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Alberta, Past and Present, Historical and Biographical
Vol 1 - Chapter IX
Autonomy, The Alberta Act and the Constitution


During the session of 1905 Sir Wilfred Laurier introduced the Alberta and Saskatchewan Acts into the House of Commons. The granting of autonomy to the North West Territories involved four questions, viz.:

(1) How many provinces could be formed out of the Territories?
(2) The ownership of the public lands.
(3) The financial terms.
(4) The school system.

These questions were decided as follows:

(1) Two provinces were formed and the boundaries extended to the 60th line of north latitude, considerably beyond the northern boundaries of the original districts of Athabasca and Saskatchewan.

(2) All Crown lands, mines and minerals and royalties incident thereto, and the interest of the Crown in the waters within the provinces were continued in the Crown and are administered by the Government of Canada for the purposes of Canada.

(3) In determining the financial terms Section 118 of the B. N. A. Act was followed as closely as the circumstances would permit. The annual subsidy was made up as follows:

(a) Government and Legislature ------------------$50,000

(b) On an estimated population of 250,000 for Alberta at 80 cents per head-----------------------200,000

A census of the province was to be taken every five years and the allowance of 80 cents per head paid on the increased population until it should reach 800,000 souls.

(c) In as much as the province had no debt the annual sum of $403,375 was granted.

To understand this we must know the terms in this respect upon which the four original provinces entered Confederation. The Dominion assumed the debt of the provinces viz., $62,500,000 for Upper and Lower Canada, $7,000,000 for New Brunswick, $8,000,000 for Nova Scotia. These debts were not paid. But the Dominion agreed to pay the interest to the provinces which therefore represented so much capital. When the new provinces Alberta and Saskatchewan and Manitoba entered Confederation without any debt, they were entitled to the same per capita debt allowance as the older provinces as adjusted from time to time until 1905. Oil basis Alberta and Saskatchewan were credited with the sum of $8,107,500 upon which the annual interest is computed at 5%.

(d) In as much as the public lands were reserved to Canada the province was paid the following sum in lieu of lands:

For a population of 250,000 the sum of --------------$375,000
When the people increased to 400,000 the sum of -------562,500
When the people increased to 800,000 the sum of ------750,000
When the People increased to 1,200,000 and thereafter the sum of ------------------------------------1,125,000

(e) An additional allowance of $93,750 was given for five years for public buildings.

In 1906 a conference of the premiers of the various provinces of Canada was held in Ottawa to discuss the financial relations of the Dominion to the various provinces of Canada. The result was that all from the Parliament of Canada was presented to the Imperial Parliament praying for amendments to the B. N. A. Act to give effect to the new financial terms decided upon at the premiers' conference. Those amendments became law July 1st, 1907. The annual subsidy to Alberta was increased and remains in force at the present time. It is made up as follows:

(1) A fixed grant for Government and Legislature.
(a) For population up to 400,000 persons ----------$180,000
(b) For population up to 800,000 persons ------------190,000
(c) For population up to 1,500,000 persons ----------220,000
(d) For population up to 1,500,000 persons ----------240,000

(2) Per capita subsidy, 80 cents per head shall be paid until the population reaches 2,500,000 and at the rate of 60 cents per head of so much of the population as exceeds that number.

(3) The subsidies in respect to lands and public debt were left as set forth in the Alberta Act.

(4) The School System:
The powers of the province respecting education are contained in section 17 of the Alberta Act, viz.,

Section 93 of the British North America Act 1867 shall apply to the said province with the substitution for paragraph one of the said section 93 of the following paragraph:

"Nothing in any such law shall prejudicially affect any right or privilege with respect to separate schools which any class of persons have at the date of the passing of this Act, under the terms of the chapters 20 and 30 of the Ordinances of the North West Territories, passed in the year 1901, or with respect to religious instruction in any public or separate school as provided for in the said Ordinances."

The Constitution

The Constitution of the Province of Alberta exists in different forms, viz.,

(1) The rigid form as expressed in the B. N. A. Acts and the Alberta Act of 1905, commonly known as the Autonomy Act. This part of the Constitution is imposed on this province by the higher authority of the Imperial Parliament of Great Britain and of the Parliament of Canada. It can not be amended by the Legislature of the Province and any change necessary must be made by the higher parliaments.

(2) The Constitution exists also in definite and flexible form. This part is created by the people of the province itself and is expressed in the various Acts of the legislature passed since 1905; in the laws of the North West Territories continued in force at the time of the creation of the province and not since repealed; and in the laws of England in force July 15th, 1870 except in so far as such laws have been altered or repealed by the Ordinances of the North West Territories or by the Acts of the said province. It lies within the power of the legislature to change such laws as necessity and the growth of the county require provided they apply to the class of subjects assigned to the province by S. 92. B. N. A. Act.

(3) The Constitution exists further in unwritten forms as expressed in the usages and incidents of British Parliamentary practice, as are found for example in the commissions issued to the lieutenant-governor on assuming office and the various conventions that govern his relations with his responsible executive on the one hand and the Governor General of Canada from whom he received his appointment on the other.

By virtue of the power vested in the Parliament of Canada by the B. N. A. Act of 1871, the Federal Parliament passed the Alberta Act creating the new province of the same name. By the terms of this Act the B. N. A. Acts 1867-1886 are made to apply to Alberta in the same way and the like extent as they apply to the older provinces of Canada as if Alberta had been originally included in Confederation, except in so far as they varied by the Autonomy Act and such provisions as are in terms made oi' by reasonable intendment apply to one or more provinces and not to the whole of the provinces of the Dominion. These variations affect two classes of subjects mentioned previously, viz., education and public lands.

Legislative Power:

Except, therefore, in the instances referred to in the preceding paragraphs the Constitution of Alberta is identical to those of the older provinces. Like these provinces it has surrendered to the federal parliament the exclusive right to make laws for the peace, order and good government of Canada in relation to all matters not coming within the classes of subjects assigned by Section 92 of the B. N. A. Act exclusively to the Legislature of the province, that is to say "All matters of a merely local nature or private nature in the Province." Within the limits of these delegated powers however, the legislature has absolute authority. "Where there is jurisdiction the will of the legislature is omnipotent, according to British theory, and knows no superior law."

Concurrent powers of legislation are conferred upon the Dominion Parliament and provincial legislature in relation to agriculture and immigration, but no provincial Act on these subjects may be repugnant to any Dominion law on the same subject.

Legislative authority is vested in the Lieutenant-Governor and the legislative assembly. All acts are enacted in the name of "His Majesty by and with the advice and consent of the legislative assembly." In relation to assent to bills, disallowance of acts, and signification of pleasure of bills reserved, the Lieutenant-Governor represents the Crown with respect to the province in the same manner in which the Governor General represents the Dominion. No bill passed by the Legislature becomes law until it has received the assent of the Lieutenant-Governor. At the conclusion of a session of the legislature the Lieutenant-Governor goes in state to the legislature. The clerk of the legislature reads the list of bills passed, to which His Honour, seated on the Speaker's Chair, assents, whereupon the clerk announces to the members assembled in their places, "In His Majesty's name His Honour the Lieutenant-Governor doth assent to these bills." It often happens, however, that in case of public necessity the Lieutenant Governor gives his assent to a bill as soon as it is passed by the Assembly.

At the conclusion of each session of the legislature the Lieutenant-Governor transmits two copies of every Act passed during that session to the Secretary of State for Canada. One of these is in turn transmitted to the Colonial Office. Thus it will be seen that the federal government exercises a residuary control over all provincial legislation.

Legislation passed by the Assembly is of two kinds, viz.: public and private legislation. Private bills are distinguished from public bills in that they relate directly to the affairs of private individuals or of corporate bodies, and not to matters of public policy. They must originate by petition and be subject to special rules such as payment of fees and due advertisement in the official gazette and newspapers of the province. Public bills represent the policy of the Executive, and unless the Executive is able to command a majority of the members of the legislature in support thereof, they forfeit the confidence of the Lieutenant-Governor and must resign or ask for an appeal to the electors. The initiation of public legislation is one of the responsible duties of the Executive or Cabinet but it is not lawful for the Executive or the legislature to adopt, or pass any vote, resolution or address for the appropriation of the public revenue to any purpose unless it has been recommended by a message from the Lieutenant- Governor.

By Sec. 91. B. N. A. Act the legislature is empowered to alter its constitution except as it affects the office of the Lieutenant-Governor. The legislature of the province began with 25 members. This number was in creased after the quinquennial census of 1906 to 41, and now is 58 including 2 members representing the overseas men and women. Representation is increased on the basis of population as shown by the Dominion Census. Those entitled to vote at provincial elections are British subjects by birth or naturalization, and who have resided at least twelve months in the electoral division in which they desire to vote.

Executive Power:

The executive power is vested in the Lieutenant-Governor but by the instructions of his commission he is guided by the constitutional principles and precedents which obtain in every British state where parliamentary government is established. Upon him lies the duty of forming a responsible executive council to administer the public business. At the same time he is enjoined to maintain a position of dignified impartiality and to guard the interests of the Dominion as well as those of the province, He holds office during the pleasure of the Governor General but is not removable within five years from the time of his appointment except for cause. In this way it will be seen that the federal government has a residuary executive or administrative control over the provinces in that it has power to change the executive head of the province.

Not being directly nominated by the Sovereign the Lieutenant-Governor is not entrusted with the personal prerogatives of mercy and honor attaching to those governors by commission from the King, but at the opening and closing of the provincial legislature, the celebration of His Majesty's birthday, or holding a levee, he is regarded as acting directly on behalf of His Majesty. In short he represents the monarchial element so characteristic of our British system.

The executive council is chosen from the members of the legislature and is entrusted with the conduct of the public business as long as it holds the confidence of that body. For the better expedition of the public business the affairs of government are organized into departments. One of the first Acts of the first legislative Assembly of Alberta was to pass the Public Service Act creating the several departments as follows:

(1) Office of the Executive Council.
(2) Department of the Attorney-General.
(3) Department of Provincial Secretary.
(4) Department of Treasury.
(5) Department of Public Works.
(6) Department of Agriculture.
(7) Department of Education.
(8) Offices of Legislative Assembly.

At first the ministers administered more than one department but the rapid development that has taken place in recent years has increased the work of the several departments to such an extent that each is administered at the present time by one member of the Executive. Since the organization of the province in 1905 new departments have been created as follows:

Department of Railways and Telephones, (1912)
Department of Municipal Affairs, (1912)
Department of Public Health, (1919)

Treasury Department:

(1) The treasury department is under the direction of a member of the Executive Council, the Provincial Treasurer. He has the management and control of the revenue and expenditure of the province. All revenues, excepting certain funds, form the consolidated revenue fund, the expenditure of which is subject to audit, legislative review and vote. All accounts must pass the Provincial Auditor, an officer removable only on address to the Assembly.

(2) The provincial revenue is derived from three sources, viz.,

(1) Dominion subsidies.
(2) School lands.
(3) Provincial taxes.

(3) The fiscal year closes on December 31st. As soon as practicable after the close of each fiscal year a detailed and complete statement of the public accounts for that period must be prepared by the Provincial Treasurer showing the state of the general revenue fund, the trust and special funds and all matters requisite to explain the financial transactions of the province.

Estimates of the expenditure are generally for the period of one fiscal year. No petition for any sum relating to the public service, not any motion for a grant or charge whether payable out of the consolidated revenue fund or other moneys provided by legislature is ever received or proceeded with unless recommended from the Lieutenant-Governor, or theoretically the Crown.

Department of Education:

This department controls public schools, normal training schools and universities within the province. With regard to education the province controls absolutely the program of studies followed in the public schools, the normal school, and through the Board of Governors, the curriculum and administration of the Provincial University. Through inspectors the department supervises the course of studies, the methods of the teachers who are employed by the local school boards and determines the amount of provincial grant that is due to each school.

Department of Public Works:

As the name implies the minister of this department controls the construction and maintenance of all public works in the province, issues surveys, maps and plans, road allowances, ferries and all public property. He has charge of the provincial institutions such as Asylums and gaols.

Department of the Attorney-General:

This department is presided over by a member of the Executive Council, the attorney-general. He is the general agent of the Crown. To him belongs the supervision of the administration of justice within the province, and the administration of public affairs according to law.

He is charged with the conduct of the following matters among numerous others:

(a) The law governing the sale of intoxicating liquors.
(b) Titles to real property in the province.
(c) Appointment of sheriffs, registrars, judicial officers, justices of the peace, coroners, notaries public and commissioners for taking affidavits.
(d) Hearing applications for the granting of fiats regarding petitions of right, criminal informations, indictments, actions to set aside crown patents, actions to recover fines and penalties.
(e) The appointment of counsel for the conduct of criminal business.
(f) The supervision of the officers of the courts of law in the province.
(g) The examination of papers in connection with the admission and discharge of lunatics, etc.

Provincial Secretary's Department:

The Provincial Secretary is a member of the Executive Council. He is the keeper of the seal of the province, issues all letters patent, commissions and other documents under the seal of the province and countersigns the same. He is the keeper of all the registers and archives of the province.

Department of Agriculture:

This department is presided over by the Minister of Agriculture, a member of the Executive. He has charge of agriculture statistics. This department collects statistics relating to agriculture and manufacturing, and disseminates the same to promote the progress of the province and sees to the observance and execution of the law relating to statistics and agriculture. The Minister of Agriculture has charge of the Demonstration farms and schools of agriculture.

Reports of the work done in the various departments and branches thereof are annually prepared and laid upon the table of the legislative assembly and printed for distribution.

Department of Municipal Affairs:

The Minister of Municipal Affairs is a member of the Executive Council and is responsible to the legislature for the administration of the municipal institutions of the province. He has power to make regulations governing the methods of bookkeeping, accounting and auditing in the municipalities of the province, and to make and enforce such regulations as shall conduce to a systematic and uniform conduct of the affairs thereof. For this purpose inspectors regularly visit the officials of the municipalities and report to the Department.

The Minister of Municipal Affairs is charged with the duties under the Local Improvement Act, the Village Act and the Education Tax Act. Under the Education Tax Act all lands in every municipality except lands included in school districts are taxed one and a quarter cents for the benefit of education. The taxes are paid into the Consolidated Revenue Fund of the province.

Department of Railways and Telephones:

The Minister of Railways and Telephones is a member of the Executive Council. He is entrusted with all the powers and charged with all the duties created by the Railway Act of Alberta 1907 and the Act respecting the government of telephone and telegraph systems.

Department of Public Health:

The Minister of Public Health is a member of the Executive Council and has the administration and control of the department and all the acts relating to public nurses, hospitals, diseases and vital statistics. It is his duty to insitute inquiries, collect facts and statistics relating to the above matters and issue regulations for their due execution and observance.

The Legislative Assembly:

The chief officers of the legislative assembly are the Speaker, and the clerk of the House. The Speaker presides over "the deliberations of the House and enforces the observance of all rules for preserving order in its proceedings." He puts every question and declares the determination of the House. As "Mouth of the house" he communicates its resolutions to others, conveys its thanks, expresses its censure, its reprimands or admonitions. He is in fact the representative of the House itself in all its powers, proceedings and dignity.

The clerk of the Assembly makes true entries, remembrances and journals of things done and passed in the House. He signs the addresses, votes of thanks and orders of the house. He endorses the bills sent to the Lieutenant-Governor, He has the custody of all the records or other documents of the House and is responsible for the conduct of the business of the house in the official department under his control. He assists the Speaker and advises members in regard to questions of order and the proceedings of the House.

During the recess he publishes in each issue of the Alberta Gazette rules respecting notices of intended applications of private bills and fixes the date for receiving private bills after the proclamation convening the Assembly has been published.

The law clerk prepares a report upon all private bills after their second reading and before the same are submitted to the committee charged with the consideration thereof. In the subsequent stage of such bills he is responsible for such bills should they be amended.

Local Government:

Among the powers exclusively assigned to the legislatures of the provinces is the right of each province to create and establish municipal institutions within the respective provinces. This right Alberta and Saskatchewan enjoy in common with the rest. The various local bodies created and established in Alberta are as follows: Cities, towns, rural municipalities, villages and local improvement districts. Cities are incorporated by special charters granted by the legislature. Their powers are strictly limited by the express terms of their respective charters and depend largely upon the demands of the citizens of each place for the municipal functions they desire to exercise. Of course the legislature can not grant these municipal corporations power inconsistent with the constitution nor delegate any power it does not itself possess.

All towns in Alberta are incorporated and organized under the Towns' Act 1912. Both towns and cities are empowered to pass by-laws within the powers delegated, and generally to enact such legislation as will promote the welfare of their communal life. Town councils consist of a mayor and six councillors elected by a general vote of the electors including women if they are property owners. Money by-laws in towns and cities are referred to the property owners or burgesses before the councils have power to borrow money, issue bonds or debentures.

Villages may be erected in communities where there are at least 25 dwellings within an area of 640 acres. Rates are limited to ten mills on the dollars of the assessed value of property. The village council consists of three members elected by the owners or occupiers of rateable land within the village.

The borrowing powers of all municipal bodies are limited to a fraction of the assessment or the total taxes by the terms of the Act or special charter.

Rural Municipalities:

Rural municipalities were established in Alberta in 1912. Each municipality comprises nine townships or an area 18 miles square and must have a population of not less than one person per square mile. At the present time it is optional with the people of these districts to form themselves into a municipality under the Act. The chairman of the rural council is called a reeve. The council has power to make by-laws relating to matters of merely local concern such as roads, bridges, public health, wolf bounties, hospitals, cemeteries, prairie fires, noxious weeds, and to raise money on the credit of the municipality as specified by the Act. Taxes are levied upon all rateable lands in the municipality and the rate must be uniform. The maximum is placed at one per cent of the assessment of the preceding year.

Local Districts:

In the newer parts of the province municipal organization is expressed in local improvement districts. These are constituted by Order in Council upon petition and vary in size according to circumstances usually from 108 square miles to 216 square miles. The council consists of from three to six members and has power to impose taxes upon all rateable lands in the district but the rate is fixed within a minimum of one-and-a-quarter cents and a maximum of five cents per acre.

The Judiciary and Administration of Justice:

The judicial power of the province is vested in a number of courts as follows:

(a) A court of superior civil and criminal jurisdiction, viz., The Supreme Court of Alberta.
(b) Minor courts of civil and criminal jurisdiction, viz., The District Court of each judicial district.
(c) Police magistrate courts in towns and cities and the courts of the justices of the peace.

The supreme court consists of two divisions, Appellate and Trial, each presided over by a chief justice and eight puisne judges appointed by the Dominion Government. They cannot he removed from office except on an address from both houses of parliament.

The province is divided into a number of judicial districts viz., Acadia, Athabasca, Edmonton, Lethbridge, Wetaskiwin, Calgary, Macleod, Medicine Hat, Red Deer, Stettler. Each district has a court presided over by a judge, a clerk, and where necessary an additional judge and clerks. Regular sittings of the district court are fixed by the Lieutenant-Governor in Council, but the judge may hold additional sittings without a jury.

District courts have full jurisdiction in all matters which may be made the subject of a claim for relief, or enforce a right, legal or equitable where such claim, debt or damage does not exceed $600.

District courts have power to grant probate of wills, letters of administration, and pass accounts of executors and administrators, to make orders for the division of the disposition of the Property of the testator or intestate in relation to the estate and effects of persons dying within the limits of the court.

With respect to claims under $100 in the District Court there is a small debt procedure providing for the summary recovery of small debts through the clerk of the court.

The district court is also a court of record for the trial without a jury of any person charged with certain criminal offences, provided the person so charged consents.

In order to facilitate speedy trial of actions at law numerous sittings of the District Court are held in each judicial district. At the present time court is held at least four times a year. At the beginning of each year the Lieutenant-Governor in Council fixes the dates and places for the ensuing year.

The police magistrates and justices of the peace are appointed by the lieutenant-governor in council. The proceedings before these officers are governed by the Criminal Code of Canada. They conduct preliminary trials for criminal offenses and are compelled to make complete returns of all convictions annually to the attorney-general.

With the exception of a small force of police maintained by the municipalities of the cities and larger towns, the task of maintaining order and the King's peace falls upon the Alberta Provincial Police and the Royal Canadian Police, the latter being a force in which the officers are magistrates and the rank and file constables. Detachments of these forces are stationed at various points in the province and regular patrols extending to the remotest corners of the province are enforced.

Appeals:

Appeals subject to certain rules of court from the decisions of the District or Supreme Courts are heard by the Appellate Division of the Supreme Court of Alberta. This court has within its jurisdiction all the powers which are inherent in any divisional court of the Supreme Court of Appeal of England.

in 1920 an Appellate division of the Supreme Court of Alberta was formed as well as a Trial division. Previous to that time appeals were heard by the Court en Bane, that is, all the judges of the Supreme Court, except the Trial Judge of the action, sat in appeal.

Appeals from the decisions of the Appellate division may be taken to either the Supreme Court of Canada, or directly to the Privy Council of the British Empire, or to both in the order named.

Historical:

The first Territorial Judiciary was established in pursuance of Chapter 35 of the Statutes of Canada, 1873, respecting the administration of justice and establishment of a police force for the North West Territories.

Provision was made for the appointment of stipendiary magistrates holding office during pleasure with a limited jurisdiction defined by the Act. Increased jurisdiction to deal with offences for which the maximum punishment did not exceed seven years' imprisonment was vested in the judges of the court of Queen's Bench of the Province of Manitoba, or two stipendiary magistrates sitting as a court. The said causes were triable in the territories in a summary way without the intervention of a jury. Power was given to the justices of the peace and stipendiary magistrates to commit for trial by court of Queen's Bench in Manitoba according to the laws of procedure in force in that province any person charged with the commission of an offence in the Territories punishable by death or imprisonment in the penitentiary.

By this act the North West Mounted Police force constituted any gaols and lock-ups provided for the confinement of prisoners in the custody of the Mounted Police.

By the N. W. T. Act of 1875 provision was made for the more complete administration of justice in the Territories, reserving, however, to a more limited extent, what was formerly the jurisdiction of the Court of Queen's Bench of Manitoba. This latter court was given an appellate jurisdiction in Territorial appeals and for some years that was constituted to be the court of Appeal for the territories.

By Cap. 7 of the Statutes of Canada for 1877 the foregoing Act was amended in important particulars. The jurisdiction exercisable by the Court of Queen's Bench of Manitoba in Territorial cases was withdrawn and a stipendiary magistrate and a justice of the peace with the intervention of a jury vested with power to try charges where the maximum punishment exceeded seven years' imprisonment. In cases where punishment was death two justices of the peace were associated with the stipendiary magistrate.

By Cap. 25 of the Statutes of Canada, 1880, the N. W. T. Act was again amended and consolidated. The change respecting the administration of justice provided that stipendiary magistrates were to associate with them one justice of the peace, instead of two, to try capital cases. (E. g. Riel's Case.)

Amendments by Cap. 23 of the Statutes of 1884 provided for the first time for appeals from the conviction of justices of the peace to a stipendiary magistrate.

Chapter 25 of the Statutes of Canada, 1886, introduced important and progressive changes. The Territorial court presided over by stipendiary magistrates was superseded by the Supreme Court of the North West Territories. Upon this body were conferred all such powers and authority as by the law of England were incident to a superior court on July 15th 1870. The Act provided for five judges and the division of the Territory into judicial districts. The appellate jurisdiction of the court of Queen's Bench in Manitoba was superseded by the Court En Banc in the Territories sitting as a court of appeal. rfI11ee judges formed a quorum.

The system as set forth in the foregoing statements continues without essential change to the present time. When the province was organized in 1905 it became necessary to create a Supreme Court which was done by an Act of the Legislature of 1907. In the same year the district court Act was passed.

The system of procedure is contained in the Civil Justice Ordinance which is moulded after the English judicature Act and that of Ontario. Where procedure or practice is not provided for in this ordinance the English practice applies.

The procedure in criminal cases subject to an Act of the Federal Parliament conforms as nearly as possible to that existing in like cases in England on the 15th of July, 1870, but no grand jury is summoned and the petit jury consists of only six jurors, men or women.

The trial of offenses is commenced by a formal charge in writing, setting forth as in an indictment the offense charged. A jury of six may be had in certain civil cases. Only in serious criminal charges is the accused entitled to a jury. A list of offenses where a jury is precluded is enumerated in the N. W. T. Act. There is no grand jury.


 


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