The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1895-01-30
WON BY CATHOLICS
DECISION IN THE FAMOUS MANITOBA
SCHOOL CASE.
British Lords of Appeal Decide that
1t May Be Reopened-Long and
Costly Litigation.


Lord MacNaghten, Lord of Appeal in Orli-
nary and Lord Shand. member of the ju-
dietary committee of the Privy Council, the
Lord Chancellor, Baron Herschell. to-day,
delivered judgment allowing the appeal
from the decision of the Supreme Court of
Canada, in the case of Brophy and others
against the Attorney general of Manitoba,
rendered on Feb. 20, 1894, and known
the Manitoba school case" No costs were
allowed. Mr. Edward Blake, NJ. p. leader
of the Liberal party from 1880 to 1891, for
merly Premier of Ottawa, and Mr.. Ewart,
of the Canadian bar, were counsel for the
appellants. Mr.. Cozens Hardie, Q. c.; Mr..
Haldane, Q. c., and Mr.. Bray appeared for
the respondent.
In their Lordshps' opinion it is the twen-
ty-second section of the Manitoba act which
has TO be construed in the present case,
though it is. of course, legitimate to con-
slider the terms of the earlier act and take
advantage of any assistance they afford in
the construction of the enactments with
which they so closely correspond and which
have been substituted for them Before en-
tering into critical examination of this
important section of the Manitoba act it will
be convenient to state the circumstances
under which the act was passed and also
its exact scope. 1t is the decision of this
board, in the case of Barrett vs. the CITY
of Winnipeg, which seems to have given
rise to some Misrepresentation. In 1867 the
union OF the provinces of Canada, Nova
Scotia and New Brunswick took place
Among the obstacles which had to be over
come IN order to bring about that union
none perhaps, presented a greater difficulty
tnan the differences of opinion which ex-
i I with regard to the question of educa-
tion IL mad been the subject of much con-
troversy in Upper and Lower Canada In
Upper Canada a general system of unde-
nomnational education has been estab-
hshed, but with a provision for separate
schools to supply the wants of the Catholic
sanaoa.anes Oh the province The second sub
America act. extends all the powers, priv
ileges and duties which were then, by law,
conferred and imposed in Upper Canada on
the separate schools and school trustees of
the Roman Catholic inhabitants of the prov
ince to the dissentient schools of the Prot
Quebec. There can be nc doubt that the
views of the Roman Catholic inhabitants
cation were shared by the members of the
same community in the territory which
afterwards became the province of Mani
toba. They regarded 1t essential that the
education of their children should be in ac-
cord with the teaching of their church and
they considered that such an education
could not be obtained in public schools de-
signed for all the members of the commune
ty alike, whatever their creed, and that it
could only be secured in schools conducted
under the influences and guidance of the
authorities of their church. At the time
part of the Dominion of Canada, the Roman
Catholic and Protestant popuia tions in the
province were about equal In number, and
prior to that time there did not exist in
the territory then incorporated any public
system of education. The several religious
denominations had established such schools
as they thought fit and maintained them
by means of funds voluntarily contributed
by the members of their own communion.
terms on which Manitoba was to become a
province of the Dominion were matter of
the inhabitants of Manitoba and the Do
minion government. The terms agreed on,
so far education is concerned, must be
taken embodied in the twenty-second
section of the act of 1870.
THE LEGISLATURE NOT SUPREME. 1
Their Lordships do not think that any
thing is to be gained by an inquiry as to
how far the provisions of this section
placed the Province of Manitoba in a diff
ferent position from other provinces or
whether it was one more or less advantage
Gus. There can be presumption as to
the extent to which the variation was in
tended. This only be determined by
constituting the words of the section ac-
cording to their natural Specification. In
their decision, the privy councillors say
1T has been learned that the chief justice
of the Supreme Court was much impressed
by the consideration that there is in
herent right in the Legislature to repeal
its own legislative acts, and every presump-
ton must be made in favor of the consti-
tutional right of legislature. to repeal
law which it has itself enacted
Their Lordships are unable to concur in
the view that there is any presumption
which ought to influence the mind one way
or the other. 1t must be remembered that
the provincial Legislature is not in all re-
spects supreme within the province. Its
legislative power is strictly limited and it
deal only with matters declared to be
within its cognizance by the British North
America act as varied by the Manitoba act.
a tV
rests with the Dominion Parliament.
In relation a to the subjects specified in
not falling within those set forth in
Section 81, the exclusive power of the pro-
yincial Legislature may be sad to be aoso-
lutte. But this is not so as regards educa-
ton, which is separately dealt with and has
Its own code, both in the British North
America act and in the Manitoba act If up
upon natural construction of the language
used 1t should appear that an appeal was
permitted under circumstances involving
Legislature to repeal its own enactments,
their Lordships see no justification for e
leaning against that construction. Nor do
they think it matters any difference whsther
the fetter is imposed by express words
by necessary implication.
The question to be determined is whether
right privilege which the Roman Cath
Ollie minority previously enjoyed has been
affected by the legislation of 1890. Their
Lordships are unable to see how this ques-
ton can receive any but an affirmative an
swer Contrast the position of the Roman
Catholics prior to and subsequent to the
acts from which they appeal Before these
passed into law there existed denomina-
tional schools of which the control and
management were in the hands of the Ro-
man Catholics, who could select the books
to be used and determine the character
of the religious teaching. These schools
received their proportionate share of the
money contributed for school purposes out
of the general taxation of the province.
and the money raised for these purposes
by local assessment was, SO far as it fell on
Catholics, applied only towards the sup
port of CATHOLIC schools.
What is the position of the Roman Cath
Ole minority under the acts of 1890? The
schools of their own denomination, con-
Quoted according to their views. will re-
ceve no aid from the state. They must
depend entire for their support upon the
contributions of the Roman Catholic COM
munity, while the taxes out. of which the
state aid is granted 10 the schools provided
for by the statute fall alike upon Catholic
and Protestant. Moreover, While the Cath
ollie inhabitants remain liable to local as
sessment for school purposes, the proceeds
of the assessment no longer destined
any extent for the support of the Catholic
schools, but afford the means of maintain
ing schools which they regard as no more
suitable for the education of Catholic chill
dren than If they were of a distinctively
Protestant character. In view of this COM
parison it does not seem possible to say
that the rights and privileges of the Ro-
man Catholic minority in relation 70 edu-
cd ,,rifNr ~ tc nor