Kelly vs. Sulivan.

mitted on both sides on the argument, that no evidence could be discovered of the establishment of a Court of Appeal either by charter or patent under the Great Seal, or by any statutory enactment, nor could it be discovered that any such Court has ever sat in the Island. The observation of Lord Brougham, in the Cambridge case must, therefore, I think, refer to the clause at that time usually inserted in the Royal instructions to Colonial Governors, authorizing the Governor in Council to permit and allow appeals.

I think this was not the establishment of a Court, because there is clear authority for saying that the power to establish Courts cannot be granted by the Crown by instructions, or otherwise than under the Great Seal; but it is rather, I think, an exercise of the Royal prerogative, in furtherance of the right of the Queen, to receive and hear appeals from Colonial Courts by which the Queen directs that before coming to her direct, the appellant shall first go to her representative in Council in the Colony. A Governor, without instructions to that effect, has, it appears to me, no authority to entertain such appeals: and no such instructions exist at present. If the Queen's representative, without instructions, would have no such power, much less would the officer of the Dominion Government. I do not think it can be said that there is either de jure or de facto any Court of Appeal in the Island; therefore, I think the matter was appealable to this Court from the Supreme Court, as being the highest Court of final resort in the Island.

It was, I think, clearly the object of the Legislature to provide for a speedy, final, and conclusive decision by the Commissioners of all questions referred to them, and to make their award "final, binding and conclu

Kelly vs. Sulivan.

sive on all parties." At the same time, it was obviously the desire of the Legislature to secure to the public, through the Commissioner of Public Lands, and to the proprietors, the means of having the doings of the Commissioners reviewed, and any errors they may have committed, corrected, any omissions supplied, and any informalties or defects cured. For accomplishing which, the Commissioners were placed, as it were, under the immediate supervision of the Supreme Court of the Island, and ready access to that Court was afforded by the simple application either of the Commissioner of Public Lands, or the proprietors. And to enable the Court, when its aid was invoked, to see that right was done, ample power is given to remit the awards to the Commissioners to correct any error or informality or omission, provided the application was made within the time limited; and on such award being remitted to the Commissioners, full power is given them to revise and re-execute the same.

The Statute first declares that, "no award made by the said Commissioners, or any two of them, shall be held or deemed to be invalid or void for any reason defect or informality whatsoever," and then provides a suitable tribunal for the correction "of any error or informality or omission ;" and declares that in no case shall any appeal lie from any such award either to the Supreme Court, the Court of Chancery, or any other legal tribunal, nor shall any such award, or the proceedings before such Commissioners, be removed or taken into, or inquired into by any Court by certiorari, or any other process; and, as if to prevent the possibility of the intention of the Legislature being misapprehended, the section of the Act, after being thus minute, thus concludes:--" But with the exception of the aforesaid

Kelly vs. Sulivan.

power given to such Supreme Court to remit back the matter to such Commissioners, their award shall be binding, final and conclusive on all parties." It cannot be denied that the Legislature had the power to deal with this subject, and, if it chose, make the award of the Commissioners final; and, most certainly, it had the right to establish a Court of Review, final in the Island, so far as the Courts of the Island were concerned. And could they have selected a more suitable tribunal than the Supreme Court,----the Court to which, under ordinary circumstances, belongs especially the duty of supervising the proceedings of the inferior tribunals of the Island? The practical effect really was merely to give the Supreme Court a more summary and ample jurisdiction, to enable it more speedily and effectually to deal with the matter, free from the technicalities and delays, and possibly costs, incident to the ordinary mode of proceeding. If this was the intention of the Legislature, as from the Statute I gather it to have been, I am at a loss to conceive what language could have been used to achieve that object, if the language of the 45th section of the Land Purchase Act of 1875 does not do it.

In the case of, The Nawab of Surat, (1); an Act of the Legislature of India, empowered the Governor in Council of Bombay to administer the private estate of the Nawab of Surat, and it was by section 2 enacted "that no act of the said Governor of Bombay in Council, in respect of the administration to, and distribution of, such property, from the date of the death of the said late Nawab, should be liable to be questioned in any Court of law or equity." No provision was made for an appeal from the Governor's decision (1) 9 Moore. P. C. C., p. 88.

Kelly vs. Sulivan.

On an application by a claimant, dissatisfied with the award made distributing the estate, for leave to appeal to the Judicial Committee, Knight Bruce, Lord Justice, said: "Their Lordships are of opinion that the intention of the Act was not to create a Court; that the intention of the Act was to delegate, either arbitrarily or subject to certain limitations of discretion, the administration and distribution of the Nawab's property, but in such a way that the administration and distribution should not be judicially questioned. * * It may seem, an anomalous and extraordinary proceeding to vest powers of this description, not liable to be checked by any ordinary course or powers of law, in any individual, or in any body; but the Indian Legislature had power over the property; they might in the exercise of that power, which is inherent in legislation, have given the whole property at once to any stranger, or devoted to any purpose, and whether with moral justice or not, is not the question. Instead of doing that, they do, what to their Lordships appears substantially the same thing,----they vest the power of dealing with it in a particular individual or a particular body, and declare that its acts shall not be liable to be questioned in any Court of law or equity."

How different is this case, in view of the exigencies and necessities of the country? The Legislature compells proprietors to sell, no doubt in many cases against their will, and makes provision for compensation, to be estimated by disinterested parties, and not by parties whose acts cannot be judicially questioned. It only provides that if such acts are questioned, it must be before a particular Court, within a specified time, and in a specified manner.

I have been unable to discover, after a most careful

Kelly vs. Sulivan.

investigation, that the Commissioners have in any way dealt with any matter over which their jurisdiction did not extend, or that, in dealing with matters over which they had jurisdiction, they exceeded in any way that jurisdiction.

The only question the Commissioners had finally to determine and award, was, in the words of the Statute, "The sum due to the proprietor as the compensation or price to which he shall be entitled by reason of his being divested of his lands, and all interest therein or thereto."

The provisions of the Act, as to how they were to proceed, and what they were to take into their consideration to enable them to arrive at a just and proper conclusion, were directory, though not the less obligatory on them, and which, if they failed to regard, ample remedy, as we have seen, was provided. It is not shewn that they did not do everything that they were required to do, and did not follow the directions of the Statute in every particular; but the complaint seems to be, that this does not appear on the face of their award. But if they did not do as they were required, or if they did, and it should have appeared on the face of the award, which I by no means affirm, is not the answer to the complaining party very obvious? If you were aggrieved thereby, or in any other way, why did you not avail yourself of the remedy provided for you, and apply to the Supreme Court within the time and in the manner prescribed, and have the error or omission, irregularity or defect rectified?

The Commissioners have referred to and incorporated in their award, the application of the Commissioner of Public Lands and the Lands Purchase Act, 1875; and in the matter of such application for the purchase of the