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LIQUOR LIGENSB AST, 1886, 
 
 er 
 
 ;', 
 
 
 JUDGMENT 
 
 OF 
 
 Hon, Mr, JusTmEj WeJaThejrbe, 
 
 Concurred in by Hon. Mr. Justice Ritchie and read as a Dis- 
 senting Judgment in the case of The Queen v. Ronan: argued 
 before the Supreme Court of Nova Scotia, April 2nd, 1891 ; 
 decided September 17th, 1891. , 
 
 THE CARSWELL CO. (Ltd.), 
 
 Law Puiii.isHERS, Etc., 
 
 Toronto. 
 
 1892. 
 
 A 
 
a jr"c«^c-i5fieSQ«Ei'C3r«?nnra 
 
 URK II 
 
JUDGMENT OF HON, 1, JUSTICE WEATHERP^, 
 
 The Canada Temperance Act is a Dominion statute 
 for restricting tiie sale of intoxicating liquors and mak- 
 ing it a criminal act, as 8ir Montague Smith described 
 it, for any one, except the manufacturer, in certain quan- 
 tities, and an otWcei- appointed to dispose of it for certain 
 purposes in smaller quantities, to sell or barter the same. 
 
 It is not entirely prohibitory. It is an act b}' which a 
 majority of electors in any county in the Dominion can 
 secure tne restrictive sale above' mentioned. 
 
 One of the objects of the act, recited in the preamble, is 
 that it is very desirable to promote temperance in the 
 Dominion. This, evidently, is the main object of the 
 legislation, to piomote temp raace in those localities where 
 drunkenness exists. 
 
 The right of the Dominion to pass the act was 
 challenged in the Privy Council, (7 App. Ca., 829). Mr. 
 Benjamin argued that this act was a subject of legislation 
 exclusively for the province. He referred to sections 91 
 and 92 of the B. N. A. Act and especially to sub-sections 
 9, 13 and 1(5 of section 92. The act had been held ultra 
 vires the Dominion by a majority of the Supreme Court 
 of New Brunswick, and this judgment had been reverse^ 
 by a majority of the Supreme Court of Canada on appeal. 
 
 At the close of Mr. Benianiin's argument in the Priw 
 Council their lordships did not require to hear counsel in 
 reference to the impeached act being within sub-sections 9 
 and 13, but only in regard to sub-section IG ; that is, thej'- 
 were convinced that the act was not an interference with the 
 exclusive power of the province to authorise licenses for the 
 sale of liquor and they did not consider the matter a 
 
8 
 
 yofijf ti 
 
 question of property and civil rit^lits in the provin'o. They 
 (.lo'ired, however, to hear counsel as to wii<!tiier t.ie act was 
 not a matter of a merely local and private nature in the 
 ])rovince. Then it was ari,Mied in support of the rijj^ht of 
 the ])ominion to pass the act, that it was one, not of a local 
 or private natui-e, hut that it was one dcalinL,' with di-unkm- 
 ness, atlVctiiip^ the whole comnnaiity, its character, health 
 and etlieiency. It was contended " that one test whether a 
 matter was merely local oi- |)rivate was the uiarj^nitudH of 
 ihe interests involved, such as temperance, education, 
 pulilici i-ii;lits, health, \'e."' It was also contended that the 
 case came within th(! words " regulation of trade and 
 comm»"('(!"' in see. 91, suli-scetion '2. 
 
 The court, Sir Montague S»iiith deliveriiifj the jud^^ment, 
 held that tlu> suliject-mattcr of the act did not come within 
 any of the sulijcc^ts assi<,fiit"d to the province, hut that it 
 was one t'xclusivtdy within the power of the Dominion to 
 pass. l^liminatin<; his statement of the cas(; and his recital 
 of the arixument of Mr. jjenjamin, which he disposed of in 
 detail, his reasons aic; comprised in a orief space. He 
 refers to the preaMd)le of tin- act in which the expi'esslons 
 that "it, is very desirahle to promot(> temperance" and 
 that " thi're should lie unifoi'm lei^dslation in all the 
 provinces i'esj;ectin<f the trallic in intoxicating' liipiors" are 
 used, lie says the etlect of the act in any county oi- town 
 where adopted is to " prohibit the sale, except in wholesale 
 quantities, ov for certain specified purposes, and to reo;ulato 
 the traffic m the excepted cases, and to make sales otherwise 
 than as pr3scribed criminal offences." 
 
 He (1( cides expressly that, thou,e-h the effect of the act 
 were prejudicial to the revenue otherwise derivable from 
 licenses, " it does not follow that tlie Dominion Parlianic^nt 
 mio-ht not pass it by virtue of its general authority to 
 make laws for the peace, order and good government of 
 Canada." 
 
 The court held that if the argument that the power given 
 to the province to make laws respecting licenses prevents 
 
< in tlio proviiue. 'I'liey 
 
 to wlustlier i.io act was 
 
 1 piivate nature in tlic 
 
 ni'jiort of the right of 
 
 was one, not of a local 
 
 J dcalinL,' with (innikcn- 
 
 V, its character, health 
 
 that oni; ti'sr, wlu^ther a 
 
 was the iua<::nitu(l<! of 
 
 ieniperance, erlncation, 
 
 Iso contended that the 
 
 j;uiati()n ot* trade and 
 
 i'li\ criiii,' the jiidifnient, 
 ct did not come within 
 i province}, but that it 
 er of the Dominion to 
 the cas(! and his recital 
 liich he disj)osed of in 
 n a iii-ief space. He 
 which the expressions 
 lote temperance " and 
 .^gislation in all the 
 oxicatinjjf liquors " ar(i 
 n any county or town 
 !, except in wholesale 
 i-j)ost!s, and to re<^ulate 
 ) make sales otherwise 
 
 li tlie effect of the act 
 
 rwise derivable from 
 
 Dominion Parliament 
 
 general authority to 
 
 good government of 
 
 t that the power given 
 ting licenses prevents 
 
 i 
 
 the Dominion from legislating respecting any article covered 
 by such licenses were to prevail, laws necessary for the 
 public good or the public safety could not be enacted at all. 
 
 Does not the reference of Sir Montague Smith to 
 " temperance" in the preamble and th • abovt; phrases shew 
 the opinion of the Privy Council to be that all tempoiance 
 laws, or hiws for the public good or safety, or in other woi'ds, 
 morality anti good order in the community, are exclusively 
 within the power of the Dominion, and th' refore that the 
 ju'ovince cannot pass such laws? Otherwise what mean 
 the words " could not be enacted at all i " 
 
 In referring to the act in (juostion, (the Canada Temper- 
 ance! Act,) lu' s!i\s : 
 
 " It has in its legal aspect an ol)vious and close similarity 
 to laws which j)lace restrictions on the sah? of j)oisonous 
 druufs, or of liaii'^erouslv exiilosive substances." 
 
 Docs not this shew the opitnon of the Privy Council to 
 be that an act which places restrictions on the sale of a 
 deletei-iuus sul>stance, namely, intoxicating liquors, is 
 exclusively for tin; Dominion. 
 
 Then the court proceeds with these suggestive words: 
 
 " A law placing restrictions on tluur sale, custody or 
 removal, on the ground that the fret; sale or use of them is 
 dan^'erous to public safety, anil making it a ci'iminal oti'ence 
 puni.shalile by line or inijirisonment to violate these nsstric- 
 tions, cannot properly be deemed a law in relation to 
 ' }»ro])erty.' VVliat parliament is dealing with is not a 
 matti'i- in relation to property and its rights, but one 
 relating to public order and safety." 
 
 Is this not a <leclaration as distinct as it can be made, 
 by the highest coui't of appeal, that a law restricting the 
 sale or custody of spirituous li(juors, because the free sale or 
 use of them is dangerous to public safety, cannot be passed 
 by the province, but can only be enacted b}' the Dominion ? 
 I am not arguing that it is so, but that the Privy Council 
 has held it to be so. 
 
 Then the judgment further states that laws making it 
 a criminal otlence " for a man to set fire to his house, on the 
 
8 
 
 yofix 1/ 
 
 ground that sucli nn act (•Mtluii;^^-r.s the piiUHc safuty, or to 
 overwork his horso on the nromid of ei iielty to i\\o, animal, 
 tlioiij,'h afft,'Ctin<f, in .some senso, prupci ty 'mil the ri<,'hL of 
 a nian to do as hf pleases with his own, cannot properly 
 he repirded as legislation in rt;lation to propcrt}' or to civil 
 rights." 
 
 This is an ai'ixumcMit to shew " that a law making it 
 criminal to sell li(|Uor, except under restrictions, is iu)t a 
 law respecting civil rights or property, liut a law respecting 
 crime, and is for tlie Donnnion exclusively." 
 
 He als:^ argues that " a la '.' which prohibited or restricted 
 the sale or exposure of cattle having a contagious disease," 
 js not under wection 1)2. Imt is a law wliich only th(5 
 Dominion can pass, clearly showing that he regarded the 
 Canada Temperance Act es one which miglit propoily bo 
 held to be an act, not prohibitive, but only lesti'ictive, — 
 whicli shews that the piovince of New lirunswick could 
 not pass a law to restrict the sale of dangerously infected 
 cattle, spirituous licpiors, or such like deleterious thing.s. 
 
 Then speaking of these several kinds of laws, tiiis bind- 
 ing authority proceeds to lay it down that : 
 
 " Laws of this nature designed for the promotion of 
 public order, safety, or morals, .subjecting parties to punish- 
 ment, belong to the subject of public wrongs rather than to 
 that of civil rights." 
 
 'J'hey are described by his lordsliij) to be : 
 
 " Of a nature which fall within the general authority 
 of parliament to uuxke laws for the order and good gov»>rn- 
 n)ent of Canada, and have direct relation to criminal law, 
 which is one of the enumerated classes of subjects assigned 
 exclusively to the parliament of Canaehi." 
 
 The learned Ch'-if Justice of New Brunswick had .said in 
 the judgment appealed from, in commenting upon the 
 Dominion act restricting and regulating the .sale of liquor, 
 as follows : 
 
 " Had this act prohibited the sale of liquor instead of 
 merely restricting and regulating it, I should have had no 
 doubt about the power of parliament to pa.ss such an act ; 
 
1)||I>Ih' .safety, or to 
 iiflty to tlu) aiiiinal, 
 tv 1111(1 till) ri'flu of 
 11, t'iuiiiot projx riy 
 pnipcrty or to civil 
 
 t u l)iw iiiakinn; it 
 •I'strictioiis, is lujt a 
 Hit a law ri's])rctiri<^ 
 
 ■ly-" 
 
 iiliit(>(l or rtistrictiMl 
 -'onta;,Moils dist'aso,'* 
 w which only the 
 at he regarded the 
 
 iiii<,'ht proj^orly ho 
 :, only restrictive, — 
 V Ih'utiswick could 
 in^'erously infected 
 letcrious things. 
 
 i of laws, tills hind- 
 lat : 
 
 • the promotion of 
 L,' parties to piinish- 
 3ngs ratlior than to 
 
 ) l)e : 
 
 U'eneral authority 
 r and ;^ood ifovcrn- 
 n to criminal law, 
 
 f subjects assiirned 
 
 i> ■ 
 
 mswick had said in 
 
 lontinf,^ upon the 
 
 the sale of liquor, 
 
 t liquor instead of 
 ould have had no 
 pass such an act ; 
 
 hut T think an act vvliich in effect authorises the inhabitants 
 of (tach town or jiarish to rcj^julate the sale of litp:, v and to 
 direct to whom, for what purposes, and under what 
 conditions licpiors may be sold tluirein, deals with matt(,'rs 
 of a merely local nature;, which, by the terms of the Kith 
 siib-si'ctioii of section f)2, are within the exclusive control 
 of the local lej^'islature." 
 
 Sir Montaujiio Smitli took the trouble to quote tlie whole 
 of these words, used l)y the: Chief Justice; of New Brunswick, 
 to explicitly point out that " their lordshij)s cannot concur 
 in this view." He then refers to tho preamble of the act to 
 shew that the oV)jocfc of tlu; Dominion was to secure uniform 
 lei;islation in all the provinces respecting the traflic, "with 
 a view to promote temperance in the dominion." 
 
 After stating, it true, that the prohibitory and penal 
 parts of the act are ^nly to come into force in any county 
 or city upon the ado[)tion of a peJtion, &c., ho says, " this 
 does not convert the act into legislation respecting a merely 
 local matter." He says : 
 
 " That the act is clearly meant to apply a remedy to 
 an evil which is assumed to exist throughout tho Dominion 
 and the local option no more localises the subject and scope 
 of the act than a provision in an act for the prevention of 
 contagions diseases in cattle that an officer should proclaim 
 in what districts it should come into efi'ect would make 
 the statute itself a mere local law for each of these dis- 
 tricts." 
 
 Ho adds that " in statutes of this kind tlie legislation 
 is general and the provision for special application of it to 
 particular places does not alter its character." 
 
 I understand by this that the evil of drunkenness or 
 int(!mperanco is assumed f^y the act to exist in different 
 parts of tho Dominion, and from time to time might become 
 prevalent or "break out" just as contagious diseases in 
 cattle might break out, and so a remedy would become 
 necessary from time to time in different localities. I 
 suppose it is for this reason that there is a provision for a 
 majority in any locality to repeal the act in that place, 
 that is when the disorder is stamped out. 
 
10 
 
 VOfiK 1/ 
 
 Tlicrofore it is sniil tliut " in statutes of tliis kind tlio 
 
 loi,'islntion is <,'('nt'ral." I siippos*! tin- inference to Ix; tliiit 
 
 l('i,'isIution of this kind is exclusively for tlie Dominion. I 
 
 do not know wln-tlier it is contended tlmt le^dsliition of tins 
 
 kind or laws relntini^' to the suppression of drunkenness or 
 
 eoMtaijfious diseases may *'e passed l>y hoth the province 
 
 and the I)on\ini()M. I understand tliat only oiu^ le^jislatun; 
 
 can deal with a L,'iven suhject, and therefore I take the 
 
 ineaniui,' of the decision to he that an act to })roiuote 
 
 temperance, or a temperance act, as Sir Montai,'ue Smith 
 
 terms the Canada Ti'uiperanco Act, or a law, to continue the 
 
 use of his laii^ajaije, " placine restrictions" on tlu; " sah^ or 
 
 custody of intoxioatinj,' li(|Uoi's," on tlu? j,'roun<l that tlu; free 
 
 sale or use of tlu'm is dauL^ei-ous to the j)ul»lic safety, is a 
 
 law winch can he passed exclusively hy j)arliament and not 
 
 by a lei;islature of a province ; that such laws are so cordined 
 
 to the Doudnion jui'isdictioM hecaus(> thev do not come 
 
 within the suhjects assi<,Mied to a province, hut" are tl('si;^'ned 
 
 for the promotion of pulilic order, safety, or morals," and 
 
 li!i\in;^r such ohjeets in \ iew, cm he passe<l only l>y the 
 
 J)0Mlill!O(l. 
 
 It was in view of this case of Russell v. Tlic (^ti.i-i'ti, and 
 the decision, after ahle ari,'ununit in the I'rivy Council, 
 havino" titst heeii decided a^'ainst the crown in New 
 Mnuisuick, in a judgment which was revei'sed in the 
 C'oU)'t of Aj)peal iirOttawa, — ^it was in view, 1 suppose, of 
 of this liiiidiuL; decision of a court whose tradition is not 
 to ovei'rule its decisions, tliat when a sinnlar (|Uestion arosi^ 
 before us in T/ir Qurcyi v. McDoin/dl/, the Attorney (Jeiieral 
 and Mr. Russell, adnuttiui;' on the part of the Crown that 
 our act was not a license act, conceded that if it was a 
 temperance act it coidd not prevail and must be laid aside 
 by the court. 
 
 When no lawyer can be found who will undoitake to 
 say how far the le^rislature of the province may «,'o in 
 dcalino- with this sul»ject of trafiic in spirituous litpiors, or to 
 what extent the parliament of the Donunion may pass laws 
 on the sui.ject, when no lawyer will undertake to draw tho 
 
 1 . 
 
tl 
 
 ,ut('s f)f this kind tho 
 
 .! infiTenc't; to l)i; that 
 
 for tlm Dominion. F 
 
 tiifit If'j^islutioii of this 
 
 ion of tlninkcnnt'ss or 
 
 l>y both thr provinci! 
 
 it only onci If^^'islatun; 
 
 thiTcforo I tfiko tho 
 
 t an act to proiuoto 
 
 Sir Montai^nio Smith 
 
 a law, to continut! tlu( 
 
 !tions" on th(! " sah; or 
 
 <,'roun(l thufc the free 
 If jaihlic safety, is a 
 >y parliament and not 
 di laws are so condned 
 :e tlu'V do not come 
 UCe, hut" are desit^ncid 
 ['ety, or morals," and 
 
 : passed only hy tho 
 
 HcJl V. T/w Queen, and 
 
 1 tlie Privy ('(nnu'il, 
 tho crown in New 
 was reversed in tlu^ 
 n view, 1 su])j)o,se, of 
 hose tradition is not 
 sinular ((Uestion arose 
 tho Attorney (r(>neral 
 t of tht.> Crown tliat 
 le(l that if it was a 
 d iniist bo laid aside 
 
 lo will nndortake to 
 province may (^o in 
 lirituous ]i(juors, or to 
 ninion may pass laws 
 ndertako to ihaw tho 
 
 lino limiting' the power of tho provincial le^islatino, T 
 think it more likely that hoth the focU'ral and provincial 
 le^islatnres will ho found, in their onuctmonts, to have 
 overstepiu'tl the hounds of their respective powers, rather 
 than to l\avo restricted tliomsolves witldn the lindts 
 assi<,'ned to them. 
 
 Our duty is tirst to say what is tho intention, or elFecl, 
 or moaning', or scope of tho enactment, and, secondly, to say 
 whether tho provincf; has the ri^dit and power to make a 
 law so interpreted, or havini,' such etlect, meanin<,', or scope. 
 Is the <j:onoral scope and intention of this act to restrict tin; 
 trallic in a hevornjji'e adnutte<lly to the last dei^'ree terrihle 
 ajid danyerous and evil in its oUbcts when used, as it is in 
 oxceptioiud cases, to excess : or is it framed for the purpose 
 of raisin|4 a rev.auio for miniicipal purposes >. It is adnutteil 
 that it is not in its (,'en(;ral scope and intention a license law 
 to raise money. 1 doul»t whether it dot's not cost mon^ to 
 opor!>o the act than it yields. If it is found, upon 
 oxanuiiation of its lannua^re, to ho framed for tho 
 ])urp().st! of jireservini,' or promotiuL,' public order, safety, or 
 morals, hy rei^ulatini;, restricting' and to a certain extent 
 limiting, interfering' with, or provontinn- tho free sale and 
 use of tiu'so deletoriou.s and dant,'erous drinks, then is the 
 act of the province valid i 
 
 We are tohl that th(> act before us is, in almost all 
 respects, siniilar to th<' New Brunswick act, and that the 
 Supremo Court of Canada has pronounced that act within 
 the ]iowei' of a province to pass. Even if this werti the 
 case, and if, in our view, tho Privy Council has made a 
 decision covering' this (pjestion, independent judL^ment or 
 adherence to the views of their lordships in the Supreme 
 Court of Canada would ho out of tho (piostion, hut I am 
 obliirod entirely to <lissent from the proposition that our 
 enactn>ent is in its .scope and <,'eneral efibct identical with 
 the New Brunswick act. Wo all know how a few seominp;ly 
 harndess clauses, oven a few phrases, a lino, or oven a word 
 inserteil in a law, may entirely change or disfigure t^^© 
 whole features of the legislation. I do not say that is the 
 
12 
 
 \m II 
 
 '{.', 
 
 case here. I desire to sti'ain the words of tliis nJ in ord 
 that the decisions of the appeUate courts may throw son 
 light upon our task. 
 
 I liave purposely called attention to the lanf^nao;e 
 Sir Montaoue Smith, in his forcible words, to prove that tl 
 Dominion has exclusive power to pass what he terms 
 temperance act. Wo cannot, perhaps, do justice to th 
 subject, without answering the enquiry, "is the act und 
 discussion a temperance act ? " No judicical notice has be( 
 taken in the judgments delivered in this court, and i 
 attempt has been made at the bar to grapple with tl 
 significant phrase " temperance " used by the legislatu 
 in our enactment. 
 
 As I understand it, the restriction, regulation, or proh 
 
 bitioii of the sale of spirituous liquors, by our enactmer 
 
 is dependent in some measure, if not absolutely, on the wi 
 
 or future determination of a number of societies in tl 
 
 province, recognized by the legislature, devoted to the can; 
 
 of temperance. I regard the provision of the act on th 
 
 suliject as one of the chief provisions of the act and I thin 
 
 if it were not a matter of public notoriety, in and out of tl 
 
 legislature, that this enactment was made and constant! 
 
 amended in the interest of the " prohibitionists," we conl 
 
 see by this provision that the obj(!ct of the law was 1 
 
 contiol the traffic in drink so as to prevent intemperanc 
 
 Indeed Mr. Russell, in arguing the case for the Crow 
 
 directly contended that the province has a right to pass 
 
 law to tiike away intoxicating li(juor from a man withoi 
 
 compensation, and destroy it on account of the injur 
 
 arising from its use. 
 
 What we have to determine in this case is whether or 
 act is not intended to restrict the sale or custody c 
 spirituous liquors because the free sale or use of them i 
 dangerous, or, in other words, whether it does not bear 
 close "similarity to laws which place restrictions o 
 the sale of poisonous drugs," or whether at any rate th 
 enactment is not intended to restrict or put an <'nd, i 
 possible, to the traflic in this article of eonnnerce, manii 
 factured or imported. 
 
words of this aJ in order 
 te courts may throw some 
 
 ention to tlie lann^nage of 
 Me words, to prove that the 
 to pass what he terms a 
 erhaps, do justice to this 
 iKiuiry, "is the act under 
 "^o judicical notice has been 
 ed in tliis court, and no 
 har to u^rapple with the 
 used by the legislature 
 
 ction, re![]^nlation, or prohi- 
 iqiiors, by our enactment, 
 
 not absolutely, on the will 
 nnd)er of societies in the 
 laturc, devoted to the cause 
 ^vision of the act on this 
 ions of the act and I think 
 notoriety, in and out of the 
 was made and constantly 
 prohibitionists," we could 
 
 object of the law was to 
 
 to pievent intemperance. 
 
 the case for the Crown, 
 nee has a right to pass a 
 |uor from a man without 
 n account of the injury 
 
 1 this case is whether our 
 the sale or custody of 
 ee sale or use of them is 
 liethor it does not bear a 
 ch place restrictions on 
 whether at any rate the 
 ^strict or put an end, if 
 :icle of commerce, manu- 
 
 13 
 
 To quash the conviction before us it may not be 
 necessary to go so far as to answer this in the affirmative, 
 because we must, after getting at the intentions of this act, 
 go so far as to ascertain within what provision of section 92, 
 of the B. N. A. act it comes to pronounce it intra vires. 
 But let us first see if the legislation with which we are 
 dealing is not such as Sir Montague Smith would have 
 brought within the exclusive povver of the Dominion. 
 
 By selecting the main and important provisions of the 
 enactment — those which cause the great contention — and 
 shortly stating them, I think we shall more readily observe 
 the true intention. What are these provisions ? What 
 follows is submitted as a substantial view of the promoters 
 and friends of the act : 
 
 " 1. No license shall issue for the sa'e of wine, cider, 
 beer, or spirits, except subject to and under tlie direction of 
 an inspector. 
 
 2. Such inspector shall be a member in good standing 
 of a temperance organization, and in the absence of such 
 organizations or upon their dissolution in the province the 
 sale shall be piohibited, 
 
 ',]. Jn no case shall there be any trade, traff ?, or sale 
 in such licjuois unless the proposed vendor shall first fit up 
 a hotel or premises, and thereafter procure three-fifths of the 
 ratepavers in the district, who shall inspect and be satisfied 
 with the premises, and intjuire into the character of the 
 person, where he is unknown, and certify : 
 
 ((t.) That sale of liquor is desirable in the locality ; 
 (/>.) The fitness of the building and the petitioner for 
 the business. 
 
 4. Petitioner, if he persists in engaging in the traffic, 
 must also prove to the satisfaction of the inspector ; 
 
 (<i.) That each signer I'csides in the district. 
 (6.) That each signer is identical with the person of 
 the same name on the a.ssessment roll. 
 
 (c.) That he owns the property for which he is 
 assessed. 
 
 5. He nuist pay SlO to enable the inspector to jetect' 
 if possible, defects in his pv^tition and proofs. 
 
 G. He shall then pay for a license. 
 
14 
 
 1/ 
 
 f| 
 
 7. Objections may then be taken by every ratepayer 
 separatelj'. 
 
 («,) As to the fame of tlie applicant, 
 (b.) That tlie premises are out of re})air. 
 (c.) That the license is not reriuired 
 
 8. Trials on the above cases shall ))rocee(l before the 
 inspector, who shall rcpoi't on every trial and return the 
 evidence to the Municipal Council 
 
 f). All these cases nia\^ l)e re-tiied Ix'fore the council. 
 
 10. The cotnicil shall not be bound by legal evidence. 
 
 11. After this the council may biini;' on new investi- 
 gations. 
 
 12. In case petitioner should succeed in all these trials, 
 and all the above U'(|uisites arc C()m])li('(l with, but not 
 otherwise, the council, in its discretion, may entertain the 
 aiiplication. 
 
 13. In case petitioner still persists in requiriniif that a 
 license should be issued, iio one shall s<'ll under it who 
 cannot lieforehand ascertain in each case whether the 
 purchaser intends to I'e-sell aJid be able to piove such 
 intentions. (Of course this is impossible.) 
 
 14. The inspector niMV summon any one before his 
 father oi' other I'elaLive, who haj)i)ens to be a, justic(\ foi- 
 violation oi the act. (The temperance organ i/ation 
 may always apj)oint for inspector the sun or biother of the 
 stijK'ndiary.) 
 
 15. If the officer fails he shall pay no costs, however 
 unjustifiable the prosecutU)n. 
 
 1(). There shall be no app(>al or criilorur!. 
 
 17. Proof of a counter, bottle, jug, mug, oi- driid<ing 
 glass in any shop, formerly used as a grocery and liipior 
 store, shall he jn'i'tii" fdcie evidcMice of violation of the act. 
 
 IS. Any one in possession of li(|Uoi' is liable to have 
 it seized and destroyed \\y an officer lu'eaking into his house 
 or premises, or houses may be broken into without reason- 
 able grounds of belief, but merely on beli(>f, though tlu>y 
 contain no licpior." 
 
 The above, 1 think, is a fair abstract of the enactment 
 in question, and I think this form of stating tho substance 
 wil! nable us to ascertain whether it is intendeii to obtain 
 money by this means from licenses and preserve order, 
 or whether the object of the law is not to prevent any 
 person from obtaining a license. 
 
by every ratepayer 
 
 it. 
 
 'pair. 
 
 1. 
 
 1 pi'ocoed before the 
 trial and retui'ii the 
 
 Ix'fore thecouncih 
 I by leo-al evidence, 
 in^- on new investi- 
 
 eed ill all tliese trials, 
 iplicd witli, l)ut not 
 m, may entertain the 
 
 in r('(|uirin<j; that a 
 ill sell undei- it who 
 1 case whethi'r the 
 
 ibic to i)io\(' sueh 
 iblr.) 
 
 any one bcfoK' his 
 s to bi' ;i Jnstice, for 
 pcianec organization 
 son or Iiiotlier of the 
 
 ly no costs, however 
 
 •rhorari. 
 
 i.H', niiK^ or (lriid<in<>- 
 \ i^rocery ami li(jnor 
 t violation of the act. 
 lor is liable to have 
 I'akini;- into his house 
 into without reason- 
 belief, though they 
 
 act of the enactment 
 
 tatini^ tlie sul)stance 
 
 is intcndcil to obtain 
 
 and preserve order, 
 
 not to prevent any 
 
 16 
 
 Tt is true there are persons constantly selling liquors 
 and licenses are issued, but I doubt whether all these 
 provisions are enforced ; in fact we know they could not 
 possibly be complied with. If these provisions were to be 
 stringently enforced would any reasonable rnan invest 
 money in such a trade ? If he does invest money so is it 
 not because he does believe that the law is intended to be 
 prohibitiv(\ and is consequently invalid ? 
 
 If this enactment, stripped of all extraneous matter, is 
 such as to deter all reasonable men from investing monej'- 
 in the trade, with the intention of abiding by the provisions 
 of the law, then it so interferes with trade and is so 
 prohibitory in its character as to be invalid as a provincial 
 act. 
 
 I have read the deliverance of the Privy Council. 
 Without fuithei- imperial legislation that judgment, I 
 'Understand, must remain law. The Privy Council is bound 
 by it so far as it is tlie interpretation of the British North 
 America act. and every one is safe in assuming it to bo 
 law. On the occasion of the iudiiment in Riiss<dl v. The 
 Qnrcii, and on one other occasion only has the Privy 
 Council attempt(^d to ortei- reasons for an interpretation of 
 the luiperial act relating to the sale of liquors. This other 
 occasion was in l[()(hje v. Tlie Qiiecn, App. Ca., 117. . I refer 
 to it, not because the Privy C^ouncil has overruled Russell v. 
 T/ir, (^aeen, for in this latcu' case they expressly confirm the 
 law as laid down in the first decided case, but I refer to it 
 because it is said to be more applicalile to the question 
 di.scussed than Russell v. The Queen, and, being the more 
 recent case, it niay creati; a stronger impression and assist 
 us more than Russells case in determining the (piestion 
 before us. 
 
 In II()(hje V. The Queen, App. Ca., 117, there was a 
 tavern license issued by connnissioners authorized by the 
 provinct^ of Ontario to make rules that billiard rooms in 
 taverns should be .shut on Saturday night at 7 o'clock. 
 There was a conviction for keeping the room open after 
 that hour. 
 
IS 
 
 MK I! 
 
 1 
 
 A board of commissioners for each city or district was 
 provided, and eacli board was to make rules for each place 
 and impose penalties. The only question actually before 
 the court was as to the validit}' of the conviction for keeping 
 open the billiard room. If there was power to enforce the 
 rule as to that one thino it was so distinct in the rules as 
 to have been enforced irrespective of most, if not all the 
 other rules ; but it may be assumed the province empowered 
 the issuing of tavern licenses, authority forvvhich.no doubt, 
 is expressly ociven in terms in the Imperial act. There is 
 nothing to shtnv in that case an intention to put an end to 
 intemperance, or to restrict or put an Jend to the trade in 
 intoxicating liquors. That the act was not a reasonable and 
 fair license law no one pretended to sa}', and no one could 
 say that it was not such a law as has always been conceded 
 might be passed for retailing liquors in this province. In 
 support of the conviction it was contended only that '' the 
 lifjuor trade, like all other trades, is subject to local regulation 
 for purposes of police," that the commissioners were a 
 municipal institution," that " the interfcnce with trade and 
 commerce was only incidental " It was admitted that 
 Russell v. T/ie Queen establishes the right of the Dominion 
 to legislate on the liquor traffic as a matter affecting the 
 peace, order and good government of Canada," and that 
 " this is not inconsistent with the right of the province to 
 legislate on the same subject for the purposes of police." 
 
 It is stated in the judgment that Russell v. T/te Queen, 
 when properly under..tood, is not an authority in support 
 of the appellant's contention, and their lordships do not 
 intend to vary or depart from the reasjns expressed for 
 their judgment in that case. 
 
 The court said the impugned license act " was entirely 
 local in its character," and explained that by saying that 
 it appointed commissioners to make regulations for each 
 municipality for limiting the number of tavern or shop 
 licenses, for exempting certain licensees from having all the 
 accommodation required by law, for legulating the taverns 
 and shops, and for defining the duties and powers of license 
 inspectors, and to impose penalties. 
 
17 
 
 city or district was 
 rules for each place 
 ■ition actually before 
 )Tiviction for keepinfi- 
 oovver to enforce the 
 ;inct in the rules as 
 most, if not all the 
 province empowered 
 ' forwhich.no doubt, 
 )erial act. There is 
 ion to put an end to 
 |end to the trade in 
 not a reasonable and 
 Y, and no one could 
 Iwaysbeen conceded 
 n this province. \n 
 ded only that ' the 
 !ct to local retaliation 
 mmissioners were a 
 cnco with trade and 
 was admitted that, 
 x\\i of the Dominion 
 matter affectinij the 
 Canada," and that 
 ; of the province to 
 irposes of police." 
 issell V. Tlip, Queen, 
 uthority in support 
 ir lordships do not 
 asjns expressed for 
 
 3 act " was entirely 
 liat by sayinf]r that 
 emulations for each 
 of tavern or shop 
 from having all the 
 u latin 1^ the taverns 
 id powers of license 
 
 The court, after commentinfj on these duties of the 
 commissioners, proceed to say : 
 
 " These seem to bo all matters of a merely local nature 
 in the province and to be similar to tlioui^h not identical 
 in all respects with the powers then bojoni^inj,; to municipal 
 institutions under the previously existing laws passed by 
 the local parliaments" 
 
 In addition to the above language all that is said that 
 is useful in Hod<;e's case is as folhnvs: 
 
 " Their lordships consider that the powers intendiid to 
 be conferred by tiu; act in (|Uestion, when projierly under- 
 stood, are to make regulations in the nature of police or 
 municipal regulations of a merely local character for the fjood 
 government of tavei-ns, &c., licenst'(l for the sale of liijun! v' 
 retail, and such as are calculated to j)rescrvt' in the n 
 pality peace and public decency and repress drunk .-ss 
 and disorderly and riotous conduct. As such they tiinot 
 be said to interfen^ with the general regnlatiot* tiade 
 and commerce, which belongs to the hominiiin liaiiient, 
 
 and do not conflict with the provisions n ('anada 
 
 Temperance; Act, which does not appear to h. as yet been 
 locally adopted." 
 
 Whether the integrity of the Ontario act escape<l the 
 Privj' Council by reason of its pticuliaily local charactej-, it 
 is difficult to say. 'JMie main scheme of the act seems to 
 l)e to leave to local commissioners the power to make all 
 the legidations relating to the letail trade in shops antl 
 taverns, and all the restrictions necessary in those; |)laces 
 where the commissioners are, and to preserve public decency 
 and repress drunkenness and disorderly and riotous conduct 
 in those places. 
 
 It is very striking in Rasxdl v. The Queen that one of 
 the chief reasons assigned by the Privy Council for holding 
 that the Dominion had exclusive power to pass the Canada 
 Temperance Act was that it v/as " passed with a view to 
 promote temperance," and in Hotlge's case, in whiqh the 
 couit expressly renounee any idea of departing from the 
 reasons given for their former decision, they mention 
 among the reasons wliy the province had exclusive power 
 to pass the Liquor License Act, the repression of drunken- 
 ness in t.. ' municipality." 
 
YOfiK (/ 
 
 / 
 
 IK 
 
 It is clearly shown that the words " in the Dominion,' 
 which wonld seem to qualify the phrase " to pi-omote 
 temperance" di<l not weii^h with tiio Privy Council, hecause 
 it is admitted in their judijjment that the Canada Temper- 
 ance Act was intended to be called into exercise in those 
 municipalities where druid-cennoss happened, for the time 
 hein^f, to prevail. 
 
 It is quite obvious that there was, in the mind of the 
 Privy Council, a distinction l)etween the " promotion of 
 temperance" and "the repression of di-uidcetniess." The 
 first is not directly ami imme(liately necessary for the 
 preservation of law and order. The otluM- is instantl}^ and 
 constantly re(iuired for police and municipal j)ni-p()ses. 
 The province, says the court, may authorise commissioners 
 in a locality to pass rules for the i)reventinn of drunkenness, 
 and may impose a p(nialty wheri; necessary for the order 
 of that particular locality. That whole subject is entirely 
 in the discretion of the province. They may prevent 
 drunkenness, but they nuist not prevent the j)roper or 
 Qualitiiid use of the bevernj^res the e.Kcessive use of which 
 produces drunkenness. In so far as it is necessary t i shut 
 a billiard room in a })lace where persons are likely to 
 assemble and <lrink to excess, connnissioners in tliat locality 
 who may know the circumstances ajid can conveniently 
 re<:(ulate the traffic without suj)pressino' it, may be em|)()w- 
 ered by the province to imjiose penalties for the infraction 
 of their rules. But for the promotion of temperance in a 
 locality or miniicipality where drunkenness prevails, to 
 brinff that community back to a state of irenei'al ijood order, 
 and to put an end to the vice of drunkerniess as you would 
 to a contagious disease, it is nec(-'ssary to obtain Dominion 
 legislation to confer that power on the electors of '^ 
 municipality. 'J'o prevent tin; sale of poison or other 
 deleterious substances Dominion legislation is necessary. In 
 •*'' provincial license hvw we aie bound to recognize the 
 custom of using intoxicating liqu(jrs,and every nuin, in such 
 a law, must have secured to him tlie light to buy the 
 article. The trade in such aconnnodity must not beprevonted. 
 
 i 
 
19 
 
 " in the Dominion,' 
 |)hraso " to proinoto 
 fiivy CJounc'il, hccanse 
 Itlio Canada Teniper- 
 liito oxorciso in those 
 |l»pent'(l, for the time 
 
 in tlie mind of tlic 
 li the " promotion of 
 
 ili'uid-cenness." The 
 Jy necessary for the 
 
 ther is instantlj^ and 
 
 mnnicipal purposes. 
 
 horise commissioners 
 
 iitii)n of drnnlcenness, 
 
 pessary for the order 
 
 lie suliject is entirely 
 
 They may prevent 
 event the proper or 
 :cessive use of which 
 t is necessary t ) shnt 
 persons are likely to 
 ■iioners in that locality 
 md can conveniently 
 1,^' it, may lie em|)o\v- 
 ios for the infraction 
 
 I of temperance in a 
 dcenness prevails, to 
 of ;j[eneral good order, 
 :enness as you would 
 
 to ohtain Dominion 
 
 II the idectors of a 
 of poison or oth(>r 
 
 ition is necessary. In 
 111(1 to recoi^aiize the 
 id every man, in such 
 10 rinht to l)uy the 
 lUst not beprovonted. 
 
 Tlic Dominion may restrict or entirely put an end to the 
 trade, and may even prevent entirely the manufacture or 
 use of the article. It is admitted that if the operation of 
 the enactment before ns prevents any one from purchasing 
 what wines and liipiors lie requires for consumption in a 
 icasonable way and not by stealth it is invalid. 
 
 Before the introduction of the federal system there was 
 no (litHculty whatever in dealing with the subject. Each 
 province had absolute power. Now, when the Dominion ami 
 the i)rovince constantlv claim the right to legislate on the 
 subject under the !>. X. A. Act, it is for the court to 
 deteiinine the limitation of the respective powers. If, in 
 what may be called a license act, there is found to be an 
 intention to do more than to raise money from the issue of 
 licenses, the (|Uestion is how much more ? It is true enough 
 that because in such an act theie happei\ to be words which, 
 propei'ly c()iistrue(l, restrict the trade in whiskey and 
 make it in some cases punishaldi' to sell strong drink, 
 even witli a. liccsnse, it does not follow that the act, or any 
 jiart f)f it, is inxalid. It may be ver}' diilicult indeed to 
 intei[)ret such an act. I t\\iuk it is in this case without due 
 examination. Then; may eviilently be an intention in a 
 license act to repress di-unkenness in a qualitied sense, and 
 yet, as w(! h;u(? seen, the act nuij' be exclusively within 
 the power of thi' jirovince. We must lead the whole act. 
 If we find, even in a license act, provisions which shew 
 clearly that tlit^ m;iiii intention and scope of the act is to 
 put an end to dnud^eniiess, and, if we tind that such an 
 act, strictly carried out, would make it intolerable for any 
 man to engage in the trade, then oui' incpiiry must be still 
 whether tlit; province h.is not such a power. Counsel for 
 the Crown in this case, contends, as I have mentioned, that 
 the legislature of tin' ])r<)\ince has the exclusive power, 
 ^'o doubt the legislature desires to have such a power, and 
 they have a right to get that power by any form of words 
 which would secure it to them, the most ditticult or the 
 simplest to construe. They have a perfect right to take a 
 license act, pure and simple, and add clause upon clause and 
 
YORK II 
 
 II 
 
 1 ! 
 
 1;^: ! 
 
 20 ' 
 
 word upon word until they teach the entire limit of their 
 power. I have nientionnd in a previous case the difficult}- 
 of the task, either for the Dominion or Provincial leufisla- 
 ture, under the federal system, to exhaust in an act the full 
 measure of their power without encroacliinj,' upon the 
 power ot the other. This renders our duties more diflicult, 
 but we must, notwithstanding, inter[)ret these acts as often 
 as they come before us. 
 
 I have compared the New Brunswick License Act of 
 1887 with that of Nova Scotia of 188G, and I should .)iidg(! 
 the larger number of clauses of the former are copied from 
 the latter i ct, and the general framework is the same, as we 
 were infoi nied at the argument. An<l I have also carefully 
 read the decision of Damihar v. Petevfi, appealed from the 
 Supreme (Jourt of New Brunswick to the Supreme Court 
 of Canada, 17 S. C. C, 44. 
 
 'Jlie New Brunswick act pin-mits the sale of lirpior in 
 hotels, saloons and taverns to l)e drunk in the ordinary way, 
 and to be <lrunk at bars. The minimum license fee is S2o, 
 and the aj)plicant only lecpiires to present a petition of 
 one-third of the latepayers. And that act permits wholesale 
 dealers to sell in (juantities of one pint. Though I say most 
 of the clauses appear to have been copisd from the Nova 
 Scotia act there is a very essential diH'erence between the 
 two acts, so much so that while a court or judge might 
 come to the conclusion that one act was intended chiefly to 
 restrict or prohibit the sale, the same judge or court might 
 be compelled to decide that the other act was not so 
 intended. 
 
 Some of those clauses and provisions of the Nova Scotia 
 act, which have been relied on, and to which I have referred 
 ii-. Queen v. McKenzie, 2.S N. S. R., G, and which, perhaps, 
 show the strongest intention to make the Nova Scotia act a 
 prohibitory or temperance act, are carefully omitted in the 
 New Brunswick act, though the preceding and following 
 sections are vevhatim copies of our act. 
 
 I have already referred to the trials of the objections to 
 be raised against a petition to take place before the inspector 
 
21 
 
 entire limit of their 
 us case the dirticulty 
 or Provincial lesjfisla- 
 anst in an act the full 
 croachiiif^ upon the 
 
 duties more dilHcult, 
 •et these acts as often 
 
 wick FjicenHo Act of 
 ), and I should iiidnrc! 
 ■nier are copied from 
 oi'k is the same, as we 
 1 I have also carefully 
 rs, appealed from the 
 » the Supreme Court 
 
 the sale of li(jiior in 
 < iji the onlinary way, 
 um license fee is $2o, 
 present a \)etition of 
 tact permits wholesale 
 t. Thouj^h I say most 
 :)pi2d from the Nova 
 irt'erence between the 
 court or Jnd^e mi^ht 
 as intended chieHy to 
 judi^e or court might 
 her act was not so 
 
 ns of the Nova Scotia 
 which I have referred 
 and whicli, perhaps, 
 the Nova Scotia act a 
 efully omitted in the 
 :eding and followin<f 
 
 s of the objections to 
 e before the inspector 
 
 and before the Municipal Council. When these are concluded, 
 in the New Biunswick act, there is no further investipjation 
 possible, whereas in our act there may bo still further 
 investi<'ations and trials under words carefully loft out of 
 the New Brunswick act. 
 
 Perhaps one of the strongest arguments to shew that 
 our act is prohibitory in its character is the provision 
 which gives the whok; operation over to the action of the 
 tempetance organizations. That provision is in our original 
 act. Though before the daughtsman of the New Brunswick 
 act, lie omitted all reference to such a provision, whereas 
 our legislature has, by amendment, made the provision 
 more stringent still. 
 
 If there is one provision in our act M'hich, if enforced 
 would prnctically prevent a liquor dealer from carrying on 
 business, it is that in sub-.sections 1 and 2 of section 53 of 
 the act, which lays the burden of proving that liquor .sold 
 by retail was not purchased for the purpose of re-sell- 
 ing the same, in all cases upon the licensee. The 
 clause immediately preceding this in our act is copied 
 verbatim in the New Brunswick act. So is the clause 
 immediately following the prohibitory clauses, but the 
 prohibitory clauses are entirely omitted from the New 
 Brunswick act, which omission, I think, as well as other 
 omissions, might be cited in a case under the New 
 Brunswick act to .shew that it was the intention of the 
 legislature of that province to pass a mere Iicen.sc act. 
 
 Then the clause relied on giving power to search in any 
 private residence for liquor without grounds of belief is not 
 in the New Brunswick legi.slation. Neither are the clauses 
 about which there has been so much litigation, taking 
 away, practically, all power of appeal or certiorari and 
 preventing one, however clearly innocent of a violation of 
 the act, from having costs, and permitting a prosecutor to 
 select a relative as the justice before whom to try his case- 
 All these have been referred to to show that our act is 
 intended to be prohibitory. 
 
99 
 
 YORK II, 
 
 1 « 
 1 1 
 
 i\ 
 
 I 
 
 It' 
 
 II 
 
 
 When the New Brunswick tavern and saloon provisions 
 are read, and it is found tliat the most aiufde provision is 
 made for drinking; at bars and in all jiarts of the pnunises, 
 and when so small a (juantity as a pint may he «;ot at a 
 shop or wareroom, and when the provisions of our hotel 
 license are found to he so he'i«,'(Ml around as to make the 
 sale practically impossible, and to prevent the existt>nce of 
 a bar, the characters of the two acts in their lar^^est features 
 are found to be extremely dissindlar. 
 
 'j'he only ])oints in DunalMi' v. PcAci's taken in the 
 factum, and argued on the contention that the act was idtiut 
 vires were : 
 
 " 1. Decause the ratepayers could, under the act, 
 prevent licenses beinfj issued. 
 
 2. It is in restraint of trade to attach a stigma to the 
 business by preventing members of the council, justices, or 
 teachers from liolding licenses." 
 
 And Mr. Justice Patterson, in stating the grounds of 
 the ai'mment, savs : 
 
 " Of the two j)oints raist>d on this suliject on«> i-(.'lates to 
 the rcciuircnmnt of ii ocrtiHeate signi'd by ouc-third of the 
 ratepayers of the locality as a (|ualiiicatioii for obtaining a 
 license, and the other to the (lis(|ualitication under section 
 7(), of licensed jxMsons fr(jm holding commissions of tb(? 
 peace or municipal olliees." 
 
 And Mr. Justice (Iwynne says tiie proliibition argument 
 was rested on sections 27 and 10, and we must remeudt(U\ 
 when he says, evoi of the New Brunswick act, that " we 
 cannot hokl the object of the le'dslature to have been to 
 efl'ect pioliibition of the trade," his observations are to 
 be limited to these clauses ordv which were relied on. Wc 
 cannot, in other words, suppose him to say that, no matter 
 how stringent may be tlie conditions re(iuired to permit a 
 license, even though they eflectually prevent sale, the court 
 could not declare the act, because it was called a license 
 act, ultiu vires the Provincial Legislature. 
 
 Mr. Justice Gwynne, to wliose authority, even if his 
 deliverance was not that of the court, which would be 
 
aa 
 
 ami saloon provisions 
 it (iiiiplii provision is 
 arts of tilt' pHMnises, 
 lit may be <^ot at n 
 )visions of our hotel 
 iiiid us to niaUo tint 
 cnt tilt' t'xist(MiC(! of 
 their lart^'cst features 
 
 l-'c.h'i's tak(;il ill the 
 hat the act was ioUi'<i 
 
 iilil, under the act, 
 
 tacli a stii,niia to tiu; 
 e council, Justices, or 
 
 itin^' the ^'rounds of 
 
 suhject one relates to 
 I hy one-third of the 
 lation for i^htainiuLC a 
 ication under section 
 : coniniissions of the 
 
 proliibition ari,'unient 
 we must remeuilKU" 
 
 > 
 
 isvvick act, that " wo 
 :ure to have lieen to 
 s observations are to 
 
 were relied on. We 
 ) say that, no matter 
 
 required to permit a 
 irevent sale, the court 
 
 was called a license 
 ure. 
 
 jthority, even if his 
 urt, which would be 
 
 conclusive, the very firreattsfc weii,dit should lie t^'iven, says 
 in Danaher v. Peters : 
 
 " We cannot hold the object of the le</islnture to havo 
 been to eU'ect prohibition * * iinder color of an act 
 establishing- municipal regulations alVectiny that trade." 
 
 lie also says : 
 
 " So neither can we hold the certificate of approval of 
 the fitness of the .'ipplicant * * oi- of the place in which 
 he |)rt)j)oses to carry oii the trade * * iioW(;ver stiin^n>nt 
 the provision U))oji that suliject is, to have been enacted for 
 the j)urpos(' of etlectinL,' prohibition." 
 
 And he further says : 
 
 " I'jut defects or imperfections in tlu! act or ))rovisions 
 therein which niay ajipear to be, or apjienr to some to be 
 unreasonable, will not Justify us in ])i'(jnouiicin<,f the ti'uo 
 object of the act to have been })r()hibiti(m, total or partial, 
 of the trade of dealin;^ in the sale of rK[Uois, uiidei' pretence 
 of establisliin<,' municii)al regulations upon that subject." 
 
 I need liai'dl}' say — but sayini,;' it I may say in the most 
 emphatic manner, and 'f possible, i^o much further tlian the 
 distinn'uished Judi;'!' aliove cited — that I think it completely 
 and forevi.-r out of the ijuestion for this oi* any other court 
 or Judi^^! to su^'j^cst, or suppose, or imagine that tlie 
 legislature shouhl j)ass an act upon any ]n'etence, or color 
 or with any fraudulent or deceptive })urp()se whatsoever. 
 It woiiM b(^ as much out of place to sui;iL,'est such a tliinj^' 
 as for the le^qslature to sui,';^est that the court had used 
 laiiLjuaife under pretence of deciding one thing so as to get 
 some other tliinii' decided. 
 
 We are bouJid beyond all question to assume that the 
 legislature acts bona fide. And it will be admitted, I 
 think, that where it imposes conditions to the performance 
 of a thing, without the fuJHIment of which the thing shall 
 not be done, and the fulfilment of the conditions are 
 obviously next thing to impossil)le, any Judge who sees 
 this must understand that the intention was to render the 
 thing next to impossible to be done. 
 
 It will also be admitted that if the legislature said that 
 the .sale of liquor .should cease entirely unless under license 
 
 J 
 
you I! 
 
 t\ 
 
 It 
 
 n 
 
 II 
 
 issued arvl controllt'il hy an inspector t) Ix^ appoi»it<'<l l)y n. 
 toiiiptM-iuun; sooicty if tli(» society naw fit to appoint, it 
 would licconic oltvioiis that tlicy inteniitiil tliat titc (picstiun 
 of st()i)|>in;,' the tratlic in drink slionM l)o a matter to lio 
 determined entirely liy a tetnperance society. Then if they 
 say tliat then; shall he no tratlic in the article unless under 
 direction of I'uc pled^'e(l to ahstain from the use of the 
 article, if, as 1 aihnit, the huiu'uai^'e is not a mere pretence, 
 they must mean that there is likely to he a moi-e viiforoiis 
 aduiinistration of the restrictions on its use. If they enact 
 that the sale shall stop if the temj)erance orLCani/atioin cease 
 to exist, thev must mean Hiat if the ori^'ani/atiojis se(> tit to 
 dissolve tlie tratlic shall no lon^^^er exist. To take tho 
 lowest ground, they must mean something; by the important 
 clause respecting,' the temperance organizations. And I think 
 it is fairly su^jj^'ested that th»;y mearit to pass a temperance 
 act, which etM'taiidy is not done e()l()ral)ly hut <piite openly. 
 
 Let us assume that tli».' Ie(rislatiire imderstood that no 
 act could he parsed directly aimiiiLj at tht3 stoppa^je of the 
 liquor traffic, hut that they understood if prohihitioii 
 practically resulted from the; passa;4(; ofsoineact — no matter 
 what act — th.it then it would he impo^sihle to say that 
 prohihition should not itc t.'nforci'd s > lon;^' as the j^iven aet 
 was to operate. 1 think they could not dej>end on this, but 
 I do not see that tliero is any pretence or ^leception about 
 it. The truth is it is acknowledged to he most dillicult now, 
 under tlie federal system, to say how far one le>dslative hodv 
 can go without encroaching on the powers of the other. Au'l 
 it is certainly not colorable, in an attem[)t t ) assert the whole 
 of their powers, to state them too larg.jjy and leave it for 
 the courts to limit them. 
 
 This brings us back to the simple proposition tliat if, 
 by reading the act, it is obvious its tsfKict i.s to restrict, it 
 must be taken to l)o intended to restrict. No judge, in 
 interpreting an impeached act, would say " it will not do to 
 .suppose the legislature intended to restrict, l)ecause it i>i 
 clear they lia\e no right to icvstriot, and it would l»e imputiiiL; 
 a desire to encroach, which is not to be imputed." This 
 would be obviously illogical. 
 
 'lit'. 
 
 iliii 
 
1 
 
 t) ho appointed l)y a 
 iw lit to appoint, it 
 'It'll that tlir quostlMii 
 li lit' a matter to Im' 
 society. Then if they 
 e articl(^ iinh'SH utnli| 
 from tho use of the 
 not a mere pretence, 
 o he a more vi;^or()iis 
 ts use. If th«\v enact 
 ce ort^'ani/ations coaso 
 rL,'fini/ation.s see fit to 
 exist, T(» tai<(^ thi' 
 lin^f hy the importaiif 
 li/ations. Am! I think- 
 to pass a tempiManec 
 ihly hnt (piito openly. 
 o understood that no 
 t tlie. stoppaL(o of the 
 ivstood if [)roliihitioii 
 of somo act — no matter 
 inj)o>sil»le to say that 
 lon^f as the j^iven act 
 ot depend on this, hnt 
 ce or deception ahout 
 o he most dillicult now, 
 'arone Ici^islative hody 
 vers of the other. Ami 
 upt to assert tho whoK' 
 4"ely and leave it for 
 
 le ]M-oposition that if. 
 'ffect i>r to i-estriet. it 
 ^strict. No Jnd<,'e, in 
 say " it will not do to 
 restrict, i)ecaiis(' it i-i 
 d it would he imputiiii,' 
 o he imputed." Tlu^ 
 
 25 
 
 It is said the Supreme Court, or a nmjority of the 
 Supi'ciiie Court, has held that it is competent for the 
 le;^islat\ire to attucli conditions to a reitilicate of a 
 petitioner sostrin^^enta.s to etlect actual prohihition, and tiie 
 court Would he powerless to interfere. Or, in other words^ 
 if the production of such a certiticate is hy the proviticial 
 law made a sim' (jiki tuni for carryin;^' on the traile, thou^^h 
 piactically it shoidd he ohvious tiiat the; reqiurementH for 
 iiettiny; .such certiticate aic so strinu'ent as to render its 
 production impossiiile, we are prevetitt d hy that appellate 
 court from holding' this to he a prohihitory r.ct. 
 
 And still further it is contended that that court is 
 authority for saying' that thouL,di the provisions of the 
 provincial license law practically rcuiler it impossihle to 
 ini(h!ri,'o the imposed operations of procurin;^' a license and 
 intolerahle to attempt afterwards to sell, yet that these could 
 only he said to hi' luii'easonahle, or a]>parently unreasoiuil)le 
 provisions and it would he nnpossihle to .say that the inten- 
 tion wa.s to prohihit, wholly or partially. 
 
 I think this would l)e torturiuLr the lan^juacio of the 
 court. It has heen su^^i^n-sted that if we shcjuld hold tlie 
 provisions in (jur act inh'd uiirn, such a construction 
 as this would not only encouruj^'e hut enahU; tlie advocates 
 of prijhihition to secure other provisions »vhich would render 
 it needless to n[)ply to tlie Dominion Pailiament, the 
 admittedly proper hody to pass a prohihitory law. 
 
 1 think it clear that all the Supreme Court decided on 
 the sul»ject of tho New Ihunswick license law was that, in 
 the li^ht of the two clauses relied on, however strin^'ent 
 tiiose particular clauses nui^ht seem to he, they could not 
 pronounce tho intention of the av,'; on .hat ;,n'ound to have 
 been prohihition, total or [)artial. The (piestion here rai.sed 
 as to the scope of the act was not raised, .so far as I can 
 observe. I distinctly understand the contrary. The 
 question whether, on the whole face of the act, taking into 
 con.sideration all its provisions, it was not intended as a 
 temperance act, within the principles to be deduced from 
 the Russell and Hodge cases, was not discussed or decided, 
 
se 
 
 YORK 1/ 
 
 >\ 
 
 If tliat had been decided then the whole question would 
 turn now upon whether our net is to be distinguished from 
 that of New Brunswick. Indeed I ought to go so far as to 
 admit that the more stringent provisions in ours in that case 
 would be insuffic' -nt to take the case out of the operation oi' 
 Danahar v. Pete is if conditions added to a so called license 
 act, in effect stopping the traffic, can l)e sustained on the 
 ground that to hold such conditions ultra vivfit^ would be 
 untenable as impeaching the honii fides of the legislature. 
 
 When the (|uesti()n is raised in the Supreme Court 
 
 whether, regarding the diiiVrent lestrictions imposed on a 
 
 trader willing to pay for a license and subject himself to 
 
 police condition, before he procures the license, and after- 
 
 waids in his hotel or shop, it is possible to comply with 
 
 these provisions, one after the other, and run the gauntlet 
 
 of them all an<l vet carrv on the ti'a*le, — when this (luestion 
 
 arises, it will he necessaiy for all the sections of the act to 
 
 be examined together to say whether the intention is not 
 
 chiefly to curtail the habits of drinking. We can easily 
 
 imagine many restrictions any one of which now added to 
 
 the existing ones wotdd put beyond doubt in every mind 
 
 an intention to curtail and suj)press or diminish the evils of 
 
 di Minkenness. If the Sujxeme Court were invoked on this 
 
 ground would they come to the conclusion, as argued, that 
 
 this is not the intention of the act or would they say that, 
 
 though it is the intention, the act can be enforced to 
 
 diminish and, if possible, suppress tlie evil. 
 
 For my own part I think the arguments shewing 
 intention in the B. N. A, Act to confer on the ])rovince 
 exclusive powei- to legislate on the subject of spirituous 
 liquor, and to restrict and even to prohibit the traffic and 
 promote temperance, very strong, ami I need not say, but 
 for the deliverance of the Privy Council, how 1 should be 
 inclined to decide. If it appears clear that the decision of 
 that highest court covers the case before us, we cannot, 
 with all respect, however umch the judgment in DdnaJiar 
 V. Peters, may impress us, even if it could not be distin- 
 guished, follow it. 
 
 pnf 
 
27 
 
 whole question wouM 
 l)e (listingulslied from 
 ip:ht tof^o .so far as to 
 )nsin ours in that case 
 out of the operation of 
 to a so called license 
 he sustained on the 
 ultra vires would he 
 es of the lejirislature. 
 the Supreme Court 
 ictions imposed on a 
 ind suhject himself to 
 he license, and after- 
 'si})le to comply with 
 !ui<l run the orauntlet 
 i, — when this (juestion 
 sections of the act to 
 the intention is not 
 kin^-. AVo ean easily 
 which now added to 
 d()ul)t in ('Very mind 
 r diminish the evils of 
 were invoked on this 
 usion, as ai-^nicd, that 
 would they say that, 
 can he enforced to 
 evil. 
 
 ari^Miments shewin<'' 
 rifer on the province 
 suhject of spirituous 
 •hihit the traffic and 
 
 I need not say, but 
 2\\, how I should he 
 
 that the decision of 
 i^fore U8, we cannot, 
 dnrment in Danahar 
 could not be distin- 
 
 The legislature has already made promise to test the 
 question under this act before the Privy Council, and in 
 any case we must shape our views, without attempting 
 independent judgment, merely to deciding whether these 
 convictions are within tlie principle laid down by the 
 highest court of appeal. 
 
 I ought to point out that it sliould not be suppo' ed that 
 because an act is ultra riirs ttie Provincial Legislature it 
 follows that the same enactment is intra vires the 
 parliament of tlie Dominion. It is characteristic of the 
 federal system that an act may be so framed that neither 
 body can give it validity. 
 
 It is ])ecause I am entirely unable to see that this 
 enactment now before us is anything more or less than a 
 law to make it ditticult or im})ossible to tra«le in drink, and 
 bocaus(i T see that it is enacted in the interests of the 
 tem])erancc organizations and because it is so framed that 
 if this class of persons so elect they may prevent the 
 appointment of an inspector and so prevent licenses or sale 
 of <lrink, that I am driven to decide under the distinct 
 utterances of the Privy Council il it it is ultra, vires. 
 
 It becomes unnecessary, in this view, for me to offer an 
 opinion upon the other ([uestion raised in this case, namely, 
 whether it is within the province of the Provincial 
 Legislature to pa'^s an act to regulate procedure in those 
 criminal matters which arise in violation of the penal clause 
 provided for the enforcement of an act admittedh' witiiin 
 the power of the province to pass. I do not think it 
 follows, even if the license act were intra vires, that then 
 the Procedure Act is so. That is, I think, a different 
 question on which, as I say, 1 ne d offer no opinion. 
 
 I