Act, R.S.O. 1897, ch. 73, sec. 5, 9; The Act respecting Inquiries concerning Public Matters, ib. ch. 19, sec. 2; Consolidated Municipal Act, 3 Edw. VII. ch. 19, sec. 324.

J. S. Fullerton, K.C., and W. E. Raney, for the defendant.

November 26th. BOYD, C.:-A resolution has been passed by the city, under sec. 324 of the Municipal Act, 3 Edw. VII. ch. 19 (O.), requesting the Judge of the county court to investigate certain alleged charges of breach of trust or misconduct on the part of the city commissioner of parks. The Judge has entered upon the inquiry, and is, by virtue of the said section, clothed with all the powers which are conferred upon a statutory commissioner under the Ontario statute providing for inquiries into public matters: R.S.O. 1897, ch. 19. Among other things, he has the power of summoning before him any party or witness, taking evidence upon oath, and calling for the production of such documents and things. as he may deem requisite to the full investigation of the matters of inquiry. In these regards he exercises the same power as is vested in any Court: sec. 2 as amended by 4 Edw. VII. ch. 10, sec. 7 (0). An injunction is now asked based upon a writ issued in the High Court to restrain the county Judge, as such commissioner, from proceeding with the inquiry in a private manner with closed doors, as in camerâ, and from proceeding first to examine the said parks commissioner, who is the plaintiff in this action, and is a party to the inquiry. An opinion being expressed by Meredith, C.J., at an earlier stage of this action, that the proceedings should be conducted in public, I understand that the county Judge has expressed his willingness to conform himself to that method of procedure, so that nothing more needs to be said on that branch of the motion, except that I quite agree that in matters. of public interest, such as this, where misconduct is alleged, it is expedient to have the inquiry conducted as in open court. The procedure of the Court is impliedly recognized as the normal method. of examining the witnesses and parties, though I do not say but that in exceptional cases the commissioner will exercise a wise discretion in excluding witnesses (while one is being examined), or in excluding the general public where the disclosures are of a nature unfit for publication; but evidence should not be taken behind the back of the person chiefly interested. The general rule as to

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the ordering of business is that the commissioner has the absolute power of regulating the proceedings of his own tribunal, so long as he keeps within his jurisdiction: Todd's Parliamentary Government, 2nd ed., vol. 2, p. 445.

That consideration as to the wide discretionary power of the commissioner suffices to answer the objection now raised that the party whose conduct as a public officer is under investigation should not be first called. That is a matter entirely for the commissioner who will rule upon the questions and direct the course and scope of the examination. He is not to be under the supervision of any Court as to his manner of getting at such legal and permissible evidence as he may deem requisite for a full investigation. He is appointed for that purpose, and I know of no authority, nor was any cited, to restrain him from discharging that duty within the bounds of his commission.

The authorities are the other way: the last is Lane v. City of Toronto (1904), 7 O.L.R. 423, where Britton, J., refused to interfere by injunction with the conduct of an inquiry such as this in regard to the admission or rejection of evidence or the examination of witnesses. To the same effect is In re Godson and City of Toronto (1888-90), 16 A.R. 452, which was affirmed by the Supreme Court, 18 S.C.R. 36, where the Court was asked to intervene by way of prohibition, but the reasoning of the Court (particularly in the judgment of Hagarty, C.J.) applies with equal force to relief by way of injunction.

Lastly, the Court is asked to remove the county Judge, and appoint an "unbiassed, impartial commissioner," as the Judge (now made defendant) cannot now make the investigation "in a judicial spirit." The status of the county Judge in the discharge of these functions is defined in the Godson case. His duties are to take evidence and to return the evidence, with a report of the result of his inquiries, to the council by whose action he was appointed. His report may supply information and material upon which the council may decide to take action, but any such action is wholly within their discretion. He has no power to pronounce judgment imposing liability on anybody; he merely makes preliminary inquiries, gathering together and presenting in compact form such information as will enable the council to deal with the whole matter as they shall be advised. All he has to do, as the

outcome of his commission, is to report to the council the result
It is the evidence
The commissioner

of the inquiry and the evidence taken thereon.
taken which governs, and that speaks for itself.
tries nothing and decides nothing. He is not a judicial officer.
The affidavit of the plaintiff complains of the commissioner
having asked for complaints to be sent and having received letters
relating to the parks department, and makes suggestions of im-
proper motives and prejudiced action on the part of the com-
missioner. Mere suspicion of bias and inference, or conjecture
that wrong will be done in the result of the investigation, is the
utmost that can be drawn from the affidavit.

Now, regard what the commissioner may do in entering upon this and like investigations without being blameworthy in any culpable sense. It is not beyond the competence of the commissioner himself to initiate proceedings to procure papers, books and documents which are likely to further his investigations; nor is it beyond his competence to invite communications to be sent in by persons who are willing to assist in the inquiry: it is also within his powers, though it may not be a discreet course, to confer with possible witnesses, with a bonâ fide view of ascertaining what they know, and whether it will be worth while to have them duly subpoenaed. So long as ex parte affidavits are not procured from such persons, the commissioner may take (or preferably direct to be taken) such steps in the way of collecting evidence as are permissible in the case of solicitors preparing for trial. But, of course, such communications do not become evidence till the deponent speaks openly under the sanction of an oath and under liability to be forthwith cross-examined. Whatever ex parte information has been or may be obtained, I cannot suppose that the commissioner will act upon it or return it as evidence in his report. Much less can I assume that he is being actuated by any partisan spirit, however zealously he may seek to gain light from every available quarter to guide him in giving permanent shape to all the relevant facts. I deprecate the making of affidavits impugning the integrity of an officer designated by the Legislature, and accepted by the municipality as statutory commissioner, upon such slender grounds as are here alleged. Aspersions of this serious kind are easy to frame upon "information and belief," but they should not be listened to for a moment

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when the function of the commissioner is merely to collect and report materials for the subsequent consideration or action of the city council. The commissioner is not pro hac vice a judicial person he decides nothing affecting the legal rights of the plaintiff, and he is not, therefore, within the ambit of judicial, quasijudicial, or administrative officers, who become disqualified by interest or bias: Regina v. London County Council, Re The Empire Theatre (1865), 71 L.T. 638.

Even were a plain case clearly established of unfair dealing, that would not, in my opinion, suffice to attract the jurisdiction of this Court. By analogy to proceedings in the case of a Royal Commission (as distinguished from a statutory), the application for redress where, for any sufficient reason, the commissioner becomes unworthy of confidence, should be directed to the appointing power, which, in this instance, is the municipal council. That body may, if it pleases in a proper case, suspend or dissolve the resolution under which the present commissioner acts: see Todd, Parliamentary Government, 2nd ed., vol. 2, p. 441.

I refuse the application for an injunction with costs. I have a very strong opinion that the plaintiff has no locus standi, because the Court is without jurisdiction, but upon an interlocutory examination I do not dismiss the action.

A. H. F. L.

[DIVISIONAL COURT.]

REX V. BOOMER.

Criminal Law-Liquor License Act-Sale of Liquor during Prohibited Hours-
Conviction of Two Persons for Same Offence-Requisition for Medical
Purposes-Exception not Negatived by Information-Burden of Proof-
Power of Court to Amend.

B., a hotel-keeper, and O., his bartender, were convicted by a magistrate upon
informations charging them with the illegal sale of liquor during prohibited
hours, both informations, however, referring to the same sale.
Both con-
victions were quashed by the district court Judge as being in contraven-
tion of the Liquor License Act, sec. 112, sub-sec. 2, which provides that in
such a case both the accused parties shall not be convicted of the same
offence. On appeal to the Divisional Court:-

Held, that as to O. the Judge's order was right on the ground taken by him,
but as to B., who was convicted before O. was tried, the subsequent con-
viction of O. could not affect the validity of the conviction against B.
(2) As, however, the information did not negative the exception in sec. 54
of the Act protecting sales to vendees holding requisitions for the purchase
of liquor for medicinal purposes, the prosecutor was bound to adduce
evidence that the sale was not within that exception, and as there was no
evidence before the magistrate on that point, the order quashing B.'s con-
viction must be upheld.

(3) Although the magistrate might have amended the information at the
trial, subject to sec. 104 of the Act, by adding a clause negativing the
exception, no such amendment could now be made.

Regina v. White (1871), 21 C.P. 354, followed.

APPEAL under sec. 120 of the Liquor License Act (R.S.O., 1897, ch. 245) from the order of the district Judge of the district of Muskoka, quashing the conviction of the defendant on a charge of illegally selling liquor during prohibited hours. The facts are fully set forth in the judgment of ANGLIN, J., infra.

The appeal was heard on November 21st, 1907, before a Divisional Court composed of FALCONBRIDGE, C.J.K.B., ANGLIN, and RIDDELL, JJ.

J. R. Cartwright, K.C., for the Crown.

James Haverson, K.C., for the defendant.

November 23. ANGLIN, J.:-This is an appeal under sec. 120 of the Liquor License Act (R.S.O., ch. 245) from the order of the district court Judge of the district of Muskoka, quashing a conviction of the defendant upon an information charging that, as hotelkeeper of the Royal Muskoka Hotel, in the township of Medora, he did illegally sell or dispose of liquor between the hours of seven o'clock p.m. on Saturday, the 10th of August, 1907, and six o'clock

D. C.

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Nov. 23.