The case was ultimately decided by the Judicial Committee of the Privy Council in Britain, at that time the court of last resort for Canada within the British Empire.

The new Common Schools Act therefore did not infringe any legal "right or privilege" possessed by anyone in New Brunswick at the time of Confederation and was constitutional.

Maher v Town Council of Portland was the first case decided by the Judicial Committee under section 93 of the Constitution Act, 1867.

George King, the provincial Attorney General, introduced the Bill in the Assembly and was responsible for its passage.

The Assembly passed the Bill after strenuous political debate, including the adoption of a House amendment requiring that the schools be non-sectarian.

[11] The Maher case was brought by Henry Maher, a Roman Catholic rate-payer in the town of Portland (now part of the City of Saint John), who challenged the school tax assessed by the town under the Common Schools Act.

He referred to specific schools run by the Methodist, Anglican, Presbyterian and Roman Catholic churches.

[17] Bible readings were permitted where authorised by local regulation, including the option of using the Douay version for Roman Catholic students, but without any additional note or comment by the teacher.

One of the arguments advanced by the applicants was that even though the Act did not specifically confer control over the schools on any denomination, in practice the schools were under denominational control in those areas where a particular religious group formed the majority and thus could elect local trustees of their religious group.

Chief Justice Ritchie rejected that argument, noting that any religious teachings were done without the authority of the Parish Schools Act, and may or may not have been with the sanction of the provincial Board of Education.

That practice could not interfere with the right of all inhabitants under the Act to have a school free and independent of denominational connection.

[18] Chief Justice Ritchie concluded that the Parish Schools Act created a general system of education for the benefit of all inhabitants of the Province, without reference to class or creed.

Rather, there was a general recognition of Christian precepts as part of the education of the students, without favouring any denomination in particular.

He began by noting that the purpose of s. 93 was to resolve a question that had caused serious difficulties in the former Province of Canada, prior to Confederation.

It had to be a right or privilege, of the members of the minority faith, with respect to denominational schools, which they had at law at the time of Union, and which was prejudicially affected by a subsequent government action.

Like Chief Justice Ritchie, he referred to the provision barring books of controversial theology from the school libraries.

Justice Fisher held that this provision was a positive enactment against denominational teaching by the school.

However, he wanted to make it clear that in his opinion, the constitutionality of the Act was not affected by the regulations passed by the Board of Education.

Sir John Burgess Karslake and Attorney General King, now also Premier of New Brunswick, appeared for the respondent town council, defending the provincial legislation.

[30] The only source for the reasons for judgment is the text-book, Wheeler's Confederation Law of Canada, published in 1896.

[31] In 1892, the Judicial Committee again considered the scope of s. 93 of theConstitution Act, 1867, in the case of City of Winnipeg v Barrett.

[32] Following the publication of the reasons for the decision in Wheeler's Confederation Law of Canada, the Maher case has been cited approvingly by the courts.