364 EXCHEQUER COURT REPORTS. [VOL. IX. IN THE MATTER. OF THE PETITION OF RIGHT OF 190; CHARLES BERKLEY POWELL SUPPLIANT ; April 22. ANI) FTS MAJESTY THE KING RESPONDENT. Public officer—As. igament of salary--Public policy—Librarian of Pe l a-meat—Auditor-General--Rijlat of, to bind Crown. The provisions respecting the assi g nments of choses in action found in R. S. 0., c. 51, s. 58, ss. 3 and G are not bindin g upon the Crown as represented by the Government of Canada. 2. On grounds of public policy the salary of a public officer is not assignable by him. 3. Neither the Librarian of Parliament nor the Auditor-General of Canada has power to bind the Crown by acknowled ging explicitly or implicitly an assig nment of salary by an officer or clerk employed in the Library of Parliament. DEMURRER to a petition of right for the recovery of a claim against the Crown for moneys alleged to be due to a public officer, and by him assigned to the suppliant. A. H. Todd, a clerk in the Library of Parliament, was joined with His Majesty the King as a respondent in the petition of right. The instrument set out iu the pleadings, and alleged to be an assignment of salary by Mr. Todd, was as follows :— " I, Alfred Hamlyn Todd, of the Library of Parlia-" ment, hereby appoint the Union Bank of Canada my lawful attorney to receive from the Receiver " General of the I'ominion of Canada, or other person authorized to pay the same. all such sum or sums of " money as are now due or may hereafter become " due, and payable to me by the Government of the " Dominion of Canada, and to give a receipt or receipts
VOL. IX.1 EXCHEQUER COURT REPORTS. 365 " for the same, hereby revoking and cancelling all 1905 ` powers of attorney at any time heretofore made by POWELL " me for the same or any like purpose." THE KING. " Witness my hand at Ottawa this 11th day of Statement " October, -one thousand eight hundred and flinty- of Facts. four." " (Sgd.) A. HAM.LYN TODD " Executed in presence of " (Sgd.) MARTIN J. GRIFFIN, Parliamentary Librarian." The suppliant further alleged that this power of attorney was accepted on behalf of His Majesty the King by the Librarian of Parliament and the Auditor-General of Canada, the properly authorized officers in that behalf, on or about the 10th day of October, 1894, . as appears by the following letter :-- LIBRARY OF PARLIAMENT, OTTAWA, October 10th, 1894. " DEAR MR. POWELL,—At Todd's request ite " you a note to say that by an agreement made with " the Auditor-General in regular , official form, Todd's 46 monthly cheque will hereafter be made payable to - " the Molson's Bank as a security for the business " arrangement made for him by yourself with the " bank. " I am, etc., " Very faithfully yours, " (Sgd.) MARTIN J. GRIFFIN." The suppliant further alleged in substance as follows :— That in pursuance of the said agreement the monthly pay cheques of the said Todd were made payable to the Union Bank of Canada until on or about the 15th day of May, 1896, when there was due under the said agreement the sum of $1,812.18. On the said date the
366 EXCHEQUER COURT REPORTS [VOL. IX. 1905 suppliant, at the request of the said Todd, entered into PowErJ another agreement in writing whereby he agreed to V. THE KING. advance au additional sum to Todd, sufficient to make 19tatrmro 1 the whole amount due on that date the sum of $2,000. or Fttct%. By the terms of the said agreement dated the said. 15th day of May, 1896, it was agreed that repayment should be made in the same way and credited in the same manner as provided in the said agr, ement of the 2nd day of March, 1894. From and after the said 1.5th day of May, 1896, until the 8th day of August, 1899, the monthly pay cheques due to Todd from the Dominion Government were made payable to the Union Bank. On the said date, however, by arrangement between Todd and the suppliant, and approved of by the Librarian of Parliament, the said power of attorney was replaced by a new power of attorney making all the said moneys payable to the Molsons' Bank, instead of the Union Bank, and from the said 8th day of August, 1899, until the 14th day of March, 1900, the said monthly pay cheques due to the said Todd were made payable t., the sai-1 Bank as aforesaid, and the sum of $40.00 per month applied each month in liquidation of the claim of the suppliant. The suppliant advanced to Todd. the further sums of $100.00 and $300.00 on the 15th day of January, 1899, and the 15th day of June, 1899, respéctively, the said sums to be repaid in the same manner as the sums previously mentioned. Both of said powers of attorney given by Todd to the said banks were on the regular official form, were approved of by, and were to the knowledge of, the said Librarian of Parliament and the Auditor-General of Canada, and the other officials authorized and empowered to deal therewith on behalf of His Majesty the li ing, given for good and valuable consideration,
VOL 1X , EXCt-4EQUER COURT REPORTS. 367 and were, therefore, irrevocable by the said Todd and 1905 constituted with the said agreement an. absolute POWELL assignment of the whole or a portion of the salary of T.~E KixG, the said Todd. Statemen t The suppliant notified the. Librarian of Parliament of Paet• and the other proper officers of the Crown ; and the Crown, through its said officers, were at all times well aware that the said amounts had been advanced and that the whole or part thereof remained due and unpaid on the 15th day of March, 1900. On or about the .15th day of March, 1900, the said Todd notified the Librarian of Parliament that he revoked the power of attorney and thereupon and thereafter the said power of attorney was wrongfully and negligently treated by the said Librarian and other officers of the Crown and by the Crown as being null and void, and all the monthly pay cheques becoming due to the said Todd since that time havejbeen wrongfully and negligently paid to the said Todd and have not been made payable to the 11 Molson's Bank, as required by the' said power of attorney. The Attorney-General of-Canada demurred to the sufficiency of the allegation in the suppliants' petition as establishing a claim . in law against the Crown. April 21st, 1904. The demurrer came on for argument. E. L. Newcombe, K. C •, in support of the demurrer, argued that it was not competent to the suppliant to join a subject with the King as a party respondent in a proceeding by petition of right. Todd is the debtor, and as between Todd and Powell the court has no jurisdiction. Moreover Todd has not appeared to the action. There is no statute authorizing such a proceeding being taken, and there is no contract between Powell, the creditor of Todd, and the Crown.
368 EXCHEQUER COURT REPORTS [VOL. IX 1905 The Parliamentary Librarian or the Auditor General Po WELL has no authority to bind the Crown ; they are both THE K ING. statutory officers and not authorized by the Executive Arg ument to act for the Crown in such a case. of Counse l. 2 i he assignment is invalid and ineffectual. The Treasury Board regulations will not recognize assignments which purport to be irrevocable. A mere possibility of obtaining money cannot he assigned between subject and subject. The rule at common law is that there cannot be au assignment of a debt not in esse. (Williams on Personal Property, (1) ; Snell on Equity (2) It needs a statute to emp•wer the assignee of a chose in action to sue in his own name for the recovery of the debt ; this is the rule that prevails between subject and subject, and a fortiori the assignee of a claim against the Crown would have no right to sue for it in his own name. There is no Dominion legislation authorizing such a proceeding, and even if the Ontario enactments in this beh•Ilf cpplied to the Crown in right of the Province, of course it could not be contended for a moment tl. at they applied to the Crown in the right of Canada. Therefor.. I deny the proposition that a debt due by the Crown may be validly assigned. [THE COURT : There is a dictum to the contrary of your view by Strong J. in The Queen v. Smith Sr Ripley (3)1 That is so ; but I imagine that such opinion, expressd obiter, as it was, would nor weigh against considered authority upon the point. (Story's Equity Jurisprudence (4) ; Smith's Maau'rl of E tuify (5) ; Snell's Equity (6) ; Collyer v. Isaacs (7) ; Bacon's Maxims (8). (1) 15th ed. p. 91. (5) 14th ed. 293. (2) 13th ed. p. 66. (6) 13th ed. 76. (3) 10 S. C. R. at p. 66. (7) 19 Ch. D. at p 351. (4) sec. 1040 a. (8) Works, vol. iii., p. 237.
VOL. IX.j EXCHEQUER COURT REPORTS. 369 It is against public policy that the salary of a public 1905 officer should be assigned. ( Throop's Public Officers (11 ; POWELL Arbuckle v. Cowtan. (2)'; Blackett v. United States (3). THE KING. J. Lorne McDougall, contra, argued that modern Argument of Counsel. authority justified the joinder of the subject with the King as respondents in a proceeding by petition of right. (Kirk y, The Queen (4) ; Kinlock v. The Queen (5). At this stage of the case, by consent of parties,. the court granted an order to strike out the name of A. H. Todd as party respondent to the petition of right. Leave was given to the suppliant to amend the peti- tion as against the Crown ; the costs of the demurrer quoad hoc to be costs to the Crown in any event. Further argument of the demurrer was adjourned sine die. January 9th, 1904. The petition of right having been amended the argument of the whole demurrer was now resumed. E. L. Newcombe, K.C., in support of demurrer ; J. Lorne McDougall, contra. Mr. Newcombe : The petition as amended is substantially open to the same objections in law as it was before. There is no contract with the Crown shewn on the face of the pleadings, and there is no statute allowing a suit to be brought against the Crown Upon the facts alleged. On grounds of public policy the Crown cannot be expected to seek out the assignees of claims ; its creditors and payees ire those it sees fit to primarily and openly do business with., It is upon this principle that g arnishee process does not lie against the Crown. It is a question of convenience.in the (1) Pp. 52, 53. (4) L. R. 14 Eq. 558. . (2) 3 B. & P. 328. (5). W. N: 1882, p. 164 ; s. e. W. (3) 7 Mete. 338, 339. N. 1884, p. 80. 24
370 EXCHEQUER COURT REPORTS. [VOL. IX. 1905 administration of public business. Such being the POWELL case the petition will not lie here. (Feather v. The V. THE KING. Queen (1). 1 ► ,~nn,ent If the suppliant cannot recover upon a claim as of of ' el, contract, then he must rely upon tort. He does allege that the Crown negligently and wrongfully disregarded the power of attorney. But my answer to. that is that there is no statute making the Crown liable for negligence in such a case. There is no contract between Todd, the original creditor, and the Crown. He is a mere appointee of the crown, removable at pleasure. He has no prospective interest in any salary which may be attached to his office. So there being no debt, there can be no assignment of it. (Story's Equity Jurisprudence (2) ; American and English Encyclopedia of Law (3) ; Benja-min on Sales (4). The power of attorney is not an assignment in law. It is revocable, and was, in fact, revoked. If it were to be said that Todd had no right to revoke his power of attorney, it would follow as a corollary that the Government once having acted on this instrument must continue him in office until the suppliant's claim was paid. This is plainly an untenable argument. It means tying the hands of the Government in exercising its pleasure to dispense with the services of its employees Mr. McDougall here intimated that he was not ready to continue the argument now, and asked for an adjournment, which was granted. January 12th, 1904. F. H. Gisborne in support of' demurrer ; (1) 6B. & C. 257. (3) 2nd ed. vol. 24, pp. 1023, 1024, (2) 13th Am. ed. p. 349. 1042, 1045. (4) '4th ed. 85.
VOL. IX.] EXCHEQUER COURT REPORTS. 371 J. Lorne McDougall, contra. 1905 The a,gument of the demurrer was resumed. PoWELL Mr. McDougall contended. that Todd was not a civil TAE servant, but an officer of Parliament appointed under the provisions of R. S C., c. 15. Sec. 7 of that Act of `'"u"""'' shows that the officers and servants of the Library of Parliament, although appointed by the Governor in Council, are not Crown officers in the ordinary sense, because their salaries are .especially provided for. [THE COURT : They are paid out of the moneys voted by Parliament for civil service salaries. Parliament does not specifically appropriate money to pay them.] [Mr. Gisborne explains that the officers of the Library of Parliament stand on the same footing as other branches of the civil service in respect of the fund out of which salaries are paid.] Even admitting that Todd is under the control of the Governor in Council in respect of his office, that does not dispose of the matter because the Governor in Council, by an order, has expressly sanctioned the practice of assigning salaries. [THE CouRT : You have not set up that order in your pleadings.] But the Crown is estopped from denying .the particular assignment in issue here because its officers have acted on the assignment.. [THE COURT : They did until it was revoked, and you do not complain of anything done before its •revo- cation.] No ; hut the power of attorney assigns " all moneys hereinafter to become due." Under that provision it was their duty to see that the future moneys were paid over to the assignee. When the Governor in Council passed the general order (1) it was tantamount (1) REPORTER'S NOTE.—See Regulations of Treasury Board of 1st Feby., 1870, respecting the mode of acquittal of warrants for the payment of money by the Government of Canada. 2,4%
372 EXCHEQUER COURT REPORTS. [VOL. ix 1905 to saying that they waived the common law defence POWELL that the Crown is not bound by assignments. V. THE KING. [THE C , 'URT : But is this not merely a provision Reasons for enabling a creditor of the Crown to appoint an agent au`'"ten`' t o receive money? if what is contemplated is merely a power of attorney, and the instrument contained no representation on the part of the Crown as to irrevoca-bility, the Crown would not become in any way liable on revocation of the power.] The instrument set out in the pleadings is a power of attorney coupled with an interest, and as such is irrevocable. American and English Encyclopedia of Law. (1.) That a claim against the Crown is assignable is established in The Queen y. Smith and Ripley (2). Mr. Gisborne pointed out that the Auditor-G encrai was not a party to the assignment, and had no authority to act for the Crown in such a matter. THE JUDGE OF THE EXCHEQUER COURT now (April 22nd, 1905), delivered judgment. The petition is brought upon au alleged assignment to the suppliant by Mr. Alfred Hamlyn Todd, a clerk employed by the respondent in the Library of Parliament, at Ottawa, of his salary as such clerk ; and upon the action of the Librarian of Parliament and of the Auditor-General in respect of such assignment. The assignment relied upon consists of an agreement made between Mr. Todd and the suppliant and a power of attorney given by Mr. Todd to the Union Bank of Canada to secure the repayment of advances made by the suppliant to Todd. By the former it was agreed that Todd's monthly pay cheque of $147.00 was to be made payable to the said bank, and that the bank was, out of the proceeds thereof, to pay $40.00 to the credit (1) 2nd ed. vol. 1, " Agency," p. 1218. (2) 10 S. C. R. at p. 66.
VOL IX.] EXCHEQUER COURT REPORTS. . 373 of the suppliant and the balance to the credit of Todd. 1905 The power of attorney to the Union Bank of Canada POWELL was subsequently replaced by one to the Molsons' Bank. TxE v K1Nn. It appointed the bank Todd's lawful attorney to receive Reasons for from the Receiver General of Canada, or other person Judgment. authorized to pay the same, all such sum or sums of money as were then due or might thereafter become due and payable to him by the Government of Canada and to give a receipt or receipts for the same. It is also alleged that this power of attorney, which is stated to be in the regular official form, was accepted, and that it and the said agreement were approved of on behalf of the respondent by the Librarian of Parliament and the Auditor-General of Canada, the properly authorized officers in that behalf ; that the power of attorney was under the circumstances irrevo- cable and constituted with the said agreement an absolute assignment of the whole or a portion of the salary of the said Todd ; that . subsequently Todd notified the Librarian of Parliament that he revoked the said power of attorney, and thereupon and thereafter the said power of attorney was wrongfully and negli- - gently treated by the said. Librarian and other officers of the Crown, and by the Crown, as being null and void ; and all the monthly pay cheques becoming due to the said Todd since that time have been wrongfully and negligently paid to the said Todd. and have not been made payable to the Molson's Bank as required by the said power of attorney. To the petition there is a demurrer, and it will be convenient in •the first place -to consider the objections stated in the eleventh and twelfth grounds thereof, which are as follows :— " .11. A claim, demand or chose in action against " the Crown cannot be assigned so. as to give the " assignee any cause of action against the Crown by Petition of Right or otherwise.
374 EXCHEQUER COURT REPORTS. [VOL. IX. 1905 " 12. The assignment of the emoluments of a Po WELL " public office thereafter to accrue, and whether V. THE " consisting of a salary or fees or other official profits, Reasons for " is voi d on the ground that it is contrary to public Judgment. « policy „ . The public officer, whose salary is alleged to have been assigned to the suppliant, was, as will have been observed, a clerk employed by the Crown in the-Library of Parliament at,Ottawa, and as the transaction upon which the petition is founded took place at that city, the question that is raised by the eleventh ground of demurrer, stated in general terms is, whether an. assignment of a claim against the Government of Canada, made in the Province of Ontario, gives the assignee a right to bring his petition therefor in his own name ; or in other words, whether the Crown, as represented by that Government is bound by the statutes that have from time to time been passed by the Legislature of that Province, to enable the assignee of a chose in action to bring an action thereon in his own name. By the Act of that Legislature 35 Vict. c. 12, entitled An Act to make debts and choses in action assignable at law, the assignee of a chose in action was given a right to sue thereon in his own name (1). By the Act 60th Victoria, c. 15, s. 5, the law of Ontario on this subject was assimilated to that of England under the Judicature Act, 1873, 36 & 37 Vict., c. 66, s. 25 (6), and is now to be found in The Judicature Act of Ontario, R.S.O. e. 51, s. 58, ss. (5) and (6). There is, I think, no reason to think that these statutes were or are binding upon the Crown ; but even if it were conceded that the Crown, as represented by the Government of the Province of Ontario, was bound thereby, I should be of opinion that the Crown as represented. (1) See also R.S.Ô. (1877) c. 116, ss. 6 and 7 ; and R.S.O. (1887) c. 122 ss. 6 and 7).
VOL. 1X.1 EXCBEQLTER COURT REPORTS. 375 by the Government of Canada i s n o t bound. The only 19 05 legislature in Canada that would have power in. that POWELL respect to bind the Crown, as represented by the THE KING. Dominion Government, would, it seems to me, be the Benisons for Judgment. Parliament of Canada. Then with reference to the twelfth ground of demur-rer, it is, I think, well settled, that on grounds of public policy the salary of a public officer is not assignable by him (1). That being the case, it becomes' necessary to consider whether what is alleged in respect of the action of the Librarian of Parliament and the Auditor=General in any way alters the position of the Crown, or makes it liable to the suppliant. But before proceeding to that aspect of the matter it may be observed in passing that the power of attorney is on the face of it revocable, and that it is made to the bank and not to • the suppliant. It was made for the latter's benefit, but the bank and not the suppliant is the assignee, so far as the transaction rests upon the power of attorney, With reference to the other question, the strongest way of stating it for the suppliant would be that the Librarian of Parliament and the Auditor-General of Canada had for the Crown agreed with the suppliant that Todd's monthly pay cheque should he made payable to the bank. I do not suggest that what is alleged amounts to that ; but if it does not, clearly the Crown is not liable. If, however, that is the construction to be put upon the petition, then it seams to me to be equally clear that neither the Librarian of Parliament nor the Auditor-General- had any authority or power to bind the Crown by any such agreement ; and if they made it and failed to see it carried out, whether (1) Flarty v. Odium, 3 T. R; 681 ; Palmer v. Bate, 6 Moo. 28 ; Wells y. Lidderdale v. Montrose, 4 T. R. 248 ; Foster, 8 M. & W. 149 and Arbuth- Arbuckle v. Cowtau, 3 B. & P. 328 ; not v. Norton, 5 Moo. P. C. 231.
376 EXCHEQUER COURT REPORTS. [VOL. IX. 1905 wrongfully or negligently, as alleged or otherwise, no POWELL petition of right would lie against the Crown for l'. THE KING. their default or negligence. Beasons for There will he judgment for the Crown upon the ana~~nt. demurrer to the petition. Judgment accordingly. Solicitors for suppliant : Latchford, _WcDougall 4 Daly. Solicitor for the respondent : E. L. Newcombe.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.