The reasonableness of this rule is illustrated by the present case. The members of the city council are sworn to discharge their duty according to the best of their ju lgment and ability," and give their votes in council under their oath of office. A majority of the council have, by their votes, given under oath, declared in effect, that they see fit to refuse to confirm the certificate. That certificate cannot now be confirmed, unless a majority of the same council, by their votes, under oath, as already mentioned, declare that they see fit to do that which. they have already declared they see fit not to do. It is quite possible, perhaps even probable, that some of the members of the council may, upon further consideration, change their opinion as to the propriety of attempting, in the execution of the present law, to suppress all taverns in the parish of St. Roch; but the issuing of a writ of mandamus for the purpose of compelling them to do so, would manifestly be most unreasonable. If the question which has been submitted to the council could be submitted to us, we, in the exercise of our judgment, might deem it to be our duty to say, that we see fit to confirm the certificate of the applicant ; but it does not therefore follow that we ought to attempt to compel the city council, in the exercise of their judgment, and upon their oath, to say that they see fit to confirm a certificate which, according to their judgment, ought not to be confirmed.

In order to shew to what extent a public functionary, invested with a discretionary power, is free from control in the exercise of that power, I will refer to the ruling of the judges in England in cases in which the commissioners for bankrupts had refused to sign the bankrupt's certificate, and read the following passage from Lord Henley's Digest of the Bankrupt law, p. 399" The discretion of the commissioners in refusing their signatures to the bankrupt's certificate, was most elaborately discussed in the case Ex parte King, 7 Vesey, 417, by Lord Eldon, in which, and upon subsequent applications by the same bankrupt (13 Vesey, 181; 15 Vesey, 126), it was determined, in accordance with previous dictu, that the judgment of the commissioners is not liable to the control of the Lord chancellor; that they cannot honestly refuse their signatures unless, under the sanction of the oath which they have taken, they are satisfied that they ought not to sign; that the Lord chancellor may recommend them to review their judgment; but having reviewed all the circumstances of the case, he cannot, either by order or intimation, tell them, having taken that oath, that they are to act in any manner that is not consistent with their own conscientious judgment. The Petitioner in this case afterwards applied to the Court of King's Bench for a mandamus to the commissioners to certify, which was

refused." I will also refer to Deacon on bankruptcy; vol. 1, p. 573, and to Greenleaf on Ev., nos 73 and 431. (1)

Having expressed my opinion upon the principal questions in this cause, namely, as to the discretionary power of the council, and as to our authority to control them in the exercise of that power, I shall now attend to the objections which were urged against the form of proceeding adopted by the council, when they determined upon the application in question. It was contended, that at least there ought to have been due deliberation on the part of the council before they refused to confirm the certificate of the applicant; and that there could not have been such deliberation on each certificate, as all the applications from persons resident in the St. Roch ward were rejected collectively. In answer to this objection, I would observe that it was not illegal to vote at one and the same time upon all the application which were liable to the same objection; that objection being, of itself, deemed insuperable by a majority of the members of the council. Had each application from St. Roch been determined by a separate vote, the result would doubtless have been the same; and upon a mere matter of form we ought not to attempt to dictate to the council.

For these reasons, I am of opinion that the writ of mandamus prayed for must be refused.

DUVAL, J.: The applicetion for a mandamus is made to the judges of the Superior Court, as the peculiar superintendent of all inferior jurisdictions and authorities, to compel the perfomance of a public duty imposed upon the mayor and councillors of the city of Quebec, by a provincial statute.

It must be borne in mind that we do not sit as a court of appelate jurisdiction, to revise the decision of the mayor and councillors, and bound to set aside that decision, should it not coincide with our own views on the subject; with the bien jugé we have nothing to do, at present, it is altogether a question of jurisdiction; are the mayor and councillors invested by law with a discretionary power in the matter, and, if they are, have we any right to interfere, and to control them in the exercise of that discretionary power?

The authority of the mayor and councillors is given to them by the 14th and 15th Vict., ch. C, secs. 5 and 6. But before adverting more particularly to the power conferred by this statute, it is proper to see what power was previously vested, both in England and in Lower Canada, in justices of the peace to whom application for tavern licenses were made.

In a case referred to in Petersdorff, verbo mandamus, p. 471,

(1) Tapping, on mandamus, p. 13; 4 Ad. and El., p. 297 (judgment of Williams, J.); Selwyn's Nisi Prius, p. 1104; 1 Maule and Selwyn, 195.

the following was the language used in pronouncing the judgment of the court." It has been truly said, that the power of licensing public houses is so absolutely in the discretion of the justices of the peace, that the court will never award a mandamus for the licensing of a public house." In the 1st Vol. of Dickinson, justice of the peace, p. 26, a work certainly of authority on such a question as the present, we find reported the words used by Lord Mansfield: "This court has no power or claim to review the reasons of justices of the peace, upon which they form their judgments in granting licenses, by way of apppeal from them, or overruling the discretion intrusted to them." In Archbold's practise of the crown office, it is laid down as a general rule, that, where a discretionary power is given to justices by statute, the Court of Queen's Bench will not interfere by mandamus to oblige them to exercise that discretion in any particular way, or to review the manner in which they have exercised it. In a comparatively late case, 14 East, 397, Lord Ellenborough, in granting a mandamus, said: We do not, however, by granting the writ, at all interfere with the exercise of that discretion which the Legislature meant to confide to the justices in sessions; we only say that they have a discretion to exercise, and that they must hear the application; but, having heard it, it rests entirely with them to act upon it as they think fit." It is needless to refer to other decisions, the latest will be found to confirm the principle above laid down. In this country, the late chief justice Sewell, presiding in the Court of King's Bench for the District of Quebec, acted on the same principle of law, and refused to interfere by mandamus.

Now, we are to inquire if the same discretionary power is vested in the mayor and councillors? It would, indeed, be strange to find the legislature refusing to this body properly called a "local legislature," that discretionary power in the arrangement of its local affairs, which has always before been granted to magistrates appointed by the crown. There is, however, no room for doubt; for the 6th clause of the 14 & 15 Vict., ch. C, gives the power in express terms. In my opinion, the 5th clause, rightly interpreted, is equally conclusive on this point. The legislative power of the corporation over this subject has been delegated to it for the good of the city; if that power is not exercised with sound discretion, the remedy must be found in the exercise of the elective franchise of the citizens.

In the present instance, we find the corporation had appointed a committee to report on the subject, the committee made a report; a number of citizens presented a petition, and then the whole was taken into consideration, when it was decided

that no tavern license ought to be granted for a particular ward as the petitioners wished to keep no tavern in this ward, the council had not to inquire into the particular fitness or qualification of the Applicant as a tavernkeeper; he was told there would be no tavern allowed in the ward.

It has been argued that if the mayor and councillors have the power to reject a certificate for a tavern license in any one ward of the city, they have a right to prevent any tavern being opened in the city. The latter, in my opinion, is not a necessary consequence. But as, in this case, the question does not arise, I pronounce no opinion. When such a power is exercised, it will be the duty of the judges to determine whether the power has or has not been granted, and to take care that no municipal body legislates for any part of this District, under the specious pretext of carrying into execution a law of the land.

Before I close my observations, I will advert to a very strange notion entertained by some persons, and that is, that the party making the application is entitled to the writ at this stage of the proceedings, whatever may be our opinion hereafter. This opinion is without any foundation in law. In England, the court, in the first instance, grants a rule, calling upon the party to shew cause why a mandamus should not issue. If the party thus called upon, can shew good cause, it is needless to say, the writ is refused (1); even on an application for a habeas corpus, when the subject has been deprived of his liberty, the writ is refused, if the judge is of opinion that the party applying ought not to be discharged from custody or admitted to bail. Our own Provincial Statute, 12 Vict., chap. XLI, does not make it imperative on the judge to order the writ to issue in the first instance.

We must therefore refuse the writ. But I wish it to be distinctly understood, that our decision is confined to the case now before us, in which, in the exercise of a discretionary power, the mayor and councillors have decided there ought to be no tavern in a particular part of the city. We pronounce no opinion on the right of the mayor and councillors to decide that there shall be no tavern within the limits of the city, nor are we called upon to express any opinion on the wisdom or expediency of the resolution adopted by the council.

The said judges, considering that, by law, the mayor and councillors of the city of Quebec are invested with the power of confirming or rejecting, as in their discretion they may deem fit, certificates obtained for the purpose of procuring a license to keep a house of public entertainment; and, consi

(1) Tapping, on mandamus, p. 15.

dering further that the judges of the Superior Court have no power to review the reasons upon which the mayor and councillors have formed their judgment, in granting or rejecting any such certificate, and cannot control the said mayor and councillors in the exercise of the discretionary power vested in them by law to this effect, do reject the application of the said Patrick Lawlor, for a writ of mandamus. (2 D. T. B. C., p. 274.)

Ross, DUNBAR, for Petitioner.

STUART, A., Counsel.

LÉGARÉ, for Mayor and Councillors.
TESSIER, Counsel.

PAROISSE.—DECRET CANONIQUE.—CERTIORARI.

COUR SUPÉRIEURE, Québec, 7 avril 1852.

Présents: BOWEN, Juge en Chef, et DUVAL, Juge.

Ex parte GUAY, Requérant pour Certiorari.

Jugé: Que le décret canonique de Sa Grâce l'Archevêque de Québec érigeant une paroisse, n'est pas une procédure civile qui puisse être revisée par la Cour Supérieure au moyen d'un writ de certiorari; que ce n'est qu'une procédure purement eccl 'siastique, hors de la juridic tion de cette cour, tant qu'il n'y a point de procédures pour obtenir la ratification civile de tel décret.

L'Archevêque catholique de Québec, sur requête de certains francs-tenanciers de la paroisse de la Pointe Lévy, avait, par décret canonique, en date du 3 novembre 1851, ordonné le démembrement de cette paroisse, et la formation d'une nouvelle division sous l'invocation de Notre Dame de la Victoire, nonobstant l'opposition d'une autre partie des francs-tenanciers. Ces derniers, se croyant lésés par ce décret canonique, s'adressèrent, par l'entremise du Réquérant, Guay, à la Cour Supérieure, pour demander l'émanation d'un writ de certiorari, enjoignant à l'Archevêque de transmettre devant la cour le décret canonique, ainsi que tous les ordres et mandements, faits et donnés par Sa Grâce, et aussi les requêtes, contrerequêtes, et oppositions ayant rapport à la subdivision de la paroisse et à la formation et érection d'une nouvelle paroisse. Les opposants pour leur contre-requête avaient allégué: 1. que la minorité des francs-tenanciers de la paroisse de la Pointe Lévy avait demandé ce démembrement, et que la majorité s'y était opposée par contre-requête à Sa Grâce; 2. que le lieu choisi pour la nouvelle église n'était pas central; 3. que la paroisse de St-Joseph de la Pointe Lévy était alors endet