greater stress, the judgment of the court in this matter. The Lord Chancellor, in delivering the judgment of the court, is reported to have spoken as follows :
It does not form part of our duty to investigate or pronounce upon the constitutional right of the executive to direct the issue of a new-writ in the circumstances of this case. This is a matter, not for the election judges, but for the House of Commons.
What is the remedy, then ? While the government think that we acted within our authority, hon. gentlemen on the other side say we have trespassed beyond our authority. Well, if they are of opinion that we have been derelict in the duty which was imposed upon us by law, then, it is a case upon which, if they can make it good, we are prepared to receive the censure of this House. We say to the House : If you think we have done wrong, you have your remedy, you can censure us. But, we do not admit that we have done wrong, we think we have acted within the law and within our authority. Therefore, I am not prepared to admit, speaking on behalf of the government, that there is anything to investigate by the Committee on Privileges and Elections. If we have done wrong we are prepared to abide by the consequences in a parliamentary manner, that is to say, to submit to a vote of censure. But as, in our judgment, we have done the best we could in order to ensure a pure election,' a free election, in order to ensure that every elector in that district might cast his vote, we do not admit that we have done wrong, and, therefore, we contend that there is nothing to be investigated by the Committee on Privileges and Elections.
Hon. JOHN HAGGART (South Lanark!. I may be pardoned in offering a few remarks upon this interesting question. The Solicitor General and the right hon. gentleman have argued that we have not divested ourselves of the right to investigate this matter. I heard the word ' divest ' used several times in the debate. I have yet to learn that parliament can divest itself of any of the powers given it under the British North America Act ; and when the word ' divest ' is used it is a term which is not applicable to the case. However, I heard the Solicitor General, who used the word ' divest,' afterwards change it to the word ' delegate,' which is the proper word. We have delegated to the courts for our own convenience the trial of election cases, and for obvious reasons, we will not interfere if those powers have been exercised within the limits we have set to our delegation to the courts. We have delegated those powers, not only for our own convenience, but for dozens of other reasons which must strike the right hon. gentleman. A couple of times we have departed from that policy, when persons could have gone to the courts under section 5, notably in the Huron and Brock-ville cases, this parliament has taken upon itself the power to inquire into them. No one in this House denies that the power is vested in this House to make an inquiry ; but, the Solicitor General and the right hon. gentleman have argued that under clause 5 of the Act power is delegated to the courts to inquire into these particular cases, and that we ought not to interfere in such cases. I am with the Solicitor General, I am with the right hon. gentleman, that it is not at



all judicious, nor is it in the interest of this House, to make an inquiry into particular cases. Now, does this present case come within the powers of section 5 of the Act ?
I notice that the right kon. gentleman treated that point very gingerly, he thought that it did. He could not have studied the remarks of the judges upon that question. Does he state that under clause 5 of the Election Act we have delegated to the courts the right to inquire whether a prerogative has been rightly exercised or not ? I do not think the right lion, gentleman will hold that. Then, if we have not delegated to the courts the right to inquire whether the prerogative has been rightly exercised, where are we to look for the righting of any wrong that has been committed in the undue use of the prerogative ?
We cannot go to the courts. The only tribunal which we can go to is this parliament. This is one of the rights which we have reserved to ourselves as a parliament, the right of inquiring particularly into these cases as they develop themselves, the right of inquiry whether the prerogative has been rightly exercised in such cases. I do not pretend to be a lawyer although I have studied constitutional questions, but I will say that there is not a constitutional authority in this House who will rise and risk his reputation as a constitutional authority, or as a lawyer, and argue that this particular question has been delegated to the courts, and that this parliament is not in a position to make an inquiry. In such a case the only tribunal which we have a right to apply to is this parliament. I am not stating my own opinion upon this subject. I am stating the opinion of the judges who tried the case. Could there be any plainer language than this especially when the right hon. gentleman says that the conduct of the returning officer was tried before the judges ? Does he mean to say that the judges acquitted him and that there was nothing blamable against him ? The judges stated that the responsibility has been taken from this returning officer by the executive, and they doubt, under the circumstances, whether they have the right to inquire at all into the subject, because the Chancellor says :
No practical result can follow from the attack upon the returning officer as sole defendant, even if (which I doubt) there be jurisdiction to entertain the petition.
Mr. McCarthy. That is because Mr. McCool was not present.


John Graham Haggart: If Mr. McCool was not present they had no right. They doubted their authority even to entertain the petition. Then, the judgment continues:
It does not form part of our duty under the statute

The language Is as clear as it can be.


John Graham Haggart: -to investigate or pronounce upon the constitutional right of the executive to direct the issue of a new writ in the circumstances of this case. That is a matter, not for the election judges, but for the House of Commons, to whom the ministers are responsible, if there was not plenary power and prerogative in the Governor General to act summarily upon the return to the first writ.
We are acting under the directions of the court.
Mr. McCarthy. Would the hou. gentleman (Mr. Haggart) allow me to interrupt him ? You will find that the case was not a petition by Mr. Klock against the sheriff In regard to the first writ, but in regard to the second writ, and the time having expired to contest the second writ, the circumstances of the case would not permit the election judges to go into it. Therefore, if investigated at all, it must come to parliament, which, as I said this afternoon, is all powerful.


John Graham Haggart: Yes. [DOT]
If there was not plenary power and prero-tive in the Governor General to act summarily upon the return to the first writ.
What the hon. gentleman contends Is that the writ was the second writ. We deny that the writ was the second writ, even the judges act upon that because they say it is not their duty to inquire into the prerogative whether there was a proper return to the first writ or not, or whether the executive were right at all in issuing the second writ. That is the whole question which was presented to the House by the motion of the hon. member for East Hastings. What we say is that we have no remedy in the courts? We have no opportunity to inquire, according to the judgment of the court, whether the returning officer is responsible for,these acts, because, they say they doubt whether they have jurisdiction at all, because these acts are confirmed by the action of the executive, and they have no power to Inquire into the condoning of the issue of the second writ. Surely then, if these are the facts there is some remedy. We simply request that the course which has been pursued again and again in this House, shall be followed in this case. We say that the matter is of sufficient importance to authorize the Committee on Privileges and Elections to inquire into the matter and advise this House as to what the legal position is in reference to it, to give their opinion upon that question, so that the House may see that its privileges and rights are not infringed upon by any action of the executive whatever. The matter is stated as clearly as it possibly could be in the judgment:	.
This is a matter, not for the election judges, but for the House of Commons, to whom the ministers are responsible.
It is as clear as possible, and the direction of the judges is not an obiter dicta at all,
*
3717	APRIL 24, 1901	3718
but a part of the judgment itself which is that the House of Commons should inquire whether its privileges have been violated or not. I take issue with the hon. member for North Simcoe in his contention. I take issue with the right hon. leader of the government who spoke upon this question. I am partially with the hon. Solicitor General, who stated, in his opening remarks, that there could be no justification whatever for the returnng officer, and he argued very gingerly as to the legality of the issue of the second writ. He dropped the question of the legality of it altogether and dwelt upon the question whether or not an injustice had been done to the people of the riding. He asked : Would it be right to have an election when one-quarter of the people of the district were disfranchised ? Why were they disfranchised ? The right hon. gentleman asks : Are we to inquire into the question whether, in one hundred and fifty cases the law has been carried out or whether the proper lists are made out or not ? Surely it is the duty of the executive of the country to see that. One-halif of the voters in the cities and towns throughout the province of Ontario would be disqualified in a general election if the executive did not inquire into the question of their qualification. The whole of the manhood suffrage voters of our cities and towns in Ontario depend entirely upon the executive to see, when the lists are more than a year old, that the proper lists are provided and officers are appointed by the executive of this country to attend to this matter. Yet the right hon. gentleman says that the responsibility does not rest upon the executive at all in this matter. Th? responsibility rests upon the executive to see that the law is carried out, to see that the voters who are entitled to vote in the different provinces, are upon the list, not only in cities and towns, but in the unorganized parts of the country, and having done this, it is their duty to issue the writs afterwards. Perhaps it is not pertinent to this particular question, but I need not say that it is impossible to successfully carry out an election law based upon provincial lists. The other day I asked the hon. Solicitor General Whether the Dominion of Canada could delegate to the different provinces the power to make the franchise for the Dominion. He said : No, we do not do anything of the kind. I pointed out to him that when we adopted the provincial lists we delegated the power to the different provinces to form the franchise for the Dominion. It is a franchise liable to be changed from day to day according to the wish and will of the provincial authorities. Did the right hon. gentleman and his cabinet ever consider the circumstances that in Manitoba they have a franchise under which they disqualify every person, being a British isubject born, and thirty year's a resident in Manitoba, if he could not read or write ?
117i
Such a person is disqualified from voting at a Dominion election. Is not the power delegated to the different provinces to make the franchise for the Dominion parliament? The contention from this side of the House is undoubtedly correct on this case. There is no disputing the fact that the only tribunal we have to appeal to against injustice perpetrated by the returning officer and by the executive in issuing a writ while the other writ was in existence ; the only power in this country to correct that evil is the power of parliament, and whether our opinions be right or wrong, they are of sufficient importance to call for an inquiry into that by the Committee on Privileges and Elections.


Hr. W. M. GERMAN (Welland).: Mr. Speaker, I desire to add a few words to perhaps clear up one or two matters in regard to which I think hon. gentlemen opposite are labouring under a very deep cloud of misapprehension. In the first place, it has been stated that our hon. friend from Simcoe (Mr. McCarthy) suggested that parliament had divested itself of its power to try these matters by reason of passing the Controverted Elections Act. The argument made by the right hon. the premier has I think convinced the House that such was far from the suggestion made by the hon. member (Mr. McCarthy). There is no doubt that parliament can investigate at any time it chooses, any matter which may come before it touching the seat of any member. No person will attempt to controvert that. It seems to me that this matter narrows itself down to a very small compass indeed. In the first place, was the second writ which was issued under the prerogative of the Crown a valid writ under which an election could be held ? If it was not a valid writ then what is the remedy, by reason of an invalid writ having been issued by the authority of the Crown. The Controverted Elections Act provides that all matters of that kind should be tried by the courts. Hon. gentlemen opposite have endeavoured to convince this House that the courts have decided that they have no jurisdiction to try the question of the validity of the second writ. Well, Sir, on that particular point these hon. gentlemen are exceedingly wide of the mark and they do not properly appreciate the judgment of the court because the judgment of the court expressly states :
It does not form part of our duty under the statute to investigate or pronounce upon the constitutional right of tha executive to direct the issue of a new writ in the circumstances of this case.
And what were the circumstances of this case ? The circumstances of this case were, that a petition had been presented to the court against the returning officer, not by reason of the issuing of the" new writ at all which was not in question in the action,

but against the proceedings of the returning officer under the first writ that had been issued, that was the question to be tried and that was the question upon which the courts decided. The court did not, and I apprehend the court would not decide that the court had not full and ample jurisdiction to decide on the validity of any writ that was issued by the Crown. X will venture to say that the leader of the opposition would not prejudice his reputation as a leading lawyer in his province by asserting that the courts of the land could not adjudicate on the validity of a writ that was issued by the Crown.


Robert Laird Borden: I am most distinctly of the opinion that the Controverted Elections Act does not confer upon the courts any such power.


William Manley German: That is certainly not the question. Have not the courts of this country the right to decide as to whether or not any Act of this parliament is antra vires of this parliament ? Has not the parliament ample and complete authority to act in this country? Is not parliament supreme ?


William Barton Northrup: Not since the issue of the second writ apparently. It is the executive that is supreme.


William Manley German: The court is supreme and I will venture to say that if the learned counsel who had the case in charge in the interests of the Conservative party, thought they could have established the invalidity of the second writ they would have made Mr. McCool a party to the proceedings and attempted to upset that writ.


Robert Laird Borden: Will my hon. friend permit me to say it was not possible to do that, because Mr. McCool was returned under the second writ. This proceeding against the sheriff was in respect of his conduct under the first writ.


William Manley German: I cannot quite appreciate the idea which my learned friend (Mr. Borden, Halifax) has in regard to this matter. Here was a return made by a returning officer to a writ issued by the Crown under which an election was held and a return made to the writ. Surely under the Controverted Elections Act a petition could have been filed against Mr. McCool and the whole matter could have been gone into.


Robert Laird Borden: I never said the contrary. My hon. friend either does not understand me or I do not understand him. What I said was, that a petition having been brought in respect to the acts of the returning officer under the first writ, you could not bring in Mr. McCool as a party, because he was returned not under that writ but under the second writ issued by the executive.


William Manley German: Could not they have brought two actions if they wanted to and filed two petitions 1 Mr. GERMAN.


Robert Laird Borden: Certainly they could.


William Manley German: Because they filed a petition against the returning officer in reference to the first writ, it was no bar to their' filing a petition to dispute the return of Mr. McCool under the second writ.


Robert Laird Borden: I do not wish to interrupt my hon. friend, but I am afraid he does not understand me or I do not understand him. Mr. McCool could not have been added to the petition in respect to the acts of the sherriff under the first writ. I do not dispute that a petition could have been brought against Mr. McCool in respect to his return under the second writ.


William Manley German: The hon.'gentleman may have misunderstood my position and I am willing to give him that degree of latitude in view of the great straits into which he is driven at present. It cannot be controverted that there could have been a petition filed aginst the return of Mr. McCool under the second writ by virtue of the provisions of the Controverted Elections Act which would have settled the whole question, and on which the judges of the court could have adjudicated on the legality of the second writ. I venture to assert that there is not a lawyer in the Dominion of Canada who will contend that the court could not adjudicate on the legality of a writ of election issued as this writ was issued. I do not at all admit that this writ was an invalid writ. It is just a question, by reason of the return made bv the returning officer, as to whether or not the Crown could issue a new writ at that time, or whether there should have been a delay until parliament met when a writ could have been issued by its direction. That is an arguable point; but I believe the authorities are strongly in fav.our of the authority of the Crown to issue a new writ under the circumstances as they existed, rather than wait until parliament met and a new writ should be issued under the direction of parliament. There is no doubt that the voters' lists in that electoral district were more than a year old, and the statute provides that the election shall be * held on voters' lists which are not more than a year old. The voters' lists were being prepared. Hon. gentlemen opposite allege that the government should have known that these voters' lists were not prepared, and should have delayed the elections throughout the whole Dominion, because in one or two polling subdivisions, in that enormous district of Nipissing; which were unimportant so far as population was concerned, had not been prepared and the returning officer had not received them ; and hon. gentlemen desire that this whole matter shall be referred to the Committee on Privileges and Elections to investigate whether or not the returning officer did his duty. As the leader of the government said, 1 tthe court has decided that, and has held

that the returning officer did not act improperly, to the extent that it gave costs against the petitioner. That is not what these hon. gentlemen want. They do not care so much what the returning officer has done as they do to get this matter before the Privileges and Elections Committee, and occupy four or five days or perhaps four or five weeks, in accumulating a whole volume [DOT]of evidence with which they can go before the country and make a big holloa that the Grits have been doing something enormously bad. Probably they will bring iu some spurs for climbing polls, as has been done in other committees of this parliament. What is there to investigate by the Committee on Privileges and Elections ? The court has decided that the returning officer has done nothing wrong ; consequently it is not necessary to reopen that question. So far as the validity of the second writ is concerned, we have all the facts which could be brought out by the committee. We all know that the first writ was returned ; we know the cause of its return : we know that the second writ was issued. The hon. leader of the opposition said that the second writ was sent up before the first writ was returned. That does not make the slightest difference so far as the law is concerned. What is there to investigate more than we know now ? We know that the first writ was issued, that it was not acted upon, that it was returned, 'that a second writ was issued, that on that the election was held, and that Mr. McCool was returned as the member for Nipissing and is in the House at this moment-elected by acclamation. Why did the gentleman who proposed to oppose him not go on the battlefield and fight it out like a man ? If we are to investigate by the Privileges and Elections Committee every case of an election which could be investigated by the courts, simply because some lawyer makes a mistake in his proceedings, then the Privileges and Elections Committee will be overburdened with cases during this and succeeding parliaments. We have every fact before us now which we could possibly obtain by an investigation. The question is, was that writ a legal writ ? I submit that no authority has been cited by hon. gentlemen opposite to show that the writ was not a legal writ. I doubt if they can cite any authority. They can argue by implication, but they have scarcely done that. We have got the return, we have got the member, and so far as my vote will go, we will keep the member. I do not see that there is any reason at all-and I believe in this we shall be borne out by the popular opinion throughout the country-to doubt that this has been a proper and legal election, that the second writ was a proper and legal writ. If hon. gentlemen opposite had anything to complain of, the courts were open to them to have their complaint investigated, and not having had it investigated there, they [DOT]ought not to bring it here. In this connection, I want to cite one sentence from a high authority, to hon. gentlemen opposite at least, that is, the late Sir John Thompson, on the investigation of parliamentary elections by the Committee on Privileges and Elections. In 1887, Sir John Thompson, as reported in ' Hansard,' said this :
I showed on a former occasion that we have adopted that statute (the Controverted Elections Act); we adopted it in 1874. From that time forward, as I then stated to the House-and it has not been controverted since-from the hour when the parliament of Great Britain adopted the mode of trying controverted elections in the courts of the country, and from the hour that that procedure was adopted in Canada, there has not been a single instance in the records of either parliament, of an election return having been disturbed, or a contested election having been tried in the House in Great Britain or in Canada.
Sir John Thompson stated most emphatically that parliament had provided the legal means of having these matters decided. Though parliament has not divested itself of the power to consider them, still it is not wise, or judicious, or politic, having delegated to the courts the power to try such cases, that parliament should thereafter be burdened with the difficulty and expenditure of time necessary to their investigation.


Robert Laird Borden: I would like to ask the hon. gentleman one question. Did not Sir John Thompson make that speech on a motion of his own to refer that matter to the Privileges and Elections Committee ?


William Manley German: It was after the report of the committee had been brought in.


Robert Laird Borden: I think that speech was made on his own motion to refer that very matter to the Privileges and Elections Committee.
House divided on amendment of Mr. Northrup.
YEAS : Messieurs
Alcorn,	Kidd,
Barker,	Lancaster,
Bell (Addington),	Lavell,
Bell (Pictou),	Lefurgey,
Bennett,	Lennox,
Birkett,	MacLaren (Perth),
Blain,	McGowan,
Borden (Halifax),	McLeod,
Broder,	Monk,
Calvin,	Morin,
Cargill,	Northrup,
Carscallen,	Osier,
Clancy,	Pope,
Clare.	Prior,
Clarke,	Richardson (Grey),
Cochrane,	Richardson (Lisgar),
Culbert,	Robinson (Elgin),
Earle,	Roche (Marquette),
Fowler,	Sherritt,
Ganong,	Sproule,
Gilmour,	Taylor,
Hackett,	Tolton, ,
Henderson,	V rooman,
Johnston (Cardwell),	Wallace,
Kaulbach,	Wilson-51.
Kendry,	

NAYS : Messieurs
Angers,	Logan,
Belcourt,	Lovell,
Bernier,	Loy.
Blair,	Mackie,
Borden (King's, N.S.),	MacLaren (Huntingdon)
Bourassa,	McCarthy,
Bourbonnais,	McCreary,
Brown,	McEwen,
Bureau,	McGugan,
Calvert,	Mclsaae,
Carroll,	McKinnon,
Copp,	McLennan,
Cowan,	Madore,
Dechene,	Malouin,
Delisle,	Marcil (Bonaventure),
Demers (Levis),	Marcil (Bagot), '
Demers (St. John),	Martineau,
Desmarais,	Matheson, .
Dugas,	Maxwell,
Erb,	Meigs,
Fielding,	Mignault,
Fisher,	Monet,
Flint,	Morrison,
Fortier,	Murray,
Fortin,	Oliver,
Fraser,	Parmelee,
Galliher,	Paterson,
Gauvreau,	Prdfontaine,
Geoffrion,	Proulx,
German,	Puttee,
Gibson,	Reid, (Restigouehe),
Girard,	Roche (Halifax),
Gould,	Ross (Ontario),
Guthrie,	Ross (Rimouski),
Heyd,	Ross (Victoria),
Horsey,	Schell,
Hughes (King's, P.E.I.),	Scott,
Hyman,	Sifton,
Johnston (Cape Breton) Smith (Vancouver),	
Kendall, [DOT]	Stephens,
Lang,	Sutherland (Essex),
Laurier (Sir Wilfrid),	Talbot,
Lanrier (L'Assomption), Tarte,	
Lavergne,	Tobin,
LeBlanc,	Tolmie,
Legris,	Tucker.
Lewis,	Turgeon-94.
PAIRS :	
Against	For
Messieurs	
Sutherland (Oxford),	Haggart,
Britton,	Bruce,
Dobell,	Brock,
McCool,	Ward,
Mulock,	Seagram,
Cartwright (Sir Rich'd),	Topper (Sir Charles Hibbert),
Dyment,	McCormick,
Johnston (Lambton),	Simmons,
Thompson,	Ingram,
Fitzpatrick,	Casgrain,
Turcot,	Robinson (Northumberland, N.B.),
Wright,	Reid (Grenville),
Wade,	Gourley,
Emmerson,	Hughes (Victoria),
Davies (Sir Louis),	Wilmot,
Edwards,	Kemp,
Bazinet,	Maclean,
Davis,	Boyd,
Christie,	LaRividre,
Charlton.	Tisdale,
Bickerdike,	Roddick,
Bruneau,	Ball,
Gallery,	McIntosh,
Russell,
Holmes,
Macdonald,
Costigan,
Douglas,
Pringle,
Smith (Wentworth), Haliday,
Hale,
Rosamond,


Mr. TAYLOR.: The hon. members for Proveneher, Grenville, Cornwall and Stormont, and East Lainbton have not voted.
Mr. LaRIVIERE. I am paired with the hon. member for Argenteuil (Mr. Christie).


Mr. REID (Grenville).: I am paired with the hon. member for Renfrew (Mr. Wright).


Mr. PRINGLE.: I am paired with the hon. member for Hants (Mr. Russell).


Mr. SIMMONS.: I am paired with the hon. member for West Lainbton (Mr. Johnston).
Amendment negatived, and the House went into Committee of Supply.
Steel rails and fastenings, $500,000.


Thomas Simpson Sproule: The minister made a statement last night that a portion of the line was already provided with new rails. How much is laid, and how much is to be laid ?


The MINISTER OF RAILWAYS AND CANALS.: I was ashed last evening what quantity would be required to relay the Intercolonial Railway. The hon. member for South Lanark (Hon. Mr. Haggart) suggested that a very much smaller quantity would answer than we were asking parliament to authorize us to purchase. The policy of the government, as I stated last evening, is to relay the Intercolonial Railway with the heavier rails from end to end. There are 1.315 miles in all, but, besides these there are some points at which we propose to double the track, a few miles. These points are as follows : From Windsor Junction to Halifax, we will double the track eight miles. The whole distance is double that number of miles, but we think that by laying a double track upon a portion of the line, which would be the least expensive, that would answer our purpose for many years to come. From Dorchester to Memrameook, we propose doubling the track seven miles. From St. Anne to Elgin road, twelve miles. From Rimouski to Bic, ten miles. It would require 125 tons of 80-pounds rails to lay a mile. We have already acquired, and have either laid in whole or in part. 20,000 tons. We have made provision in our order in council and proposed arrangement with the Lake Superior Power Company to be supplied by that company with 125,000 tons, which will make in all 145.000 tons, including the quantity of 80-pound rails which we-have already purchased. The mileage to be covered by the 145,000 tons will be 1,1(30.


Frederick Debartzch Monk: Have some rails already been purchased from the Lake Superior Power Company ?


Robert Laird Borden: 


The MINISTER OF RAILWAYS AND CANALS.: No. I say there were purchased, before we made our arrangement with the Lake Superior Power Company, 20,000 tons. It will require 145,000 tons to lay 1,160 miles. There are 43 miles laid with the new 70-pound rail, which we do not propose to disturb. I add that 43 miles to the 1.160, and thus we have made provision for
1.203	miles. We have made no arrangements to cover the difference between the
1.203	and 1,352, in other words 149 miles.


Mr. WALLACE.: The hon. gentleman should subtract the 43 instead of adding.


The MINISTER OF RAILWAYS AND CANALS.: No, why ?


Nathaniel Clarke Wallace: Because he says it is provided for.


The MINISTER OF RAILWAYS AND CANALS.: The hon. gentleman has not followed me closely. With 1,160 miles to be laid, and 43 miles laid with the 70-pound rails, there are 1,203 miles covered by existing arrangements, out of a total of 1.352 miles. Thus of the 1,352 miles, we have still left 149 miles which will need to be provided for hereafter. I was asked as to the location of this mileage of 160 miles already covered by the 20,000 tons. About 80 miles, or one-half the distance has been laid in Cape Breton, also about 30 miles between Moncton and Truro, and the balance on various heavy grade sections. Now, the statement was made last evening that the arrangement with the Lake Superior Power Company was for 150,000 tons. Of course, I can see how the erroneous impression was made; The order in council, by an error in writing or by the type-writer, speaks of four years in one place and five years in another.


John Graham Haggart: It is an error in the memorandum to council.


The MINISTER OF RAILWAYS AND CANALS.: I do not know. It may have been in the report or in the copying of the order. In any case we had no intention of making the contract for a longer period than five years or for a larger quantity than
125.000	tons. With that 125,000 tons, and the 20.000 tons we got last year and the year before, we shall have a total of 145,000 tons of new rails which will be laid upon the Intercolonial Railway. When this is .done as I have said, there will be 149 miles of the road not re-railed.


Mr. CLANCY.: I am unable to see how the hon. gentleman makes it 125,000 tons. It says 50,000 tons for the first year, and
25.000	tons a year for four years thereafter.


The MINISTER OF RAILWAYS AND CANALS.: We only get 25,000 tons the first year.


George Taylor: And for five years thereafter.


The MINISTER OF RAILWAYS A.: \D CANALS. No, that is not the arrangement.


James Clancy: Is there any other binding arrangement with the company ?
The MINISTER OF RAH, VAYS AND CANALS. No, there is no other arrangement between the parties. We had not it in contemplation to make an arrangement for a longer term than five years or a greater quantity than 125,000 tons.


John Graham Haggart: Before the hon. gentleman passes from that point, I desire to ask a question. In the report of the inspector, contained in the last report of the chief engineer on the Intercolonial Railway, it is stated that there are 1,315 miles of main road, and 271 miles of freight branches and wharfs. I do not suppose he intends to lay the freight branches and wharfs with the 80-pound rails ?


The MINISTER OF RAILWAYS AND CANALS.: No.


John Graham Haggart: Then that would leave on the main line from Montreal to Halifax 840 miles. Moncton to St. John 89 miles, Truro to Sydney 270 miles, and North Sydney branch, 5 miles. If I understood the hon. gentleman right, he states that there are 80 miles on the Cape Breton road laid. Then, there are 30 miles on the Truro branch laid, or a total of 110. Does the hon. gentleman intend to lay again the Drummond County Railway with the 80-pound rails ?


The MINISTER OF RAILWAYS AND CANALS.: Not where it has been laid with 70-lb. rails.


John Graham Haggart: How many miles have been laid with 70-lb. rails ?


The MINISTER OF RAILWAYS AND CANALS.: Forty-three.


John Graham Haggart: That would leave 1,022 miles to be laid yet.


The MINISTER OF RAILWAYS AND CANALS.: The hon. gentleman does not include the short line that we propose to lay. We propose to lay from Montreal to Halifax, from Moncton to St. John, from Truro to Sydney, from New Glasgow to Pictou Landing, from Pugwash Junction to Pug-wash, from Stellarton Junction to Ferrona Junction, from Oxford Junction to Pictou, from North Sydney to Sydney, including the Dartmouth branch and some other sections, making altogether 1,315 miles. We propose to double track 37 miles in addition.


John Graham Haggart: You have nothing to do between Montreal and St. Rosalie ?


The MINISTER OF RAILWAYS AND CANALS.: We propose to lay the whole

Drummond County line with the exception of the 43 miles.


John Graham Haggart: That is from St. Rosalie to Point Levis ?


The MINISTER OF RAILWAYS AND CANALS.: If the hon. gentleman deducts from the 840 miles, the 39 miles from Montreal to Ste. Rosalie, he gets the actual mileage. It will be subject to the reduction by the distance between Montreal and Ste. Rosalie. That would be 110 miles short of providing for the whole line.


John Graham Haggart: Axe there any other lines than those I mentioned ? There is from Montreal to Halifax S40 miles, that is exclusive of the Ste. Rosalie branch. From Moncton to St. John, 89 miles, from Truro to Sydney, 270 miles, from Sydney to North Sydney, 5 miles.


The MINISTER OF RAILWAYS AND CANALS.: The hon. gentleman did not include the branch from New Glasgow to Pictou Landing, he did not include the line from Pugwasli Junction tol Pugwasli, from Stellarton Junction to Ferrona Junction, nor from Oxford Junction to Pictou, a distance of 70 miles. There are some other portions of the line which we did not contemplate laying with new rails.


John Graham Haggart: The hon. gentleman intends to relay the New Glasgow branch and all the branches near the Intercolonial Railway with 80-pound rails ?


The MINISTER OF RAILWAYS AND CANALS.: All those I have named we propose to relay.


John Graham Haggart: Why do you have to double the line on the Intercolonial Railway with 80-pound rails ? The New Glasgow branch would do with the other rails, and these branches to the different little places would do with G7-pound rails.


The MINISTER OF RAILWAYS AND CANALS.: We do not propose to lay any of those portions at as early a date as the portions I have described, but we propose to lay them later on, after we have exhausted the quantity we now ask authority to purchase. But anything short of these portions will not put the line in the shape it ought to be in for the reason that these portions are all used for the carriage of considerable freight; heavy locomotives and heavy trains wiill pass over those lines, and we will have to put them in equally good condition as the other portions of the line. After we have done these we will still have 110 miles for which no provision has been made. Now the ihon. gentleman asked me yesterday to bring to the committee a copy of the telegram which we sent from the department to Mr. Clergue with reference to the contract which had been forwarded to him. I have a copy of it here which I Mr. BLAIR.
will read in order that it may go upon the 1 Hansard' :
Ottawa, April 12th, 1901.
F. H. Clergue,
President Lake Superior Power Co.,
Sault Ste. Marie, Ont.
Please return draft contracts for rails by tonight's mail; they were inadvertently forwarded to you without minister haying seen them.
(Sgd.) L. K. JONES,
Secretary.


John Graham Haggart: Have yon an answer to that ?


The MINISTER OF RAILWAYS AND CANALS.: No, but we received an answer during my absence somewhat different from the one which we hoped to receive, an answer dated the 15th of April, from Philadelphia, from the president of the Lake Superior Power Company, returning to us the contract executed by them. The contract which they had returned executed, is the same document in all respects as the one, a copy of which was placed either upon tlie Table or in the hands of the hon. gentleman in the earlier portion of the discussion. It is signed by the Lake Superior Power Company, hut it has not been executed by me. I have the letter, dated April 15tli to the following effect;
L. K. Jones, Secretary, Department Railways and Canals, Ottawa.
I take pleasure in inclosing to you herewith contract duly executed in duplicate by the president and vice-president of this company between the Minister of Railways and Canals and the Lake Superior Power Company for a supply of steel rails.
I remain yours, very truly,



[Stage Direction]
President.
This is the draft of the contract which provided for a supply of rails for five years, the draft that was laid on the Table, and it is in that unexecuted form so far as the department is concerned, which it was in when the papers were handed to the hon. gentleman the other night.
John Graham Haggart: And the proposals which were mentioned in the correspondence ?


The MINISTER OF RAILWAYS AND CANALS.: Yes, I have the former proposal here from the Lake Superior Power Company, dated June 8th, 1900, to which I made reference the first day of the discussion. It is a lengthy document, and I will send it over <to the hon. gentleman. It may be considered as laid on the Table.


Thomas Simpson Sproule: What does the minister propose to do with the agreement now signed by the company ?


The MINISTER OF RAILWAYS AND CANALS.: I propose to have an agreement drawn that will be in strict accordance with the order in council. I propose to have that

document sent to the company for their execution. I have no doubt at all hut that the document so drawn will be executed, lit has not yet been prepared, but I have no doubt it will be satisfactory to the company if it is in accordance with the order in council.


Mr. OSLER.: There is no doubt, apparently, that the document that is executed by the company is absolutely in accordance with the terms that the company understood they were making with the government.


The MINISTER OF RAILWAYS AND CANALS.: I do not know what they may have understood. I know that they were in possession of a copy of the order in council. The order in council was sent to them immediately upon its having been passed by council, agreeable to the request which Mr. Clergue made. He was not, apparently, particular about the contract. He was content that he should know what council was prepared to do, and if he had been very solicitous about the contract, I suppose we would have heard him calling for the contract. Some reference was made last evening by the hon. member for South Lanark (Hon. Mr. Haggart) to the question of the price at which the government were contracting to purchase these rails. I have made a statement on the sub.iect. and I propose, even now, with the forbearance of the committee


Mr. LENNOX.: Before the hon. minister goes away from that subject, I would like to ask him if the return of the signed contract is the only response that has been received to the telegram that was sent on the 12th instant ?


The MINISTER OF RAILWAYS AND CANALS.: It is the only response I have seen, and my deputy tells me that he has received no letter from them. I want to make reference again to the question of the market price of rails extending over a period prior and subsequent to the date of the arrangement with Mr. Clergue.


John Graham Haggart: Before you proceed with the discussion of that, the hon. gentleman promised to lay on the Table of the House the information that I asked for, as to the form in which steel rails, taken up from the road, were credited, whether they went into store account and were credited to the revenue account, or in what manner were they credited.


The MINISTER OF RAILWAYS AND CANALS.: There is nothing that I can lay on the Table in respect to that, but, I stated to the hon. gentleman that the new rails that were purchased by us were charged to capital, less the amount of the old rails, which went into store account. That is the system which is pursued by the department, and as I understand, the system which has been pursued by the department
whenever rails have been got on capital account.


John Graham Haggart: What I want to know especially is, when they went into store account, to what were they credited ?


The MINISTER OF RAILWAYS AND CANALS.: Do you want to know what amount was credited ?


John Graham Haggart: What amount was credited, and to what account they were credited ?


The MINISTER OF RAILWAYS AND CANALS.: They were credited to capital account. The difference between the amount in respect to the old rails and the amount which the new rails cost is the only amount which is charged up to capital.


John Graham Haggart: At what price were the old rails credited to capital account when they were taken off the road ?


The MINISTER OF RAILWAYS AND CANALS.: 
Edmund Boyd Osler: What is done with the old rails ? How7 are they disposed of ? Are they left in store, or are they sold and a price obtained for them ?


The MINISTER OF RAILWAYS AND CANALS.: They will be sold, of course.


Edmund Boyd Osler: They have not been sold ?


The MINISTER OF RAILWAYS AND CANALS.: They are being sold from time to time. I made a very full statement the other day in regard to that. A good many of the small roads that are being constructed under government contract buy their rails from us when we have a good quality of rails for them.


Haughton Lennox: Would the hon. minister allow' me to refer again to the matter of the Clergue contract ? I understand the hon. minister to say that Mr. Clergue did not send any reply or response to the telegram except the contract that has been returned signed. Are W'e to understand from the minister that he is in a position to say that no response has been received by his department other than the contract returned signed ?


The MINISTER OF RAILWAYS AND CANALS.: I am not in a position to say one w7ay or the other at the present moment. I understand from the deputy that lie is quite confident that there is no letter on the subject further than the one I have just read, but he will ascertain whether there is any other.


Haughton Lennox: Then, wre are to understand, as far as appears at the present time, that the power company propose to

hold the government to the contract as sent to them for signature, or the five years contract.


The MINISTER OP RAILWAYS AND CANALS.: I do not imagine that the power company are going to raise the slightest question with us as to the contract that they will enter into. The power company, I am sure, will unhesitatingly execute 'such a contract as we will draw in conformity with the terms of the order in council. Nothing has been said, no communication has been received from the company which would justify me in inferring that they will raise the slightest objection to the execution of the contract in conformity with the order in council.


John Graham Haggart: Has the hon. gentleman notified the company, since he received that communication, that he is not going to accept the contract ? I understand on the 15th he was advised they had signed this contract, nine or ten days ago. Has the hon. gentleman communicated to them that he does not propose to accept the contract as executed by them ?


The MINISTER OP RAILWAYS AND CANALS.: I have not seen Mr. Clergue, but I expected to have seen him personally. I was about writing to him on the subject, but I understood he was coming here today, and I intended to have some conversation with him. There has been no letter sent from the department.


Haughton Lennox: Would the hon. minister explain to the committee, as I think it would be probably interesting to them to know, why it was, that yesterday, when this matter was before the committee for discussion, it was not mentioned at that time by the minister that the contract had been returned signed ?


The MINISTER OP RAILWAYS AND CANALS.: The contract came back while I was absent, and as a matter of fact, I was not aware at the moment that the contract had been returned executed by these gentlemen. It is here now, and you see to what extent it has been executed. You see that it has not been executed by me, and it will not be executed by me, nor will a contract be executed by me unless and until it is in conformity with the order in council that has been passed.


John Graham Haggart: Did the hon. minister have any communication from Mr. Clergue on the subject except the returned contract-any letter with the returned contract ?


The MINISTER OP RAILWAYS AND CANALS.: No. I understand not further than the one I have just read.


John Graham Haggart: Just simply inclosing the contract.


Haughton Lennox: 


The MINISTER OP RAILWAYS AND CANALS.: This is the original paper. I will pass it over and the hon. gentleman will see it, but I would like him to take care of it.


John Graham Haggart: I thought you said you had some communication from the president of the company in Philadelphia. This is it ?


The MINISTER OF RAILWAYS AND CANALS.: Yes. Now, I stated to the committee the other day that I had not gone through the sources of information, showing just what the prices were which rule in the market for rails either in the United States or England, until recently. I have had one of the officers of my department do so very carefully and I shall impart to the committee the information which these papers disclose. First let me call attention to the price of rails in the United States, because something has been said by gentlemen opposite on that question. It will be found by referring to the Monthly Summary of Commerce and Finance of the United States, which contains the record of the price Oif steel rails from day to day. The price of steel rails in the United States on the 25th of July, 1900, was $35. That price of $35 ruled continuously and uninterruptedly until the 12tli of September, when the price fell to $30, and the price continued at $30 until the 2Gth of September, when it fell again to $26, and down again until the 17th of April, the last date for which I have the figures, the price has remained uninterruptedly at $26. The committee will have in mind, I apprehend, that this arrangement was made by the government with Mr. Clergue in the month of August last. The order in council did not pass until the 9th of October, founded upon the recommendation whch was sent by me to council, dated the 26th of September, but the arrangement was made in August. Mr Clergue was pressing to have us agree, if we were prepared ito agree, upon terms which would be sufficient to induce him to establish this industry, and we gave him to understand in August that we had determined upon it and he was then in a position, relying upon the conclusion at which the council had informally arrived, to make the preliminary arrangement.


John Graham Haggart: Were these oral or written ?


The MINISTER OP RAILWAYS AND CANALS.: The communications that I am now speaking of were verbal, because the gentleman was here himself to hear what would be determined upon. We had to come to an arrangement with him then because it appeared to be important that no 'time should be lost. I was in a position to assure him that the order in council would in due course be passed in accordance with the arrangement. We settled upon

the price and we settled upon the terms which we would agree with him upon. We settled as to the term of years upon the first year's definite contract and upon the four years' continuous subsequent contract, making for the five years in all 125,000 tons. At that time, you will observe that the price of rails in the United States market, and until the 12th of the following month, was $35 a ton.


Edmund Boyd Osler: When did the minister say he fixed the price with Mr. Clergue ?


The MINISTER OF RAILWAYS AND CANALS.: In August.


Edmund Boyd Osler: It is very curious that on the 29th of September the only offer made form England to Canada for steel rails ; the only inquiry made from this country as far as I can find out, was made on the 29th of September, asking the price of 80-pound steel rails in England. The reply to that cable was : ' Delivered in Montreal, $32.24.'


The MINISTER OF RAILWAYS AND CANALS.: I do not know what the hon. gentleman (Mr. Osier) may be referring to, and I do not know what his statement is based upon, but I do not see the particular relevancy of that observation. The arrangement, as I tell the hon. gentleman, was made in the month of August, and it is so recorded in the order in council which passed on the 9th of October.


Edmund Boyd Osler: Does that order in council give the price of the rails ?


The MINISTER OF RAILWAYS AND CANALS.: Yes, Sir.


Edmund Boyd Osler: The order in council of the 9th of October, does.


The MINISTER OF FINANCE.: The or-|der in council of the 9th of October was the only order in council actually passed.


The MINISTER OF RAILWAYS AND CANALS.: I am saying that that order in council contains a statement which the members of the council individually and collectively would know, to this effect :
This subject was, however, discussed informally by the cabinet towards the close of August, 1900, being favourably considered, and it was understood that a recommendation would be made and be submitted by the Minister of Railways and Canals on the basis of a contract for 25,000 tons to be supplied in 1901 at $32.60 a ton, the price then being paid by the Department of Railways and Canals under its then rail contract.


James Clancy: What time in August was that ?


The MINISTER OF RAILWAYS AND CANALS.: Towards the close of August. It does not say what particular date it was. It was one of the meetings of the council which took place at the latter end of August.
It must have been about the 22nd or 23rd of August, because I was present and I did not return to Canada until the 20th or 21st. I came immediately to Ottawa, so that it would be almost immediately after that. There was no record of council to show just what date it was, because it was an informal debate which settled the terms and on the strength of which-I do not think I wrote him-one of my colleagues may have written to him. But I know I stated to Mr. Clergue the first opportunity 'I had of seeing him after this date, that the matter was settled and agreed upon, and it would only be a question of drawing out the necessary papers and having the recommendation go to council for the order to be passed upon it.


John Graham Haggart: If I understand the minister aright, there was a memorandum prepared in August which was filed in his department in reference to the agreement.


The MINISTER OF RAILWAYS AND CANALS.: No, there was not. There was no memorandum prepared in the department until September, and the date of that memorandum was the 26th of September.


John Graham Haggart: I do not mean the memorandum to council. There was no note or information filed in the department in reference to the oral or verbal agreement with Mr. Clergue in August, and the first that the department had notice of it was when they prepared the memorandum on the 26th of September.


The MINISTER OF RAILWAYS AND CANALS.: I had notice of it, of course, in August. I do not know whether I had any conversation with the deputy minister on the subject at that time ; but there would be no record either in council or out of council on the subject. We had Mr. Clergue's application before us in the ordinary way of debate and discussion. We decided then which of Mr. Clergue's terms we would accede to. and which we would not accede to ; and the terms which we acceded to were stated in the order which was finally adopted on the 9th of October- that we would take from him 25,000 tons of rails, for the first year definitely, at $32.60 a ton, and for the four years following at a price which would depend on the English market.


James Clancy: What was the date on which Mr. Clergue made his proposal, and was it put in writing ?


The MINISTER OF RAILWAYS AND CANALS.: The 8th of June.


Mr. ROBINSON (West Elgin).: Is it understood that the power company will get a bonus on the rails that are made, in addition to the price that yon are paying ?


The MINISTER OF RAILWAYS AND CANALS.: The subject of a bonus is not dealt with in this arrangement at all.


Jabel Robinson: Do they get the bonus which the government gives for steel rails ?


The MINISTER OF RAILWAYS AND CANALS.: There is no bonus on steel rails. There is a bonus on pig iron and on steel, and if they produce pig iron and steel, they will get a bonus on that.


Jabel Robinson: That will be $7 a ton more, which will bring it to about $41 a ton. We had better put it in that way before the country.


The MINISTER OF FINANCE.: That is hardly a fair way to put it. The bonus on iron and steel would be paid anyway, even if this contract were not made. There is no bonus specifically on steel rails. There is a bonus on iron and steel, and if this company make iron and steel, they will undoubtedly get a bonus on that irrespective of this contract.


Edmund Boyd Osler: Does the Minister of Railways tell this House seriously that on the Oth' of August he made a contract with a company for 25,000 tons of rails ?


The MINISTER OF RAILWAYS AND CANALS.: No, I did not say that.


Edmund Boyd Osler: What I want to get at is the date on which the minister fixed the price to be paid for these rails.


The MINISTER OF RAILWAYS AND CANALS.: The latter part of August.


Edmund Boyd Osler: Do you mean to say that this government made a verbal contract with the firm for 25,000 tons of rails at a price which the minister himself says was on a rising market ?


The MINISTER OF RAILWAYS AND CANALS.: I said it was not on a falling market.


Edmund Boyd Osler: The minister said it was not on a falling market, and that the majority of people thought it was a rising market. Does the minister mean to say that he made a contract for
25,000	tons, and that he has not a scratch of the pen to show who was the man with whom he made the contract or the price agreed upon ? He has nothing but his own recollection of what occurred, which is repeated in an order in council adopted about six weeks afterwards, or on the 9tli of October. You cannot make this House believe that the Department of Railways is run in a manner like that. It is asking us to swallow too much. We have accepted a great deal, but I cannot believe it possible that any minister will quietly say that he made a verbal contract for $4,000,000 prac-Mr. ROBINSON (West Elgin).
tically, and fixed the price for $750,000 without having a scratch of the pen or a memorandum of the discussion as to the price. He does not know the date on which that conversation took place. He knows nothing about it except from recollection, that some time in the month of August a figure was agreed upon for the pui'chase.
I cannot believe that is possible.


The MINISTER OF RAILWAYS AND CANALS.: I do not care very much whether the hon. gentleman believes it or not. I stated that in the latter part of August the members of this government, having this proposition of Mr. Clergue's before them


Edmund Boyd Osler: Is that proposition in writing ?


The MINISTER OF RAILWAYS AND CANALS.: Yes, that proposition was in writing.


Edmund Boyd Osler: As to the price on that date?


The MINISTER OF RAILWAYS AND CANALS.: When he made his proposition in June, it was at the rate of $32 per ton. Later Mr. Clergue wanted a little more ; but we came to the conclusion that $32.00 was the very outside we would allow him. That was about the price at which rails were ruling at that time. We debated the question, and decided among ourselves which of the conditions Mr. Clergue sought to impose we would accede to, and it is a matter perfectly immaterial to me whether the hon. gentleman believes that or not.


Edmund Boyd Osler: It is quite evident that it is immaterial to the hon. gentleman and to the government what the opposition think, but it is not immaterial to the opposition. They settled the price at $32.G0 ; and yet Mr. Clergue did not get a letter from the government fixing the price in August or September. If that is the way contracts are made by the government, we would like to know it.


Mr. FOWLER.: I understood the minister to say that the proposition of Mr. Clergue called for $32 a ton.


The MINISTER OF RAILWAYS AND CANALS.: That was the original proposition in June.


George William Fowler: Why was the increase of CO cents a ton added to that proposition ?


The MINISTER OF RAILWAYS AND CANALS.: There was a number of things which Mr. Clergue urged us to accede to in connection with that proposition. One was to take 50,000 tons. We would not do that; we only agreed to take 25,000 tons. We proposed that the rails should be delivered not only at Montreal, but at Levis. We wanted some other conditions imposed, and we agreed to allow him $32.G0 a ton on his [DOT] being willing to make this arrangement with us, and to establish this industry.


John Graham Haggart: Why did you give more than he asked ?


The MINISTER OF RAILWAYS AND CANALS.: I am telling the hon. gentleman. He wanted more than $32 originally. He pointed out that the price of rails was as high as it had been at any time previous to that period. We agreed to give them the $32.60, the price we were paying for other rails, and he being willing to accept an arrangement with us, and deliver the 25,000 tons at Levis instead of, or as well as, at Montreal.


Samuel Barker: Had the market price gone up between June and August ?


The MINISTER OF RAILWAYS AND CANALS.: I do not think so.


Samuel Barker: Yet he made a written proposition in June and you increased that in August.


Haughton Lennox: Are we to understand that there is no record whatever of any conversation or understanding between the Minister of Railways and Mr. Clergue as to the price of rails, which conversation the minister alleges took place in the latter part of August, except the record of that conversation which is in the order in council that was passed on the 9th of October ? Is that correct 1	.


The MINISTER OF RAILWAYS AND CANALS.: Yes, so far as my memory serves me.


Haughton Lennox: So that we have an order in council passed on the 9th of October, the day on which the writs for the election were issued, reciting the arrangement or understanding which took place in August previous, and we have nothing to verify that arrangement in any way except this order in council which, I assume, was dictated by the Minister of Railways on the 9th of October. In other words, the council got the facts from the Minister of Railways and passed an order in council, assuming that there was a previous arrangement made verbally by the Minister of Railways to the effect that $32.60 would be the price.


The MINISTER OF RAILWAYS AND CANALS.: That is not a statement at all of the facts.


Haughton Lennox: I would be glad to have the hon. gentleman's correct statement. The first portion of what I said, I understood, he admits is correct, namely, that there is no record of the verbal arrangement except what is contained in the order in council of the 9th of October, and that there is no way of verifying that verbal arrangement at present except the order In council. And I wish to follow that up by saying that there was no binding contract or obligation on the part of the government until the 9th of October, and that at that time-


The MINISTER OF RAILWAYS AND CANALS.: There was no binding contract then.


Haughton Lennox: There was no moral contract or obligation on the part of the government until the 9th of October, and at that time I presume we are justified in assuming that the government was well aware of the fact that the prices of steel rails had fallen from $35 to $30 on the 12th of September, and had fallen from $30 to $26 per ton before this contract was made, so that there was every indication to the government that the price of steel rails was then coming down.


The MINISTER OF FINANCE.: I would not assent to my hon. friend's statement that there was no moral obligation until the 9tli of October. The minister has stated that in the latter part of August- he has not been able to fix the exact date- the matter was discussed and agreed to in council. Hon. gentlemen who have been members of council know that it is a common practice to have some matter discussed and the policy thereon adopted in council, and then the minister in charge of the department interested gives expression to that policy by formulating a report which shall be the basis of an order in council. This matter having been agreed to in August, the Minister of Railways would naturally follow it up in due course with a report. It appears that this report was not formally made until September. That would go over to council and be deposited in a box with perhaps fifty or a hundred others and it might remain there a considerable time if no attention were called to it. I was not here in October, but in a distant part of the Dominion, hut knowing the practice of council, I can understand that that report made in September, and the order in council drafted thereon would remain in a pile with others until attention was drawn to it. But the moral obligation unquestionably existed in August if the minister, as he said, then made an agreement with Mr. Clergue and fixed the prices and conditions.


Edmund Boyd Osler: We want that letter down.


The MINISTER OF FINANCE.: There was no letter. The Minister of Railways says he told Mr. Clergue personally. If the minister in August came to an arrangement with Mr. Clergue and fixed the prices, the mere fact that he delayed several weeks making his report and the further fact that several weeks elapsed before the report was endorsed by an order in council, should not prejudice Mr. Clergue. The transaction was settled in August, and, therefore, we are dealing with it on the prices that prevailed in August.


Haughton Lennox: When the matter was discussed in council and a policy adopted, would there not be a record of that ?


The MINISTER OF FINANCE.: Not until the minister drew up a report and submitted it. It would be his duty to give expression to the conclusion reached by council in the form of a report. That report would then be translated into an order in council. But up to that moment there would be no record of the agreement except as between the Minister of Railways and Mr. Clergue.


Haughton Lennox: Would not that report be still available ?


The MINISTER OF FINANCE.: It has been read. The order in council is a mere echo of the report. Both documents have been laid before the House.
Hon. Mr. HAGGAItT. I would like the Minister of Railways to explain this. On the 23rd of April addressing this House he said :	.
But the difficulty about the contract was this : That it had never been executed and has not been executed to this day, and never came under my observation.
It appears that the contract was received here on April 17th, signed and executed, six days before he made that statement.


The MINISTER OF RAILWAYS AND CANALS.: I did not mean to convey that impression because I knew it might possibly have been signed. I certainly did not make the statement in that unqualified way. It had not been signed when I left here. It was not signed, so far as I knew, and until I made inquiry and found out it had come back, I did not know it had been returned. I do not think that the report correctly states what I said.


John Graham Haggart: The hon. gentleman went further. He said :
My deputy thought that the contract was made. I supposed, in the course of the numerous documents presented to me that I had executed it.
Surely his deputy was in a position to inform the hon. gentleman, because he had received, six days before the hon. gentleman made the statement he did, the contract signed by Mr. Clergue himself.


The MINISTER OF RAILWAYS AND CANALS.: I was explaining a previous statement in the quotation which the hon. gentleman read. My object was that the House might see that when I stated to this committee that there was no explicit contract for a term of five years, the arrangement was for a term of one year and we had an understanding to continue for a further term of four years. I made that statement relying upon my recollection and belief. And I was able to show that that was actually in accordance with the order in council that had been passed1 and in accordance with the facts. So, if what the hon. gentleman read appears to convey the impression that I said the contract which


Haughton Lennox: had been sent to Mr. Clergue had not been signed down to that day, it did not convey what I intended to convey, because I could not tell what had been done by Mr. Clergue or by the Lake Superior Power Company with the contract which had been sent to them, until it had been brought back and had been brought to my notice.


James Clancy: Now, the hon. minister stated earlier in this discussion that he had no letter or telegram from the Lake Superior Power Company nor had he seen Mr. Clergue. Is he prepared to state that he had not seen any of the members of the firm and discussed this matter with them since the discussion in this House ?


The MINISTER OF RAILWAYS AND CANALS.: I have not seen anybody who has any connection, as far as I know, with the Lake Superior Power Company. I have had no conversation with any such person on the subject. I am thoroughly confident in my own mind that the arrangement is satisfactory to Mr. Clergue. I know the understanding that we had with him, every member of the council knows that he was thoroughly satisfied to take the contract for a year, providing the order in council contained an assurance that we would continue it year after year. That was the distinct understanding in the various conversations he had with all the various members of the council-and I suppose there was hardly one member of the council he did not talk it over with. He met us in committee, a number together, and individually, and there wore many, many interviews before the matter was finally brought to a head. If you read the letter of the 8th of June, you will see that he wanted us to make some arrangement with regard to the tariff, and we had a good deal of discussion before we convinced him that we could not make any arrangement that would have any effect upon the tariff. Other features of this proposal were discussed between us-not between Mr. Clergue and myself alone, but between Mr. Clergue and every member of the council, certainly every active or leading member of it. And, when the hon. member for South Simcoe (Mr. Lennox) says there is no record whatever with regard to this understanding that was arrived at, you cannot have any better record than the order in council. In the latter part of August, it was solemnly debated in council, though informally, and solemnly decided, that Mr. Clergue should have this contract for $32.60 per ton for a year. And on the strength of that-and I presume other members of the council may have given him the same information as I gave him-we were prepared to have the necessary papers drawn up and to enter into a contract with him. He went away thoroughly satisfied with that, and we liave in this order in council the declaration by the members of

tlie government that that had taken place. What better record do you want than that'/


Thomas Simpson Sproule: I understood the hon. minister to say that one member of the council gave him this information. Would he object to giving the name of the member who arranged the final details. 1 understood that he got the information from others


The MINISTER OP RAILWAYS AND CANALS.: I think probably he did. But I am not going to mention names of other members of the council. I am pretty sure, however, that he must have got it from other members.


Mr. BLAIN.: May I ask the hon. gentleman on what date the Power Company attached their signature to the contract ?


The MINISTER OF RAILWAYS AND CANALS.: I cannot tell that. It would be very recently.


John Graham Haggart: Apparently it was on the 15th of April, I suppose-the date they sent the letter.


Richard Blain: The day they attached the signature to the contract, the secretary had notified them to return it without attaching the signature.


The MINISTER OP RAILWAYS AND CANALS.: My hon. friend knows that a telegram was sent on the 12th.


Richard Blain: The hon. minister notified them by telegraph to return the contract.


The MINISTER OP RAILWAYS AND CANALS.: The secretary of the department notified them-acting under instructions.


Richard Blain: On the 15th they attached their signatures to it and returned it. It seems rather a strange thing that they did not return it without signing it.


The MINISTER OP RAILWAYS AND CANALS.: Strange or not, that is the fact. Now I would like to make another statement. I have shown the prices for rails which ruled in the United States on these dates


James Clancy: Before the hon. gentleman makes that statement, I would like to know if the committee is to understand that the essence of the whole arrangement with the Lake Superior Power Company was this : For 25,000 tons of rails for one year, that is 1901, at $32.60, and that for each and every year of the four years thereafter, there would be a contract made with the company for 25,000 tons each year to be governed by the price in England at the time the contract was made ; and that the arrangement for the following four years was as much of a contract, I mean, so far as an understanding was concerned, was as much of an understanding, as that there should be a contract for one year.


The MINISTER OP RAILWAYS AND CANALS.: Yes, every bit.


James Clancy: That is, that the hon. gentleman had agreed without the slightest reserve to take 125,000 tons of steel rails from the Lake Superior Power Company covering that period, and the only difference between that and making a contract at that time was that the four years contract was to be divided as there agreed, and prices fixed at the different periods. Then the committee is in possession of this fact, that the hon. gentleman was prepared to fulfil his word, and that he had bound us so far as his word was given, and it only required the form of writing to bind the Dominion of Canada hand and foot to a contract for
125,000	tons with the Lake Superior Power Company.


The MINISTER OP RAILWAYS AND CANALS.: Yes, we would hold ourselves morally bound-


Edmund Boyd Osler: 
John Graham Haggart: As to the prices will the hon. gentleman please explain Mr. Clergue's letter to him, in which he says :
American steel rails can be bad at $35 per ton free on board. 1 have myself purchased during the present season 85-pound steel rails for about

100 miles of track, and need an additional quantity. I have asked quotations from the principal American manufacturers, pointing out the fact that these rails were for export from the United States. You will note from the inclosed original communication from the Carnegie Steel Company works

I wish the hon. gentleman would bring that down, and that would fix the price of the rails.
-that these the largest manufacturers in the world, offer to fill our order for use in Canada at $32 per ton.
This the hon. gentleman had in his possession. The quotation, as he says, was $37 per ton in June last, while these parties who made the proposition to him were buying them at $32.


The MINISTER OF RAILWAYS AND CANALS.: Well, I have said over and over again, that while prices in the United States held firm, as the quotations here show, there has always been a willingness to make a cut in order to capture the Canadian market, and I presume that what Mr. Clergue refers to here is just such a cut as is ,usual in that trade, not in rails alone, but Jin almost every branch of business. You can go and ask the Commissioner of Customs whether goods that are intended for export to Canada are not bought by people to pass through the customs house at prices at which they cannot be bought for consumption in the United States. The thing is constantly occurring, they do it in regard to rails as well as anything else. But does any one suggest that if it is im-'portant to encourage the establishment of a rail industry in Canada, we should allow ourselves to be stopped in the inception of such an enterprise because the United States manufacturers will cut below their market prices ?


Mr. INGRAM.: Is it because the Americans make a cut in steel rails that the order in council specifies that the prices iu Great Britain should control the price ?


The MINISTER OF RAILWAYS AND CANALS.: Yes, because we could never come to any agreement at all as to the future, nor agree to any mode of settling the question which would be fair to all parties unless we selected some market, and the English market is the only market we would [DOT]care to select.


Edmund Boyd Osler: I have just picked up a Bill *here, I do not know whose It Is or where 'it came from, which is worth calling attention to. It speaks of an Act respecting aid to Canadian railways passed by the Ontario legislature and read the third time on the 11th of April. The Ontario government have the same idea of fostering the steel rail industry in this country, but they evidently have not been in communication with the Minister of Railways, because they do not see the tremendous importance of fail-Mr. HAGGART.
ing to take advantage of a cut in American rails. This is a curious doctrine to come from a man who is representing a free trade side of the House, that he is not to buy in the cheapest market. However, the Ontario government put in a clause saying that the rails for any of these railways bonused by the government are to be of Canadian make, provided they are at the current price upon the open market in Great Britain or in the United States for rails of similar make and quality, the current freight rate added. That is the encouragement the Ontario government are giving, but this free trade government throw to the winds all idea of buying in a cheap market; they say, We will not have a cheap thing, we will have the dearest thing that we can get. The higher the better, evidently, because the Minister of Railways, in the papers he brings down, shows that Mr. Clergue offers to supply these rails at $32 a ton. The minister is asked why he gives $32.60. Oh ! he says, Mr. Clergue thought he had better have a little more. And the minister, knowing the election was just coming on, said : Well, 60 cents isn't much, it is only $15,000 altogether, that is a bagatelle, so we will call it $32.60.


The MINISTER OF RAILWAYS AND CANALS.: we should fix for the first year the price that is to be paid ; take these quotations in either country, if you will, and ask yourselves whether you would not consider that the price we fix would be a fair price to agree upon, even if we did not have behind the undertaking, the desire and object of securing the establishment of this industry. The price would be a fair price.


James Clancy: No.


The MINISTER OF RAILWAYS AND CANALS.: I maintain it would. The hon. gentleman (Mir. Clancy) shakes has head.


James Clancy: I tell the hon. gentleman that has concluded his arrangement without a shadow of competition. In the first place, the proposition of a former parliament was to give encouragement to the manufacture of steel rails by way of a bonus that amounts, as my hon. friend from West Elgin (Mr. Robinson) said, to $6 a ton.


Thomas Simpson Sproule: $7 a ton.


James Clancy: $7 a ton, including the grant of the province of Ontario. I am speaking of the encouragement given here. Now, this is separate and distinct from any thing that you may afterwards do in regard to steel rails. When parliament has given that encouragement it does not mean encouragement to a single industry in Canada. but it means encouragement to all. It is the duty of the government to buy their steel rails from Mr. Clergue or from anybody else as cheaply as they can, when the price is submitted to the test of competition. Surely the hon. gentleman does not pretend to say that he is obliged, after giving this ordinary encouragement to the Lake Superior Power Company to contract, as against every person else, after giving them the whole field of Canada as far as government railways are concerned, to give them high prices. The hon. gentleman evidently selected the very highest price he could get, because he stated here last night, during the debate, that his contract was not made when there was a falling market. He went so far as to say that he was then within
0	shillings of the highest price that had been paid for rails in England. Yet, he says this is a fair price. Let us see what means the hon. gentleman took to test the price on the open market in England. The hon. gentleman inquires of a firm in England what they are selling steel rails for. The very apt question would be: Do you want to buy ? No,
1	do not want to buy, I merely want to find out in order that I shall be able to fix the price on this side of the Atlantic. All that the hon. gentleman would have to do in future would be, as he has done in this case in the most studied manner, that is to select the highest price he can find in order to make a contract with Mr. Clergue. Mr. Clergue says : I am willing to take $32 a
ton for these rails, but, the minister persuades Mr. Clergue to make it 60 cents a ton more, and yet the hon. gentleman gets up and asks the committee to assent to the proposition, that this is a fair and reasonable amount for the department to pay. I never heard a bolder proposition made in or outside parliament.


Mr. BENNETT.: In the event of any further sales in subsequent years of rails that may be offered in Great Britain not being up to the analysis, or exactly the same quality, would the hon. minister then feel that he was not called upon by the comparison of prices to regulate Mr. Clergue's price, because the words in the contract are 'of the same quality'? Will those words ' same quality,' be incorporated in the contract that you propose to substitute in place of this one ?


The MINISTER OF RAILWAYS AND CANALS.: Certainly, we will have to get a good quality of steel rails. We certainly would not pay the same price for an inferior quality of rails that we would pay for a superior quality. We will have to get a quality of rail up to the standard that will be prescribed.


William Humphrey Bennett: 

any one wlao lias followed the question at all knows that is the ease. Therefore, we did not attach much Importance to this particular feature, as I stated at the outset.
I do not anticipate that until the experiments have made greater progress than they have yet made, that there will be a satisfactory steel rail made which will contain nickel! I know that recent information which has been contained in late publications is to the effect that it has not yet been accomplished. I am sure that Mr. Clergue has not accomplished it, so that there will be no question in my mind as to the difference in value. If Mr. Clergue is able to produce and to furnish us with a fiist-class qualify of steel rail which will contain nickel, if Mr. Clergue can produce a better steel rail than the steel rails produced in England, he will do so without having any reasonable ground upon which to expect any higher price from us.


William Humphrey Bennett: In the event of an analysis showing that there is a proportionate part, whether it is 2 or 4 per cent of nickel, in the rails produced by Mr. Oleigue, and then, in the further event ot the contract which will have to be substituted for this one incorporating these same words,
' game quality of rails,' what will happen then ? If Mr. Clergue says: My rails contain a certain proportion of nickel and the rails that you are subjecting me to compete against in Great Britain do not, then the minister will be bound by the contract if this term goes into the new contract.


The MINISTER OF RAILWAYS AND CANALS.: No, I do not think so.


Mr BENNETT.: It seems to me that if the price of steel rails is enhanced by having a proportion of nickel in them, and it there are no nickel-steel rails in Great Britain there can be no competition, because they will not be of the same class.


The MINISTER OF RAILWAYS AND CANALS.: If he gives us a better rail that cannot affect the price.


William Humphrey Bennett: There must be some legal meaning attached to the words the same quality.' If you bind yourselves to these words in a contract, you cannot substitute an inferior quality, and it is admitted that the nickel rail is superior. Will these words be incorporated in the new agreement which, I understand, is to be prepared .


The MINISTER OF RAILWAYS AND CANALS.: We have not drafted the agreement yet. I cannot say what we will put into it, but we will fully safeguard the public interests.


William Humphrey Bennett: What about Mr. Cler-gne's interests ?


The MINISTER OF RAILWAYS AND CANALS.: He will come after the public interests.
lion. Mr. HAGGART. On the 10th of April last, the minister declared in the House that the ores in the neighbourhood of Michipicoten contained 2 or 3 per cent of nickel.


The MINISTER OF RAILWAYS AND CANALS.: That was what I understood.


John Graham Haggart: Well, it was news to every one in this part of the country. The minister stated that we would get a superior kind of rail from Mr. Clergue, but where the minister got that information I do not know. Mr. Clergue says no such tiling in his proposition. He says that the ores are to be taken from the north shore of Lake Superior, that he will make that ore into steel, but he does not say one word about nickel. He says he is going to purchase Sudbury nickel to incorporate in the steel, and if he does that he hopes the minister will take a certain proportion of these for grades and other parts of the road, but he will require $10 more a ton than for the other rail. The minister concealed-I will not say wilfully-but he seemed to be entirely ignorant of the communication he received from Mr. Clergue. Mr. Clergue does not say that in the rails he intends to furnish to the minister there will be a particle of nickel. What he says is that the industry of making rails in which nickel is incorporated is to be the future industry in that portion of the country, and on account of the superiority of these rails there will be an immense demand for them, but if the minister takes them it is on the condition that he will pay $10 more a ton for them. The minister tries to make the House and the country believe that he has made a bargain for a less sum of money than the market price at the time he made the bargain. But, why does he quote prices in England in June, July, September and October, when he has in his possession a letter from the Carnegie Steel Works, offering the same rails to Mr. Clergue for a less price than the minister pays for them ?


The MINISTER OF RAILWAYS AND CANALS.: You are referring to the letter of June 8.


John Graham Haggart: I read it before, and I will read it again :
The present market quotation for steel rails in the United States is $37 a ton, but within a week it has been intimated that by private negotiations for a large contract American steel rails can be had for $35 a ton. I have myself purchased during the present season 85-pound steel rails for about 100 miles of track, and needing an additional quantity I have asked quotations from the principal American manufacturers pointing out the fact that these rails were for export from the United States. You will note from the inclosed communication from the Carnegie Steel Company

I have asked the minister to bring down that communication.


Mr. BLAIR.: -that these, largest manufacturers in the world offered to fill our order for use In Canada at $32 a ton, a reduction of $5 below the published quotation.
The inference to be drawn from that is, that you can make an arrangement by private agreement in the United States to get these rails for exportation to Canada for $5 a ton less than the quoted market price. There are several propositions made by Mr. Clergue, and in reference to nickel, he says :
To be sent back to Canada in the form of nickel-steel in competition with Canada's manufactures is so gross an injustice that any statesman regardful of the interests of his country should feel justified in taking the most radical steps to remedy the injustice. But the method proposed is in no sense radical and cannot offend the judgment of the most radical free trader. It simply offers the United States an opportunity for an equal and fair exchange in the commodity concerned. But such nickel-steel rails as the government may require for curves we will furnish at an advance of $10 per ton over the price of ordinary steel.
It, therefore, will be seen, if the minister gets the nickel rails, he will have to pay $10 extra for them. The minister says he has not entered Into a contract yet. Is he going to make his contract in the words of the order in council of the 9th of October last ?


The MINISTER OF RAILWAYS AND CANALS.: In accordance with that.


John Graham Haggart: We have at least the right to get from the minister a copy of the proposed contract which he intends to enter into with Mr. Clergue before we vote this sum of nearly $4,000,000. We should know what terms he intends to offer in that contract. If the terms are confined to the ipsissima verba of the order in council, surely the minister can to-morrow produce the proposed contract which he intends to enter into with Mr. Clergue.


Edmund Boyd Osler: There is very grave doubt as to whether Mr. Clergue will be able to make delivery of this year's rails, and I would ask the minister if the contract is to be moved on for one year ? Is the price that is fixed for this year's rails to govern the price of the first delivery, and then the contract to proceed as contemplated for the following four years ?


The MINISTER OF RAILWAYS AND CANALS.: The question as to whether the contract will be moved on is a question perhaps to be determined by the Governor in Council. It has not yet reached the stage at which it became necessary to pass upon that question, and I am not in a position to say what the conclusion of council will be. We will, however, keep steadily in our minds the importance of encouraging the establishment of this industry. We will take no step that will tend to defeat or destroy that object; and in doing so we will 1184
take care that the public interest shall be fully safeguarded, and that we keep ourselves within the terms of the order in council that has been passed.


George William Fowler: Was the minister aware at the time this contract was made that the Dominion Iron and Steel Company of Sydney proposed to establish a plant for the purpose of manufacturing steel rails 7


The MINISTER OF RAILWAYS AND CANALS.: I can state to the hon. gentleman that I not only was not aware of it, but I am satisfied in my own mind that the Dominion Iron and Steel Company had not it in contemplation at that time, either in October or in August. I am absolutely certain that they had not spoken of it in the month of August


James Clancy: The hon. gentleman has stated that the government would take good care, in the event of the Lake Superior Power Company being unable to furnish the rails as provided under the contract, that nothing would be done to destroy that industry. Does he mean the committee to understand that if that company had to accept the current price for rails, that would destroy the industry ?


The MINISTER OF RAILWAYS AND CANALS.: If it becomes necessary to revise the arrangement and to extend it, then the question of price would have to be a matter for consideration. The government are not going to pay the Lake Superior Power Company more than a fair and proper price according to the state of the market. If the supply of rails is not made this year as contracted for, but is postponed by the action of the government or by the action of the company, the price would be a matter subject to reconsideration and revision. I have no hesitation in saying that.


George William Fowler: Will the price at which the Dominion Iron and Steel Company can produce these rails have any effect on the price which the government will pay the Clergue Company in the succeeding four years ?


The MINISTER OF RAILWAYS AND CANALS.: The arrangement is based on the price of rails in England which is a reasonably steady market, and a market which will give us a guarantee that we shall not pay more than a fair and proper price. I am not prepared to say what elements would enter into the consideration of the Governor in Council in settling the price. If the Dominion Steel Company were manufacturing rails,' I am not sure but that might be a very proper matter to consider. I do not want, however, to make any statement on that subject at this time.


Robert Laird Borden: The hon. gentleman has not yet answered my hon. friend from South Lanark (Hon. Mr. Hag-


The MINISTER OF RAILWAYS AND CANALS.: I have stated over and over again that the contract to be drawn up will give effect to and be in accordance with the order in council.


Robert Laird Borden: I understand that, but my hon. friend has brought down a contract which he told the House was in terms of the order in council, and after a considerable amount of criticism


The MINISTER OF RAILWAYS AND CANALS.: The hon. member does not want that all gone over again, does he ? I stated how it came here. Surely, a little fair-play is not an unreasonable expectation.


Robert Laird Borden: The hon. gentleman is speaking a little too hurriedly. I was about to state that criticism may show that the contract which the hon. gentleman will eventually draw up will not be in terms of the order in council.


The MINISTER OF RAILWAYS AND CANALS.: That is a matter which we as a government would be responsible to parliament and the country for.


Robert Laird Borden: And it is a matter on -which the opposition has a right to criticise the government if it is not drawn in terms of the order in council. I pointed out yesterday to the hon. gentleman that the present practice in England is that all contracts of this kind should be made with the stipulation that they should not be binding until parliament has approved of them. The hon. gentleman made a contract in October last, but the formal contract has not yet been drawn up, and he asks the House to vote the supply for that contract. The House, I think, is reasonably entitled to see the form of the contract at least, under the peculiar circumstances ot this case. I expressed some doubt yesterday as to whether we had all the facts. It turns out now that we had not all the facts yesterday, because the hon. gentleman certainly led the House to believe yesterday that this contract had not been executed by the company at all.


The MINISTER OF RAILWAYS AND CANALS.: That is not the statement I intended to make to the committee, because the contract was sent some time ago.


Robert Laird Borden: I want to show the hon. gentleman how easily misapprehensions arise. This contract has been lying in the hon. gentleman's department executed by the company sipce the 17th day of this month. Yet the hon. gentleman told us yesterday : * It has not been executed, and down to this moment it has not been executed.'


Robert Laird Borden: 


The MINISTER OF RAILWAYS AND CANALS.: I did not mean to state that.


Robert Laird Borden: Well, I want to point out to the hon. gentleman how easy it is for misapprehensions to arise, because when I referred later on in the debate to what might happen if the company should execute the contract, the hon. gentleman did not do me the favour of mentioning then that the contract had been executed by the company. Under these circumstances, I think we are not asking an unreasonable thing in demanding that this contract in the terms in which the government intend to enter into it, shall be laid on the Table of the House. I shall be satisfied if that will be done before this item comes up on concurrence.


The PRIME MINISTER.: The hon. gentleman knows that if the contract was drawn in a manner which is not in accord with the order in council, it would be a clerical error, and we are bound to have tlie contract drawn exactly in the terms of the order in council.


Robert Laird Borden: But what is the objection ?


The PRIME MINISTER.: There is no objection.


The MINISTER OF RAILWAYS AND CANALS.: It is not usual to bring down a draft contract.


Robert Laird Borden: I do not desire to be unreasonable, but it can not be a matter involving any great difficulty to draw this contract in accord with the terms of the order in council. All we ask is that before concurrence it should be laid on the Table of the House.


John Graham Haggart: There is an item in the supplementary estimates and it could be laid on the Table when that item is voted.


The MINISTER OF RAILWAYS AND OANALS.: I have to ask for a further amount, in addition to the sum now being voted, for this very purpose-$160,000 or $170,000.


Robert Laird Borden: Perhaps the hon. gentleman will accept the suggestion of my hon. colleague (Hon. Mr. Haggart).


The MINISTER OF RAILWAYS AND CANALS.: I think I can manage it by that time.


Thomas Simpson Sproule: Has the minister decided whether to have the rails delivered at Montreal or Lfivis.


The MINISTER OF RAILWAYS AND CANALS.: My judgment is that LSvis would be the point of delivery.
Resolution reported.
On motion of the Prime Minister, House adjourned at 12.55 a.m., Thursday.


25, 1901 HOUSE OE COMMONS.
[Stage Direction]
Thursday, April 25, 1901.