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' VOL. I TORONTO: PKINTED BY C. BLACKETT liOBINSON. 5 JORDAN ST 1882. REET. T'L. 99512 TABLE OF CONTENTS. Preface Table of Cases REpoRTKr) ...... Table op Cases Cited Errata The Britlsh North America Act, 1867 . The Britlsh North America Act, 1871 The Parliament of Canada Act, 1875 Cases Reported Table of Sections of the B. N. A. Act, 1867, Cited. Index of Principal Matters pauk vii.-viii, ix.-x. xi. -xxii. xxiii. 1-51 52-54 55-56 57-840 841-842 843-852 PREFACE. This work is intended to include the decisions of all the Courts which have had occasion to construe the Act. The reported cases in the Privy Council, the Supreme Court of Canada, and the Superior Courts of Law and Equity of the Province of Ontario, are contained in the present volume. Cases in which the decisions pronounced have hecn appealed from and which therefore have not yet been finally disposed of are reserved for a future volume. The second volume will contain the reported cases in the Courts of the other Provinces, and cases in the Privy Council and Supreme Court the j-eports of which were n..t received in time for the present volume. The method of arrangement adopted has heen to print, first, the judgments of the Court of highest authority, and then those of the other Courts. The decisions of each Court are placed in order of time. Where the judgments of several Courts in any case are given' the fiual judgment is placed first, and is printed in large type, and the judgments of the lower Courts follow in smaller type. The heading of the pages shews the highest Court to which the case has been carried. The Reports are taken from the Ofticial Reports wherever this was practicable. Most of the head-notes have been revised or entirely re-written. Where other points than the constitutional one were involved, the statement of facts has in many cases been abridged. Vlll. I'RF.FACK. m In no case has any omission been made in a judgment without the omisHion being marked by asterisks, or otherwise. The omis- sions are of matters not affecting the constitutional points. Squflre brackets, thus i j , shew that the words placed within them are introduced by the editor. The quotations given in the various judgments have, as far as possible, been verified and corrected. Jniw, i.v.s'^. TAIiLE OF CASES llEPORTED IN THIS VOLUME. A. PAQR. Amer, Reg. r 722 Angers r. Tlie (Jueen Iiisiu'- ance Co II7 Attorney-General r. The Niagara Falls Interna- tional Bridge Co 813 Attorney-General for Que- bec r. The Queen Insur- ance Co 117 B. Beard r. Steele 683 Belford, Smiles v 57G Belisle (Dame Julie), L'Union St. Jacques de Montreal v. 63 Board of Trustees of the Eoman Catholic Separate Schools of Belleville v. Grainger 816 Black, Dow v 95 Boardman, Beg. v 676 Bourgoin v. La Compagnie du Chemin de Fer de Montreal, Ottawa et Occi- dental 233 0. Canada Central Eailway Co., Jones v 777 Chm-ch V. Fenton 831 Citizens Insurance Co. r. Parsons 266 Collofe of Physicians and Sui "i ond of Ontario, Reg, »' 701 Coote, Reg. r. . 57 '/edit Vallo, Railway Co. V. G 'eat Western Jiailway Co 822 Cromlic v. Jackson (\Hr, Gushing v. Dupuy 252 1). Dobie V. The Temporalities Board 351 Dow V. Black 95 Dupuy, Gushing v 252 Fenton, Church r , . 831 G. Goodhue, Re 560 Goodhue v. Tovey 560 Grainger, Board of Trustees of the Roman Catholic Separate School of Belle- ville r 816 Great Western Railway Co., Credit Valley Railway Co. r '. 822 H. Hamilton (City of), Harris v. 756 Harris v. City of Hamilton. 756 X. TABLE OF CASES REPORTED. J. PAGE. Jackson, Crombie v 685 Jones V. The Canada Central Railway Co 777 L. La Compagnie du Chemin de Fer de Montreal, Otta- wa et Occidental, Bour- goin ?' 233 Langlois, Valin v 158 Lawrence, Reg. ?' 742 Lenoir v. Ritchie 488 Leprohon v. City of Ottawa. 592 L'Union St. Jacques de Montreal v. Dame Julie Belisle 63 M. Merchants Bank, Smith v. 828 N. Niagara Falls Liternational Bridge Co., Attorney-Gen- eral V 813 0. Orillia (Village of), Slavin v. 688 Ottawa (City of), Leprohon v. 592 P. Parsons, The Citizens Insur- ance Co. V 265 Parsons, The Queen Insur- ance Co. V 265 Picton, The 557 Q. Queen Insurance Co., An- gers V 117 Queen Insurance Co., Attor- ney-General for Quebec v. 117 PAO ■. i Queen Insurance Co. v. Par- sons 265 Queen V. Reno and Anderson. 810 Queen, Severn v 414 R. Reg. V. Anier 722 V. Boardman 676 V. College of Physicians and Surgeons of Ontario. 761 Reg. V. Coote 57 V. Lawrence 742 V.Roddy 709 Reno and Anderson, Queen y. 810 Ritchie, Lenoir v 488 Roddy, Reg. v 709 S. Separate School Trustees of Belleville v. Grainger. . . . 816 Severn v. The Queen 414 Slavin v. Village of Orillia.. 688 Smiles v. Belford 576 Smith V. The Merchants Bank 828 Squier, Re 789 Steele, Beard v 683 T. Temporalities Board, Dobie V 351 Toronto Harbour Commis- sioners, Re 825 Tovey v. Goodhue 660 Valin V. Langlois 158 W. Western Counties Railway Co. V. Windsor and Annapolis Railway Co. . . 397 Windsor and Annapolis Railway Co., Western CountitJ Railway Co. v. . 397 PAC. 1. V. Par- 265 lerson. 8 TO 414 722 . .. .. 676 icians itaiio. 761 57 742 709 eeuy. 810 488 709 jes of •.... 816 .... 414 illia.. 688 .... 576 lants .... 828 .... 789 .... 683 >obie . ... 351 mis- . ... 825 . ... 560 158 way and ». . . 397 )0li8 tern v.. 397 4 TABLE OF CASES CITED. A. Adamsoii, Copin I'. • . . . . , Riv^r Wear Commissioners v. \lexander, Attorney- General v. Amer, R. r. , Anderson, Ex parte . . . , , Angers v. The Queen Insurance Co. . Archbishop of Canterbury's Case Ashford v. Tliorntou .... Assessors, Van Allen v. .... Atlantic and Pacific States Telegraph Co.j Western Union Telegraph Co. v. . Attorney-General v. Alexander V. Bowman . — V. Munro ■ V. Murdoch . ■ y. Newman . n Pearson ~ V. The Queen Insurance Co. V. Radloff . y. Siddon Sulley I'. . . , Aylwin, Cuvillier v. V. Welsh L. R. 9 Ex. 346 2 App. Cas. 743 L. R. 10 Ex. 20 42 U. C. Q. B. 391 3 E. & E. 487 . 3 App. Cas. 1090 2 Coke's Rep. 46 1 B. ct Al. 405 . 3 Wallace 573 . 5 Nev. 102 L. R. 10 Ex. 20 2 B. & P. 532 . 2 De G. & S. 122 7 Hare 445 ; 1 De G. M. & G 1 Price 438 3 Mer. 353 3 App. Cas. 1090 10 Ex. 84 . . 680, 1 Cr. & J. 220 5 H. & N. 711 . 4 Hare 572 2 Knapp P. C. C. 72 " 252, 322, PAOK. 299 410, 603 606 796 727 421 144 681 651 322 606 717 355 86 355 725, 738 355 322, 421 711, 718 718 592 356 254, 260 B. Baldwin v. Hale Bancroft v. Mitchell '. \ Bank of Australasia v. Harding" Bank of Commerce v. New York City Bank of India v. Wilson . Bank Tax Cases . . [ Barrett, Bushel v. . [ Barrie, Metropolitan Board of Excise v. Barrnigton's Case . Bedard, In re . Belford, Smiles v. . . [ Belisle, L'Union St. Jacques v. Bell, Sanson v. Berkley, WilUon v. . i 1 Wallace 222 . L. R. 2 Q. B. 549 9 C. B. 661 2 Black 620 592, 616 3 Ex. D. 108 . 2 Wallace 200 . R. & M. 434 34 N. Y. R. 657 8 Rep. 187 b. . 7 Moore, P. 0. 0. 23 1 App. Rep. 436 574 681 299 618, 651, 654 294 593, 654 749, 750 427 400, 410 497, 601 765, 769, 771 L. R. 6 P. C. 31 95,108,232,279 291, 303, 353, 382, 388, 401 420, 428, 429, 592, 646, 662 2 Camp. 39 . 497 Plow. 223 . . ■ 737 Xll. TABLE OF CASES CITED. m Bernardistone v. Soame . Bertrand, R. v. Berwick-on-Tweed, Oswald v. Billings, Providence Bank c. Birch, In re . Birmingham and Oxfdrd Junction Ry., Gt. W. Ry. Co. t). Bishop of Norwich v. Pearse Black, Dow, v. Blake, Loughborough v. Bluck V. Rackhim . , Rackliam v. . Board man, R. v. Board of AVardens, Cooley Bode V. Maryland Boehm, Carter v. Bogue, Murray v. Bonham's Case Boston (City of), Melcher v. Bourgoin iv The Quebec, M. O. and 0. Ry. Bowen, Wilde r. Bowman, Attorney-General v Brand, Hammersmith and City Ry. Co. v. Brandling, Doe r. Breach, Sandiman v. British Insurance Co. v. Magee Brown v. Maryland . , Smith V. Bruneau v. Massuo . Buda and Torrington Ry. Co. , Bulkeley, Knight v. Bullock, Elwood v. Burah, Queen v. Burder v. O'Neill Burslem, Logan r. Bushel I'. Barrett Butler, R. v. Butt V. Conant Lee V. G State Trials 1031 L. R. 1 P. C. 620 5 H. L. 856 4 Peters 514 15 C. B. 743 2 Phill. 597 L. R. 2 Ad. & E. 281 L. B. 6 P. C. 272 5 Wheaton 317 . 5 Moore, P. C. C. 305 9 Q. B. G91 30 U. C. Q. B. 553 12 Howard 299 7 Gill 320 3 Burr. 1905 1 Drew. 353 8 Rep. 118 a. 9 Metcalf 73 . G18, 6 App. Cas. 381 37 U. C. Q. B 504 2 B. & P. 532 . L. R. 4 H. L. 171 7 B. & C. GGO . 7 B. & C. 9G . C. & Al. 182 12Wheaton419 423,427 470, 474, 593, G51, L. R. 6 Q. B. 729 23 L. C. Jur. 60 L. R. 6 C. P. 581 4 Jur. N. S. 527 6 Q. B. 383 3 App. Cas. 889 9 Jur. N. S. 1109 4 Moore, P. C. C. 296 R. & M. 434 G C. & P. 3G8 1 B. & B. 648 PAGE. 222 738 427 651 808 246 720 353, 401, 420 646, 662 140 727, 426, 237, 427, 720 720 714 427 427 319 691 669 660, 669 381 714 717 400 669 486 294 ,465,466 697, 706 569 231 509 666 690 604 720 567 760 747 717 144, 173, 80, 749, 678, 0. Cadett V. Earle Calder v. Kirby Canada Central Ry. i Canada Southern Ry Carpenter, State v. Carter v. Boehm Cartwright, R. v. Cattell V. Ireson Chabot r. Morpeth. Chalke v. Peter Champneys, Fitzgerald v. Chandler, The Queen v. The Queen Co., Gebhardt 6 Ch. D. 710 . 462 5 Gray 697 332 20 Grant 273 . 427, 782 21 Albany L. J. 352 788 20 Vermont 1 . 749 3 Burr. 1905 319 R. & R. C. C. 107 747 E. B. & E. 91 . 711, 719 16 Q. B. 446 . 808 8 Rep. 136 b. . 400 2 J. «fc H. 64 . 768 1 Hannay 556 . 91, 111, 232 TABLE OF CASES CITED. PAGE. . 222 727 738 . 427 42G 651 . 808 237 246 720 3, 401 , 420 G40 ,062 , 140 , 720 , 720 427 ,714 , 427 , 427 , 319 , 691 , 569 8,600 ,669 . 381 , 714 , 717 , 400 , 569 144, 486 , 294 17,465,406 , 697, 706 569 , 231 , 509 . 666 , 690 173, 504 , 720 .80, 567 749, 750 , 747 678, 717 452 332 427, 782 788 749 319 747 711, 719 808 400 768 111, 232 Chapman, R. t'. ..... Cliarleston, Weston i' Chester, B.. v Churchill i-. Crease Cigalas Settlement Trusts, Re . Citizens Insurance Co. v. Parsons City of London i'. Wood .... Clancey's Case ..... Cloete ('. The Queen .... Cobbett V. Slowman .... Coite, Society for Savings v. . . . Collector i'. Day Commercial Union Insurance Co. , Smith i'. Commissioners, People v. Commissioners of Cobourg Town Trust Commissioners of Erie County, Dobbins v. Commonwealth i\ Hoothooke. . — , National Bank y. Cunant, Butt i'. Cook, R. V. . . . . Cooley I'. Board of Wardens. Coote, Queen v. . . . Cooverbhaee, Modee Kaikhooscrow Hor- musjee v. . . . . Copeland, Ex parte . Copin V. Adanison. . Cousins V. Nantes Cowan v. Wright Craufurd, Lucena v. Crease, Churchill v, . Crisp, R. f. Crombie v. Jackson . Cushing V. Dupuy , Owens *•. Cuvillier i'. Aylwin . D. Dalby i'. The India and London Life Assur auce Co. .... Dansereau, Ex parte. Davidson, R. i\ Davis V. Duke of Malborough . Dawson v Paver Day i: Savage .... Day, Collector v. . . . Dennison v. Henry . Dent c. Dent .... Devlin, Ryan v. \ . , Dubbins v. The Commissioners of Erie County Doe I-. Brandling 1 Den. C. C. 432 2 Peters 449 . 617, 5 Mod. 301 5 Bing. 480 7 Ch. D. 351 . 7 App. Cas. 96 . 352, 12 Mod. 687 Fort. 208 . 8 Moore, P. C. C. 484 9 Ex. 633 . 6 Wallace 594 . 11 Wallace 113 016 33 U. C. Q. B. 4 Wallace 244 22 Grant 377 16 Peters 435 69 654, 10 Allen 200 9 Wallace 353 1 15. & B. 548 3 T. R. 519 12 Howard 299 L. R. 4 P. C. 599 015, 018, 659, 668, ■ 6 Moore, Ind. Ap. Ca 2 De G. M. & G. 920 L. R. 9 Ex. 345 3 Taunt. 513 . 23 Grant 616 . 2 R. & P. 324 . 5 Bing. 480 1 B. & Al. 282 . 34 U. C. Q. B. 575 5 App. Cas. 409. 279, 328, 20 L. C. Jur. SC) 2 Knapp, P. C. C. 72 252, Xlll. PAOE. 747 651, 607 498 149 785 366, 401 569 748 801 719 651 659, 668 675 284, 291 651 825 652, 054 674, 675 427 614, 657 678, 717 738 427 795 448 254 184 299 294 382 294 149 750 830 787 231 254, 260 353, 15 C. B. 305 . . 293, 319 19 L. C. Jur. 210 . . 420 21 U. C. Q. B. 41 . . 738 I Swanston 74 . . . 606 5 Hare 415 ... 400 Hobart 87 . . . 509 II Wallace 113 OiO, 054. 059, 068 676 17 U. C. Q. B. 27t; . . 593 L. R. 1 P. & D. 300 . . G<;6 20 L. C. Jur. 77 208, 223, 231 16 Peters 435 615, 618, 652, 654 659, 6«i8, 674, 675 7 B. & C. 660 . . 669 XIV. TABLE OF CASES CITED. Douglas, Nickle v. Dow V. Black . Drinkwater, Ingram o. Duncan, In re . Dupuy, Gushing v. Durden, Moon c. 37 U. C. Q. B. 51 L. R. 6 P. C. 272 PAGE. 636, 785 353, 401, 420 646, 662 315 430 32 L. T. N. S. 746 . 4 Rev. Leg. 228 5 App. Gas. 409 279, 328, 353, 787 2 Ex. 22 . . . . 549 »ni E. Earle, Gadett v. East India Go., Innes v , Udney r. . East London Water Works Co. v. Mile End Old Town (Trustees) . Easton's Case ...... Edinburgh Life Assurance Go. v. Solicitor of Inland Revenue .... Edmundson, R. r. . Eduljee Byramjee, The Queen c. Edwards, R. r. EgEiington, Re ..... Ellis, Trustees of Methodist Ghurch v. Ehvood V. Bullock ..... European and North American Ry. Co. v. Thomas ...... Evans v. Hudon , . . . . , Saunders v. . Ewin, In re . Eyre, Phillips v. .... . Eyston r. Studd . . . . . 5 Gh. D. 710 . . . 452 17 C. B. 351 . . . 666 13 C. B. 733 . . . 502 ! 17 Q. B. 512 . 421, 463, 486 ' 12 A. & E. 645 . . 718 1 12 Sc. L. Reporter 275 . 294 2 E. & E. 77 . . 451 5 Moore, P. C. C. 270 . 254 752 2 E. &. B. 717 . . . 718 38 Ind. 3 .... 593 6 Q. B. 383 .. . 690 j 1 Pugsley 42 . . Ill, 112 22 L. G. Jur. 268 . . 381 8 H. L. C. 721 . . 592, 649 1 C. & J. 156 . . . 780 L. R. 6 Q. B. 20 . . 569 Plowden 459 . . . 181 Fenno, Veazie Bank v. Fitzgerald i'. Champneys Flarty n. Odium Fletcher, The Queen v. Fleury v. Moore Foster, R. r. Frewer, Thistleton r. . 8 Wallace 533 . 140, 692 . 2 J. & H. 54 . 768 . 3 T. R. 681 666 . 2 Q. B. D. 43 . 721 . 34 U. C. Q. B. 319 427 . 2 Freeman 70 . 497, 498 /^ ( 3 Can. S. G. R. 605 315 , 335, 336 i Queen v. 350 » • • . 31 L. J. Ex. 231 , 509 a. Gardner v. London, Chatham and Dover Ry Gathercole, Hawkins i'. . Gebhardt t'. Tho Canada Southern Ry. Co Geraldi v. Provincial Insurance Co. . Gibbons v. Ogden .... Gipps, Willis V. .... Golding, Williams v. ... L. R. 2 Gh. 201 . 237, 244 6 De G. M. & G. 1 . 181, 603 21 Albany L. J. 352 . . 788 29 U. G. C. P. 321 . 297, 334 9 Wheaton 1 . 420, 420, 465, 706 6 Moore, P. C. G. 379 795, 798 L. R. 1 C. P. 69 421, 463 w TABLE OF CASES CITED. PAGE. 636, 785 53, 401, 420 646, 662 315 430 i28, 353, 787 549 452 666 502 n, 463, 485 718 294 451 254 752 718 593 690 111, 112 381 592, 649 780 569 181 140, 592 768 666 721 427 497, 498 5, 335, 336 350 509 237, 244 181, 603 788 297, 334 3, 465, 706 795, 798 421, 463 Goodhue, Ke XV. PAGK. Governor-General and Council of New ) , , „ _ South Wales, In re . . ( ^1 Moore, P. C. C. South Wales, In re Grant, Ee Grattridge, Young v. . ' . Tit. West. Ey. Co. v. Birmingham and Ox ford Junction Ey. Green, Parker y. . . . . Griffith, In re . , Pope V H. Hadjee Abdoolah, Meer Eeasat Hossein v. Hale, Baldwin v Hammersmith & City Ey. Co. v. Brand Harding, Bank of Australasia v. Harris v. Jenns Hawker, Ex parte . . . . , Hawkins v. Gathercole .... Hazleton, In re Hemming, Martin v. . . . . Henry, l3ennison v Higgins, E. i" Hill, Managers of the Metropolitan Asylum District v. . Hills, R. V .' ■ Hogg, K V [ ] Hoothooke, Commonwealth v. . Houston V. Moore Hudon, Evans v Hughes, Re Hull Local Board of Health, Pearson v. . Hunter, Martin v Huntley r. Luscombe .... Hylton r. United States . . . . I. Illinois, Munn v ; — I'. Thurber ..... India & London Life Assurance Co. , Dalby v. Ingham, Eeed v. . . Ingram v. Drinkwater '. Innes v. The East India Co. Ireson, Cattell r. Irvine, Smith v, . ', Ivens, R. n J. 19 Grant 366 79, 592, 646, 780, 785 786, 787 288 795, 801 801 451 7 Moore, P. C. C. 141 L. E. 4 Q. B. 166 . j 2 PhiU. 597 . . 237, 246 2 B. & S. 299 . 719 12 Ch. D. 655 . . ; 291 16 L. C. Jur. 169 . . 93 L. R. 1 Ind. App. 72 1 Wallace 222 . L. R. 4 H. L. 171 9 C. B. 661 9 C. B. N. S. 152 L. R. 7 Ch. 214 6 De G. M. & G. 1 1 Hannay 556 . 18 Jur. 1002 17 U. C. Q. B. 276 2 East 5 . j 6 App. Gas. 193 2 E. & B. 176 . 1 T. R. 721 10 Allen 200 . 5 Wheaton 1 22 L. C. Jur. 268 8 U. C. L. J. 203 3 H. & C. 921 . 1 Wheaton 304 . 2 B. & P. 530 , 3 Dallas 171 254, 255 574 400 299 451 666 181, 603 91, 111, 232 427 593 752 400 592 453 427 323 381 796 451 323 717 124 4 Otto 251 13 Illinois 554 15 C. B. 365 3 E. & B. 889 32 L. T. N. S. 746 17 C. B. 351 E. B. & E. 91 . 1 Rev. Leg. 47 7 C. & P. 213 . 449 427 293, 319 421, 427, 463, 485 315 606 719 318 681 ni, Jackson, Crombie v. Jenns, Harris v. 34 U. C. Q. B. 575 9 C. B. N. S. 152 830 451 ! XVI. TABLE OF CASES CITED. PACK. Johnson, 11. v. , . 2 Show. 1 . 749, 753 Johnson's Case .... . 2 Show 1 . 749, 753 Johnston i". Minister of St. Andrew's . 3 App. Cas. 159 254, 201 K. Keeley, Ke Keinp, R. r. Keys, State c. Kinp; v. Loxdale Kirb}', Cakler v. Kniglit ('. Bulkeley L. R. 7 Ch. 214 ()(>«> 4 Mod. 277 498 8 Vermont 57 . 749 1 Burr. 44 184 6 Gray 597 332 4 Jur. N. S. 527 G60 I' Landry, Tht^berge v. Langlois, Yalin v. Lawley, R. i'. . Lee ('. Buda and Torrington Ry Leprohon r. City of Ottawa License Cases . License Tax Case Logan r. Bursleni London, Chatham and Dover Ry. Lougee, The Queen and . Loughborough v. Blake Louisiana, Nathan c. Low, Routledge i'. Loxdale, The King v. Lucas and McGlashan, In re Lucena r. Craufurd . L'Union St. Jacques v. Belisle Luscombe, Huntley c. 1G8, 183, 192, 227, 254, 292, 749, '. 381, 124, 422, 427, 80, 237, I 2 App. Cas. 102 . 3 Can. S. C. R. 1 . 2 Stra. 904 Co. . L. R. (> P. C. 581 . 2 App. l!ep. 522 5 Howard 504 . 5 Wallace 4(J3 . 4 Moore, P. C. 0. 29G Gardners. L. R. 2 Ch. 201 . 10 C. L. J. N. S. 135 . 5 Wheaton 317 . . 8 Howard 73 . . L. R. 3 H. L. 100 578, 5«3, . 1 Burr. 44 . . . j 29 U. C. Q. B. 81 G78, G79, 2 B. & P. 324 ' r L. R. G P. C. 31 95, 108, 232, .{ 291, 303, 353, 382, 388, t 420, 428, 429, 592, G4G, . 2 B. it P. 530 . 215 2G2 787 752 509 82G Gilo 427 5()7 244 427 140 427 771 184 711 718 294 279 401 GG2 717 \i M. Mackender, Pendock v Madison, Marbury i\ .... Magee, British Insurance Co. ». Managers of tlie Metropolitan Asylum Dis- trict y. Hill Manchester and Salford Water Works Co. , R. V Mann v. Owen ...... I\Iarbury v. Madison ..... Marlborough (Duke of), Davis v. Marois, Louis, In re Marshall i'. Pitt man ..... Marshalsea Case ..... Martin v. Hemming 2 Wils. 18 1 Cranch 137 C & Al. 182 G App. Cas. 193 1 B. & C. G30 88, 748 232 294 400 485 9 B. & C. 595 . 717 1 Cranch 137 . 88, 232 1 Swanston 74 . 66G 15 Moore, P. C. C. 189 254, 260 9 Bing. 595 509 10 Coke G8b . 72G 18 Jur. 1002 . 427 ii TABLE OF CASES CITED. XVll. Of)*; 498 74!> 184 332 G6«» 294 400 485 717 38, 232 666 54, 260 509 726 427 Martin v. Hunter Maryland, Bode v. , Brown v. , McCulloch V. , Ward V. . { PACK. 1 Wheaton 304 . . . 323 7 Gill. 326 . . . 427 12 Wheaton 419 423, 427, 465 466, 470, 474, 593, 651, 697, 706 4 Wheaton 316 156, 3^5, 331 , 426 471,474,606,614,015,637,645 649, 651, 657, 667, 673, 705 Mason, R. r Massachusetts, Provident Institution v. . , Thurlow V. , . , Massue, Bruneau v Master, R. i' Maurice, United States r. . . . Mayor, etc., of Weymouth v. Nugent Meer Reasat Hossein v. Hadjee Abdoolah Melcher v. City of Boston Metropolitan Board of Excise v. Barrie Mew, In re Meyers & Wonnacott, In re . Mile End Old Town (Trustees), East Lon- don Water Works Co. v. . . . Miller, Royal Canadian Bank v. Mills, Pattison v. .... . Minister of St Andrew's, Johnston v. Mitchell, Bancroft r. .... Modee Kaikhooscrow Hormusjee v. Coover- bhaee ....... Montague v. Lieut. Gov. of Van Diemen's Land ....... Moon V. Durden Moore, Fleury v. .... . , Houston V. . . . . . Morgan, Stradling v. .... Morpeth, Chabot v. . Munn V. Illinois ..... Munro, Attorney-General v. . Murdoch, Attorney-General i'. . Murray v. Bogue ..... Musgrave v. Pulido ..... Myers, R. ».'. . 1 American R. 50 . 427 17 U. C. C. P. 534 678 750 6 Wallace 611 . r)51 5 Howard 504 . 124 23 L. C. Jur. 60 231 L. R. 4 Q. B. 285 681 2 Brock. 96 648 6 B. it S. 22 509 L. R. 1 Ind. App. 72 254 255 9 Metcalf 73 618, 660, 669 34 N. Y. R. 657 , . 427 31 L. J. N. S. Bankruptcy 89 427 23 U. C. Q. B. 611 . . 678 17 Q. B. 512 421, 463, 485 29 U. C. Q. B. 266 829 1 Dow it C 362 . . 299 3 App. Cas. 159 . , 254, 261 L. R. 2 Q. B. 549 . , 681 6 Moore, Ind. App. Cas. 448 254 1 6 Moore, P. C. C. 489 . 795, 799 2 Ex. 22 . 34 U. C. Q. B. 319 5 Wheaton 1 Plowden 204 15 Q. B. 446 4 Otto 251 2 De G. & S. 122 1 De G. M. & G. 86 1 Drew. 353 5 App. Cas. 102 1 T. R. 265 549 427 323 181 808 449 355 355 591 795, 796 717 Mc. McClanaghan v. The St. Building Society . McCulloch V. Maryland Ann's Montreal { 24 L. C. Jur. 162 4 Wheaton 316 156, 325, 331, 471, 474, 606, 614, 615, 645, 649, 651, 657, 667, 387 426 637 673 705 N. Nantes, Cousins v. . Nathan v. Louisiana National Bank v. The Commonwealth 3 Taunt. 513 8 Howard 73 9 Wallace 353 614, 294 427 657 la • • • IVlll. TABLE OF OASES CITED. I' ) Nelson, Osgood v New York City, Bank of Commerce v. Newman, Attorney General v. . Niagara Election Case Nickle V. Douglas .... Nugent, Mayor, etc., of Weymouth v. PAOK. L. R. 5 H. L. 036 . 796, 803 2 Black 020 502, 010, (518, 051, 054 1 Price 438 . . 725, 738 29 U. C. C. P. 201 214, 223, 787 37 U. C. Q. B. 51 . 630, 785 6 B. it S. 22 . . . 509 o. Odium, Flarty v. .... . Ogden, Gibbons v, , V. Saunders O'Neill, Burder y Ordnance (Principal Officers of), TuUy v. . Orillia (Village of), Slavin v. . . . Osborne v. United States Bank Osgood V. Nelson ..... Oswald V. Berwick-on-Tweed Ottawa (City of), Leprohon v. . Owen, Mann v. Owens V. Gushing 3 T. R. 081 9 Wheaton 1 420, 12 Wheaton 213 9 Jur. N. S. 1109 5 U. C. Q. B. . 30 U. C. Q. B. 159 9 AVheaton 738 . L. R. 5 H. L. 030 5 H. L. 850 2 App. Rep. 522 . 9 B. & C. 595 . 20 L. C. Jur. 86 660 420, 465, 700 323 720 573 420, 453 592, 015, 051 795, 803 427 381, 826 717 231 P. Pacific Insurance Co. v. Soule . Pacific Railway, Thomson v. Papin, Ex parte Parker v. Green Parsons, Citizens Insurance Co v. , Queen Insurance Co v. Pattison v. Mills Paul V. Virginia Paver, Dawson v. . . . Payne, R. v Pearse, Bishop of Norwich v, . Pearson, Attorney-General v. . V. Hull Local Board of Health Pendock v. Mackender Pensacola Telegraph Co. v. Western Tele- graph Co. People V. Commissioners Perry v. Skinner Peter, Chalke v. Phillips V. Eyre Pittman, Marshall v. Pope V. Griffith Priddlo's Case . Prior of Castleacre . Providence Bank v. Billings Provident Institution v, Massachusetts Provincial Insurance Co. , Geraldi v. Pulido, Musgrave v. ... 7 Wallace 433 ... 141 9 Wallace 579 . 593, 658, 002 15 L. C. Jur. 334 . . 92 2 B. & S. 299 . . . 719 7 App. Cas. 96 . 352, 366, 401 7 App. Cas. 96 . . . 366 1 Dow & C. 362 . . 299 8 Wallace 168 291, 307, 310, 314 320, 344 5 Hare 415 ... 400 L. R. 1 C. C. 27 . . 450 L. R. 2 Ad. & E. 81 . . 720 3 Mer. 353 ... 355 3 H. & C. 921 . . . 451 2 Wils. 18 . . . . 748 6 Otto, or 96 U. S. Rep. 1 320 322, 344 4 Wallace 244 . . . 651 2 M. & W. 475 . . . 509 8 Rep. 136b ... 400 L. R. 6 Q. B. 20 . . 509 9 Bing. 595 .. . 509 16 L. C. T,ir. 1.09 . . 93 1 Leach 44.^ ... 748 8 Rep. 13r.a ... 400 4 Peterd 514 . . 426, 651 6 Wallace Oil ... 651 29 U. C. C. P. 321 . 297, 334 6 App. Cas. 102 . . 795, 796 I TABLE OF CASES CITED. XIX. Quebec, Montreal, Ottawa and Occidental Railway, Bourgoin v. . Queen v. Burah V. Chandler . V. City of Fredericton V. Coote V. Eduljee Byramjee V. Fletcher V. Steel . I'. Stephenson V. Taylor — V. Taylor — and Lougee . — , Canada Central Railway v. — , Cloete V. — , Severn v. Queen Insurance Co. , Angers v. Attorney General v. V. Parsons PAUK. 381 173, 604 91, 111, 232 315, 335 3315, 350 795 254 721 720 254 141, 162, 41<) 417, 420, 427, 435, 438, 449 513, 678, 583, 090 1 Can. S. C. R. 05 . 410,513 10 0. L. J. N. S. 135 . 427 20 Grant 273 . . 427, 782 8 Moore, P. C. C. 484 . 801 2 Can. S. C. R. 70 152, 302, 321 330, 360, 040 3 App. Cas. 1090 . 322, 421 3 App. Cas. 1090 . 322, 421 7 App. Cas. 90 . . . 300 6 App. Cas. 381 . 3 App. Cas. 889 . 1 Hannay 55(> 3 Can. S. C. R. 605 . L. R. 4 P. C. 599 5 Moore, P. C. C. 270 2 Q. B. D. 43 . 2 Q. B. D. 37 . 5 Moore, P. C. C. 290 30 U. C. Q. B. 183 B. Rackham v. Bluck . 9 Q. B. 091 720 , Bluck V. . 6 Moore, P. C. C. 306 720 Radloff, Attorney-General V. 10 Ex. 84 . . 080, 711, 718 Reed v. Ingham 3 E. & B. 889 421, 427, 403, 485 Reeve v. Wood 5 B. «fe S. 304 . 720 R. V. Amer 42 U. C. Q. B. 391 . 796 Bertrand , L. R. 1 P. C. 520 727, 738 Boardman 30 U. C. Q. B. 553 . 427, 714 Butler . OC. &. p. 308 . 747 Cartwright R. & R. C. C. 107 . 747 Chandler . •1 Hannay 560 . .91, 111, 232 Chapman 1 Den. C. C. 432 747 Chester . 6 Mod. 301 498 Cook 3 T. R. 619 738 Crisp 1 B. & Al. 282 . 750 Davidson 21 U. C. Q. B. 41 738 Edmundson 2 E. & E 77 461 Edwards . 762 Foster 2 Freeman 70 . 497, 498 Higgins . 2 East 5 . . . 762 Hills 2 E. & B. 170 . 692 Hogg 1 T. R. 721 463 Ivens 7 C. & P. 213 . 681 Johnson . 2 Show. 1 . 749 Justices of Surrey 2 T. R. 504 420, 463 Kemp 4 Mod. 277 498 Lawley . 2 Stra. 904 749, 762 /k XX. TABLE OF CASES CITED. H. Manchester and Salford Water Works Co. Mason Master Myers I'ayiio Roderick Saltren Sullivan , Sullivan . Sutclitfe . :i' Taylor • Wood Representatives of Island of Grenada v. Sanderson ..... Richmiind Water Works v. Vestry of Rich mond ...... River Wear Commissioners v. Adamaon Robertson, Ex parte Roderick R. f. . Routledge i'. Low .... Royal Canadian Bank v. Miller Ryan v. Devlin .... ) { 1 B. & C. 030 . 17 U. C. C. P. 534 L. R 4 Q. B. 286 1 T. h. 2G5 L. R. 1 C. C. 27 7 C. & P. 705 . Cald. 444 . L. R. 8 Ir. C. L. 404 15 U. C. Q. B. 198 13 Q. B. 833 . 36 U. C. Q. B. 183 41G, 417, 420, 427, 449, 513, 578, 5 E A B. 49 . 592, G Moore P. C. C. 38 . 3 Ch. D. 82 2 App. Cas. 743 . 11 Moore, P. C. C. 288 7 C. & P. 795 . L. R. 3 H. L. 100 578, 29 U. C. Q. B. 266 . 20 L. C. Jur. 77 208, PAOB. 485 678, 750 681 717 450 747 463 720 724 681 141, 152 435, 438 583, GOO 647, 690 801 237 410, 603 502, 795 801 747 583, 771 829 223, 231 I :: s. Mc- Island of St. Ann's Mutual Building Society, Clanaghan v. Saltren, R. v. . Sanderson, Representatives of Grenada v. . Sandiman v. Breach . Sanson! i'. Bell Saunders v. Evans . , Ogden c. . Savage, Day v. Scott, Ward r. . Scott's Case Severn v. The Queen Shore v. Wilson Siddon, Attorney-General v. Sills 1'. Worswick. Skinner, Perry v. Slavin v. Village of Orillia Slowman, Cobbett v. Smiles v. Belford Smith I'. Brown 1'. Commercial Union Insurance Co I'. Irvine Smyth, Ex parte • 24 L. C. Jur. 162 Cald. 444 . J 6 Moore, P. C. C. 38 ' 7 B. & C. 96 2 Camp. 39 8 H. L. C. 721 . 12 Wheaton 213 Hobart 87 . 3 Camp. 284 Dears. & B. 47 . ; 2 Can. S. C. R. 70 9 CI. & F. 365 . 1 Cr. & J. 220 . 1 H. Bl. 690 2 M. & W. 475 . 36 U. C. Q. B. 159 9 Ex. 633 . 1 App. Rep. 436 . L. R. 6 Q. B. 729 33 U. C. Q. B. 69 1 Rev. Leg. 47 . 3 A. & E. '719 . 387 453 801 144, 486 427 592, 649 323 569 400 714 152, 302, 321 336, 360, 640 355 718 574, 780 509 426, 453 719 766, 769, 771 669 284, 294 318 808 :i\ TABLE OF CASES CITED. XXI. Soaiiie, Jiernardistono v. . Society for Savings i: Coite. Solicitor of Inland Revenue, Edinburgl Life Assurance Co. i'. Soule, I'acific Insurance Co. r, Spooner, Sweeny c. . State !•. Carpenter r. Keys . Steel, The Queen i\ Stephenson, The Queen v. Stradliug v. Morgan . Studd, Eyston i'. Sulley V. Attorney-General Sullivan. R. v. . , R. V. . Surrey (Justices of), [{, v. Sutcliffe, R. V. . Sweeny v. Spooner . (\ State Trials 1031 Wallace 5114 . J' 12 Sc. L. Reporter 276 7 Wallace 4.'!3 , 3 li. ct S. 3L'!) . 20 Vermont 1 . 8 Vermont f"i7 . 2 Q. li. D. 37 . 5 Moore, 1'. C. C. 290 riowden 204 riowden 459 5 H. & N. 711 . L. R. 8 Ir. C. L. 404 15 U. C. Q. R. 198 2 T. R. 504 13 Q. B. 833 . 3 B. A- S. 329 . PAOE. 222 G61 294 141 720 749 749 720 264 181 181 592 720 724 420, 403 081 720 T. Tatem, Yeo r. . Taylor, The Queen v. , R. V. . Taylor's Case . Th^berge i'. Landry Thistleton v. Frewer Thonias, European and North American Railway Co. v. Thomson r. Pacific Railway Thornton, Ashford v. Thurber, Illinois v. . Thurlow V. Massachusetts Trempealeau County Farmer's M. F. Ins Co., Van Slyke »•. . Trustees of Methodist Church v. Ellis Tully V. Principal Officers of Ordnance L. R. 3 P. C. 696 1 Can. S. C. R. 05 30 U. C. Q. B. 183 417, 420, 427, 613, 3 East 232 2 App. Cas. 102 216, 31 L. J. Ex. 231 . , j 1 Pugsley 42 u. Udney v. East India Co. . United States, Hylton v. ' , I'. Maurice Bank, Osborne 9 Wallace 579 . 1 B. & Al. 405 . 13 Illinois 564 . 6 Howard 504 . • 20 American R. 50 38 Ind. 3 . 5 U. C. Q. B. 6 . 13 C. B. 733 3 Dallas 171 2 Brock. 96 9 Wheaton 738 237 410, 513 141, 152, 410 435, 438, 449 678, 583, 090 719 108, 183, 192 227, 254, 202 609 111, 112 593, 068, 062 081 427 124 724 593 573 692 124 048 592, 615, 051 Valin V. Langlois Van Allen v. The Assessors 3 Can. S. C. R. 3 Wallace 673 ^-" I>i?--'s Land (Lieutenant-Govemo; ) ' Z '^' ' ' of), Montague v [6 Moore, P. C. C. 489 292, 787 061 795, 799 XXll. TilBLE OF CASES CITED. Van Slyko v. Trempealeau County Farmer's M. F. Ins. Co Veazie Bank v. Fenno .... Yenour's Settled Estates, In re Virginia, Paul v. , . . . . < 20 American R. 50 PAOI. 724 8 Wallace 533 2 Ch. D. 522 8 Wallace ItiS 140, 592 593 291, 307, 310, 314 320, 344 w. Ward Maryland Scott . Welsh, Attorney General ('. Western Telegraph Co., Pensacola Tele- graph Co. V Western Union Telegraph Co. v. Atlantic and Pacific States Telegraph Co. . Weston V. Charleston Wilde V. Bowen Williams v. Guiding . Willis V. Gipps Willton V. Berkley . Wilson, Bank of India c , Shore v. Wood, City of London v. , Reeve v, , R. V. . W^orswick, Sills v. Wright, Cowan v. } 1 American R. 50 3 Camp. 284 4 Hare 572. 6 Ott(j or 96 U. S. Rep. 5 Nev. 102 2 Peters 449 37 U. C. Q. B. 504 L. R. 1 C. P. 69 6 Moovo, P. 0. C. 379 Plowdoii 223 3 Ex. D. 108 9 CI. & F. 355 12 Mod. 687 5 B. & S. 364 5 E. & B. 49 1 H. Bl. 690 23 Grant 616 427 400 356 1 . 320 322, 344 322 617, 651, 667 714 421, 463 795, 798 737 294 355 669 720 592, 647, 690 574, 780 382 Y. Yeo V. Tatem . Young V. Grattridge L. R. 3 P. C. 696 L. R. 4 Q. B. 166 237 451 ERRATA. ^age 4 It (I II II II II II II II 11 II 91, note (1), for "I Hannay 548." read " 1 Hannay 556." 95, laat line of head note, fw "ante p. 57," read "ante p 63." Ill, note (1), for "Hannay S-IS," read " 1 Hannay 556." 162, note (1), for "Severn v. The Queen, 2 Can. S C R 77 " r.«j ..« Queen, 2 Can. S.C.R. 70." ' "^""^ "Severn v. The 323, note (2). for "29 U.C.C. 261," read "29 IT.C.C.P. 261." 355, note (2), for " De G. & S. 122," read " 2 De G. & S. 122. " 488, head note, for second parafranh rfml "Ti,o r, „ ..• Provmoial I.egi.lature, the Re.pondent belnir « o„.."l n , . " by th.Gov„„„.G„e„, , „„a !.„„„ F,u,„'i;lTT..oW: "//T" of opinion that the Provincial Acts nniJ»r Zu- u ^**°"f ^*"' J*^- were appointed were not intended"! fffe t hl^^e^J^.t^f ;, tre"^"r ""! appointed by the Governor-General." P'^«°«<^«nce of Queen's Counsel 617, note (2), for "2 Peters 442," read "2 Peters 449. " 680, last line, for "Lucan .. McGlashan," read "Lucas and McGlashan " 711, line 8, for "Cattle v. Ireson," rrarf "Cattell v. Ireson " 717, line 12, for "Butt «;. Conan," read "Butt t;. Conant." 793.4, side note, for " Statement, " read " Argument." - i •'T THE BRITISH NORTH AMERICA ACT, 1867. (IMP. ACT 30-31 VICT., CAP. 3.) -♦«»- An Act for the Union of Cancacia, Nova Scoti i and New Brunswick, and the Government thereof; and for Pmposes connected there- Avith. ;29th March, 1867.1 ^HEREAS the Provinces of Canada, Nova Scotia, and xNew Brunswick have expressed their desire to be federally united into one Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in principle to that of the United Kingdom : And whereas such a Union would conduce to the wel- fare of the Provinces and promote the interests of the British Emphe : And whereas on the establishment of the Union by authority of Parliament it is expedient, not only that the Constitution of the Legislative Authority in the Dominion be provided for, but also that the nature of the Executive Government therein be declared : And V hereas it is expedient that provision be made for the eventual admission into the Union of other parts of British North America : 2 THE IMPERIAL STATUTES. Be it therefore enacted and declared by the Queen's most Excellent Majesty, by and with the advice and con- sent of the Lords Spu'itual and Temporal, and Commons, in this present Parliament assembled, and by the autho- rity of the same, as follows : I . — Preliminary . Short title. 1. This Act may be cited as "The British North America Act, 1867." Application of 2. The provisions of this Act referring to Her Maic provisions re- o o terring to the the Quceii extend also to the heirs and successors of Her Queen. Majesty, Kings and Queens of the United Kingdom of Great Britain and Ireland. II. — Union. M M Deciarai,ion of 3, It sliall bs lawful for the Queen, by and with the l' nion. advice of Her Majesty's Most Honourable Privy Council, to declare by Proclamation that on and after a day there- in appointed, not being more than six months after the passing of this Act, the Provinces of Canada, Nova Scotia, and New Brunswick sliall form and be one Dominion under the name of Canada ; and on and after that day those three Provinces shall form and be one Dominion under that name accordingly. Construction 4. ^he subsequeiit provisions of this Act shall, unless of sul)sequent _ provision of it is otherwise expressed or implied, commence and have effect on and after the Union, that is to say, on and after the day appointed for the Union taking effect in the Queen's Proclamation; and in the same provisions, unless it is otherwise expressed or implied, the name Canada shall be taken to mean Canada as constituted under this Act. 4' *^'^ THE B. N. A. ACT, 18G7. 3 Queen's and con- ommons, :ie autho- 3I1 North r Maje' )rs of Her ngdom of with the Council, lay there- after the l^-a Scotia, )ominion that day )ominicn |ll, unless ind have md after in the ^s, unless Canada ider this 5 Canada shall be divided into four Provinces, named ^our P^ov- incea. Ontario, Quebec, Nova Scotia, and New Brunswick. 6. The parts of the Province of Canada (as it exists at onSrand the passing of this Act) which formerly constituted re- Quebec, spectively the Provinces of Upper Canada and Lower Canada shall be deemed to be severed, and shall form two separate Provinces. The part which formerly constituted the Province of Upper Canada shall constitute the Prov- ince of Ontario; and the part which formerly constituted the Province of Lower Canada shall constitute the Prov- ince of Quebec. 7. The Provinces of Nova Scotia and New Brunswick Provinces of Ps ova hcotia shall have the same limits as at the passing of this Act. an^^ ^"^ew Brun.swick. 8. In the general census of the population of Canada Decennial which is hereby requked to be taken in the year one thousand eight hundred and seventy-one, and in every tenth year thereafter, the respective populations of the four Provinces shall be distinguished. in. — Executive Power. 9. The Executive Government and authority of and Declaration of Executive over Canada is hereby declared to continue and be vested Power in the '^ueeii. m the Queen. 1 0. The provisions of this Act referring to the Gover- Application of provisions re- nor-General extend and apply to the Governor-General ferring to for the time being of Canada, or other the Chief Execu- General, tive Officer or Administrator for the time being carrying on the Government of Canada on behalf and in the name of the Queen, by whatever title he is designated. 11. There shall be a Council to aid and advise in the Constitution of rrivy Government of Canada, to be styled the Queen's Privv Council for > J ^ J Canada. f; ■ I ' I u All powers under Acts to be exercised by Governor- Cieiieral with advice of Privy Council, or alone. Api)lication of provisions re- ferring' to Go- vernor-Gene- ral in Council. Power to Her Majesty to au- thorize Gover- 4 , THE IMPERIAL STATUTES. Council for Canada; and the persons who are to be members of that Council shall be from time to time chosen and summoned by the Governor - General and sworn in as Privy Councillors, and members thereof may be from time to time removed by the Governor-Gener 1. 13. All powers, authorities, and functions which under any Act of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland, or of the Legislature of Upper Canada, Lower Canada, Canada, Nova Scotia, or New Brunswick, are at the Union vested in or exerciseable by the respec- tive Governors or Lieutenant-Governors of those Prov- inces, with the advice, or with the advice and consent, of the respective Executive Councils thereof, or in con- junction with those Councils, or with any number of members thereof, or by those Governors or Lieutenant- Governors individually, shall, as far as the same continue in existence and capable of being exercised after the Union in relation to the Government of Canada, be vested in and exerciseable by the Governor-General, with the advice, or with the advice and consent of or in con- junction with the Queen's Privy Council for Canada, or any members thereof, or by the Governor - General individually, as the case requires, subject nevertheless (except with respect to such as exist under Acts of the Parliament of Great Britain or of the Parliament of the United Kingdom of Great Britain and Ireland) to be abolished or altered by the Parliament of Canada. 13. The provisions of this Act referring to the Gover- nor-General in Council shall be construed as referring to the Governor-General acting by and with the advice of the Queen's Privy Council for Canada. 14. It shall be lawful for the Queen, if Her Majesty thinks fit, to authorize the Governor-General from time THE B. N. A. ACT, 1867. 5 to time to appoint any person or any persons jointly or nor-Generai severally, to be his Deputy or Deputies within any part Deputies. or parts of Canada, and in that capacity to exercise, dur- ing the pleasure of the Governor-General, such of the powers, authorities and functions of the Governor-Gene- ral as the Governor - General deems it necessary or expedient to assign to him or them, subject to any limi- tations or directions expressed or given by the Queen; but the appointment of such a Deputy or Deputies shall not affect the exercise by the Governor-General himself of any power, authority or function. 15. The Command-in-Chief of the Land and Naval Command of armed Forces Militia, and of all Naval and Military Forces of and m to continue to Canada, is hereby declared to continue and be vested in the Queen, the Queen. 16. Until the Queen otherwise directs, the seat of Seat of Go- vernment of Government of Canada shall be Ottawa. Canada. IV. — Legislative Power. 17. There shall be one Parliament for Canada, con- Constitirtion of Parliament sisting of the Queen, an Upper House styled the Senate, of Canada. and the House of Commons. 18. The privileges, immunities, and powers to be Privileges, &c. held, enjoyed and exercised by the Senate, and by the House of Commons, and by the members thereof respec- tively, shall be such as are from time to time defined by Act of the Parliament of Canada, but so that the same shall never exceed those at the passing of this Act held, enjoyed and exercised by the Commons House of Par- liament of the United Kingdom of Great Britain and Ireland, and by the Members thereof. [This section was repealed by Imperial Act 38 and 39 Vict., cap. 38, post p. 55, and the following section substituted therefor : ^ 6 THE IMPERIAL STATUTES. 1^1 Pi First Session of the Par- liament of Ciinada. Yearly Session of the Par- . lianient of Canada. Number of Senators. Representa- tion of Pro- vinces in Senate. 18. The privileges, immunities, .and powers to be held, enjoyed and exercised by the Senate and by the House of Commons, and by the Members thereof respectively, shall be such as are from time to time defined by Act of the Parliament of Canada, but so that any Act of the Parliament of Canada defining such privileges, immuni- ties and powers shall not confer any privileges, immunities or powers exceeding those at the jjassing of such Act held, enjoyed and exer- cised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland and by the Members thereof.] 11>\ The Parliament of Canada shall be called to- gether not later than six months after the Union. 30. There shall be a Session of the Parliament of Canada once at least in every year, so that twelve months shall not intervene between the last sitting of the Parliament in one Session and its first sitting in the next Session. The Senate. 31. The Senate shall, subject to the provisions of this Act, consist of seventy-two members, who shall be styled Senators. 22, In relation to the constitution of the Senate, Canada shall be deemed to consist of Three Divisions — 1. Ontario; 2. Quebec; 3. The Maritime Provinces, Nova Scotia and New Brunswick; which Three Divisions shall (subject to the provisions of this Act) be equally represented in the Senate as follows: Ontario by twenty-four Senators; Quebec by twenty-four Senators; and the Maritime Prov- inces by twenty-four Senators, twelve thereof represent- ing Nova Scotia, and twelve thereof representing New Brunswick. In the case of Quebec each of the twenty-four Senators representing that Province shall be appointed for one of the twenty-four Electoral Divisions of Lower Canada THE B. N. A. ACT, 1807. 7 specified in Schedule A. to chapter one of the Consoli- dated Statutes of Canada. 33. The qualifications of a Senator shall be as fol- J/s^n^^;""" lows : — (1.) He shall be of the full age of thirty years : (2.) He shall be either a natural-born subject of the Queen, or a subject of the Queen naturalized by an Act of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland, or of the Legislature of one of the Provinces of Upper Canada, Lower Canada, Canada, Nova Scotia, or New Bruns- wick, before the Union, or of the Parliament of Canada after the Union. (3.) He shall be legally or equitably seised as of free- hold for his own use and benpfil, of lands or tenements held in free and common socage, or seised or possessed for his own use and benefit of lands or tenements held in franc-alleu or in roture, within the Province for which he is appointed, and of the value of four thousand dollars, over and above all rents, dues, debts, charges, mortgages, and incumbrances due or payable out of or charged on or affecting the same. (4.) His real and personal property shall be together worth four thousand dollars over and above his debts and liabilities. (5.) He shall be resident in the Province for which he is appointed. (6.) In the case of Quebec, he shall have his real pro- perty qualification in the Electoral Division for which he is appointed, or shall be resident in that Division. mmm mmmmmem l>! i Summons of Seiiator. 8 THE IMPERIAL STATUTES. 34. The Governor-General shall from time to time, in the Queen's name, by instrument under the Great Seal of Canada, summon qualified persons to the Senate ; and, subject to the provisions of this Act, every person so summoned shall become and be a member of the Senate and a Senator. I ml I! J lil StBodyif '^^- Such persons shall be first summoned to the Senators. Senate as the Queen, by warrant under Her Majesty's Royal Sign Manual, thinks fit to approve, and their names shall be inserted in the Queen's Proclamation of Union. .4nluVrTi'n ^^* ^^ ^* ^^y ^^^'^^> on the recommendation of the certain cases. Govcmor-General, the Queen thinks fit to direct that three or six members be added to the Senate, the Governor- General may, by summons to three or six qualified per- sons (as the case may be), representing equally the Three Divisions of Canada, add to the Senate accordingly. Reduction of 37. In casc of sucli addition being at any time made, Senate to nor- mal number, the Governor-General shall not summon any person to the Senate, except on a further like direction by the Queen on the like recommendation, until each of the Three Divisions of Canada is represented by twenty-four Senators and no more. Maximum number of Senators. 28. The number of Senators shall not at any time exceed seventy- eight. Tenure of place in Senate. Resignation of place in Senate. 29. A Senator shall, subject to the provisions of this Act, hold his place in the Senate for life. 30. A Senator may, by writing* under his hand ad- dressed to the Governor-General, resign his place in the Senate, and thereupon the same shall be vacant. THE B. N. A. ACT, 1867. 9 31. The place of a Senator shall become vacant in any ni«'i"aii'ica. ■•■ ' turn (»f of the following cases : — Senatorn. (1.) If for two consecutive Sessions of the Parliament he fails to give his attenilauce in the Senate : (2.) If he takes an oath or makes a declaration or acknowledgment of allegiance, obedience, or adherence to a foreign power, or does an act whereby he becomes a subject or citizen, or entitled to the rights or privileges of a subject or citizen, of a foreign power : (3.) If he is adjudged banki'upt or insolvent, or applies for the benefit of any law relating to insolvent debtors, or becomes a public defaulter : (4.) If he is attainted of treason or convicted of felony or of any infamous crime : (5.) If he ceases to be qualified in respect of property or of residence ; provided, that a Senator shall not be deemed to have ceased to be qualified in respect of residence by reason only of his re- siding at the seat of the Government of Canada while holding an office under that Government requiring his presence there. 3/J. When a vacancy happens in the Senate by resig- Summons on '''■'■ ./ o vacancy m nation, death, or otherwise, the Governor-General shall, Senate. by summons to a fit and qualified person, fill the vacancy. 33. If any question arises respecting the qualification Questionsasto '' ^ X o J. (lualihcations of a Senator or a vacancy in the Senate, the same shall be ?■"'• vacancies m benate. heard and determined by the Senate. 34. The Governor-General may from time to time, by Appointment of Speaker of instrument under the Great Seal of Canada, appoint a Senate. Senator to be Speaker of the Senate, and may remove him and appoint another in his stead. I ^Sn^SSBBBBBSSSeS 10 n Quonuii of Senate, Viiting in Senate. Constitution of House of Commons in Canada. THK IMPERIAL STATUTES. 35. Until the Parliament of Canada otherwise pro- vidf , the presence of at least fifteen Senators, including the Speaker, shall be necessary to constitute a meeting of the Senate for the exercise of its powers. 36. Questions arising in the Senate shall be decided by a majority of voices, and the Speaker shall in all cases have a vote, and when the voices are equal the decision shall be deemed to be in the negative. The House of Commons. 37. The House of Commons shall, subject to the pro- visions of this Act, consist of one hundred and eighty-one members, of whom eighty-two shall be elected for Onta- rio, sixty-five for Quebec, nineteen for Nova Scotia, and fifteen for New Brunswick. m i t! I Siimmoningof 38. The Govemor- General shall, from time to time, House of Commons. in the Quccn's name, by instrument under the Great Seal of Canada, summon and call together the House of Commons. Senators not 39. A Senator shall not be capable of being elected or to sit in House , of Commons, of sitting or votiug as a Member of the House of Commons . Electoral Dis- 40. Until the Parliament of Canada otherwise pro- tricts of the -"^ four Provinces yidos, Ontario, Quebec, Nova Scotia, and New Brunswick shall, for the purposes of the election of members to serve in the House of Commons, be divided into Electoral Districts as follows : — 'i 1. — Ontario. Ontario shall be divided into the Counties, Ridings of Counties, Cities, parts of Cities, and Towns enumerated in the first Schedule to this Act, each whereof shall be an Electoral District, each such District as numbered in that Schedule being entitled to return one Member. ml igs of THE B. N. A. ACT, 18G7. 2. — Quebec. 11 Quebec shall be divided into sixty-five Electoral Dis- tricts, composed of the sixty-five Electoral Divisions into which Lower Canada is at the passing of this Act divided under chapter two of the Consolidated Statutes of Can- ada, chapter seventy-five of the Consolidated Statutes for Lower Canada, and the Act of the Province of Can- ada of the twenty-third year of the Queen, chapter one, or any other Act amending the same in force at the Union, so that each such Electoral Division shall be for the purposes of this Act an Electoral District entitled to return one member. 3. — Nova Scotia. Each of the eighteen Counties of Nova Scotia shall be an Electoral District. The County of Halifax shall be entitled to return two members, and each of the other Counties one member. 4. — New Brunswick. Each of tb*^ fourteen Counties into which New Bruns- wick is divided, including the City and County of St. John, shall be an Electoral District. The City of St. John shall also be a separate Electoral District. Each of those fifteen Electoral Districts shall be entitled to return one member. 4 1 . Until the Parliament of Canada otherwise pro- Continuance vides, all laws in force in the several Provinces at the election laws Union relative to the following matters or any o^" them, nentof Caii- namely , — the qualifications or disqualifications of perse 6 provWer^"'^ to be elected or to sit or vote as members of the House of Assembly or Legislative Assembly in the several Prov- inces, the voters at elections of such members, the oaths to be taken by voters, the Returning Officers, their pow- 12 THE IMPERIAL STATUTES. Writs for First Election. As to Casual Vacancies. era and duties, the proceedings at elections, the periods dunng which elections may be continued, the trial of controverted elections, and proceedings incident thereto, the vacating of seats of members, and the execution of new writs in case of seats vacated otherwise than by dis- solution, shall respectively apply to elections of mem- bers to serve in the House of Commons for the same several Provinces. Provided that, until the Parliament of Canada other- wise provides, at any election for a Member of the House of Commons for the District of Algoma, in ad- dition to persons qualified by the law of the Province of Canada to vote, every male British subject aged twenty- one years or upwards, being a householder, shall have a vote. 4 2. For the first election of Members to serve in the House of Commons the (iovernor-General shall cause writs to be issued by such person, in such form, and ad- dressed to such Returning Officers as he thinks fit. The person issuing writs under this section shall have the like powers as are possessed at the Union by the officers charged with the issuing of writs for the election of Members to serve in the respective House of Assembly or Legislative Asr^ambly of the Province of Canada, Nova Scotia, or New Brunswick ; and the Returning Officers to whom writs are directed under this section shall have the like powers as are possessed at the Union by the officers charged with the returning of writs for the elec- tion of Members to serve in the same respective House of Assembly or Legislative Assembly. 43. In case a vacancy in the representation in the House of Commons of any Electoral District happens be- fore the meeting of the Parliament, or after the meeting of the Parliament before provision is made by the Parliament f THE H. N. A. ACT, 1867. 13 e periods trial of ; thereto, 3ution of n by clis- of mom- tlie same la other- • of the '., in ad- avince of [ twenty- 11 have a ve in the ill cause and ad- fit. lall have by the election ssembly a. Nova Officers all have by the le elec- House in the lens be- eting of iament 1 i in this behalf, the provisions of the last foregoin<» section of this AcL t^iall extend and apply to the issuing and re- turning of a writ in respect of such vacant District. 44. The House of Commons, on its first assembling '^j-*^*.) election peiiktT iif after a general election, shall proceed with all practicable House. .fc, speed to elect one of it.j members to be Speaker. 45. In case of a vacancy happening in the office of ^'^ *" *^"'"^f. •^ '■ '■ " up vauimuy in Sneaker by death, resignation or otherwise, the House ';Hice ..f i- "^ " Spettker. of Commons shall with all practicable speed proceed to elect another of its members to be Speaker. . 46. The Speaker shall preside at all meetings of the «i"^*' f f i \ i' 1 , Tenure of office of Lieutenant- Governor. 59. A Lieutenant-Governor shall hold office during the pleasure of the Governor-General ; but any Lieuten- ant-Governor appointed after the commencement of the first Session of the Parliament of Canada shall not be removeable within five years from his appointment, ex- cept for cause assigned, which shall be communicated to him in writing within olie month after the order for his removal is made, and shall be communicated by message THE B. N. A. ACT, 18()7. 17 to disallow cate of the Act was re- lor-General, of the Par- le Act from the Queen's until, within ented to the e Governor- each of the , that it has L' proclama- !ouse, and a vered to the f Canada. Lcer, styled Governor- IGreat Seal ice during Lieuten- mt of the ill not be [iment, ex- licated to 3r for his message ' to the Senate and to the House of Commons within one week thereafter if the Parliament is then sitting, and if not then within one week after the commencement of the next Session of the Parliament. 60. The salaries of the Lieutenant-Governors shall gJXnant- be fixed and provided by the Parliament of Canada. Governors. 61. Everv Lieutenant-Governor shall, before assum- o?ti.s, &c of •^ . ijie'iteiiiiiit- ing the duties of his office, make and subscribe before the Governor. Governor-General or some person authorized by him, oaths of allegiance and office similar to those taken by the Governor-General. 62. The provisions of this Act referring to the Lieu- Application ..f ^ _ provit-ions tenant-Governor extend and apply to the Lieutenant- referring to Lieutenant- Governor for the time being of each Province or other Governor. the chief executive officer or administrator for the time being carrying on the government of the Province, by whatever title he is designated. 63. The Executive Council of Ontario and of Quebec Appointn>ent of executive shall be composed of such persons as the Lieutenant- ofiicer.s for Governor Irom time to time thinks fit, and in the first yuei.ec. instance of the following officers, namely : — the Attorney- General, the Secretary and Registrar of the Province, the Treasurer of the Province, the Commissioner of Crown Lands, and the Commissioner of Agriculture and Public Works ; with in Quebec the Speaker of the Legis- lative Council and the Solicitor-General. 64. The Constitution of the Executive Authority in Executive Go- each of the Provinces of Nova Scotia and New Bruns- Nm™Scoti'a wick shall, subject to the provisions of this Act, continue BnmswTck. as it exists at the Union, until altered under the authority of this Act. 18 THE IMPERIAL STATUTES. Ifi ] PowerH to be exercised by Lieutenant- CJovernor of Ontario or C^uebec with ail vice or akme. 65, All powers, authorities and functions which under any Act of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland, or of the Legislature of Upper Canada, Lower Canada, or Canada, w'ere or are before or at the Union vested in or exerciseable by the respective Governors or Lieutenant-Governors of those Provinces, with the ad- vice, or with the advice and consent, of the respective Executive Councils thereof, or in conjunction with those ( e necessary powers. Council of [ces, and the Id when the to be in the to shall be to represent the sixty-five Electoral Divisions or Districts of Lower Canada in this Act referred to, subject to alteration thereof by the Legislature of Quebec : Provided that it shall not be lawful to present to the Lieutenant-Governor of Quebec for assent any bill for altering the limits of any of the Electoral Divisions or Districts mentioned in the second" Schedule to this Act, unless the second and third readings of such bill have been passed in the Legis- lative Assembly with the concurrence of the majority of the members representing all those Electoral Divisions or Districts, and the assent shall not be given to such bill unless an address has been presented by the Legis- lative Assembly to the Lieutenant-Governor stating that it has been so passed. 3. — Ontario and Quebec. i 81, The Legislatures of Ontario and Quebec rcspec- First Session of Legisla- tively shall be called together not later than six months tures. # after the Union. . 83. The Lieutenant-Governor of Ontario and of Quer Summonint' of ,; l^egislative bee shall from time to time, in the Queen's name, by AsHembiies. i instrument under the Great Seal of the Province, sum- I mon and call together the Legislative Assembly of the Province. 83. Until the Legislature of Ontario or of Quebec Restriction on otherwise provides, a person accepting or holding in ho^fer"o"f Ontario or in Quebec any office, commission, or employ- "*'^^*' ment, permanent or temporary, at the nomination of the Lieutenant-Governor, to which an annual salary, or any fee, allowance, emolument, or profit of any kind or amount whatever from the Province is attached, shall not be eligible as a member of the Legislative Assembly of the respective Province, nor shall he sit or vote as Continuance of existing election laws. XZ THE IMPERIAL STATUTES, such ; but uothing in this section shall make ineligible any person being a member of the Executive Council of the respective Province, or holding any of the following offices, that is to say, the offices of Attorney-General, Secretary and Registrar of the Province, Treasurer of the Province, Commissioner of Crown Lands, and Com- missioner of Agriculture and Public Works, and in Que- bec Solicitor-General, or shall disqualify him to sit or vote in the House for which he is elected, provided he is elected while holding such office. 84, Until the Legislatures of Ontario and Quebec respectively otherwise provide, all laws which at the Union are in force in those Provinces respectively, rela- tive to the folLwing matters, or any of them, namely, — the qualifications and disqualifications of persons to be elected or to sit or vote as members of the Assembly of Canada, the qualifications or disqualifications of voters, the oaths to be taken by voters, the Returning Officers, their powers and duties, the proceedings at elections, the periods during which such elections may be continued, and the trial of controverted elections and the proceed- ings incident thereto, the vacating of the seats of mem- bers and the issuing and execution of new writs in case of seats vacated otherwise than by dissolution, shall re- spectively appl}"^ to elections of members to serve in the respective Legislative Assemblies of Ontario and Quebec. Provided that until the Legislature of Ontario other- wise provides, at any election for a member of the Legis- lative Assembly of Ontario for the District of Algoma, in addition to persons qualified by the law of the Province of Canada to vote, every male British subject, aged twenty-one years or upwards, being a householder, shall have a vote. THE B. N. A. ACT, 1867- 23 D ineligible Council of le followinj^ ey-General, 'reasurer of and Com- md in Que- n to sit or )rovided he ,nd Quebec icli at the tively, rela- , namely, — rsons to be issembly of 3 of voters, ng Officers, ections, the continued, ne procee(i- 8 of mem- rits in case n, shall re- o serve in ntario and ario othei- the Legis- Algoma, in Province jject, aged 3lder, shall 85. Every Legislative Asserably*of Ontario and every Duration of Lkigislative Legislative Assembly of Quebec shall continue for four Afnembiie«. years from the day of the return of the writs for choosing the same (subject nevertheless to either the Legislative Assembly of Ontario or the Legislative Asseml>ly of Quebec being sooner dissolved by the Lieutenant-Gov- (;rnor of the Province), and no longov. 86. There shall be a Session of the Legislature of Yearly Se«. sion (if IiP|,'is. Ontario and of that of Quebec once at least in every lature. year, so that twelve months shall not intervene between the last sitting of the Legislature in each Province in one Session and its first sitting in the next Session. 87. The following provisions of this Act respecting speaker, the House of Commons of Canada shall extend and apply '^"°'""™' to the Legislative Assemblies of Ontario and Quebec, that is to say, — the provisions relating tn the election of a Speaker originally and on vacancies, the duties of the Speaker, the absence of the Speaker, the quorum, and the mode of voting, as if those provisions were here re- enacted and made applicable in terms to each such Legislative Assembly. 4. — Nova Scotia and New Brunswick. , 88. The constitution of the Legislature of each of the Constitutions Provinces of Nova Scotia and New Brunswick shall, sub- of No'va Scotia ject to the provisions of this Act, continue as it exists at Bnmswkk. the Union until altered under the authority of this Act : and the House of Assembly of New Brunswick, existing at the passing of this Act shall, unless sooner dissolved, continue for the period for which it was elected. 5. — Ontario, Quebec, and Nova Scotia. 89. Each of the Lieutenant-Governors of Ontario, Firstelections. Quebec and Nova Scotia shall cause writs to be issued for the first election of members of the Legislative Assembly rr f 24 THK I.MPKUIAL STATUTES. thereof in such form mkI by such person as he thinks fit, and at such time and addressed to such Returning Officer as the Governor-General directs, and so that the first election of member of Assembly for any Electoral Dis- trict or any subdivision thereof shall be held at the same time and at the same places as the election for a mem- ber to serve in the House of Commons of Canada for that Electoral District. 6. — Thp; Four Provinces. Api.iication to 90. The following provisions of this Act respecting ..f i)rovi8ion.s the Parliament of Canada, namely, — the provisions re- money votes, lating to appropriation and tax bills, the recommendation of money votes, the assent to bills, the disallowance of Acts, and the signification of pleasure on bills reserved, — shall extend and apply to the Legislatures of the several Provinces as if those provisions were here re-enacted and made applicable in terms to the respective Provinces and the Legislatures thereof, with the substitution of the Lieutenant-Governor of the Province for the Governor- General, of the Governor-General for the Queen and for a Secretary of State, of one year for two years, and of the Province for Canada. VI. — Distribution of Legislative Powers. Powers of the Parliament. Legislative 9 1 . It shall be lawful for the Queen, by and with the Parliament of advice and cousent of the Senate and House of Com- mons, to make laws for the peace, order, and good gov- ernment of Canada, in relation to all matters not coming within the classes of subjects by this Act assigned ex- clusively to the Legislatures of the Provinces ; and for greater certainty, but not so as to restrict the generality of the foregoing terms of this section, it is hereby declared THE B. N. A. ACT, 1867. 25 thinks fit, ing Officer t the first toral l)is- t the same or a mem- :1a for that respecting visions re- nendation owance of Bserved, — he several lacted and •inces and on of the Grovernor- n and for s, and of with the of Com- ood gov- >t coming igned ex- and for enerality declared I: ■H'' ■<:f liamcnt of Canada may make provision for the uni- Laws in three formity of all or any of the laws relative to property and civil rights in Ontario, Nova Scotia and New Bruns- wick, and of the procedure of all or any of the Courts in those three Provinces ; and from and after the pass- ing of any Act in that behalf the power of the Parlia- ment of Canada to make laws in relation to any matter comprised in any such Act shall, notwithstanding any- thing in this Act, be unrestricted ; but any Act of the Parliament of Canada making provision for such uni- formity shall not have effect in any Province unless and until it is adopted and enacted as law by the Legisla- ture thereof. Agriculture and Immigration. 95. In each Province the Legislature may make laws Concurrent in relation to Agriculture in the Province, and to Immi- LegiTiltfon re- gration into the Province ; and it ii< hereby declared that cuituref et?"" the Parliament of Canada may from time to time make T ^1^ U IS 30 THE IMPERIAL STATUTES. laws in relation to Agricultuia in all or any of the Provinces, and to Immigration into all or any of the Provinces ; and any law of the Legislature of a Province relative to Agriculture or to Immigration shall have effect in and for the Province as long and as far only as it is not repugnant to any Act of the Parliament of Canada. Appointment of .Judges. Selection of Judges in Ontario, etc. Selection of .Judges in (Quebec. VII. — Judicature. 96. The Governor-General shall apj. it the Judges of the Superior, District, and County Courts in each Prov- ince, except those of the Courts of Probate in Nova Scotia and New Brunswick. 97. Until the laws relative to property and civil rights in Ontario, Nova Scotia, and New Brunswick, an d the procedure of the Courts in those Provinces, are mad e uniform, the Judges of the Courts of those Provinces appointed by the Governor-General shall be selected from the respective Bars of those Provinces. 98. The Judges of the Courts of Quebec shall be selected from the Bar of that Province. 99. The Judges of the Superior Courts shall hold Tenure of office of Judges of Superior office during good behaviour, but shall be removeable by Courts. o to » J the Governor-General on address of the Senate and Salaries, etc. of Judges. General Court of Appeal, etc. House of Commons. 100. The salaries, allowances, and pensions of the Judges of the Superior, District, and County Courts (except the Courts of Probate in Nova Scotia and New Brunswick), and of the Admiralty Courts in cases where the Judges thereof are for the time being paid by salary , shall be fixed and provided by the Parliament of Canada . 101. The Parliament of Canada may, notwithstand- ing anything in this Act, from time to time, provide for any of the any of the f a Province il have effect only as it is d{ Canada. ;he Judges of I each Prov- Nova Scotm y and civil inswick, and es, are made le Provinces be selected )ec shall be shall hold noveable by Senate and ions of the nty Courts and New lases where by salary, of Canada . withstand- provide for THE B, N. A. ACT, 1867. 31 the constitution, maintenance, and organization of a general Court of Appeal for Canada, and for the estab- Ushment of any additional Courts for the better adminis- tration of the Laws of Canada. VIII. — Eevenues ; Debts ; Assets ; Taxation. 103. All duties and revenues over which the respec- g^^f^S^^f^j tive Legislatures of Canada, Nova Scotia, and New Revenue Brunswick, before and at the Union had and have power of appropriation, except such portions thereof as are by this Act reserved to the respective Legislatures of the Provinces, or are raised by them in accordance with the special powers conferred on them by this Act, shall form one Consolidated Revenue Fund, to be appropriated for the public service of Canada in the manner and subject to the charges in this Act provided. 103. The Consolidated Revenue Fund of Canada Expenses of collection, etc. shall be permanently charged with the costs, charges, and expenses incident to the collection, management, and receipt thereof, and the same shall form the first charge thereon, subject to be reviewed and audited in such manner as shall be ordered by the Governor. General in Council until the Parliament otherwise pro- vides. 104. The annual interest of the public debts of the interestof several Provinces of Canada, Nova Scotia, and New public debts. Brunswick at the Union shall form the second charge on the Consolidated Revenue Fund of Canada. 105. Unless altered by the Parliament of Canada, Salary of the salary of the Governor-General shall be ten thousand General, pounds sterling money of the United Kingdom of Great Britain and Ireland, payable out of the Consolidated Revenue Fund of Canada, and the same shall form the third charge thereon. Ui 32 THE IMPERIAL STATUTES. If; Transfer of stocks, etc. ^pproprmtion 106. Subject to the several payments by this Act time. charged on the Consolidated Revenue Fund of Canada, the same shall be appropriated by the Parliament of Canada for the public service. 107. All stocks, cash, bankers' balances, and se- curities for money belonging to each Province at the time of the Union, except as in this Act mentioned, shall be the y operty of Canada, and shall be taken in reduc- tion 01 the amount of the respective debts of the Prov- inces at the Union. 108. The public works and property of each Province, enumerated in the third Schedule to this Act, shall be the property of Canada. 109. All lands, mines, minerals, and roj'alties be- longing to the several Provinces of Canada, Nova Scotia and New Brunswick at the Union, and all sums then due or payable for such lands, mines, minerals, or royalties, shall belong to the several Provinces of Ontario, Quebec, Nova Scotia, and New Brunswick, in which the same are situate or arise, subject to any trusts existing in respect thereof, and to any interest other than that of the Prov- ince in the same. Assets con- 110. All assets connected with such portions of the nected with ^ • •> i t-> • Provincial public debt of eacli Province as are assumed by that Province shall belong to that Province. Tfansfer of property in schedule. Property in lands, minew, etc. Canada to be liable for Provincial debts. Delits of Ontario and (Quebec. 111. Canada shall be liable for the debts and liabil- ities cf each Province existing at the Union. 11^. Ontario and Quebec conjointly shall be liable to Canada for the amount (if any) by which the debt of the Province of Canada exceeds at the Union sixty-two million five hundred thousand dollars, and shall be charged with interest at the rate of five per centum per annum thereon. k. THE B. N. A. ACT, 1867. 33 3 by this Act d of Canada, Parliament of ices, and se- ovince at the Qtioned, shall ken in reduc- 3 of the Prov- ach Province, Act, shall be royalties be- Nova Scotia ms then due or royalties, irio, Quebec, he same are g in respect of the Prov- ions of the led by that and liabil- be liable to debt of the wo million arged with 3r annum 113. The assets enumerated in the fourth Schedule Assets of Ontario aiKl to this Act belonging at the Union to the Province of Quebec. Canada shall be the property of Ontario and Quebec conjointly. 114. Nova Scotia shall be liable to Canada for the Dei.t of Xova amount (if any) by which its public debt exceeds at the Union eight million dollars, and shall be charged with interest at the rate of five per centum per annum thereon. 115. New Brunswick shall be liable to Canada for Debt of Xew the amount (if any) by which its public debt exceeds at the Union seven million dollars, and shall be charged with interest at the rate of five i)er centum per annum thereon. 116. In case the public debts of Nova Scotia and Payment .>f Ne.v Brunswick do not at the Union amount to eight Xova Scdtia million and seven million dollars respectively, they shall j'irunswTck. respectively receive, by half-yearly payments in advance, from the Government of Canada interest at five per centum per annum on the difference between the actual amounts of their respective debts and such stipulated amounts. 117. The several Provinces shall retain all their re- Provincial spectiv- public property not otherwise disposed of in this jSy? '""■ Act, subject to the right of Canada to assume any lands or public property required for fortitications or for the defence of the country. 118. The following sums shall be paid yearly bycirahtsto Canada to the several Provinces for the support of their ^''■'''■•"'^'^*- Governments and Legislatures : — Dollars. 0"*^i'^o Eighty thousand. Q^e^ec Seventy thousand. Nova Scotia - . . . gi^ty thousand. New Brunswick - - . - Fifty thousand. Two hundred and sixty thousand j THE IMPERIAL STATUTES. ri If I ! *■ Further grant to Xew P>iuii.su'ick. Foriu (if piiynients Canadiaa niannfac- tures, etc. and an annual grant in aid of each Province shall ho made, equal to eighty cents per head of the population as ascertained hy the Census of one thousand eight hun- dred and sixty-one, and in the case of Nova Scotia and New Brunswick, hy each subsequent decennial Census until the j^opulation of each of those two Provinces amounts to four hundred thousand souls, at which rate such grant shall thereafter remain. Huch grants shall be in full settlement of all future demands on Canada, and shall be paid half-yearly in advance to each Prov- ince ; but the Government of Canada shall deduct from such grants, as against any Province, all sums charge- able as interest on the Public Debt of that Province in excess of the several amounts stipulated in this Act. 119. Now Brunswick shall receive by half-yearly payments in advance from Canada for the period of ten years from the Union an additional allowance of sixty - three thousand dollars per annum ; but as long as the Public Debt of that Province remains under seven million dollars, a reduction equal to the interest at five jyev centiim per annum on such deficiency shall be made from that allowance of sixty-three thousand dollars. 1 30. All payments to be made under this Act, or in discharge of liabilities created under any Act of the Prov- inces of Canada, Nova Scotia and New Brunswick re- spectively, and assumed by Canada, shall, until the Parliament of Canada otherwise directs, be made in such form and manner as may from time to time be ordered by the Governor-General in Council. 131. All articles of the growth, produce, or manu- facture of any one of the Provinces shall, from and after the Union, be admitted free into each of the other Prov- inces. I ill i THE B. N. A. ACT, 18G7. 35 ce shall bo population [ eight hun- Scotia and lial Census ) Provinces which rat«' ;rants shall 3n Canada, each Prov- deduct froni ims charge- Province in lis Act. half-yearly eriod of ten ce of sixty - ong as the nder seven t at five per made from Act, or in )f the Prov- mswick re- until the lade in such be ordered or manu- and after kher Prov- 1 83. The Customs and Excise Laws of each Province Contiimance of ( ustoius shall, subject to the provisions of this Act, contmue m and Excise force until altered by the Parliament of Canada. 1'43. Where Customs duties are, at the Union, levi- Exnortation ami inipDrta- able on any goods, wares, or merchandises in any two tion as •^ ° ,1- bi'tweeii t\v.. Provinces, those goods, wares, and merchandises may, Provides. from and after tlie Union, be imported from one of those Provinces into the other of them on proof of payment of the Customs duty leviable thereon in the Province of ex- portation, and on payment of such further amount (if a,ny) of Customs duty as is leviable thereon in the Prov- ince of importation. 124. Nothing in this Act shall affect the right of LumhL'r.ines New Brunswick to levy the lumber dues provided in Brunswick. chapter fifteen of title three of the Revised Statutes of New Brunswick, or in any Act amending that Act before or after the Union, and not increasing the amount of such dues ; but the lumber of any of the Provinces other than New Brunswick shall not be subjected to such dues. 135. No lands or property belonging to Canada or Exemption of any Province shall be liable to taxation. S^'"" '''"''^' 1 36. Such portions of the duties and revenues over provincial which the respective Legislatures of Canada, Nova Scotia, Sveim.!'''""' and New Brunswick had before the Union power of ''"'"'• appropriation as are by this Act reserved to the respective Governments or Legislatures of the Provinces, and all duties and revenue i raised by them in accordance with the special powers conferred upon them by this Act, shall in each Province form one Consolidated Revenue Fund .^ to be appropriated for the public service of the Province. IX. — MiSCKLLANEOUS PROVISIONS. General. 1211. U any person being at the passing of this Act a Ab to Legi«ia- [ember of the Legislative Council of Canada, NovaiScSiw f-j; !}■■' 36 THE IMPERIAL STATUTES. inces becom- ing Senators. Oath of alle- jiiance, etc. Scotia, or New Brunswick, to whom a place in the Senate is offered, does not within thirty days thereafter, by writing under his hand addressed to the Governor-General of the Province of Canada or to the Lieutenant-Governor of Nova Scotia or New Brunswick (as the case may be), accept the same, he shall be deemed to have declined the same ; and any person who, being at the passing of this Act a member of the Legislative Council of Nova Scotia, or New Brunswick, accepts a place in the Senate shall thereby vacate his seat in such Legislative Council. 1^8. Every member of the Senate or House of Com- mons of Canada shall, before taking his seat therein, take and subscribe before the Governor-General or some person authorized by him, and every member of a Legis- lative Council or Legislative Assembly of any Province shall, before taking his seat therein, take and subscribe before the Lieutenant-Governor of the Province, or some person authorized by him, the oath of allegiance con- tained in the fifth Schedule to this Act ; and every mem- ber of the Senate of Canada and every member of the Legislative Council of Quebec shall also, before taking his seat therein, take and subscribe before the Governor- General, or some person authorized by him, the declara- tion of qualification contained in the same Schedule. Continuance 139. Except as otherwise provided by this Act, all Laws, Courts, laws in forco in Canada, Nova Scotia, or New Brunswick at the Union, and all Courts of civil and criminal juris- diction, and all legal commissions, powers and authorities, and all officers, judicial., administrative and ministerial, existing therein at the Union, shall continue in Ontario, Quebec, Nova Scotia, and New Brunswick respectively, as if the Union had not been made : subject nevertheless (except with respect to such as are enacted by or exist under Acts of the Parliament of Great Britain, or of the THE B. N. A. ACT, 1867. 37 le Senate is , by writing neral of the rovernor of e may be), leclined the passing of cil of Nova the Senate ive Council. use of Com- eat therein, 3ral or some : of a Legis- ny Province id subscribe ice, or some igiance con- every mem- mber of the ■e taking his Governor- the declara- hedule. this Act, all Brunswick linal juris- authorities, I ministerial, in Ontario, [Dectively, as levertheless by or exist tn, or of the .» Parliament of the United Kingdom of Great Britain and Ireland,) to be repealed, abolished, or altered by the Par- liament of Canada, or by the Legislature of the respec- tive Province, according to the authority of the Parlia- ment or of that Legislature under this Act. 130. Until the Parliament of Canada otherwise pro- T^^n^^er of vides, all officers of the several Provinces having duties Canada, to discharge in relation to matters other than those com- ing within the classes of subjects by this Act assigned exclusively to the Legislatures of the Provinces shall be officers of Canada, and shall continue to discharge the duties of their respective offices under the same liabilities, responsibilities, and penalties as if the Union had not been made. 131. Until the Parliament of Canada otherwise pro- Appointment ^ ., , ,. of new officers. vides, the Governor-General in Council may, from time to time, appoint such officers as the Governor-General in- Council deems necessary or proper for the effectual execution of this Act. 132. The Parliament and Government of Canada Treaty oMi^a- „ . tions. shall have all powers necessary or proper for performing the obligations of Canada or of any Province thereof, as 23art of the British Empire, towards foreign countries, arising under treaties between the Empire and such foreign countries. 133. Either the English pr the French language may Use of English be used by any person in the debates of the Houses of the languages. Parliament of Canada and of the Houses of the Legisla- ture of Quebec ; and both those languages shall be used in the respective Eecords and Journals of those Houses ; and either of those languages may be used by any person or in any pleading or process in or issuing from any Court of Canada established under this Act, and in or from all or any of the Courts of Quebec. \-'^' f) Hi 38 THE IMPERIAL STATUTES. The Acts of the Parliament of Canada and of the Legislature of Quebec shall be j)rinted and published in both those languages. Apiiointment of executive iillicers for Ontiiriit and Powers, duties etc., of executive ()tficer!5. 1 Ontario and (JiteJx'c. 134. Until the Legislature of Ontario or of Quebec otherwise provides, the Lieutenant-Governors of Ontario and Quebec may each aj)point under the Great Seal of the Province the following officers, to hold oiiice during pleasure, that is to say — the Attorney-General, the Secre- tary and Registrar of the Province, the Treasurer of the Province, the Commissioner of Crown Lands, and the Commissioner of Agriculture and Public Works, and in the case of Quebec the Solicitor-General ; and may, by order of the Lieutenant-Governor in Council, from time to time prescribe the duties of those officers and of the several departments over which they shall preside or to which they shall belong, and of the officers and clerks thereof ; and may also appoint other and additional officers to hold office during pleasure, and may from time to time pre • scribe the duties of those officers and of the several departments over which they shall preside or to which they shall belong, and of the officers and clerks thereof. 1 35. Until the Legislature of Ontario or Quebec other- wise provides, all rights, powers, duties, functions, re- sponsibilities, or authorities at the passing of this Act vested in or imposed on the Attorney-General, Solicitor- General, Secretary and Registrar of the Province of Canada, Minister of Finance, Commissioner of Crown Lands, Commissioner of Public Works, and Minister of Agriculture and Receiver- General, by any law, statute or ordinance of Upper Canada, Lower Canada, or Canada, and not repugnant to this Act, shall be vested in or im- posed on any officer to be appointed by the Lieutenant- THE K. N. A. ACT, 1SG7. 39 , and of the published in r of Quebec 8 of Ontario reat Seal of )ftice durin^f ,1, the Secre- ,surer of the ds, and the ;s, and in the lay, by order time to time the several or to which Irks thereof ; cers to hold o time pre ■ the several or to which rks thereof. lebec other- nciions, re- of this Act Solicitor- rovince of of Crown Minister of statute or 3r Canada, 1 in or im- ieutenant- Governor for the discharge of the same or any of them ; and the Commissioner of Agriculture and Public Works shall perform the duties and functions of the office of Minister of Agii^ultureat the passing of this Act imposed by the law of the Province of Canada, as well as those of the Commissioner of Public Works. 136. Until altered by the Lieutenant-Governor in o reat Seals. Council, the Great Seals of Ontario and (Quebec respec- tively shall be the same, or of the same design, as those used in the Provinces of Upper Canada and Lower Can- ada respectively before their Union as the Province of Canada. 137. The words " and from thence to the end of the ^'"^.^'j"'^^^^^^^^^ then next ensuing Session of the Legislature," or words ^^cts. to the same effect, used in any temporary Act of the Province of Canada not expired before the Union, shall be construed to extend and apply to the next Session of the Parliament of Canada, if the subject matter of the Act is Avithin the powers of the same, as defined by this Act, or to the next Sessions of the Legislatures of Ontario and Quebec respectively, if the subject matter of the Act is within the powers of the same as defined by this Act. 138. From and after the Union, the use of the words A.s to errors in "Upper Canada" instead of " Ontario," or " Lower "^'"^''* Canada" instead of " Quebec," in any deed, writ, pro- cess, pleading, document, matter or thing, shall not invalidate the same. 139. Any Proclamation under the Great Seal of the As to issue of Province of Canada issued before the Union to take effect beTli-e i'£ir at a time which is subsequent to the Union, whether re- aklTrniou'! lating to that Province, or to Upper Canada, or to Lower Canada, and the several matters and things therein pro- 40 THE IMPERIAL STATUTES. claimed shall be and continue of like force and effect as if the Union had not been made. As to isHue of 140. Any Proclamation which is authorized by anv L'roclnmatioiia after Union. Act of the Legislature of the Province of Canada to be issued under the Great Seal of the Province of Canadii, whether relating to that Province, or to Upper Canada, or to Lower Canada, and which is not issued before the U'nion, may be issued by the Lieutenant-Governor of Ontario or of Quebec, as its subject matter requires, under the Great Seal thereof ; and from and after the issue of such Proclamation the same and the several matters and things therein proclaimed shall be and con- tinue of the like force and effect in Ontario or Quebec as if the Union had not been made. Penitentiary. Arbitration respecting rnment of Canada shall not be a residt ither in On. .lo or in Quebec. 143. The Governor-General in Council may from time to time order that such and so many of the records, books, and documents of the Province of Canada as }»• thinks fit shall be appropriated and delivered either to THE n. N. A. A('T, 1807. 41 and effect as rized by any Uanada to hv e of Canadii, pper Canada, ed before the -Governor of tter requires, .nd after the 1 the several 1 be and Con- or {Quebec as e of Canada rise provides, tario and of f the debts, pper Canada arbitrament vernmont of and one by ction of the ivliament of iiu(i Quebec jro-"rnment n. .10 or in may from the records, nada as lit- d either to Ontario or to Quebec, and the same shall thenceforth be ■^ the property of that Province ; and any copy thereof or extract therefrom, duly certified by the officer having charge of the original thereof shall be admitted as evidence. 1 44. The Lieutenant-Governor of Quebec may from Constitution time to time, by Proclamation under the Great Seal of 'n Qutbec. the Province, to take effect from a day to be appointed therein, constitute townships in those parts of the Prov- ince of Quebec in which townships are not then already constituted, and fix the metes and bounds thereof. X. — Intercolonial Railway. 145. Inasmuch as the Provinces of Canada, Nova ]>ntyof f;..v. . . 1 . 1 1 , . einment anf Xewfound- laiid and Prince Ed- ward Island in Senate. m i tures of the Colonies or Provinces of Newfoundland, Prince Edward Island, and British Columbia to admit thoso Colonies or Provinces, or any of them, into tlic Union, and on Address from the Houses of the Parlia- ment of Canada to admit Paipert's Laid and the North- western Territory, or either of them, into the Union, on such terms and conditions in each case as are in the Addresses expressed and as the Queen thinks fit to ap- prove, subject to the provisions of this Act ; and the pro- visions of any Order in Council in that behalf shall have effect as if they had been enacted by the Pa^^liament of the United Kingdom of Great Britain and Ireland. 147. In case of thv^ admission of Newfoundland and Prince Edward Island, or either of them, each shall be entitled to a representation in the Senate of Canada of four members, and (notwithstanding anything in this Act) in case of the admission of Newfoundland the normal number of Senators shall be seventy-six, and their maxi- mum number shall be eighty-two; but Prince Edward Island, when admitted, shall be deemed to be comprised in the third of the three divisions into which Canada is, in relation to the constitution of the Senate, divided by this Act, and accordingly, after the admission of Prince Edward Island, whether Newfoundland is admitted or not, the rejiresentation of Nova Scotia and New Bruns- wick in the Senate shall, as vacancies occur, be reduced from twelve to ten members respectively, and the repre- sentation of each of those Provinces shall not be increased at any time beyond ten, except under the provisions of this Act for the appointment of three or six additional Senators under the direction of the (^ue^ n. lit \ '^^ .^ NewioundlaiK], tibia io admit ■hem, into the of tlie Parlia- nd the North - he Union, on as are in the nks iit to ap- ; and the pro- fit shall have 'a'^liament of reland. midland and aeh shall be f Canada of ^^i^g in this A the normal their maxi- ice Edward e comj^rised Canada is, divided by ' of Prince flmitted or Jew Bruns- be reduced the repre- J increased 'visions of additional THE B. N. A. ACT, 1867. SCHEDULES. 43 THE FIRST SCHEDULE. Electoral Districts of Ontario. A. ExisTiNo Electoral Divisions. Counties. 1. Proscott. 2. Glengarry. 3. Stornuuit. 4. Dundas. 5. Russell. 6. Carleton. 7. Prince Edward. 8. Halton. 9. Essex. 10, 11, 12. 13. 14. 15. 16. 17. 18. 10. 20. 21. 22. 23. Ridings of Counties. Xortli Riding of Lanark. South Riding of Lanark. North Riding of Leeds and North Riding of Grenvillo. South Riding of Leeds. South Riding of Grenville. East Riding of Northumberland. West Riding of Northumberland (excepting therefrom the Township of South Monaghan). East Riding of Durham. West Riding of Durham. North Riding of Ontario. Soutli Riding of Ontario, East Riding (jf York. West Riding of York. North Riding of York. ';^ m 'If 44 THE IMPERIAL STATUTES, 24. North Riding of Wentworth. 25. South Riding of Wentworth. 26. East Riding of Elgin. 27. WesL Riding of Elgin. 28. North Riding of Waterloo. 29. South Riding of Waterloo. 30. North Riding of Brant. 31. South Riding of Brant. 32. North Riding of Oxford. 33. South Riding of Oxford. 34. East Riding of Middlesex. Cities, Parts of Cities, and Towns. 35. West Toronto. 36. East Toronto. 37. Hamilton. 38. Ottawa. 39. Kingston. 40. London, 41. Town of Brockvillo, with the Township of Elizabethtown thereto attached. t2. Town of Niagara, with the TownsJiip of Niagara thereto attached. 43. Town of Cornwall, with the Township of Cornwall thereto attached. B. New ELEbrr"-A.L Divisions. 44. The Provincial Judicial D.strict of Alcioma. The County of Bruce, divided into twcj Ridings, tu be calltHl respectively the North and South Ridings : — 45. The North Riding of Bruce tu consist of the Townships of Bury, Lindsay, Eastnipr, Albemarle, Amable, Arran, Bruce, Elderslie, and Saugeen, and the Village of Southampton. 46. The South Riding of Bruce to consist of the Townships of Kincardine (including the Village of Kincardine), Gree- nock, Brant, Huron, Kinloss, Culross, and Carrick. m # 1 THE B. N. A. ACT, 18G7. 45 s. f Elizabethtown Niagara tliereto lornwall theietu s, to be CiiUed e Townships of Arran, Bruce, outhampton. ) Townships of sardine) , Gree- arrick. 4. ■A The County of Huron, divided into two Ridings, to be called respectively the North and South Ridings : — 47. The North Riding to consist of the Townships of Ashtield, Wawanosh, Turnberry, Howick, Morris, Grey, Colborne. Hullett, including the Village of Clinton, and McKillop. 48. Tlie South Riding to consist of the Town of Goderich and the Township of Goderich, Tuckersmith, Stanley, Hay, Usborne, and Stephen. The County of Middlesex, divided into three Ridings, to be called respectively the North, West, and East Ridings :— 49. The North Riding to consist of the Townships of McGillivray and Biddulph (taken from the County of Huron), and Williams East, Williams West, Adelaide, and Lobo. 50. Tjie West Riding to consist of the Townships of Delaware, Carradoc, Metcalfe, Mosa, and Ekfrid, and the Village of Strathroy. [Tlie East Riding to consist of the Townships now embraced therein, and be bounded as it is at present.] 51. The County of Lvmbton to consist of the Townships of Bosanquet, Warwick, Plympton, Sarnia, Moore, Ennis- killen, and Brooke, and the Town of Sarnia. 52. The County of Kent to consist of the Townships of Chatham, Dover, East Tilbury, Romney, Raleigh, and Harwich, and the Town of Chatham. 53. The County of Bothwell ' i consist of the Townships of Soinbra, Dawn, and Eiiphei - (taken from the County of Lambtonj, and the Townsliips of Zone, Camden, with the Gore thereof, Orford, and Howard (taken from the County of Kent) Tlie County of Grey divided into two Riding3, to be called respectively the South and North Ridings : — 54. The Soutli Riding to consist of the Townships of Bentinck, Glenelg, Artemesia, Osprey, Normanby, Egremont, Proton, and Melancthon. 55. The North Riding to consist of the Townships of Colling - wood, Euphrasui, Holland, Saint Vincent, Sydenham, Sullivan, Derby, and Keppel, Sarawak and Brooke, . , he Town of Owen Sound. I 46 THE IMPERIAL STATUTES. The County of Perth divided into two Ridings, to be called respectively the South and North Ridings : — 56. The North Riding to consist of the Townships of Wallace. Elma, Logan, Ellice, Mornington, and North Easthope, and the Town of Stratford. 57. The South Riding to consist of tlie Townships of Blanchanl, Downie, South Easthope, Fullarton, Hibbert, and the Villages of Mitchell and St. Mary's. The County of Wkllinoton divided into three Ridings, to be called respectively North, South and Centre Ridings : — 58. The North Riding to consist of the Townships of Amaranth, Arthur, Luther, Minto, Maryborough, Peel, and the Vil- lage of Mount Forest. 59. The Centre Riding to consist of the Townships of Gara- fraxa, Erin, Eramosa, Nichol and Pilkington, and the Villages of Fergus and Flora. GO. The South Riding to consist of the Town of Guelph, and the Townships of Guelph and Puslinch. The County of Norfolk divided into two Ridings, to be called respectively the South and North Ridings : — GL The South Riding to consist of the Townships of Caarlotte- ville, Houghton, Walsinghani, and Woodhouse, and with the Gore thereof. G2. The North Riding to consist of the Townshi^is of Middleton, Townsend, and Windham, and the Town of Simcoe. G3. The County of Haldimand to consist of the Townships of Oneida, Seneca, Cayuga North, Cayuga South, Rainhaiii, Walpole, and Dunn. G4. The County of Monck to consist of the Townshi])s of Canborough and Moulton and Sherbrooke, and the Village' of Dunnville (taken from the County of Hnldimand), the Townships of CaLstor and Gainsborough (taken from the County of Lincoln), and the Townshijis of Pelham and Waintieet (taken from the County of Welland). G5. The County of Lincoln to consist of the Townshijis of Clinton, Grantham, Grimsby, and Louth, and the Town of St. Catharines. n I I \ \ 1 THE B. N. A. ACT, 1.S67. 47 gs, to be called ips of Wallace. 1 Easthope, and )s of Blan chard, ibert, and tlie Ridings, to be ;3 ; — )3 of Amaranth, 1, and the Vil- Lships of Gara- igton, and the ni Guelph, and gs, to be called of Caarlotte- luse, and with of Middleton, imcoe. Townships of th, Rainhani, rownshi])s of d the Village diniand), the ven from the Pelham and Townships of Itho Town of a;. The County of Well and to consist of the Tcjwnships of Bertie, C'rowland, Humberstone, Stamford, Thorold, and Willou'ghby, and the Villages of Chippewa, Clifton, Fort Erie, Thorold, and Welhmd. -(i7. The County of Peel to consist of the Townships of Chin- guacousy, Toronto, and the Gore of Toronto, and the Villages of Brampton and Streetsvllle. •Oi^. The County of Cardwell to consist of the Townships of Albion and Calodon (taken from the County of Peel I, and the T(j\vnships of Adjala and Mono (taken from the County of Simcoe). The County of Simcuk divided into two Ridings, to be called Tespectively the South and North Ridings :— (iO The South Riding to cimsist of the Townships of West Gwillimbury, Tecumseth, Iniiisfil, Essa, Tossorontio, Mul- mur, and the village of Bradford. 70. The North Riding to consist of the Townships of Notta- wasaga, Sunnidale, Vespra, Flos, Oro, Medonte, Orillia and Matchedash, Tiny and Tay, Ealaklava and Robinson, and the Towns of Barrie and Collingwood. The County of Vit'ToKiA divided into tw'< Ridings, to be called respective!}' the South and North Ridings : — 71. The South Riding to consist of the Townships of Oj)s, Marijiosa, Emily, Verulani, and the Town of Lindsay. 7-*. The North Riding to consist of the Townships of Anson, Bexley, Carden, Dalton, Digby, Eldon, Fenelon, Hindon, Laxton, Lutterworth, Macaulay and Draper, Somerville and Morrison, Muskoka, Monck and Watt (taken from the County of Simcoe), and any other surveyed Townships lying to the noi'th of the said North Riding. The County of PfcTERnououGH divided into two Ridings, to be called respectively the West and East Ridings : — 7;?. The West Riding to consist of the Townships of South ^lonaghan (taken from the County of Northumberland), North Monaghan, Smith and Ennismore, and the Town of Peterborough. i! ;i I' ii If 'i 48 THE IMPERIAL STATUTES. 74. The East Riding to consist of the Townships of Asphodel, Belmont and Methuen, Douro, Dummer, Gtdway, Harvey, Minden, Stanhope and Dysart, Otonabee and Snowden, ami the ViHage of Ashburnhani, and any other surveyed Town- sliips lying to the north ci the said East Riding. The County of Hastings divided into three Ridings, to be called respectively the West, East, and North Ridings : — 75. The West Riding to consist of the Town of Belleville, the Township of Sydney, and the village of Trenton. 7((. The East Riding to consist of the Townships of Thurlow, Tyendinaga, and Hungorford. 77. The North Riding to con,sist of the Townships of Rawdon, Huntingdon, Madoc, Elzevir, Tudor, Marmora, and Lake, and the Village of Stirling, and any other surveyed Town- ships lying to the North of the said North Riding. 78. The County of Lennox to consist of the Townships of Richmond, Adolphustown, North Fredericksburgh, South Fredericksburgh, Ernest Town, and Amherst Island, and the Village of Napanee. h\- 79. The County of Addington to consist of the Townships df Camden, Portland, Sheffield, Hinchinbrooke, Kaladar, Kennebec, Olden, Oso, Anglesea, Ba rie, Clarendon, Palmerston, Effingham, Abinger, Miller, Canonto, Denbigli, Loughborough, and Bedford. 80. The County of Frontenac to consist of the Townships nf Kingston, Wolfe Island, Pittsburgh and Howe Island, and Storrington. The County of Re.vfkew divided into two Ridings, to be called respectively the South and North Ridings : — 81. The South Riding to consist of the Townships of McNab, Bagot, Blithfield, Brougham, Horton, Admaston, Grattan, Matawatchan, Griffith, Lyndoch, Raglan, Radclitfe, Brude- nell, Sebastopol, and the Villages of Arnprior and Renfrew. 82. The North Riding to consist of the Townships of Ross, Bromley, Westmoath, Stafford, Pembroke, Wilberforce, Alice, Petawawa, Buchanan, South Algona, North Algoiia, lii ' i THE B. N. A. ACT, 1867. 49 ips of Asphodel, Gritlway, Harvey, id Snowden, and surveyed Town- ding. Ridings, to be .ings :— )f Belleville, the euton. Fraser, McKay, Wylie, Rolph, Head, Maria, Clara, Hagarty, Sherwood, Burns, and Richards, and any other surveyed Townships lying north-westerly of the said North Riding. Every Town and incorporated Village existing at the Union, not specially mentioned in this Schedule, is to be taken as part of the County or Riding within wliich it is locally situate. ips of Thurlow, THE SECOND SCHEDULE. Iiips of Rawdon, nora, and Lake, surveyed Town- Riding. le Townships of cksburgh, Soutli 3rst Island, and Electoral Districts of Quebec specially fixed. Counties of — Pontiac. Ottawa. Argenteuil. Huntingdon. Missisquoi. Brome. Shetford. Stanstead. Town of Sherbrooke Compton. Wolfe and Richmond. Megantic. le Townships (if loke, Kaladai'i ie. Clarendon, nonto, Denbigli, le Townships nf owe Island, and Ridings, to be ings :— lips of McNab, aston, Grattan, idcliffe, Brude- »r and Renfrew. nships of Ross, Wilberforco, North Algona, THE THIRD SCHEDULE. Provincial Public Works and Property to be the Property of Canada. 1. Canals, with Lands and Water Power connected therewith. 2. Public Harbours. 3. Lighthouses and Piers, and Sable Island. 4. Steamboats, Dredges, and public Vessels. 5. Rivers and Lake Improvements. 6. Railways and Railway Stocks, Mortgages, and other Debts due by Railway Companies. 7. Military Roads. 8. Custom Houses, Post Offices, and all other Public Buildings except such as the Government of Canada appropriate for the use of the Provincial Legislatures and Governments 9. Property transferred by the Imperial Government, and known as Ordnance Property. 10. Armouries, Drill Sheds, Military Clothing, and Munitions of War, and Land set apart for general public purposes. 50 THE IMPERIAL STATUTES. THE FOURTH SCHEDULE. k' I l< Assets to be the Property oj Ontario and Quebec conjointly. Upper Canada Building Fund. Lunatic Asylums. Normal School. Court Houses, \ in Aylmer. I. Lower Canada. Montreal. Kamouraska. / Law Society, Upper Canada. Montreal Turnpike Trust. University Permanent Fund. Royal Institution. Consolidated Municipal Loan Fund, Upper Canada. Consolidated Municipal Loan Fund, Lower Canada. Agricultural Society, Upper Canada. Lower Canada Legislative Grant. Quebec Fire Loan. Temiscouata Advance Account. Quebec Turnpike Trust. Education — East. Building and Jury Fund, Lower Canada. Municipalities Fund. Lower Canada Superior Education Income Fund. :! : THE FIFTH SCHEDULE. I, A. Oath of Allegiance. B. do swear, That I will be faithful and bear true Allegiance to Her Majesty Queen Victoria. Note. — The Name of the King or Queen of the United Kingdom oj Oreat Britain and Ireland for the time being is to be substituted from tim^ to time, with proper terms of reference tliereto. ill Declaration of Qualification. I, A. B. do declare and testify. That I am by law duly qualified to be appointed a member of the Senate of Canada [or as the am ec conjointly. THE B. N. A. ACT, 1867. 51 mmj he], and that I am legally or equitably seised as of freehold for my own use and benefit of lands or tenements held in free and common socage [or seised or possessed for my own use and benefat of lands or tenements held in franc-alleu or in roture (or as the erne may be),] in the Province of Nova Scotia [or as the case mcuj he] of the value of four thousand dollars over and above all Wnts dues, debts, mortgages, charges, and incumbrances due or payable out of or cliarged on or aflecting the same, and that I have not collusively or colourably obtained a title to or become possessed of the said lands and tenements or any part thereof for the purpose of enabling me to become a member of the Senate of Canada [or as the case may be], and that my real and personal property are together worth four thousand dollars over and above my debts and liabilities. )r Canada. Canada. ' \ Fund. iw duly qualified bda [or as the case and bear true tited Kingdom of substituted from 3 ^T" 52 THE IMPERIAL STATUTES. Short Title. IMP. ACT, 34 VICT. cap. 28. An Act respecting the establishment of Provinces in the Dominion of Canada. [29th June, 1871.] WHEREAS doubts have been entertained respectiiio the powers of the Parhament of Canada to establish Provinces in territories admitted, or which may hero- after be admitted, into the Dominion of Canada, and to provide for the representation of such Provinces in the said Parhament, and it is expedient to remove such doubts, and to vest such powers in the said Parliament : Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords, Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same as follows : 1. This Act may be cited for all purposes as "The British North America Act, 1871." Parliament of ^. The Parliament of Canada may from time to time estabiish"new establish new Provinces in any territories forming for prov7ckfonhe the time being part of the Dominion of Canada, but not etc^*thereof' i^icluded in any Province thereof, and may, at the time of such establishment, make provision for the constitution and administration of any such Province, and for the passing of laws for the peace, order and good government of such Province, and for its representation in the said Parliament. THE B. N. A. ACT, 1871. 53 28. )f Provinces une, 1871. ed respecting la to establish }h may here- ,nada, and to vinces in the remove such i Parliament : lent Majesty, If the Lords, this present y of the same ses as " The time to time forming for ada, but not it the time of 3 constitution and for the 1 government in the said 3. The Parliament of Canada may from time to time, ^^^^^''^ "^ with the consent of the Legislature of any Province of Provinces, the said Dominion, increase, diminish, or otherwise alter the limits of such Provinces, upon such terms and con- ditions as may be agreed to by the said Legislature, and may, with the like consent, make provision respect- ing the effect and operation of any such increase or diminution or alteration of territory in relation to any Province affected thereby. 4. The Parliament of Canada may from time to time Parliament. .f make provision for the administration, peace, order, and legislate for good government of any territory not for the time being mairdude^in included in any Province. 5. The following Acts passed by the said Parliament ConHnnati )n I-, 1 1 • • 1 T i- 1 ofActsofl'ar. of Canada, and intituled respectively : liament of Canada. "An Act for the temporary government of Rupert's 32and33 Vic. "Land and the North-Western territory when ca^Ta!''"'* "united with Canada;" and *' An Act to amend and continue the Act thirty- two 33 Vic. (Cana- " and thirty-three Victoria, chapter three, and '" to establish and i)rovide for the government •*' of the Province of Manitoba," shall be and shall be deemed to have been valid and effectual for all purposes whatsoever from the date at which they respectively received the assent, in the Queen's name, of the Governor-General of the said Dominion of Canada. 6. Ex<5ept as provided by the third section of this Act, Limitation of IJOWCl'S of -it shall not be competent for the Parliament of Canada Parliament of to alter the provisions of the last-mentioned Act of the legfsiLteforan said Parliament in so far as it relates to the Province of Province^ Manitoba, or of any other Act hereafter establishing new •€i ^m %m M 64 THE IMPERIAL STATUTES. Provinces in the said Dominion, subject always to the right of the Legislature of the Province of Manitobn to alter from time to time the provisions of any law respect- ing the qualification of electors ;md members of the Legislative Assembly, and to make laws respecting elections in the said Province. PARLIAMENT OF CANADA ACT, 1875. 55 Kvays to tlie Manitobii to r law respect- nbers of tlio s respecting i IMP. ACT, 38 & 39 VICT. cap. 33. An Act to remove certain doubts with respect to the powers of the Parliament of Canada, under section eighteen of the British North America Act, 18G7. [19th July, 1870.] WHEREAS by section eighteen of the British North 30 and 31 Vie. America Act, 1807, it is provided as folIowH :— °" ^' " The privileges, immunities, and powers to be held, en- joyed and exercised by the Senate and by the House of Commons, and by the members thereof respectively, shall be such as are from time to time defined by Act of the Parhament of Canada, but so that the same shall never exceed those at the passing of this Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the members thereof." And whereas doubts have arisen with regard to the power of defining by an Act of the Parliament of Canada, in pursuance of the said section, the said privileges, powers or immunities ; and it is expedient to remove such doubts : Be it therefore enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same as follows : T 'W 56 THE IMPERIAL STATUTES. Substitution 1. Section eiffhteeu of the British North America of new section " for section 18 Act, 1867, is hereby repealed, without prejudice to any. Vic, c. x thing done under that section, and the following section shall be substituted for the section so repealed. V The privileges, immunities and powers to be heW, enjoyed, and exercised by the Senate and by the House of Commons, and by the members thereof respectively, shall be such as are from time to time defined by Act of the Parliament of Canada, but so that any Act of the Parliament of C-anada defining such privileges, immuni- ties and powers shall not confer any privileges, immunities, or powers exceeding those at the passing of such Act held, enjoyed, and exeroiied by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the members thereof. Confirmation 2. The Act of the Parliament of Canada passed in the of Act of . '■ Parliament of thu'ty-first year of the reign of Her present Majesty, chapter twenty-four, intituled " An Act to provide for oaths to witnesses being administered in certain cases for the purposes of either House of Parliament," shall be deemed to be valid, and to have been valid as from the date at which the royal assent was given thereto by the Governor-General of the Dominion of Canada. Short title. 3. This Act may be cited as the Parliament of Canada Act, 1875. !!!'!■ PRIVY COUNCIL. 57 ftb America id ice to any. wing section led. to be held, )y the House respectively, led by Act of y Act of the ^es, immuni- ., immunities, of such Act ons House of ireat Britain passed in the ^ent Majesty, provide for certain cases iment," shall alid as from n thereto by anada. Iirliainent of [PIUVY COUNCIL.] Our So^T.REIGN Lady the Queen Appellant, AM) Edward On Appeal from the Court of Queen's Bench fur the Province of Quebec, Canada. [Reported L. It. 4 P- C. oOn.] By the Statutes of the Quebec Legislature 31 Vict. c. 32, and 32 Vict. c. 2!), Fire Ccmnnissioners or Marshals were appointed with power to investigate the origin of any fires occurring i,i the Cities of Quebec and Montreal; to coiupel the attendance of witnesses, and examini; them on (jath ; and to commit to prison any witnesses refusing to answer without just cause. Held, that these Statutes were within tho competency of the Provincial Legislature. On jietition by the Attorney-General of the Province of Quebec, special leave was granted to appeal from a judgment of the Queen's Bench, Quebec, on a case reserved in a trial for felony. In this case special leave to appeal was granted from a judgment of the Court of Queen's Bench of the Pro- vince of Quebec on a case reserved for that Court by Mr. Justice Badgley, under the powers of the Consolidated Statutes of Lower Canada, c. 77, ss. 57, 58, on a trial of the Respondent for Arson. The case so reserved, after stating that the prisoner had been tried and found guilty, proceeded as follows : " In the course of the adduction of the evidence for the Crown, two depositions made and sworn to by the *J. c. 187:J M'nrh 11. CooTE Respondent. ^^'^^ * Present :— Sir Jamen W. Colvile, Sir Barnex Peacock, the Lord Justice iMelHsh. Sir Montague K. Smith, and Sir Robert P. Collier. 58 PRIVY COUNCIL. ¥l I Rko. prisoner, with his signature subscribed to each, taken CooTE. by the Fire Commissionera at their investigation into Statkjiknt. the cause and origin of the tire at his -warehouse, before any charge or accusation against him or any other person had been made, were produced in evidence, and which, after having been duly proved, were submitted to the jury as evidence against him, after the objection previously made by the prisoner to their production in evidence and after his said objection had been overruled; after the conviction of the prisoner and before sentence was pronounced by me thereon, he moved the Court by two motions tiled in Court in the terms follow- ing." The case then set out the two motions, of which the first is immaterial as Mr. Justice Badgley rejected it, and reserved no question respecting it ; the second wa'^ in the following terms : — "Motion on behalf of the said Edward Coote, that judgment upon the said indictment, and upon a verdict of guilty thereon, rendered against him be arrested, and that the said verdict be quashed and set aside, and the said defendant, to wit, the said Edward Coote he relieved therefrom, for, among others, the following; reasons." A great many reasons were then set out, the onlv ones material to the present Appeal being, that the two depositions were inadmissible in evidence, because the Fire Commissioners before whom they were taken had no authority to administer an oath, or take such depo- sitions, and such depositions were not admis ible as statements made by the prisoner, because they were not made freely and voluntarily and without compulsion or fear, and without the obligation of an oath. "The reserved case came on for argument in the Coiut of Queen's Bench, Appeal side, before the Chief Justice Y COUNCIL. 59 ;o each, taken istif^'ation into ehouse, before or any other evidence, and ere submitted ■ the objection production in een overruled ; • and before he moved the ) terms follow- , of which the ey rejected it, ;he second wa-: d Coote, that upon a verdict arrested, and aside, and the ard Cooto oe the following out, the only that the two because the sre taken had ie such depo- idmis ible as ihey were not ompulsion or in the Court Chief Justice Duval, and the .Tustiee« Carow Drummond, Badgley and Monk; and on the 15th of Mm-h, 1872, the Court gave judgment in the following terms : "After hearing counsel, an well on behalf of the prisoner as for the Crown, and due d^lnberation had, on the case transmitted to this Court &o«i the Court of Queen's Ben?h, sitting on the^-rown ^Ho, at Montreal, it is considered, adjudged, and finally uebec. Nova Scotia, and New Brunswick. A Parlia- ment for Canada called the Dominion Parliament consisting of the Queen the Senate and the House of Commons is thereby established, and by section 71, a legislature for Quebec was established consisting of tlie Lieut.-Governor and of two Houses, styled the Legis- lative Council of Quebec and the Legislative Assemblv of Quebec. The material sections of tlie Act which effected the distribution of the legislative power as between the Dominion Parliament and the Local Legislature, are the i>lst and the i)2nd. By the former, so far as is materinl to this case to refer to it, it was provided that it should he lawful for the Queen, with the advice and consent of the Dominion Legislature, to make laws on all subjects not coming within the class of subjects by that Act assigned exclusively to the Legislatures of the Provinces, and for greater certainty, it was declared that the exclusive legislative authority of the Parliament of Canada should extend to all matters coming within certain classes of subjects, to wit, utter alia, bankruptcy and insolvency ; and that any matter coming within the said classes of subjects should not be deemed to come within the class of " matters of a local or private nature" mentioned in the next section. By the latter, it was provided that in each province the Local Legislature might exclusively make laws in relation to matters coming within certain classes of subjects therein men- tioned, to wit, inter alia : 7. The establishment, main- tenance, and management of hospitals, asylums, charities, and eleemosynar ^ institutions in and for tk ■:| PRIVY COUNCIL. 67 the province^ ick, form one under section viz., Ontario, k. A P.irlia. I Parliamiiit the House ol section 71, a isistiu},' of till' Btl the Legih. tive Assembly ti effected t lie- between tlio lature, are the as is material at it slioukl be 3onsent of tlit l subjects not Act assif^ncd inees, and for the exclusive of Canmla itliin certain kruptcy and thin the said come within ate nature" atter, it was Legislature to matters herein men- ment, main- s, asylums, and for the province, other than marine hospitals. 11. The incor- poration of companies with provincial objects. 13. Proi)crty and civil ri^dits in the ])rovince. 16. Generally all matters of a merely local or private nature in the province. The question arose in this way. The Respondent, on the 25th of August, 1H70, sued the Appellant society in the Circuit Court for the district of Mc.itreal, to recover an instalment of an annuity to which she was admittedly entitled under the rules of the society. By special plea, the A2)pellant pleaded that by the Provincial Act above set out it was authorized to pay to the Kespondent the sum of $200 in lieu of the benefits which she was entitled to receive from the society, and if she refused to acccq^t it to place the sum in deposit, and pay to the Respondent the interest, viz. $12 a year monthly in advance during her life, or till her second marriage ; and that the society had, at a general meeting, on the 10th of March, 1870, resolved to avail itself of the Act, and that it had always been ready and willing to pay the arrears to that date. The Respondent answered, that the Provincial Act should be declared illegal and unconstitutional. The Judge (Torrance, J.), on the 30th of November, 1870, gave judgment overruling the Appellant's plea (15 L. C. J. 212). This judgment was affirmed on the 20th of September, 1872, by the Court ^of Queen's Bench* (Duval, C. J,, Drummond and ■Monk, JJ., Caron, and Badgley, J J., dissenting). The I majority of the Judges considered that the Provincial f Legislature in passing the Act, had legislated on a I matter coming within the class of " insolvency," which I belonged under the Qlst section of the B. N., A. Act, 1 1867, to the exclusive authority of the Parliament of ! Canada. LTTnion St. iTACiJUKS V. Hki.isi.k. .Statkmknt. ^ See post, p. 72. IMAGE EVALUATION TEST TARGET (MT-S) fe /. z l/j &> ^ 1.0 I.I ^■28 |2.5 50 ■'^" !■■■ ~ 3j •« ^ I 2.2 i;s lllllio i.8 1.25 |u 16 — ^ 6" — ► #L'^ 7 Photographic Sciences Corporation 33 WEST MAIN STREET WEBSTER, NY. 14580 (716) 872-4503 '^h^ t/j 6^ Tl H OH PHIVY COUN'CIL. ! ^ ? ' Jacquks "^ ^'^' ^^ • Haicouit, Q.C, and Mr. Bompas, for the Ukusi.k. Appellant. Min>y^sT. Ml-. J'.eujamin, Q.C, and Mr. F. W. Gibbs, for tlii' Uespondcnt. The judgment of their Lordships was delivered ])v LoHD Sklrornk : — The sole question in this appeal is this : whether the subject matter of the Provincial Act (33 Vict. c. 58), is one of those which by the 91st section of the Dominion Act are reserved exclusively for legislation by the Do- minion Legislature. The scheme of the Olst and 92nd sections is this. By the 91st section some matters — and their Lordships may do well to assume, for the argu- ment's sake, that they are all matters except those afterwards dealt with by the 92nd section — their Lord- ships do not decide it, but for the argument's sake they will assume it ; certain matters, being upon that assumption all those which are not mentioned in the i)2nd so»tion, are reserved for the exclusive legislation of the Parliament of Canada, called the Dominion Parlia- ment ; i)ut beyond controversy* there are certain other matters, not only not reserved for the Dominion Parliament, but assigned to the exclusive power and competency of the Provincial Legislature in each province. Among those the last is thus expressed : " Generally all matters of a merely local or private nature in the province." If there is nothing to control that in the 91st section, it would seem manifest that the subject matter of this Act, the 33 Vict. c. 58, is a matter of a merely local or private nature in the province, because it relates to a benevolent or benefit society in- corporated in the city of Montreal within the province, which appears to consist exclusively of members who would be subject pvimd facie to the control of the Pro- ! W'i'j !i I'HIVY CoUNCIl,. 69 This Act (Iciils sok'ly with the L In'on St. vincial Legislature. affairs of that particular society, and in this manner : — taking notice of a certain state of embarrassment resulting from what it describes in substance as impro- vident regulations of the society, it imposes a forced commutation of their existing rights upon two widows, who at the time when that Act was passed were annui- tants of the society under its rules, reserving to thtm the rights so cut down in the future possible event of the improvement up to a certain point of the affairs of the association. Clearly this matter is private ; clearly it is local, so far as locality is to be considered, because it is in the province and in the city of Montreal ; and unless, therefore, the general effect of that head of sect. 92 is for this purpose qualified by something in sect. 1)1, it is a matter not only within the competenc}', but within the exclusive competency of the Provincial Legislature. Now sect. 91 qualities it undoubtedly, if it be within any one of the different classes of subjects there specially enumerated ; because the last and concluding words of sect. 91 are : " And any matter coming within any of the classes of subjects enumerated in this section shall not be deemed to come within the class of matters of a local or private nature comprised in the enumeration of the classes of subjects by this Act assigned exclusively to the Legislatures of the provinces." But the ohhh is on the respondent to shew that this, being of itself of a local or private nature, does also come within one or more of the classes of subjects specially enumerated in the 9l8t section. Now it has not been alleged that it comes within any other class of the subjects so enumerated except the '21st, " Bankruptcy and Insolvency;" and the question therefore is, whether this is a matter coming under that class 21, of bankruptcy and insolvency? Their Lord- Hkiisi.k. .h IMIMKNT. '•iiti 70 PRIVY COUNCIL. Jacques r. Belislk. j loom est. i^'U^^ion^St. ships observe that the scheme of enumeration in that section is, to mention various categories of general subjects which may be dealt with by legislation. There is no inaication in any instance of anything being contemplated, except what may be properly described as general legislation ; such legislation as is well expressed by Mr. Justice Caron when he speaks of the general laws governing Faillite, bankruptcy and insolvency, all which are well known legal terms ex- pressing systems of legislation with which the sub- jects of this country, and probably of most other civilized countries, are perfectly familiar. The words describe in their known legal sense provisions made by law for the administration of the estates of persons who may become bankrupt or insolvent, according to rules and definitions prescribed by law, including of course the conditions in which that law is to be bx'ought into operation, the manner in which it is to be brought into operation, and the effect of its operation. Veil, no such general law covering this particular Association is alleged ever to have been passed by the Dominion. The hypothesis was suggested in argument by Mr. Benjamin, who certainly argued this case with his usual ingenuity and force, of a law having been previously passed by tlie Dominion Legislature, to the effect that any association of this particular kind throughout the Dominion, on certain specified conditions assumed to be exactly those which appear upon the face of this statute, should thereupon, ipso facto, fall under the legal administration in bankruptcy or insolvency. Their Lordships are by no means prepared to say that if any such law as that had been passed by the Dominion Legislature, it would have been beyond their competency; nor that, if it had been so passed, it would have been within the competency of the Provincial Legislature afterwards to take a particular iii PRIVY COUNCIL. 71 \.-'>i Belisi.k. J f I Mi M KM. association out of the scope of a general law of that ^''^j^^,^^^''' kind, so competently passed by the authority which had power to deal with bankruptcy and insolvency. But no such law ever has been passed ; and to suggest the pos- sibility of such a law as a reason why the power of the Provincial Legislature over this local and private associa- tion shoald be in abeyance cr altogether taken away, is to make a suggestion which, if followed up to its consequences, would go very far to destroy that power in all cases. It was suggested, perhaps not very accurately, in the course of the argument, that upon the same principle no part of the land in the province upon the sea coasts could be dealt with, because, by possibility, it might be required for a lighthouse, and an Act might be passed by the Dominion Legislature to make a lighthouse there. That was not a happy illustration, because the ' .lole of the sea coast is put within the exclusive cognizance of the Dominion Legislature by another article ; but the principle of the illustration may be transferred to Article 7, which gives to the Dominion the exclusive right of legislating as to all matters coming under the head vyf " militia, military and naval service, and defence." Any part of the land in the Province of Quebec might be taken by the Dominion Legislature for the purpose of military defence ; and the argument is, if pushed to its consequences, that because this which has not been done as to some particular land might possibly have been done, therefore, it not having been done, all power over that land, and therefore over all the land in the province, is taken away, so far as relates to legislation concerning matters of a merely local or private nature. That, their Lordships think, is neither a necessary or reasonable, nor a just and proper construction. The fact that this particular society appears upon the face of m ::.m I ■5" \ rr 1 !i { .1' I < LTTnion St. Jacqukh I'. Belihlk. judomknt. : 1 ' 72 FRIVY COUNCIL. the Provincial Act to have been in a state of embarrass- ment, and in such a financial condition that, unless relieved by legislation, it might have been likely to come to ruin, does not prove that it was in any legal sense within the category of insolvency. And in point of fact the whole tendency of the Act is to keep it out of that category, and not to bring it into it. The Act does not terminate the company ; it does not propose a final distribution of its assets on the footing of insolvency ov bankruptcy ; it does not wind it up. On the contrary, it contemplates its going on, and possibly at some future time recovering its prosperity, and then these creditors, who seem on the face of the Act to be somewhat sum- marily interfered with, are to be reinstated. Their Lordnbips are clearly of opinion that this is not an Act relatiis to bankruptcy and insolvency, and will therefore humbly advise Her Majesty that this appeal be allowed, that the judgment of the Court of Queen's Bench (Canada) ought to be reversed, and that the suit be dismissed. There will be no costs of this appeal. Judgment reversed.. Jmljments in Court of Queen's Bench. [Reported 20 L. C. J. 29.] Badoley, J. : — Severivl years before the Imperial enactment of 1867, which con- stituted the present Dominion Government of Canada, out of the then four British American Provinces, a Friendly Society had been established at Montreal, in Lower Canada, called Union St. Jacqma de Montreal, by charitably disposed persons, having for its object " the aid of its members in cases of sickness, and the ensuring of like assistance to the widows and children of deceased members." By- laws expedient and necessary for the interests and administration of the atfairs of the Society wore made, which fixed the relief to be PRIVY COUXCIT.. 7n (riven anil the classes of its beneficiaries to receive it, amoni^st wliom LTnion St. were during their widowhood, the widows of deceased members of ' ' ,,, ii certain standing in the Society. The funds were derived from Bfxislf the periodical contributions of its members, whilst connected with (J. B.,Ciuebec. tlio Society. The Institution had been in operation for some years BadKloy, J. when its members applied to the Provincial Legislature of the time, aiul obtained an Act of Incorporation for the Society, under its (irii,'inal name and formation, and for its original purpose and object uf a merely Eleemosynary Society. The Act of Incorporation merged the original Society into the Incorporated Institution. The (liininislied resources of the Society preventing the continuance to its beneficiaries of their then allowances, and amongst them those of the four widows borne upon the funds of the establishment, the Society proposed to them to convert their allowances into the fixed sum of 3200, to be once paid to each of them, with the right to receive their full allowance if thereafter the assets of the Society should reach ten thousand dollars. The proposition was at once accepted by two of them, and upon the refusal of the others, the Provincial Legislature of Qitebec, formerly Lower Canada, upon the application of the Society, passed the Provincial Act 83 Vict., eh. 58, "An Act to relieve the Union St. Jacques of Montreal," which gave effect to the proposition above mentioned in respect of its beneficiary widows. The widow Belisle, one of the refusing widows, thereupon instituted an action against the Society for her weekly allowances, claimed to be due to her since the first of Feb- ruary, 1870, the date of the passing of the Provincial Act, to the following first of August, for $43.50, to which the Society pleaded the Provincial Act in bar of the action. The Circuit Court overruled the plea, upon the grounds, first, that the legislative authority of the Dominion Parliament extended over all matters of insolvency ; and second, that the Provincial Legislature had no power to legislate, as by this Act, by which the respondent, in view iif the umbility of the Society to meet tlieir eiigagements, was com- pelled to compouitd her said cUiim of seven sliUlings ami sixpence per week, during lier widowhood, for the s^im of two hundred dollars, once paid. Two questions follow upon this contestation : the first, the right of the Provincial Legislature of Quebec to pass the Act in question, which is alleged to involve the insolvency of the Society ; and the second, the jurisdiction of the Circuit Court to annul a Provincial Act sanctioned by the constituted authority in the Dominion for I' ' 111 .l-i t f II 74 PRIVY COUNCIL. :\ 1 :i ' 11 L'Union St. that effect, and not disallowed in the manner provided by the ^, Dominion Act, the Constitution of the country. Bkuhlk. Tjje gfgj question, the extent of the powers intrusted to the Pro- Q. li., Quebec, vincial Legislature, necessarily requires reference to the legislative Badgley, J. power intrusted exclusively to the Dominion Legislature. Now, by the Dominion Aci^., it is common knowledge that the several pro- vinces which compose the Dominion Government have each of them local Legislatures, and that by the Act under which these exist, as well as that of the Dominion itself, the powers and rights belonging to each havo been defined and established, and are in that sense constitutional. It may be observed that the Dominion legislative powers are, to use a common expression, supreme in all matters of a general nature which are specifically confided to the action of the general or Dominion legislature, subject only in its legislative acts to the Imperial reservations contained in the Imperial Act for the Dominion, and amongst others to the signification of the pleasure of the Sovereign as to its legislative enactments, and their disallow- ance within two years, as expressly provided by the Dominion Act. Beyond this, the legislative powers of the Dominion are supreme throughout the Dominion, and acknowledge no power, judicial or otherwise, to interfere with them when applied to the general matters enumerated as exclusively within the Dominion legislative purview. Its legislative powers within the limits are exclusive, and govern and extend over the provinces composing the Dominion. These matters are plainly and explicitly indicated as classes of matters of a general nature, and the Dominion legislative acts as to these are only subjected to the provisions of the Dominion Act ; amongst others, to their sanction by the Govenior-G-^neral in the name of the Crown, His Excellency's reservation of Acts for the signification of the Royal pleasure thereon, and their Imperial dis- allowance within two years after their receipt by the Imperial Secretary of State. In like manner, the Dominion Act has provided for the legislative powers of the several provinces, and the same care has been taken to specify their extent and objects, which necessarily are simply local and not within the general Dominion powers. The Provincial Legislatures within their own boundaries freely exercise the powers intrusted to them under the Dominion Act, which gave them their provincial constitutions, and in which anil for which they are as supreme and exclusive as the general Legislature itself, but, like the Dominion, the Provincial Legislatures are likewise subject to the reservations in respect to their legislative acts, namely, the PUIVY COUNCIL. 75 eiit to them by their local Governor, their reaorvation for the L'Union St. assent of the Governor-General instead of the Sovereign, and their ' „ disallowance by the Governor-General, not the Sovereign, within Bklisii.k. one year, not two as provided for the Dominion Acts. Beyond these Q. B., Qiieliec. reservations the legislative Acts of the Provincial Legislature, within BadRle^, J. the enumerated local matters for their action, are supreme and co- ercive upon all within the extent of the Province. These Provincial powers are as exclusive as those of the Dominion ; when not dis- allowed, therefore, by the Governor-General, Provincial legislation is supreme, and binds as law throughout and within the provincial purview. ( )ur examination of the Dominion Act, and of its intended scope and purpose, indicates the necessary legislative theory upon which its provisions in this respect are founded. The establishment of the I'eneral Dominion Government necessarily carried with it exclu- sive legislation by the Dominion upon the general classes of matters affecting the Dominion of the four Provinces, whilst the establish- ment of the several local or provincial Legislatures as necessarily drew to each its legislative power upon local matters within each province. The theory of the general legislative powers of the Dominion is expressly general in the enactment of general laws upon its exclusive subjects enumerated for its action. The 91st Section of the Act provides for the legislative authority of the Parliament of Canada, to make laws for the peace, order and good government of Canada in all matters not coming within the classes of subjects assigned exclusively to the Provincial Legislatures, and for greater certainty that authority is declared to extend to all matters coming within the classes of subjects enumerated in the Dominion Act, namely, amongst others, the Public Debt and Property, Eegulation of Trade and Commerce, Postal Service, Navigation and Shipping, Currency and Coinage, Weights and Measures, Patents, Copyrights, Naturalization, etc.. Bankruptcy and Insolvency, the Criminal Laws and Procedure, and any matters coming within any of the enumerated classes of subjects in this Section. The principle of the theory of the Dominion legislation for general subjects ex- clusively, stands out in bold relief by merely going over the list of the enumerated general subjects attributed to the general Legisla- ture. The 92nd Section enacts that in each province the Legislature may exclusively make laws in relation to matters coming within the classes of subjects therein enumerated, namely, amongst others, Direct Taxation within the Province, the Amendment of the Pro- 76 FMIIVY COUNCIL. L Union hr. vincial Constitution, Public Lan, generally all matters of a iiiuroly local or private nature in the Province. Looking to the enumerated subjects of legislation exclusively belonging to each Legislature, tlie division between the general aiul local subjects is apparent and inanifest. Now, with reference to the contested provincial enactment, look- ing to its object and intent, and comparing these with the legislativt powers intrusted to the Local or Provincial Legislature of Quebec, it cannot be denied that the appellant, the Corporation of the Union St. Jac(iue3, is of the eleemosynary chamrter, claused in the 7th mh- Hfiction, that it does fall within, the terms uf the 13th Section (is l , i duly sanctioned by proper authority. The Provincial Act in itself may also be tested with reference to its subjection of the enuni'irated e.xclusive subject of liankruptcy and Insolvency attributed exclusively to the Dominion Legislature, liv tlie fiict, that the Dominion has made a general law upon the Statutory .subject, the provisions of which apply to this contention. A Statutory Bankruptcy and Insolvent Legislation had been in force in the two Canadas since the first Insolvent Act of 18G4, which was continued with amendments to the time of the making of the Dmninion Law for Insolvency in 18G9, which repealed the Provin- cial enactments and substituted a general Dominion Law upon the sul)ject. By the Provincial Act of 1804, the first section specially enacts that " the Ad ithoidd apjilij in Lower Canada to trailers d/i/;/," "'and in Upper Canada to all persons whether traders or not," and this provision was not interfered with in the 8ub8e(iuent statutory amendments of that Provincial Act. By the Dominion "Act respecting Insolvency" of 1809, the Lower Canada statutory restriction is extended throughout the Dominion of the four Provinces, and it is enacted by the first section of the Dominion Act of 1809, "This Act shall apply to traders only." Now it is nothing but just to read the general subject of Bankruptcy and Insolvency by the light of the Dominion LeL;islature itself, as indicating the intent of that Legislatiire as to the enumerated subjects for its action, and it becomes undeniable, tiierefore, that the Society, the appellant, here comes within the express limitation and restriction of the general law, and being neither in character nor purpose commercial nor a trader, and solely and simply what it has always been, a charitable and eleemosynary institution in and for the Province of Quebec, the Provincial enact- ment for its relief can, under no circumstances, be brought within the operation of the laws of Bankruptcy and Insolvency attributed to the Dominion Legislature, and as explained by its own general enactment. It is not my intention to examine the special provisions of the Act in (piestion, because, assuming the Act to be within the local legisla- tive powers, and as to its subject matter or inducement not conflicting 1 ' -'^i ^ ':■] ■ ml : *i .X • , mm ^ -m ] ^i.tiKi^ 1 i i * 1* t" — r yi**^£^^ . 't^^MM 1.^ •■ lt»3^M iJ IhiU |K ( 1 Wi% 'if N ili Ki' if£^ ■rpr 78 I'HIVY COUNCIL. I! I L Union Ht. witli the ^,'enoral oxclusjvo iM)wor of tho Dominion as to tho xeiit'inl ,, lawB of biinkriiptoy luid inHolvency, it is necussiirily coiistitutiunal, H ki.isi .k. h,„| thoroforo, as a neoossary result, its ]>rovisions iiiiiBt bo ohtvLMl Q. M., (^iicliec. and olmervod ovon by Courts of Justice, as being witliin tlio clasHiif liadRlny, J. matters within the action and powers of tho Provincial LeKiHlatuie, I will merely add that it has received its proper sanction by tlic Provincial Clovernor, it has not been disallowed by tho Oovernor- fSeneral — tho only constitutional authority capable of settiii'^' it aside or invalidating it — and that it stands recorded amonyst tlio provincial statutes of t,)uebec as an ert'ectivo provincial statute and law, with lei,'al attributes for its existence within its jtrovinco, e(|ual to those of any Domini ^J- I the Statute in question in this cas f Legislature ; that l.rties affected thereby, and ZZ2 I! ' jrc '""'? "'"'" ^'^^ I ^'"^■^^-;- -^^ ^'^-^t the judgn.enl of the X.n C :T: '"'^^'^ ^' I expression, is unconstitutional and ' H' "^'' '^^ "*"'" I j.Klicial repeal of the Act and'an ill " ^ '"'"'' ^''''^ ''" ""'-i^tJiorized only left to the Governor-Gene;. ^^f^V"' '' ^''«^""---e appealed from is incorrect and -.gl^to brstlldr' ''" '""'"""" C.VKOx,J..._ [Tr„„./af,.j,-i There is nothing extraordinary i„ the Act f r -l"est,o„ m this cause ; it contains tl , ^"Corporation i„ [ Acts of this kind, and it is 0:^^^:,;^'^ r''''' ^""-' ^" " '•-! jurisdiction to do so. N,„" ? , '"l ^^'^-'^^ture which passed 'liction, it had equally the rkrht , ' 1' L^'J'"«'-'»t"re had this juris- '---^'. ""less tiL p^r r:e:^t'r"'^"^"^^'""«^^ ^"ix^nortoitsown. ''""" ^''^^^^ •'^"■ay by a power f ^'-«^*'- Ace of Union) h^asC.;^^^^^^^^^^ ^^^ ^"^P-' t- pass enactments on the subjects Z Y!" ' "^ '^'' '^^^'' I-ation pleaded by the respondr i^ "" '''' " ^"-- -t-.,.. The question to be det liinl '''t'"' """^^'^ ^he A^t has in fact taken away from ourr . ''' ''" *^"« ^'"'-"'^l ;"theActofI„eorporatioLr;:t;':^^^^^^ ^f.;'"^ the respondent com^ t Vnd l^TT ' ^ ^"'*l and^of no effect. ' ""^ '"^"^^ «!>« maintains are TxiON Sr c. Bku.slk. B., Quebec. Badgloy, J. 'm ; 'fl 82 PRIVY COUNCIL. I am of oi)inion tliat this lias not been done. In passing the Act l^l L'Union St, ,.. of which the respondent cor< plains, the bankruptcy laws have not BKL1SI.K. been touched, under the dominion of which the Society in question Q. B., Quebec, has never fallen. It appears absurd to assert that a society founded Caron, J. ^o"" such .an object as this one is of a nature to be placed in bank- ruptcy or insolvency. No ; this benevolent society, founded for the purpose of providing for the wants of the poor members belong- ing to it, found after some years' experience that the conditiona imposed f)i. them at their retjuest were too burdensome, and would destroy the society and the object proposed in founding it, and then the members petitioned the Legislature to make the changes which they suggested, adapted to remedy their existing state of weakness and embarrassment. The Local Legislature, in grant- ing what was asked, has assuredly not touched the general laws regulating bankruptcy and insolvency ; this Act is special, and has nothing in conmion with the general laws on these different subjects. Suppose it were otherwise, and that, in fact, the Act in question related to this kind of law, it is not ascertained that the Society which petitioned for this Act was in truth in a state of insolvency and ruin ; asking for changes to improve its position is not an admission that it was in such a state. Eveiy day we see corpora- tions petitioning the Legislature for changes, and amendments to their charters, without its entering into any one's head to assert that this is p, sign of bankruptcy or ruin. It is the same in the present case. The Society has represented that the obligations which it has to fulfil are burdensome, and may hinder its prosperity and continuance, but this is not an allegation that it is in a state of ruin. I would therefore reverse the judgment and dismiss the plaintiffs action. Then at the fresh hearing in this cause, it has been suggested that it was not so much in consequence of the Imperial statute that the Local Legislature had no jurisdiction on the subject in question, but rather because the Act of amendment passed by the Local Legislature changes the rights conferred on members of the Society of St. Jacques, by their original Act of Incorporation ; that, in virtue of that Act, the respondent had vested rights which the Act of amendment impaired, and that this rendered it void bo far as the respondent was concerned. This contention appears to me unreasonable ; if it were admitted, banks and other companies, once they were incorporated, would ■:1 DUXAI It is ui ment is s judicial j can this I powers ar and limit •juestiona 'luestione^ see that tl TJie poi hy the Im the followi On the s 110 power power whic of sound It pose of liii contrary tc Legislature case, I ask Quebec, en hundred po And yet thi Jacques entt PRIVY COUNCIL. 83 no longer be able to obtain any change in their charters, for the L'Union St. reason "iven in the present case, namely, that these changes, advan- ,. ta<'eoU3 as they may be to the greater number of the shareholders, Bkuslk. nii"ht affect the rights and interests of some among them, and that Q. B., CiueLec. consequently, for fear of this, the Legislature should never grant caron^.). an amendment to Acts of Incorj)oration. There is another observation to be made, which is, that if in truth the Society is insolvent or ruined, the law passed by the Local Legislature, and which the respondent complains of, is for the interest of the respondent, since in accepting these provisions the respondent will be able to receive thereby the sum fixed, in place of her annuity, while in that case she would run the risk of not being paid that annuity. I remain, then, of opinion that the judgment should be reversed, and the plaintiffs action dismissed with costs. DcvAL, 0. J. :— It is undoubtedly true that the authority of the Imperial Parlia- ment is supreme, and, in its exercise, cannot be controlled by the judicial power. Such is the received doctrine in England. But can this be said of the Legislature of the Province of Quebec, whose l)owers are conferred by an Act of the Imperial Parliament, defined and limited in language generally admitting of little doubt ] Un- questionably not. ^Vhen the authority is sujweme, it cannot be questioned, but when it is limited it is the duty of the judges to see that the limits prescribed have not been exceeded. The powers confei'red on our Provincial Legislature are defined by the Imperial Act, 30-31 Victoria, Chapter 3, paragraph 92, and the following. On the subjects set forth in these paragraphs it may Icfjislate, but no power is given to it to impair the obligation of contracts — a power which has ever been considered as contrary to every principle of sound legislation. In a free State, every man has a right to dis- pose of his property on his own torms, provided these are not contrary to law. The contract once made is as binding on the Legislature as it is ou the individual. Applying this to the present case, I ask what would be said of an Act of the Legislature of Quebec, enacting that a man who had sold his house for fifteen hundred pounds should accept twelve hundred in full payment I And yet this is precisely the case before the Court. The Union St, Jacques entered into a contract with the husband of the respondent, t r 84 PUIVV COUXflL. t 1 it I L'Union St. by whicli it bound itself to pay a certain sum of money to the latter c. after the deatli of her husband, sliould she survive him. It is this B ELi.sL K. amount which the widow claims, and which the Uniim St. Jac((ULs <^ B., (^ueljec. refuses to pay. Diivul, C. J. Let not tlio authority of Blackstone be invoked, .and his opinion expressed in volume 1, page 90, be referred to, "that (/ Parlia- ment will positively do what is wrong," he knows of no power in the ordinary form of the Constitution that is vested witii tliu authority to control it. To this tlie limited power of our Legislature above mentioned is a cimclusive answer. Admitting tliat the judicial power in England cannot interfere, but must blindly submit to superior and unlimited authority, can the same be said of a Legislature whose pcnvers aw defined and expressly limited .' Another answer may be given, e [ually conclusive in my opinion. Judges are not to I'eason and lay down rules on suppositions, gratuitously made, for the purpose of creating embarrassment in the administration of justice. Mr. .Fustice Blackstone says : " If the Parliament does wrong, he knr)w,s of no power that can att'or'l relief." I ask when has the Imjieriiil Parliament intei-fcred with private contracts ! When State neces- sity has compelled Siich an interference, has not the contractin„' party been fully indemnitied ? Instead, therefore, of indulging in suppositions never realized, it is prudent for judges to reserve their opinions to be pronounced when the Legislature has committed tlie injustice, juid not until then. From the above remarks, it is evi- dent to me that the Legislature of Quebec has exceeded the boundary of legislation prescribed to it. The question now to be decided is. Can this Court interfere '. I can have no hesitation in answering " Yes." The same law wliich has prescribed boundaries to the Legislative power, has imposed upon the judges the duty of seeing that that power is not exceeded- Were it otherwise, the Courts of this country must enforce a com- pliance with an Act of the Local Legislature of Quebec in a matter expressly and exclusively delegated to the Parliament of Canada. Take, for instance, an Act of the Local Legislature on a matter within the classes of subjects set forth in the Olst paragraph, the Criminal law among others, — would any judge sentence a man to the Penitentiary in virtue of an Act of the Local Legislature i Further, would the Courts acknowledge the binding obligation of an Act of the Local Legislature, on bankruptcy or insolvency ; or of an Act conferring on a foreigner the rights of a natural-born 8 PRIVY COUNCIL. 85 subject ? Decidedly not. Then, where is the line of distinction to LTn'ion Si. bo drawn i What Acts of the Local Legislature are the Courts of ' ' ,. Justice of this country bound to enforce, and what not ? Their Hklislk. duty in my opinion, is clearly and distinctly pointed out in the Q. 15., (^iel)tv Act of the Lnperial Parliament above referred to. DuvbTc'. J. It has been argued that the pov;er of disallowing Acts of the Local Legislature is given by the Imperial Parliament to the Gov- ernor-General, and therefore that the Courts of Justice have no other duty to perform than tlicat of yielding obedience to the Act. I confess that the extreme weakness of the argument (jn this point struck me as soon as the words were spoken. I could not believe that the Imperial Parliament had vested in the Governor-General the right of deciding on the legality of a law, and at the same time denied this right to the judges of the land. Such, I .as certain, was not the spirit of Englisli legislation. On reference to the Imperial Act, I find it affords not the slightest ground for such an argument. :^ M Mo.vK, J. : — I agree with my colleagues, the Chief Justice and Mr. Justice Drumniond, in this case. At the time of the argument, I was inclined to the opinion expressed by Judges Caron and Badgley, but, upon careful con- sideration, I think we have the right, and that in fact it is our duty, to disregard a law of the Local Parliament if it be in conflict with the Imperial Act which confers a Constitution upon the Do- minion. It is satisfactory to me to know that my brother Caron is also of that opinion, though he differs from the Court upon the ground that there is no conflict in this case. Several learned judges of the Dominion and many text-writers, whose decisions and authority are applicable to this case, uphold this view of our powers, and I therefore readily yield to what appears to be the juore approved doctrine. It is said that our decision will lead to consequences of the gravest character. If this be so, the fault is not ours ; we have tlie lini)eriivl Act, which undoubtedly we are bound to obey and to enforce. If we find a local law in conflict with its provisions, we have no more right to give that effect, than we should a by-law of the Corporation contrary to a local law. But, assuming this doctrine as to the powers and duties of this u«Hi ' •;!■ 'H'i Lh^ m . \ i m^'^i f . il f^^ I! > ll 8G PRIVY COUNCIL. I? < T/ITnion St. Court to be sound, does this Act transgress the Dominion Act ? ,._ Does there exist the conflict contended for by the respondent ? B F.r.iHL B. j^. |g arg^ed^ and with considerable force, I think, tliat only «.i. B. , Quebec, general legislation on insolvency was reserved to the Dominion or Monk, T. Federal Parliament, and that this Act not possessing that character, it does not come within the prohibition. The law, however, does not, expressly or by clear implication, make that distinction, and, in that case, this Ccmrt would not probably feel justified in doin;,' so. The local Act says in plain English that the Union St. Jaapiv^. being insolvent, unable to meet its liabilities and engagements, and not being able to induce the respondent and other ladies to accept a composition, the power of the Local Parliament is invoked to legalize a reduction of the claims — in other words, to compel the interested parties to accept a forced composition. All this is said and enacted, in less precise, in milder words, yet, this is a concise statement of the case. The whole Act means insolvency and forced composition ; nothing more and nothing less. If this be true, then the letter of the Imperial Act is plainly violated, and although I have some doubts as to whether that statute meant to prohibit the Local Parliament from legislating on insolvency in matters of the nature brought before us, yet there is a judgment of the Court below, and my doubts are not strong enough to induce me to disturb it, more especially under the circumstances of this case. 1:1 1 1 Drummond, J. : — ^ This is a case deserving more than ordinary consideration, not from the amount of money at stake, but from the importance of the constitutional question involved in it — namely, whether the Courts of this country have power, I would not say, in formal terms, to annul, but to refuse obedience to the commands of the manifold Legislative Bodies of this Dominion when they issue in matters with which the Imperial Parliament has given them 'io authority to deal, or inhibited them from interfering. To explain the facts of the case and the grounds upon which tlie judgment appealed from was given, I avail myself of the observa- tions made by his Honour Mr. Justice Torrance, because tluy express my opinion, my view of the whole matter, in clear and concise terms. (His Honour read the remarks of Torrance, J., for which see 15 L. C. Jurist, p. 212.) I'RIVY COUNCIL. 87 Remains the question, as to how the tribunals of Federal Govern- L Inion St, ments should deal with enactments made by the divers Legislatures ' ,.. beyond the limits of the legislative powers assigned to them respec- '^ *''''"'"• tively by the Cliarters or Constitutions to which they owe their i}. 13., Quebec, existence. I do not hesitate to say that the duty of the Courts is Drummoud, J. to di.sre<'ard, or refuse obedience to, all such enactments, as null and void. In support of this position, I ([uote, in the first place, the oi>inions (if some great publicists and jurisconsults wlio have defined the duties of judges, in relation to the conflicting laws of Federal, or Composite Governments, organized by social compact between Independent States. Austin, one of the most pi-ofound of all writers in the English lani'uace on the philosophy of Law and Jurisprudence, says : — "To illustrate the nature of a composite state, I will add the following remark to the foregoing general description: Neither the immediate tribunals of the connnon or general govern aii'ut, nor the immediate tribunals of the several united governments are bound, or empowered, to administer or execute erfrj/commiJiid that it may issue. The political powers of the commui,'lHf tiieso subjects, and the local Act the validity of which is iidW (luestioned, treating of matters in our opinion directly within tiiat subject, the Act in question being an Insolvent Act in the strictest sense of the term, there arises an undoubted conflict be- tween the Statute of the Imperial Parliament and such Act of tho Local Legislature, and presents the case suggested by Mr. Justice Parker, u'hvre ice are bontid to pronounce our opinion on the validity of the local Act. " The Imperial Statute says that the Parliament of Canada shall exclusively legislate on Bankruptcy and Insolvency ; in other words, that the inhabitants of the Dominion shall be bound only by laws passed after the 1st July, 1867, within the Dominion, on these subjects by the Parliament of Canada. The subordinate legislative body of the Province, in defiance of this Statute, has undertaken to legislate on this subject, and by so doing seek to bind the inhabit- ants of this portion of the Dominion by their Act. Their right to do so is now contested, and under these circumstances can there be any doubt as to what we are bound to do ? We think not. We must recognize the undoubted legislative control of the British Parliament, and give full force and eflfect to the Statute of the Supreme Legislature, and ignore the Acts of the subordinate, ichen, as in ilns case, they are repugnant and in conflict The Constitution of the Dominion and Province is now to a great extent a written one, and where, under the terms of the Union Act, the >]\\i [(1) 1 Hannay, 548.] m 02 PRIVY COUNCIL. L'Union Ht. power to legislate is granted to bo exercised oxclusivoly by „|,(, ^, body, the subject so exclusively assigned is as conjpletoly taken B emml k. from the others as if they had been expressly forbidden to act in it; y. B., Quebec, and if they d(i legislate beyond their powers, or in defiance of tl^ Drutninond, J. restrictions placed on them, ilicir cnnctmentH are no rnon: liimliM tlidii. rnli'H (ind miiilatioii.i promulqnUd Inj (imj other '}uianth(>rir.i'il /),),/,, The fact of t'-'s Act having been cimHrmod by the Governor-doiural was much relied on as giving it a binding force and effect, Imt «■( fail to see how this can be. No power is given to the Oovuninr- General to extend the authority of the Local Legislature, or onablu it to override the Imperial Statute, which would be the necL'ssary results if the Local Legislatures could, by assuming their ri!,'lit t, legislate on a prohibited subject, have their action legalised and validity given to their acts by the simple confirmation of the Governor-General, thus making the individual act of the Local Legislature or of the Governor-General, or their united acts, superior to the Parliament of Great Britain." My judgment in Kx parte Papin (1) for writ of habean cuc^jim, I find substantially well reported in these words : * ' The onactinents of the B. N. A. Act, 1807, 30 and 31 Vict., c. 3, s. 92, sub-sec. 15, are as follows : ' The imposition of punishment by fine, penalty, »i imprisonment, for enforcing any law of the Province made in rela- tion to any matter coming within any of the classes of subjects enumerated in this section.' Therefore the punishment imposeil by Local Legislatures on an oflcnce cannot be cumulative ; it must be either fine, penalty, ur imprisonment; it cannot be fine anil imprisonment. This provision therefore limits the whole of the pow- ers of imposing punishment by Provincial Legislatures, and they can- not grant toCorporiitions any greater powers of punishment than they possess themselves, so that the 32 Vict., c. 70, s. 17, is clearly uncoiisti itioDal, in so far as it assumes to authorize the impositidii of punishment by fine and imprisonment for an infraction of a by- law of the City of Montreal. This sect. 17 of the 32 Vict., c. 70, b eing the clause relied on to maintain the commitment and convic- tion in this matter, Papin having been condemned to pay §20 ami to be imprisoned for two months, it is clear that both conviction and commitment are null and void. The petitioner must therefore be discharged." Mr. Assistant Justice Ramsay, whilst holding the Court of :i ■ iKi [(1) 15 L. C. J., 334.] PRIVY COUNCIL. 98 n,i...>i.'s Hi'iicli, Crown sido, iit Shorbrooke, '■' tlio case of /'«/«• I-Ini<»n ^r. j„,l ^;ny,7/i (1), said, ill givinjijudj,'montai8iiuBsin<,'thoiipi>oul: "Tlio ' ,., i/iMUiuls (.f tho appeal aro substantially that tho conviction is not r«KM?t^K. •upiiiirtod by the evidenco, and that tho Act, in so far as it pro- (.j. r,., (^hiel.ec. scril'OH liny criminal procoduro, is boyond tho powors of tho Lo-iis- u,.,,,, ~,,. .,, latuiv of tho I'nivinco of Quoboc. " Witli I'oi'iird to tho second of tlioso (juestions, I have no doubt that it is conipotont for this Court, or indeed for any Court in this Prdvincu, iiicidontally to dotonnino whothor any Act passed by tho Lcisliituro of tho Province bo an act in oxouss of its powers. This is 11 nucessiiry incident of the i)artition of tho legislativo power ^ umltr tiio B. N. A. Act, without reserving to any special Court tho jurisdiction to decide as to the constitutionality of an Act of ftiiy i)f the Logislatuni I wisii it to bo clearly understood that, however ropuj^nant to iiinrality tlie Act under consideration may bo. as annulliii<4 private ciiiiti'iiots, and violating ac(iuired rights, this Court did not require to be taiiglit, by a wasted display of legal lore, that judges have no niiwer to set aside, arrest, or nullify a law passed in relation to a subject icithiih the scope of leghlativc aiUhoritij, on the ground that it ciiiitiicts with tlioir ideas of natural right, abstract justice, morality (ir honour. The (piestion under consideration is not the moral character of the Act, but the power — the authority of the framer. 'I'he decision of this Court does not tend to impair the supremacy of the Imperial Parliament, but to maintain it in its full power. Undoubtedly the relative position of the several Legislatures in this Dominion and the judiciary at the present moment is unsatis factory. But the remedy for the evil is obvious and of facile application. If we wish this Dominion Government to become successful and prosperous, we must organize a special tribunal. Let it be called by any name except a "Court of Appeal." We have already too many of that class. Give it exclusive power to decide all consti- tutional questions, and invest it also with exclusive jurisdiction to (leal with all litigious difficulties arising between the Federal and Local Governments. Whenever, in any case, the constitutionality of a law is called in question, let it be immediately evoked to the Supreme Tribunal, , '.i| im ;;■)• -r-m '!#■ lilt [(1) 16 L. 0. J., 169.] TF 94 PRIVY COUNCIL. L I NioN St. under such checks as would be necessaiy to prevent abuse, and ,.. thus you will avoid the inconvoiance of allowing every judge, from B klisl k. ^j^g Chief Justice of this Court to the Justice of the Peace, or the Q. B., Quebec. Commissioner of small causes, to refuse obedience to a law solemnly Drniiiinond, J. passed by a legislative body, as he is now bound to do, whenever he believes that it is opposed to the behest of the Imperial Parlia. ment. The state of things now existing might be termed Lej/isla- tive and Judicial Anarchy. A change must be made. No Federal Government can long maintain its existence without a Court such as the tribunal suggested. The Government of the United States might have fallen into dissolution ere now, had it not been saved by the Supreme Court which is, perhaps, the greatest despotism in the world ; but it is the beneficent despotism of the law. The Imperial Parliament, however, is alone vested with tht power f)f passing a law such as that, the enactment of whicli 1 venture to advise.* * [The Siii)reme Court of Canada waa afterwards eHtabliahed by the Parliament of Canada, 38 Vict. cap. 11.] PRIVY COUNCIL. 95 ■^ \ rpEiyy COUNCIL.: James Dow and Others Appellants, AND William T. Black and Others Respondents. On appccd from the Supreme C'^urt of Neu: Brunswick, [Reported L. R 6 P. C. 27^'.] Disiribution of Legislative Power — Legislatnre of New Brunswick. An Act of the Provincial Legislature of Now Brunswick (33 Vict. c, 47) intituled " An Act to authorize the issuing of Deben- tures on the credit of the lower District of the Parish of St. Stephen, in the County of Charlotte," which empowered the majority of the inhabitants of that Parish to raise, by local taxation, a subsidy designed to promote the construction of a railway extending beyond the limits of the Province, but already authorized by statute, was held to be within the legisla- tive capacity of that Legislature. A Provincial Legislature may, under the B. N. A, Act, sec. 92, art. 2, impose direct taxr.tion for a local purpose upon a parti- cular locality within the Province. The Act in question was held to relate to "a matter of a merely local or private nature in the Province," which, by the 92nd section of the B. N. A. Act, is assigned to the exclusive com- petency of the Provincial Legislature, and not to relate to a railway or any local work or undertaking within the excepted subjects mentioned in Art. 10, sub-sect, (a) of the said section. L'Union St. Jacques de Montreal v. Dame Julie Bellsle (L. R. G P. C. 31, a)i,te p. 57) approved. The question decided in this appeal was whether the Act of the Provincial Legislature of New Brunswick (33 •Present :— Sir James W. Col vile, The Lord Justice James, The Lord Justice Mellish, and Sir Montage E. Smith. J. C* 187o Marrli ti. ■ m il^^nfa^iyiik ..'>> M HFf ''1 !^K!'l..!i ^^^^B ' ^ v*^ ^H ' K. \ l^K^ Ml si 96 PRIVY COUNCIL. II ! m Dow Vict., c. 47) is within the powers of that Legislature Black. according to the true construction of the Imperinl Statemknt. Statute, the B. N. A. Act, 18G7. The Act in question intituled " An Act to authorize the issuing of debentures on the credit of the lower District of the Parish of St. Stephen," is, so far as is material for the present question, in the following terms : — "Whereas the inhabitants of the town of St. Stephen, in the county of Charlotte, are desirous of having direct railway connection between Houlton, in the State of Maine, and the St. Croix Valley, in the county afore- said ; and whereas the town of Houlton has offered the Houlton Branch Eailway Company a bonus of $30,000, upon condition that the said Houlton Erancli Railway Company shall and do construct, and suitably equip with necessary rolling stock a railway from the town of Houlton aforesaid to the line of the New Brunswick and Canada Railway and Land Company, at or near the ])ebec Station so called, and so that the said railway shall be completed and ready for the conveyance of passengers and freight on or before the 1st day of January in the 3'ear of our Lord 1872; and whereas the said Houlton Branch Railway Company are willinf; to undertake the building and construction of such con- necting line of railway, and have the same completed and properly equipped for the conveyance of freight and passengers as aforesaid, within the time aforesaid, upon the conditions that the town of St. Stephen do and shall give to the said Houlton Branch Railway Company a bonus of $15,000 ; and whereas the inhabitants of that portion of the said town of St. Stephen called the lower District, and hereinafter particularly described, are willing and desirous to give the said sum for the said purpose, and that the said sum should be raised upon the ci i I inhab I maun > "Be ■ Legisl "L Compa Justice session railway wick an; built aiK stantiall passengt locomotii aforesaid proper se not less t ing propel 000 Gondii the said Ji by suit at no person shall have Peace in tl rized to ad the Clerk c his propert debts and Justices in issue and t as a bonus I pany, certif I amount of I; I New Bruns\ 7 PRIVY COUNCIL. g_ the credit of the real antl personal property „f *v, inhabitants of the said lower District in such mode and manner as may be thonghf most advisable "Be it therefore enacted by the Lieutenant-Governor Legislative Council, and Assembly as follows — "'• T'"-" "Pon the said Houlton Branch Kailwav Company giving reasonable and »rr>,>»,. .„ •. ^'""'y Justices of the Peace in genlTr ' '" ""^ sessions called for that J^ \Z!r " '»^^-' raihvay fro-. Houlton to the Te of th , , T '"" "' wick and Canada Bailway and Land Co " ''™"" built and efficiently furnished .^ ^''"'^' ''""' ■>« slantially ready and fi 7or «,' con ™'°' ''''' """ "'*■ passengers and P^per^^tXtr^rr''' »^ locomotive engines, cars, and earriagi witl tTT'' aforesaid limited for so doin„ • t *•"* '""'^ ' proper security to be by bond ufd'er « , '""f"'""'^ '''»'' no. less than three -/onsibl;:: „?, ^^ ^^ "^ mg property in this PrOT-ince >md..7i^ °'' ''"'- MO conditioned as hereil abov!,* . . "'"""^ "' *^"-- Ihe said Justices are herrbvw,! i.' "'"■='' ^^''' ''»'' >y..,it at law for bre^K r^ » f Tf "'""^ no person shall be accepted as si , '"*" °"™'-' .^hall have first made aflidaviiT , ""'^' "'"'' "'" ''-'"«-ounty:;ct r^^^^^ m«\ to administer such oath to 1 1 1 ''^^' *"""'- «.e Clerk of the Peace L"-', '" ""^ °«'=^ <" ;. "- property in thiXri .7 'r""''; ""' "'^ ™'- "' i .kbts and liabilities ilnot ,' Z ^'"'' '" '''« i"«* I J-ices in genera ;; s, ii 7 ™ *'"''"" '^ "'« -'" "i.s.,e and deliver, or a u ! , '" '"'" '■"^"™''" i»-^™-totli;sai;Hl™/;V*^'-^^^ • 111 Dow V. Black. Statement. " ill ■ ', ''V ", .Jj' '■U\ 11 98 PRIVY COUNCIL. Dow V. Black. f as they may see fit, to be numbered consecutively at- cording to the denomination thereof, from number oii^ Statement, upwards, of each denomination, with coupons annexdl bearing interest at 6 per centum per annum, payablr semi-annually, at such place as shall be therein specifiel and on such conditions and terms as shall be p, scribed by the said Justices in general or specii sessions; the principal money of such debentures to U -^ paid in full at the expiration of twenty years from tli^ date thereof to the holders of the same, at such plac and in such manner as shall be prescribed in the sam "2. The real and personal property of all person- resident or non-resident, situate in the lower district n St. Stephen's, so-called, described as follows then follow the boundaries' : 'Shall each and every jearl during the continuance of the term of the said debeii tures, be assessed for the payment of the interest such debentures, issued under the authority of thiij Act, an order for which assessment shall be madebv the said Justices in general or special sessions each and J every year as aforesaid, and levied and collected in thf| same manner in all respects as parish and county latf are now or may be hereafter assessed, levied an |^ collected, and when collected shall be paid into tlh St. Stephen's Bank, in +he county of Charlotte, or suc!:| other place as may at first or at any subsequent perioj be selected by the said Justices by order of the Justict in general or special sessions to the collector of sami for the purpose of paying the coupons on said debeii| tures, which coupons shall be paid by the cashier of 1 said bank or other person selected as aforesaid, to tlitj holders of such coupons, upon presentation thereof of the funds so deposited." Sect. 3 of the Act provides for a similar assessmeml by order of the Justices in general sessions, for tlit PRIVY COUNCIL. 99 repayment of the principal sums due on the debentures within twenty years, but at such times and in such mode as the Justices shall determine. Sect. 4 i^rovides for the form of the debentures. Sect. 5 provides for the summoning by two Justices of a meeting of the ratepayers of the said lower district of the Parish of St. Stephen, and enacts that the Act shall not come into force unless it is approved at such meeting by two-thirds of the ratepayers, but that if it is so approved the Justices shall certify the same to the Governor in Council, and the Governor shall thereupon announce the same by proclamation in the Royal Gazette of the Province, and that thereupon the Act shall be ipsofaeto in full operation, force and effect. A meeting of the ratepayers of the said lower district of St. Stephen was held on the 11th of August, 1870, and the requisite majority of votes in favour of the Act was obtained and the debentures issued. On the 14th of April, 1871, the Justices of the Peace at the general sessions for the county of Charlotte issued a warrant to the appellants, the assessors of the parish of St. Stephen, commanding them to levy and assess $958.50 on the lower district of St. Stephen, to pay the interest on the so id debentures. The appellants accordingly assessed the ratepayers of the district, and amongst others the Respondents, and the collector of rates applied to the llespondeuts for payment, which they refused. The Respondents thereupon applied for and obtained a ^^Tit of eertiorari to remove into the Supreme Court the said warrant of assessment, and the assessment and all notices and documents upon which they were founded. A return, and subsequently an amended return, hav- ing been made, the Respondents applied for and obtained a rule nisi to quash the said warrant and assessment on Dow V. Black. Statkmkxt. \M VU. :' J- tin- w m JW^ i i ■'. 100 PRIVY COUNCIL. Dow 1'. Black. the ground that the Act 33 Vict. c. 47, related to a railway extending beyond the limits of the Province, and Statement, was therefore not within the competence of the Pro- vincial Legislature of New Brunswick. On the 22nd of Fehruary, 1873, the Supreme Court ' (Ritchie, C. J., Allen and Weldon, JJ.,) gave judg. ment, making the rule absolute to quash the said warrant and assessment on the ground stated in tlie rule. Fisher, J., dissented on the grounds, first, tliat the Imperial Act, sect. 92, sub-sect. 10, paragraph u/i, related only to railways between two provinces, and \\v,{ to railways from a province into a foreign country; secondly, that the Court might presume that the mom v raised by debentures would be applied to the making of the part of the railway within the province, and that an Act to raise money for that purpose was within the competency of the Provincial Legislatm'e. Mr. Benjamin, Q.C., and Mr. W. Grantham, for the Appellants. Mr. Fry, Q.C., and Mr. Bompas, for the Respondents. The judgment of their Lordships was delivered by Sir James W. CoLviiiK : — This is an appeal against an order of the Supreme Court of the Province of New Brunswick, making al)so- lute a rule Jiisi that had been granted, and ordering that " the assessment made upon the lower district of the Parish of St. Stephen, in the County of Charlotte, under and by virtue of a Avarrant of assessment issued to the assessors of the Parish of St. Stephen by the General Sessions of the Peace in and for the County of Cliai- lotte on the 14th day of Ainil, 1871, directing the said * Post, p. 108. beinf m PRIVY COUNCIL. 101 Dow V. Black. assessors to assess upon the lower district of St. Stephen the sum of $958.50 for payment of interest upon deben- tures issued under the Act of Assembly, 33 Vict. c. 47, Judgment. intituled "An Act to authorise the issuing of deben- tures on the credit of the lower district of the Parish of St. Stej^hen, in the County of Charlotte, and the said warrant and all proceedings upon which the said assess- ment is based be absolutely quashed." The ground upon which the majority of the judges constituting the Court proceeded, was that the Act of Assembly mentioned in the order was itself null and void, inasmuch as it had been passed by the Provincial Legislature of New Brunswick, which, on the true con- struction of the 'mperial Statute, the B. N. A. Act, 18G7, had no power to make such a law. It is necessary, in order to deal with the arguments which have been addressed to their Lordships upon this appeal, to consider shortly under what circumstances this question arose. On the 10th of June, 1867, and before the Imperial Statute just mentioned came into operation, the then Legislature of New Brunswick passed an Act, by the 6th section of which it was provided, *' that the sum of $5,000 per mile, and not exceeding in the whole .^17,500, should be granted for the construction of a branch line of railway to the boundary line of the State of Maine, from the railway leading from St. An- drews to Woodstock, to such person or persons or body corporate as shall construct the said road, upon its being proved to the satisfaction of the Governor in Council that a good and sufficient railway is constructed therein within four years from the passing of this Act, and in good working order for travel and traffic." That Act was followed by another passed a few days after- wards, viz., on the 17th June, by which certain persons were made and constituted a body corporate under the H' «5 , ;1 ii', 102 PUIVV COUNCIL. If] ■■ I ^ Dow name of the Houlton Branch Railway Company, and Black. were authorised to niake and construct a railway running JuDGMKNT. from the intersection of the Woodstock line of railway with the New Brunswick and Canada Railway, heinjj; a place known as Debec, to the boundary line of the Htate of Maine and the Province of New Brunswick. The 5th section of that Act contains the following pro- visions : — " The president, directors, and company for the time • being are hereby authorised and empowered, by them- selves or their agents, to exercise all the powers herein granted to the corporation for the purpose of locatinf>' and completing said railroads and branches, and for the transportation of persons, goods, and property of all descriptions ; and all such power and authority for the management of the said corporation as may be necessary and proper to carry into effect the objects of this Act, to purchase or hold within or without the province lands, materials, engines, cars, and other necessary things, in the name of the corporation, for the use of the said road, and for the transportation of persons, goods, and property of all descriptions and to make such connec- tion with other railway companies within or without the province, either by leasing their road to other corporation or corporations, on such terms and for snob length of time as may be agreed upon, or by consolidat- ing the stock of their road with that of other railway companies or companies, upon such terms as may be agreed upon ;" and gives other powers to the new company. Hence, on the 7th July, 1867, when the B. N. A. Act, 1867, came into operation, the Houlton Branch Rail- way Company had been duly incorporated, and by the Act of a competent Legislature had been duly authorised to construct a railway from Debec to the frontier that divide years calloc PRIVY COUNCIL. 103 divides the province from the State of Maine. Some [years afterwards the Act, the validity of which is now I called in question, being the 33 Vict. c. 47, was passed. Its preamlL lecites that the town of Houiton, which 'is in the State of Maine, had offered the Houiton Branch Railway Company a bonus of $30,000, upon condition that the said Houiton Branch Railway Com- panv should construct and suitably equip with necessary rollin" stock a railway from the town of Jloulton afore- said to the line of the New Brunswick and Canada Railway and Land Company, at or near the Debec station, before the 1st of January, 1872 ; that the Houiton Branch Railway Company were willing to undertake the building and construction of such con- nectinfj line of railway, etc., and to have the same completed and properly equipped for the conveyance of freif^lit and passengers as aforesaid within the time aforesaid, upon condition that the town of St. Stephen, — that being a town in the province of New Brunswick, — should give to the said Houiton Branch Railway Com- pany a bonus of $15,000 ; and that the inhabitants of that portion of the said town of St. Stephen called the lower district, which was afterwards described, were willing and desirous to give the said sum for the said purpose, and that such sum should be raised upon the credit of the real and personal property of the inhabi- tants of the said district in such manner as might be thought most advisable. It clearly appears from these recitals that there was a desire both on the part of the inhabitants of Houiton in the State of Maine and the inhabitants of that portion of St. Stephen in the Province of New Brunswick, or some of them, that this line of communication between the two places should be completed ; that its completion was considered to be for the benefit of both communities ; and that a portion, Dow I'. Black. JnXiMKNT. m ii M i ( HI 'haii (if I" I if-, \ ■ M 08 l-;i 104 PHIVV COUNf'IL. Dow I'. Black. jcdomknt. at all events, of the inhabitants of that district of St. Stephen, in order to effect the arrangement, were willinn to be taxed for the purpose of raising the bonus of $15,000 required by the Houlton Branch Railway Com- pany. Accordingly the Act of Assembly provided for the carrying out of the arrangement in this way : It required the Houlton Branch Bailway Company to give reasonable and proper security to the Justices of the peace at general or special sessions for the completion of the work; and provided that thereupon the $15,000 should be raised by the issue of debentures to that amount payable twenty years after date, and carrying interest in the meantime. It further provided that the real and personal property of all persons resident in the lower district of St. Stephen, as defined by the Act, should be assessed in order to raise the interest on such deben- tures, and the principal when the latter should become due. But it also provided that the Act should not be in force until it had been accepted and approved by two- thirds at least of the ratepayers liable to be assessed thereunder, whose assent was to be obtained by the machinery thereby provided, and, when ascertained, was to be certified to the Governor in Council, — that is, the Governor- General in Council of Canada, — who was to announce the same by proclamation in the Roiidl Gazette. The Act in question was never disallowed by the Governor-General of Canada ; all the formalities prescribed by it appear to have been complied with, and the assent of the requisite proportion of ratepayers to have been duly notified in the Gazette. In this state of things it is to be presumed that the minority of the ratepayers which dissented from the arrangement was unwilling to pay the rate assessed upon them in order to meet the interest on the deben- tures, and raised this question before the Supreme Court. That and, i| /MS', ^'l Thol pronoil Logislf 10th al 01 and! powers Provinl of legi: PIUVY COUNCIL. 105 That Court iHSiied a certiornri to remove the proceedings, and, uiion the return of the certiornri, made the order ;,(g/ which the order under appeal has made ahsohite. The grounds upon which the Supreme Court has pronounced this Act to he ultra rirrx of the Local Lcf^islature are entirely derived from suh-sect. (d) of the 10th article of sect. 92 of the Imperial Statute. Sects. 91 and 92 purport to make a distrihution of legislative powers between the Parliament of Canada and the Provincial Legislatures, sect. 91 giving a general power of legislation to the Parliament of Canada, subject only to the exception of such matters as by sect. 92 were made the subjects upon which the Provincial Legis- latures were exclusively to legislate. The 10th article of sect. 92 among those subjects enumerates local works and undertakings other than such as are of the following classes. Then follow the exceptions, and the first of these is, lines of steam or other ships, railways, canals, telegraphs, and other works and undertakings connect- ing the province with any other or others of the provinces, or extending beyond the limits of the province. A question touching the construction of this sub-section has been raised both here and in the Court below. The llespondents insist that the lines of railways which are thereby put within the exclusive jurisdiction of the Parliament of Canada are all railways which extend either beyond the limits of the province into other provinces within the Dominion or into foreign countries. On the other hand, the Appellants contend that a more limited construction is to prevail, and that if the sub- section be taken in connection with the following sub- sect. (/>), it will be found to apply only to railways extending beyond the limits of one province into another province of the Dominion. Their Lordships do not think it necessary to deter- Dow V, Black. JlPOMKNT. 11.- i.i' ' H % \ » ^ I I '1* { 1 ' 3 1? {'Ill III 106 PKIVY COUNCIL. i > ' * i Dow i: Black. .rinoMKNT. I ' jnine upon the present appeal this queHtion of construc- tion, or to aftirm tluit if all the legislation that 1ms taken place, including that for the incorporation of the Iloulton Railway Company, and empowering it to maki- a railway to the frontier or beyond it, had taken place after the Imperial Statute of 18(57 had come into oi)eration, such legislation would have been within the powers of the Provincial Legislature. I'hey do not think it necessary to determine that question, because they are of opinion that the validity of the Act of Assem])ly, the 33 Vict. c. 47, does not depend upon the sub-section in question. They are of opini(m that the Act cannot be said to be a law in relation to a local work or undertaking within the fair and reasonable meaning of these words. The incorporation of the company, with its powers, and the construction of the railway up to the frontier, and therefore so far as any legislative power within the British Dominions could determine that construction, had been already authorised by the Acts passed before the Imperial Statute came into operation. The Act now in question did not purport to enlarge the powers of the railway company, nor could it give them powers to be exercised on the foreign soil of Maine. Their Lordships consider that if the railway company had cliosen to make an arrangement with the inhabi- tants of Houlton, in Ibe State of Maine, for the construction of the iidlway on the terms of the bonus of $30,000 which had been offered to them from Houlton, there w'ould have been no legal objection to their carrying out that arrangement. The Act was merely one which enabled the majority of the inhabitants of the parish of St. Stephen to raise by local taxation a subsidy designed to promote a work which they cor- sidered to be for the benefit of their town, and to place the inhabitants in a position to bargain and to act for IMMVY COUNCIL. 107 thfir coinuion bonefit in the Hiuae miiniu-r as a private '^o* iicrson nii^lit have thought it for hiH hoiicfit to do. In Hlaok. sul)stan('o and principle it does not differ from a i)rivate Jidgmknt. Vet authorising the trustees or guardians of a minor to let a warehouse to such >i company. Supposing the work, instead of being a railway, had been a canal, and till' iniuibitants had been authorised to make a bargain fi)r the supply of water to the district, could any doubt have been entertained on the subject? Their Lordships are therefore of ophiion that no objection to the validity of the Act is to be found in the sub-section in question. Another question has l)een raised for the first time at this J5iir (for the objection does not appear to have been taken in the colonial Court), whether there was power in the Provincial Legislature to pass an Act by which such an assessment as this could be imposed on tlie town of St. Stephen. It has been argued that whereas the !)lst section reserves to the Parliament of Canada exclusive power of legislation in respect of, amongst other subjects, " The raising of money by any mode or system of taxation," the only qualifications imposed on that general resor- \ation are to be found in the '2nd and 9tli articles of the il'ind section. The latter has obviously no bearing on the present question. As to the former, it was con- tended that it authorises direct taxation only for the jmrpose of raising a re^'enue for general provincial purposes, that is, taxation incident on the whole province for the general purposes of the whole province. Their Lordships see no ground for giving so limited a construction to this clause of the Statute. They think it must be taken to enable the Provincial Legislature, whenever it shall see fit, to impose direct taxation for a local purpose upon a particular locality within the province. They conceive that the 3rd article of sect. 91 m. .41 108 PRIVY COUNCIL. Dow V. Black. lo to be reconciled with the '2nd article of sect. 92, bv treating the former as empowering the Supreme Legisia- Judgment, ture to raise revenue by any mode of taxation, whether direct or indirect; and the latter as confining the pro- vincial legislature to direct taxation within the provinct for provincial purposes. Their Lordships are furtlier of opinion, with Mr. Justice Fisher, the dissentient Judge in the Supreme Court, that the Act in question, even if it did not fall within the '2nd article, would clearly be a law relating to a matter of a merely local or private nature within the meaning of the 9th article of sect. 92 of the Imperial Statute ; and therefore one which the Provincial Legislature was competent to pass, unless its bul)ject matter could be distinctly shewn to fall within one or other of the classes of subjects sj)ecially enumerated in the 91st section. This view is in accordance with the ruling of this tribunal in the recent case of LTnioii St. Jacques de Montreal r. Dame Julie Belisle {ante, p.63i decided on the 8th of July, 1874. On these grounds their Lordships will humbly advise Her ^Majesty that the order under appeal be reversed, and tha : in lieu thereof an order be made discharging! the rule nisi, which had been granted in Trinity Teriu, with costs. The Appellants will also have their costs of this appeal. Judgments in the Supreme Court of New Brunswick. [Reported 1, Pugsletj SOO.] The judgment of the majority of the Court (Ritchie, C. J., Allen and AVeldon, J J.,) was delivered by Alljn, J. : — We granted a certiorari to bring up an assessment in course of collection on the ratepayers within a certain district of the Parish of St. Stephen. That assessment having been returned, we are now asked to quash it on the same grounds on which wt PRIVY COUN'CIL, 109 araiited the rule for t}ie fi.i'liDndi. Ah wo have not altered our Dow opinion on the subject, it will be sufficient to state substantially Black. what we said when granting the certioruri The Act, under the gup/^^ew authority of which this assessment was made, is the 33 Vict. cap. Brunswick. 4f intituled " An Act to authorize the issuing of debentures on Allen, J. the credit of the Lower District of the Parish of St. Stephen's, in the County of Charlotte." This Act recites, that " the inhabitants of the Town of St. Stephen's, in the County of Charlotte, are desirous of having direct railway connection between Houlton, in the State of Maine, and the St. Croix Railway in the county afore- said ; '" that the town of Houlton had oHered the Houlton Branch Railway Company a bonus of thirty thousand dollars, upon condition tliat the said Company should construct, and suitably eortions of the 91st and !»2nd Dccti"n5 of the B. N. A. Act, 18(57, by which the ques- tion now under discussion must be determined. In that case we dftcided, that where the railway, the immediate subject of legisla- tion, was to be constructed clearly within the limits of the Pro- vince, and not connecting the Province with any other or others of the Provinces, and no power was attempted to be given to extend beyond, into the United States of America, it was properly the subject of legislation by the Provincial Assembly. We are now called on to say whether the matters legislated upon by the 33 Vict. , cap. 47, are subject to the same legislative control, or are hU)xi vires of the Local Legislature. It is a clear, and well-established rule of construction, that where the words of an Act of Parliament ai'e plain and unambiguous, and :■"!■ l"^.;it!l •v\ u ■Mm (1) Hannay, 548. (2) 1 Pugsley, 42. , mm fnfm 112 PRTW COUNCIL. \ Dow V. Black. Sup. C, New Brunswick. Allen, J. without anything in the Act to limit or control them, Courts are bound to construe them in their plain and ordinary sense. In such a case, we can look to nothing but the language of the Act, giving the words of the Statute their ordinary meaning, to carry out what the Legislature in words enacts. We have cited enough of the Act to shew the subject mr.tter legislated upon, and the general intention of the Legislature relatino thereto. The other provisions relate only to the Act not coining into operation without the vote and assent of two-thirds of the ratepayers of the district, and to the means by which the object contemplated is to be effected. In The ' iropc.an and North American JRaUiray Compauij v. TJiotnan, we ;,^'r"' "3 thot the right to legislate relative, inter alia, to railways raid ^ iher works and undertakings connecting the Province with any . i.er or others of the Provinces, or extending beyond tlie limits of the Province, belonged, by the express terms of the B. N. A. Act, 1867, exclusively to the Parliament of Canada. If that be so, how can this Act 33 Vict. c. 47, be valid ? The rail- way, with a view to the construction of which the Act was passed, most unquestionably extends beyond the limits of this Province. It is a connecting line of railway from tlie town of Houlton, in tlie United States of America, to the line of the New Brunswick and Canada Railway and Land Company (a railway constructed witliin this Province by virtue of divers Acts of the Provincial Assembly), at or near Debec Station, so called, in this Province ; for the pur- pose, as the Act declares, of meeting the desiros of the inhabitants of the town of St. Stephen in the county of Cliarlotte, and to enable tliem to have (as stated in the Act) direct railway communi- cation between Houlton in the State of Maine, in the United States of America, and the St. Croix Valley in the county of Charlotte, in this Province. How then can any one who reads the Act escajjc the conclusion that it directly contravenes the letter and spirit of the B. N. A. Act, 18G7, in this : — that it deals with, and makes provision for, the construction and completion of a railway uncpies- tionably extending beyond the limits of the Province ? — a subject matter expressly and une([uivocally reserved to be dealt with exclu- sively l>y the legislative power of the Parliament of Canada. It is dilHcult to conceive how, if the Local Legislature had tlie power, it could more efKcaciously legislate on the subject of rail- ways extending beyond the limits of the Province, or secure the existence or completion of such undertakings than by providing the PRIVY COUNCIL. 113 Dow V. Black. Brunswick. Allen, J. funds necessary fur their construction, and that, too, in a ease like this wliere, from the Act, it would seem that the giving of the debentures to be issued thereunder was an express condition on ^^^^^ — ^^^^ which the road was to be built, and without which, the fair infer- " ' •'- ence is, the road could not or would not be built. Many cogent reasons were suggested during the argument why the Imperial Parliament, not only in the interest of the Dominion with reference to liscal and trade regulations, but also in the inter- est of the Domini(m and the Empire at large in a strategic point if view in reference to the protection and defence of this portion of the Emi)ire, confided to the Parliament of Canada and the General Government of the Dominion the exclusive right to legislate on the excepted classes of subjects having reference to matters connected with the establishment of great lines of communication extending out of and beyond the limits of the respective Provinces. But it is unnecessary for us to speculate on what may haA'e influenced the Parliament, or to discuss the policy of the Act. It is sufticient that the lan>fuane of the Act is, in our opinion, clear and unambiguous ; and in such a case, its provision must be respected and obeyed alike liy all. We do not disguise from ourselves that the Provincial Act having lieen accepted as binding, and having been acted upon, much disai> pointment, and very serious inconvenience and loss may, nay, almost necessxcei)tions with the general object and purpcse of the Act by any other construction. As the authority conferred by the i>0 Vict. c. ")4 incorporating the Houlton Branch Railway Company to build a railway, is confined to a line from the intersection of the Wood- litock line with the New Brunswick and Canada Railway to the Iwundary of the State of Maine, I will not presume that the St. Stephen contribution of debentures was appropriated to any other iibject than is contemplated by the Act of incorporation, especially as the town of Houlton is by the Statute 33 Vict. c. 47, stated to have contributed towards the construction of this road. The Legislature was clearly authorised, in my view of the law, to enable the people i)f St. Stephen to contribute towards the construction of that portion of the line within the Province, and the most reasonable presumption is that they did so. If there was anything in the Act :iO Vict. c. 54, which would come within the exclusive powers of the Parliament, it is saved by the 129th section of the B. N. A. Act, 1807, and never having been re]iealed, altered or .amended in any way, is still in force. It also appears to me that the Act 33 Vict. 0. 47, conies within the category of powers provided for in the 16th clause of the 9'2nd section of the b. N. A. Act, 1867, being purely a matter of a local nature. It is difficult to discover any provision, in the exclusive powers of the Parliament, that may be fairly con- strued to meet this case ; and it cannot be contended that the B. N. A. Act is so construed as to prevent localities from granting aid to attain some local object, or receive some advantage purely local. The fair construction in this respect appears to be that the authority conferred upon the Parliament to raise n-.-^ney by any mode or system of taxation was for the purposes of the General Government or of the m w UG PRP'Y COUNCIL. Dow c. : wholo Dominion, to enable tlie Parlitamont ami Government to djs. T^i.ACK. charge the duties and obligations cast upon the Dominion, and tlit ,. ~ ,, taxation for local purposes is confined to the Legislatures of eiieli Sup. ( ., New * ^ Brunswick. Province. Nothing can be more local than the Act 33 Vict. c. 47. Fisher, J. ^^r its enactment is made contingent upon a favourable vote of iht, """* ratepayers of the locality desiring the railway. The whole subject is as local as can well be conceived. There is the small locality, comprising the most thickly populated portion of the parisli (,f St. Stephen, connected with the New Brunswick and Caiiud,! Railway, which terminated at Woodstock, in the county of Cnrli- ton, who desire the connection with Houlton, u small town in tl^. State of Maine, which has no railway connection with anj' dtlui place. Each of these localities agreed to give a subsidy to 'niilil tin.' line to the boundary of the Province, the town of Houlton giviii;; .?30,000 for the portion lying within Maine, and the St. Steplun district giving Sl.5,000 toward the construction of the lino within this Province to the boundary. Tlie reason of the inequality of tla- subsidy for nearly the same distance of railwjvy is explainoil liy referring to the Gth section of the 30 Vict. c. C, intituled " An Act to facilitate the construction of certain railways," which grants a subsidy from the Province of 85,000 per mile for the constructini of the road therein styled a branch line from th« railway leading from St. Andrews to Woodstock, and which is designated the New- Brunswick and Canada Railway. If there could be any doubt upon this point, and it is material, the Act to facilitate the con- struction of railways clearly shews for what purpose this aid witiiiii the Province was granted, and that it was to secure the con- struction of that part of the road leading to Houlton, which was within the Province. I have not adverted to the 13th clause of the 92nd section of the B. N. A. Act, 1867, which gives to the Local Legislatures exclusive power to legislate ujjon property and civil rights, which must comprehend a case of the kind under considera- tion, because it does not appear to me t11IVV COUNCIL. PRIVY COUNCIL. 117 A'i -w doubt le C(in- witliiii le Cdii- li was of tlie Local id civil isidera- )f cases N. A, thority ted aid )ii the ICllt. Thk Attorney-General for Quebec, i PRO DoinNA IIegina, j Plaintijf, AND The Queen Insurance Company Defendant. Oil apimtlfrom the Court of Queen's Bench for the Province of Quebec, Ca)Mda. [Reported S App. Cas. 1000.} P"ii;ers of Frovinclal Legidature — B. N. A. Act, 1807, s. 9,^, sub-ss. X.', — Licenses — Stamps — Direct Taxation. The clauses of the Act 39 Vict. , c. 7 Cpassed by the Legislature of Quebec), which impose a tax upon certain policies of assurance and certain receipts or renewals, are not authorized by the B. N. A. Act, 1867, s. 92, sub-ss. 2, 9. A license Act by which a licensee is compelled neither to take out nor pay for a license, but which merely provides that the price of a license shall consist oi an adhesive stamp, to be paid in respect of each transaction, not by the licensee, but by the per- son who d'^.Us with him, is virtually a Stamp Act and not a License Act. The imposition of a stamp duty on policies, renewals, and receipts with provisions for avoiding the policy, renewal, or receipt in a Court of Law, if the stamp is not affixed, is not warranted by the terms of an Act which authorizes the imposition of direct taxation. Appeal from a judgment of the Court of Queen's Bench above named (Dec. 14, 1877), afhrming a judg- ment of the Superior Court for Lower Canada sitting at ♦ Present:— Sir James W. Colvile, Sir Barnes Peacock, Sir Moritajjrue E. Smith, Sir Robert P. Collier, and the Master of the Rolls (Sir G. .Teasel). J. C* 187tt Juli/ T). ill ,! '^ 1 I -1* ''is TW :| : 118 PUIVY COUNCIL. Angers I'. Ql'KKN Inmi'kanck Company. Montreal (April 12, 1877), Avliercby the Appollant's ^^ action and demand were dismissed.* The action was for the recovery of three penalties of Statemknt. $50 each, incurred under the provisions of an Act of the Lcgislatm'e of Quebec, intituled " An Act to corapd assurers to take out a license," being chapter 7 of tlh Statutes of Quebec of 1875 ('60 Vict.), which received tlio royal assent on the '2-lth of December, 1875, and eiiiiit- in effect that every assurer carrying on in the Province of Quebec any business of assurance other than that df marine assurance exclusively, shall be bound to take out a license in each year, and that the price of such license shall consist in the payment to the Crown for tlu use of the Province at the time of issue of any policv, or making or delivery of each premium, receipt or it- newal, of certain percentages on the amount received as premium on renewal of assurance, such payments tn be made by means of adhesive stamps to be affixed on the policy of assurance, receipts, or renewals, and im- poses for each contravention of the Act a penalty ot $50. The question decided in this appeal is, whether sueli Act of the Legislature of Quebec is constitutional and within the powers conferred upon that Legislature In the Act of the Imperial Parliament called the Britisli North America Act, 1867. The sections of the B. N. A. Act, 1867, material to this question, are the following : — ** Sect. 91. It shall be lawful for the Queen, by and with the consent of the Senate and House of Commons, to make laws for the peace, order and good government of Canada, in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the Provinces ; and for greater * See post, p. 131. cert a i ti-rni.'- stand aiitho iiiatto iiiaftci "2. PRIVY COUN'CIL. 119 er sueli lal and lire liv rial to I by and imon?, rament I within lusively jreater : certainty, but not so as to restrict the generality of the Angkus torms of this section, it is hereby declared that (notwith- j^*^J;;«™^„ standing anything in this Act) the exclusive legislative Company. authority of the Parliament of Canada extends to all Statement. matters coming within the classes of subjects next here- inafter enumerated, that is to say : — "2, The regulation of trade and commerce. "3. The raising of money by any mode or system of taxation. " Beet. 92. In each Province the Legislature may exclusively make laws in relation to matters coming within the classes of subjects next hereinafter enume- rated, that is to say :— "2. Direct taxation within the Province, in order to the raising of a revenue for Pro^incial purposes. "9. Shop, saloon, tavern, auctioneer, and other licenses, in order to the raising of a revenue for Provin- cial, local, or municipal purposes." The material sections of the Act of the Legislature of Quebec are the following : — "1. Every assurer carrying on in this Province any business of assurance, other than that of marine assur- ance exclusively, shall be bound to take out a license before the first day of May in each year, from the revenue officer of the district, wherein is situate his principal place of business or head agency, and to re- main continually under license. "2. The price of such license shall consist in the payment to the Crown for the use of the said Province, at the time of the issue or delivery of any policy of assurance, except of marine assurance, and at the time of the making or delivery of each premium, receipt or renewal, respecting any policy issued before or after the coming into force of this Act, of a sum computed at the rate of 3 per cent, as to assurances against fire, or of ill 120 IMUVY COUNCIL. ANCiKUH r. QlKKN Inhihanck CoWPANY. I i I ptT cent, ns to other assurances for each ){>100 of the amount received as premium or renewal of assurance, hy the assuror, his agent or employee. Statkmknt. " And such payment shall be made by means of one or more adhesive stamps, equivalent in value to the amount required, to he affixed l)y the assi his agents, officers, or employees, on the policy of assuraiici, receipt, or renewal, as the case may be, at the timu of drawing up, issue, or delivery thereof. "5. p]very assurer bound to take out a license under the present Act, for whom, or in whose name, anypolic of assurance, or any premium, receipt, or renewal, slmll have been delivered without the same having l)i'en stamped to the amount required, shall be liable in each case to a penalty not exceeding $50, or in default of pay- ment, unless such assurer be a corporation, to imprison- ment not exceeding three months. " 8. The word * assurer,' used in this Act, me id includes all persons, firms, corporations, and all com- panies, societies, or associations, whether incorporated or unincorporated, carrying on the business of assurance on life, or against fire or accidents, or the business of guaranteeing public functionaries or other employees, or any other assurance business whatsoever. " 10. The Act shall not affect any policy, premium, receipt, or renewal, in relation to assurances wherever the interests assured are beyond the limits of this Province." The Respondent company is a corporation which carried on the business of insurance against fire in Montreal. It did not take out a license under the Quebec Act, 39 Yict. c. 7, but nevertheless issued three several policies of insurance mentioned in the declaration, and did not affix thereto the policy stamps required by the said Act. The action was brought on the 21st of September, 1H7(), U\ ^ r% I'HIVY COUNCIL. 121 t>>tK.K.N Insukvnck Company. lH7i), to recover the penalties provided hy the Act, Anokrs namely, the sum of $150 currency. Thr Respondents, by their plea, after pleadinj^ the B. N. A. Act, 18<)7, also pleaded Canada Act, 81 Vict. c. Staikmkni 4H, and alleged, and it was admitted to he the fact, that thev liiul deposited in the hands of the Receiver-General of the Dominion of Canada, in manner provided l)y the last mentioned Act, and by the subsequent amendment of that Act ])assed by the said Parliament of Canada, S150,000 for the j^urposes in the said Act described, and had >,'iven all the notices, performed all the formalities, and conformed themselves in all respects to the provi- sions of the said Acts and of the Act amending the same, and that they had obtained a license from the Minister of Finance of the Dominion of Canada, and were thereby licensed to carry on their business in Canada of fire and life insurance, that the said license remained in force until the 31st of March, 1870, and was then renewed by the Minister of Finance of the Dominion of Canada under and by virtue of the statutes in such case provided, until the 31st of March, 1877, and that at all times mentioned in the said declaration the respondents were the holders of the license, and extension of license, issued under the above mentioned Acts of the Parliament of Canada, au- thorizing them to transact business of insurance in any part of the Dominion of Canada. The Respondents by their said plea prayed that the said provisions of the said Act of the Legislature of (Quebec might be declared to be unconstitutional and illegal, and in so far as respects the Respondents that they might be annulled and set aside and declared to be of no force or effect. The Appellant, in his answer to the Respondents' plea, admitted that the Respondents were entitled to transact the business of insurance, and had conformed to the t !,;■ ^^ M i;; I* if m iui •fW 122 PRIVY COUNCIL. ,i\ k I Angers j^ws of the Dominion Parliament actually in force, but Qi EEN had not conformed to the law of the Provincial Le"isla- Company, ture J and he also maintained that the said Act of the Statkment. Legislature of Quebec was constitutional, and that the said Legislature had a right to pass it, and that it was then the law of the land. From the notes of the reasons given by the learned Judges of the Court of Appeal, it appears that they agreed that the tax sought to be imposed was not a direct tax, and therefore did not como within sect. 92, sub-sec. 2, of the B. N. A. Act, 1807. Chief Justice Dorion considered that the tax was not within revenue raised by licenses under sub-sec. 9, and that the Ac of the Legislature of Quebec clashed with the provision of the B. N. A. Act, 18(57, giving the Dominion Parliament the exclusive right to make laws for the regulation of trade. Mr. Justice Monk held that the Provincial Legislature had not the power to impose licenses on insurance com- panies, no such power having been expressly given to it ; and that the Dominion Legislature having exercised tin power of licensing the Respondents, the Provincial Legislature could not restrict the exercise of this power, ]\rr. Justice Tessier considered that if the Legislature of Quebec had confined itself to imposing a license on insurance companies, such license might have been covered by sect. 92, sub-sec. 9, of the B. N. A. Act, 1«07, and been witrhin the " other licenses " there specified. But the Legislature, he held, had gone beyond its juris- diction in imposing jjenalties on the companies, and declaring that policies issued without stamps should have no effect, and thus hindering the companies from carrying on operations which they were licensed by the Dominion Government to carry on within the Provinces. Mr. Justice Taschereau said the claim of the Pro- i PRIVY COUNCIL. 123 vincial Legislature was founded upon sect. 92, sub-sec. Angers ii. of the B. N. A. Act, 1807. This tax, however, was not i4\"|;",^.ce a Hcense duty but a stamp duty, the license being intro- Company. (luced only to make the legislation fit in with the sub- Statemknt, miction. The revenue was raised, not from the license, Imt from, the stamps, and as the sub-section expressly provided that the license was to be in order to the raising (if a revenue, this was not such a license as was con- templated. He also considered that the words, "other licenses," were limited by the foregoing words, and that insurance companies could not be said to be cjusdcni iiciicris with shops, etc. That if the Provincial Legisla- tures had this power in regard to insurance companies, they would have it in regard to banks, railway com- panies, etc., and under the form of a license their power of indi>oct taxation would become so great as to render unnecessary resort to direct taxation. Lastly, he argued the company was a commercial company, and the Act in question was repugnant to the clause of the B. N. A. Act, 1807, reserving the regulation of trade and commerce to tbe Dominion Parliament. Mr. .Justice Eamsaj' considered that the exclusive p.)wer of taxation given to the Dominion Parliament by the B. N. A. Act, was to employ any mode or system of taxation for general purposes, and that the tax in ques- tion was a license to assurers in order to raise revenue for Provincial purposes. This purpose being legal, he held thai: it was immaterial how the assurer was repaid, anci that the license came within the " other licenses " mentioned in sect. 92, sub-sect. 9. lv\V Y^.'ifi My. Benjamin, Q.C., and Mr. Bigby, for the Appellant, contended that the provisions of the Quebec Act, 39 Vict., c. 7, did not conflict or interfere with the exclu- sive rights and powers of the Dominion Parliament. 124 PIllVY COUNCIL. Angers r. Queen Inmurance Company. Argument. :pt^ if!? h h They referred to the B. N. A. Act, 1867, sects. 91 and 92, which they contended were self-contradictory and verv ditificult of construction. The general scope of the Act is that the Dominion Parliament regulates public pro- perty, debt, and commerce. The general power of taxa- tion, i.e., the power of raising money for Dominion purposes, belongs to the Dominion Parliament; l)iit special powers of taxation were also give'- +o the Pro- vincial Legislature, and may co-exist w. i the mort general powers of a similar class conferred on tlit Dominion Parliament. Those special powers when ex- amined in detail shew the purpose of the Legislature. There is an express grant to the Provincial Legislature (see sect. 92, sub-sect. 9), of a j)ower to make laws re- lating to licenses, in order to the raising of a revenue for Provincial, local, or municipal purposes. Having regard to sect. 129, it is necessary to refer to the powers of taxation granted by the Constitution of the United States; and on that subject, see Hylton r. United States (1), and License Cases, Thurlow /•. Commonwealth of Massachusetts (2). As to the legislation regardiui; licenses previous to the Act of 1807, and in reference to which that Act ought to be construed, see Consolidateii Statutes, Lower Canada, p. 13, c. v.; and as respects tlii contention of the liespondent that it was an evasion to call this a license at all, see ibid. pp. 13, 15, 22, 39, 44, 4(), As regards the contention that the Pro- vincial Legislature was depriving the Respondent of rights conferred by Canada Act, 31 Vict., c. 48, that Act was a police regulation, and not a lievenue Act. n. English Act, 34 Vict., c. (il. But if it were in contra vention of the Dominion Act, there was a power tn disallow such statute. {Si-c B. N. A. Act, 18(57, sectb. r,t). !)0.)| (i Geo. lint el sub-sectl under sii HcientifiJ ep.ch casj lui appall operation Mr. Kl dent com The ju Tin; :Mas' In this the couns This is Queen's 1 Superior ( inent app two points by four Ju sion was t Quel)ec, 3! policies ol were not i Scotia, an iuce, or tl [lowers, to consid by the 9i cient to i tion '? It is n( (1) 3 Dallas, pp. 171, 182. (2) r> Howard's Rep., pp. .504, 574. 1>KIVV COUNCIL, 125 TV F5I lit Pro- t 0! Act , r'. htra Ir tu JCth. 5t). 1)0.) Keference was also made to G (leo. J\'. e. Hi ; Geo. IV. c. 58, s. 2. But even if this be not a license tax within sect, d'2, Hub-sect. 9, of the Act of 1867, it was direct taxation under sub-sect. 2 of sect. 92. It is impossible to classify scientifically direct and indirect taxes. It depends in epxh case upon the surrounding circumstances whether tui apparently direct tax turns out to be indirect in its operation or rice versd. Mr. Kay, Q.C., and Mr. F. W. Gibbs, for the Respon- dent company, were not called upon. The judgment of their Lordships was delivered by Thk Mastkr of the lioi.Ls (Sir G. Jessicl) : — hi this case their Lordships do not intend to call upon the counsel for the Respondents. This is an appeal from a judgment of the Court of Queen's Bench in Canada, affirming a judgment of the Superior Court of the District of Montreal. The judg- ment appealed against was unanimous on one of the two points to which the appeal relates, and was decided hy four Judges against one on the other. The real deci- sion was that the clauses of a statute of the Province of Quehec, 39 Vict. c. 7, which imposed a tax upon certain policies of assurance, and certain receipts or renewals, were not authorized by the Union Act of Canada, Nova Scotia, and New Brunswick, which entrusted the Prov- ince, or the Legislature of that Province, with certain [lowers. And the ■sole question their Lordships intend to consider is, whether or not the powers conferred by the 92nd section of the Act in question are suffi- cient to authorize the statute which is under considera- tion ? It is not absolutely necessary to decide in this case Angbrh QlKKN Tnsukance Company. AllGl'MENT. i.: trt' rfti ' " 5 •Hi ' '\ 111 M Ui '♦l m^ 126 PRIVY COUNCIL. ! ) Angers V. Queen Inhuuanck Company. how far, if at all, the express enactments of the 92n(l section of the Act are controlled by the provisions of the 9l8t section, because it may well be that, so far a> Judgment, regards the two provisions which their Lordships have to consider — namely, the sub- sections 2 and 9 of the 92nd section — those powers may co-exist with the poweiv conferred on the Legislature of the Dominion by the 91st section. Assuming that to be so, the question is, whether what has been done is authorized by those powers ? The first power to be considered, though not the first in order in the Act of Parliament, is the 9th sub-section, The Legislature of the Province may exclusively make laws in relation to " shop, saloon, tavern, auctioneer, and other licenses, in order to the raising of a revenue for Provincial, local, or municipal purposes." The statute in question purports to be, on the face of it, iu exercise of that power. It enacts that every assurer, except people carrying on marine insurance, shall W bound to take out a license before the Ist day of Mav in each year, from the revenue officer of the district, and to remain continually under license. It then, Ia the 2nd section, enacts what the price of the license b to be. And reading it shortly, it amounts to this : that the price of the license shall consist of an adhesive stamp atHxed to the policy, or receipt, or renewal, as the case may l)e. The amount of the adhesive stamp is to be, in the case of fire, 3 per cent., and 1 per cent, for other assurances on the premiums paid. Then the 4th section enacts that anybody who, on bthalf of an assurei , shall deliver any policy, or renewal, or receipt, without the stamp, shall be liable for such contravention to a penalty of fifty dollars. The 5tli section says that every assurer bound to take out a license shall be liable iu such a case to a penalty not exceeding fifty dollars if it fc,,",»— m l»n li- 'i'i^"'s;. PRIVY COUNCIL. 127 Anoers r. QlKEN I.VSLKASl'K COMl'ANY. has been delivered without an adhesive stamp. The 6th stction says that every person who affixes the stamp shall be bound to cancel it so as to obliterate it, and prevent its lieiug used again. And the 7th makes all Judgment policies, premium receipts or renewals, not stamped as required by the Act, invalid. It says they " shall not be invoked, and shall have no effect in law or in equity before the Courts of this Province." Then there are certain sections of the Quebec License Act which are incorporated, and the Act is not to apply to assurances not within the Province. The only provision of the (Quebec License Act which it is necessary to refer to is the 124th : " For every license issued by a revenue nfticer there shall be paid to such revenue officer, over and al)ove the duty payable therefor, a fee of one dollar by the person to whom it is issued." Now, tho first point which strikes their Lordships, and will strike every one, as regards this Licensing Act, is that it is a complete novelty. No such Licensing Act has ever been seen before. It purports to be a Licensing Act, but the licensee is not compelled to pay anything for the license, and, what is more singular, is not compelled to take out a license, because there is no penalty at all upon the licensee for not taking it up ; and, further than that, if the ^^olicies are issued with the stamp, they appear to be valid, although no license has been taken out at all. The result, therefore, is, that a license is ijranted which there are no means of compelling the Ucensee to take, and which he pays nothing for if he does take ; which is certainly a singular thing to l)e stated of a Hcense. They say on the face of the statute, "The price of each license shall consist," and so on. But it is not a price to be paid by the licensee. It is a price to be paid by anybody who wants a policy, because, without that, no policy can be obtained. It may be that m m till w : i 128 PRIVY COUNCIL, Anoers QUKEN Inhuranck Company. f I the Company buys the a(lhesi^'fe stamps, and affixes them; or pays an officer of the Company the money necessary to purchase them and affix them: but whoever does it Judgment. COlupHes with the Act. Another observation which may be made upon the Act is this : that if you leave out the clauses about the license, the effect of the Act remains the same. It b really nothing more nor less than a Stamp Act if yon leave out those clauses. If you leave out every direction for taking out a license, and everything said about the price of a license, and merely leave the rest of the Act in, the Government of the Province of Quebec obtains exactly the same amount by virtue of the statute as it does with the license clauses remaining in the statute. The penalty is on the issuing of the policy, receipt, or renewal ; it is not a penalty for not taking out the license. The result, therefore, is this, that it is not in substance a License Act at all. It is nothing more noi less than a simple Stamp Act on policies, with provision- referring to a license, because, it must be presumed, the framers of the statute thought it was necessary, in order to cover the kind of tax in question with legal sanction, that it sliould be made in the shape of the price paid for a license. If that is so, it is of no use considering how far, inde- pendently of these considerations, the 9th sul)-section of the 92nd section would authorize a sum of money to be taken from an assurance company in respect of a license. With regard to the precedents cited, it was alleged, on behalf of the Appellants, that though at hrst sight it might appear that this was not a license, and that thi< wao not the price paid for a license, yet it could be shewn by the existing legislation in England and Anieriea that licenses were constantly granted on similar terms ; and that, therefore, in construing the Dominion Act, wi oii^'ht tl in^ legil Whtn tl it was i\ aeter. traders to be pa| to the year pre| veferenct carried o the good trader in which th license a those con trader, an by the auK depending viously do transactio is taken oi but, as hai renewal, o As this becomes n section of taxation w revenue fo be decided imposing a l»rovisions a court of direct taxa P't PKIVV COUNCIL. 129 B'^'m iiule- lion of ito be sense. Id, oil lilt it tlii< Id be lerica i"ms ; ouf^'lit to construe it with reference to the other subsist- iij legislation. Their Lordships think that a very fair ar^rument. But the question is, is it true in fact? Wlun the instances which were produced were examined, it was found that they were of a totally different char- acter. They might be described as licenses granted to. traders on payment of a sum of money ; but the price to 1)0 paid by the trader was estimated either according ti) the amount of business done by the trader in the vear previous to the granting of the license, or with reference to the value of the house in which the trader carried on business, or with reference to the nature of the "oods, as regards quantity especially, sold by the trader in the previous year. They were all cases in which the price actually paid by the trader for the license at the time of granting it was ascertained by these considerations. It was a license paid for by the trader, and the actual price of the license was ascertained 1)V the amount of the trade he did. This is not a payment depending in that sense on the amount of the trade pre- viously done by the trader. It is a payment on the very transaction occurring in the year for which the license is taken out, and is not really a price paid for a license,. but, as has been said before, a mere stamp on the policy,, renewal, or receipt. As this is the result to which their Lordships come, it becomes necessary to consider the effect of the 2nd sub- section of the 92nd section. That authorizes "direct taxation within the Province in order to the raising of a revenue for Provincial purposes." The single point to be decided upon this is whether a Stamp Act — an Act imposing a stamp on policies, renewals, and receipts, with provisions for avoiding the policy, renewal, or receipt, in- a court of law, if the stamp is not affixed — is or is not direct taxation ? Now, here again we find words used. Angers V. QCKEN Insuuasce Company. judumknt. .:u:'S||i '' ^'U■ M '1l M»t" ■1 w 130 PRIVY COUNCIL. 'ill il .t Anokrh v. Inhuranck Company. f#i«'# which have either a technical meaning, or a general, or, as it is sometimes called, a popular meaning. One or other meaning the words must have ; and, in tryhig to JcDOMKNT. lind out their meaning we must have recourse to the usual sources of information, whether regarded as tech- nical words, words of art, or words used in popular language. And that has been the course pursued by tht Court below. First of all, what is the meaning of the words as words of art ? We may consider their meaning either as words used in the sense of political economy, or as words used in jurisprudence in the courts of law, Taken in either way there is a multitude of authorities to show that such a stamp imposed by the Legislature is not direct taxation. The political economists are all agreed. There is not a single instance produced on the • other side. The number of instances cited by Mr. Justice Taschereau, in his elaborate judgment, it is not necessary here to more than refer to. But surely if one could have been found in favour of the Appellants, it was the duty of the Appellants to call their Lordships' attention to it. No such case has been found. Their Lordships, therefore, think they are warranted in assuming that no such case exists. As regards judicial interpretation, there are some English decisions, and several American decisions, on the subject, many of which are referred to in the judgment of Mr. Justice Taschereau. There, again, they are all one way. They all treat stamps either as indirect taxation, or as not being direct taxation. Again, no authority on the other side has been cited on the part of the Appellant. Lastly, as regards the popular use of the word, two cyclopaedias at least have been produced, shewing that the popular use of the word is entirely the same in this respect as the technical use of the word. And here, again, there is an utter deficiency on the part of the Appellants I j oi I t ,,1 I ^ \ in i)rod being S( shijjs, f( direct or them io Parliam^ tions, w kind of tf must coi of Englf and ther is not wa section S appears they will, thv. decisi Ra.m.say, J. I regret t rendered in will be conf dissent, if t could be apj tions that m law. Butt} open to ever to say that tl 9 of section think that th tlie majority ment will nc cannot levy ; scope of Don to be rendei PRIVY COUNCIL. 131 s« Angers V. QUKKN Insurance Company. in that In thii igain, lUaiits in producing a single instance to the contrary. That l)einf' so, it is not necessary, it appears to their Lord- ships, for them to consider the scientific definition of direct or indirect taxation. All that it is necessary for Juikimknt them to say is that finding these words used in an Act of Parliament, and finding that all the then known defini- tions, whether technical or general, would exclude this kind of taxation from the category of direct taxation, they must consider it was not the intention of the Legislature of England to include it in the term "direct taxation," and therefore that the imposition of this stamp duty is not warranted by the terms of the 2nd sub-section of section 92 of the Dominion Act. That being so, it appears to their Lordships that the appeal fails, and they will, therefore, humbly advise Her Majesty to aftirm th<. decision of the Court below, and dismiss the appeal. Appeal dismissed. Judgments in Queen's Bench. [Reported 22 L. C. J. , 507.J Ramsay, J. : — I regret to be obliged to dissent from the judgment about to be rendered in this case, and by which the judgment of the Court below will be confirmed. It is probable I should not have expressed any dissent, if the judgment laid down any tangible principle which could be applied to other cases, for I am not unaware of the objec- tions that may be made to the interpretation I would put upon the law. But the interpretation given by the Court appears to me to be open to every kind of objection. It would be a defensible position to say that the proviso of section 91 so controlled sub-sections 2 and 9 of section 92 as to render them inapplicable, although I do not think that this was the intention of the Imperial Parliament. But the majority of the Court does not adopt that view, and the judg- ment will not even lay down the rule that the Local Legislature cannot levy a license which may affect matters coming within the scope of Dominion legislation. The whole that the judgment about to be rendered affirms is, that the particular mode of levying a ■ 1' ! 11 t ''! ■ f ■ i 132 PRIVY COUNCIL. Angrrh r. QUKKN Insuranck Company. ■ ■•) license adopted in the statute before us is beyond the powers of tho Locivl Legislature. To make tlie view I take, clear, I may briirtv statu that by an Act styled 39 Vict. , cap. 7, the Legislature of tin; Province of Quebec imposed on " every assurer carrying on tliu W- • ' W" e ec. jjygi^Qgg ,,f assurancc, other than that of Marine assurance fxdu- Uii maiiy , J. sivuly," tlie duty of taking out a license from the revenue otHcerof the district before the first day of May in each year, and to remain continually under license. " The price of such license " was t.. consist of three per cent, on every fire policy, and one per cent, on every other policy, except marine policies. Tliis price was to be collected by adhesive stamps in the manner regulated by the Act. A number of insurance companies cjuestioned the constitiUinn- ality of this Act, maintaining that the right to impose such a tax on assurers was not expressly given to tho Provincial Legislatures, and, on the ccmtrary, that it was given to the Dominion Parliament, which has alone the power to regulate trade and commerce. Hence this action. The local Government, now respondent, contends that it is a license, and that the Local Legislatures have the right to make laws in relation to "Shop, Saloon, Tavern, Auctioneer, and othtr Licenses in order to the raising of a revenue for Provincial, Local or Municipal purposes." It contends further, that, if such a taxis not a license, the Local Legislature is still justified in imposing it as being " direct taxation within the Province in order to the rais- ing of a revenue for Provincial purposes." The question of the constitutionality of this impost, it will at once be admitted, is one of an embarrassing kind. The form of tlie statute with regard to sections 91 and 92 is vicious, and some of the terms employed have not a definite signification, while others are not applicable. Thus in section 91 we have the Parliament of Canada endowed with the exchmve legislative authority over all matters coming within the enumeration of the section, while in section 92 the Provincial Legislatures " may exclusively make laws in relation to matters " within the enumeration of this section. If, unfortunately, the two enumerations clash, we should thus have two exdtisive jurisdictions over the same matter, which is impossible. The difficulty of a conflict seems to have been to some extent appre- hended, for a saving clause is added to section 91 in these words ; * ' And any matter coming within any of the classes of subjects enumerated in this section shall not be deemed to come within the class of matters of a local or private nature comprised in the enume- f ration of tlie Legis ity 2 of the B. N. A. Act does not, however, it appears tip tne arise in this case. The power to raise revenue for local pur- ii.ises by licenses or by direct taxation is not in conflict with any matter in section 91. The exclusive power of taxation given to the Dominion Parliament is to employ "any," all and every mode or .system of taxation, ('. e., for their own or general purposes, not for liical or municipal revenue. The power of d(juble taxation may exist. On this all the American authorities are agreed, and on this poiut American authority is applicable. It is admitted that the business of insurance belongs to trade and commerce. We ha\'e, therefore, to inquire whether the tax im- posed by the local Act in question is a license within the meaning of sub-section 9 of sec. 92, B. N. A. Act, or a direct tax within the meaning of sub-section 2 of the same section. We are unanimously of opinion that, within the meaning of the B. X. A. Act, a duty of the kind in question is not dii'ect taxation. The expression " direct taxation " has been used in so many difler- ent ways that it cannot be said to have a technical sense. Its ordinary use is entirely relative, therefore it escapes scientific circumscription. All taxation is direct, strictly speaking. It seems to me, then, that the limit intended by the Act, when it allows direct taxation, is taxation of property and income, or a capitation tax. As to the other question, I agree with the appellants in thinking that the condition of the license — its " price," according to the phraseology of the statute — does not affect the (question, provided it he imposed ' ' in order to the raising of a revenue for provincial, local or municipal purposes." How the assurer is to bo repaid, and whether he is to be charged a fixed rate or a percentage on the business, is beside the (£ue8tion. The distinctive mark of the tax styled " license " is that it is voluntary on the part of the party paying it. It is a liberty to do, on certain conditions (in local legislation iiiirii ' 1 't, vn >M m • "\\:-\: i ■:,'; Y • -'m :;f v\^\ m < ' ! i 1 » - . will 1 i NH 1 I 1 J 1 I !i>; 134 PRIVY COUNCIL. which affects Dominion matters the condition must be in iiKuieyi, that which the law prohibits one from doing without such pormiHsinn, But it was contended by the respondent that at any rate the word, ASOKRH V. Qdrbn Inhukancr Company. "other licenses" must be restramed by those enumerated before, Q. B. , Qu e lec. ,, g)jf,p^ saloon, tavern, auctioneer," and that we must say that other Kamsay, J. licenses were those of a similar kind, or at all events, tliat other licenses could only be imposed on such trades or occupatioiia as were subject to license by the legislation existing at the time ot passing tlio B. N. A. Act. The rule of interpretation referred to is a good one, but it will hardly help the respondent in the present case. It is impossiljle ti find out the differentia of any genus conveyed by the examiiles ui the numeration. In the efforts to establish a genua we are told that "shop" means a shop where drink is sold. I am not sure that there is sufficient ground for saying so ; but admit it, and what becomes of the auctionefjr's license ? it affects trade, and, conse- quently, is the subject of Dominion legislation ; yet it is expressly given, according to respondent's theory, as an illustration of a trade which may be licensed. Again, if we refer to the Municipalities and Roads Act, cap. 24, C. S. L. C. , we find that the licenses then con- templated included licenses to ferries, for the sale of spiritiKib liquors by shopkeepers, tavern-keepers and other retailers, licenses to keep dogs, and for public exhibitions, licenses to pedlars, t^ common carriers and to all traders, ivhether wholesale or retail American authority has been cited to establish that the Couns should interfere where the rate of license complained of is so gre?: as to interfere with trade. I am aware that this has been the motive of American decisions, following the ruling of Chief-Justice Marshall. In spite, however, of the authority of these decisions, the objection to them is so manifest that it can hardly be said they have been acquiesced in even in the United States. In fact, it is difficult to conceive any institution less fitted to decide the practical question of what amount of taxation this or that b' audi ie could support without inconvenience, than a c >ipt <" law, Aj,'ain it should be observed that there is a fundai. .iflFerence bet' our constitution and that of the United Si Here the poucrs of the Legisl-tures and Governments are pai m ned i)y a supreme authority, which has given to the Dominion organi. dion not only all unassigned powers, not purely of a private or local nature, but also specially the power to control absolutely, by disallowance, the legislation of the Provinces. In the United States the central im i-. - ..i » i . iM>iam PRIVY COUNCIL. 1S5 if„vornmont holds its authority from the States, and lias no power over the States' legislation other tliiin that it may ac(iuiro through Anokkh r. C^UKKN the Supremo Court. Here, then, wo have by the ct.nstitution a ^^^I[|f,^^";|.* ci.inplete chock on any practical inconvenience arising from the abiiso of the powers confided to tho Provincial Legislatures, which ^" 'l_zl^ *°' is entirely wanting in the constitution of the United States — a defect Kimsoy, J. which may justify to some extent the decisions there on this matter. It may perhaps bo said the Provincial Governments are jealous of any interference with their legislation, and that the Dominion Gdvernment does not like to meddle with it. Thid may be. The spirit of insubordination is tolerably active in the present age, but I do not see tliat we are called upon to perform a duty for which wo arc totally unfit, to relievo from responsibility those who ought to be of all others, the most competent to decide the question of policy. Nor does it seem to me that the difficulty involved is very great. The Local Legislature must (jualify tho tax as a license, otherwise it would not bo within sub-section 9, and it surely would not be considered as an impertinent interference to stop local legis- lation which, under the guise of a license, really created a prohibi- tion or serious trammel to any branch of trade. It seems to me, therefore, that the object of the Imperial Parlia- ment in granting to the Local Legislatures the power to raise revenues for their purposes by means of licenses, was to give a power to tax, even though the tax did not fall within any definition which might be applied to " direct taxation," and although it might charge some matter falling within the scope of Dominion legislation, subject always, as all other legislation, to the controlling power of the Dominion Government. I am, therefore, of opinion that the appeal should be maintained, and that the judgment of the Court below should be reversed. [Meported IG C. L. J., N. S. 1D8.] I 1 iHI \i i Taschereau, J. : — By the Act of the Legislature of Quebec, 39 Vic, c. 7, entitled "An Act to compel Assurers to take out a License," it is enacted that " every assurer carrying on, in the Province, any business of assurance other than that of marine assurance exclusively for br less of assurance against accidents, for a period less than 30 (lays— 40 Vic, c. 6), shall be bound to take out a license in each year from one of the revenue ofHcers, the price of such license to ' u \ io 0, , \-.m Uikil 136 PRIVY CCUN'CIL. il5 Angeks consist in the payment to the Crown, for the use of the Province. QuKKN ^^ the time of the issue or delivery of any policy of assura-io, aivl Insurance ^^ jj^q jjij^g ^f ^^j^q niakini' or delivery of each premium, receipt or Company. ^ "' i ' i renewal respecting such assurance, of a sum compute I at the ratf VJ. . AJue c. ^^j tiirf.e pgr cent, as to assurance atjainst fire, or of one per cent, a* Tasohareau, J. t,, utlier assurances,' for each hundred dollars, " fraction of oik; hundred dollars, of the amount received as premium, or renewal uf assurance ; and such payment was to be made by means of adhusivt; stamps, equivalent in value to the amount required, to be affixed on the policy of assurance, receipt or renewal." Any person wIk, shall not comply witli the provisions of this Act is made lialjle fur each contravention to a penal cy not exceeding fifty dollars, < , , Company. pour le sel. Tantot cette demande est faite au moment ou le produit franchit les frontiferes (les droits de douanes). Tantot, c'est au ^- B-» Quebec, moment ou le produit passe de la main du dernier producteur dans Taschereau, J celle (lu consommateur qu'on fait contribuer celui-ci (en Angleterre par le stamp duty, en France par I'impot sur les billets de specta- cles). Tantot le gouvernement exige que la marchandise porte une marque particuliere, qu'il fait payer, comme le'controle de I'argent, les timbres des journaux. Tantot il frappe non la marchandise elle memc mais I'acquittement de son prix, comme il le fait par le timbre des quittances st des effets de commerce. Toutes ces manieres de lever les contributions se rangent dans la classe des contributions indirectes parce que la demande n'en est address m n 1 ' t' 140 PRIVY COUNCIL. * Angers V. QUKEN Insukanck Company. Q.B., Quebec, Taschereau, J partiennent les droits sur les tabacs, sur lea cartes k jouer, sur lu sel, sur les boisaous," etc., etc. — See also Demeunier, Econumit; Politiciue, Vol. III., V. Impots. There cannot be, in my opinion, a shadow of doubt tliat the duties imposed on the Assurance Companies by the Legislature of Quebec, let them be called licenses or stamp duties, come distincth- within the definition given by the French authors, and should be classed in the category of indirect taxes. If I now examine the English authors, I also find it impossible to declare that these duties on the Assurance Companies fall into the category of direct taxes. " Taxes are either direct or indirect," says Mill. " A direct tax is one which is demanded from the very person who it is intended or desired should pay it. Indirect taxes are those which are de- manded from one pers,, but 1 have not found such a power. It would not he necessary for me to add anything, for, as I have already re- marked, I am of opinion that, as tlie power has not been givtn to the Local Legislatures, it comes within the legislative authority of the Federal Parliament, although, by section 91, it may not have been particularly and specially given. But I will go one step further, and, taking into consideration that the respondents' com- pany (and all similar companies) is a commercial company, and that its contracts are entirely of a commercial character (C. C. 24, 70), I tind that, by the Imperial statute, these companies and such com- panies, in express and clear terms, are subject to the legislative authority and are under the exclusive control of the Federal Par- liament. Sub-section 2 of the Olst section enacts, that the Federal Parliament shall have power to make laws relating to ' ' the regula- tion of trade and commerce." The Insurance Companies being >• ''ill ' ill t' 1 "i ■vi| . !• 1 i 1 ii TW 148 I'HIVY (•OUN(!U.. Anokrh commercial companies, are, therefore, under the power of the QiKKN Federal Parliament. It has not been contended by the Attorney. Inhvhanck General of the Province of Quobec that the Federal Parliaiiifnt Company. had not legislative authority over tlieso conipiiuics, but it wns "• • ' ^" " '^"' apparently urged that the Local Legislatures had a ccmcurrent Tosclieroau, .T power, or rather, if I am not mistaken, it was admitted tliat the Local Logislaturos could not regulate these companies, but tlmt they had the power to oblige them to take out a license for tlie puri»ose of raising a revenue, and this was not to vvynlait them ; and that in the present case it had not been the intention to m/i(. late the trade of these companies, but the intention of tlio Legisla- ture of Quebec was to raise a revenue I am ready to admit tliat the intention of the Legislature was to raise a revenue, but is not this legislaticm virtually "a regulation of trade and commerce,' and in one of its moat extensive and largest branches ? First, u duty is imposed on the companies to take out a license, and to be continually doing business under license. What is a license I It is a permit — leave grcanted. What is the origin of the word i Un- doubtedly lied, licere — to grant leave. Now, in order to grant leave, you must have power to prohibit. He who can grant leave must, first of all, have authority to prohibit. Now, I am certain the Legislature of Quebec will not contend t.^at they have power to prohibit or prevent Insurance Companies from doing business in the Province. It is true this legislation does not prohibit them, but it has imposed upon them certain conditions. The law says : "Before you can do any business in our Province you must first obtain our leave. " Can it be said this is not regulating ? The law also says: "If you do not comply with certain formalities, jdur policies and your receipts will be null and void." Is this not regu- lating them ? In fact, is it not assuming the power to prevent tliera from doing business ? The defendant company has obtained from the Federal Govern- ment the license— the leave — to do business in the Province of Quebec. In order to get the license, they have deposited $150,000, and they have paid and pay, jointly with other companies, an annual tax to the Dominion of $8,000, and have complied with ail the provisions of the Dominion statute, 38 Vic, c. 20. But it is contended that all this does not even give it authority to issue a single policy. The Province of Quebec steps in and says : "If, under your license from Ottawa, you issue a single policy or receipt, we enact they shall be null, unless you submit to the conditions we ^-.^ASias^XS PRIVY COUKCIL. 149 V ( Anorrh iuipoBo upon you." Thoy say, " We mi«ht, notwithstanding your licunse from Ottawa, oxpel you from tho Province of Quebec, and Qukkn prevent you from carrying on your trade, but wo will permit you, ^j'^^^p^JJ"" hut on those conditions." I do not think that tlie Province of ,, , , ,, i • I lu *-l- "m Quebeo. giicbuc has sucii powers —hrst, because they are not given by the 92ud section of the Imperial statute and, conaeciuently, belong to Tasohoreau, J the Federal Parliament ; and secondly, because they are given specitically, by the 91st section, under the words "Regulation of traili! and commerce," to the central power. No doubt, as has beou very properly remarked by the counsel representing the Att(jrney-(«onoral, a literal interpretation of these two sections would make them ontradictory on some points. The yist section declares that the Fe: jral Government shall have po'Vui to tax in every possible mode, and this includes direct tax:»tion. The 02nd section declares that tlie Local Legislature has exclusively the power of direct taxation. A literal interpreta- tion of these two sections would make them contradictory. It has been stated somewhere that, in order to reconcile these two sections, the word "exclusively" must be construed as referring to the Imperial power. I do not concur in this view. The word was taken from the resolutions on Confederation sent from Canada, and it was certainly not the intention to refer them to the Imperial power. I prefer to admit that there is a contradiction in the letter of the statute, and construe the sections as giving the power of direct taxation, both to the central and local power, and this is in accordance with the well-known rule, " Where a general intenti(m 13 expressed in a statute, and the Act also expresses a particular intention incompatible with the general intention, the particular intention shall be considered as an exception : " per Best, C.J. , in Churchill v. Crease. (1) It is true that, by the 91st section, the Federal Parliament has exclusively the power to tax in every mode, but section 92 gives specifically to the Local Legislatures the power of direct taxation. Then, according to the above rule, direct taxation must be consi- dered by section 92 as being excepted from the monopoly given in general terms by the 9l3t section to the Federal Parliament. The same rule is applicable to the construction of the other paragraphs of these two sections. Thus, although by the 91st section the Federal Parliament has the exclusive power of taxing in every (1) 5 Bing., 480, 492. i! 1 150 PRIVY COUNCIL. Angkhs mode, and of regulating trade and commerce— shop, saloon, tavern, Queen auctioneer licenses, and other licenses of the same kind, come iNai'KANCK within the jurisdiction of the Local Legislatures, and that because the power is given specifically by the 92nd section, and vice '■- (■<» ' ' ■ Although the n2nd section gives the power of direct taxation anl Taschereau, J. pf indirect taxation by means of the licenses just mentit)ne(i, the Federal Parliament h.as also the power of direct taxation and indi- rect taxation by means of said licenses, because the 91st sectimi gives them power specifically of imposing all kinds of taxes, wliiuji is one of the essential elements of sovereignty, and at the same time giving an exclusive control over the regulation of trade and commerce. The concurrent legislative authority over these subject- matters by the Federal Parliament and the Local Legislatures can only exist as to direct taxation and the granting of "shop, saloon, tavern, auctioneer, and other licei.iies," ejnsdem (jeneris It is not, however, necessary for me to consider in this cause the different questions which may arise from the concurrent powers given t;, these legislative bodies, as I am of opinion, for the reasons T have before given, that the licenses imposed on the Insurance Companies cannot be said to be a direct tax, and are not comprised in the words " shop, saloon, tavern, auctioneer and other licenses." It was stated on the argument that municipal taxes are in a some- what similar position to these. Without wishing to express an opinion in one sense or the other as to the constitutionality of any legislation relating to the municipal system, I will say that it is quite possible such legislation would come within a different class of subject-matters, and within certain other sectirKF.\ judgment ought to be continned, and is conlinned. Q. V'.. '.^^ebec. DoKioN, 0. J. : — 1 concur in the judgment on the following grounds : Tascliereuu, J. The Local Legislature has the right to impose direct taxes only. It has also power to gi'ant licenses as a means of raising revenue fur Provincial and municipal jiurposes. Now, the charge imposed ui)on licenses is clearly iii indirect tax. It is not imposed on the insurance itself, but upon the business winch is doing — that is, the insurer is obliged to place a stamp on every policy issued, according to the amount of such policy. It is as much an indirect tax as the taxes of excise or of customs. They are not intended to be paid by the insurer, but are to be paid by tlie insured, whoever they may be. Tliis case must therefore come under the provisions allowing the Local Legislatures to grant licenses. I am not prepared to state tliat tlie Local Legislatures have not the right to grant licenses to insurance companies, to Vtanks, iVrc. ; but if the Legislatures have that right, they must do it in such form as not to violate one of the restrictions of the Confederation Act, which does not authorize them to impose indirect taxes. The Local Legislatures are authorized to grant licenses and to raise revenue on such licenses as were usually granted. Now, it so happens that there was not, at the time the Confederation Act was passed, a single license granted cm which the payment or fee was laid on the amount of business done — at least, if there was, I am not aware of any. All licenses granted were for a fixed sum. Tliis view was carried so far that in the Act to regulate the busi- ness of auctioneers, each auctifineer has to pay a hxed sum, which is described as the price of the license, and another sum of one per cent, on the price of the goods sold, this last sum to be added to the price of the goods sold. The duty imposed by the Local Legislature is not theref(jre a license fee, such .is was known m this country at the time of the Confederation Act. I therefore find that although in form a license vfipears to have been granbed, in substance it is an indirect tax wliich has been imi)osed. It is an evasion of the Act from which the Local Legislature derives its jiowers. Tiie L ho discussed lice the great approach such a At the outset the Provincial indirect tax. S Brande in his ' VMrkn referred i the very nature Tonfederation . '-'nd clauses, i by and with thi W^' pRivr 153 opinion on this point, \vhich is undoubtedly 'sf' the greatest ditiiculty. Anokbs For the reasons .stated, I contine myself t. «iying that the duty Quekn imposed upon Insurance Companies is an indirect tax, which the \^ompany!^ T,ncal Lcislature iiad no authority to impose. ^'^ "^ (J. B., Quebec. Monk and Tes.sikr, JJ., concurred in arftirmi*^ the judgment of the court behnv, >orion, C J. JiTKJMEXT or SrPERiOR CouRT from which thf/^ was M<' Ajypeal to thi' ('iiini of (^>neen'ii Bench, in u-hich the fr/ftfidimj jv.dgments in re qiven affirming thin j)iehjm''ut of Mr. JmHc' Torrance. [Reported 21 L. C. J. 77.] ToKRANCE, J. : — Tlie facts of this case hav^e been admitted — namely, the issue of three policies of insurance by the defendants, in contravention of the provisions of the Provincial Statute ; the issue of a licdnse by ! minion Government to the defendants, under tue 31 Vict. :. . implying the deposit of $150,000 in securities of the Domini(m. The naked iiucstion to decide is whether the Provincial Statute, o!t Vict. c. 7, is beyond the power of the Provincial Legislature. It becomes every tribunal to realize the delicacy of the ([uestion. To use the language of Chief Justice Marshall in considering a similar (juestion in the United States, "In the case now to be 'letermined, the defendants contest the validity of an Act which ii,..s been passed by the Legislature of the (State) Province. The L'oii titution of our country, in its most interesting and vital parts, is to 06 considered ; the conflicting powers of the Government of the I'nion and of its members, as marked in the Constitution, are to he discussed ; and an opinion given which may essentially influ- I'lico the great operations of the Government. No tribunal can approach such a (juestion without a deep sense of its importance." At the outset we may say that the license or stamp retiuired by the Provincial Legislature from the Insurance Companies is an lulirect tax. Smith, in his " Wealth of Nations," Book V. , chap. 2, ilrande in his " Encyclopiedia of Science of Taxation," and other iviirks referred to by counsel at the argument, shew this as well as thi' very nature of the tax. Let us turn next to the clauses of the Confederation Act. It is only necessary to consider the 91st and >.*ml clauses. Clause 91 says : " It shall be lawful for the Queen, bv ami with the advice and consent of the Senate and House of •ill 111 ■ \ 1 ii 154 PRIVY COUNCIL. !• ) Ancjkus V. QUKEN Inhl'hance Company. Superior C, Queliec. Torrance, J. Commons, to make laws for the peace, order and good government of Canada, in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the Legislatures ,i the Provinces ; and for greater certainty, but not so as to restrict the generality of the foregoing terms of this section, it is herebv declared that (notwithstanding anything in this Act) the exclusive legislative authority of the Parliament of Canada extends to nil matters coming within the classes of subjects next hereinafter enumerated, that is to say : — " 2. The regulation of trade and commerce. " 3. The raising oi money by any mode or system of taxation. "20. Such classes of subjects as are expressly excepted in the enumeration of the classes of subjects by this Act assigned exdu- sively to the Legislatures of the Provinces. " And any matter coming within any of the clashes of subjuets enumerated in this section shall not be deemed to come witliin the class of matters of a local or private nature, comprised in the tmi- meration of the classes of subjects by this Act assigned exclusively to the Legislatures of the Provinces." ' ' Exclusive powers of Provincial Legislatures — 92. In each Prov- inco the Legislature may exclusively make laws in relation to matters coming within the classes of subjects next hereinafter enumerated, that is to say : — "2. Direct taxation within the Province, in order to the raising of a revenue for Provincial purposes. "9. Shop, saloon, tavern, auctioneer, and other licenses, in order to the raising of a revenue for Provincial, local or municiiial purposes." The counsel for the Province have Uid great stress upon this last clause, as authorizing the taxation in question. On the otiier hand, the defendants tind an argument for their immunity in the exclusive powers given to the Dominion Legislature in matters nt trade and commerce. Reference has been made to the decisions of the Supreme Court of the United States of America, arising out oi the occasional conflicts there between Federal and State rights. It will be remembered that when the civil war began between North and South in 18G1, there was much discussion as to the respective rights of the General and State Legislatures, and it was generally conceded that the Constitution only gave to the Federal Legisla- ture the powers which had been renounced by the States. This had been understood long before. De Tocqueville, in his celebrated work on "Dem ,,f the Federal was not incluc Governments of States remainec exception." Now, I think is quite ditfereni fare which had s and determined aey of the Gene Provinces. It v strong— far stro States in relatio Accordingly \\ recited, that the matters not comi exclusively to tli PRIVY COUNCIL. 155 work on "Democracy in America," chap. 8, says : "The attributes iif the Federal Government were carefully defined, and all that was not included among them was declared to remain to the fiovernnients of the several States. Tlius the Government of the States remained the rule, and that of the Confederation was the exception." Now, I think I am safe in saying that the spirit of our Constitution is quite different. Its framers had before them the melancholy war- fare which had so long desolated so large a portion of this continent, anil determined that there should be no question as to the suprem- acy of the General Government, or the subordinate position of our Provinces. It was intended that the General Legislature should be strong — far stronger than the Federal Legislature of the LTnited States in relation to the State Governments. Accordingly we find, in the clauses of our Consti :ution already recited, that the Dominion Legislature makes laws in relation to all matters not coming within the classes of subjects by the Act assigned exclusively to the Legislatures of the Provinces ; " and for greater certainty, but not so as to restrict the generality of the foregoing terms," it was declared that (notwithstanding anything in the Act) the exclusive legislative authority of Canada extends to all matters cuming within the classe:? of subjects enumerated, inter alia, ' ' Trade and commerce." "And any matter coming within any of the classes of subjects enumerated in this section shall not b-' deemed to come within the class of matters of a local or private nature com- prised in the enumeration of the classes of subjects by this Act assigned exclusively to the Legislatures of the Provinces." Reference has been made to the decisions of the Supreme Court iif the United States on kindred subjects: "Congress is vested with power to regulate commerce ; but this power is not so far exclusive as to prevent regulations by the States also, when they do not conflict with those established by Congress Where Congress has not acted at all upon the subject, the State taxation cannot be invalid on this ground ; but where national regulations exist, under which rights are established or privileges iiven, the State can impose no burdens which shall in effect make the enjoyment of those rights and privileges contingent upon the jiaynieut of tribute to the State." — Cooley on Constitutional Limi- tations, p. 486. "From the paramount authority of the General Govennnent, the States are restrained, without any express prohibition, from Anhrrr r. <. ill KEN iN.SrKANCK COMPANT, Superior C, i^uebec. Torrance, J. ft ' i'f ' 156 PRIVY COUNCIL. Anokks V. QUKEN Insuranck Company, Superior C, Quebec. Torrance, J. any exercise of their taxing power, which, in its nature, is iucom patible with or repugnant to the constitutional laws of the Union . They have no power, by taxation or otherwise, to retard, impede, burden, or in any manner to control the operations of constitutional laws enacted by C A pp. Gas. 115.] The Parliament of the Dominion of Canada has power to impose new duties upon existing Provincial Courts, and to give them powers as to matters coming within the classes of subjects over which the Dominion Parliament has jurisdiction. Consecjuently the Dominion Controverted Elections Act of 1874 (Canadian Stat. 37 Vict. c. 10), which confers upon the Provincial Courts jurisdiction with respect to elections to the Dominion House of Commons, is valid. Special leave refused to appeal from two concurrent judgments of the Courts in Canada, affirming the competency and validity of the said Act of 1874 ; it appearing to the Judicial Coiiuiiittee of the Privy Council that there was no substantial question requiring to be determined, none of their Lordships having any doubt of the soundness of the judgments, though several judges of the first instance had held the Act to be invalid. This was a petition of special leave to appeal from a judgment of the Supreme Court of Canada + (Oct. 28, 1879), affirming a judgment of the Chief Justice of the Superior Court of Quebec (Jan. 1879), dismissing certain preliminary objections of the Petitioner, to an election petition filed against him by the Respondent. The elec- tion petition prayed that Valin' s election to a seat in the * Present :— Lord Selborne, Sir James W. Colvile, Sir Barnes Peacock, Sir Montague E. Smith, and Sir Robert P. Collier, t Pout, p. 167. Caniuliiiu li( In. (Iccliired i sr.lf, and hi; consent. Th thu Province an election p( Mr. Benja; in support of a question of f'iven rise to validity of A this case wen different vie^\ l^rovinces. I all the contf awaiting the ceedinj,' any f the Superior the B. \'. A. 14, IGl, and 1 the trial of e Vict. c. 10. , tioned Act. submitted th[ Imperial Act to the admini; or to the coi procedure in power to con Court, or to a on its judges i37 Vict. c. 1 of 1875, pro Superior Coi fall with the iHm 't PRIVV COUNCII,. 159 Caniiiliiin House of Commons for Montmorency, mifflit ],(. (locliired null and void, for bribery practised by him- Holf. and his agents, to bis knowledge, and with h'-j consent. The objections were that the Superior Court of tlie Province of Quebec had no jurisdiction to entertain iui election petition. Mr. Benjamin, Q.C. (Mr. Gainsford Bruce with him), in support of the petition, urged that the appeal raised a question of very great importance, and one, which had f'ivon rise to much conHict of opinion, viz.: — as to the validity of Act 37 Vict. c. 10. Though the judges in tliis case were unanimous in upholding its validity, yet a different view has been taken by other judges in other Provinces. In the Province of Quebec it was stated that all the contestations had been suspended, the judges awititinf; the decision of the Privy Council before pro- ceeding' any further. With regard to the jurisdiction of the Superior Court in this case, reference was made to the E. ^'. A. Act, 30 Vict. c. 3, ss. 41, 91, 92, sub-s. 14, lOl, and to 30 Vict. c. 28, which makes provision for the trial of election petitions, and was repealed by 37 Vict. c. 10. See ss. 8, 33, 34 and 35, of the last men- tioned Act. See also 38 Vict. c. 11, ss. 47, 48. He submitted that the Parliament of Canada had, under the Imperial Act of 1867, no power to make laws in relation to the administration of justice in the Province of Quebec, or to the constitution of any Provincial Courts, or to procedure in those Courts. Consequently it had no power to confer any new jurisdiction upon the Superior Com-t, or to alfect its procedure, or to impose new duties (»nits judges; and, therefore, the Canadian Act of 1874 1 37 Vict. c. 10) was ultra viren and ind^terative. The Act of 1875, providing for appeals from deciMoiiB of the Superior Court, under the Act of 1874, would stand or fall with the latter Act. Vai.in r. Lanci-ois. Statkxiknt. W'A « ^fl fi":! ■ f ■■i'i Mi fr^^^ I GO PUIVY COUNCIL. Valin Lanulois. Jnxi.MKNT. The judgment of their LordshipK was deUvered l»y LoHii Sklbornk : — Their Lordships have carefully considered tlie nhl. arf^Miment which they have heard from Mr. Benjamin, and they feel glad that so full an argument has Un offered to tliem, hecause there can l)e no doubt that the matter is one of great importance. The petition is t'l obtain leave to ajipeal from two concurrent judgments of the Court of first instance, and of the Court of Appiai atth'ming the competency and validity of an Act of tlie Dominion Legislature of Canada. Nothing can bo if more importance, certainly, than a question of tliat nature, and the subject matter also, being the mode uf determining election petitions in cases of controverted elections to seats in the Parliament of Canada, is beyond all doubt of the greatest general importance. It, tlnre- fore, would have been very unsatisfactory to their Lonl- ships to be obliged to dispose of such an application with- out, at least, having had the grounds of it very fully pre- sented to them. That has been done, and I think 1 may venture to say for their Lordships generally, that tliev very much doubt whether, if there had been an appeal and counsel present on both sides, the grounds on which an appeal would have been supported, or might have been supported, could have been better presented to their Lordships than they have been upon the present oecasiou by Mr. Benjamin. In that state of the case their Lordships must remem- ber on what principles an application of this sort should be granted or refused. It has been rendered necessary, by the legislation which has taken place in the colony, to make a special application to the Crown in such a case for leave_t j appeal ; and their Lordships have decided on a fetmer occasion that a special application of that kind should not be lightly or very easily granted ; IT ' mim\ T1' I'RIVY COUNCIL. 1(11 thiit it is necessary to shew botli that tlic matter is one (if iini>i»rtant'e, niid also that there is really a sulistantial (iiiL'stioii to he determined. It has been already said that thiir Lordships have no doiiht al)out the importance of this ([lU'stion ; hut the consideration of its importance and the nature of the (piestion tell hoth ways. On the one hand those considerations would undoubtedly make it ri^'lit to permit an appeal, if it were shewn to their Lordships, jiriiml fdcic at all events, that there was a serious and substantial question re(iuiring to be deter- mined. On the other hand, the same considi-rations make it unfit and inexpedient to throw doubt upon a great question of Constitutional Law in Canada, and uiion a (U'C'ision in the Court of Appeal there, unless their Lordships are satisfied that there is, priiiid facie, a serious and a substantial question, requiring to be determined. Their Lordships are not satisfied in this case that there is any such question, inasmuch as they entertain no doulit that the decisions of the Lower Courts were correct. It is not to be presumed that the Legisla- tiue of the Dominion hiis exceeded its powers, unless upon grounds really of a serious character. In the present case their Lordships find that the subject-matter of this controversy, that is, the determination of the way in whicli (juestions of this nature are to l)e decided, as to the validity of the returns of members to the Canadian Parhanient is, beyond all dou])t, placed within the authority and the legislative power of the Dominion Parlia- ment by the list section of the Act of 18G7, to which reference has been made ; upon that point no controversy is raised. The controversy is solely whether the power whicli that Parliament possesses of making provision for the mode of determining such questions has been com- petently or incom})etently exercised. The only ground on which it is alleged to have been incompetently exercised 11 Valin V. TiAN(iL0I8. .lUIKiMKNT. ^«1 ^■i ;i a ^'^U IMAGE EVALUATION TEST TARGET (MT-3) h A &// y. 4i 1.0 I.I ■- 112.2 1^ Hi ■mUu 11.25 1 1.4 2.0 Is 1.6 o 7 Hiotographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (7)6) 872-4503 A f\ A \ \^ O^ <13 f/. b' ! 1G2 PUIVV COUNCIL. m^ m ! ,-^ U!^' mi' Vaijn is that l)y the 91st aiui U'ind clauses of the Act of 1867, '■•... . Lanolois. which distribute legislative powers between the Proviii- .TiiMiMKNT. cial and the Dominion Legislatures, the Dominion Par- liament is excluded from the power of legislating on auy matters coming within those classes of subjects which are assigned exclusively to the Legislatures of the Provinces. One of those classes of subjects is defined in these words, by the 14th sub-section of the 92nd clause: — "The administration of justice in the Province, including the constitution, maintenance and organizLtion of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including procedure in civil matters in those Courts." The argument, and the sole argument, which has heen offered to their Lordships to induce them to come to the conclusion that there is here a serious question to be determined, is that the Act of 1874, the validity of which is challenged, contravenes that particular provision of the 92nd section, which exclusively assigns to the Provin- cial Legislatures the power of legislating for the admin- istration of justice in the Provinces, including the constitution, maintenance and organization of Provincial Courts of Civil and Criminal Jurisdiction, and inchuling procedure in civil (not in criminal) matters in those Courts. Now, if their Lordships had for the first time, and without any assistance from anything which has taken place in the colony, to apply their minds to that matter, and even if the 41st section were not in the Act, it would not be quite plain to them that the transfer of the jurisdiction to determine upon the right tcr scats i.i the Canadian Legislature — a thing which hud always been done, not by Courts of Justice, but otherwise- would come within the natural import of those general words : — " The administration of justice in the Province, and the constitution, maintenance and organization of Provincial Courts, and procedure in civil matters in those m I' iiaili PRIVY COUNCIL. 163 Courts." But one thing, at least, is clear, that those Vaun words do not point expressly or by any necessary impli- Langlois. cation to the particular subject of election petitions ; and Judgment. ■when we find in the same Act another clause which deals expressly with those petitions there is not the smallest difficulty in taking the two clauses together and placing upon them both a consistent construction. That other clause, the 41st, expressly says that the old mode of determining this class of questions was to continue until the Parliament of Canada should otherwise provide. It was, therefore, the Parliament of Canada which was otherwise to provide. It did otherwise provide by the Act of 1873, which Act it afterwards altered, and then passed the Act now in question. So far it would appear to their Lordships very difficult to suggest any ground upon which the competency of the Parliament of Canada so to legislate, could be called in question ; but the ground which is suggested is this, that it has seemed fit to the Parliament of Canada to confer the jurisdiction necessary for the trial of election petitions upon Courts of ordinary jurisdiction in the Provinces ; and it is said, that although the Parliament of Canada might have provided in any other manner for those trials, and might have created an}' new Courts for this purpose, it could not commit the exercise of such a new jurisdiction to any existing Provincial Court. ' After all their Lordships have heard from Mr. Benjamin, they are at a loss to follow that argument, even supposing that this were not ill truth and in substance the creation of a new Court. If the subject-matter is within the jurisdiction of the Dominion Parliament, it is not within the jurisdiction of the Provincial Parliament ; and that which is excluded l)y the iUst section from the jurisdiction of the Dominion I'iirhamcnt is not anything else than matters coming 'vithin the classes of subjects assigned exclusively to the P m i 1 ' ! » tit Vamn c, LAN(iL()I.S. JUDliMKNT. i^l !' tS i 4 ii'i 164 PRIVY COUN(!IL. Legislatures of the Provinces. The only material elasi of subjects relates to the administration of justice iu tht Provinces, which, read with the 41st section, cannot be reasonably taken to have anything to do with election petitions. There is, therefore, nothing here to raise a doubt about the power of the Dominion Parliament tn impose new duties upon the existing Provincial Courts, or to give them new powers, as to matters which do not come within the classes of subjects assigned exclusivelv to the Legislatures of the Provinces ; but in addition to that, it appears that by the Act of 1878, which, even bv those judges, who are said to have disputed the compe- tency of the Act of 1874, is admitted to have been com- petent to the Dominion Parliament, what appears to their Lordships to be exactly the same thing in substance, and not so very different even in form, was done. It was intended that when a Court of Appeal should be con- stituted for the Dominion, a judge of that Court ot Appeal should be the judge in the first instance of elec- tion petitions, and three judges of the same Court should have power to sit in appeal from any judgment of a single judge; but it was necessary also to provide for the interval between the passing of the Act and the consti- tution of such a Court of Appeal ; and that Act of 1873 provided that in the meantime the judges of the existing Provincial Courts should exercise, under regulations cou- tahied in it, the same jurisdiction. It did not, indeed, say the Courts ; it said the judges of the Courts ; and that is really in their Lordships' view the sole difterence, for this purpose, between the Act of 1873 and the Act of 1874. The Act of 1874 in substance does the same thing, except that in the definition clause it uses this language : — ** The expression ' the Court ' as respects elections in the several Provinces hereinafter mentioned, respectively, shall mean the Courts hereinafter men- ft- . B Br WWtint i i W I ^BiWifHffmi KM PRIVY COUNCIL. 105 tioned, or any ,ju-iri's of the Dominion Parliament ; and the correctness of this determination is the only question now in controversy. This, if not the most important, is one of the most important ijuostions that can come before this Court, inasmuch as it involves, in an eminent degree, the respective legislative rights and powers iif the Dominion Parliament and the Local Legislatures, and its logical conclusion and effect must extend far beyond the question 168 PRIVY COUN'CIL. Vamn V. LAN(iI,()IS Sup. C, Canada. Ritchi", C. now at issue. In view (tf the great diversity of judicial uiiiiiiim that ha3 cliaractcrized the decisions of tlic Proviiiciul trilximils in some Provinces, and the judges in all, while it would seiin ti justify tile wisdom of the Dominion Parliament in providiusr f,,|. I tiie establishment of a Court of Appeal such as this, where suili diversity shall bo considered and an authoritative deLlanitiou of tlie law be enunciated, so it enhances the responsibility of iliusc^ ciHimI on in the midst of sucli ccmtlict of opinion to declare authoiilativtly the principles by which both Federal and local legislation are governed. Previously to Confederation, the Governor or Lieuteuantfiov ernor, Council and Assembly in tlie respective Province.s of Canada, Nova Scotia, and New Brunswick, formed a legislative body of the Province, subordinate, indeed, to the Parliament of the niutlki country, and subject to its control, but, with thin restriction, having the same power to make laws binding within the Province that the Imperial Parliament has ii the mr)ther country; and the propriety and necessity of such en ictments were within the Cdin- petency of the Legislature alone to determine. As the House of Connnons in England exercised sole jurisdiction over all mutters oonnected with cimtroverted elections, except so far as they may have restrained themselves by statutory restrictions, the several Houses of Assembly always claimed and exercised in like niiumer the exclusive right to deal with, and be the sole judges of, election matters, unless restrained in like manner, and this claim, or the exercise of it, I have never heard disputed ; on the contrary, it is expressly recognized as existing in the Legislative A.sseniblics by the Privy Council in Tlu'hi'.i-ije, v. Laudrii (I). When the Provinces of Canada, Nova Scotia, .vnd New Brunswick sought "to be federtally united into one Dominion, under the Crown of the United Kingdom of Great Britain and Ireland, with a constitution similar in principle to that efore 1770, controverted elections were tried and determined by tho whole House of Commons, or, for a time, by special committees, and by committees of privilejj'es and elections. This was succeeded by the Grenville Act, the principle of which was to select committees for the trial of electimi petitions by lot. Tiiis Act, in 1773, was made perpetual, but not without the expression of very strong opinions against the limita- tions imposed by it upon the privileges of Parliament. (2) In 1839, an Act passed (Sir Il F I'll 'J II '1 T 172 P1U\ V <()IN(II,. Valin ?'. Lanhloi.-. Sup. C, ('uim Scmitt' ami lluii.ii> nf < nnini,,,,^ thidiyli, nf couTHo, tlniHi! iiii^'Iit, iiu-idontiilly, if mi |iim\ idid, oim, witliiii till" jiirisilic'tiun nf such tiilmiiiilH ; tluit tlin iprn|icTty jii,|| I'ivil iii,'lits rufi'iTod to woro imt all prnpi'ity luiil all civil liyhts JtitdiU', < . .r. ''ut that tho tonus " iiroporty and civil rights ' must iiecu.ssarily 1)0 read in a restricted and limited sense, liecause many mutter! involving pmjierty and civil riyhta are expressly reserved to thu Dominion Parliament, of wliieh the first two item<» in the emiiuura- tiim of the classes of subjects to which the exclusive lei.'islatiiiii(if tho Parliament of Canada extends are illustrations, viz. : - 1. '•Th,. public debt and property;" 2. " The regulation of trade and cmn. merce ;" to say nothing of "beacons, buoys, light -houses," utc.,' "navigation and shijjping," "bills of exchange and proinissniy notes," and many others directly atleeting i>roperty and civil rights ; that neither this, nor the right to organize I'roviiicial Courts by tho Provincial Legislatures, was intended in any way ti> interfere with, or give to such Provincial Legislature.'^, any riglit tn restrict or limit the powers in other parts of the statute conferreil on the Dominion Parliament ; that the right to direct tiio proci'diiic in civil matters in those courts had referv^nce to the proceduu ,„ matters over which the Provincial Legislature had power to ^ivo those courts jurisdiction, and did not in any way interfere with or restrict tho right and power of the Dominion l*arlianient td direct the mode of procedure to be adopted in oases over whicliit has jurisdiction, and where it was exclusively authorized and em- powered to deal with the subject-matter, or take from the existiii;; courts the duty of administering the laws of the land ; and that the power of the Local Legislatures was to be subject to tho general and speciiil legislative powers of the Dominion Parliament. But while the legislative rights of the Local Legislatures are in tliis sense subordinate to the right of the Dominion Parliament, I think such latter right must be exercised, so far as may be, consistently with the right of the Local Legislatures ; and, therefore, the Do- minion Parliament would only have tho right to interfere with property or civil rights in so far as such interference may \w necessarj' for the purpose of legislating generally and efloctually in relation t*^ matters contided to tho Parliament of Canada. It is, I think, to sect. 91, in reference to the legislative authority of the Parliament of Canada, and to sects. 18 and 41, conferrin.: privileges on the Senate and House of Commons, and legislative power over the trial of controverted elections and proceedings . , I iMiiaaiftfWiifTi WMn i ifci ft'i i ir ii " i'iWJirtiriwii ■w^ ' M PHIVY COINCIL. 17.*5 • ciileiit tliL-rctn, thiit wo iniwt I«Mik, t«> a»cortiiin whutliur tlio Pur- Vamn liamt'iit of the Dominion, in euactinij the 37 Vict. civp. 10, oxceodt^d L,\n(ii,oih. its iMiwers, »'i'criii»»'. I think, all the other sections coiiforrin-,' U'i,'iH- s.i~^. Itivc poHiTS iiuiit ho ri-a«l as siibor *" ^'"-* I'articubir auhject-nmtter tiiiis leyislatiMl (,11 and wI.hIi, I tliink, it was inten> div ated itself of it conferred wliiiliy and exclusively on the Parliament of the Donuuion. The Parlianient of (Jreat Bii" '.i, with referLiicc to the power iiiul privileges of the Parliani.-nt of the 'luminion of Canada, and witli reference to thu trial of controv, rte » elections, has made the Piirliainunt of the D< minion an ij.dep«.ndent and supreme Parlia- ment, and given to it power to legislate on those subjects in like nanner ivs the rarliainent of England could itself legislate 'ii them. It is a constitutional ;,'rant of privileges and powers which cannot be lestrietud or taken away except by the authority which con- ferred it, and any power given to the L<.-cal Legislatures must be subordinate thereto. • The case of the Qnevn v. Bxrah (1) enunciates a principle very applicable to thi.s case. The marginal note is : "Where plenary powers of legislation exist as to particular sub- jects, whether in an Imperial or in a Provincial Legislature, they may be well exercised either abs^dufely or Cfinditionally ; in the latter case leaving to the discretion of some external authority the time and manner of carrying its legislation into eti'ect, as also the area over which it is to extend.' And Lord Selborne, delivering the judgment of the Privy Council, said : "But their Lordships are of opinion tliat the doctrine of the majority of the court is erroneous, and that it rests upon a mis- (1)3 App. Ca«.889. If ', 174 PRIVV COUNCIL. 5", I 1 i I ifi! V'alin V. Lan(;i, v.s. Sup. C, Canada. Ritchie, C. J. taken view of the powers of the Indian Legislature, and indeed of the nature and principles of legislation. The Indian Legislature has pcnvers expressly limited by the Act of the Imperial Parliament which created it, and it can, of course, do nothing beyond the limits which circumscribe those powers. But, when acting within those limits, it is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of legislation, as large and of the same nature as those of Parliament itself. The established Courts of Justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine that (]uestion ; and the only way in which they can properly do so, is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they are restricted. If what has been done in legislation is within the general scope of tlie affirmative words which give the power, and if it violates no express condition or restriction by which that power is limited (in which category would, of course, be included any Act of the Imperial Parliament at variance with it), it is not for any Court of Justice to inquire further, or to enlarge constructively those conditions and restrictions." ■Whether, therefore, the Act of 1874 established a Dominiuii Election Court or not, I think the Parliament of the Dominion, in legislating on this matter, on which they alone in the Dominion could legislate, had a i)erfect right, if in their wisdom they deemed it expedient so to do, to confer on the Provincial Courts power and authority to deal with the subject-matter as Parliament sliouM enact ; that the legislation, being within the legislative power mn- f erred on them by the Imperial Parliament, their enactments in reference thereto became the law of the land, which the Queens Courts were bound to administer. I am at a loss to discover how the conferring of this jurisdictinn on the Judges of the Su])reme and Su])erior Courts, and on thoS'.' Courts, in any way interferes with or aftects, directly or indirectly, the autonomy of the Provinces, or the right of the Local Leijishi- tures to deal with such property and civil rights in the Pr(n'inces, and the administratiim of justice in the Provinces, including tik constitution, maintenance and organization of Provincial Courts. both of civil and criminal jurisdiction, and including procedure in such civil matters in those courts, as tlie Local Legislatures liavc a right to deal with, leading, of course, those matters so to be dealt I'RIVY COUNCIL. 175 with as subject and subordinate ti> the superior powers and au- Valix thority of the Dominion Parliament over all subjects not assigned Lanolow. exclusively to the Legislatures of the Provinces, of which subjects "' pre-eminently prominent as Ijeyond the jurisdiction or control of Canada, the Local Legislatures stand the privileges, immunities and powers RitohiM^". J to be lield, enjoyed and exercised by the Senate and by the House of Commons, and by the Members thereof respectively, and all rii^hts connected with the (jualitications and disqualifications of persons to sit or vote as Members of the House of Commons, the voters at the election of such Members, the Returning Othcers, the proceedings at elections, and the trial of controverted elections, and all proceedings incident thereto. Transferring this new and peculiar jurisdiction vested in the House of C amnions io the Supreme and Superior Courts — in other words, substituting tliose courts in place of the House of Commons in relation to these matters, with which the Local Legislatures have nothing whatever to do — can, in no way that I can perceive, militate ajijainst, or derogate from, the right of the Local Legisla- tures to make laws in relation to all subjects or matters exclusively reserved to them. Nor can I discover that, in so substituting the Judges of the Supreme and Superior Courts, the Parliament of the Dominion has in any way transcended its legislative powers. These courts are surely bound to execute all laws in force in the Dominion, whether they are enacted by the Parliament of the Domini(m or by the Local Legislatures respectively. They are not mere local courts for the administration of the local laws passed by tlie Local Legislatures of the Provinces in which they are organized. They are the courts which were the established courts of the re- spective Provinces before Confederation, existed at Confederation, and were continued with all laws in force, "as if the union had not been made," by the 12!)th sect, of the B. N. A Act, and sub- ject, as therein expressly provided, "to be repealed, abolished or altered by the Parliament tjf Canada, or by the Legislatures of the respective Provinces, according to the authority of the Parliament, or of that Legislature, under this Act." They are the Queen's Courts, bound to take cognizance of and execute all laws, whether enacted by the Dominion Parliament or the Local Legislatures, provided always such laws are within the scope of their respective legislative powers. ' If it is ultra vires for the Dominion Parliament to give these courts jurisdiction over this matter, which is peculiarly subject to r ■; Valin V. Lanolois. Sup. C, ( 'anada. Kitchie, C. J. «• 176 PRIVY COUNCIL. the legislative power of the Dominion Ptarliament, must not the same principle apply to all mjvtters which are in like manner exclu. sively within the legislative power of the Dominion Parliament And, if so, would it not follow, that in no such case could the Dominion Parliament invoke the powers of these courts to cam- out their enactments in the manner they, having the legislative right to do so, may think it just and expedient to prescribe ? If so, would it not leave the legislation of the Dominion a dead letter till Parliament should establish courts throughout the Domini(.n for the special administration of the laws enacted by the Parlin. ment of Canada ? — a state of things, I will venture to assume, never contemplated by the framers of the B. N. A. Act, and an idea tn which, I humbly think, the Act gives no counteUcance ; on the con- trary, the very section authorizing the establishment by Parliament of such courts, speaks only of them as "additional courts for the better administration of the laws of Canada." It cannot, I think, be supposed for a moment that the Imperial Parliament contem- plated that until an Appellate Court, or such additional courts. were established, all or any of the laws of Canada enacted by the Parliament of Canada, in relation to matters exclusively coiifidel to that Parliament, were to remain unadministered for want of any tribunjvls in the Dominion competent to take cognizance of them. Whether, then, this Act is to be treated as declaring the courts named Dominion Election Courts, or whether it is to be treated a? merely conferring on particular courts already organized a new and peculiar jurisdiction, is a matter, to my mind, of no great import- ance, as I think, while they have clearly the power of establishing a new Dominion Court, they have likevnse the power, when lagis- lating within their jurisdiction, to require the established courts of the respective Provinces, and the judges thereof, who are appointed by the Dominion, paid out of the treasury of the Dominion, and removeable only by address of the House of Commons and Senate of the Parliament of the Dominion, to enforce their legislation. If the Dominion Parliament cannot pass this Act, this startlins^ anomaly would be produced, that, though with respect to the rights and privileges of Parliament the Dominion of Canada is invested with the same powers as at the passing of the Act pertained to the Parliament of Great Britain, and though exclusive jurisdiction over, and the exclusive right to provide for, the trial of contro- verted elections is specially conferred on the Dominion Parliament, and though the constitution of the Dominion is to be similar to I. .jMiMMMiiiii PRIVY COUNCIL. 177 that of Great Britain, there are, in connection with these privileges Vali.v and these elections, matters with which there is no legislative power LangYow. hi the country to deal ; for it is very clear that, as there is no pre- gu'j^',, nee for saying that the Local Legislatures have any legislative Canada, power or authority over the subject-matters dealt with by the Act, Kitchi^c. J. so nothing the Local Legislatures might say or do could affect the question, and therefore, however desirable, it might be universally admitted, that just such a tribunal for settling these questions should be established in the very terms of this Act, the Dominion would be in this extraordinary position, that no legislation in the Douiinion could af'complish it, for the simple reason that, if legis- lated on, as has been done by the Dominion Parliament, the legis- lation would be iiltra vires; any legislation by the Local Legisla- tures would, if possible, be even more objectionable, they not havin" a shadow of right to interfere with the rights and privileges (if Parliament, or the election of Members to serve therein, or to I'iitablish any tribunal whatever to deal with or affect either, as the whole and sole legislative power to intermeddle or deal with such rit'lits and with elections and controverted elections is conferred on and vested in the Dominion Parliament alone. To iiold that no new jurisdiction, or mode of procedure, can be imposed on the Provincial Courts by the Dominion Parliament, in its legislation on subjects exclusively within its legislative power, is to neutralize, if not to destroy, that power and to paralyze the legislation of Parliament. The statutes of Parliament, from its first session to the last, shew that such an idea has never been entoi'tained by those who took the most active part in the estab- lishment of Confederation, and who had most to do with framing the B. N. A. Act, the large majority of whom sat in the first Par- liament. A reference to that legislation will also shew what a serious effect and what unreasonable consequences would flow from itsadipption. There is scarcely an Act, relating to any of the great public interests of the country which have been legislated on since Con- federation, that must not in part be held ultra vires if this doctrine is well founded, for in almost all these Acts provisions are to be fouiul, not only vesting jurisdiction in the Provincial Courts, but also regulating, in many instances and particulars, the procedure in such matters in those courts, as a reference to a numbc" T sliall cite will abundantly shew. In the first session of the Dominion Parliainent, in the Act 12 ■> t TT 178 PKIVY COUNCIL. ii ' i Valin V. Lanokois. Sup. C, Canada. Ritchie, C. J. respecting Customs, 31 Vict. cap. 6, by sect. 100, all penalties and forfeitures relating to the Customs or to Trade and Navigation unless other provision be made for the recoveiy thereof, are to be sued for by the Attorney-General, or in the name or names of some officer of Customs, or other person thereunto authorized by the Governor in Council, and if the prosecution be brought before any County Court or Circuit Court it sliall be heard and detennined in a summary manner upon information filed in such court. Ami bv other sections special provisions are made for the mode of pig. cedure in reference to cases of this description, as also fur the protection of the officers, entirely different from the procedure in ordinary civil cases. So, also, by the Act respecting the Inland Revenue, 31 Vict cap. 8, provisions are made for the pi'otection of the officers of tho Inland Revenue, whereby the proceedings in the Pi-ovincial Courts are restrained and regulated. And by 31 Vict. cap. 10, for rogu. lating the Postal Service, the enactments of the Acts resi)ectin:' Customs, more especially for the protection of officers, are extended and applied to officers employed in the Post Office. And in the Public Works Act, 31 Vict. cap. 12, sec. 48, all costs in awards made by the arbitrators under that Act , where the awaid is in favour of the claimant, shall be taxed by the proper officer nf the Court of Queen's Bench, Supreme Court, or Common Pleas, in the Provinces of Ontario, Nova Scotia and New Brunswick, and in Quebec by a Judge of the Superior Court. So by the 31 Vict. cap. 15, sect. 7, of the Act to prevent unlawful training to the use of arms, provision is made for tlie protection of Justices and others acting under this Act, wliidi regulates in a very special manner the procedure in all courts where such actions may be brought. So by the 31 Vict. cap. 17, an Act for the settlement of the affairs of the Bank of Upper Canada, authority was given to the Court of Chancery, or a Judge thereof, to make orders and direc tions with reference to the trust therein referred to. So by the 31 Vict. cap. 23, an Act to define the privileges, etc., of the Senate and House of Commons, and to give necessary pro tection to persons employed in the publication of Parliamentary papers, provision is made on certificate ol Speaker of either House for the immediate stay of, and putting a final end to, all civil ur criminal proceedings in any court in Canada. So under the Trade Mark and Designs Act, 1868, in case any PRIVY COUNCIL. 171) Canada Ititohie, C r person not being the lawful proprietor of a design bo registered aa Vali>< iiroprietor thereof, the rightful owner ia authorized to institute an Langlols, action in the Superior Court in Quebec, in the Court of Queen's SupTc'., 15ench in Ontario, and in the Supreme Courts of Nova Scotia and \ew Brunswick, and the course of procedure is pointed out and specially regulated. So under 31 Vict. cap. 61, respecting fishing by foreign vessels, snecial provisions fire made for the protection of ofhcers by rogu- latinf the issuing of writs, and otherwise regulating the proceed - iii>T3 in informations and suits brought under the Act. So with respect to the Act relating to aliens and naturalization, ;51 Vict. cap. OO, duties are imposed on the Judges of any Court of Record ia Canada, and on the Provincial Courts therein named, 113 to admitting and confirming aliens in all the rights and jirivi- It'i'es of British birth, and directing the mode of procedure in such eases. So by the Railway Act, 18G8, 31 Vict. cap. 68, sect. 15, the duty iif appointing arbitrators is imposed on a Judge of one of the Superior Courts in the Province in which the place giving rise to the disagreement is situated. So, also, by sub-sect. 13 as to ordering notices, and by sect. 15 as to appointing sworn surveyors ; 19, as to taxing costs ; 22, appointing, on death of arbitrator, another ; 24 and 25, vesting in .Iiulge the summary power of determining the validitj' of any cause (if disqualification urged against arbitrator ; 27 and '28, power to Judge to issue warrant to Sherift" to put company in possession of laud under award or agreement ; and in many other matters in said Act quite distinct from the jurisdiction and procedure in ordinary civil cases. 32 and 33 Vict. cap. 11, patents for inventions : Provision is made for actions for infringement and impeachment of a pateni, luul for power of courts and procedure and pleading in such cases. And notably, with respect to insolvency, by tlie first Insolvent Act, 1809, and Act in amendment thereof of 1870, summary juris- I ilitiion is given to judges and courts, and appeals to judges and fiiiui judges to courts, and Provincial Courts are clothed with [wwers, and modes of procedure are given them, which the Local Legislatures could have no right to confer, as they have no right to kgislate on the subject matter of insolvency. And in Ontario, the Judges of the Superior Courts of Common Law and of the Court of Chancery, or any five of them, of whom the Chief Justice of On- Hi Valin Lanoloi- Kup. C, Canaila. Ritchie, C. i f 1 lu.iiiii 180 PRIVY COUNCIL. tario, or the Chancellor, or the Chief Justice of the Common Pleas , shall be one, are required to make and settle auch forma, rules and regulationa as shall be followed in the proceedings in Chancery (.siV). And in Nova Scotia an entirely new jurisdiction is given in insol. J vency to the Probate Courts or judges of probate, which they never in any way before possessed. And as to banks and banking, 34 Vict. cap. 5, jurisdiction in a summary manner is given to the Superior Courts of Law and Equity to adjudicate as to the parties legally entitled to shares, and the mode of procedure is there pointed out. And as to the Public Lands of the Dominion, 35 Vict. cap. 23, a summary remedy is given to a judge of any court, having cum- petent jurisdiction in cases respecting real estate, to grant an order which shall have the force of a writ of Hub. Fac. Pos. , upon proof to his satisfaction that land forfeited should properly revert to the Crown, to deliver up the same, etc. , and the mode of procedure is provided by the Act. 37 Vict. cap. 45, Inspection of Staple Articles, as to actions nr suits against any person for anythim done in pursuance of this Act, limitations and restrictions are imposed and directions given as tu procedure before and at trial and on giving judgment. I do not, of course, put forward this legislation as in itself in any way determining, or even as confirmatory of the right of tlie Do- minion Parliament so to legislatr , for it ia too clear that if tliey dn not possess the legislative power, neither tlie exercise nor the con- tinued exercise of a power not belonging to them could confer it ui make their legislation binding. But I put forward these Acts as illustrative of the powerlessness, or perhaps I should rathor sav helplessness, of the Dominion Parliament, if they have not the right to legislate without control in the most full and ample man- ner over all matters specially or generally confided to them by the Imperial Parliament, and over which all must admit they have sole control, without being met by so etl'ectual an obstruction, in givin;.' effect to such legislation, as by closing the Queen's Courts against the administration of laws so enacted by and under the antliority of the Parliament of Great Britain, by virtue of which the Dn. minion and Provincial constitutions now exist, and also as illustra- tive of the utter want in the Dominion, if the Dominion Parliament does not possess it, of any legislative power to meet emergencies requiring legislative control in matters so unequivocally att'ecting the peace, order and good government of Canada, so clearly taken PRIVY COUNCIL. 181 from the Provincial Assemblies and contided to the Parliament and Valin Government of Canada. Langlois, But I have had no great difficulty in arriving at the conclusion g^ITc that this Act substantially establishes, as the Act of 1873 did, as Canada. respects elections, a Dominion Court, though it utilizes for that lutcliie, C. J. i)iirpose the Provincial Courts and their Judges. In considering the B. N. A. Act, in the view just presented, as also the Dominion Act on the point to be now discussed, the following extract from the judgment of Turner, L. J., in HaiL-kins v. Gathercole (1), may not be inapplicable here. He says :• " But, in construing Acts of Parliament, the words which are used ;vre not alone to be regarded ; regard must also be had to t'-.e intent and moaning of the Legislature. The rule on this subject is well expressed in the case of Htradling v. Morgan in Plowdeu's l^eports, in wiiich case it is said at page 204 : ' The judges of the law in all times past have so far pursued the intent of the makers of statutes, that they have expounded Acts which wove general in words, to be but particular where the intent was particular.' And, after refer- rin" to several cases, the report contains the following remarkable passage at page 205 : ' Fi'om which cases it appears that the sages of the law heretofore have construed statutes quite contrary to the letter in some appearance, and those statutes which comprehend all things in the letter, they have expounded to extend but to some thiiiijs, iind those which generally prohibit all peojile from doing such an act, they have interpreted to permit some people to do it, and those which include every person in the letter, they have adjudged to reacli to some ])erson3 only, whicli expositions have alway.) been founded upon the intent of the Legislature, wliich they have collected, sometimes by considering the cause and necessity of making the Act, sometimes by comparing one part of the Act with auiither, and sometimes by foreign circumstances. So that they have ever been guided by the intent of the Legislature, which they have always taken according to the necessity of the matter, and according to that which is consonant to reason and good discretion. ' " The same doctrine is to be found in Eijftoth v. St)idd and the note appended to it, also in Plowden, pp. 459, 4G5, and many other cases. Tiie passages to which I have referred, I have selected as .'ontaiiiiug the best summary with which I am acciuainted of tlie law upon this subject. In determining the question before us, we (l)GDeG., M. &G., .at p. 20. 11 i^h HI! lii i. 182 PRIVY COUNCIL. Vaun have, thoreffire, to consider, not merely the words of the Act of Lanolois. Parliament, but the intent of the Legislature, to bo coUectud finin u p, the cause and necessity of the Act being made, from a conipari. Canada. son of its several parts, and from foreign meaning and extrauomis Uitobie, O. J. circumstances, so far as they can justly be considered to throw Ijirlit upon the subject." In seeking to discover the intention of the Dominion Parliament, if Parliament had no power to add to the jurisdiction of a Provin- cial Court, or in any way interfere with its procedure, one is struck at the outset with the strong, if not irresistible, inference that this raises, that the intention of Parliament must have been to estah- lish an independent tribunal in the nature of a Dominitm Court, and not to add to the jurisdiction, or affect the procedure, of Provincial Courts, because it must, I think, be assumed that Parlia- ment inten«led to do what they have a right to do, to le!,'islatc legally and effectively, rather than that they intended to do wlwt they had no right to do, and which, if they did do, must necessarily be void and of no effect ; and having established a Court by tlie Act of 1873, which it seems to bo admitted is i)itr(i vurn, is it reas(.)nable to suppose that Parliament would repeal a valid enact- ment, and for the accomiJishment of substantially the same oLject, sub.stitute in its place a law beyond their powers to enact, and which, therefore, could be nothing but a dead letter on the Statute Book ? But as, for the reasons I have stated, I think, even if a distinct and independent court is not created, the Act is not beyond the power of Parliament, I cannot invoke this inference, as it appears to me those holding the contrary opinion might and should do. But, independent of all this, the Act seems to contain within itself everything necessary to constitute a court. The jurisdiction is special and peculiar, distinct from, and inde- pendent of, any power or authority with which any of the court?. or the judges referred to in it, were previously clothed. The .\ct conferring this jurisdiction provides all necessary materials for tin' full and complete exercise of such jurisdiction in a very special manner, wholly independent of, and distinct from, and at variance with, the exercise of the ordinary jurisdiction and procedure of the courts. The rights which are to be determined through the instrumen tality of this new jurisdiction are political rather than civil rights, within the usual ireauing of that term, or within the meaning of itglASSISBi^sas FUIVY COUNCIL. 183 that term as used in the B. N. A. Act, which, as I have said, applies, Valin V. in my opinion, to mere limited civil ri{,'ht8, and thus we find them r,AN(i"i.oi8. treated in the case of TMbnge v. Landry (1), which was an applica- g„"j7^^ to the Privy Council for special leave to appeal from the decisicm tioni Canada. ,,f the Superior Court of Quebec, under the Controverted Election Kitohie, C. J. Vet 1876, declaring an election void, which was refused. The Lord Cliancellor in that case speaks of the Quebec Contro- verted Election Acts thus : "These two Acts of Parliament, the Acts of 1872, 75, are Acts oeculiar in their character. They are not Acts constituting or pro- vidin" for the decision of mere ordinary civil rights, they are Acts creiitin" an entirely new, and up to that time unknown, jurisdic- tion in a particular court of the colony, for the purpose of taking ,,ut with its own consent, of the Legislative Assembly, and vesting in that court that very peculiar jurisdiction which, up to that time, liad existed in the Legislative Assembly, of deciding election peti- tions, and determining the status of those who claimed to be mem- bers of the Legislative Assembly. A jurisdiction oi that kind is extremely special, and one of the obvious incidents or conseiiuences iif such a jurisdiction must be that the jurisdiction, by whomsoever it is to be exercised, should be exercised in a way that should as sonn as possible become conclusive, and enable the constitution of the Legislative Assembly to be distinctly and speedily known. " Now, the subject-matter, as has been said, of the legislation is extremely peculiar. It concerns the rights and the privileges of the electors, and of the Legislative Assembly, to which they elect .iienibers. Those rights and privileges have always, in every colony, following the example of the mother country, been jealously main- tahied and guarded by the Legislative Assembly; above all, they hcive been looked upon as rights and privileges which pertain to the Legislative Assembly in complete independence of the Crown, 50 f.ar as they properly exist, and it would be a result somewhat surprising, and hardly in consonance with the general scheme of the legislation, if, with regard to rights and privileges of this kind, it were to be found that in the last resort the determination of them no longer belonged to the Legislative Assembly, no longer belonged to the Superior Court, which the Legislative Assembly had put in its place, but belonged to the Crown in Council with the advice of the advisers of the Crown at home, to be determined with- J» 11 m m • .( ir t I (1) 2 App. Gas. 102. 184 PRIVY COUNCIL. Vaun LANilliUIH. Sup. C, Canada. Uitchie, C. J. m out reference either to the judgiuent of the Legislative Asseiiiblji or of that court which the Legislative Assembly had substitutud in its place." The object of the Act of 1873 and that of 1874 wa« the same, the recitals in both are precisely alike, and the provisions are in many respects substantially the same. That object was to establish aini substitute entirely new tribunals for the trial of election petitions, in lieu of the committees theretofari materia with that of 1874, misjlit properly be referred to for the purpose of construing the Litter (1), (1) See ex parte Copetand, 2 De G. M. & G., 920, where Lord Justice Knight Bruce says ; " Although it has been repealed, still, upon a question of construction arising upon a subsequent statute on the same branch of the law, it may be legitimate to refer to the former Act. Lord M.ansfield, in the case of The King v. Lnxdalc, thus lays down the rules : ' Where there are different statutes in pari materid, though made at different times, or even expired, and not referring to each other, they shall be taken and con- strued together as one system and us explanatory of each other.'" 1 Burr, 44. PHIVY COUNCIL. 185 OS I think a caroful and critical examination of the Act of 1874 will hibit an evident intention that, as the first tlid, so does the last tiiblish an indci)endent Dominion Election Court. Tliis is more especially noticeable with reference to the enact- leiits iiiulur tlie hojidings "interpretation clauses," "proce- dure" "jurisdiction and rules of court," " recepticm and juris- liction of the judge," "witnesses," and the provision as to who may practise as agent or attorney, or as counsel in such courts in the case of sucli petitions, and all matters relating thereto before the court or judge. I will only notice more particularly some of tliem. Ist. The power given to make rules. It provides that the judces of the several courts in each Province, respectively, or a majority, which, in Ontario, would include the Judges of the Court of Error and Appeal, Queen's Bench, Common Pleas and Court of Cliancery, shall make such rules, and until such rules are made, "the principles, practice and rules on which petitions touching the election of members of the House of Commons in England are, at the passing of this Act, dealt with, shall be observed," etc. 2nd. As to the reception, expenses and jurisdiction of the judge. The judi^e is to be received not as a Judge of the Superior Court in that cliaracter, but as a Judge of the Election Court, in like manner as if lie were about to hold a sitting at nwi prius, or a sitting of the Provincial Court of which he is a member, shewing that the Legis- lature (lid not contemplate that he was then actually about to sit as a member of the Provincial Court, but as being about to try an election petition, and when about to do this he is to be treated as if he were about to hold a sitting of the Provincial Court of which he is a member, and when his powers in such a trial, and in other proceedings under this Act, are defined, he is not treated simply as a Judge of one of the Superior Courts upon whom, as such, further juriadiction is conferred, but similar powers, as such judge, are iriven him in the court held by him, and that court so held by him is declared to be a Court of Record, indicating, I think, very clearly, that the court was treated by the Legislature as distinct from a Provincial Court, and required this statutory declaration to make it a Court of Record, and that the judge was not to be considered as then acting as a judge of a Provincial Court, nor the trial as a trial in such a court. The words of the clause, sect. 48, are these : " On the trial of an election petition, and in other proceedings under this Act, the judge shall, subject to the provisions of this Valik V. L.VNULOIS. Sup. C, Canada. Uitcbie, C lifi ^ili 180 rmvv couxrii,. Valin V. Lanoloih. Sup. C, Canada. BH(!hie, 0. .1. mi Aut, havo the naino pov ors, jurisdiction and authority aa a jiid't; ,,j one of the Superior Courts of Law or Ecjuity for thu Province in which Buch oloction was hold, sitting in term, or prosidini^ at th.. trial of an ordinary civil suit, and tho Court held by him for gudi trial shall bo a Court of Record." So, in like manner, are tho witnesses treated asbeinj; 8ul)ii(i;n;ie,| sworn and treated, not as boiny actually withni tlio jurisdicHnii ,,[ the Provincial Courts, but section 40 declares that they — '* Shall be subpiunaed and sworn in tho same manner, as nomiy ;„ circumstances will admit, as in cases within the jurisdiction nf tin; Superior Courts of Law or E([uity in tho same Province ; iiiiil slmll be subject to tho same penalties for perjury." So, again, in tho provision made for rogidating the [u'lsons entitled to practise as attorneys or barristers before tlie tribunal thus established, such tribunal is very clearly distinyuisliocl finm tho Provincial Courts. Tho clause, sect. 07, is this: " Any person who, according to the law of tho Province in w • a tho petition is to bo tried, is entitled to practise as an attoriicyiit law or solicitor, before the Superior Courts of such Province, luil who is not a member of the House of Commons, may practise as attorney or agent, and any person who, according to sucii law, is entitled to practise as a barrister-at-law, or advocate, l)eforo such courts, and wlio is not a member of the House of Conimon.H, may practise as counsel, in the case of such ])etition, and all niiitturs relating thereto, before tho court or judge in such Province." Reading those special provisitms in cimnection with tho Act of 1873, and wliat has been said of tho Act generally, T think it is not arriving at a forced or unnatural conclusion to say that that I'ailia mont intended to establish Dominion tribunals o.xce[)ti(iual in their jurisdiction, perfect in their i)rocedure, and with all materials for exercising such jurisdiction, and having nothing in coniraoii with tho Provincial Courts ; that these judges and courts were merely utilized outside their respective jurisdictions for giving full effect to those statutory tribunals to deal with this purely Dominimi matter. An objectifm has been suggested 1)y a learned judge, for whose opinion I have the very highest respect, and which has been treateil as of much force by another learned judge of a different Province, and on that account I will notice it. It is said that, if this is a court distinct from the courts of which the judges are primarily members, the judges have never been appointed thereto by the I'RIW roI'N'CM,. 187 .1 .„ „,,!• swoni a« juil:^*?« thereof, and tlioroforo thoy aro iint udiri'tt "f tf>'" "*^*^ tribunal, if, ns such, it oxistB. hut, in my huniblo opinion, there in no force in thin olijccHon. Tho judges iMiuire nil ne"' piM>intment from the Crown ; they are Statutory Iiul"t'8 in (JontroveiteU Election niattcra by virtue of an expn as ■nactiiH-nt l)y conjjietent let^iMlative autliority. Tho statute makes tho judges for the time bein*; of the Provincial Courts, judges of these peculiar and special courta. The Crown has assented to that statute ; therefore they are judges by virtue of tho law of tho Dominion, and with the Royal sanction and approval. As to their not being sworn, the statute has not provided they should bo sworn. If, Jieing sworn judges alreaily, the Legislature was willing to entrust them with the |M.wer conferred by this Act, without roquir- iiii' tlit'iu to be swoni anew, how does this invalidate the Act, and hiiw wm the judges refuse to discliaige the duties thus by law im- l)03i;il on tiieni, because, it may be, the Parliament iniglit, or ouglit tohivve gone further and requirefl the judges to be sjHicially sworn faithfully to discharge these 8f»eoial duties ? Under the law of 187'), tlie juilgi'S iu all the Proviiices acted in what, it is ad'.nitted, wore new Dominion Courts, without being specially apjujinted or sworn, the statute not requiring either, and I have yet to learn that their proceedings on that account ever have been or ever could be iiuestioned. As, then, I can see no reas'ms why the Dominion Parliament K)th, whom they appoint and i)ay, and can by address remove, power to determine controverted elections, the tilling of which, not lieing inconsistent, or in any way in conflict with their iluties as judges of their respective courts, but, on the rontriiry, as shewn by the preJ'ent legislation of all the Provinces in reference to controverted elections in the Local Legislatures, in s(i acting they are most suitable and proper tribunals, and as t!ie Imperial Parliament has left it to the Parliament of Canada lo [iriivide for the trial of controverted elections and proceedings incident thereto, and they have discharged this duty by the Statute of 1874, utilizing existing judicial officers and established ciurts, by engrafting on, or establishing independent of, those lourts throughout their respective Provinces tribunals emmently jualified to discharge the impmvv COUNCIL. 191 Is already existing for the execution of federal laws, since this Valin )Oweris given to be exercised only "from time to time," in the Lang'lois. words of tiic section- -that is to say, in the event of the existing sJpTc.. biinals becoming, for any reason, incapable of executing the Canada. f ileral laws. If this section was not intended to recognize the Fournier, J. •istence of a federal judicial power, it would have been differently 1 ^^.^—it would have been just as easy to have directed the im- mediate creation of a Court of Api)eal, or of any other tribunal, as liave allowed their creation at some future time. If this was not done it was, doubtless, because the judicial power, whose existence -IS preserved by sec. 129, was recognized as being still sufHcient f(ir the re(|uirements of the country for a long time, and the power til create new tribunals was prudently lef*^ to be exercised in the tiituro according to circumstances. Certainly sec. 101, which gives (iiilv all optional power, caninjt be relied on to prove tliat the authors of Confederation created a judicial power suitable to the immediate needs of Confederation. It is by other sections that a judicial ,,r"anization has been effectively established and completed, in such ;> manner as to come into existence at the same time as the consti- tutional Act itself. This organization depends upon various [trovisions of the B. N. A. \ct to wliich I shall allude after having mentioned those on which reliance is most strongly placdl for contesting its existence. The opponents of the constitutionality of the law in question found their principal arguments v»ii sub-sections 13 and 14 of sec- tion 92, giving to the Legislatures exclusive jurisdiction over ■property and civil rights in the Province,"' and " the administra- tion of justice in the Province,"' including the constitution, main- tenance and organization of Provincial Courts, both of civil and criminal jurisdiction, and including procedure in civil matters in those courts. I admit, without hesitatif the H. X. A. Act, above citoil, a ooniiilete justitication of the power oxercised, I liave not thouglit it uocossary to go furtlier. From what precedes, I draw these conclusions : — 1st. That para- 'i^TiipIis !•' !i"'^ 14 of sect. 112 liavo not tlie etl'ect of depriving the Fedoriil Parliament of the jurisdiction which it has exercised in aJoptin!.' the law in ((Uestion 2nd, That the general powers of sect. !•! and those of sect. 41 are suHicient to authorize this legisla- tidii. 3rd. That sect. 120 gives it the right to re(]uire the Pro- vincial Courts to execute the law in ([uestion, as wcdl as tiie other Federal laws adopted within the limits of its powers. Henky, J. :— The determination of the issue raised by the preliminary objection in tliis ease, to the authority of the learned judge who presided at the trial of the petition, touching and i[U03tioning, as it does, the |)(iwer of tile Parliament of Canada to i)ass the Act under which that trial was being had, being most important, demanded and has received my most diligent study and consideration. I have care- fully read and weighed all the judgments upon the subject ilelivered in Ontario, Quebec and New Urunswick. as well as the several statutes jjcaring upon it, and will endeavour, brietly, to give the conclusion at which I have arrived. Aftsr mature consideration of the legitimate sources from which the power to try the mexuts of an election petition against the return of a Member of the House of Commons, which is now rjuestioned, is derived, I have arrived at the conclusion that nuich has been written, many arguments used, i)ositions taken, and tlieuries advanced that are wholly unnecessary. Arguments have been advanced from premises which do not exist, the determination of which cannot atl'ect those that do, and upiin which latter alone we are bound to decide. Some learned judges contend for the existence of an inherent power in Imperial and Provincial Courts to try such petitions, and that that power always existed, though in a latent condition ; being controlled in England by the assertion of the House of Conunons of its exclusive jurisdiction, which, by degrees, became universally acknowledged as tlic law of the land, as being within the law and custom of Parliament ; and, in the several Provinces of the Dominion, by the assumption of a similar jurisdiction, and bj' statutes at ditl'eront thnes passed. That so existing, but its exercise prevented, it would assert itself at any moment when the controlling power was removed 1 !■ 1 Vai.in r. L.VNOI.OI.-*. «ni.. C , ('.iiiada. Fiiiiniiiir, I. vM w I! IS I'lUVV OiL-.\(I[, V'amn I'. Lanci.ois. Slip. (,"., CaiiiiilH. Hcury, J. tl; in t>y legislativi! eniictinent. By other learned judges the curreetin'Si. of tliis theory is disputed, and longtliy and exliaustive argunaiits lire advanced to establish the position that such a jurisdictiim nr power never existed. I do n((t think the settlement of that cmi. troversy at all necessary in the present case. In consideriui,' tlu issue before us, we are not driven to draw analogies in regard tn thecourts in England, and those of the several united Proviinus when we have sulHcient otherwise upon which to base our judgiiiLiit. It will be sufticient for us, and I thitik we are bound, to rest it di, the statutes inunediately applicable to the issue before us. We have, in the united Provinces, a written C(;nstitutiou t'lii i)raced in the Imperial statute, passed in 18G7, for the object ni uniting them. That statute contains the germs and distribution i: the legislative functions and powers U> be exercised in the general Parliament and the Provincial Legislatures, and to it we are iirtsi* tibly turned iov guidance ami direction. In framing that Act, one of the first considerations would W. and no doubt was, to prevent, if possible, conflict in legislation, a- between die genenal and local Legislatures ; but no one can r«id it without, seeing, from the necessarily peculiar distributi(jn of tii' legislative powers, the difhculty of doing so. The present case i^ a proof of it, as appears by tlie antagonistic judgments given in relation to the question at issue. I cannot better exhibit the ditti cidty just referred to, and the opportunity ofi'ered by the necessarily peculiar provisions for the distribution of legislative powers to raist a ([uestion of conflict, than by a reference to the matter of " civil rights." I need not define here what may be included by that comprehensive term. It is sufficient for my present purpose tu claim that a large portion of the "civil rights" are, legitimately and without question, affected, controlled and guarded by D' minion legislation, which interferes with and excludes local legisla- tion on many branches of "civil rights," although by the distribu- tion of legislative powers, "civil rights in the Province" is, liy sub-sect. 14 of sect. 92, awarded specially to the local Legislatures. There are but a small minority of the subjects given expressly to the Dominion Parliament that do not affect ' ' civil rights within the Province," and its whole legislation in respect of thuni is clearly an authorized invasion of the powers of local legislatiim conferred by the general term "civil rights in the Province. The whole purview of the Act, with a proper consideration of its objects, is evidence of its policy to limit local legislation to those ■•civil right I III the power In the Clin than our pri when an appi t'larguniunt.'' are apparent t(i give etlect sarily, some The openii that " It aha and coiisunt fnr the peace, all matters n .issijj'iied excl la followed b; should not res Had there 1 laws for the p have einljrace hut there bei and extent of late "in regai thU Ad assign It will be obse not refer us s tn the Act, t Local Legislaf result as the ] and unlimited Canada. Taking, ther bearings, whal matters r.rclu.i only such as h Sub-sect. 13 sive right to the Province, ' the Province, tion of Provii and including • ^..^^.^lAiMildi .«ulL PRIVY t'OUN'CIL. 199 • •civil riL'htH in the FVnviiico not iucluiled specially or uthurwiau 111 the powers given to the Dominion Piirliament. In the construction of one inirt of the Act, it is not less our duty In ,,j|r privilege to take into consideration every part of it ; and Hheiiiiu iipparent contiict is [tresented, we are hound to give weight to ari'Uiuents drawn from a due aj^jreciation of the objects which are apparent on the face of it, and, if possible, so to construe it as tiiL'ive etl'ect to all its provisions, and not so as to leave, unneces- sarily, some of them inoperative. The opening clause of nect. 01 of the B. N. A. Act, 1867, provides that ''It shall be lawful for the Queen, by and with the advice mill consent of the Senate and House of Commons, to make laws for the peace, order and good government of Canada, in relation to 111! matters not coming within the classes of subjects by this Act issi'iied exclusively to the Legislatures of the Provinces." This IS followed by a declaration tliat the annexed statement of powers should not restrict the general provision of the clause. Had there been no limitation in this clause, the power " to make laws for the peace, order and good government of Canada ' would have embraced every subject of legislation that could be presented, hut there being a limitation, it is necessary to ascertain the nature and extent of it. It withhokLs from Parliament the right to Icgis- hite "in regard to matters cmning within the classes of subjects hij //iM .4cf assigned excbisieehi tn the Legislatures of the Provinces.' It will be observed that the words of this clause " by this Act " do not refer us specifically to sect. 02 or its provisicms, but generally to the Act, to ascertain what is "exclusively" awarded to the Local Legislatures. We must look at the whoh' Act, and apply tlie result as the proper deduction from the otherwise comprehensive and unlimited powers given by the clause to the Parliament of Canada. Takinj^, then, the Act, and considering it in all its objects and bearings, what are the necessary deductions t(j be made for tliose matters cixhisivehj given by it to the Local Legislatures ? — for it is nnly such as have been so exrUiaively given that form the exception. Sub-sect. 13 of sect. 02 gives to the Local Legislatures the exclu- sive right to legislate in regard to " Property and civil rights in the Province," and sub-sect. 14, " The administraticm of justice in the Province, including the constitution, maintenance and organiza- tion of Provincial Courts, both of civil and criminal jurisdiction, and including procedure in civil matters in those courts." N'.M.IN c. bAN(;r.oiH. Sup. ('., < '.lllH'lu. llflllV, .1. I'll 'i^Mi( 200 IMIIVV corxriL. Valin V. Sui). v., Civnnda. Honry, J. 1^! !■'« What, tliLMi, (Icius till! torm oivil riylits in flf I'mrincr iiicliid,. LANn as diifering from ordinary civil rights. there is no such distinction ordained in England, where "civil rights " cover and include those which the learned judges call political only. I have read the judgment of the Privy Council referred to, and can tind in it no warrant for the allegation made in regard to it. " Political " rights are not mentioned as such, but 1. i| 202 I'KIVY (.'OrNCIL. Valtn La NO LOIS. Sup. C, ( 'anada. Henry, J. the judgment is founded on the denial of the right of the Soverei;]! to review the judgment of ii court under local statutea substitutintf it, in the trial of contested elections, for the Committee of the Lej- islative Assembly ; and vesting in that court a " ve.rij pecuUn r juru- (Iktion, which, up to that time, had existed in the Legislative Assembly." The judgment, so far from distinguishing between political and civil rights, refers to those involved as civil riglus, but not " ordhuiry civil rights." The right of the Local Legislatures to legislate as to civil riglits, as I have before stated, is subordinated to those civil riglits iii.r art'ected by Dominion powers of legislation and to those in (/. Province, and not including matters of a goieral character. The 14th sub-section gives local authority to deal with "admin istration of justice in tJie Province," which I construe to mean the power of legislating for the administration of justice in the Pidvince in regard to the subjects given by the Act, and, to that extent imly, to provide for " the constitution, maintenance and organization ui Provincial Courts," including the procedure necessary for tlie ail ministration of justice in reference to those and kindred subjects. I have not failed to notice the comprehensiveness of the provision, including as it does procedure in civil matters in those court?. These words, I hold, must be considered with the context and with the objects and other provisions of the Act, and common sense ami reason suggest how inartificial and incomplete the legislation iiius' bo that would confer unlimited power on the Dominion Pailiainciit to deal with a suliject such as the trial of contested elections, and leave the necessary procedti re to give effect to its legislation to Lncul Legislatures which one or more miglit not enact at all, oi- in such u way as to be useless, or by such measures as would, in one Provintw be essentially different from those in others. To contend that such was intended by the Act would, in my opinion, be a libel on the intelligence of the British Parliament. Although the contention against the right of the Dominion Parliament to provide for the procedure in contested election cases would apparently involve the absurdity I have just stated, such a position could not arise ; for, in cases where the machinery in the Provincial Courts is defective for the trial of contested elections, the Local Legislature has clearly no power to supply it. The right, therefore, to provide for the procedure in contested election cases is a necessary adjunct to the right to legislate at all in respect to them. Parliament, then, having, as I have endeavoured to maintain, . ^^^.;.4.MM«M«*^HlMnbM I'lllVV COL'N'CIL. 2().S '■^l' nlenai'V pnvvers over tl j wlinle subject, li;ul it the jiower to iniposo nil the Provincial Courts tlio duty of trying contestL-d elt'ctions '. Sect. l-'J oi the Imperiiil Act before uieutioiied, provides for the coutiiuiance of hiws as existing at the union. The only law then existing' in regard to the trials of contested elections, resulted from the inherent parliamentary right of tlie House of Commons to deal with tlieiu. No statute had then been passed to delegate the iiuthi'i'ity to a committee of the House or any other couit. The lii/ht of the House of Commons to receive petitions against the returns of its Members, and deal with them, was, nevertheless, as etfcctual as any statute could have made it, and was such a law as, iimlur the provisions of the latter clause of the section, might " be repealed, abolished, or altered by the Parliament of Canada. '" IJy the provisions of that section, as well as by the first clause of sect. Ill and sect. 41, the Dominion Parliament derived full a'.thority to .leal with the trial of contested elections. When having so dealt witii the subject, no person, high or low, can violate its legislation. Everyone is bound by its provisions and prescriptions, unless, indeed, they conflict with the Imperial Act, by usurping the powers (if the Local Legislatures. I have shewn thcat the Local Legislatures iiave n(j power over the subject, and therefore in that respect no such usurpation nor contlicc could arise ; but the contention is, that a.s the constitution, maintenance and organization of Provincial Cdurts with the procedure therein in civil matters is given by suli- sect. 14 of sect. 92, the Dominion Parliament cannot, directly or iikhrcctly, add to their functions or duties, or in any way add to the scope of their jurisdiction. I cannot draw any such conclusion from tlie Imperial Act. Ju the legislation as to tiie large majority of the subjects coiaprise:^ in the 20 specifically and untjuestionably given by sect. 91 t.i the Dominion Parliament, the power is found of directly adding Lo the fu'.ictions, duties and jurisdiction of those courts ; and as tl.e power to legislate in regard to congested elec- tions is just as fully given by the Imperial Act, '• " ould any iliatinctioii be drawn or attempted f The only dilierence that I can discover is in the maMier in which the power has been given, while none appears in substance. if, in one case, the power exists, why not in the other ? If there is no incompatibilitii in the Provincial Courts n the one case —and none has been found or su!.;gt!8ted — I an\ at a lof^s to discover why there should be any in the oiher. Tiie Local Legislatures, even had they the power, have int<,'',ened no prohibitory legislation. VaI IN r. [^A.NCI.OIS. Sup. ("., Caniiila. Henrv, .] . !' ) ) \ > < 204 PRIVY COUNCIL. Valin V, Lanolois. Sup. v., Canada. Henry,.!. %^ The courts entertain, and adjudicate on, all matters presented tn them under the common law and local statutes, and until it is shewn that, whilst so doing, the additional duty of tryint; contestii] elections is incomjiatible with their other duties and obligations 1 have no difficulty in arriving at the conclusion that they are uquallv authorized, as well as b(nind, by the provisions of the Domini in Acts, which are, in this case, objected to as ultra rin's. The Dominion Parliament, in the exercise of its plenary powers. had the right to impose the duty in question, the exercise (jf wliidi, as far as I have been able to discover, does nf>t in the sliL;litt,, the letter of the Imperial statute in question, which a contrary nut would not give. I do not forget that under the lmi)erial statuU' the D(jminion Parliament might establish independent tribumils for the trials of election contests, as was done on one occasion in Nova Scotia, under the Act of 1873, but, although I acted as nno of the judges of the special court at that time, I was not inseiisililc to the objecticjns which might be raised to such a tribunal, u|i- pointed ad hoc by the Government of the day to try the niurits if a contest between a Government supporter and an opponent. Tn give public satisfaction in such, as in iill other cases, tho judiciil tribunal must be free even from the slightest suspicion of \vcaknu.s> or bias. I have been gratified to witness the success that has been achieved in this ret- ect from the transfer to the ordinary leg;il tribunals in England, and in this country, of the trial of eloctiun contests, but, at the same time, would not give my sanction to ,in Act which is u.',' •" ri^v.s. 1 am glad, tlierofore, to b^ able to ileciili' that the one in (piestion is not so, and, consequently, I am of t!i opinion the appeal herein should not be allowed, and that tlu' judgment herein of the learned Chief Justice of tho Superior Court of Quebec should be affirmed with costs. Tas«jheueau, J. : — Upon the Respondent's motion to quash this appeal, I am if opinion that the appeal lies, and that this motion must be dismissed, The preliminary objections would, if allowed, have been final ami conclusive, and have put an end to the jjetition, and the appeal Iws 1|» 1 ! iMUVv rorxciL. 205 Valin V. bieii duly tiled before tlie Act uf last Session came into force (1) ; that under sect 10 of the said Act, the appeal stands, and the I.anolois. ni.jlion to quash must be dismissed. SuTTc., Upon the abstract question submitted to us in this case, whether Canada. the Dominion Controverted Elections Act of 1874 is ultra vires or Ta-ohereau, J. nut I am o^ opinion that the said Act is not iilira vires. This , uestiou has been so fully and ably discussed, not (jnly by my briitliev judges wiio have just delivered their opinions, but also in tlif Provincial Courts by so many of the learned judges thereof, that iWj attempt on my i)art to review all the points raised in the dilU'ieiit causes where the (question has been mooted, would not, 1 fcul, throw any new light on the subject, and could not but be as tfiliuus as of doubtful usefulness. I will therefore give, as brietlj' a3 possible, the reasons upon wliich I base my opinion that the said IJi million Controverted Elections Act of 1874 is constitutional. It is admitted, and is beyond doubt, that the Parliament of (.'aiiiidii has the exclusive power of legislation over Dominion con- tidvei'ted elections. By the lax Farliumentaria, as well as by the 41st, 01st and y2nd sections of the B. N. A. Act, this power is as complete as if it was specially and by name contained in the i-numeration of the federal powers of sect. !)1, just as promissory imtes, iiis(jlvency, etc., are. It is also admitted that if this Act of 1874, like the one of 1873, has created a new Dominion Court in iikh Province for the trial of controverted elections, its legality is iiiiiuiieuchable. The learned Chief Justice of the Superior Court nf tho Province of Quebec, whose judgment is now submitted to IIS, has declared the Act constitutional, and within tho powers of the Dominion Parliament, chiefly, as it appears to me, upon the -iMiiiul that such a new Dominion Court is virtually created therohy. The Appellant contends that such is not the case, and that it is upon the Provincial Superior Courts, as they are estab- hshed, that this Act imi)oses tiie duties of trying the Domini(jn n introverted elections, lie contends that Parliament had not the iiower to do this, and has thereby encroached iqion the privileges nf tho Provincial Legislatures, to whom alone, he allegos, is given. In tho B. N. A. Act, the right to legislate upon the administration "f justice, and the constitution, maintenance and organization of I'loviiicial Courts. I will not consider whether or not the Contro- verted Elections Act creates a new court in each Province for the (1)42 Viot. cap. ;«)D. H W H|»» WIH? ! \ 1 1, I i \q iui; ^ 1 ' btlU I 'i I 1 i i t, ^•1 ( Ml i M.H I 1 ' r-rl 1 VVM i i i '• ! :> ^ 20G I'RIVV COUNCIL. Valin V. trial of election petitions ; for nie, the question is of no importance T . as I am of opinion that Parliament had the right to impose this duty upon the Provincial Courts as they exist. T say that if it has Canada! created new courts, the Act is constitutional, and this is admitted Tasch^u, J. '^"* ^ °" f"^"*^^'^^' '""1 I distinctly base my judgment on the (,ues- tion upon this broader ground, that admitting, for the .sake of argument, that it has not created new courts, but has given these trials to the Provincial Courts, as they are con8titute ' il Si y 1 I r.;i 212 PRIVY COUNCIL. Vaun c. LAN(iLOIS. Sup. C, Canada. Ta8ch«-rca'i, J. House of Commons, even now, chose to disobey a judymout (if an Election Court, I do not see how the court could enforce its ju(l„. nient ; of course, it cannot be presumed that the House of Cdni- mons will act aj^ainst the law, but the presumption would liavebeen the same, for what would, in that case, have been the law ? The last contention of the Appellant is based upon the words of sub-section 14 of the 92nd section of the B. N. A. Act, which cive to the Provincial Legislatures the exclusive control over procedure in civil matters in the Provincial Courts. Upon this, I have noth- ing to add to what has been said in this case by the learned Chief Justice of the Quebec Superior Court, who held that these words must be understood to mean procedure in civil matters within the powers of the Provincial Legislatures. Section 41 of the Act specially gives to the federal authority the right to legislate upon the controverted elections of the House of Commons, and the pro- ceedings incident thereto. Thus, the laws made by Parliament on the proceedings on election petitions are binding on the Pruvincial Courts. Th»iy cannot be deemed to be an interference with the powers of the Provincial Legislatures, since these Legislatures hare no power, no control over these proceedings, or the procedure on these petitions. For all these reasons, I am of opinion that the judgment appealed from, declaring the Controverted Elections Act of 1874 constitutional, is right, and that this appeal must be dimissed with costs. I need hardly say that if, in my remarks, I appear to have had the Province of Quebec more particularly in view, it is because the case submitted to us comes from that Province, but my rem. ;ks on the B. N. A. Act must be taken as applying generally to all the Provinces. I have only one word to add. It has been said, that if this Act is constitutional, the control of the Local Legislatures over the Provincial Courts is reduced to a very small compass. Well, in tlie first place, 1 do not think so ; then, I may call the attention of those who should be inclined to think too much of the powers uf j the Local Legislatures,- under our Constitutional Act, over the Courts of Justice, to, the fact that, by simply refusing to name and pay the judges, the federal authority can, when it pleases, virtually abolish any of the Superior Courts in any of the Provinces, or can j control any changes in the constitution and organization of these j courts which the Local Legislatures would be inclined to enact ail regards the number of their judges. Yet, by the strict letter of j .itam nAm -1^-rr^ PKIVY COUNCIL. 213 Valin V. Lanoloih. 1 -sect. 14 oi sect. 92 of the B. N. A. Act, the constitution and nranization of those courts is put under the exclusive power of these Local Legislatures. This, again, shews that this clause can- g^T^ t be read by itself, and that, for a sound interpretation of its Canada. terms, the whole Act must be taken into consideration. Tasoher^u, J. GWYNNE, J. :— I concur in the opinion of the learned Chief Justice Meredith, to the effect that the 13th and 48th sections of the Act constitute tlie court for the trial of election petitions a separate and distinct court from the courts of superior jurisdiction in the Provinces. The 67th section of the Act supports this view, and by force of the 3rd section, which declared that in the Act, and for the pur- poses thereof, the expression "the court" shall mean, not only the courts of superior jurisdiction after-named, but also " any of the judges thereof," whenever a judge sits in a matter arising under the Act, he sits as a Court constituted by the Act ; but it \i by no means necessary, as it appears to me, for the determination of this case, that these points should be estublished so to be. It cannot, in my opinion, admit of a doubt, that the Dominion Parliament can, in respect of all matters within their control, im- pose judicial duties upon the judges of the Superior Courts in the several Provinces in excess of those exercised by them in the dis- charge of their ordinary functions, and their so doing constitutes no invasion of the rights of the Local Li\,'islatures. I am of opinion, also, that it is incorrect to speak of the transfer by the Dominion Parliament of the right to hear and determine all questions arising upon election petitions to the courts of superior original civil jurisdiction, existing in the several Provinces, as con- stituting an enlargement of the jurisdiction of those courts, in the sense of being an interference with the special jurisdiction given by the B. N. A. Act to the Local Legislatures to constitute and i organize Provincial Courts. Such transfer is b.it the adding an ; additional subject to those entertained by the courts in the exer- cise of their ordinary jurisdiction, and which subject, the exclusive jurisdiction of the House of Commons over it being removed, fell naturally within the competency of courts of superior and original civil jurisdiction to entertain, from the very nature of their institu- tion as courts of original jurisdiction. And, finally, I am of opinion that the prescribing the manner in which the jurisdiction to transferred shall be exercised, that is to say, prescribing the 'il' Valik I'. Lan(;loih, Hup. C, Canada. Gwyniie, J. m^ 214 PRIVY COUNCIL. procedure to bo adopted, constitutes no invasion of, nor any inter- ference whatever with, the powers and jurisdiction confurrnd by the H. N. A. Act upftn the Local Legislatures. Upon these latter points I sliould not have thought it necessan to add anything to what fell from nie in the Nidijara raHr, in {\]i; Court of Common Pleap 'n Ontario (1), if it was not for tliu dij. approval of that jud^ expressed by several of the k'tvriied judges in the other Provinces, before whom the same (luestidn Ims arisen. The objections urged to that judgment are, that tliu trial of an election petition is not a civil matter at all ; that the rii,'lits thereby brought in (juestion are not civil rights at all ; tliiit, incoii tradistinction, they are purely political rights and matters ; tliai the Courts of superior original civil jurisdiction, even in Ent;liind Avould not have competency to entertain or assume jurisdiction in these matters, as was suggested in the judgment they would hiuu, if the Parliament had passed an Act merely abandoning, on behalf if the House of Commons, the exclusive jurisdiction it had inserted and maintained over the subject-matter. With the greatest respect for the opinions of those learned judges with whom I have the r rtune to difl'er, T am unable to see that a right is less a civil ri cause it is connected with tliat par- ticular part of our civil polity which relates to the protection of the citizen in his rights arising out of our system of parlianien';ary re- presentation. "The right to offur oneself as a candid:ite tht riglit to be placed on the voters' list — the right to vote — the right, in fact, to enjoy political rights," are all admitted, in one of the judgments to which I refer, to be civil rights, and so, I presume, the wrongful assertion of, or the interference with the rightful e.\- ercise of, any of these rights is a civil wrong. If the right to offer oneself as a candidate be a civil rii,'ht, the right of a qualified candidate to exclude a disqualified one must surely be equally so, and so must, likewise, be the right to exclude a person from voting who has not the legal qualification, or, hav- ing it, has corruptly sold. it. For my part, I cannot permit myself to doubt that to return, as elected, a person not qualified by law. or who has not, in fact, had a majority of legal votes, is a civil wrong, or that, e converso, the right of a legally qualified candidate to enjoy the fruits of his candidature and to take the position t" which he has been legally elected, and to call in question all illegal (1) 29 U. C. C. P. 261. '.rmi f I'HIVY COUNriL. 215 v.it»'8, ami to exclude from tlit^ iiosition to wliicli ho Iiuh loyally luen Vai.in ilfctfil ii person who luia wrongfully Iteuii rotuinoil us elected, is a Lam.iois. ivil ri'dit : and these are the rii,'htH which form the Buliject of u,,""?- tiniiiiry ujion an election petition. Hut it is said that we are cun- ('an;uU. cliuled hy authority, and that the Privy Council in Enj,dand, by (j^j"^, J. their judgment in Thrbctyf v. Latuh\i, (I), has clearly and fully Tir(pn'iinic<-d these rights to be politiciil and not civil. Tlierc is nothing in that case, in my judgment, to support this contention. The ijuestion there was, wliether tlio tjuobec Contro- verted Elections Acts of 1872 and 1875, which enacted that judg- ment upon the trial of controverted elections renderci by the ;uithi>rities to which those Acts transferred the right of tr} ni^r puch ciises slioidd not be su8cei>tible of appeal, ousted the preroijative iiirisiliction of the Privy Council in appeal. And the court held tliat the api>eal was well taken away, upon the ground that, as those Acts dealt not with mere ordinary civil rights and privileges, but witli rights and jirivileges of a peculiar character, namely, the ri'hts and privileges : t only of candidates, but of electors and of members of the Legi-^latire Assembly, which rights have always, in evcy colony, following the example of the mother country, been ieali)ualy guarded by the Legislative Assembly in comjdete inde- pendence of the Crown, it was (piite competent for the Legislature to delegate the authority formerly exclusively exorcised by the Legislative As.ifmbly to Her Majesty's courts of civil jurisdiction, or to any of the judges thereof, to the exclusion of all appeal to the Crown in Council, the court saying : " It would l)e singular if the determination of these cases in the last resort should no longer Vjelong to the Legislative Assembly, nor to tlie court wliich the Legislative Assembly had put in its place, but belonged to the Crown in Council." There is not a word here about the rights dealt with not being •civil rights," nor anything from which it can be collected that the Privy Council was of opinion they were not. There is no contrast whatever made or alluded to, as between "civil" and "political" rights, but there is, as it appears to me, a contrast plainly enough drawn between mere ordinary civil rights, as to which a question could fairly arise as to the power of a Provincial Legislature to ex- clude the right of appeal, and those peculiar civil rights over which the Legislative Assembly, in imitation of the British House of (1) 2 App. Cas., 102. 1 ii||lw s , iJ^HfiMi ' i^^HI^ ' , ■^^HH'-^ i^^B^' ' i M mr 216 PRIVY COUNCIL. Valin V. Langlois. Sup. C, Canada. Gwyune, J. Commons, has asserted and maintained exclusive control in com- plete independence of the Crown, whicli exclusive control it was held to be competent for the Legislature to delegate, and t(j assert for the substituted authority equal independence of the Crown. The Parliament, having transferred this subject, over whicli the House of Commons formerly exercised exclusive control, to the cognizance of civil tribunals, seem to me, if it were necessan to appeal to such an argument, to indicate that they entertained nn doubt that the rights over which control was so transferred were civil rights ; for it is the pride of our constitution to keep our civil courts, and the judges thereof, aloof from all interference in politi- cal subjects and discussions, and it is scarcely to be conceived that the Parliament would transfer the invv^stigation of those riglits from the i>olitical to a civil tribunal, if it had thought that the subject- matter placed under the cognizance of the civil tribunal did not involve any enquiry into civil rights. In support of the proposition, that courts of original jurisdiction, even those courts in England, could not assume or exercise juris- diction over the rights in question, even though Parliament sh' .Id, by an Act of Parliament, merely abandon and disavow all exclusiw and every jurisdiction of the House of Commons over the subject matter, Rowland's Manual of the Constitution has been referred to. The following extract, however, from that work, in which tht- author gives an account of the manner in which the exclusive con- trol of the House of Commons was assumed, asserted and vindi- cated, until it became embodied in the constitution, seems to nu to lead rather to a contrary conclusion. He says at pp. 203-5 : ' * The power to decide in controverted elections was exercised by the Crown up to the reign of James First. In his first Parliament the Commons entered into a contest with him, asserting their own right to decide upon election returns. James convoked the Parliament by a royal proclamation, in which he admonished the electors that the knights for the counties should be selected out of the princi|.rJ knights or gentlemen of sufficient ability, and for bur^'ussea tliat choice be made of men of sufficiency and discretion. He commanded that express care be taken that there be not chosen any bankrupts or outlawed, but such only as were taxed to the subsi Ues and had ordinarily paid and satisfied them ; that sheriffs do not direct any precepts to ruined and decayed boroughs, and that the inhabitants of cities and boroughs do not seal any blanks, leaving to others to insert the names, but do make open and free elections according to m iMjfclMW PRIVY COUNCIL. 217 l;uv. He notified that all returns should be brought into Chancery, there tube filed of record, and if any be found contrary to the procla- mation tliey were to be rejected as unlawful and insufficient, and the city or borough was to be fined for the same ; and if it be found that they had committed any gross or wilful default or contempt in their election return or certificate, that then their liberties were to be seized into his hands and forfeited. If any person take upon himself the place of a knight, citizen or burgess, not being duly elected, returned and sworn, then every person do offending to be fined and imprisoned for the same. " The Commons lost no tmie after the meeting of Parliament in iiuestioning the right assumed by the King in his proclamation to have the returns of members decided in Chancery. " Sir Francis Goodwin was elected for Bucks, but his return was refused by the Clerk of the Crown because he was outlawed. On a second election Sir J. Fortescue was elected. A motion was made in the House that a return be examined and Goodwin be received as member. The Clerk of the Crown attended at the bar by order of the House with the return, and the House resolved, after debate, that Goodwin was lawfully elected and returned. The Clerk of the Crown was ordered to file the first return, and Goodwin took the oath of supremacy and his seat. "The Lords desired a conference which the Commons declined, and sent a message that in no sort should they give account to the Lords of their proceedings. "The Lords replied that, acquainting His Majesty with the re- turn, His Highness conceived himself engaged and touched in honour that there might be some conference of it between the two Houses. Upon this message, so extraordinary and unexpected, the House appointed a committee to consider what should be delivered to His Majesty, and through the Speaker, the House represented to the King that the Sheriff was no judge of the outlawry, neither could take notice it was the same man, and, therefore, could not properly return liini outlawed. The King reminded the Commons that he had no purpose to impeach their privilege. Thf difficulty was, after considerable discussion, solved, on a conference held in the King's inesence, and by his command, with the judges, who, conceding that the Commons was a Court of Record and judge of returns, although not exclusively of the Chancery, suggested that both Goodwin and Fortescue snould be set aside, and a new writ be issued. " This compromise was joyfully accepted by the Commons, and no m Valin r. Lanhlois. Sup. C, Canada. (iwyune, J. Ph iv i f.'4 s J/ 3 a.; I ■> I '• A'.' 'd 11 iii'J:: t-t-i t i i si 21cS PRIVY COUNCIL. Valin V. Langlois. S-ip. C, Canada. Gwynne, J. attempt was afterws ids made to dispute their exclusive jurisdiction over the returns of their members." Now, the House of Commons, having in this manner, as a Comt of Record, and as a compromise with the King's courts, accjuired the jurisdiction it assumed, until in 1770, by the Grenville Act, thf jurisdiction was conferred by the Legislature upon a committee of 11 members, can it be doubted that, if the British Parliament sliould pass an Act of Parliament, whereby, upon behalf of and in the name of the House of Commons, it should abandon, abjure and disavow all further control ov"'' +he return of its members, the rigiu to enquire into those return, juld revert to the King's courts '. With great deference, I think there can be no doubt that it wnukl and I am of opinion that, under a like Act of the Pordnion Parlia- ment, the courts of superior original jurisdiction in the several Provinces of the Dominion would, fi'om the nature of their institu- tion as courts of original jurisdiction, have the like power, and therefore these Courts had competency to accept cognizance of the matter. In fine, I entertain no doubt that the right to enquire into the legality of the returns of members of the House of Commons, not relating to a matter over which any jurisdiction is conferred upon the Local Legislatures, but to civil rights which, by the constitution, were wholly under the exclusive jurisdiction of the House of Commons. it was competent for Parliament to transfer to the civil tribunals in the several Provinces, having superior original jurisdiction, cogni- zance of all rights arising out of election petitions, and that so doing constitutes no invasion of, or encroachment whatever upon, the rights conferred upon the Local Legislatures, and that, inasmuch as Parliament may transfer such cognizance absolutely, it inay do so qualifiedly, or sub modo, by defining the mode in which the cogni- zance shall be exercised, which, by prescribing the mode of procedure, is what has been done. Neither is such jirescribing of the mode of procedure an invasion of, or encroachment upon, the rights of the Local Legislatures, for the 14th sub-section of sect. 92 of the B. N. A. Act must plainly be read as conferring upon the Local Legislatures the right to prescribe procedure in civil matters, only in respect of these matters which, by the 13th sub-section, were placed under the exclusive control of the Local Legislatures. To hold that the Local Legislatures could prescribe, or in any respect interfere with, the maimer in which a matter over which they have no jurisdiction whatever shall be conducted or enc^uired III I PRIVY COUNCIL. 219 into, involves, in my opinion, a manifest contradiction in terms. I am of opinion, therefore, that the Act is not in any particular ultra I'ires, and that the appeal, which calls in question its validity, should be dismissed with costs. Appeal dittmissed with costs. Judgment in Superiob Coxtrt. [Reported 5 Q. L. R. 1.] Meredith, C. J. : — The main question as submitted at tiid argument in this case, is a.9 to whether the court can legally discharge the duties assigned to it by the Dominion Controverted Elections Act, 1874. The answer to that question must depend upon the right of the Dominion Parliament to legislate on the subject, and upon the extent of the powers of this court considered in relation to the duties thus assigned to it. The authority of the Parliament of Canada to make laws for the trial of controverted elections for the House of Commons is beyond doubt. That subject, not being one of those placed by the Act of Confederation within the exclusive power of the Provincial Legis- latures, is, therefore, within the general powers of the Dominion Parliament. Moreover, the 41st section of the Act of Confederation clearly admits that that subject is within the powers of the Domin- ion Parliament ; and from its nature, it could not be otherwise. It is also plain that under section 101 of the Confederation Act, the Parliament of Canada had power to create a court, or courts, for the trial of controverted elections ; and, although it may not be equally plain, I am of opinion that the Dominion Parliament did exercise that power, by the Dominion Controverted Elections Act, 1874, and that, under section 48 of that law, the trial of election petitions must take place before Dominion Courts, established for that pur- jtose, to the exclusion of any Provincial Court. It is, nevertheless, true, that, by the Doriinion statute already mentioned, it was intended that certain Provincial Courts, of which the Superior Court for Lower Canada is one, and each of the judges of those courts, should have concurrent powers with respect to the proceed- ings under that statute, preparatory to the actual trial of any election petition. It, therefore, becomes necessary to consider, what are the powers of this court with respect to the duties which it is thus required to discharge. Valin V. Langlois. Sup. (,'., Canada. i ! I I • f I ' nil '•< *i \\ 11 r .,1'' ■H '■\i-J'U ^ r liil n ' n H 1^ II B ■ "IH ^R - ^n 1 ! 220 PRIVY COUNCIL. Valin V. Langloih. As to that point, I may at once admit, although the admission by some may be deemed to go too far, that, in my opinion, the "con- „ ~r~ ^ stitution " of Provincial Courts, which is exclusively within the power Superior 0,, ^ r w Quebec. of the Provincial Legislature, includes the power to determine the Meredith C. J. jurisdiction of those courts ; and places that jurisdiction beyond the control of the Dominion Parliament. If that opinion be well founded, then the powers of this court could not be enlarged by the Controverted Elections Act of 1874 ; and, therefore, according to my views, it becomes necessary to enquire what are the powers of this court according to its con- stitution. On that subject I may quote the second section of the chapter 78 of the C. S. L. C. , the provisions of which .are (in substance) repro- duced in different articles of our code of civil procedure ; that section is as follows : " The Superior Court has original civil jurisdiction throughout Lower Canada, with full power and authority to take cognizance of, hear, try and determine in the first instance, and in due course of law, all civil pleas, causes, and matters whatsoever, as well those in which the Crown may be a party as all others, excepting those purely of Admiralty jurisdiction, also those over which original jurisdicti, jf iied, and on his negrlect, to the justices to make inquisition. I find, also, that Sir Robert Atkins, in his judgment in the celebrated case of Bemardistone v. Soame, (1) — after referring tu the statute of 11th Henry IV., cap. 1 (A.D. 1410), giving power to judges of assize to punish sheritt's making returns contrary tu a former statute, and to inflict a penalty of £100 upon the sheriff, anj to cause the knights unduly returned to lose their wages — observed, " all which depends upon the inquiry made by the judges of assize," and the learned judge added, " at this time surely this matter of elections was not held so sacred and so incommunicable a tliiiic, as some would have it now, for by this statute it is referred to the judges of the assize. " Glanville (2) also says that : "In the latter end of the sixteenth and the beginning of the seventeenth centuries, this question was warmly agitated and contested between the Crown and the House of Commons. On the part of the Crown it was contended, that as the writ for election issued out of, and was returnable into, the Court of Chancery, the Lord ChancoUor was the sole and proper judge of the due execution of the writ, consequently of the legal qualifications of the elected. " On the other hand, it wag insisted upon by the House of Com- mons, that the sole and exclusive right of determining upon cases concerning the election of their own members, was lodged in that House." And we know that that right was fully enjoyed by the House of Commons from the beginning of the seventeenth century until they voluntarily relinquished it in 1868. I do not however find in any of the cases or authorities which I have had occasion to examine, anything tending to shew tliat if the House of Commons had not claimed the trial of controverted elec- tions, as their exclusive privilege, such trials could not have taken place in the courts like other civil matters. Indeed it seems to me beyond reasonable doubt, that such would have been the result, had it not been for the exclusive privilege claimed by the House of Commons. That there would have been nothing incongruous in the trial of (1) 6 State Trials, 1031. (2) Glanville's Election Cases, p. 9, Preface. Iv ..J. ii »it'Aii ! ■< f ? 1 PRIVY COUNCIL. 223 >a such matters by the civil courts, is sufficiently plain from the recent Valin lecislation on the subject as well in the mother country as here. T.anolois. If the foregoing views be correct, it follows that when the House j^ ~~r~ „ if Commons of Canada gave up the privilege of trying controverted tjuebec. elections, there could be no objection to a declaration by the Legis- :vi,.reami! C. J. lature that such trials should take place before the ordinary civil courts. The eflfect of such declaration being, as has been well shewn in the Niagara election case (2), not to enlarge the jurisdiction uf those courts, but to add certain subjects to those upon which the iilready existing jurisdiction of the courts could be exercised. In support of this view I may refer to the following observations made by the president of the Superior Court at Montreal (Mr^ Justice Johnson), in Ryan v. Devlin (1) : " Parliament could add a new offence to the criminal law, leaving the trial of it to the provincial criminal courts ; and if so, why may it not denude itself of its exclusive jurisdiction as to the hearing and determina- tion of controverted elections, and transfer those matters, and the la parlhmenti belonging to them, to the tribunals having general iiiriadiction over civil rights in the respective Provinces." And Mr. Justice Gwynne, in the Niagara election case (2), after having said that the right to sit in the House of Commons is '^ unduubtediy a civil right," at a more advanced stage of his judg- ment added, " if an Act had been passed by the old Parliament of Canada resigning the jurisdiction of the Commons House of Assembly over the election of members for the House, without naming any court to which their jurisdiction should be transferred, there can be no doubt the superior courts of common law could have assumed jurisdiction in virtue of the rights and powers inherent in them as courts of original jurisdiction." This view was not questioned by the learned Chief Justice Wilson, who, as to another point, ditiered from the majority of the court, nor by Mr. Justice Beaudby, who differed from the majority of the court ill Bijan v. Devlin, and in Owen et al. v. Gushing. On the contrary the lea ned Chief Justice gave his opinion as follows : "In submit- ting these contested elections to the provincial tribunals so far as relates to the Courts of Queen's Bench and Common Pleas, the Dominion Parliament has merely transferred certain civil rights, over which the Parliament had formerly exclusive jurisdiction, to the courts which had a general jurisdiction over all civil rights (1) 20 L. C. J., p. 84. (2) 29 U. C. C. 261. \m B l-t 'i\\ ^ul: %i \\ I f> ll' ! t 224 PIUVY COUNCIL. Valin f. Lan(;loi8. Superior (! , Quebec. liii ijl: before the passing of the Act, or which have since acquired it an' the submission of that new subject, for the reasons bef(jre given was not, and is not, an enlargement of the jurisdiction of thest courts, simply because these courts had, at the time of tht Meredith, c. J. passing of that Act, a general jurisdiction in cases of like nature, And Mr. Justice Beaudry dissenting from the judgment of th, court in Ryan v. Devlin observed : "Si done la chanibre dts communes ^tait disposde h renoncer au privilege de verifier elle. meme les pouvoirs de ses membres et de juger la contestation dt leur Election deux moyena ae preaentaient, cr^er un tribunal k cet eflfet, et c'est Ik ce qui a 4t4 fait par I'acte de 1873, ou bien laiaser aes contestationa auivre le conra ordinaire, et itre detemim pa/r les coura qui avaicnt jxiriadiction en aemblable inatiere," thus expressing, with great clearness, the doctrine above laid down hv the learned judges in Ontario. Indeed it seems to me that if after the passing of a statute simply putting an end to the jurisdiction of the House of Commons as to contested elections, a suit had been instituted, in this court, alleging an illegal return, tending to deprive the plaintiff not only of his seat, but of the privileges allowed within this Province to members of the House of Commons, it would have been impossible for the court to refuse redress, by examining into the validity of the election, and determining upon the right to the seat. A refusal ti do so on the ground that the court had never before interfered in such matters, would be met by the answer that such interference was heretofore, not only unnecessary, but impossible, by reason of the exclusive jurisdiction of the House of Commons ; but that the abolition of that jurisdiction, at the same time that it permitted the exercise of the powers of the civil courts, rendered the exercise of those powers absolutely necessary ; and this in accordance with j the maxim tibi jiis ibi remedium. It has, however, been very strenuously contended, that although it may be litting that the rights resulting from an election, and the j status of persons claiming to be members of the House of Com- mons, should be determined by this court, as the highest court! having original civil j urisdiction throughout the Province ; yet that j this court could not in the exercise of its ordinary jurisdiction! determine as to the right to a seat in a Parliament held in another I Province ; nor report to the Speaker, as required by sect. 30, with! respect to corrupt practices on the part of candidates and others;! and as to whether corrupt practices extensively prevailed at the! - 1 -I'f lllf PRIVY COUNCIL. 225 Valin 1'. Langlois. election. This objection would certainly call for serious considera- tion if tlie duties to which it applies were, under the statute, re- Miiirpil to be discharged by a Provincial Court, such as the Superior —7- '1"'"^ o ./ Superior C, Court. But according to my view, the Superior Court, not only is Quebec. not required to perform, but is not allowed to perform, the duties Meredith, 0. J. just mentioned. Here, and as bearing upon this part of the case, it may be well to refer to the provisions of the Dominion Controverted Elections \ct 1874, which establish by what courts and officers the duties imposed by the Act are to be discharged. Section 3 declares, " in this Act and for the purposes thereof, the expression the court shall mean the courts hereinafter men- tioned, or any of tlie jiidges thereof." In the French version, " ou I'nn de leurs juges." The declaration that the expression " the court " in the Act shall mean not only any one of certain courts, but also any one of the judges of such court, ou Vun de leurs jnges, is very important ; but, bearing in mind the time this case has already occupied, I shall not dwell upon it. Moreover, I believe it will be found that under the express words of the law, with one comparatively unimportant and probably unintentional exception (1), every duty before the trial, that can be performed by the court, can also be performed by a single judge out of court ; in the same way, as under our law, a judge out of court has the same powers as the court itself, with respect to actions between lessors and lessees, the contestation of writs of capias and attachments, and as to prerogative writs, and various other matters. I observe, however, that the learned Chief Justice of the Court of Common Pleas of Ontario has expressed himself as being of opinion that the words "any of the judges thereof," have reference to the Administration of Justice Act (of Ontario), passed more than a year before the Dominion Act in question ; but when it is borne in mind that the Minister of Justice at the time of the passing of the statute in question, was one of the most distinguished members of the Bar of Lower Canada, and that he had a large share in the preparation of that measure, it seems to me more than probable that the words " ou Vun de leurs fugcs " are used in the statute in Huestion in the same sense as they are used in the various provisions ol our law to which I have alluded. (1) See sections 11 and 13. 15 \ if 22G PRIVY COUNCIL. VAtlN V, Lanqloih. Coming now to the sections of the statute which relate to the trial, more particularly to sections 13 and 48, we tind, that by sec- Sunerior C *'"" ^^' ** ^^ declared that " every election shall be tried " by ,inf, Quebec. of the jmUjcs of the court without a jury ; and that by sect. 48, it is Meredith, c. J. provided that " on the trial of an election petition and in other """ proceedings under this Act, the judge shall, subject to the pro- visions of this Act, have the same powers, jurisdiction and authority as a judge of one of the Superior Courts of law or ec^uity for the Province in which such election was held, sitting in term, or pre- siding at the trial of an ordinary civil suit, and the court held by him /or mch trial shall be a Court of Eecord." Under this clause the Trial Court is made a Court of Record; and the Court of Record so established by the Dominion Parha- ment must, I think, be held to be a Dominion Court, separate ami distinct from any Provincial Court. The report to the Speaker as to the result of the trial, and that required by sect. 30, are to be made, not by the Superior Court, but by the judge who held the Dominion Court established by sect. 48. In a word, it seems to me, that as to the proceedings before the trial, subject to the exception already mentioned, each judge has a concurrent jurisdiction with the court of which he is a member ; and, as to the trial, and the rej)orts to the Speaker, no Provincial Court can in any way interfere. If this view be correct it furnishes an answer to the objection which I have just been coiisiderins,', founded on the fact that the Parliament of Canada is held in another Province, and also on the nature of the reports to the Speaker, required to be made by the trial judge, and I think it ought also to be deemed of importance by those who hold tliat the statute of 1874, in so far us it attempts to enlarge the power uf those courts, is ultra vires. It may be true that the j urisdiction of the Provincial Court, uf which I am a member, cannot be extended by the Dominion Par- liament ; but I am not aware that there is anything to prevent rae, as a judge named by the Dominion Government, from discliarging any duty assigned to me by the Dominion Parliament. As has been already mentioned, the framers of the statute of 1873 deemed it prudent to make the judges of the Superior Court a new Dominion Court, as to the powers of which there could be uo difficulty. But I cannot see that any such proceeding was neces- sary, with respect to judicial powers intended to be given to the .■^., iiilrtii'flllH' PRIVY COUNCIL. 227 judfes separately, acting out of court, as I am now doing. If tho Valin Dominion Parliament, as was done by tho Act of 187^, c(juld ni.ake Lanuloih. me a judge of another court, and then give me, out of court, the ~r~ „ iiowers in question, I fail to see why the same Legislature could Quebec. unt confer upon me tho same powers, witliout going through the Meredith, C. J. fnriii of creating a now Court. In short, I think that in tho discharge of the duties in which I ;iiii now engaged, as a judge out of court, I am in the same position, iisto my powers, as I would have been, in the discharge of the same duties, under the Act of 1873 ; and I deem it almost beyond doubt, that a judge holding a trial under sect. 48 of the Act of 1874, will, in principle, bo in the same position as the judges were who held election courts under tho Act of 1873. A numl)er of interesting American cases have boon referred to as bearing on tho subject ; but I do not deem it necessary to dwell upon them, as I do not (juostion the proposition they wore intended 10 support, namely, that under the Act of Confederation, the Do- uduion Parliament cannot enlarge the jurisdiction of the Provincial Courts. Our attention was also drawn to the observations of the Lords (if the Privy Council in Thehenje v. Landr\j, and more particularly to the following passage respecting our two Provincial statutes providing for the trial of contested elections for the House of Assembly : (1) "These two Acts of Parliament, the Acts of 1872 and 1875, are Acts peculiar in their character. They are not Acts constituting or providing for the decision uf mere ordimiry civil ricfhts; they are Acts creating an entirely new, and up to that time unknown, jiiris- ■Ikiioa in a partieidar court of the colony, for the purpose of taking "Ut, with its own consent, of the Legislative Assembly, and vesting (I ihnt court, that very peculiar jurisdiction, which, up to that time, had existed in the Legislative Assembly, of deciding election petitions and determining the status of those who claimed to be members of the Legislative Assembly. " The Provincial Act of 1872 certainly did create a new court ; and therefore the jurisdiction conferred upon that court was a "new jurisdiction ;" and it may be observed that, in the last paragraph but two of their judgment, their Lordships seem to speak of the Act of 1875 as creating a new tribunal. Now, if that Act did create (1) 2 App. Cas. 102, 106. %^ 11 \-^ ^.\ 'A lii mm i1i .i..l \^m 228 I'RIVY COUNCIL. Valin V. liANOLOIM. Sii|>erior (',, (Quebec. Meredith, C .1 ii now tribunal, tlion the jurisdiction conferred upon that tribunal was also a now jurisdiction, and the oljservations of tlioir Lonl.sliiis, as to the jurisdiction exercised l)y such new tribunal, would iinthe apjdicablo to the jurisdiction vested in this court, according to itt original constitution. Ik'sides, it is to bo recollected that tho question which cnj,'a,'e(l the attention of their Lordships is wludly different from that ii.w under our consideration. Tho main question in this case is, as to the power of the /*..- minion I'arlidmoit to impose certain duties upon the Prdvincial Courts, and the judges thereof. But no such (juestion was raisid or c(juld have arisen in Th/'berNle consideration of the objection as to procedure, which leemed insup( le by the late Mr. Justice Beaudry: and whu seems t have been viewed in somewhat the same light by the Chief Juftice of the Court of Common Pleas in Ontario. The objection, as I understand it, is, that notwithstanding the provision of the Imperial Act, declarin that the Provincial Legis- lature has excl' sive power to legislate as to procedure in civil matters, in Pro incial Courts, the Dominion Parliament, by the statute impugnt ., has declared wliat shall be, from the beginning IMUVY COUNCIL. 22!) to the end, the prDcecliiro in tliia Provincial Court in the civil mailer to the end, ine JiroceimitJ in hub 1 itrvmvitii i-'iinrt, lit i/iiD i/ii/ii. iiniK,^.! ' ALI!f in which we ivre now enyrix^iud. Lanoloih. That this is a weighty <>})ji)cti.>n, cannot, I think, bo donicd ; {^ypeTj^rC, anil the ju{l5,'e8 of the Courts of Queen's Bencli and Coninion IMcas c^uel)ec. in (Ontario, have met it by an order dechiring in effect that the pro- MoreiUth, C. J. cetlure in the Dominion Controverted Elections Act, 1874, and in anv other Act of the Dominion Parliament, relating to Dominion crrntroverted elections, or to corrupt or other illegal practices, at such elections, etc., shall be the course of procedure in such cases in the said Ontario Courts, " in all respects as if the said procedure had been and was, and it now is, specially provided for, prescribed, ami regulated, by the said courts, and by each of them, in the like niiinntT and to the like tenor and effect as the said procedure, in such cases, is prescribed and enacted by the said respective Acts." I need hardly say that I entertain no doubt as to the power of the Ontario judges to make the order just alluded to, but I do not think ic by any means certain that wo could, under our system of law, pursue the same course. The first proceeding to be ad(jpted, that of smnmoning the member returned or other defendant, would present a ditticulty. We are (art. 129 C. P.) prijhibited from mak- in,' any rules of practice incrmsistent with our code of procedure, and by article 45 of that code it is declared that "every action before the Superior Court is instituted by means of a writ of suim- luons, in the name of the Sovereign ; saving the exceptions con- tained in this code and other cases provided for by special laws." In view of this article, I do not see how the defendant in an elec- tion petition could be retjuired to appear as provided by the Do- minion Controverted Elections Act, 1874 ; or otherwise than by a writ of summons in the name of the S(jvereign. Many other diffi- culties of a like nature would also probably occur. But, be that as it may, we have not, and are not likely to have, an order such as has been made in Ontario ; it therefore becomes necessary to con- sider wliether the objection as to procedure is as formidable as it, at first sight, appears to be ; and I must admit that, according to the strict letter of the statute, the objection can hardly be answered, in so far as regards any proceedings necessarily before the Superior I'nurt. In (jrder, however, to arrive at the true meaning of the section in question respecting procedure in civil matters in the Provincial 'ciiirts, it is necessary to recollect that although very much the uTeater part of the civil matters, in the Provincial Courts, are 230 PRIVY COUNCIL. Valin matters completely within the powers of the Provincial Lesisla- Lanoloib. tures, yec that thei'e are some or these matters, for instance the Suoerior C P'^'^sent matter, and I think I may add matters in insolvency, Quebec. wholly beyond the powers of the Provincial Legislature ; and Meredith, C. J. bearing this in mind, ■" think the provision of the Imperial Act, giving the Provincial Legislature exclusive power to make laws respecting proceedings in "civil matters" in Provincial Courts may from the nature of the subject, be understood as meaiiin^' "civil matters" within the power of those Legislatures; and nut as giving, as is contended, to the Provincial Legislatures power to establish the procedure in civil matters, in other res},ects utterly beyond their p )wer, and comrletely under the control of tlieDn- minion Parliament. Now, if the exclusive power of the Provincial Legislatures, as to the regulation of procedure does not extend to matters as ti which, in other respects, they have no control, and which in no respect coi.cern them ; then such matters, even as to procedure, would be within the general powers of the Dominion Parliament, and the difficulty as to procedure would disappear. This seems to be the view of the matter taken by Mr. Justice Gwynne, who is reported to have said : "Much was said about the constitution, mainten- ance, and organiziition of our courts being exclusively under 'hi control of the Provincial Legislature. These latter words in the 14th paragraph of the 92nd section of the B. N. A. Act pNi^ly apply to the procedure in cti'i7 matters, over which the iirecedini; paragraph gave the Provincial Legislature exclusive contrid." I may add that if, as I have attempted to shew, the election trial does not take place before a Provincial Court, but before a Dimiin- ion Court ; and that the intervention of a Provincial Court is not re- quired, at the most, on more than one occasion during the prelim- inary proceedings (that is, for the fixing of the time and place I'f the trial, as to which no sjjecial procedure is ordered) then the oh- jecLion, as to jirocedure, will lose much of the importance whic]i,at first sight, seems to attach to '.t. Upon the whole, although hese matters have pres>inted, and still present grave difficMltic \o my mind ; and although in relation to them, I have the misfortune to differ from judges fur wh'S opinions I have the highest respect ; and although I must adiiu' that some of the considerations which I deem of importance, iive not relied on by the learned judges in whoso conclusions I concur; I, nevertheless, think I see my way to discharge, and therefure . II. »i,i>t- 1 F1 I'RIVY COUNCIL. 231 shall endeavour to discharge, the duties assigned to me by the Valin Dominion Controvertvid Elections Act, 1874 ; and I have the less Langlois. hesitation in adopting tiiat course, when I bear in mind, that the „ ~T~ p objections raised in this cause, were, in the course of an able and Quebec. exhaustive judgment, declared unfounded more than three years Meredith, C. J. at»o by the Court of Review at Montreal (1), and that the judgment 80 rendered has never been (juestioned, either by the authorities of the Dominion, or of the Province — also, that learned and elaV ate judgments, to the same effect, have since been rendered by the Court of Common Pleas, at Toronto ; and by the Superior Court for this Proxince at St. Hyacinthe and Sorel ; and that, when not a month ago, a motion to appeal from the last mentioned judgment was made before the Court of Appeals at Montreal (2), Sir Antoine A, Dorion, as president of the court, speaking with reference to the right of the Dominion Parliament to impose the duty of trying federal elections upon Provincial Courts, observed : " We hold that they can, in matters within their sphere, impose duties upon any subjects of the Dominion, whether they be officials of Pro- "'•icial Courts, other officials, or private citizens " — and in tine when I bear in mind that long after the decisions of the Court of Review, at Montreal, were not only rendered, but reported, the Supreme Court, at Ottawa, deprived the Honourable Mr. Langevin of his seat in the House of Commons, and condemned him to pay heavy costs, upon proceedings taken under the luthority of the statute, now impugned as being unconstitutional. It lias however been very strenuously contended, that as the constitutionality of the statute of 1874, was not questioned in Mr. Langevin's case, the judges of the Supi'eme Court could not avoid giving effect to that law, even if they had deemed it unconstitu- tional. To that view, I must say, I am altogether opposed ; as well upon the ground of authority , as upon principle. An eminent American writer on public law has said : " There is no position which depends upon clearer principles than that every act of a delegated authority ct)ntrary to the tenor of the commission under which it is exercised is void "—the author does not say voidable, but void — and he adds, " no legislative act, there- fore, contrary to the constitution can be valid." (3) (1) S(( lly.an r. Devlin, 20 L. C. J. 77 ; Owens i-. Gushing, 20 I.. C. J. 86. (2) Bruneau r. Massue, 23 L. C. J. 00. (3) Alexaiuler Hamilton, No. 48 of tlie Feileralist. \ ^J ! t 232 PRIVY COUNCIL. Valin Chief Justice Marsliall, than whom a higher authority cannot Langlois. be cited, in the case of Marbury v. Madisini, speaks of "Legisla- „ ~T~ rt tive acts contrary to the constitution," as not being laio (1), and Superior C, "' ' ^ , /> u Quebec, Chief Justice Ritchie, in The Queen v. Clmndler, in re Hazeltoii (2), jlgjg^j^ C J speaking of Legislatures with limited powers, observed, "and if they do legislate beyond their powers, or in defiance of the restric- tions placed on them, their enactments are no more binding than rules or regulations promulgated by any other unauthorized body." (3) To me it seems plain, that a statute, emanating from a Legisla- ture not having power to pass it, is not law ; and that it is as much the duty of a judge to disregard the provisions of such a statute, as it is his duty to obey the law of the land. As to the distinction between what is voidable, and what is void, I do not think tiiat under our system, it is applicable to statutes ; which must be either void, or valid ; if void, they cannot be rendered more void, and if valid, they cannot be affected by any judicial authority. Prelimi)iary objections dismissed with costs. (1) I Cranch, 137. (2) 1 Hannay, 556. (3) See L'Union St. Jacques v. Belisle, 20 L. C. J., p. 40 ; ante p. C3. fmmnr- PRIVY COUNCIL. 233 [PEIVY COUNCIL.] Octave Bourgoin and Others A^pdlanU, AND *J. c. 1880 'Ilesjwndents. La Compagnie du Chemin de Fer de^ Montreal, Ottawa et Occidental, the Attorney-General (Intervening Party), THE Attorney-General (Opposant), La Compagnie du Chemin de Fer de Mon- treal, Ottawa et Occidental Four Consolidated Appeals. On appeal from the Court of Queen's Bench for the Province of Quebec, in the Dominion of Canada. [Reported 5 App. Gas. SSI.] A Provincial Legislature of Canada has no power to pass an Act transferring to a new Company, or otherwise, a federal railway with its appurtenances, property, rights and powers, or to dis- solve a federal Company, or to substitute for it a Company to be governed by, and subject to, Provincial legislation. Consolidated Appeal from four judgments of the Court of Queen's i icli, given upon four appeals from the Superior Court for Lower Canada, District of Montreal, numbered 13, 117, 141, and 144 respectively. The appeal arose out of four actions, the first of which, No. 693, was hrought in the Superior Court by the Respon- dent company against the four Appellants, and Damase Masson and others, who were parties mis en cause to the action. The second, No. 1,213, was brought in the same Court by the Appellants against the company. Feb. 12, 13, 14, 17, 18, 26. * Present :— Sir James W. Colvile, Sir 7^" K. Smith, and Sir Robert P. Collier. "63 Peacock, Sir Montague ^i'4i ! :■„!« M I' 5;'. :ii; 234* PRIVY COUNCIL. BouRGoiN The third action arose out of the action No. 1,213, and LaCompahnie was an appeal, distinguished as No. 117, from the de- nu Chemin UK . . 1. r ' o Fer de Mont- cision of the Superior Court in that action, and was REAL, Ottawa etOccident'l. brought by David A. Ross, Attorney-General for [Lower] Statement. Canada, whose predecessor in office had intervened in the said action in the Superior Court. The Attorney-Gen- eral appealed, but severed in his appeal from the appeal of the company from the said decision. The latter appeal was No. 144. The fourth action arose out of the action No. 693, and was an opposition a Jin de distraire, lodged by the prede- cessor in office of the Attorney- General against an ex- ecution under a writ of Jieri facias dc bonis et de terrk, issued at the suit of the Appellants, to recover their costs in the action No. 613. The appeal of the Attorney-Gen- eral from the judgment of the Superior Court in this action was distinguished as No. 141. Appeal No. 13 was an appeal by the Eespondent com- pany against the judgment of the Superior Coui't in favour of the Appellants in action No. 693. The company was originally incorporated as a Pro- vincial Railway Company by the 32 Vict. c. 55, of the Quebec Legislatm'e, under the name of "La Compagnie du Chemin ji Lisses de Colonisation du Nord de Mont- real ;" and afterwards, by virtue of the provisions of an Act, 36 Vict. c. 82, of the Parliament of the Dominion of Canada, became a federal company authorized to con- struct a railway uniting two Provinces and passing from the Province of Quebec into the Province of Ontario. By virtue of the provisions of the 38 Vict. c. 68, the name of the company was changed to its present name, " La Compagnie du Chemin de Fer de Montreal, Ottawa et Occidental." The company, being unable to complete its authorized works, executed a deed, dated the 16th of November, 1875, ,„....„ ....A. 1 PRIVY COUNCIL. 235 which was afterwards ratified by an Act of the Quebec Bourooin Lef'islature, 39 Vict. c. 2, s. 8, assented to the 24th LaCompagnie ^ " . nu Chemin de of December, 1875, whereby, after it had been declared FkrheMont- UKAL, Ottawa that the company was unable duly to execute the said etOccidknt'l. works, the said works were abandoned by the company, statement. and the company, for the considerations therein men- tioued, duly conveyed all its rights in the works there- tofore executed and in the lands acquired or in course of acquisition for the said raih'oad to the Quebec Govern- ment. The Quebec Government tlier took upon itself the con- struction of a line of railway (authorized by the Act B9 Vict. c. 2, of the Quebec Legislature), part of which traverses the tract of country in which the Company had an exclusive interest, and for the construction of which last-mentioned line of railway the incomplete works of the company were used. This last-mentioned line of railway is the present Quebec, Montreal, Ottawa and Occidental Railway, which, at the time of the passing of the last-mentioned Act, did not extend beyond the limit?; of the Province of Quebec. Proceedings were commenced by the company for the expropriation of certain lands, and arbitrators were appointed, who thereafter made their award, which, by action No. 093, the company sought to have annulled.] The Suj)erior Court of Montreal (Johnson, J.) dis- missed the action with costs [but this judgment was on the Uth of December, 1878, reversed by the Court of Queen's Bench] On the 22nd May, 1877, the Appellants caused to be issued a writ of feri facias de bonis et de terris, command- ing the Sheriff of Montreal to levy upon the goods and chattels and lands and tenements of the company the sum of !i{>591.50, the amount of the costs awarded to the Appellants in suit No. G93. The Sheriff returned that he iifilllii.^ 41 m m 'Hi 1 ! t iv, I • - ■ l, Fer de Mont- a schedule of which was annexed, and that an opposition REAL, Ottawa ,,,,,. . , , , e ,-, ^ ,, r^ ktOcoident'l. a Jin de distnnre on the part oi tlie Attorney-General hail Statement, been lodged in his hands, by reason whereof he was uii- able to proceed to a sale of the immoveables under the writ. A small part of the immoveables consisted of cer- tain lands which previously to the transfer formed part of the undertaking of the company. The remainder of the immoveables consisted of lands, rolling stock, and railway plant purchased by the Quebec Government subsequent to the transfer. In that opposition, the Attorney-General claimed the whole of the property seized as the property of the Queen for the use of the Province of Quebec ; and fur- ther alleged that, inasmuch as the appeal against the judgment in No. 693 was still pending, the proceedings in execution of that judgment were thereby suspended. The Appellants pleaded a dilatory exception, and also to the merits : — That the Act 39 Vict. c. 2, under which the opposing party made title, and all agreements therein referred to, could not confer on the Province of Quebec any title to the goods seized in this cause, because, by the 30 Yict, c. 82 (Canada), the railway had been declared a work for the general advantage of Canada, and was held incor- porated under the Canada Railway Act, 1868, and no part of the Quebec Railway Act, 1869, applied thereto ; that afterwards, by 88 Vict. c. 68 (Canada), its name was changed to that under which it now sued; that thus constituted, it could not enter into any of the agree- ments mentioned in the 39 Yict. c. 2 (Quebec), without being authorized or ratified by the Parliament of Canada, which had never been done, so that they remained with- out any legal effect whatever. >uu ^WT rr PRIVY COUNCIL. 237 They further pleaded that the Attorney-General as Bourgoin (uch had no powers except those conferred by the Lesris- La Compagnie , , .,...,. iil; Chkmin UK lature, and that there was no legislation justifying his Vm nis Mont- UKAL, Ottawa opposition. KT Occidknt'l. The opposing party joined issue on these pleas. Statement. Both the Superior Court and the Court of Queen's Bench allowed the opposition, and declared the lands seized to be the property of the Queen for the Province of Quebec, and the seizure illegal and invalid. [Tlie argument and judgment as to the validity of the award ipp. 388-39G) are omitted.] Mr. Doutre, Q.C. (of the Canadian Bar), and Mr. Fullarton, for the Appellants. Mr. Jeune (Mr. Benjamin, Q.C, with him), for the Respondents. Reference was made to Yeo v. Tatem (1) ; Gardner v. London, Chatham, and Dover Railway (2) ; Richmond Water-works v. Vestry of Richmond (3) ; Great Western Railway Company v. The Birmingham and Oxford June- tion Railivay (4). On the 26th day of February, the following judgment of their Lordships was delivered by • Sir James W. Colvile : — The judgment of their Lordships, which was delivered on the 14th instant, and ruled that the award of the 28th of July, 1876, was bad on the face of it, disposed, except as to costs, of the appeals numbered 13 and 144 respec- tively, and of all the questions on this record between the Appellants and the Respondent company. It seemed, moreover, to leave to the Appellants no sub- stantial interest, other than costs, in the rest of the liti- (1) L. R. 3 P. C. 696. (2) L. R. 2 Ch. 201. (3) 3 Ch. D. 82. (4) 2 Phill. 597. '■'iiJll ",h 1 ;■; v.s ;■ i I 238 PRIVY COUNCIL. I ' BouRooiN gation. Their counsel, however, expressed a desire to DuCHKinrnK^^^'Sue the remaining appeals (Nos. 117 and 141), and rkTl"otJawa s^*^sfi^f^ *h^i^ Lordships that they were entitled to do ktOocident'l. so. Those appeals have accordingly been heard, and Judgment, their Lordships have now to give judgment upon them, In order to see clearly what are the questions raised bv them, it is necessary to refer shortly to some of the pro- ceedings in the two actions numbered respectively in the Superior Court 698 and 1,213. In the latter of these, which was brought by the Appel- lants against the comj)any in December, 1874, in order to recover tlie amount due on the award, the Respondent, the Attorney-General, intervened in the month of Febru- ary, 1878. The cause was heard on the 18th of April, 1878, by Mr. Justice Mackay in the Superior Court against both the company, the defendants, and the Attorney-General as intervenor, and the judgment of that Court dismissed the intervention, and condemned the company to pay to the Appellants the amount due on the award. From this judgment the company and the Attorney- General appealed separately. The Court of Queen's Bench reversed the judgment of the Superior Court against the company, and the appeal of the Appel- lants against so much of their judgment (No. 144) has already been disposed of. The appeal of the Attorney- General was also allowed, and the judgment of the Superior Court reversed as against him, but on the ground that the intervention, though legally competent, was unneces- sary, without costs. Hence the appeal No. 117. Again, the Superior Court, b}^ its judgment in suit No. 693, wherein the company sued to set aside the award, dismissed that suit with costs. The company appealed against that judgment, and has succeeded both in the Court of Queen's Bench and here in getting it re- versed. The date, however, of the judgment of the PRIVY COUNCIL. 239 BOURGOIN V. PAONIE EM IN OE MONT- Superior Court was the 30th of April, 1877 ; the appeal against it was not lodged until the 5th of October follow- LaComi Iw and intermediately, i.e., on the 22nd of May in that J''i:k i>e ' o' . . - • p ^ • KKAL, Ottawa year, the Appellants issued a writ of execution for their et Occident'l. costs, under which the sheriff seized certain lands, roll- Judgment. 'mMrA(iNiK perHon to iiccopt transfers of tlie shares of the comtmnv 1)1 f.HKMIN l)K ... . • Fku i>kMo.\t- held l)y the individual shareholch'rs tlierein. Ki:.\i,, Ottawa KT()((ii)KNT"r,. By the 8th, the eoTn2)any undertook to assist the Gov- .luDoMKNT. eminent, in any manner that mif^ht he required, in pro- curing' the passage of any Act hy the Dominion or the Pro- vincial Parliament that the Government mi<^ht deem ex- pedient to have passed in the interest of the enterpnsf, and to furnish aid and assistance in other matters. And, hy the 9th, it was })rovided that the Deed slioiil.! have no force or ell'ect after the termination of tht, next Session of the Legislature of the Provinee of Quel)oc, un- less confirmed hy the said Legislature at the next Session thereof, nor until such confirmation; hut that it shouM he suhmitted for such confirmation to the next Session of the said Legislature, and, immediately upon such con- firmation, should have full force and effect according to its terms. The >. onfirmation required hy this last clause of the Deed was given hy the Act 39 Vict. c. 2, which wib imssed by the Legislature of Quebec on the 24th of Dee- ember, 1875. That Statute not only, by its 8th section, confirmed in the fullest manner the transfer and assiiju- ment of the 2nd of November, 1875 ; it did a great deal more, it combined the enteri)rise of the ]\IontreaI, Ottawa, and Western Railway Company with that of another company called the North Shore Railway Com- pany, which had made a similar transfer in favour of the Government of Quebec; it gave to the railway to be completed the new name of " The Quebec, Montreal, Ot- tawa and Occidental Railway;" it declared that railway to be a public work belonging to the Province of (Quebec, held to and for the public uses of the Province, and pro- vided for the mode of its construction; it vested the construction and management of that railway in certain in\ 1 T M\ T'lf! I'lUVV COUNCIL. •248 (,)raiuissionor.s, with ample and dofinod powers ; by sec- iJouKtiois t;ou 11 it made the provisioua of tlie (^)u('bec Railway La CoMVA(iNiK f 11 1- 1 1 i ii 1 "l- CHKMIN I)K A( t, 1H<)!>, SO far as they were ai)pucal)le to the under- Fku i>k Moxt- t:ikinf,' and not inconsistent with the provisions of that KroiViuKXTL! 1 Act. a[)pli('able to the said railway, and empowered the ( Miunussioners, in cases where proceedinj^'s had been (ommenced by the Montreal, Ottawa, and Western Kail- way for the expropriation and acquisition of lands for the purpo.ses of that railway, and had not been completed, to continue such proceedings under the provisions of the Quebec Paii'way Act, but with the consent of the proprie- tor of such lauds, or to discontinue such proceedings, and commence proceedings d' novo under the said (^ue- iitx' Railway Act ; and by section 24 it reunited lands whiuh had been granted to the Montreal, Ottawa, and Western Railway Company, to the public lands of the Province. Sections -13, 44, 45, and 40 have even a more (liit'ct bearing upon the questions raised by the two ap- peals now mider consideration. Section 43, in order "to avoid all doubts," enacts that the Quebec, Montreal, and Oeeitleutal liailway is thereby invested with all the lights, powers, immunities, franchises, privileges, or assets granted by the Legislature of the Province of Ijiiebee to the Northern Colonization Railway Company, and, so far as that Legislature could do, with all the rights, powers, immunities, franchises, privileges, and assets granted by the Parliament of the Dominion of Canada to the Montreal, Ottawa, and Western Railway Company. Section 44 takes away the power of the last- mentioned company to appoint Directors, and abolishes the Directorate contemplated by the former Statutes. Section 45 transfers to the Commissioners the rights of the individual shareholders in the Montreal, Ottawa, and Western Railway Company, providing that their paid-up stock shall be refunded to them ; and section 46 au- .Tl l)i..MK.VT. \ i m\ 2i4 PRIVY COUNCIL. Boi'RGoiN thorizes the CoQimissioners, with the consent of the La Oomi'A(;nmk Lieutenant-Governor hi Council, to anplv to the J'arlin. ni' Chemin iiK , ... Fku nic .Mont- mcnt of Canada for any legishition which may be deemed iu:al, Ottawa c ii < i ETOocinKNT'r.. necessary lor the purposes ol the Act. .Tldomknt. The combined effect, therelorc, of the Deed and of this Statute, if the transaction was valid, was to transfer a federal railway, with ail its appurtenances, and all tbf jwoperty, liabilities, rights, and powers of the existiiii: company, to the Quebec Government, and, throughit, t o a company with a new title and a different organization; to dissolve the old federal company, and to substitut; for it o.\)<^ which was to be governed by, and subject to, Provin-ial legislation. It is contended on the part of the Appellants that this transaction was invalid, and nitogether inoperative i» affect the obligations of the company. They insist that, by the general law, and by reason of the special legisla- tion which governed it, the company was incompetent thus to dissolve itself, to abandon its undertaking, and to transfer that, and its own property, liabilities, powers, and rights to another body, without the sanction of an Act of a competent Legislature ; and, further, that the Legislature of Quebec was incompetent to give such sanc- tion. This contention appears to their Lordships to be well founded. That such a transfer, except under the authority of an Act of Parliament, would in this country be holil to be ultni vires of a railway comj^any, appears from the judgment of Lord Cairns in Ganlncv v. Lomlou, Chathdiii, nnd Dover liaihrdii Companii (1). That it is eq lally repugnant to the law of the Province of (Quebec, so far as that is to be gathered from the Civil Code, is shewn by the HGDth Article of that Code. But the strongest ground in favom- of the Appel- (1) L. K. 2 Ch. 201, 212. fpl T ^w PRIVY COUNCIL. 245 ■ !|l» hints' contention is to be found in the special legislation Bouuooin timchiuii: this railway company. The history of the T-'^Co-^n'Ar.ME ^ ° _ • . ... or Chkmin i)K company and of its conversion from a provincial into a Fku dk Mont- ' ^ "^ . , . , KEAL, Ottawa federal railway company has beon stated ni the judg- ktOcciukntl. meiit alreatly delivered. By section 1 of the Canadian .jli)gment. Statute, 36 Yict. c. 82, which effected that conversion, the railway was declared to be a work for the general ad- vantage of Canada. By the 5th section of the same Statute it was enacted that the continuations of the line thereby authorized should be deemed to be railways or a lailway to be constructed under the authority of a special Act passed by the Parliament of Canada, and that the tompany should be deemed to be a company incorpo- rated for the construction and working of such railwaj'S and railway, according to the true intent and meaning of the Eaihvay Act, 1868 (the Dominion Statute). By the Gth section, parts 1 and 2 of the Bailway Act, IsiiS (which comprise all the general and 'material pro- visions of that Statute), were made applicable to the wliole line of the railway, whether within or beyond the tiiterprise originally contemplated ; and it was enacted that no part of the Quebec Railway Act, 18()9, should apply to the said railway, or any part thereof, or to the said company. And by the 7tli section it was provided that the two Acts of the Quebec Legislature (32 Yict. c. 3'), and 34 Vict. c. 28), by which the company had been incorporated, and previously governed, should be read and construfHl and have effect as if the changes of ex- pri'ssion therein mentioned (the effect of which would be to make them speak as Acts of the Canadian Parliament) had l)oon made in them ; that so read and construed and taking effect, they should be deemed to be special Acts according to the true intent and meaning of the Eail- vay Act, 1868, and that no part of the (()uebec Bail- ^vay Act, 1869, should be incorporated with the said m 240 PRIVY COUNCIL. BoDBGoix special Acts, or either of them, or form part thereof, or La CoMPAGNiK be construed therewith as forming one Act. UV C'HEMIN I)E Fkr i)k Mont- These provisions, taken in connection with, and leiid ETOcriDENTL. by thc light of those of the Imperial Statute, the B. X. .\, Judgment. Act, 18()7, which are contained in section 91, and suit- section 10c of section 92, establish, to their Lordshii,,' satisfaction, that the transaction between the compaiiv and the Government of Quebec could not be validatcl ; i all intents and purposes by an Act of the Provinciiil Legislature, but that an Act of the Parliament of Canada was essential in order to give it full force and effect. This proposition was, finally, hardly disputed by tlk learned Counsel for the Respondent, but they relied upon the Btli clause of the Deed, and the 4Gth section of tlic Quebec Act, as shewing that recourse to the Parliament of Canada for its sanction was within t^'c cuiicemplatinii of the parties, a^.d contended that, before; liiat sanction was obtained, the transaction was valid for some purposes, and gave certain inchoate rights which were ca})al)le of being asserted. In support of their argument they cited The Great Westcnt lidihvdf/ Coinpani/ v. TJic Birmiuijhain and O.iford Jmiction liailwan {1), and what was said by Lord Cottenham in that case. It is to be observed, how- ever, that Lord Cottenham, when ruling tluii. the contract, which could not be fully carried out without Parliamentary sanction, was not, in the absence of such sanction, to be treated as a nullity, and that some of its provisions luigbt nevertheless be binding, was dealing with the rights of the parties to the contract inter sc. Here the public, and the creditors of the company, in which category the Appellants fell, since the questions raised by these two appeals must be considered as if the award were valid, were no parties to the transaction, and could not l)e af- fected by it until it was fully validated by an Act ot the (1) li riiill. 5"J7. ,,i«iiii.i>[iAii PRIVY COUNCIL. 247 PiU'liaraentt of Caittada, to obtain which no attempt seems BorucioiN ever to have beem made. In their Lordships' opinion. LaCompagnie therefore, the tr'aaiHaction, considered as a whole, was of i''i:u de Mont- 110 force or vafliidity as against the rights of the Appellants et occident'l. when the decisions iiil-' the Canadian Courts upon the in- junoMKNT. urveution and th^e op^sition were passed. This being tfl'jK?'ir LoviHships' conclusion, they pro- ceed to consider 1k)w it a^.' <-ts the two appeals, and first that which relates f/y the Attorney-General's interven- tion. Now, if it be a<'.initted. for the sake of argument, though their Lordships inust nut be taken to affirm the proposition, that the Attorney-General had such an in- choate right under the transaction as would have justi- fied bis intervention had there been reason to suppose that the expiring company would fail to make a substan- tial defence to the action Ao, 1,213, it is to be observed that that was not the actual state of things. The action ;tsLlf was not commenced until December, 1870, and the defences of the company were filed on the 30th of that month. The traiisaction between the company and the t^iuebec Government was completed, so far as it was ever completed, in December, 1875. It is, therefore, obvious that, in the first instance, the Quebec Government in- tended to defend the action, in the name of tlie company, luider the provisions of the 7th clause of the Deed. All ibjectious which the company' could take to the award, and in particular the one which has proved fatal to it, were taken in their defences. The intervention of the Attorney- General was not until 1878, and the reasons tiled by him on the 17th of Septen ber in that year are sufhcient to shew that the object o/ the intervention was to raise objections to the validity of the award, founded upon the attempted transfer of 1875, which could not have been taken in the name of the company. Those reasons, the contestation of them, and the other plead- 248 PRIVY COUNCIL. BouRGoiN ings shew that the new issues raised hetween the parties LaCompagnik were the vaHclity of the transfers as against the Addc'i- DU Chbmin i)i; . . . ^^ Fkh dk Mont- Lants, the right of the Commissioners under the Queljtc btOccidknt'k. Act to continue or discontinue the proceedings in tbt Ji'DGMKNT. expropriation, the abandonment of the railway, and its transformation into a new railway, to be consti'ucted un- der different conditions. This intervention was onlv necessary for the trial of these fresh and additional issues; and was, as the Court of Queen's Bench itself has found, wholly unnecessary for the trial of the orii^i. nal issues. Upon the trial of the action in the Superior Court, Mr. Justice Mackay expressly found "qucks faits allegues dans la dite intervention, savoir le trans- port cles droits et actions de la dite defenderessc au Gouvernoment de la dite Province de Quebec, n'a pas et^ prouve avoir lieu legalement," a finding in accord- ance with the conclusion to which their Lordships bave come touching the transaction of 1875, and one Mdiicli would justify the dismissal of the intervention, even if the learned Judge had taken a view different from tluit which he d'd take of the validity of the award. The Attorney-General has failed to shew any grounds for in- flicting upon the Appellants the costs of unnecessary and expensive proceedings. In these circumstances. their Lordships are of opinion that the Court of (^lueen's Bench ought to have dismissed the appeal of the Attor- ney-General, and to have affirmed the judgment of the Sui^erior Court, in so far as it related to the intervention, with costs. Their Lordships have now to consider Appeal No. 14i, which arises out of the " opposition dfin de distmrc" That opposition to the execution could not succeed as to such of the lands seized as had belonged to the company, unless it were established that the property in those lauds had been changed by the attempted transferof 1875. Their TRIVY COUNCIL. 249 BOURGOIN V. Lordships are of opinion that there was no such change of property. The transaction, viewed as a whole, and as one [^^^ chemin'i'e siiiffle contract, could not, for tlio reasons above stated, ^'''•-'^ he jmont- siiif,iv V , , , KKAi,, Ottawa oiierate as a valid transfer of the lands of the company to ETOcciPEyTx. the Government of Quebec. Their Lordships feel bound Jvugmknt. to dissent from two propositions, on one of which the jiulgment of Mr. Justice Johnson, and on the other of which the judgment of Chief Justice Dorion, in part proceeds. Mr. Justice Johnson ruled that the contest- ants ought, if they questioned the validity'' of the trans- action of 1875, to have concluded that it should be set aside or declared null, and that, by reason of their failure to do so, they must be taken to be bound ])y it. Chief Justice Dorion expressed an opinion that it was only at the instance of the Governmeiit of Canada (the Domin- ion), or of an individual who could shew that he had a special interest distinct from that of the public, that the transfer could be set aside. These reasons arc somewhat contradictory, and their Lordship -i cannot think that eiiher aftbrds a good ground for the judgment impeiiched. If the transaction, not having the sancticjn of the Parlia- ment of Canada, were ultra vires of the company and the Government and Legislatm'e of Quel.'ec, it was of no legal force or validity against the Appellants, and might be so treated by them whether it were formally set aside or not. The ether grcnind on which the judgment pro- ceeds, and which has been chiefly insisted upon here, is more plausible. It is that the company had power, under the second sub-section of the 7th section of the liailway A.ct, 1868, to " alienate, sell, and dispose of its lands;" that the transaction of 1875, even if invalid as a whole, is severable, and that the company must be taken to have sold by it their land to the Government of i^)uebec in the exercise of that power. Their Lordships cannot accede to this argument. It appears to them that • ij 250 PRIVY COUNCIL. BOI'RGOIN V. Fk RK ET tl'e contract is not severable in the manner siiwcstod. LaComi'aome It is a contract whereby, for the same consideration Df ChKMIN I)E "^ ' • K i)E Moxr- everything which it purported to pass was intended to AL, Ottawa occiDK.M'L. pass. Suppose what was suggested by Chief Justice Jl;)i;mk.nt. Dorion were really to happen, that the Dominion u ,. ernment were to take steps to set aside the transaction, could the (jovernment of Quebec be heard to say, " True, the transaction will not stand as a transfer of the rail- way, or of the rights, powers, lia])ilities, and duties of the company, but it may enure as a sale of the Iannis acquired in order to the construction of the railway, or part of them, in the exercise of the power in question, " Would not the answer be, " There is no trace of such a contract, or of an iiitention to make it?" By the evidence taken on this proceeding, it appeared that a considerable part of the lands, rolling stock, ami other property seized, had never belonged to the com- pany, but had been purchased by the Commissioners since 1875. In respect of that property, the Attorney-General w;!s entitled to succeed in his opposition. He should, how- ever, have been held to have failed as to the lands, etc., which l>ad belonged to the company. And in tlieir Lordships' opinion, the proper order to be made was one which would have upheld the seizure as to this latter part of the property in question, whilst it granted iimin h'n',! as to the rest, leaving each party to pay tlieir own costs. Since the execution must now altogether fail by reason of the award having been set aside, it will not be neces- sary to draw up a formal order to the above effect. The order which their Lordships will humbly recom- mend Her Majesty to make on the four consolidated appeals will be to the following effect, viz., to dismiss the appeals numbered respectively 13 and 144, and to allow those numbered respectively 117 and 141 ; to PRIVY COUNCIL. 251 BOVRGOIN V. affirm the judgment of the Court of Queen's Bench in the suit No. 693, wherein the company was phiintiff, and LaCompagnik IIU ChKMIN I)K the Appellants and others Avere detendants; to reverse so Kick dk Mont- . , . T , ,. l^ ^, 1 (• / V ) 1. 1 • iiivAL, Ottawa much ot the judgment ot the Court ot (jueen s liencli ni KioceinKNTi.. the action 1,218, wherein the Appellants were plaintiffs, ji-ix^xr. and the company, were defendants, and the Attorney- General intervenor, as relates to the intervention of the Attorney-General, and in lieu thereof to atlirm so much of the judgment of the Superior Court in the same suit as relates to such intervention, with the costs of the appeal to the Queen's Bench ; but to affirm in all other respects the last-mentioned judgment of the Court of Queen's Bench ; to reverse the judgment of the Court of Queen's Bench in the matter of the opposition " a Jin de distrairc," and to declare that in lieu thereof, an order should have been made reversing the judgment of the >upevior Com't in such matter, and declaring that the opposition should have been allowed as to so much only of the property seized as had been purchased by the Commissioners since 1875, and disallowed as to the rest, and that each party should boar their own costs in both Courts, but that by reason of the f:i'lure of the execution iu consequence of ihe setting aside of the award, it had hecome unnecessary to draw up any such order. Their Lordships are of opinion that, under the cir- cumstances, no ordt-r should be made as to the costs of these consolidated appeals. I ' * ( ■■%'<. i 'I : i i HI' 252 PRIVY COUN'CIL. J. C* 1880 Feb. 24, 25 ; Aiyi-il 15. [PRIVY COUNCIL/ Charles Cushino CJfiiDomt, AND Louis DupuY Conti-atiint. On appeal from the Court of (JHneiis Beucli. for Qitebnc, Ciui.-c/r;, [Reported 5 A pp. Ca^. 400.] Prerogative of the Crown to admit Appealu — Powers of JjDminion and Provincial Legidatures — B. N, A. Act, ISOi', tss. 'Jl, 02— Canadian Act, 40 Vict. c. 4I, s. 2S—" Final." The B. N. A. Act, 18G7, s. 91, in assigning to the Dominion Parlia- ment the subjects of bankruptcy and insolvency, conferrod un it legislative power to interfere with property, civil rights and procedure within the Provinces, so far as these might be affected by a general law relating to those subjects ; conse- quently the Dominion enactment, 40 Vict. c. 41, s. 28, providiiv,' that the judgment of the Court of Appeal in matters of insol- vency should be final, i.e., not subject to the appeal as of rii;ht to Her Majesty in Council, allowed by the Lower Canada Civil Procedure Code, Art. 1178, is within the competence of the Do- minion Parliament, and does ncjt infringe the exclusive powers given to the Pi'ovincial Legislatures by sec. 92 of the Lnperial Statute ; nor does it infringe the Queen's prerogative, for it only limits the right of appeal as given by the Code. The section, according to the true construction of the word "final" therein, excludes appeals to Her Majesty, but contains no words which purport to derogate from the prerogative of the Queen to allow such appeals as an act of grace. It, therefore, does not interfere with the prerogative of the Crown ; and, qua' re, what powers may be possessed by the Parliament of Canada so to do. Cuvillier r. Aylwin (1) reviewed. * Present :— Sir James W. Colvile, Sh- Barnes Peacock, Sir Montague E. Smith, anil Sir Jtobert P. Collier. (1) 2 Knapp, P. C. 72. Appeal tV Beucli of t whereby a jn was reversed The qucs hint's right t estate, and assignee (the The judgra the AppcUan is not necessi Tlioreupon Her Majesty that a rule / was argued, r mously disclii judges as hac hiw judgmeq (iiieen's Bene that from sue iu Her Privy on the 27t Majesty in C( and prosecute tion of Her j cases of insol Mr. Keneli minary object diction of H( away by Can, amended the 128), by addi: Court to win made shall I: I Iff PRIVY COUNCIL. 268 Appeal from a judgment of the Court of Queen's Bench of the Province of (Quebec (March 22, 1878), whereby a judgment of the Superior Court (Oct. 5, 1877) was reversed. The question raised in the case was as to tlie Appel- hmt's right to certain property l)elonging to an insolvent istate, and which the Appellant claimed from the assignee (the Eespondent). The judgment of the Court of Queen's Bench dismissed the Appellant's petition with costs, on grounds which it is not necessary to set out. . Thereupon the Appellant moved for leave to appeal to Her Majesty in her Privy Council, and it was ordered that a rule nisi be issued for that purpose. The rule was argued, and, on the 22nd of June, 1878, was unani- mously discharged by the Court, consisting of the same judges as had heard the appeal, on the ground that by law judgments rendered on appeals to the Court of (lueen's Bench in matters of insolvency are final, and that from such judgments no appeal lies to Her Majesty mHer Privy Council. vju the 27th of November, 1878, by an order of Her Majesty in Council, the Appellant was allowed to enter find prosecute his appeal, without prejudice to the ques- tion of Her Majesty's jurisdiction to admit appeals in eases of insolvency from the Court of Queen's Bench. Mr. Kenelm Digby, for the Piespondent, as a preli- minary objection to the appeal, contended that the juris- diction of Her Majesty to entertain it had been taken away by Canadian Statute 40 Yict. c. 41, s. 28, which amended the Insolvent Act of 1875 (38 Vict. c. 16, s. 1'28), by adding thereto the words, " the judgment of the Court to which under this section the appeal can be made shall be final." Such provision was within the CUSHINO r. DUI'UT. Statkjiest. ;'t ■. i 1 . -:;■ ■ 1) ■ M 11 i 11 m iH PI 1 i m 254 PIUVY COUNCIL. C'DSHINfi v. Dl'PL'V. comiietoiicc of the Dominion rarliamcnt, by virtue of its general legislative authority, and of tlie special Vk.umknt. powers relating to ])ankrupt('y and insolvency confevviil by B. N. A. Act, 1807, h. i)l. " Final " may mean— 1st, final in the Colony, /. c, proliil)iting an appeal to tht Supremo Court; or '2nd, that the prerogative of the Crown to grant an appeal is taken away; or 3rd, that the appeal as of right to the Crown is taken away. It was intended to render the judgment referred to final as far as the Legislature could make it final ; and therefore the quts- tion resolves itself into one of the extent of the legisla- tive authority, whether it could and had taken away tlie royal prerogative. The authorities cited were, Cuvillier V. Aylwin (1) ; Modee Kaikhooscrow Hormusjee ;, Cooverbhaee (2) ; In re Louis Marois (3) ; Queen i\ Eduljee Byramjee (i) : (Jueen v. Stephenson (5) ; Theberge v. Landry (6) ; Johnston v. Minister of St, Andrew's (7). Assuming that Her Majesty's jurisdietiou is not taken away, no case has been made out for grant- ing special leave. (Sir Montague E. Smith — But leave has been granted, and the case is here, and, unless the jurisdiction has been taken away, had better proceed.) Mr. Davidson (of the Canadian Bar), for the Appel- lant, contended that the appeal lay as of right to the Crown under Art. 1178. Such appeal cannot be taken away by a Dominion enactment ; if it could be interfered with at all by Canadian authority, it must be l)y the Provincial Legislature, Avhich had the exclusive right of dealing with this matter, being one of civil procedure; See B. N. A. Act, 1867, sec. 91, sub-sec. 27, and sec. 101. Reference was made to Meer Reasat Hossein r. Hadjee (1) 2 Knapp, P.O. 72. (4) 5 Moore, P.C, 27(). (2) fi Moore, Iiul. Ap. Ca. 448, 454, 455. (5) 5 Moore, P.C, 29G. (3) 15 Moore, P.C. 189. (6) 2 App. Caa. 102. (7) 3 App. Cas. 159. [The argiime beiiii' material i IMUVV COI-NC'II,. lloo Vlulooliih (1). The word "final," in sec. 28 of tlio ])omiuion Act (40 Vict. c. 41), docs not necessarily mean more than that the judgment was final as regards tlie Ciuiacliau Courts. Tlie power of appeal to llie Privy (.'ouiK'il is not expressly taken away ; while as regards tlie prerogative of the Crown to grant the special leave uliich has already heen accorded, the section does not purport to interfere therewith. It would require express 1111(1 precise words to cut down the prerogative, even if the Parliament of Canada had power so to do. Mr. Dighy replied. :The argument ami jiulgment upon the merits are omitted, not beini; material to the (question on the B. N. A. Act. ] The judgment of their Lordships was delivered by Sir Montagup: E. Smith: — This appeal is from a judgment of the Court of Queen's Hinch of the Province of Quebec, reversing the judgment of a judge of the Superior Court, which had been given in the Appellant's favour, in certain proceedings in insol- VLiicy instituted under an Act of Parliament of the Dominion of Canada, intituled "An Act respecting Insolvency " (38 Vict. c. 16). These proceedings were commenced by a petition of )[r. Gushing, the Appellant, to the Superior Court, pray- ing that Mr. Dupuy, the official assignee of the estate of the insolvent firm of McLeod, McNaughton & Leveille, might be ordered to deliver up certain property seized by liim, as such assignee, under a writ of attachment, on the ground that it had been sold to the petitioner by the insolvents before their insolvency. An application to the Court of Queen's Bench for leave to appeal to Her Majesty in Council was refused, (1) L. E. 1 Ind. App. 72. C'lsHiNa r. Dli'ly. AlKilMENT. m .4 I I \A k-'W IMAGE EVALUATION TEST TARGET (MT-S) k // . ,>^ #3 '/ ^# Photographic Sciences Corporation 4 ^ \^ \ \ 6^ '^ "^ 23 WEST MAIN STREET WEBSTER, NY. 14580 (716) 873-4503 ^ &\:\' 850 PRIVY COUNCIL. Gushing V. Duply. •i.i Oil the ground that, under the Insolvency Act, its jiulfr. mcnt was final. The Appellant then presented a i)t'titioii JuDGMKNT. to Her Majesty for special leave to ajipeal, which lltr Majesty was advised hy their Lordships to gi'ant, reserv- ing to the Respondent power to raise at the hearing; the question of Her jurisdiction to entertain the appeal. That question, which has been fully argued at the Bar, raises two points: first, whether the Court of Queen's Bench was right in holding that the appeal to Her Majesty in Council, given de jure by Art. 1178 of the Code of Civil Procediu'e, from final judgments rendered on appeal by that Court, is takon away ])y the Insolvency Act; and, secondly, if that be so, whether the power of the Crown, by virtue of its prerogative, to admit the appeal is affected l)y that Act. The 128th section of the Insolvency Act enacts as follows : — "In the Province of Quebec all decisions by a Judge in Chambers in matters of insolvency shall be considered as judgments of the Superior Court ; and any final order or judgment rendered by such Judge or Com-t may be inscribed for revision, or may be appealed from by the parties aggrieved, in the same cases and in the same manner as they might inscribe for revision or appeal from a final judgment of the Superior Court in ordinary cases under the laws in force when such decision shall be rendered." By the 28th section of a subsequent Act of the Parlia- ment of Canada, 40 Vict. c. 41, it is enacted that the 128th section of the former Act shall be amended by adding thereto the following words : — • " The judgment of the Court to which, under this sec- tion, the appeal can be made shall be final." This Court, in the Province of Quebec, is the Com-t of Queen's Bench. i -..■ I 1 vAii-imii PRIVY COUNCIL. 257 The whole question turns on these added words, and, tJusfUNo in considering their efifect on the right of appeal to the D^- Crown given dc jure by the Code, two things are to be Jddgmknt regarded : (1) the power of the Dominion Parliament to abrogate this right; and (2), if it had the power, whether it intended to exercise it. The first of these questions depends upon the con- struction of the B. N. A. Act, 1867, which confers and distributes legislative powers. By section 91 of that Act, exclusive legislative authority in certain matters is conferred upon the Parliament of Canada ; and by section !)2, exclusive authority in certain others upon the Pro- vincial Legislatiures. Section 91 is as follows : — "It shall be lawful for the Queen, by and with the advice and consent of the Senate and House of Com- mons, to make laws for the peace, order and good govern- ment of Canada, in relation to all matters not coming within the classes of subjects by this Act assigned exclu- sively to the Legislatm-es of the Provinces; and, for greater certainty, but not so as to restrict the generality of the foregoing terms of this section, it is hereby declared that (notwithstanding anything in this Act) the exclusive legislative authority of the Parliament of Canada extends to all matters coming within the classes of sul)jects next hereinafter enumerated, that is to say: — "21. Bankruptcy and Insolvency." Section 92 enacts — "In each Province the Legislature may exclusively make laws in relation to matters coming within the classes of subjects next hereinafter enumerated ; that is to say — " 18. Property and civil rights. "11. The administration of justice in the Province, 17 ' 1 1 1 i'lh rp-- 1* '' i ; ii, II CUSHINO r. Dii-rv. JUIKiMKNT. 258 PRIVY COUNCIL. including the constitution, maintenance and organization of Provincial Courts, both of civil and of criminal juris. diction, and including procedure in civil matters in those Courts." It was contended for the Appellant that the provisions of the Insolvency Act interfered with property and civil rights, and was therefore ultra vires. This objection was very faintly urged, but it was strongly contemltd that the Parliament of Canada could not take away the right of appeal to the Queen from final judgments of the Court of Queen's Bench, which, it was said, was part of the procedure in civil matters exclusively assigned to the Legislature of the Province. The answer to these objections is obvious. It would be impossible to advance a step in the construction of a scheme for the administration of insolvent estates with- out interfering with and modifying some of the ordinary rights of property, and other civil rights, nor without providing some mode of s oecial procedure for the vesting, realization, and distribution of the estate, and the settle- ment of the liabilities of the insolvent. Procedure must necessarily form an essential part of any law dealing with insolvency. It is therefore to be presumed, indeed it is a necessary implication, that the Imperial statute, in assigning to the Dominion Parliament the sul)jeets of bankruptcy and insolvency, intended to confer on it legislative power to interfere with property, civil rights, and procedure within the Provinces, so far as a general law relating to those subjects might affect them. Their Lordships therefore think that the Parliament of Canada would not infringe the exclusive powers given to the Provincial Legislatures, by enacting that the judgment of the Court of Queen's Bench in matters of insolvency should be final, and not subject to the appeal as of right to Her Majesty in Council allowed by Art. 1178 of the Code i.1 ]< viU'ik&m luk I'RIVV COUNCIL. 259 CUSHINO V. Dlpiy. of Civil Procedure. Nor, in their Lordship's opinion, would such an enactment infringe the Queen's prerogative, since it only provides that the appeal to Her Majesty Juix.mwt (tiven by the Code framed under the authority of the i'rovincial Legislature, as part of the civil procedure of tlu; Province, shall not be applicable to judgments in the iH'W proceedings in insolvency which the Dominion Act creates. Such a provision in no way trenches on the lioval prerogative. Then it was contended that if the Fiuliament of Canada had the power, it did not intend 10 abolish the right of appeal to the Crown. It was said that the word " final " would be satisfied by holding that it prohibited an appeal to the Supreme Com-t of Canada, established by the Dominion Act of the 38th Vict. c. 11. Their Lordships think the effect of the word cannot be so confined. It is not reasonable to suppose that the Parliament of Canada intended to prohibit an appeal to the Supreme Court of Appeal recently established by its own legislation, and to allow the right of immediate ajipeal from the Court of Queen's Bench to the Queen to remain. Besides, the word "final" has been before used in Colonial legislation as an apt word to exclude in certain cases appeals as of right to Her Majesty. {See the Lower Canada Statute, 34 Geo. III. c. 30.) Such an effect may, no doubt, be excluded by the context, but there is none in the enactment in question to limit the meaning of the word. For these reasons their Lordships think that the judges below were right in holding that they had no power to grant leave to appeal. The question of the power of the Queen to admit the appeal, as an act of grace, gives rise to different consi- derations. It is, in their Lordships' view, unnecessary to consider what powers may be possessed by the Parlia- ment of Canada to interfere with the royal prerogative, 1 :V^V.Uoave to appeal was granted in that case, subject to the risk of a petition being presented to dismiss the appeal as incompetent. Although their Lordships, in fjriiuting this leave, said that they desired to intimate 11(1 opinion whether the decision in Cuvillier v. Aylwin could be sustained or not, it is obvious that, at the least, they regarded it as being open to review. Ill Johnston r. The Minister and Trustees of St. Andrew's Church (1), upon an application for special leave to appeal against a judgment of the Supreme Court of Canada, the efiect of the 47th section of the Act estab- lishing that Court, which enacted that its judgments should be final and conclusive, saving any right which Her Majesty may be graciously pleased to exercise by virtue of her royal prerogative, came in question, and the Lord Chancellor, in giving the judgment of this Committee, said : — " Their Lordships have no doubt whatever that assum- ing, as the petitioners do assume, that their power of ap[)eal as a matter of right is not continued, still that Her Majesty's prerogative to allow an appeal, if so advised, is left entirely untouched and preserved by this section." I» 1,1 (1) 3 App. Cas. 159. ill 'KM m 'i f r r? i }'' 1' 262 rnivY COUNCIL. Cl'SHINO I'. DlPfY, Although leave to appeal was in this instance rofusiil, on the ground that the case was not a proper one toi' JiDCiMENT. the exercise of the prerogative, the opinion cited aljuve is virtually opposed to the decision in Cuvillior c. A3dwin, where, it is to be remembered, the Act in ques- tion likewise contained a saving of the in-erogative of the Crown. Another case lately before this Committee requiiv- consideration — Theberge and another v. Landry (2). It was an application for special leave to appeal against 9 judgment of the Superior Court of Quebec upon an election petition, by which the applicant had htin unseated for corrupt practices. By the Quebec Contro- verted Elections Act, 1875, the decision of controvi'ittd elections, which formerly belonged to the Legirtlative Assem])ly itself, was conferred upon the Superior Court, and by section 90 of the Act it was enacted that tliu judgment of tliat Court sitting in review should not lie susceptible of appeal. It was held by this Committee that there was no prerogative right in the Crown to review the judgment of the Superior Court upon an elec- tion petition, and the application was refused. This decision turned on the peculiar nature of the jurisdiction delegated to the Superior Court, and not merely on the prohibitory words of the statute. It was distinctly and carefully rested on the ground of the peculiarity of the subject-matter, which concerned not mere ordinary ci\il rights, but rights and privileges always regarded as per- taining to the Legislative Assembly, in complete inde- pendence of the Crown, so far as they properly existed ; and consequently it was held that, in transferring the decision of these rights from the Assembly to the Superior Court, it could not have been intended that the detenni- (2) 2 App. Cas. 102. ii.k,^.j.iLitiy MHMta PRIVY COUNCIL. 203 CUSHINO V. DUHUY. uatiou in the last resort should belong to the Queen in Council. But, whilst coming to this decision, the Lord (.'lianeellor, in giving the judgment of the Committee, Judgment. atHnuL'd the general principle as to the prerogative of the Crown : — " Their Lordships wish to state distinctly that they do not desire to imply any doubt whatever as to the general principle, that the prerogative of the Crown cannot be taken away, except by express words ; and they would be prepared to hold, as often has been held before, that in any case where the prerogative of the Crown has existed, precise words must be shewn to take away that prerogative." It was not suggested that an appeal would not have lain to the Queen in Council under the Insolvency Act of 1875 ; and it was not until two years afterwards that the Amending Act of 1877, which is said to have taken it away, was passed. The learned counsel for the Appellant drew attention to the Act of the Parliament of Canada, 31 Vict. c. 1, which enacts rules of interpretation to be applied to all future legislation, when not inconsistent with the intent of the Act or the context. Sub-section 33 of section 7 of that Act is as follows : — *' Xo provision or enactment in any Act shall affect in any manner or way whatsoever the rights of Her Majesty, her heirs, or successors, unless it is expressly stated that Her Majesty shall be bound thereby." The Insolvent Acts are to be construed with reference to this provision, which is substantially an affirmance of the general principle of law already adverted to. Applying that principle to the enactment in question, then- Lordships are of opinion that, as it contains no words which purport to derogate from the prerogative of PIIIVY COUNCIL. 2(53 uatiou in the last resort should belong to the Queen in Council. But, whilst coming to this decision, the Lord C'liancellor, in giving the judgment of the Committee, iiliirmfd the general principle as to the prerogative of the Crown : — " Their Lordships wish to state distinctly that they do not desire to imply any doubt whatever as to the general principle, that the prerogative of the Crown cannot be taken away, except by express words ; and they would be prepared to hold, as often has been held before, that in any case where the prerogative of the Crown has I'xistod, precise words must be shewn to take away that prerogative." It was not suggested that an appeal would not have lain to the Queen in Council under the Insolvency Act of 1875 ; and it was not until two years afterwards that the Amending Act of 1877, which is said to have taken it away, was passed. The learned counsel for the Appellant drew attention to the Act of the Parliament of Canada, 31 Viet. c. 1, which enacts rules of interpretation to be api)lied to all future legislation, when not inconsistent with the intent of the Act or the context. Sub-section 33 of section 7 of that Act is as follows : — " Xo provision or enactment in any Act shall affect in any manner or way whatsoever the rights of Her Majesty, her heirs, or successors, unless it is exjiressly stated that Her Majesty shall be bound thereby." The Insolvent Acts are to be construed with reference to this provision, which is substantially an affirmance of the general principle of law already adverted to. Applying that principle to the enactment in question, theh' Lordships are of opinion that, as it contains no words which purport to derogate from the prerogative of CUHHINCi DUFUY. JUDOMKNT. !, 2G4 PRIVY COUNCIL. COSHINO V. DnpuY. the (Jiieen to allow, as an act of grace, apiieals from tlio Court of Queen's liench in matters of insolvency, her JuDOMKXT. authority' in that respect is unaffected hy it. The order for leave to ai)peal granted in the present case will consequently stand. V\\i^ * Present : — Collier, Sir Hie HiIIm PRIVY COUNCIL. 2G5 [PlilYY COUNCIL.] The Citizens Insurance Company of i , „ , Canada, ^AppcUanta, AND William Parsons, Iies2)ondt'n t. The Queen Insurance Company ippcllunts, AND William Parsons, Respondent. On Appeal from the Supreme Court of Canada. (Reported 45 L. T. N. 8., 721.; The power of the Dominion Parliament for the regulation of trade and commerce includes political arrangements in regard to trade, and regulations of trade in matters of interprovincial concern, and may jjerhaps include general regulations affecting tlie whole Dominion, but it does not comprehend the power to regulate the contracts of a particular business or trade (such as the business of fire insurance) in a single Province. An Act of the Province of Ontario to secure uniform conflitions in policies of fire insurance was held to be within the power of a Provincial Legislature over " property and civil rights." Such an Act, so far as relates to insurance on property within the Province, may bind all fire insurance companies, whether in- corporated by Imperial, Dominion, Provincial, Colonial or Foreign authority. * Present : — Sir Barnes Peacock, Sir Montague Smith, Sir Robert P. Collier, Sir llichard Couch, s^d Sir Arthur Hobhouae. •J. C. 1881 Jiil/i 7, 8, !♦. Nor. 2«. M ' s^ :f 'i; ;lii'Mll mm L r ■ t 1 1 1*1^ 1 1 2(i!i I'UIVY COlNlil,. Pakmonh, Statkmknt. H' CiTi/KNs AND A I'nniiiiinn Act IlIlvill^ rotiuired insuranco cunipiiniuB tct olitain Isxi UAN( K liiunsfs from the Afinister of Financu lis n comlitioti to tluii ojii'ANiKH carryinj,' mi tlio buHiiiesa of inaiiranco in the Dominion, iioitlni till! Act, nor the fact of a company having obtained such lictiis. , waH held to withdraw the company from the operation > if thu I'rovinciitl Act. These w?re two nppeftls from judgments of the Su- preme Court of Canada (1) IJitehie, C. J., Fournit r mikI Henry, J.T., Taschereau and Gwynne, JJ., dissenting', which had allirmed the judgments of the Court of Apjuiil for Ontario (2) which had atilirmed the judgments of the Queen's Bench (3), discharging rules nisi obtained hy the present Apjiellants to set aside verdicts obtaiiud hy the present liesponvlent in two actions brought by him against the appellant companies. The actions were brought upon contracts of lire insur- ance, and the facts, arguments, and sections of the Statutes referred to appear fully from the judgment of their Lordships. The Solicitor-General (Sir F. Herschell), Mr. Benjiimin, Q.C., Mr. Bethune, Q.C. (of the Canadian Bar), and Mr. Jeune, for the Appellants. Sir J. Holker, Q.C, and Mr. A. L. Smith for the lle- spondent. li At the conclusion of the arguments, their Lordships took time to consider their judgment. Their Lordships gave judgment as follows : — The questions in these appeals arise in two actions (1) 4 Can. S. 0. R. 215; post, p. 284. (2) 4 App. Rep. (Ont.) %, 103. (3) 43 U. C. Q. B. 261, 271. » I'llIVY COUNCIL. 2(17 I'AHSrtNS. JllXiMKNT. liroii^'ht l>y the same plaintiff (the Respondent) upon ^''''''f,'J'*^'*^.;J'*" .oiitnu'ts of insurance a<'ainst lire of huildinj's situate In>i "ame in the I'rovince of Ontario, in the Dominion of Canada. The most important (piestion in hoth appeals is one of those, already numerous, which have arisen upon the provisions of the 15. N. A. Act, 1H(J7, relating to the dis- trilaition of legislative powers hetween the Tarliament of Canada and the Legislatures of the I'rovinces, and, owing to the very general language in which some of these powers are descrihed, the question is one of con- siilt'iahle dilliculty. Their Lordships propose to deal with it hefore approaching the facts on which the par ticuiar questions in the actions depend. It will only he iK'Cc'Ssary to premise that "The Citizens Insurn ' o Company of Canrdp.," the defendants in the first action, were originally incorporated by an Act of the late Prov- iuce of Canada, 19 Sc 20 Vict. c. 124, hy the name of "The Canada Marine Insurance Company." By another Act of the late Province, 27 & 28 Vict. c. 08, further powers, including tho power of effecting contracts of in- surance against fire, were conferred on the company, and its name changed to "The Citizens Insurance and Iiivestment Company ; " and, finally, hy an Act of the Dominion Parliament, its name was again changed to the present title, and it was enacted that, by its new name, it should enjoy all the franchises, privileges, and rights, and be subject to all the liabilities of the com- pany under its former name. The Queen Insurance Company is an English fire and life insurance company incorporated under the provisions of the Joint Stock Companies' Act of the Imperial Parliament, 7 & 8 Vict. c. 110. It has its principal office in England, and carries on business in Canada. n ►H I " 1'' ki ;i I i M rl* m' 11 ! ■ 't ^^r'-lfi '.'] ♦ ,!':: , i^ 1 , J •> ^f ' i" \^ ■•;'iu;jt'! ^ ^ . "^ C,>tKKN enumerated, that is to say, — Then follows an enumeration of 29 classes of subjects. The Section concludes as follows : — "And any matter coming within any of the classes of subjects enumerated in this section shall not be deemed to come within the class of matters of a local or private nature comprised in the enumeration of the classes of subjects by this Act assigned exclusively to the Legisla- tures of the Provinces." Section 92 is as follows : — " In each Province the Legislature may exclusively make laws in relation to matters coming within the classes of subjects next hereinafter enumerated, that is to say, — " Then follows an enumeration of 16 classes of subjects. The scheme of this legislation, as expressed in the first branch of Section 91, is to give to the Dominion Parlia- ment authority to make laws for the good government of Canada in all matters not coming within the classes of subjects assigned exclusively to the Provincial Legisla- ture. If the 9l8t Section had stopped here, and if the classes of subjects enumerated in Section 92 had been altogether distinct and different from those in Section 91, no conflict of legislative authority' could have arisen. The Provincial Legislatures would have had exclusive legislative power over the 16 classes of subjects assigned to them, and the Dominion Parliament exclusive power over all other matters relating to the good government of Canada. But it must have been foreseen that this sharp and definite distinction had not been and could not be attained, and that some of the classes of subjects assigned to the Provincial Legislatures unavoidably ran into and were embraced by some of the enimierated classes of subjects in Section 91 ; hence an endeavour AND •s i ;i' >' :;'i^ . I (■, 272 PRIVY COUNCIL. IH Hij^ Citizens and appears to have been made to provide for eases of ap- Insuranck parent conflict : and it would seem that with this ol)ioot COMPANIKH ^ . , J'-^'' r. it was declared in the second branch of the 91st section Pausons. — -' " for greater certainty, but not so as to restrict the gen- — ■ " erality of the foregoing terms of this section," that (notwithstanding anything in the Act) the exclusive legislative authority of the Parliament of Canada should extend to all matters coming within the classes of sulj- jects enumerated in that section. With the same object, apparently, the paragraph at the end of Section 91 was introduced, though it may be observed that this para- graph applies in its grammatical construction only to No. IG of Section 92. Notwithstanding this endeavour to give pre-eminence to the Dominion Parliament in cases of a conflict of powers, it is obvious that in some cases where this ap- parent conflict exists, the Legislature could not have intended that the powers exclusively assigned to the Provincial Legislature should be absorbed in those given to the Dominion Parliament. Take as one instance the subject "marriage and divorce," contained in the enumeration of subjects in Section 91. It is evident that solemnization of marriage would come within this gen- eral description; yet " solemnization of marriage in the Province " is enumerated among the classes of subjects in Section 92, and no one can doubt, notwithstanding the general language of Section 91, that this subject is still within the exclusive authority of the Legislatures of the Provinces. So "the raising of money by any mode or system of taxation " is enumerated among the classes of subjects in Section 91 ; but, though the de- scription is sufficiently large and general to include "direct taxation within the Province, in order to the " raising of a revenue for Provincial purposes," assigned to the Provincial Legislatures by Section 92, it obviously I'RIVY COUNCIL. 273 could not have been intencU'd that, in this instance also. Citizens and _ _ _ . - . . . QUEKN InsI; RANGE COMPAMK8 V. PAR80N8. JrnOMENT. the general power should override the particular one. With regard to certain classes of subjects, therefore, ceuerally described in Section 91, legislative power may reside as to some matters falling within the general de- scription of these subjects in the Legislatures of the Provinces. In these cases it is the duty of the Courts, however difficult it may be, to ascertain in what degree, nud to what extent, authority to deal with matters falling within these classes of subjects exists in each Legislature, aud to define in the particular case before them the lim- its of their respective powers. It could not have been the intention that a conflict should exist ; and, in order to prevent such a result, the language of the two sections must be read together, and that of one interpreted, and, where necessary, modified by that of the other. In this way it may, in most cases, be found possible to arrive at a reasonable and practical construction of the language of the sections, so as to reconcile the respective powers they contain, and give effect to all of them. In perform- ing this difficult duty, it will be a wise course for those on whom it is thrown to decide each case which arises as best they can, v^ithout entering more largely upon an interpretation of the statute than is necessary for the decision of the particular question in hand. The first question to be decided is, whether the Act impeached in the present appeals falls within any of the classes of subjects enumerated in Section 92, and assigned exclusivel}' to the Legislatures of the Provinces ; for if it does not, it can be of no validity, and no other question would then arise. It is only when an Act of the Provincial Legislature priind facie falls within one of these classes of subjects that the further questions arise, viz., whether, notwithstanding this is so, the subject of the Act does not also fall within one of the enumerated 18 1 -N i u '^rm 274 TRIVV COUNCIL. CiTizENH AND classes of subjects in Section 91, and whether the now Inhika.nce Co.MPAMKS borne er of the Provincial Legislature is or is not there!)}' over- Pau«on8. Judgment. ' i i - 1 ■ 1 i ; The main contention on the part of the Respondent was that the Ontario Act in question had relation to matters coming within the class of subjects described in No. 13 of Section 92, viz., " Property and Civil Plights in the Province." The Act deals with policies of in- surance entered into or in force in the Province of Ontario for insuring property situate therein against fire, and prescribes certain conditions which are to form part of such contracts. These contracts, and the rights arising from them, it was argued, came legitimately within the class of subject, " Property and Civil Rights." The Appellants, on the other hand, contended that civil rights meant only such rights as flowed from the law, and gave as an instance the status of persons. Their Lordships cannot think that the latter construction is the correct one. They find no sufficient reason in the language itself, nor in the other parts of the Act, for giv- ing so narrow an interpretation t9 the words "civil rights." The words are sufficiently large to embrace, in their fair and ordinary meaning, rights arising from con- tract, and such rights are not included in any of the enumerated classes of subjects in Section 91. It becomes obvious, as soon as an attempt is made to construe the general terms in which the classes of sub- jects in Sections 91 and 92 are described, that both sections and the other parts of the Act must be looked at to ascertain whether language of a general nature must not by necessary implication or reasonable intend- ment be modified and limited. In looking at Section 91, it will be found not onlv that there is no class including, generally, contracts and the rights arising from them, but that one class of contracts is mentioned and enu- . I II I lll«M«l— PIUVY COUNCIL. 275 Insubanck Companies V. Paiwons. jcdgmekt. merated, viz., " 18, Bills of exchange and promissory ^'^^g**"* notes," which it would have been unnecessary to specify if authority over all contracts and the rights arising from them had belonged to the Dominion Parliament. The provision found in Section 94 of the B. N. A. Act, which is one of the sections relating to the distribution of legislative powers, was referred to by the learned Counsel on both sides as throwing light upon the sense in which the words " property and civil rights " are useil. By that section the Parliament of Canada is em- powered to make provision for the uniformity of any laws relative to " property and civil rights " in Ontario, Nova Scotia, and New Brunswick, and to the procedure of the Courts in these three Provinces, if the Provincial Legis- latures choose to adopt the provisions so made. The Province of Quebec is omitted from this section for the obvious reason that the law which governs property and civil rights in Quebec is in the main the French law, as it existed at the time of the cession of Canada, and not the English law which prevails in the other Provinces. The words "property and civil rights "are, obviously, used in the same sense in this section as in No. 13 of Section 92, and there seems no reason for presuming that contracts and the rights arising from them were not intended to be included in this provision for uniformity. If, liowever, the narrow construction of the words, "civil rights," contended for by the Appellants, were to pre- vail, the Dominion Parliament could, under its general power, legislate in regard to contracts in all and each of the Provinces, and, as a consequence of this, the Province of Quebec, though now governed by its own Civil Code, founded on the French law, as regards contracts and their incidents, would be subject to have its law on that sub- ject altered by the Dominion Legislature, and brought into uniformity with the English law prevailing in the j tti ii •i I., ' ' i ^ , i ( ' * J i • > W t' 'l r 270 PRIVY COUNCIL. 1". Parsons. Judgment. CrrizKNHANi) other three Provinces, notwithstanding that Quebec has iNstKANci; been carefully left out of the uniformity section of the Act. It is to be observed that the same words, " civil rif^htf?," are employed in the Act of 14 Geo. III., c. 83, which made provision for the Government of the Province of Quebec. Section 8 of that Act enacted, that His Majesty's Canadian subjects within the Province of Quebec should enjoy their property, usages, and other civil rights, as they had before done, and that in all matters of controversy relative to property and civil rights resort should be had to the laws of Canada, and be determined agreeably to the said laws. In this Statute the words "property" and "civil rights" are plainly used in their largest sense ; and there is no reason for holding that in the Statute under diseussiou they are used in a different and narrower one. The next question for consideration is whether, assuming the Ontario Act to relate to the subject of property and civil rights, its enactments and provisions come within any of the classes of subjects enumerated in Section 91. The only one which the Appellants suggested as expressly including the subject of the Ontario Act is No. 2, " the regulation of trade and commerce." A question was raised which led to much discussion in the Com'ts below and at this bar, viz., whether the business of insuring buildings against fire was a trade. This business, when carried on for the sake of profit, may, no doubt, in some sense of the word be called a trade. But contracts of indemnity made by insurers can scarcely be considered trading contracts, nor were insurers who made them held to be "traders" under the English bankruptcy laws; they have been made subject to those laws by special description. Whether II > PRIVY COUNCIL. 277 Insikanck ToMI'ANIKrt i: Pausons. judomknt. the business of fire insurance properly falls within the Citizens and description of a " trade " must, in their Lordships' vie\T, depend upon the sense in which that word is used in the particular Statute to be construed ; but in the prcscnl case their Lordships do not find it necessary to rest tlieii* decision on the narrow ground that the business of insurance is not a trade. The words "regulation of trade and commerce," in theii' unlimited sense, are sufficiently wide, if uncontrolled (iv the context and other parts of the Act, to include every regulation of trade ranging from political arrange- ments in regard to trade witlj foreign Governments, requiring the sanction of Parliament, down to minute rules for regulating particular trades. But a considera- tion of the Act shews that the words were not used in this unlimited sense. In the first place, the collocation of So. 2 with classes of subjects of national and general concern affords an indication that regulations relating to general trade and commerce were in the mind of the Legislatiure when conferring this power on the Dominion Parliament. If the words had been intended to have the full scope of which in their literal meaning they are •usceptible, the specific mention of several of th.e other (lasses of subjects enumerated in Section 91 would have been unnecessary; as, 15, banking; 17, weights i measures; 18, bills of exchange tind promissory botes; 19, interest; and even 21, bankruptcy and insol- I veucy. "Regulation of trade- and commerce" may have been lised in some such sense as the words " regulations of jirade" in the Act of Union between England and Scotland (0 Anne, c. 11), and as these words have been hsed in other Acts of State. Article V. of the Act of |rnion enacted that all the subjects of the United King- a should have "full freedom and intercourse of trade M. 1 ! ' !■ 278 PRIVY COUNCIL. Companies V, Paksons. JunUMENT. CiTizKNH AND and navigation " to and from all places in the Unittd >c|f U KKN iNsuHANCK Kingdom and the Colonies ; and Article VI. enacted that all parts of the United Kingdom, from and after the Union, should be mider the sdine "prohibitions, restric- tions, and rcijidationa of tnide.'" Parliament has at various times since the Union passed laws affectiuf; and regulating specific trades in one part of the United Kingdom only, without its being supposed that it tlicriliv infringed the Articles of Union. Thus the Acts for regulating the sale of intoxicating liquors notoriously vary in the two kingdoms. So with regard to Acts relating to bankruptcy, and various other matters. Construing, therefore, the words "regulation of trade and commerce" by the various aids to their interprtta- tion above suggested, they would include political arrangements in regard to trade requiring the sanction of Parliament, regulation of trade in matters of inter- provincial concern, and it may be that they would includL general regulation of trade affecting the whole Dominion. Their Lordships abstain on the present occasion from any attempt to define the limits of the authority of the Dominion Parliament in this direction. It is enough for the decision of the present case to say that, in then- view, its authority to legislate for the regulation of trade and commerce does not comprehend the power to regulate by legislation the contracts of a particular business or trade, such as the business of fire insurance, in a single Province, and therefore that its legislative authority does not in the present case conflict or compete with the power over property and civil rights assigned to the Legislature of Ontario by No. 13 of Section 92. Having taken this view of the present case, it becomes unnecessary to consider the question how far the general power to make regulations of trade and commerce, when competently exercised by the Dominion Parliament, rUIVY COUXCIL. 270 COMJ'ANIKS i'. Pakhonb. JlDOMENT. luijiht legally modify or aflfect property and civil rights t'rnzKNH and in the provinces, or the legislative power of the Provin- Inhikanck cial Legislatures in relation to those subjects. (^)uestions of this kind, it may be observed, arose and were treated of by this Board in the cases of L'Union St. Jacques de ^loiitreal r. Belisle (1), and Gushing v. Dupuy (2). It was contended, in the case of the Citizens Insurance (c)iupany of Canada, that the company having been ori^anally incorporated by the Parliament of the late Province of Canada, and having had its incorporation aud corporate rights confirmed by the Dominion Parliament, could not be affected by an Act of the thitario Legislature. But the latter Act does not assume to interfere with the constitution or status of corporations. It deals with all insurers alike, including corporations 1111(1 companies, whatever may be their origin, whether incorporated by British authority, as in the case of the Queen Insurance Company, or by foreign or colonial authority, and without touching their status, requires that if they choose to make contracts of insurance in Ontario, relating to property in that Province, such contracts shall be subject to certain conditions. It was further urged that the Ontario Act was repug- nant to the Act of the late Province of Canada, which empowered the company to make contracts for assurance against fire "upon such conditions as might be bargained for and agi'eed upon between the company and the assured." But this is, in substance, no more than an expanded description of the business the company was empowered to transact, viz., to make contracts of assurance against fire, and can scarcely be regarded as inconsistent with the specific legislation regarding such contracts contained in the Act in question. It was further argued on the part of the Appellants (1) L. R. 6 p. C. 31 ; ante p. 63. (2) 5 App. Cas. 409 ; ante p. 252. i i 1.^ I I t \ W i ! ; i T t If 1 J f 1 ' '■} 1 t • [I iii : rl J » -J ^^ >ifpi ! I il I ' ■ :U :-3 ' I I ^^ f 2.S0 I'Hivv corNriL. InHL'KANI'K Com PAN IKS I'. Pakhonh. JuitUMKNT. CiTizKNHANi. tliat tlie Ontario Act was Iiu'imsistont witli the Aft of tlio Dominion l*arliamont, JJH Vii-t. c. '20, which rofjuires (ire insurance companies to obtain licenses from tlio Minister of Finance as a condition to their carrvini; oii the l)Usinoss of insurance in the Dominion, and that it was beyond tlie competency of the Provincial Lef,'islatiiie to subject companies who had obtained such licenses, as the appellant companies had done, to the conditions imposed by the Ontario Act. But the lej^'islation docs not really conflict or present any inconsistency. The statute of the Dominion Parliament enacts a ^'eiuinl law applicable to the whole Dominion, requiriuf,' all insurance companies, whether incorporated by foreign, Dominion, or Provincial authority, to obtain a license from the Minister of Finance, to be granted only upon compliance with the conditions prescribed by the Act. Assuming this Act to be within the competency of the Dominion Parliament as a general law applicable to foreign and domestic corporations, it in no way inter- feres with the authority of the Legislature of the Province of Ontario to legislate in relation to the contracts which corporations may enter into in that Province. The Dominion Act contains the following provision, which clearly recognizes the right of the Provincial Legislatm-e to incorporate insurance companies for carrying on business within the Province itself: — "But uotliing herein contained shall prevent any insurance company incorporated by or under any Act of the Legislature of the late Province of Canada, or of any Province of the Dominion of Canada, from carrying on any business of insurance within the limits of the late Province of Canada, or of such Province only, according to the powers granted to such insurance company within such limits as aforesaid, without such license as hereinafter mentioned." This recognition is directly opposed to the construction 1 1 Xj^.,\ 'I iiifi niti* I'HIVY COliNCIL, 2M1 Inmikanik UoMI'ANIKrt I'. I'AHHONs. iTldijment. gou^'ht to be placed by the Appellants' Counsel on the <^'"izknh amd words "provincial objects" in No. 11 of Section S)2, —"the incorporation of companies wtai Provincial objects, " by which ho sought to limit these words to "{Hiblic" Provincial objects, so as to exclude insurance ami commercial companies. Chief Justice Ritchie refers to an equally explicit roco^'uitiou of the power of the Provinces to incorporate insiiranco companies contained in an earlier Act of the pominion Parliament (81 Vict. c. 48) which was passed shortly after the establishment of the Dominion. The learned Chief Justice also refers to a remarkable section contained in .'i?. Act of the Dominion Parliament consolidating certain Acts respecting insurance, -10 Vict. c. 42. Section 28 of that Act is as follows : — '' This Act shall not apply to any company within the exclusive legislative control of any one of the Provinces of Canada, unless such company so desires ; and it shall be lawful for any such company to avail itself of the provisions of this Act, and if it do so avail itself, such company shall then have the power of transacting its business of insurance throughout Canada." This provision contains a distinct declaration by the Dominion Parliament that each ot the Provinces had exclusive legislative control over the insurance companies incorporated by it, and therefore is an acknowledgment that such control was not deemed to be an infringement of the power of the Dominion Parliament as to "the regulation of trade and commerce." The declarations of the Dominion Parliament are not, of course, conclusive upon the construction of the B. N. A. Act ; but when the proper construction of the language used in that Act to define the distribution of legislative powers is doubtful, the interpretation put upon it by the Dominion Parliament in its actual legislation may properly be considered. M i'4 fei i y'% r't! ■i '. ■: hfil Utiii M ■ ' . i 1 1 , 282 PRIVY COUNCIL. Citizens and Queen Insuranck Companies V. Parsons. Jl'DGMENT. „ I The opinions of the majority of the Judges in Canada, as summed up by Chief Justice Kitchie, are in favour of the validity of the Ontario Act. In the present actioh, the Court of Queen's Bench and the Court of Appeal of Ontario unanimously supported its legality; and the Supreme Court of Canada, by a majority of three Judges to two, have affirmed the, judgment of the Provincial Courts. The opinions of the learned Judges of the Supreme Court are stated with great fulness and ability, and clearly indicate the opposite views which may he taken of the Act, and the cdfficulties which surround anv construction that may be given to it. Mr. Justice Taschereau, in the course of his vigorous judgment, sought to place the plaintiff in the action against the Citizens Company in a dilemma. He thinks that the assertion of the right of the Province to legislate with regard to the contracts with insurance companies amounts to a denial of the right of the Dominion Parliament to do so, and that this is, in effect, to deny the right of that Parliament to incorporate the Citizens Company, so that the plaintiff" was suing a non- 'Existent defendant. Their Lordships cannot think thai, this dilemma is established. The learned Judge assumes that the power of the Dominion Parliament to incorporate companies to carry on business in the Dominion is derived from, one of the enumerated classes of subjects, viz., "the regulation of trade and commerce," and then argues that if the authority to incorporate companies is given by this clause, the exclusive power of regulating them must also be given by it, so that the denial of one power involves the denial of the other. But, in the first place, it is not necessary to rest the authority of the Dominion Parliament to incorporate companies on this specific and enumerated power. The authority would belong to it by its general power over all matters not coming within the classes of subjects assigned exclusively Sitiinw.. ppfm PRIVY COUNCIL. 283 in8ukance Companies 1'. P\R.SON><. Judgment. to the Legislatui'es of the Provinces, and the only subject Citiz.ens ani> on this head assigned to the Provincial Legislature being "the incori:)oration of companies with Provincial objects," it follows that the incorporation of companies for objects other than Provincial falls within the general powers of the Parliament of Canada. But it by no means follows (unless indeed the view of the learned Judge is right as to the scope of the words " the regulation of trade and commerce") that because the Dominion Parliament had alone the right to create a corporation to carry on business throughout the Dominion, that it alone has the right to regulate its contracts in each of the Provin^^es. Sui)pose the Dominion Parliament we)-e to incorporate a company, with power, among other things, to purchase and hold lauds throughout Canada in mortmain, it could scarcely be contended, if such a company were to carry on business in a Province where a law against holding land in mortmain prevailed (each Pronnce having cxchisive legislative power over "property and civil rights in the Province "), that it could hold land in that Province in contravention of the Provincial legislation ; and, if a company were incorporated for the sole purpose of purchasing and holding land in the Dominion, it might happen that it could do no business in any part of it, by reason of all the Provinces having passed Mortmain Acts, though the corporation would still exist and preserve its status as a corporate body. On the best consideration they have been able to give to the arguments addressed to them and to the judg- ments of the learned Judges in Canada, their Lordships have come to the conclusion that the Act in question is valid. [The remainder of the judgment which relates only to the con- struction of the Act of the Legislature of Ontario, 39 Vict. c. 24, is omitted.] ' ■ ! '. ■:■■ t;? "it A ii';iii 1' M .: , ,. i ■' ; ' .i ■ ^ :■ i'^^^'V-^i !H^^^^^^~^ > . ■ 1 ,-iH ■^.,m * liiiil iil i ; 284, PRIVY COUNCIL. ' ^; Citizens and CJUEEN Insurance Companies V. Parsons, Sup. C, Canada, Ritchie, C. J. JUDOMENT.S IN SUPREME CoURT OF CaXADA. \ Exported 4 Can. S.C.Il 215.] Ritchie, C, J. : — Tliere never, probably, was an Act, the validity of wliich was questioned, that came before a court so strong] ' supported by judicial and legislative authority as this Act. It was legislation suggested as necessary by the Court of Queen's Bench of Oiitariu in the case of Smith v. Commercial Union Insurance Co. (1). The Legislature of Ontario, adopting tho suggestion, passed 38 Vict. c. 05, autliorizing tlie issue of a commission to three or more persons holding judicial otiice in the Province, and by seetiou 2, enacted in these words that : "A commission is to be issued bj' the Lieutenant-Governor, addressed to three or more persons holding judicial office in this Province, for the purjiose of determining what conditions of a tire insurance policy are just and reasonable conditions, and the com- missioners may take evidence, and are to hear such parties inter- ested as they shall think necessary ; and a copy of the conditions settled, approved of and signed by the Commissioners, or a majority of them, shall be deposited in the otiice of the Provincial Secre- tary ; and in case, after the Lieutenant-Governor, by proclamation published in the Ontario Gazette, assent to the said conditions, any policy is entered into or renewed, containing or including any conditions other than or different from the conditions so previously approved of and deposited ; and if the said condition, so not con- tained or included, is held by the court or judge before whom a question relating thereto is tried, not to be just and reasonable, such condition shall be null and void." This Act was not disallowed, and a commission by the Govern- ment of Ontario was duly issued in accordance therewith to iean^ed judges, who reported what they deemed just and reasonable con- ditions, whereupon the Ontario Legislature passetl the 30 A'ict. c. 24 ; " An Act to secure uniform conditions in Policies tjf Fire Insurance," which is the Act now questioned, aud which, after reciting that under the provisions of the Act 38 Vict, c, 05, the Lieutenant-Governor issued a commission to consider and report what conditions are just and reasonable conditions to bo inserted in tire insurance policies, on real or personal property, in this I'rov- (1) 3.3 U. C. Q. B, G9. PRIVY COUNCIL, 285 ince (Ontario), and, after reciting that a majority of the Com- Citizens and ^ Queen Insukance Companies r. Parsons. Sup. C, Canadai. mission had settled and approved of the conditions set forth in the schedule of the Act, and that it was advisable that the same should be exiucssly adopted by the Legislature as the statutory conditions to be contained in tlie policies of fire insurance entered into, or in force ill this Province, the first sections enact : — " 1. The conditions set forth in the schedule to this Act shall, as Eitcbie, C. J. iv'ainst the insurers, be deemed to be part of every policy of fire insurance hereafter entered into or renewed, or otherwise in force in Ontario with respect to any property therein, and shall be printed ,,n every such policy with the heading 'Statutory Conditions;' antl if a company (or other insurer) desire to vary the said con- ditions, or to omit any of them, or to add new conditions, there shall be added, in conspicuous type, and in ink of different colour, wonls to the following efiect : ' Variations in Conditions. ' "T policy is issued on the above statutory conditions, with the » ^'ing variations and additions : — These variaticms (or as the cp.se may be) are, by virtue of the Ontario fitatute in that be- half, in force so far as, by the court or judge before whom a (ques- tion is tried relating thereto, they shall be held to be just and reasonable to be exacted by the company. "2. Unless the same is distinctly indicated and set forth in the manner or to the effect aforesaid, no such variation, addition or omission shall be legal and binding on the insured, and no question shall be considered as to whether any such variation, addition or omission is, under the circumstances, just and reasonable, and, on the contrary, the policy shall, as against the insurers, be subject to the statutory conditions only, unless the variations, additions or omissions are distinctly indicated and set forth in the manner or to the effect aforesaid." This Act was never disallowed, but has since its passage been acted on ; and the Ontario reports show that questions as to its construction have been before the courts of Ontario, without its validity having been impugned by either bench or bar, and, when the point was raised, its validity was affirmed by the unanimous opinion of the court to whom the question was first submitted ; it was so held and acquiesced in in two cases unappealed from, and, when again raised in the present cases, the Court of Queen's Bench unanimously reaffirmed its former decision, and, on appeal, the Appeal Court of Ontario unanimously affirmed that decision. But this is not all ; we have the Dominion Parliament recognizing, by ;i t I i 286 PltlVY COUNCIL. Insurance companieh v. Parsons. Sup. C, Canada. Citizens and expressed statutory terms tlie right of the Local Lpjjrislature ti) in- corporate Insurance Companies and deal with insurance matter. So far back as the 31 Vict. c. 48 (1868), when the intention of the Parliament of Great Britain, in enacting tlie B. N. A. Act must have been fresli in the minds of the leading men who first sat in the Dominion Parliament, and who had taken the most promi- Ritchie, C. J. nent part in discussing and agreeing on the terms of Confederation and the provisions of the B. N. A. Act, and who, we historically know, watched its passage through the Parliament of Great Britain, we find the Dominion Parliament in that year (1808) passing "An Act respecting Insurance Companies," and in that Act, by section 4, thus clearly affirming the right of the Local Legislature to incor- porate Insurance Companies, after fixing the amount to be depo- sited by Life, Fire, Inland Marine, Guarantee or Accident Insur- ance Companies, certain companies are excepted in these words :— ' ' Except only in the case of companies incorporated before the passing of this Act by Act of the Parliament of Canada, or of the Legislature of any of the late Provinces of Canada, or Lower Can- ada or Upper Canada, or of Nova Scotia or New Brunswick, or which may liave been or may heveafier he incorporated by the Par- liament of Canada, or h\j the Leijidatnre of any Province of tin: Dominion, and carrying on the business of Life or Fire Insuranciu" And, as if to place this beyond all doubt, and to shew that com- panies, which might be so incorporated by the Local Legislature, were local incorporations, and its business should be confined within the Province incorporating them, we find it enacted in section 25:— " That the provisions of this Act as to deposit and issue of license shall not apply to any Insurance Company incorporated by any Act of the Legislature of the late Province of Canada, or incor- porated, or to be incorporated, under any Act of any one of the Prov- inces of Ontario, Quebec, Nova Scotia, or Ne , Brunswick, so long as it shall not carry on business in the Dominion beyond the limits of that Province by the Legislature or Government of whicli it was in- corporated, but it shall be lawful for any such company to amil itself oi the provisions of tliia Act." Could words or provisions in recognition and affirmance of the powers of the Local Legislatures be stronger ? And in 38 Vict. c. 20(1876), " An Act to amend and consolidate the several Acts respecting insurance, in so far as regards Fire and Inland Marine business," we find, by section 2, a distinct recognition of companies incorporated under any Act of the Legislature of any Province of the Dominion of Canada ; Jiii^ plllif PRIVY COUNCIL. 287 " Section 2. — This Act shall apply only to companies hereto/on' Citizens axd incorporated by any Act of the Legislature of the late Province of Inslii.\.nce Canada or by any Act of the Leijislature of any of the Provinces of ^ ompanies I'arsons. Sup. C, Canada. Canada, and which, upon the day of the paqsing of this Act, were also licensed, under Act of the Parliament of Canada, to transact business of insurance in Canada, and also to any company heretofori^ of iclni:h nuiy hereafter be Incorporated by Act of Parliament of Can- Kitchie, C. J. aua and to any foreign Insurance Company as hereinbefore defined '> and it shall not be lawful for the Minister of Finance to license any other company than those in this section above mentioned ; and no other company than those above mentioned shall do any business of hre or inland marine insurance throughout the Dominion of Canadci ; but nothing herein contained shall prevent any Insurance Company incorporated by, or under, any Act of the Legislature of tlie late Province of Canada, or of any Province of the Dominion of Canada, from carrying on any business of insurance within the limits of tlie late Province c^f Canada or of such Province only, according to the powers granted to such Insurance Company within such limits as aforesaid, without such license as hereinafter mentioned." But the Dominion statutory recognition of the rights of local legislation, strong as it is, does not rest here. As late as 1877, by the 40 Vict. c. 42, "An Act to amend and consolidate certain Acts respecting insurance," we find it thus enacted by section 28 : " This Act shall not apply to any company within tlie exchisive kifidative control of aity one of the Provinces of Canada unless such (vinpany so desires, and it shall he lawful for any such company to aatil itself of the provisio}is of this Act, ami if it do so avail itself, such company shall have the power of transacting its business of in- surance ihrouyhout Canada.'" So again, in the year 1878, the Dominion Parliament distinctly recognized the incorporation by the Ontario Legislature of the Ontario Mtitual Life Assurance Company, i)icorporated and carrying vt) husi)iess in the Province of Ontario, under the Act, c. 17 of the statutes of said Province, passed in the 32 Vict., and incorporated the said company to enable it to carry on business of life assurance on the mutual principle, and doing all things appertaining thereto or connected therewith, as well in the said Province of Ontario as in the other Provinces of the Dominion. Wo find, then, legislation in the direction carried out by this Act recommended in a solemn judgment of the Queen's Bench of Ontario ; we find the matter referred to a commission of judges I! i ti Ml • \ SI J" 288 PRIVY COUNCIL, Citizens AND who reported to the Government of Ontario the conditioiKs tll'EKK ° Ql'KEN Insuhanck companikm and Pakhonh. Sup. C, Canada, provisions which, in their opinion, should be enucted by the Le"is lature of that Province, and form, as against the insured the statutory conditions of a policy of insurance in force in Ontario with respect to any property therein, and the means necessary tn be adopted by the insured if he desire to omit or vary any of such Ritchie, c. J. conditions. Here, then, we have the Legislature of Ontario assuming the right to deal with Insurance Comiianies and insurance business, and their legislative action not disallowed. We Hud tliis particular Act in several cases acted upon by the bar and bench i>i Ontario without its validity being questioned by either, and when at last questioned, we find its validity sustained by all courts and judges of original jurisdiction who have been called on to adjudi- cate on this point, and, finally, by the unanimous opinion uf tlie Court of Appeal ; and last, but not least, we have the express legislation of the Parliament of Canada, expressly recognizing that the Local Legislatures have j)ower to deal with matters of in- surance. I do not put forward these considerations as conclusive of the questions in this Court of Appeal, because if we were clearly of opinion that under the B. N. A. Act the Legislature of Outario had not the power to pass the law, we would be bound to say so, and to overrule the decisions of the courts below and disregard the legislation of the Dominion Parliament, for, if not within tlie B. N. A. Act, neither the aflirmance of the power by the Local Legis- lature nor the legislative recognition of it by the Dominion Parlia- ment could confer it. Still, I am individually well pleased that I am enabled satisfactorily to arrive at a conclusion which relieves me from the necessity of overruling the acts and decisions of so many learned judges, and the legislative actions of the Legislature of Ontario and the repeated statutory declarations of the Parlia- ment of Canada. But this does not relieve me from the duty of shewing imme- diately to the parties interested, and through them to the Parlia- Tn«nt of Canada and the Legislatures of the Provinces, by what process of reasoning I have arrived at that conclusion. Is, then, such legislation as this with respect to the contract of hjcurance beyond the power of local legislation? I think at the itset I may affirm with confidence that the B. N. A. Act recog- nizes in the Dominion constitution and in the Provincial constitu- tions a legislative sovereignty, if that is a proper expression to use, -'■ mlAm PRIVY COUNCIL. 289 Companies r. Pahsons. Sup. C, Caiiadft. \ „a inilpnendent and as exclusive in the one as in the other over the Citizenh and matters respectively confided to them, and the powers of each must Ixscuance be euiiiilly respected by the other, or nltra eires legislation will necessarily be the result. It is contended that the Local Legislature not only cannot incor- porate a local Insurance Company, but cannot pass any .\ct in reference to insurance, inasmuch as it is contended such legislation lutcliie, C. J. beloiK's exclusively to the Dominion Parliament, under the power riven tliat Parliament to legislate in relation to " the regulation of trade and commerce." As to the incorporation of Insurance Companies, this point is not directly, though it is perhaps indirectly, involved in the questions niiseil in these cases. It may be remarked that, in the enumera- timi of the powers of Parliament, the only express reference to tl'.e power of incorporation is under No. 16, "Incorporation of Blinks," though it cannot be doubted that under its general power iif legislation, it has the power to incorporate companies with Do- minion objects. But it is said that Insurance Companies are trading or commer- cial coni[)anie3, and therefore within the terms "trade and com- merce ;" but we have matters connected with trade and commerce, such as navigation and shipping, banking incorporations, weights and measures, and insolvency, iind " such classes of subjects as are ex- pressly excepted in the enumeration of the classes of subjects by this Act assigned exclusively to the Legislatures of the Provinces,'" and these and tlie other enumerated classes of subjects "shall not be deemed to come within the class of matters of a local or private nature, comprised in the enumeration of the classes of subjects by this Act assigned exclusively to the Legislatures of the Provinces." This shews inferentially that there may be matters of a local and private nature with which the Local Legislatures may deal, and which, but for the exclusive power conferred on the Local Legisla- tures, might be comprised under some of the general heads set forth in sect. 91, as belonging to the Dominion Parliament. This IS made very apparent in respect to navigation and shipping. By sect. 91 the e'lolusive legislative authority of the Parliament of Canaila is de jlared to extend to all matters coming within the classes of subjects next thereinafter enumerated, of which " navi- gation and shipping" is one. When we turn to the enumeration of the exclusive powers of the Provincial Legislatures, we find 19 > ! I t i 11 '11 : 4t * ,1 W 1 m uk JiA^M V i m 290 PRIVV COUNCIL. CiTizBNS AND "local woi'lcs aiul undertakings, other than sucli as are of thu Inhukance following classes : («) Lines of steam or other ships, railways Companies canals, telegraphs and other works and undertakings connectin" Paksonb. the Province with anj' other or others of the Provinces, or ux- Sup, C, tending beyond the limits of the Province ; (b) Lines of steam sliiij., Canada. between the Province and any British or foreign country ; (,) Ritchie, c. r. Such works as, although wholly situate within tlie Province are before or after their execution, declared by the Parliament nf Canada to be for the general advantage of Canada, or for thu advantage of two or more of the Provinces " — and tlien follows "the incorporation of companies with Provincial objects." Here, then, are matters immediately connected with navii/ation and shipping, trade and commerce. If the power to legislate on navigation and sliipping, and trade and commerce, vested in the Dominion Parliament, necessarih excluded from Local Legislatures all legislation in connection with the same matters, and that nothing in relation thereto could be held to come under local works and undertakings, or jiroperty or . civil rights, or generally all matters of a merely local or private nature in the Province, or the incorporation of companies witli Provincial objects, what possible necessity could there be for inserting the exception "other than such as are of the following classes" as above (a, 6, c)? On the contrary, does not this excep- tion shew beyond all doubt, by irresistible inference, that there are matters connected with navigation and shii^ping, and with trade and commerce, that the Local Legislature? may deal with, and not encroach on the general powers belongin'^ to the Dominion Parlia- ment for the regulation of trade and commerce, and navigation and shipping, as well as railways, canals and telegraphs / Can it be successfully contended that this is not a clear intimation that the Local Legislatures were to have, and have, power to legi-slate in reference to lines of steamers and other ships, railways, canals, and other .works and undertakings wholly within the Province, subject, no doubt, to the general powers of Pai'liament over shijjping and trade and commerce, and the Dominion laws enacted under sucli powers, as, for instance, the 31 Vict. c. 65 (1868), "An Act re- specting the inspection of steamboats, and for the greater safety of passengers by them," or the Act 36 Vict. c. 128, "An Act relating to shipping?" With reference to Insurance Companies, and the business of insurance in general, it is contended that Insurance Companies are .X'.JiJbJtliHmmm PRIVY COUNCIL. 291 tradin" companies, and therefore the business they transact is Citizens and purely matter of trade and commerce, and therefore Local Legisla- Insurance turos cannot in any way legislate either in reference to Insurance * ompanieh Companies or insurance business. As to such a company being a trading company, Jessel, M. R. , in the case of in re Oriffith (1), did not seem to think the question ao abunilantly clear as is supposed. He says : "1 come now to the next point, which is, what is this company ? Is it a ' trading or other public company ? ' . . . "So that we have it that it must be a public company, whether it it is a trading company or other company. Therefore it becomes immaterial to consider whether a particular company is or is not a trading company, and I am glad of it, because, though I think an Insurance Company might be called a trading company, many people might take the opposite view of the word ' trade.' I take the larger view, and think it would be called a trading company, but it is immaterial. If it is a public company jit all, and not a trading company, it comes under the term ' other public company.' " (2) But in the view I take of this case, I am willing to assume that Insurance Companies may be considered trading companies, and j-et that it by no means follows that the legislation complained of is beyond the powers of the Local Legislatures. With reference to sect. 91, and the classes of subjects therein enumerated, Lord Sclborne, in L' Union St. Jacques de Montreal v. Bdisic (3), says : "Their Lordships observe that the scheme of enumeration in that section is to mention various categories of general subjects which may be dealt with by legislation. There is no indication in any instance of anything being contemplated, except what may properly be described as general legislation. " It may be difficult to draw the exact line between the powers of the Dominion Parliament to regulate trade and commerce and the powers of the Local Legislatures over " local works and under- takings," " property and civil rights in the Province," and "gone- rally all matters of a merely local or jjrivate nature in the Prov- ince." (1) 12 Ch. D. 655, 663. (2) See also Paul v. Virginia, 8 Wallace, 1G8, where it was held that issuing a policy of insurance was not a transaction of trade and commerce. (3) L. R. 6 P. C. at p. 36 ; ante, pp. 69, 70, I'arsonm. Sup. c;., Canada. Uituhie, C. J. ( ! m ' ' ' ■ ■ h Uf "Hi 1 . ;]»4ly 292 rillVV COUNCIL. Citizens and QUKEN Inhtiianck comi'anikh M'i I'akhons. Sup. C, Caiuiila. ^Mlil I! 1 1 No one can dispute the general power of Parliament to legislate as to "trade and cominerco," and that where, over mattuia with whicli Local Legislatures have power to deal, local legislation con- flicts witli an A , passed by the Dominion Parliament in tlie exercise of any of the general powers confided to it, the legislation of tlie Local must yield to the supi'cmacy of the Dominion I'iirlia- Kitcbio, c. J. ment ; in other words, that the Provincial legislation in such a case must be subject to such regulations, for instance, as to trade and commerce of a commercial character, as the Dominion Parlianiunt may prescribe. 1 adhere to what I said in Valia v. Laiujluu (li, that the property and civil rights referred to were not all property and all civil rights, but that the terms " property and civil rights ' must necessarily be read in a restricted and limited sense, because many matters involving property and civil rights are exi)ress]y reserved to the Dominion Parliament, and tluit the power of the Local Legislatures was to be subject to the general and s]iecial legislative powers of tlie Dominion Parliament, and to what I there added : " But while the legislative rights of the Local Legislatures are in this sense subordinate to the right of the Dominion Parlia- nient, I think such latter right must be exercised, so far as may be, consistently with the right of the Local Legislatures ; and, there- fore, the Dominion Parliament would only have the right to inter- fere with proi^erty and civil rights in so far as such interference may be necessary for the purpose of legislating generally and effectually in relation to matters confided to the Parliament of Canada. " , I think the power of the Dominion Parliament to regulate trade and commerce ought not to be held to be necessarily inconsistent with those of the Local Legislatures to regulate property and civil rights in respect to all matters of a merely local and jjrivate nature, such as matters connected with the enjoyment and preservation of property in the Province, or matters of contract between parties in relation to their property or dealings, although the exercise by the Local Legislatures of such powers may be said remotely to affect matters connected with trade and commerce, unless, indeed, the laws of the Provincial Legislatures aliould conflict with those of the Dominion Parliament passed for the general regulation of trade and commerce. I do not think the Local Legislatures are to be deprived of all power to deal with property and civil rights, because (1) 3 Can. S. C. R. at p. 15 ; ante, pp. 158, 172. K.^\ I'yVi. ,■ 11 PRIVY COUNCIL. 293 Pftrliament, in the plenary exorcise of its power to regulate trade Citizens and anil commerce, may possibly pass laws inconsistent with the exercise Insiiuancr Companies Paksonb. Sup. C, Ciinuda. by tlio Local Legislatures of their powers — the exercise of the powers of the Local Lej^islatures being in such a case subject to such regu- lations as the Dominion may lawfully prescribe. Tlio Act now under consideration is not, in my opinion, a regu- lation of trade and commerce ; it deals with the contract of fire Eitcliie, C. J, msuranco, as between tlie insurer and the insured. That contract is simply a contract of indemnity against loss or damage by tire, whereby one party, in consideration of an immediate fixed payment, uiulertakes to pay or make good to the other any loss or damage by lire, wliich may happen during a fixed period to specified property, not exceeding the sum named as the limit of insurance. In Dalby V. The India and London Life AHsuntnce Co. (1), Parke, B. , delivering the judgment of the court, says : "Tlie contract commonly called life assurance, when properly considered, is a mere contract to pay a certain sum of money on the death of a person, in consideration of the due payment of a cer- tain annuity for his life — the amount of the annuity being calculated, in tlie tirst instance, according to the probable duration of the life : .ml, wlien once fixed, it is constant and invariable. . . . This species of insurance in no way resembles a contract of indemnity." How this, as between the parties to the contract, can be called a matter of trade and commerce, I must confess my inability to com- prehend ; but the jDrocess of reasoning, as I understand it, by which we are asked to say tliat fire insurance is a matter of trade and com- merce, would make life assurance ecjually so. In this same case, Parke, B., saj's : "Policies of assurance against fire .and ag.-vinst marine risks are hoth properly contracts of indemnity — the insurer engaging to make good, within certain limited amounts, the losses sustained by the assured in their buildings, siiips and etfects. Policies on maritime risks were afterwards used imi)roperly, and made mere wagers on the happening of those perils. This practice was limited by the 19 Geo. II. c. 37, and put an end to in all except a few cases. But at common law, before this statute with respect to maritime risks, and the 14 Geo. III. c. "18, as to insurances on lives, it is per- fectly clear that all contracts for wager policies, .and wagers which were not contrary to the policy of the law, were legal contracts, (1) 15 C. B. 305. 'if! 1 I I m 11 If^li; 4 S ill '■\ ;i •*! 294 I'lUVY COUNCIL. I'. Pakhons. Hup. C, Canndii. UitoLie, ('. .1. M CiTTZENH AND aiiil SO it is statod by tho court in the case of CousltiH v. Nanh^ ili U U KKN Inhuuaxck t" liivo been solemnly detennined in Lucctui v. Vraufurd (2), with- CoMPANitx Qj,j j^.yQ^ j^ difference of ojjinion among all tho judges. To tlio like effect was tho decision of the Court of Error in Ireland, bufure all the judges except three, in The Britiih laHiirance Co. v. Maijw (3) that the insurance was legal at common law." (4) I do not understand that by tho Act now assailed any suiireine sovereign legislative power to regulate and control the business nf insurance in Ontario is claimed. As I read the Act, it duals mily with this contract of indemnity ; it does not profess to deal with trade or commerce, or to make any regulation in reference thereto. In my opinion, this Act has no reforenco to trade and commerce in the sense in which these words are used in tho B. N. A. Act. It is simply an exercise of tho p )wor of the Local Legislature for the protection of property in Ontario, and the civil rights of the proprietors thereof in connection therewith, by securing a reason- able and just contract in favour of parties insuring pnjperty, real or personal, in Ontario, and deals therefore only with a matter of a local and private nature. The scope and object of tho Act is to secure to parties insuring a just and reasonable contract, tu prevent the exaction of unjust and unreasonable conditions, and to protect parties from being imposed upon by the insertion of conditions and 8tii)ulation8 in such a way as not to bo brought to tho immediate notice of the insured, or capable of being easily understood, or bj- the insertion of conditions calculated practically in many cases to deprive the parties paying tho premiums of indemnity, tlioiigli justly entitled to it, and, if the statutory conditions are omitted or varied, to compel the terms of the contract to be so plainly and prominently put on the contract that the attention of the assured may be called to them, and so th;;t he may not be misled, judicial experience having proved that tho vigl ts of the insured, and legiti- mate indemnity in return for thii n'oney paid, demanded that the insured should be thus protectott. As the case of Smith v. Commercial Union Insurance Company (5) proves that the judicial tribunals found that legislative protection was required in Ontario against unreasonable and unjust conditions (1) 3 Taunt. 513. (2) 2 B. <'in'i"o properties of innocent parties, wholly unconnected with tliu insurance, were jeopardized, can it be said that it would l)e ultni cires for the Legislature of ,i Province, with a view to stop such itnictices, to enact that in uvery case of over-insurance, whetlier intentional or unintentional, the policy should be void, or to niako any other provisions in reference to the contract of insur- iiuce as to value as would, in the opinion (jf tho Local Legislature, prevent frauds and protect property / Could such legislation be held ti) be ultra vires, as being an interference with trade and co:ri- moice, because it dealt with the subject of insurance ? Or for preventing frauds and perjuries, would it be ultra rires for the Local Legislature to enact that, as to all contracts of insurance entered into in Ontario, no insurance on any building or property in Ontario should be binding, or valid in law or equity, unless in writing / Or, take tho first section of the 38 Vict. c. 65, can it be tliat the Local Legislature cannot make provision to provide against a failure of justice and right by enacting, as the first section of that Act (lid, that : " Where, by reason of necessity, accident or mistake, the condi- tions (if any contract of Hre insurance on property in this Province as to the proof to bo given to the Insurance Company after the occurrence of a tire have not been strictly complied with ; or where, after a statement or proof of loss has been given in good faith by or on behalf of the insured, in pursuance of any proviso or condi- tion of such contract, the company, through its agent or otherwise, objects to the loss upon <3ther grounds than for imperfect compliance with such conditions, or does not, within a reasonable time after receiving such statement or proof, notify the assured in writing that such statement or proof is objected to, and what are the par- ticulars in which the same is alleged to be defective, and so from time to time ; or where, for any other reason, the court or judge before whom a question relating to such insurance is tried or incjuired into, considers it inequitable that the insurance should be deemed void or forfeited by reason of imperfect compliance with such conditions ; no objection to the sufliciency of such statement or proof, or amended or sui)plemental statement or proof (as the case may be) shall, in any of such cases, be allowed as a discharge of the liability of tho company on such contract of insurance where- QUKKN Inhuranok companiks ('. Parsons. Sup. C, Canada. lUtohie, O.J, Mr |i; ^ i mm l\w \44 '''i Vn '' n ,^1 296 PRIVY COUNCIL. Citizens an-d Qlkkn Insurance companils V. Parsons. Sup. C, Canada. Ritchie, C. J. ir 1 ■ i i tl I 1 , t 1 j '. i ^' i i ever entered into ; but this section shall not apply where the fire has taken pla' j before ihe passing of this Act." How can this be said to be an interference with the general regulation of trade and commerce ? Yet it deals as eflectuallv with the matter or contract of insurance in these particulars as this Act does in reference to the matters with which it deals. If the legis- lative power of the Provincial Legislatures is to be restricted ami limited, as it is claimed it should be, and the doctrine contended for in this case, as I understand it, is carried to its legitimate logical conclusion, the idea of the power of the Local Legislnture to deal with the local works and undertakings, property and civil rights, and matters of a merely local and private nature in tlie Province, is, I humbly think, to a very great extent, illusory. I scarcely know how one could better illustrate the exercise of the power of the Local Legislatures to legislate with reference tu property and civil rights, and matters of a merely local and private nature, than by a local Act of Incorporation, whereby a right tu hold or deal with real or personal property in a Province is granted, whereby the civil right to contract and sue and to be sued as an individual in reference thereto is also granted. If a Legislature possesses this power, as a necessaiy sequence it must have the right to limit and control the manner in which the property way be so dealt with ; and as to the contracts in reference thereto, tlie terms and conditions on which they may be entered into, whetlier they may be verbal, or shall be in writing, whether they shall con- tain conditions for the protection or security of one or other or both the parties, or that they n\ay be free to deal as may be agreed on by the contracting parties without limit or restriction. Inasmuch, then, as this Act relates to property in Ontario, and the subject-matter dealt with is therefore local, and as the contract between the parties is of a strictly private nature, and as the mat- ters thus dealt with are therefore, in the words of the B. N. A .\ct, "of a merely local or private nature in the Province," and as contracts are matters of civil rights and breaches thereof are civil wrongs, and as the property and civil rights in the Province only are dealt with by the Act, and as ' ' property and civil rights in the Province" are in the enumeration of the "exclusive powers of Provincial Legislatures," I am of opinion that the Legislature of Ontario, in dealing with these matters in the Act in question, did not exceed their legislative powers. I am happy to say I can foresee, aad I fear, no evil effects what- PRIVY COUNCIL. 297 pvpr as has been suggested, a." likely to result to .he Dominion Citizkns and OUKEV from this view of the case. On the contrary, I believe that while Insuranck Companies Parsons. Sup. C, Canada. this decision recognizes and sustains the legislative control of the Dominion Parliament over all matters confided to its legislative jurisdiction, it at the same time preserves to the Local Legisla- tures tliose rights and powers conferred on them by the B. N. A. Act, and which a contrary decision would, in my opinion, in effect, Ritchie, C. J. substantially, or to a very large extent, sweep away. I carefully and advisedly abstain from expressing any opinion as to the validity or invalidity of any Act of the Dominion of Canada, or of the Province of Ontario, save only as to the Act now imme- diately under consideration. It will be time enough to discuss and decide on the validity of other statutes, whether Dominion or Pro- vincial, when properly brought before us for judicial decision. To do so now, or to express any opinion as to the effect of this decision on other legislation not before us, and without argument or judicial investigation and consideration, would be, in my opinion, extra- judicial. As to the construction which my brother Gwynne has put on section 3 of the Act, in the case of Gcraldi and Provincial Insurance Company (1), though the arguments used by him in that case, and in the judgment he is about to deliver — which he has kindly afforded me the opportunity of reading, and which I have most attentively considered — are very cogent and plausible, yet I have been unable to arrive at the same conclusion that he has, I think the history and phraseology of the Act shews it was passed for the protection and benefit of the insured, and "as against tiie insurer ;" that the insured may insure without conditions if he pleases, cx((;pt those conditions which the law implies ; but that in such a ca^e, as figainst the insurer, the insured may claim the benefit o<' these conditions. But if tlie insurer wishes to avail himsel/. "f the statute and the statutory conditions, he must pursue the course j.ointed out by the statute ; he cannot, in my opinion, disregard the requirements of tiie statute, and at the same time claim its benefits ; and if he desires other conditions than the statutory conditions, he can only have them by varying the statutory conditions, oi add to them in the manner pointed out by the statute. I can add nothing to ";hat Ciiief Justice Moss and Judge Burton have said in their judgments on this point. : }i:p- Ui m ;v-fi m V ^^. ^'V:\ ■ ..ill ' !l '! ' !| ii i ;, SI 1 I » ■m ssit (1) 29 U. C. C. P. bA. '.^I| WW 298 PRIVY COUNCIL. Citizens an'd Queen Insurance Companies V. Parsons. Sup. C, Canada. Ritchia, C. J. It is urged that the provisions of this statute do not apply to an insurance by what is called an interim receipt. When that con- tains an afjriieme.nt to insure, it is, in my opinion, a policy within the meaning of the Act. A policy of insurance is a written instru- ment containing the contract. Whether it be contained in what is usually called an interim receipt, or a more formal document, it is equally the instrument containing the contract, and so the statutory definition of the term policy, in 33 and 34 Vict. c. 97, Imp., is; "Every writing whereby any contract of insurance is made, or agreed to be made, is evidence." As at present advised, I think the interim receipt should be treated as the policy. It would be an entire evasion of the statute if companies could insui'e by a document not in the usual form of a policy, and by calling it by another name impose their own condi- tions and escape from the provisions of the statute for the i)rotec- tion of the insured ; but it is not necessary to discuss or tinally decide this point, as in this case of Parsotis v. The Queen Inmrance Company, both the Court of first instance, and the Court of Appeal treated the case in the way most favourable for the defendants, and they have nothing to compHin of. As to the contention that the statute of Ontario can only apply to local companies and not to foreign companies, or companies incorporated by the Dominion of Canada, in my opinion any com- pany, whether foreign, or incorporated by the Dominion Legisla- ture to carry on the business of fire insurance in any part of the Dominion of Canada, must do so subject always to the laws of the Province in which the business is done, in the same way tliat a merchant carries on his trade or commerce within a Provinc- ; but because he is a merchant or trader he is not exempt from an obli- gation to obey the laws of the Province in which he carries on liis business, if he enters into a contract within the Provii."° nvl the law of the Province prescribes the form of the contract under iis power to legislate as to property and civil rights ; neither corpora- tions nor traders can set themselves above that law and contract as they please independent of it. Suppose no statute of frauds was in force in a Province, and the Legislature enacted that no agree- ment for the sale of goods over $20 should be valid unless the con- tract of sale was evidenced by a writing signed by the parties, or in fact enacted a statute of frauds similar to the statute of Charles ; or with reference to the statute of limitations, passed an Act limit- ing the validity of the contract as well as the remedy, or altered Wm PRIVY COUNCIL. 299 Sup. C, Canada. tlie existing limitations, and reduced or extended the time limited Citizens and for bringing an action, could a corporation, merchants or traders, Insurance successfully claim to be exempt from the oiieration of such laws on Companies the ground that they interfered with trade and commerce, or that Pausgns. they were foreign corporations or foreigners engaged in trade, and tlierefore bound by no local laws ? If an Insurance Company is a trader, and the business it carries Kitchie, C. J. on is commercial, why should the Local Legislature, having legisla- tive powc: over property and civil rights, and matters of a private iind local character, not be enabled to say to such a company : "If you do business in the Province of Ontario, and insure property situate here, we have legislative control over property and over the civil rights in the Province, and will, under such power, for the protection of that property and the rights of the insured, define the conditions on which you shall deal with such property," it being possibly wholly unconnected with trade and commerce, as a private dwelling or farming establishment, and the person insured having possibly no connection with trade or commerce ? How can it be said that such property and such civil rights or contract shall be outside of all local legislation, and so outside of all local legislative protection ? If the business of insurance is con- nected with trade and commerce, the legislation we are now con- siderino; does not attempt to prohibit the carrying on of the business of insurance, but having the property and the civil rights of the people of the Province confided t" them, this legislation, in rela- tion thereto, is simply the protection of such property and of such rights. In Pattiaon v. jSIills (1), Lord Lyndhurst says : 'And here another question arises : supposing the Act does not extend to Scotland, still it is said to be a bar to this action, because it is founded on a policy by an English company. The company is certainly an Erglish one, but it is to be considered where the original contract was made. The policy was executed in London, but the action is not on the policy, but on the agreement ; the original contract is madq in Scotland ; and if I, residing in England, send down my agent to Scotland, and he makes contracts for me there, it is the same as if I myself went there and made them." In Copbi v. Adamsoii (2), Kelly, C. B., cites the marginal note in Bank of Australasia v. Harding (3), which he adopts as a correct proposition of law : (1) 1 Dow & C. 362. (2) L. R. 9 Ex. 345, 350. (3) 9 C. B. 661. • 1} '■ •i|i:i!itil Mi A i * It* H m I,'- .ak ' 111 I si \ ? I I r JM i^: fi 300 PRIVY COUNCIL. M Citizens and Queen Insuuanck Companies V. Parsons. Sup. C, Canada. "The members resident in England, of a company formed for the purpose of carrying on business in a place out of England are bound, in respect of the transactions of that company, by tlie law of the country in which the business is carried on." I am, therefore, of opinion that this Act applies to all Insurance Companies that insure property in the Province of Ontario, whether Eitcbie, C. J. local, Dominion or foreign. Strong, J. : — Who was present at the argument in the cases of The Queen Itisurance Compawj v. Parsoiis, and Citizens Insurance Compamiw Parsons, did not deliver a fcnmal judgment, but authorized the Chief Justice to state tha ^e entirely agreed with the majority df the court in their conclus'" ., ■th as to the constitutionality of the Ontario statute, c. 162 H. > »>. , and the construction to be put upon the provisions of that statute. [Translated.*] FOURNIER, J. : — The principal question to be decided is whether the Ontario Act, 39 Vict. c. 24, now c. 162 of the Revised Statutes of Ontario, to secure uniform conditions in policies of fire insurance, is constitu- tional. Its constitutionality is questioned on the ground tliat the power of legislating in reference to the subject-matter of insurance belongs to the Federal Parliament, as the necessary sc([uence of its exclusive power to regulate trade and commerce. In order to ascertain whether there is a conflict of powers, tlie first step, no doubt, is to examine the character of the law in question. As may be seen from its title, the object of the Act is to secure uniform conditions in policies of fire insurance. The second section enacts that the imperfect fulfilment of the conditions of the policy, with respect to the proof of the fire, shall not be a sufiicient ground for avoiding the contract — first, where, by reason of necessity, accident or mistake, the conditions have not been complied with ; secondly, where, after proof of loss has been given in accordance with the conditions of the contract, the com- pany objects to the loss upon other grounds than imperfect compli- ance with such conditions ; thirdly, where, after having recoiveil this proof, the company does not give notice in writing to the * [In the authorized reports this judgment is published in French with an English translation. The above is a revision of that translation by the present editor.] : 1 . i ■ ' ! i^.dLk iMM '! PRIVY COUNCIL. 301 Insiuanoe COMPANIKa Parsons. Sup. C, Ciiiiiiila. Fournier, J. assure 1, within a reasonable time, of the ground on which the Citizens and (.)l v;KN company considers the proof defective ; fourthly, when the court - or judge for any other reason considers it inequitable that the insurance should be deemed void by reason of imperfect compliance with such conditions. The third section declares that the condi- tions set forth in the schedule to the Act sluall, as atjuinst the iu:inrcrs, be deemed to be part of every policy of fire insurance, with respect to any property situate in the Province of Ontario. These conditions must also be printed on the policy of insurance, with the heading " Stfitutory Conditions." The fourtli section imlicates the manner in which the conditions may be varied or omitted, or new conditions added, and the mode of printing them. The tifth section declares that the variations shall not be binding on the assured unless they have been made in conformity with the fourth section ; otherwise the policy shall, as against the assurers, be subject to the statutory conditions only. By the sixth section, it is declared that if any other condititms than the statutory condi- tions are inserted in the policy, and such conditions are held by the court or judge to be not just and re (^L'KKX Insika.nck Cl'MPANlES T. P.MtSON.s. Sup. C. ( '.anada. "I'liniier, J. (1) L. R. G P. C. 31 ; antf, p. 63. mm" 304 PRIVY COUNCIL. Citizens and (iUKB:N Inkuhanc'k comi'aniks Pausons. Sill). C, C'anampanie8, exercised by the Legisla- ture of Ontario, has boon recognized by Federal legislation us belonging to Prcjvincial Legislatures. Sec. 28 of 40 Vict. c. 42 enacts : " This Act shall not apply to any company within the exclusive legislative control of any one of the Provinces of Canatla, unless Buch company so desires, and it shall be lawful for any sucli com- pany to avail itself of the provisions of this Act, and, if it do so avail itself, such company shall then have the power of transacting its business of insurance throughout Canada." The first section of this Act makes the laws respecting insolvency applicable to insurance companies incorporated by the Parliament of Canada, as well as to those incorporated prior to and after Con- federation, by the Legislature of any Province now constituting; Canada. We also find in the 30th section of the same Act another recognition of the power of the Provinces to legislate on the subject of insurance. Doubts having been raised as to the validity of a certain Ontario statute relating to mutual insurance companies, this section of the Federal Act declares that only such provisions as are within the jurisdiction of the Federal Parliament are repealed. In this section thei'e is not only the formal recognition of this power in the Province, but there is also this important declaration, that the Act is not repealed except as to that part of its provisions involving a conflict of power. It is a formal admission that this subject-matter, when treated in its commercial aspect, is within the control of the Federal Parliament, whilst, when regarded as relating to civil rights, such as involve the nature and conditions of the contract of insurance, it remains under the control of the Provincial Legislature. This also confirms the opinion above stated, as to the restrictions which the Federal and Provincial Governments must impose upon themselves in the exercise of their respective powers, in order to keep within the limits of their jurisdiction. It is true that the exercise of a power would not imi >ia-»iii '> ^L li %Mi Wwl PRIVY COUNCIL. 30! I l,e a siifticiont reason, in many cases, for declaring that it legally ''itizrns and CoMPAMKfl r, Parsons. Sup. C, ( 'anada. exists but in a case such as the one now umler lunsidoration, wliero there are cogent reasons for exorciHing it in a limited man- ner as has been done by 40 Vict. ch. 42, while recognizing the power (if tlie Provinces, which seems ecjually well founded, we may fairly nresunie that the agreement of both Legislatures to keep within the limit of their respective powers, atl'ords a strong pre- r.urnier, J. sumption that they have only exercised such powers as properly beloni'O'l to tlicm. The most important public departments, such as the Department of Justice, and the Department of Finance, have for some years past adopted this view of the law, when enforcing tlio ruiiuirements of the ditt'erent Federal laws relating to insurance. Such an interpretation could n(jt prevail, no doubt, against a juilioial decision, but, in the absence of the latter, the interpreta- tion given by the departments must have great weight. Story assiiins to it tile second place, and speaks of it as follows : "And, after all, the most unexceptionable source of collateral interpretation is from the jn'actical exposition of the Govrnment itself in its various departments upon particular (juestions discussed and settled upon their own single merit.:. These approach the nearest in their own nature to judicial expositions ; and h.ave the same ;,'eneral recommendation that belongs to the hitter." (1) This departmental interpretation has been acted ujjon for several years— the license fees have been collected, the reipiired statistics have been furnished without any adverse contention on the part of tlie Provinces, and the power exercised in virtue of the law of Ont.ario was not contested by the Federal Government, which might have disallowed the Act had they considered it ultra vircf. When buth Governments are in accord, and by their enactments dispel any (luubts which might exist, woulA it not be rash to substitute another interpretation for theirs ] If there is any doubt on the matter, it seems to me to have been settled by legislative interpretation, and all the tribunals have to do is to c\ m ''it (1) VoL II. p. "27. (2) Par. 30. (3) 3 Burr. 1905. (4) Stephen's Com. Vol. II. p. 128. (5) Dalby v, India and London Life Assurance Co., 15 C. £. 365, ^i' 320 PRIVY COUNCIL. iif nil!! I ' ■ 11 ' ! 1 CmzENH AND lation or trade of insurance ; so, for instance, with the contract of Inhukanci; ^alo, which is not commercial of its essence, but becomes com- CoMPANii*! morcial, not from the nature of the article sold, but because the Parsons. seller does a business of selling that article. What is trade ? Trade Siip~C '^ ^^ occupation, employment or business carried on for gain or Canada. profit. Now, do those Fire Insurance Companies carry on a hiisi- TaBcbereau. J ness for gain or profit / To ask the question is to answer it. They are trading corporations, and trading corporations are commercial corporations (1). In the United States, as in England, this seems uncontruverted. In Angell & Ames on Corporations, Insurance Companies are classified among commercial corporations. In Par- son's Mercantile Law and Bryant & Stratton's Commercial Law fire insurance is treated of as forming part of the commercial law. In the Civil Code of Louisiana, the contract of insurance was entirely left out, to form part of the Code of Commerce, which it was then intended to promulgate. But great stress is laid by the Respondent on the decision of the SupreiMo Court of the United States in Paul v. Virginia (2), where Field, J. , said that issuing a policy of insurance is not a transaction of commerce Well, I may first remark that this case is not binding on this court ; then, a reference to the report shews that this is simply an obiter dictum of Mr. Justice Field, and that the gist of the decision in that case is merely, that insurance business done by a New York Company, in the State of Virginia, does not fall within the meaning of the clause of the constitution which declares that Congress shall have power to regulate commerce with foreign nations, and among the several States. Mr. Justice Field himself, in Penmcola Telegraph Co. v. Western Telegraph Co. (3), explained what he said in Paul v. Virginia as follows : — " In other words, the court held that the power of Congress to regulate commerce was not aflected by the fact that such commerce was carried on by corporations, but that a contract of insurance made by a corporation of one State upon property in another State was not a transaction of inter-State commerce. It would have been outside of the case for the court to have expressed an opinion as to the power of Congress to authorize a foreign corporation to do business in a State upon the assumption that issuing a policy of insurance was a commercial transaction." So that this case of Paul v. Virginia, it seems to me, has no (1)1 Holmes 30. CJ) 8 Wallace, 168. (3) 96 U. S. 2. U'A PRIVY fOFNCIL. n2i lication whatever here. Insurance Companies Pahsonh. Sup. r.., Camilla. »ni,iii\ari(iii nii.in:i.t,» ..^.^. The rohitive positions of tlio Pavlia- Citizens wn npjiilt.iii 1 (^UEKN iiieiit i>f the Dominion of Canada, and the Legislatures of tlie - viiiiiius Provinces, are so entirely difiereiit from those of Congress ami the Leii;i.slaturc8 of the several States, that all decisions from the United States Supreme Court, thou^fh certainly always entitled til Toat ciiusideration, must be referred to here with great caution. TIk'Iv, the right to regulate connnerce In, the State is given to the Tasch^^rtau, J. State, not to the Federal yx )wer. Here, as said by Mr. Just ice Strong, in Snrnt v. The Qvecn (1) : " That the regulation of trade and com- merce in fl"' Pi'oviiifcs, domestic and internal, as well as foreign and external, is, by theB. N. A. Act, exclusively cfmferred upon the Pailiaiiient of the Dominion, calls for no demonstration, for the laii"iiage of the Act is explicit." I might also remark that, whilst in the United States" constitution the word "commerce" only is used, ours has the words "//•(die (tnl rotiiiiwri'e." Some law dic- tionaries give the word " trade" as meaning " internal commerce," whilst the word "connnerce" would refer to foreign intercourse. But this appears to be a fanciful distinction, not recognized either in commnn parlance or in legal language. In either one or the other the expressions, "the trade with the West Indies, with the United States, . . . the foreign trade," etc. , are of every-day use, and therefore, in the interpretation of the Imperial Act, we cannot hold, it seems to me, that the word " trade " has been added to the word "commerce" simply to mean "internal commerce." Leaving it out of the Act, the internal commerce of the Dominion would remain as it is — under the control of the Federal power. Every word of the Act must have its due force and appropriate meaning, and the Imperial Parliament, which, no doubt, whilst creating a Federal union among its North American possessions, had before its eyes the constitution of the United Stcates, must have intended by adding this word " trade " to the word " commerce " to give to our Federal authority supreme power, not only over the commerce, internal as well as external, but also over the trade of the whole Dominion, internal as well as external. Of course we are not called upon to give a general definition of this word " trade." as used in the Act. In the inter |iretation of the constitution, general defini- tions are to be avoided. In this case, all that is necessary to deter- mine is, whether the word embraces Insurance Companies iind their Contracts, and, in my opinion, it does. {i) 2 Can. S. C. R. p. 104. 21 * -u 1 1 i'j'u !•■■■ ||: i ii'2'2 I'ltIVY COUXCFr,. Citizens and QCEKN Insurancb r'oMl'ANIK.t 1'ak.son'h. Sup. C, ( 'aiiada. To revert ti> the cftse of Pmil v. Vnijinhi., the <>\>'ih-f (\'i,-i„,„ ,,f Mr. .Iiistici) Field, " tliat issuiiii,' a pulic}- of iiisuraiieu is u,,t „ tranaactiuii of commerce," seems to mo notliin;,' but a triiism. in the same sense, as I have remarked hofnre, it may \tv. H;ii,l that makiiit,' a contract of sale is not a transaction of comiiioivo. It j^ the fact of a ))Br8itu (ir corporation makins,' a l)iisiness of scllini; and Tiiscberoau, J. buyinj,', or of issuing policies of insurance, which gives in tlu' (.,,11. tract of sale, or the contract of insurance, and the sfUer nr iuHiiivr a commercial character. It is in acci>rdanco witli this luiiKjiilc that the Civil Code of Lower Canada, Art. 2470. to whicli I liavc already referred, says that ./ire innHranci'H are nnf lnj Hi,!,- „iil,i,y commi'irial, hut ihaf thitj tire .so when ituide fur n jireiithiin \„f persons currying ou the busiuess of i usurers. So it is with the tele<,'ra[)hing business ; for examitle, sondiiiu n message by telegrai)]i is not a transaction of commerce, yet tult'Lti'aiili companies inter-States, and the right t(j regulate them, are liekl in the United States to be under the Federal power as a part of com- merce, and this th(iugli a very large proportion of the telegraiiliic messages have notliing to do with commerce at all (1). Witli us, on the same principle, telegraph busines-s would also be excltisivily under Federal contnjl, if the B. N. A. Act did not expn'ssly vest in the Local Legislatures the control over local and Provincial lines as long as the Federal Parliament does not declare tlieiu tu lie for the general advantage of Canada. Against the deci.sion ui Paul v. Viryiiila, in the United States, a decision in our own courts can be cited. I refer to Affarnnj- General v. The (^neen InsHranee Co. (2), in which Mr. Justice Tor- rance, in the Superior Court at Montreal, and the five judges of the Court of Appeal, unanimously held that a license tax on poJIr'n'^ of insurance was a regulation of trade and commerce, and, as such, under tlie B. N. A. Act, ultra vires of the Provincial Legislatures. This decision seems to nie in point. The case was carried to the Privy Crjuncil, and the judgment of the Quebec Courts w:i8 cot firmed without hearing the Respondents. However " >iy Council disposed of it without deciding whether tli . iiicial License Act on insurance jxdicies was a matter falling 'tin the words " rv-gulation of ti'ade and commerce" of the B. N. A. Ac; (1) Western Union Telegraph Co. c. Atlantic and Pacific States Telegraph Co., .■) Nev. 102; Pensacola Telegraph Co. c. Western Union Tele;,'rai)h Co., 9G U. S. 1. (2) 21 L C. J., 77 ; 22 L. C. J., 307 ; ante, pp. 131 ; 153. uAAiMaMM PRIVY C(UfN(!lL. ^•2:] It may, novortholefis, be tomavkixl, that tliuir Lonlships in thoir <'iiukn'J anp • (l.'inoiit, nftor saying tliat thu price of a liconso to a tnulor i« Insiuamk usuallv aseertainoilby tlio aujuimt of his trado, atUl, lofi-rring to "MPamk^ tie iiceusi- iniposod by the Qiieboc Lcgishitnro on insurance poli- Pausonm. i>g "this is not a [laynient doponiling in that Honso on the amount «^|,|,_ c.^ of trill lo provioiialy ilono by the trader," calling insurance l)U»incss *' """' "• " tniile '' anil insurance companies " traders. " The report of this TuscUoreau, J. C1180 ill tliiJ Jitr'i^ is ^'^-''T incomplete. I have referred to tlio cj.s. .(iiitaimiv the note of all the judgments in the (iik'ti v. SaundcrK (3) ; Martin v. Hunter (4). Since Confederation, in many instances our statutes have ex- •ii'uasly or impliedly recognized insurance companies as trading companies. In the Insolvency Act of 187i"» (38 Vict. c. 10, sec. 1), it is enacted that the Act applies to trader.s and to trading com- nauius, execpt insurance ci^n^'unieH. Now, it is an admitted rule of iiiteipretation that the exception of a particular thing from general words, proves that, in the opinion of the law-giver, the thing ex- cepted would be within the general words, had the exception not been made. So that the opinion of the Federal Parliament must have been, when making the said excei)tion in the said statute, that insurance companies are trading corporations. I see, moreover, that in 32 and 33 Vict. c. 12, sec. 3 ; 32 and 33 Vict. c. 13, sec. 3 ; iiiul 40 Vict. c. 43, sec. 3, the Dominion Parliament has enacted that these statutes should ajiply to any purposes or objects to which the legislative authority of the Parliament of Canada extends, t'Xi'pt insurance. That is saying clearly that the legislative authority of the said Parliament extends to insurance. Indeed, the Dominion Parliament has given no uncertain sound on the question. Within the very first year of the Confederation (31 (1) Ante, p. 117. (3) 12 Wheaton, 213. (2) 5 Wheaton, 1. (4) 1 Wheaton, 304. mm i 1 't i I' I?' :\'24> I'RIVY COUNCIL. CiTizKNs AMI Vict. c. 93i, it exercised the power of legislation on the subipp^ I.vsiuANc'K fi'1'1 it has done so ever since, in no less than twenty-five statutes Com PAX I Es Parsoxs-, Sup. C., Canada. raschereiiu. I IIV 18G8, ni 18(J9, 32 1870, 33 1871, 34 1872, 35 1873, 30 1874, 1875, 38 187G, 39 1879, 42 oa nisurance com- c. 48 ; 38 Vict. c. p issed tliereon at various periods, as follows : — 31 Vict. c. !'3. 32 and 33 Vict. cc. 07, 70. .•t. c. 58. " 53, 55, 56. " 98, 99, 102, 104, 105. '^ 99. " 49, 80, 89, 94, 95. " 81, 83, 84. " 53, 54, 55. " 00. To these may be added the six License Acts panies : 31 Vict. c. 48 ; 34 Vict. c. 9 ; 37 Vict. 20 ; 38 Vict. c. 21 ; 40 "\'ict. c. 42, in wJiich tlie Dominion Parlia- ment has also exercised the riyht to legishvte on insurance and insurance companies, and to enact regulations on their trade and business, making at least (not including those of the last session] thirty-one statutes of tlie Federal Parliament (and I have no doubt I have not counted them all), whicli, if tlie Respondent's conten- tion should prevail, would fall to the ground as unconstitutional. The conse(|uence of the nullity of these statutes must be,amonif8t a great many others, that all tlie amendments made by the Domin- ion Parliament to the charters of the insurance companies existin" before Confederation, all the charters granted to insurance com- panies by the said Parliament, are null and void ; that all their policies of insurance .are so many pieces of blank paper ; that their shareholders are relieved from all liability whatsoever for the un- paid portions of their shares ; that all actions pending, in wliich any of these companies are parties, must fall to the ground. And, as to the License Acts, if they are illegal, of course these companies are not obliged to submit to them ; they are, moreover, not only free from the operation of these Acts for the future, but the Do- mini(m Government is obliged to refund to them all th.at they have paid into rhe treasury under the said Acts, and to remit the many hundred thousands of dollars which they have deposited with the Government. Indeed, it is impossible to foresee the gr-i, i"^ ^ ' (^UFEN tliis case, does ni)t exist if the Federal Parliament has not tlii' Lvsuuame power of legislating on insurance conipanios and creating them. Cojipanies •\nJ if the Federal Parliament had not the power to create the Paiwo.vs. company (Appellant), to give it existence, the judgment itself, that SiqTc., tlie Respondent lias obtained, is against a non-existing body, and, Canada, as sucli, must fall to the ground. He, in fact, then, has never Tuscbcieuu, J. been insured ; he is the bearer of a mere shadow of a policy. The Respondent is thus driven to admit that the Federal Parlia- ment has tlie right to create and incorporate insurance companies. But then, if Parliament ha.- t'ns right, it can only be because these companies fall under the FeuerrJ control in virtue of the words re emulation of trade and commerce," in sec. 01 of the B. N. A. Act. "Tlie iiower of creating a corporation, though apiiertaining to sov- ereignty, is not .... a great, substantive, and independent jiower, which cannot be implied as incidental to other powers, or used as a iiieans of executing them. It is never the end for which otlier powers are exercised, but a means by which other oljjects lire accomplished" — per Marshall, C. J., in McCnlluch v. Mariihnid il); and upim this principle, ii ia to be presumed the framers of the B. X. A. Act have not deemed it necessary to grant in express terms to the Federal Pai'liament the power to incorporate railroad, shipping, telegraph or any other companies for the Dominion. Yet it cannot be (piescioned that it has such power. In the ciuiiiieratioii of the powers of the Provincial Legislatures, it lias l)een deemed necessiny, it is true, to include in exjiresw terms the incorporation of coinpanies for Provincial objects, but that was undoubtedly because the power of creating a corporation apper- tains to sovereignty, and as such would not impliedl}' vest in the Provincial Legislatures, vhich clearly, by tlie Act, have none l)ut the powers exi)ressly given to them, whilst the Federal Parlia- Hunt has Jill the other powers. And if the Federal Parliament has • to create insurance 1" compi I" giihite them — that is to say, to prescribe the rules under which iney can carry on their trade, by which their trade is to lie governed. The Respondent contends that, ling tliese companies can be assumi created l)y the Federal Parliament, their contracts, their i)olicios fall under Provincial control, and that the Provincial Legislatures alone have the power to regulate these contracts and these policies. m: U >i 'An (1) 4 Wheaton, 310, 411. 820 PRIVY COUNCIL. I ! jijin Citizens ami But are not these contracts, these policies, the trade and conimercp Insi'kance ^^ these companies ? and is it not the regulation of trade and cdm- roMPANiKs lugi-ce itself that the B. N. A. Act vests, in express terms, in the Parsons. Federal authority ? Is this not contending against the very weirds Sup. C "^ ^^^ -^^^' ^^^'"^^ ^^'^ Federal authority can create or incorporate Canada. traders, but that it cannot regulate their trade? If such was the Tascbci-eiui, J. case, the Provincial Legislatures would have a power totally iiicdin. patible with the supremacy which the Olst section of the 15, N. A. Act gives in such clear terms, to the Federal Parliament, over all the matters left under its control. Either the Federal Parliament has no control at all over insurance companies, or it has it supreme entire and exclusive. If it has it, it has necessarily the power tu regulate them, and to impose upon their contracts all the conditidiis or restrictions it may think advisable ; it has the power, fur instance, to enact a statute imposing upon the companies it luis created the very conditions contained in the Ontario Fire Insurance Policy Act. And if it has that power, the Ontario Legislature has not got it. A contrary interpretation would be giving to one (iuv- ernment the power to create, and to the other the power to destroy ; and to use the words of ^Marshall, C. J. {loc cif. p. 42(1): "A power to create implies a power to preserve; a jjower to destroy, if wielded by " ditl'erent hand, is hostile to and incmu- patible with these powers to create and to preserve, and wliore tliis reiiugnancy exists, that authority which is supreme must Cdutnil, not yield to that over which it is supreme." I really fail to apprehend upim what ground the Respondent, and the Ontario courts witli him, whilst almitting the power nf the Federal Piirliament to incorporate insurance companies, can sustain the contention that the contract f insurance itself falls under Pm- vincial control, simply because it is a eimtract or a pir.^(>nal ciiiiii-'irt governed by the local laws, and falling within the words "civil rights," of the 02nd section of the B. N. A. Act. Certainly a per- sonal contract is governed by the local laws; no ime denies this; but the (juestion to be determined here is, which is the local law, the law iu Ontario on the subject ! Is it the Dominion or the Pro- vincial law ? The Respondent would seem to treat the Dominion laws as foreign laws. He forgets that before the laws enacted l)y the Federal authority within the scope of its powers, the Provincial lines disappear ; that for these laws we have a quasi legislative union ; that these laws are the local laws of the whole Dominion, of each and every Province thereof; that the Dominion, as to such PRIVY COUNCIL. 327 1 la i^ but one country, having but one legislative power, so that Citizens and , , 1 ■ /-w X • e ,-L Queen a contmct uiade under these laws in Ontario, or any one of the Insuranck Provinces, is to be considered, territorially or with respect to Companies locality, as a contract in tlie Dominion, and, as such, governed by Parsons. the Doiuiiuoii laws, and not as a contract locally in the Province, SupTc., (/ovcnied l)y the Provincial laws. This is why the contracts to Canada. convey passengers and goods on the railways under Dominion con- Tascbereau, J. trol- fur instance, the contract made by the sender of a message witli a telem-aph company, the contracts of a sale of bank stocks — are all and every one of them, when made .inywhere in the Domin- ion re"Lilated by tlie Federal authority. And the power of the Fetleral iuithority to so regulate them has never been doubted ; yet are thuy iie absolutely useless to them if the constitution granted to each Province the right to regulate their business. For the same ivasnus, the Federal Parliament, for instance, in the general railway Act 'if IST'.I, section 9, has enacted, as it had done in 18(58, by the repealed Railway Act, that tenants in tail or for life, r/cccc.s de siib- stih'fiiiii, guardians, curators, executors, and all trustees whatso- ever, may contract and sell their lands to the company. This is certainly an enactment on ]n'operty and civil rights, yet 1 have never heard it doubted, during the twelve years that it has been on the statute book, that it is perfectly constitution' Indeed, with- (lut it, the enactments of the Federal Parliament i..ight be in some instances entirely defeated and set at nought. In the United States, the Federal power has in the same manner e.xercised its juris- diction over civil rights and contracts. It having been settled, for instance, by judicial construction, that navigation was under Federal control, Congress has enacted laws regulating the form and n..ture of the contract of hiring the ships' crews (i). It has altered the oliligations imposed by the common law on the contracts made l)y shipowners as common carriers, and though the validity of this enactment has never been directly decided u\nm by the Supreme (1) Ponieroy's Constitutional Law, par, H81. ill f 328 PRIVY COUNCIL. i ft n Citizens A^fD Court, it has been brought before that tribunal in such a way that Insukance their silence was equivalent to a positive and formal judgmunt in CoMPANiE.i favour of its validity, as demonstrated in Pomeroy's Constitutional Parsons. Law (1). Sup. C, This court has, in variou.? cases, held that the Federal Pmlia- Canada. nient, on the matter left under its control by section 01 of tlio Taschereiiu, J. B. I^. A. Act, must have a free and unfettered exercise of its powers, notwithstanding that, by doing so, some of the powers left under Provincial control by section 92 of the Act might be inter- fered with. And this doctrine has been approved of by the Piivy Council as r.i coming toitliin the i7((,s.s of siiJijid^ exclusivchj asmjned hij the Act to the Prorincinl aKthofitij. ^'()\v, tile statutes creating and incorporating insurance companies, and enabling them, as bodies corporate, to make contracts of insur- ance, are clearly in relation to the subject of insurance ; so that, if tlic Federal Parliament has the right to incorporate these com- panies, as it seems to me clear it has, and as the Respondent and the Ontario courts are forced to admit, insurance cannot be deemed to cnine witliin the classes of subjects put under Provincial control by tlie words " i)roperty and civil rights " of the 92nd section of the It, N. A, Act. The Federal Parliament cannot extend its nwn jurisdiction by a territorial extension of its laws, and legislate on subjects constitutionally Provincial, by enacting them for the whole D'lniinion, as a Provincial Legislature cannot extend its jurisdiction owr ni:itters constitutionally Federal, by a territorial limitation of its laws, and legislate on matters left to the Federal power, by enacting them for the Province only, as, for instance, incorporate a bank U)v tlie Province. The B. N. A. Act is not susceptilile of a diltlrent construction without eliminating from section 91 thereof the Controlling enactment that the general power of ilie Central Parliament to make laws for the peace, order' and good g(jverninent of the wIkjIc Dominion, iloea not e.fte)id to the sy.hj'ctn hft to the Prd-\vill of the Provincial authorities. (Janadii. It is of tlio very essence of 8ui)remacy to remove all obstacles to Taschereau, J, its action witliin its own sphere, and so to modif}- every pnwtf vested in subordinate Governments as to exempt its own opera- tions from their intluence, and it cannot be that the franiers of dur Constitution, who determined to give to the central power uf tliis Dominion the supremacy and strength which, in the hour of trial were found to be so much wanting in the Federal power of the United Wtates, have thus given to a Province, or to all the Pr(jviiices uniting in a common legislation, the power to annihilate, eitln'i' directly or indirectly, the corporation which the central ])(n\\r is authorized by the Act to create ; t'.ai they have thus reiulered inevitable in this Dominion that conHict of powers under mIucIi a federation must always, sooner or later, crumble and break clown. In re TIte Wedeni Insnnnici' Vomixtinj, Appellant, and JWui.s/o/i, Respondent, the appeal must also, in my opinion, be allowed, for the reasons I have given in the Citizens'v P(.(fson>i. The ff'^estern exists in virtue of an Act of the late Province of Canada ; but, if insurance is a trade, the Acts on the subject passed before Confederation can now be repealed, altered (jr aniended, liy the Federal Parliament onlj', under section 1'21> of the B. N. A. Act. In The Queen Insiinniee VomjHinii v. Parsunn, also, the aiijieal must, in my opinion, be allowed. The company Aiipellant, in tliis case, being a foreign com[)any, is on a slightly ditlerent footing than the Gitize)in and the ireatern. Yet if, upon the grounds 1 have stated, insurance companies and their trade and business fall under the regulations and control of the Federal Parliament, there arc no reasons whj' foreign insurance C(jmpanies sl.ould l)e held to be under Provincial control. It is admitted (and my remarks here ajjply as well to the other two comi)anies, which are also under license of the Federal Govennnenti that this company, the Queen Insurance Company, has obtained from the Federal Government a license— that is to say, a permit— to do business all through the Dominion, under 38 Vict. c. 20, and 40 Vict. c. 42. Now, a license is a regulation, or rather, it is a permit to carry on a trade under certain regulations enacted by the lieenaei'. > 1) (1) Cildrr V. Kirbit, 5 Gray, 507. iiii diytu PRIVY COUNflL. 833 IXSlKANCK CuMPANIES ('. I'arsonm. Sui.. C, Canada. These re'Milations the Federal authoi-ity lias made. To obtain Citfze.ns and ' Ol'EE\ its license, this company had to dtipiisit ^50,000 with the Receiver- - (iiiieral oi tlie Dominion (1); it had to tile with the Dominion Gm L'l'niiient certain documents, and perform certain formalities eiiumeiuted in sections 10 and followins,' ones of the said Act. Any liii*iness clone before this deposit was made and these formalities fultilleil would have wrought on the person doing such business a Taschereau, J. ni'iiiilty of 81,^^00 or an impris •' exchisire " power of regulation of that trade " in each (IK / cfery Province " in the Dominion, and this is so (enacts section 91 of the Constitutional Act), notwifhsta}i(liit(i that this power might interfere with the rights conceded to the Provincial Legislatures by section 02. This power to regulate excludes necessarily the action of all others that would perform the same operation on the same thing, and to the Federal Parliament alone must belong the right to impose upon the company Appellant and its policies the conditions and restrictions which this Ontario Fire Insurance Policy Act purports to impose, or any conditions or restrictions wiiatso- ever. These companies cannot be controlled and governed by as many different regulations as there are Provinces in the Dominion. It is /f:»| I' il i'^P' (1) Sec. 0, 38 Vict. c. 42. v'' - ' ' •; ;J34 PHIVV COUNCIL. ;, ! 1 f H CiTizKN:^ AND ]ty tlio couiity of the Dominion that tliey are admittod hoio an,! Inxukanhe under thu Dcnuinion laws and power that they remain. ( Jnc of tliy CoMPAME.s groat benefits of Confederation would be lost if the rules (in tiadu Pahhons. and eonimerce were ntjt uniform all throui^h the Dominion ; if the Sill). <'.. Provincial Legislatures had, as contended by the Hesiiondcut, tliu C anad a. power to tamper with the grants and privilciieeu's Bench, in one of these cases, We-dcni Asanrancr Co. v. .Jdlmstun, distinctly stated that they did not express their individual opinions on this constitutional question, but yielded k) the judgments already given. GWYNNE, J. : — Upon the point as to the construction of the Act, assuming it tu be not }iUra cires of the Provincial Legislature, I retain the oninion expressed by me in Geraldi v. The Provincial IiisiDxoice Compdnii (1} ; that the true construction of the Act is that the statutoiy conditions set out in the schedule to the Act, whether omitted altogether, with or without others being substituted in their place, or whether some be omitted and others retained and new ones added, shall alone be regarded as being part of the policy, unless the conditions and variations, whether of oitiisaioii, substitution or addition, shall be printed on the policj' in the manner prescribed by the Act, tlie object being, that, to secure uniformity, no departure from the statutory conditions shall be recognized, unless the variations shall be endorsed in the manner prescribed in the Act (1) 29 U. C. C. P. 32L '^ ■HliillMlill, I'RIVV rouxcFF,. 3.s: C'uMrAMKS r. Su|.. (A, < 'aiiadu. 'i Wynne, J. Hit it i» cniitomlotl that the Act under cnnsiclonvtioii is iiltrviiicial Logishituru of Ontario, wliicli iiaHsud it, as inti i In>iiianck f.ino with the roguhvtion of a brancli of track; aiul conuiioroL" trill mvlt which is by the second item of section '.U of tin- It V \ Act vested exchtsively in the Dominion Pailianu'iit. Tlie (luostiun tliiis raised is, nmloubtodly, one of ii very gra\<' •Inraetor, for, as liecauie devehijied in the argument of tlie sevorjil casus now before us, whereiii the point is raised, one of which, inmelv Thr irci/cr/i AsaufiDici' ('inn^minj v. JiihnufDii, was argued 1 jj,y Attorney-General, who is also tlie Premier of tlie F*rovince of Ontario, in support of the constitutionality of the Act, tlie (lUtstioii beftire us is not one merely aflecting the particular Act in (UU'stion, but our judgment in this case, although the Dominion PiirHanieut is not represented, and has not been heard in the matter will logically aflbct some thirty Acts of the Dominion Par- liaiuL-nt wliose constitutionality has not heretofore been questioned, ami wliich uuist be xdtra r/'/vs of the Parliament if the Act now liefore us be l)itni vires of the Provincial Legislature ; and, on the contrarv, if this Act be ultm riri'a of the Provincial Legislature, a numlior of Acts passed by the Legislature of the Province of Outarii) nuist be equally so. It is clear that the subject-matter of the Act in question is not one (jver which jurisdiction is liy the B. X. A. Act given concurrently to the Provincial Legislatures and to tlie Parliament. If it were, no doubt the Act would be valid ^■Ksluiii^ and so far oiilji u.-< it is not repugnant to any Act of the Parliament of Canada." The suliject not being one over which concurrent jurisdiction is given to the Provincial Legislatures and to the Parlian\ent, must L^ placed exclusively either under the one or the other. The question, therefore, is determinable by the rule which I adopted in the City of Fredericfnn v. Tim Qiifi')!, (1|, as appearing io me to furni.sh an unerring guide in determining whether any given subject of legislation is within the jurisdiction of the Provincial Legislatures or of the Parliament, namely : "All siil)jucts of M'hatever nature, not exclusive!}' assigned to the Local Legislatures, are ]ilaced under the supreme control of the Dominion Parliaurent, and no matter is exclusively assigned to the Local Legislatures unless it be within one of the subjects expressly enumerated in section 92, and at the sanif time does not involve any interference with any of the subjects enumerated in section 91." ■'■11 •:iR' 1 , ' '. '- -f ?■ m i ' » .' (1) 3 Can. 8. C. E. 50.5. '!" ; 1 :{:{() PIUVY CUUNCII,. OlTIZKNH AM Issl liAS'cK. C'dMI'AMKS * Pausonh. Slip. ( '., Ciiniuln. 'I'liu contontiou in support of tlio claim tlmt tlio Act is witliiu the jiiriHilietioii of the Local Li'gialatiU'e, ia that the Hubjuet-inatter of the Act collies within item Kt of section !)'2 of tlio H. N. A, Avt namely, '' I'roperty and Civil Rights in the Province." 1 iiavc already, in Tlir Vitij of Fniliilrtdii v. Thf (Jinin, e.\jin.s ,(1 my opinion that the plain meaning ot the closing sentence of section Gwyiuie, .T. !►! is, that (notwithstanding anything in the Act) any matter cominu within any of the sulijects enumerated in the 01st section nhuH not be deemed to come within the class ui subjects eniimoniti^il in the ((2nd section, however much they may a]»pear to do so. Jiuis- diction, therefore, over "Property and Civil Rights in the Province' is not vested absolutely, but only ijualitiedly, in the Local LeifislH. tures. In so far as jurisdiction over "Property and (^ivil Rights," in every Province, may be deemed necessary for tiie perfect excici.^t' of the exclusive jurisdiction given to the Dominion Parliaintiit o\er the several subjects enumerated in section 1)1, it is vested in the Parliament, and what is vested in the Local Legislatures Ity item 13 of suction !>2, is only jurisdiction over so much of inoiicrty and civil rights as may remain, after deducting so much of jiiiisilic- tion over those subjects as may be deemed necessary for securing to the Parliament exclusive control over every one of the subjects enumei'ated in section 91 — the residuum, in fact, not s., absorbed by the jurisdiction conferred on the I'arliament. The <»nly questicju, therefore, before us substantially is : Are ur are not joint stock companies, which are incorjiorated for the jmr- pose of carrying on the business of tire insurance, traders ? aiul is the business which they carry on a trade ? If this (luestion must be answered in the affirmative, the Act under ctmsideration must be ultra ci/cs of the Provincial Legisla- ture, as much as was the Act which in Severn v. The Queot, (1) was pronounced so to be, and as the Act under consideration in The City of Frederidvn v. Tlie (^ueea would have been if passed by a Local Legislature ; indeed, it seems to me to be difficult to con- ceive what greater assertion of jurisdiction to regulate trade and commerce there could be, than is involved in the assumption and exercise of the right to prescribe by Act of the Legislature in what manner only, by what form of contract only, by what persons only, and subject to what conditions only, particular trades, or a particu- (1) 2 Can. S. C. R. 70. .M^ M^y FRIVY COUNt'LL. 337 ! Inhuuwok OoMI'ANIKH y. 1'akhonh. SupTc., Oiiiinna. O^'. ymie, J. lar traclo, may bo Ciinied on, and to prohibit their being carried o;i C'i.izi:ns axd (itlicrwiso than is prescribed by tho Act. If this may bo done in one trade, obviously it may bo done in every trade, and su all trades must I)C subject to tho will of the Le^ishituro having jurisdiction 80 to legislate as to whether it shall bo carried on at all or not. As to the Act under consideration, if it lio open to tho construction put upon it by tho courts below, it seems to mo to bo impossible to conceive any stronger instance of the assertion of supremo sovereign Ici'isliitivo power to regulate and control tho trado of tiro insurance iind of lire insurance compuiies, if tho business of those com- panies be a trade. Now, among all tho items enumerated in sec. 1)2 it is observable that not ono of them in tonus indicates tho slightest intention of confeiring upon the Local I.< ;islatureB the power to iiiterforo in any matter relating to trado or commerce, or ill any matter which in any manner alFects any commercial business (if any kind, unless it be item No. 10, whereby the Local Legisla- tures are empowered exclusively to make laws in relation to " local works and undertakings" subject to this iiualification, namely, "other than such as aro of the following classes: " " ((. Lines of steam or other ships, railways, canals, telegraphs, and otiier works and undertakings connecting tho Province with any other or others of tho Provinces, or extending beyond the limits of tlio Province ; " b. Lines of steamships between tho Province and any British or forei<.'n country ; "('. Such \vorks as, although wholly situate within tho Province, are, before or after their execution, declared by the Parliament of Canada to be for the general advantage of Canada, or for the ad- vantage of two or more of the Provinces. " All these excepted subjects aro, by item 29 of section 91, placed under the exclusive legislative authority of the Parliament of Canada, and so, by the closing paragraph of section 91, aro, in effect, pronounced not to be local or Provincial works or under- takings. Works and undertakings within each Province other than those excepted, aro all, therefore, which can como within the de- scription of "local works and undertakings" comprehended in item 10, It is to be observed, also, that when power to incorporate com- panies is given, no menticm is made of trading companies. The power is expressly limited by item No. 11, section 92, to "the incorporation of coim^Mues with Provincial object s," None of the 22 r t ' I, •» 15 ''Hiii I i; ■■ 'Hi ;;■!; 338 PRIVY COUNCIL. Sup. C, Ciiuada. Gwynne, J. Citizens anm) learned counsel who contended for the validity of the statute under Inh(h\n''e consideration ventured to dedne the term "Provincial objects;" Coiii'ANiEs t:.jy rather preferred to submit at large, that the item inteinledto Pausons. confer power to incorporate companies for all purpo!.os of tnide, and, in fact, all purposes vvliether of trade or otherwise, provided only the corporate powers should be expressly prescribed by tlio Act to be exercised within the Province. It is, i)erhaps, easier to say what the term does not comprehond than to define it precisely. I venture to suggest, however, tluU such local works and undertakings as are by item 10 placed under the Local Legislatures may properly be termix'l local or Provinciu! objects. So may the subjects enumerated in item No, 7, viz. : " The establishment, maintenance and management of hospitals asylums, charities and eleemosynary institutions in and for tlio Province, other than marine hospitals ; " and so likewise the item specified in sec, ton 93, namely, " Education ; " ani' leyond these I cannot say that I see any other; but when we regard the wlnli. scope and object of tlie B. N. A. Act, and bear in mind tliat the scheme of constitutional government which it was designed to create, was to vest in the Dominion Pai-liament, consisting of Her Majesty (herself the supreme executive authority) as one member, and a Senate and House of Commons as the other niombers of the Legislative body, the supreme sovereign jurisdiction to legislate upon all subjects whatsoever, excepting only certain specific matters fHirticularl y enumerated, purely of a local, domestic and i)nvate nature, which were assigned to the Provinces ; and, wlieu we find that for greater certainty (to expel doubt, as it were) the exclusive legislative jurisdiction of Parliament is declared to extend to all matters coming within the regulation of trade and commerce, words which (in perfect character with the general supreme jurisdiction intended to be conferred upon the Parliament, excepting only tlie jiarticidarlji excepted subjects) are comprehensive enougli to in- cl'.'de, and must be construed to include, every trade and every- tiling relating to every trade, and to all branches of commerce, and to the persons by whom, and to the manner in which tlio same, in every branch thereof, may be carried on ; we can, I think, witli great confidence, assert that no jurisdiction to incurpuyah any traditty cuniptuiy, or to restrain or control any tradi g company in the way it should carry on its trade, i; given to the Local Legisla- tures, unless it be in respec of companies for the construction, maintenance and management of such works as by item No. 10 are iiii ■ 1 y PIUVY COUNCIL. 33!) placed under the control of the Locftl Let;iRlaturcs, under the desig- tion "local works and undertakings." From the frame of item No. 11, it is pl'iin that wliat was intended by annexinrr tlie quali- fication "with Provincial objects," was not the power of incorpo- ratin" companies for all purposes, but a limited jjower ; fur inas- mucli as, wholly irrespective of these words, the Local Legislatures C)uld give no powers beyond their Province to companies incorpo- rated by them, these words " with I^rovincial objects " were super- fluoi'3 and have no sense unless they be read as words of limitation, havin" a restrictive operation ; it would have been sufHcient to have said simply, " the incorporation of companies;" but "for greatiu- certainty," a principle which pervades the Act, I have no doubt these words " with Provincial objects" were introduced to confine the power to those purposes wliich are specially placed under the control of the Local Legislatures in express terms — so as to leave aiithing to be implied or inferred. My brother Taschereau lias, however, so forcibly dealt witli this subject, that I shall discuss it no further, but shall proceed to the enquiry : " Are or are not joint stock companies whicli are incor[)oratcd for the purpose of carrying on the business of fire insurance, traders ? and is the business so carried on by them a trade ? " It was admitted as beyond all question that the business of nifaine insurance is a trade, and that all companies cari-ying on that busi- iK'ss are traders, and arc in all matters subjected to the exclusive jurisuictiun of the Dominion Parliament ; but marine insurance policies iiiariably contain, and from the lime of their first intro- duction did contain, provision for indemnity against loss by fire ; and all text-books upon the subject of insurance are careful to im- press the doctrine tliat lire insurance is but the oflspring of mirine insuiiiuce ; tliat nothing was more natural or more reasonably to liave been expected, than the conversion of the securit}- which had long afforded protection against mjury to ships, occasioned by lire, to the ))urpose of yielding protection to property on land ; that it was tlie calamitous fire in London, in 1007, wliich hastened the ajjplication of this provision in marine policies to the protection of prt)pi'rty by land ; and that, as Magens says, there were few mer- chants in London in 17r)5 who were not insured, as well for their protection, as for the gre.ater credit, both at home and abroad, which they enjoyed in their commercial transactions, from its being known that the great capitals lying in their houses and warehouses arc thus secured from the flames ; that the utility, both in a public CiTIZKNS AND QUKE.V iNSrRANCK Companies «. Pakho.vh. m Sup. C, Car ada. (iwynne, J. !l 340 PRIVY COUNCIL. Tnhuhance compani''s V. Parsons. Sup. C, Canada. Gwynne, J. ■ Citizens and and a private point of view, aa an incentive to incluatry and enter- prise, and the promotion and advancement of trade, ia as great in contracts of fire insurance aa in those of marine insurance, anil indeed greater, by so much aa the amount aecurcd by contracts of insurance against fire largely exceeds that securod by those a<'ainst marine risks ; that contracts of fire insurance are governed by the same general principles as marine policies, and that the solution of any question that may arise upon an insurance against tire, will be found by a careful application of the doctrine of marine insurance : and that the law most reasonably presumed originally that persons who entered into contracts respecting fire insurance were acquainted with, and had in their contemplatioit, the custom of merchants anil legal rnleH tlie Local Legislature. I have shewn that in England tire insurance lias always been regarded to be a trade equally as niarhic insuranov, and to have emanated from the latter, and to be governed l\v tlie same principles and the same mercantile law f.^ governed marine insurance. There can therefore, in my judgment, be nu doubt tliat in the contemplation of tlie B. N. A. Act, all in3uran<.v, whether of lives, or of real or personal property, and whether against risk by fire on land or on .sea, or by storm on land or sea, or by any other casualty, must be equally regarded as branches oi trade and commerce, and must all alike be under the jurisdiction of the Do- minion Parliament. There can, I think, be no doubt that the object of the B. N. A. Act, in placing ^' all matiffs coming within" the term " regulation of trade ami conivu'rcc" under the exclusive control of the Dominion Parliament, was to secure a perfect uniformity in all the Provinces of the Dominion, as to all maW'rii whatsoever affecting all trades, as an essential condition to tlio (1)8 Wallace, 108. (2) 6 Otto, or 90 U. S. Rep. 21. : I PRIVY COUNCIL. 845 CoMPANIKti V. 1'aR80N8. Sup. C, Canada. Gwyune, J. irosperous carrying on of trade, and to prevent all possible iu- Citizens and terference or intermeddling with any trade, whicli diverse local iNauRANCK views entertained in the different Provinces of tlie Dominion luiclit be disposed to attempt, if the subject was placed under local jurisdiction, vvliether by prescribing a particular form of con- tract and proliibiting any other being used, or by prescribing a particukr mode of executi-. of tlie contract, or by assuming to .lictiite ill any other manner as to the manner in wliicli or the terms subject to which trading companies or other persons engaged in any particular trade should be permitted to carry on such trade. Tho inconvenience which would attend the carrying on fire insur- ance business may well be conceived to be higlily injurious to the interests of persons engaged in that trade, if they sliould be restrained from entering into contracts in tlie terms in wliich per- sons desirous of having their property insured may be willing to contract with them, and should be compelled to give up business, unless they should adopt a [)articular form of contract, executed in a particular manner, and subject to particular conditions, totally ilifferent iu each Province ; and if tliey should be subjected to (lifFeront penalties, forfeitures and consequences, in each, if tho forms prescribed in each should not be foiu-wed ; so likewise, how inconvenient it would be if companies empowered, as many are, to carry on marine as well as fire insurance, should as to one contract ne subject tu the Dominion Parliament, and as to the other to a Local Legislature. Now, that tlie Act under consideration, whicli assumes to prohibit all fire insurance companies, whether com- po.sed of foreigners or of British subjects, and wliether incorporated by foreign states, or by the Imperial Parliament, from carrying on their trade in the manner authorized by their respective chartci-s of incorporation, and from entering into sucli contracts as jH-rson.'s willing to deal with them may agree upon, or from enter ini,' iuto any contract in the way of their trade, subject to any other con- ditions, or in any other form than prescribed by the statute, and that in default of adopting the prescribed form, tiie parties cvm- tractiiig with them, although violating all the conditions upon which alone the companies entered into the contracts, shall recover against tiie companies, notwithstanding that, in the contracts in fact entered into, they had consented that, in tire event whicii had happened, the companies should incur no liability — that suoli an Act is one which assumes to regulate and control, and in a very marked manner to interfere with the trade of fire insurance, does iifHilij! I Hi m r 346 PUIVY COUNCIL. Caiiailiv. Owvnue. .7. Citizens anp not, in my judijinont, admit of a doubt. Such an Act may safely In.suranck with f;rt\ater propriety, be said to regulate the trade of fire insur- CoMPANTEs ance, and .so to relate to a matter coming within the term " re"ul;i- Pakso.vs. tion of trade and commerce," than the 4th and 17th sections of tht Siip~('., Statute of Frauds. That the 17th section of that statute elfects a regulation of trade and c(Mnmerce, will not, I presume, bo doubted • and the Imjjcrial Parliament has furnished us with proof that in the estimation of that power, to which the B. N. A. Act owes its existence, the -tth section does the same, for by the 19th and JOtli Vict. c. 07, intituled " An Act to amend the laws of England and Ireland (iJfevMnj trade and commerce," after reciting that — " Whereas inconvenience is felt by persons engaged in trade by reason of the laws of England and Ireland being, in some particu- lars, ditforcnt from those of Scotland in matters of common occur- rence in the course of such trade, and witli a view to remedy such inconvenience, it is expedient to amend the law-i of England and Ireland as hereinafter is mentioned ;" it was enacted auKmg other things : — " Sec. 3. No special promise to be made by any person after the passing of this Act to answer for the debt, default or miscarria"o of another person, being in writing and signed by the party to be charged therewith, or some other person by him thereunto lawfully authorized, shall be deemed invalid to support an action, suit nr other proceeding to charge the person by whom such promise shall have been made, by reason only that the consideration for such promise does not appear in writing or by necessary inference from a written document ;" and by the IGtli section, the title given to the Act in citing it is : " The Mercantile Law Amendment Act of 1850." Now, if this amendment of the 4th section of the Statute of Frauds so affects trade and commerce as to find its proper place in a "Mercantile Law Amendment Act," can there be a doubt that the Ontario Fire Insurance Act of 187*3, assuming, as it does, to prescribe the only manner in which, and the terms upon which, the trade of tire insurance may be carried on in Ontario, is an Act which assumes to introduce a new regulation of trade and com- merce into the mercantile law of Ontario, and so usurps the juris- diction of the Dominion Parliament, in which, for the purpose of preserving uniformity in matters of trade throughout all the Pro- vinces of the Dominion, the exclusive power to enact all laws in any manner afiecting trade and commerce is vested ? ..Jii. Jte^ PRTVY COUNCIL. 347 Canada. (J-.vyniui,' J. The miscliief of this legislati' n lies deeper than appears upon the Citizenb and surface. The germ of that mischief appears in the judgments of Jsj^liianck s„me of the learned judges of the Court of Appeal in Ontario, and <'ompanikh VIS more fnlly developed in the argument of the Attorney-General Farsokb. of Ontario, in liis argument before us in Johmtoa v. Western. j^„p_ (.^ hmancc Co.; the logical result of which, if well founded, would , , in my judgment, to undermine the fabric which the B. N. A. Act (lesi.^ned to erect. In the Cdheiia Assurance Company, Appellants, v. Parsons, Respondent, one of the learned judges of the Court of Appeal in Ontario makes use of the following language (1) : " The Parliament cf tlie Dominion has no power to authorize a Company " — that is, a Fire Insurance Company, i>f its creation — "to make contracts in Ontario except such as the Legislature of that Province may choose to sanction ;" they — that is, the Legislature of the Province — " maij, if they tliink proper, e.cdu'bi siich corporation from entering into lonti-ads of insurance here altogether, or they may exact any security whicli they may deem reasonable for the performance of its con- tracts. " The artificial being created by the charter is authorized to make ■iiich contracts as come within its designated puri)0se8, but the Le'4islatni'e granting the charter can give ntj privileges to be exer- cised witliin any of the Provinces, except with their assent and re- cognition ; and it follows, as a matter of course, that these may be uranted upon such terms and conditions as the Provinces think fit to impose. " Within their respective limits, each Legislature is supreme and free from any control by the other The Dominion Parliament has no more authority to interfere wiih, or regulate contracts of this { -'l^^wVRvM i ^^B i m 'r '#; ' i ' J, I nature" — that is to sav, contracts of tire insurance- .'ithin any of the Provinces, than has tlie Legislature of the Province to attempt to regulate promissory notes or bills of exchange. The terms upon which Insurance hu^ness is to be carried un within the Province is a matter cominfi exclusively within the powers of the Local Leyislature, and any legislation on the subject by the Dominion would be ultra vires. All that the Legislature has done in the case of the present Com- pany is to enable it, in its corporate capiicity, to carry on the busi- ness of insurance, bu'- the Local Legislature h^ s the exclusive dis- cretion as to the conditions under which it " — that is, the business (1) [See 1 App. Rep. pp. 100, 101.] ?; %- 348 PRIVY COUNCIL. Citizens AND of insuranco— "sliall bo carried on within the confinea QUKEN „ . „ Province. >f the Insubanok CoMP.VNIEa V. PAR90N8. Sup. 0., Oanaila. Gwynue, J. If tills 1)0 law, it must bo admitted tiiat the iniputatioii chaiKcd against the Douunion rarlianiont — that they have encroachetl upon tlie jurisdiction of the Local Logislaturos — is woU foundud ; in fact it iuay bo admitted that in ovory session of the I'ailianieut's exiat- once it has passed Acts which, if the above bo law, would have tn be pronounced to be ultra vires, to the oxtent of invalidutinc from 30 to 40 Acts. If the Local Logislaturo had jurisdiction to pass the Act under consideration, it is obvious that it has the like juris. diction over all other trades, so that what is assorted on behalf of the Local Legislatures is the exdttsirn right to hyislate in such a manner as to regulate and control all trades, and to exclude, '' {< they think proper," all persons and corporations, as ivell foreign a.j domestic , from carryimj on their respective trades within the Province of Ontario. Now, I freely admit that the Local Legislatures have the right so to legislate, if they have the power to pass tlic Act under consideration, but I add that they have only the like jjower in each case ; that they have no more power or jurisdiction to pass the one species of Act than the other ; that they have no more power or jurisdiction to pass an Act to regulate or control the terms under which a trade may be carried on, than they have to prohibit it altogether from being car- ried on within the limits of the Province. The former power is indeed but the exorcise of, and is com])rehonded in, tho latter, for an Act to control and regulate a trade is, in etlect, to i)rohibit the carrying on of the trade at all, otherwise than upon and subject to the proscribed regulations ; but the right to exclude, for example, foreign traders, be they corporations oi; individuals, from carrying on their trade in a country, can only be asserted in virtut' ul, and as incident to, Supreme National Sovereignty. An Act of exclu- sion, equally with an Act to control and regulate the manner in which a trade shall bo carried on, can only be vimlicated upon tlie principles governing what is called the Comity of Nations, the ad- ministration of which belongs exclusively to Supreme National Sovereignty. Now, the Provinces of the Dominion of Canada, by the wise precaution of the founders of our constitution, are not invested with any attribute of National Sovereignty. The framers of our constitution, having before their eyes the experience of tho United States of America, have taken care that the B. N. A. Act should leave no doubt upon the subject. '.„■}' 'i\Mi^ t'UlfPMl rm SV- PUIVY COUNCIL. S4& Within tills Dominion the ri^ht of exercise of National Sovereignty Citizens and IS vested solely in Hor Majesty, the Suprouio Soveroigii Head of il > .State, iiiul in the Parliament of which iler Majesty ia an Inhuranck companiks V. PAH80N8. Sup. C, Canada. ntei'ral i)art : these powers are, within this Dominion, the solo uliniiiistrators and guardians of the Comity of Nations. To pre- vent all possibility of the Local Lo<.'islature8 creating any ditHculties embarrassing to the Dominion Oovernmont, by presuming to niter- awynne, J fere in any matter ati'ecting trade and commerce, and by so doing violating, it might bo, the Comity of Nations, all matters coming witliiii those subjects are placed under the exclusive jurisdiction of the Doiiiinioii Parliament, That the Act in question does usurp the jiiriscliction of the Dominion Parliament, I must say I enteitain no doiil)t. The logical result of a contrary decision would atl'ord just "i'uuikIs to despair of the stability of the Dominion. The object of the B. N. A. Act was to lay in the Douiinion Constitution the foun- ilatinns of a nation, and not to give to Provinces carved out of, and subordinated to, the Dominion, anything of the nature of a national or qua-^i national existence. True it may be, that the Acts of the Local Legisdatures afl'ecting the particularly enumerated subjects placed by the B. N. A. Act under their exclusive control, if not disallowed by the Dominion Government, are supremo in the sense that they cannot be called in question in any court ; but this supremacy is attributable solely to the authority of the B. N. A. Act, which has placed those subjects under the exclusive control of the Local Legislatures, and ia not, in any respect, enjoyed as an incident to National Sovereignty. To enjoy the supremacy so conferred by the B. N. A. Act, these Local Legislatures must be careful to confine the assumption of the exercise of the powers so conferred upon them, to the particular subjects expressly pkced under their jurisdiction, and not to en- croach upon subjects which, being of national importance, are for that reason placed under the exclusive control of the Parliament. How the species of legislation wliich appears upon the statute books, upon the subject of insurance and insurance companies, came to be recognized (by which it would seem as if the Parliament and the Legislatures had been attempting to make among them- selves a partition of jurisdiction, for which the B. N. A. Act gives no warrant whatever), I confess appears to me to be very strange, for it surely cannot admit of a doubt that no act of the Dominion Parliament can give to the Local Legislatures jurisdiction over any subject which, by the B. N. A. Act, is placed exclusively under the H :i m *'{M IMAGE EVALUATION TEST TARGET (MT-3) // 1.0 S:»-Ki 1.1 1.*^ 1= 1.8 1.25 II 1.4 111.6 ^ 6" — ► Hiotographic Sciences Corporation A •1>^ d \ :\ V \ % V <* <* * ■<^^ o^ 23 WEST MAIN STREET WEBSTER, NY. 14580 (716) 872-4503 ■■e i/. 350 PRIVY COUNCIL. Insurance Companies V. Parsons. Sup. f;., Canada. Qwynne, J. '■ 1 i ) ; i Citizens and control of Parliament ; and as the Parliament cannot by Act or V2UEEN acquiescence transfer to the Local Legislatures any subject placed by the B. N. A. Act under the exclusive control of Parliament so neither can it take from the Local Legislatures any subject placed by the same authority under their exclusive control. There is nothing in the B. N. A. Act to justify the conclusion that the sub- ject of insurance is placed under the concurrent jurisdiction of tlie Local Legislatures and of the Parliaraert : if it were, the latter could itself apply the necessary remedy by an Act controlling the Legislature of the former. Tlie subject, then, not being one of concurrent jurisdiction, must be under the exdusice control, cither of the Parliament or of Local Legislatures ; there can be no parti- tion of the jurisdiction. It is impossible to estimate the embarrassments which will be occasioned by the species of legislation which has been adopted, if not promptly checked and corrected. The only way of correctiu" the evil is to determine by an irreversible judicial decision to which authority the exclusive jurisdiction belongs — namely, whether to the Parliament or to the Local Legislatures. h\ ray judgment, it be- longs, without doubt, to the Parliament. The arrival, 1 y the majority of this court, at a contrary concl ;- sion, will, J fear, justly expose their judgment to the imputation that it Will be impossible, as I confess I think it will be impossible, to reconcile that judgment with the i)rinciple upon which Sci-crn v. the Queen, and The City of Fredcricton v. the Queen, have been decided ; and that it will have the effect of unsettling, rather than of settling, the law upon a most grave constitutional question* [The omitted portions of the above judgments relate to tlie con- struction of the Act of the Legislature of Ontario, 39 Vict. c. 24.] • The judgment of the Privy Council in the above cases is reported " App. Cas, 96. i'i f „. :V tu 'II ! Mkiu "^ I'RIVY COUN'CIL. ;i.")i PRIVY COUNCIL. The Rev. Robert Dobik Aitpclhmf, AND Tke "Board for the Management of the Temporalities Fund of the Presdy- terian Church of Canada in con- nection WITH THE Church of Scot- land" AND Others Bespondcuts. ())i appeal from the Court ofQaeeiis Bench fw Lower Caimda, in the Province of Qiiebec. [Reported 7 App. Can. 136.] B.N. A. Act, 1867, 8S. 91, 92, 129— Canada Act, S2 Vict. c. 66— Invalidity of Qnchec Act, 38 Vict. c. 64- The powers conferred by the B. N. A. Act, 18G7, s. 129, upon the Provincial Legislatures of Ontario and Quebec, to repeal and alter the statutes of the old Parliament of Canada, are precisely co-extensive with the powers of direct legislation with which those bodies are invested by the other clauses of the Act of 18G7. The Act, 22 Vict. c. CO, of the Province of Canada, which created a corporation having its corporate existence and rights in the Provinces of Ontario and Quebec, afterwards created by the B. N. A. Act, could not, after the B. N. A. Act, be repealed or modified by the Legislature of either of these Provinces, or by the conjoint operation of both Provincial Legislatures, but only by the Parliament of the Dominion. The Quebec Act, 38 Vict. c. 04, which assumed to repeal and amend the said 22 Vict. c. 66, and (1) to destroy a corporation which had been created by the Parliament of the Province of Canada before the B. N. A. Act, and to substitite a new cor- poration ; (2) to alter materially the class of persons interested in the corporate funds, and not merely to impose conditions upon the transaction of business by the corporation within the Province, was held invalid. •Present: — Lord Blackburn, Lord Watson, Sir Baruea Peacock, Sir Montague E. Smith, Sir Roljert P. Collier, Sir Richard Couch, and Sir Arthur Hobbouae. .J. C. * 1881 Jiil;/\S, 14,15. 1882 Jai}. 21. m mu ' I 9 ii^\ ifm^ I 1881-2 DOBIR V. The Tempo- ralitikh BOABD. Statemeis'i. 1 t 1 ■ !5 si %Wk i,l 352 PRIVY COUNCIL. Citizeiut Inauratice Company of Canada v. Parmins (7 App Caa. %. ante, p. 2C5), approved and distinguished. The first stop to be taken with a view to test the validity of an Act of a Provincial Legislature under the B. N. A. Act is to con aider whether the subject-matter of the Act falls within anv of the classes of subjects enumerated in section 92, which states the legislative powers of the Provincial Legi.slaturw If it does not come within any of such classes, the Provincial Act is of no validity. If it does, these further questions mav arise, viz., whether the subject of the Act does not aLsofali within one of the enumerated classes of subjects in section 91, which states the legislative powers of the Dominion Parliament, and whether the power of the Provincial Legislature is or u not thereby overborne. Appeal on special leave from a judgment of the Court of Queen's Bench (June 19, 1880), affirming a judgraent of the Superior Court of the District of Montreal (Dec. 29, 1879). The subject-matter of the appeal was a certain fiiml eventually known as the " Temijoralities Fund." The Acts of Parliament which relate to the creation of the fund are 14 Geo. III. c. 83, 31 Geo. III. c. 31, 7 and 8 Geo. IV. c. 62, 3 and 4 Vict. c. 78, and 16 Vict. c. 21. In pm'suance of authority given by [Imperial Act] 16 Vict. c. 21, the Province of Canada passed the [Provincial] Act 18 Vict. c. 82, in consequence of which the Presby- terian Church of Canada in connection with the Cliurch of Scotland (the appellant being one of its members), in accordance with a resolution of its Synod dated the 1 1th of January, 1855, arranged with the Government for the creation of a fund (called the Temporalities Fund) of iil27,448 5s. ; and an Act of Incorporation for the man- agement thereof was obtained, being 22 Vict. c. 66, of the Province of Canada, in accordance with which a Board was elected and administered the fund thereunder. In the year 1874 it was determined to unite the said Church with three other churches. Subsequently, Ontario liiWii iiii'iKi m\. PRIVY COUNCIL. .353 Act 38 Vict. c. 75, and Quebec Act 3H Vict. c. 62, were I88I-2 iiassed to <;ivc effect to such union ; and contempora- Douik iK'Oii^y tlun-ewitli Quebec Act 38 Vict. c. 64, was passed thkTkmpo- to amend Canadian Act 22 Vict. c. G6, with a view to 'boIku! till' union of the four churches, and to provide for the statement. a.lminiHtration of the TeniporaUties Fund. On the 14th of June, 1875, a Synod of the said Church rci^oh'ed by a large majority (the appellant and nine others dissenting) that the union be effected, and various r, solutions were adopted with that view. The appellant au'l tlie nine other dissentients protested that they and tlit'ir adherents remained and still constituted the said Church. On the 30th of December, 1878, the appellant com- menced tlie proceedings in this suit which, together with the circumstances out of which they arose, are set out ill the judgment of their Lordships. The questions decided in this appeal are — 1, as to the invalidity of Quebec Act 38 Vict. c. 64 ; 2, as to the plaintiff's right to sue ; 3, as to the effect of the resolu- tions from which he dissented. Plorace Davey, Q.C., and McMaster, of the Canadian Bar (FuUarton with them), for the appellant, contended that the Quebec statutes (38 Vict. cc. 62 and 64) and the Ontario statute (38 Vict. c. 75) were, in respect of the provisions material to the case, ultra vires and illegal. Reference was made to the B. N. A. Act, 1867, s. 129, ss. 91 and 92, sub-ss. 7, 13, 16, 11. See also U Union St. Jdcqui's de Montreal v. Belish (1) ; Dow v. Bhich (2) ; (.'ushituj V. Dapuy (3). With regard to the meaning of property and civil rights in section 92, sub-s. 13, see Todd's Parliamentary Government in British Colonies, p. 3%. As to the state of the Canadian Constitution ! "m li '. il> L. R. <; p. C. 31 ; ante, p. 63. (2) L. R. 6 P. C. 272 ; ante, p. 95. (3) P App. Cas. 409 ; ante, p. 252. 2a !'....iii-.t.. r t > ] 1 1881-2 DOBIK V. ThkTkmpo- u.vlitiks liOAUD. AKOL'MKNT. If . - [ i:l i 1 H ^' 354 PKIVY COUNX'IL, biforo 18(17, see 3 and 4 Vict. c. 35, s. 42, and 3 and 1 Vict. c. 7H, 8. 8. It was also contended on behalf of the appellant that the Canadian Act 22 Vict. c. 6G, was still in force, and valid and binding on the respondent corporation and tlit fund in suit. By virtue thereof the respondents individu- ally and the respondent corporation have acted ultra vires and illegally in assuming to administer the fuiul under the provisions of the Provincial Acts. The Board is at present illegally constituted. The Presbytorifiii Church of Canada in connection with the Church of Scot- land is the body beneficially interested in the fund in suit. The Presbyterian Church in Canada is not identical therewith. This latter body is composed of a consider- able party in the former body, who practically socedud therefrom and formed a union with three other churches, becoming a new corporation by virtue of the said Pro- vincial Acts, which purported to transfer to it the funds of all four churches. The appellant and nine others were opposed to that union, and claim that they are now the Presbyterian Church of Canada in connection with the Church of Scotland — a corporation created by the Canadian statute, and exclusively entitled to the Temiio- ralities Fund. Neither the Provincial Acts, nor a resolu- tion of a Synod of each of the four churches, declarin;,^ that the united Church was identical with itself, and possessed of the same authority, rights, privileges, and benefits, were operative to establish any identity between the united Church and the corporation created by '22 Vict. c. 06. The appellant's locm standi is aa a minister of the Synod of the Presbyterian Church of Canada in connec- tion with the Church of Scotland, and as one of those entitled in 1853, and ever since, to share in the proceeds of the Clergy Reserve Fund, and as one of the founders of PRIVV COUNCIL. 355 18»l-2 the Temporalities Fund under the minutes of the Synod of January 11, 1855, and as interested in that fund under Dobik '^•> Vict. c. OG, and the other statutes in that behalf. He Thk Tkmpo- *'*' ' , T-, 1 I • /-,! 1 • /-I 1 • L MAL1TIE8 claims that the Presbyterian Church ni Canada is not Boaud. entitled to the rights, property, and status of the Church augumknt. to which he belongs, and which is alone entitled to the ri of the trust as carried on in terms of the Provincial Act of 1^7-3 is illegal ; (2) that the protesting minority of the Synod of 1875, and its adherents, are now the Presbyterian Church of Canada in connection with the C'nurch of Scotland, and that certain ministers of the united Church, who w^re members of the majority, had, by reason of the union, forfeited all right to participate in the benefits of the Temporalities Fund ; and (3) to have an injunction against the Board, as then constituted, actinf^ in prejudice of the rights of the Appellant, and others beneficially interested in the statutory trust of 1858. On the 31st of December, 1878, the Appellant's application was heard before Mr. Ju.stice Jettd, who made an order for summoning the Respondents, and also issued an interim injunction, which the learned Judge dissolved, after fully hearing both parties, on the 31st of December, 1879, and at the same time dismissed the Appellant's petition, with costs. This decision was, on a[)peal to the Court of Queen's Bench for Lower Canada, affirmed, in accordance with the opinions of the majority of the judges. The judgments of Mr. Justice Jette in the Court of first instance, and of Chief Justice Dorion and Mr. Justice Monk in the Court of Queen's Bench, are ba.sed exclusively upon the competency of the Quebec Legisla- ture to pass the Act 38 Vict. c. 64, and the consequent validity of that statute. On the other hand, Mr. Justice Ramsay and Mr. Justice Tessier were of opinion that the Appellant was entitled to an injunction, on the ground that the Act 38 Vict. c. 6+, was invalid, and that the ;J:^ a member of a Church so constituted must be held to have satisfied himself in regard to the proceedings and practice of its courts, and to have agreed to submit to the precedents which these establish. The Respondents were, therefore, justified in referring to the minutes of the Synod from 1831 to 1875, for the purpose of shewing the extent of the power vested in majorities by the constitution of the Church. The minutes, which were founded upon by coun- sel for the Respondents, afford abundant evidence to the DoliIE I'. Thk Tkmi'd- kai.itiks HOAUD. .IrililMENT. IhIIImw i^h 1 iI^Hb hi rP n 1 ' !■ ra 11 w m 1 M ' ■ 1,:1 ' ■ ' .) . > : mmiii { ■ 1 > 1 \ 1 )'t-«'»«!^S |)<>IIIE (', Thk Tkmi'O- li.VI.ITIK.S r.li.VllU. .(ll>UMKST. HI'' ' ililll \m 374 PRIVY f'OUNCIL. efiect that, in all iiuittors which tho Synod was competent to (leal with and dctennine, tiio will of tho majority, as expressed by their vote, was binding upon every int'inlKr of the Synod, a proposition whicli tho Appellant did not dispute. But they contain nothing wliatover to shew that, in cases where the administration of Chnrcli property was regulated by statute, the Synod ever asserted its right to set aside that legal course of adnunistration, and to restrain dissentient membeis from challenging any departure from it. Their Lordships are, therefore, of opinion that thi' Appellant is entitled to have it declared that, notwith- standing tho provisions of the Quebec Act of bs7'), tlir constitution of the Board and the administration of tlif Temporalities Fund are still governed by the Canadian Act of 1858, and that the Respondent Board is not duly constituted in terms of that Act ; and also to have an injunction restraining the Respondents from paying away or otherwise disposing of either the principal or income of the Fund. The Appellant, in his application to the Court below, asks a declaration to the effect that the Fund in question is held by the Respondents, " in trust, for the benefit of the Presbyterian Church of Canada in connection with the Church of Scotland, and for the benefit of the ministers and missionaries who retain their connection therewith, and who he/e not ceased to be ministers thereof, and for no other purpose whatever." It is obviously inexpedient to make any declaration of that kind. It would be a mere repetition of the language nf the Act of 1858, by which the trust is regulated, and would decide nothing as between the parties to the present suit. The Appellant also seeks to have it declared that si.K reverend gentlemen who, at and prior to the union of iW'iliriii i) , I'lUVV COUNCIL. 875 1SH1.2 DdlllK 1'. JiiHiMKirr. ISTo, were inemboi's of the Presbyterian Church of Caiiaila in connection with the Clmrch of ScotUmfl, have censed to possoss that character, and that they 'i'ukTkmi-o- hiive no riijht to the heneHts of the Temporalities Fund; hV.IiV,"^ and he conchides for an injunction against the Respond- uut corporation making any payment to them. Their Lordships are of opinion that these are matters which cannot lie completely decided in the present action. Their decision depends upon the answer to be given to the (|UCstion, which Church or aggregate of Churches is now to be considered as being or representing the Presbyterian Church of Canada "n connection with the Churehof Scotland, within the ..leaning of the Act 22 Vict. c. (50 ? But the two Churches which appear from the record to have rival claims to . that position are not r -presented in this action ; and of the six ministers whose pecuniary interests are assailed by the Appellant, ho has only called one, the Rev. Dr. Cook, as a Respond- ent. That question between the Churches must be deter- mined somehow before a constitutional Board can be elected; and, unless the Dominion Parliament intervenes, there will be ample opportunity for new and protracted litigation. It cannot be determined now, because the Appellant has not a.sked any order from the Court in regard to the formation of the new Board, and has not made the individuals and religious bodies interested, parties to this cause. Substantial success being with the Appellant, he must have his costs as against the Respondents. But their Lordships are of opinion that neither the Respondents' own costs, nor those in which they are found liable to the Appellant, ought to come out of the Trust Fund, '■vhich they are holding and administering without legal title. The Appellant's costs must therefore be paid by the members of the Respondent corporation as individuals. 1 111 f-1 1 '1 I H q ^H ' 1 ' - ) 1 ' f i * :vj I! ! 376 PRIVY COUNCIL. 1881-2 !li' ' i iMJli ..iiii » 1 , i 1 . 1 H:i i tl 1 ' ! I, ■ i I, ij Their Lordships will, accordingly^ humbly advise Her DoBiK Majesty that the judgments under appeal ought to be The Tkmi'o- reversed, and that the cause should be remitted to the BoAiiuf Court of Queen's Bench, Lower Canada, with directions to that court to give effect to the declarations recom- mended by this Board, and also to issue in the Appellant's favour an injunction and decree for costs, as directed Ijy this Board. JUDaMENT. Judgments IN CouKT OF Qi-een's Bench (on appeal from the jmhi. ment uf the Sii2)eri(>r Conn {Jdte, J.), pout, p. JOJ). [B>'2}orh-d J L. If. 2U-] Ramsay, J. : — The whole jioint of this case has been most ably put by tlie learned judge in the court below, and the issue is really brout^lit duwii to this : whether certain Acts of the Quebec Legislature are witliin the legislative powers of that body. The examination of the questions as to the extent of the legisla- tive powers of tlie General and Local Legislatures frequently gives rise to great ditticulty, and the decisions are not as yet sufficiently numerous to enable the courts to derive from them any well-settled general principles as a guide. It is, therefore, with some hesitation that 1 appro.ach the consideration of these intricate (juestions, to some of which it is impossible to give a totally satisfactory .answer. The double enumeration by which it was intended to obviate all doubt as to which Legislature was to jiossess exclusively this or that power, even the use of the word " exclusively " has complicated the difficulty, and given rise to interpretations of very various merit. The (luestions presented in the case before us appear to niu to be more difficult of solution than any that have as yet come be- fore us, as they involve tlie consideration of a direct conflict between sections Dl and 1)2 of the B. N. A. Act. Briefly stated, the facts are tliese : Prior to 1875, there existed a religious body known as the Presbyterian Ohurch of Canada in C">rnection with the Oiurch of Scotland. It did not owe its exist- ence to any charter or statute, but it grew out of the settlement in this country of Presbyterians in communion with the Church of Scotland. But if no statute defined precisely the limits, rights and privileges of this body, numerous statutes acknowledged its advise Hev Jught to be tted to the h directions bions recom- Appellant's directed by from the jndn- 393). by the learned ouf^lit down to are are within of the legisla- ■equently gives ret sufficiently iiy well-settled oine hesitatiim questiiins, to ictory answer, to obviate all y this or that complicated very various appear to uie yet come be- ircct contlict here existed a )i Canada in owe its exist - settlement in :he Ciiurch of limits, rights xowledged its PRIVY COUNCIL. 377 1880 1 oniK Thk Tempo- kai.ities BOAUl). vistence, and the right of its clergy to share in the lands known the " Clergy Reserves " was admitted. When, by process of legislation, the share of the clergy of the Church of Scotland in Canada became fixed, an Act of the Legislature of United Canada was obtained (22 Vict. c. 66) to make provision for the manage- ment and holding of certain funds of the Presbyterian Church in q. b., Quebec, ronnection with the Church of Scotland, " now held in trust by ,, . ^ certain commissioners, hereinafter named, and for the benefit thereof, and also of such other funds as may from time to time bo "ranted, given, bequeathed, or contributed thereto." The body so incorporated is the Board of Management, the present Respondent. This Act being still in force, in 1874 numerous clergymen and others, members of different Presbyterian Churches in Canada, deemed it desirable to unite their ecclesiastical fortunes and hence- forward to forna one body, t(j be called " The Presbyterian Church m Canada.'" Nothing could be moi'e lawful or more praiseworthy tlian the attempt to sink minor difl'erences of opinion in order to attain creater efficiency. But we have not to decide as to motives and intentions ; our duty is deliberately and coldly to decide a uuestion of law. Application was made almost simultaneously to the Legislatures of Ontario and Quebec for authority to give effect to this determination, and to enable the new body to deal with the property of the Churches so united. An Act of the Ontario Legis- lature (38 Vict. c. 75) was passed, the preamble of which sets up that : " Whereas the Canada Presbyterian Church, the Presbyterian Church of Canada in connection with the Church of Scotland, the Church of the Maritime Provinces in connection with the Church iif Scotland, and the Presbyterian Chur^li of the Lower Provinces, have severally agreed to unite together and form one bodj' or de- iKiniination of Christians, under the name of 'The Presbyterian Churcli in Canada ;' and the Moderators of the General Assembly (if the Canada Presbyterian Church, and of the Synods of the Presbyterian Church of Canada in connection with the Church of Suntland, and the Church of the Maritime Provinces in connection with the Church of Scotland, and the Presbyterian Church of the Lower Provinces, resi)ectively, by and with the consent of the said General Assembly and Synods, have by their petitions, stating such agreement to unite as aforesaid, prayed that for the furtherance of this their purpose, and to remove any obstructions; to such union which may arise out of the present form and designation of the • .isi'm 'W' M 11 f f I 378 PRIVY COUNCIL. j > m DOBIK V. Thk Tempo- kalities Board. Kaasay, J. li il iiii i\ ' 1880 several Trusts or Acts of incorporation by which the property nf the said Churches, and of the colleges and congregations connecteil with the said Churches, or any of them respectively, are held and administered or otherwise, certain legislative provisions may be made in reference to the property of the said Churches, collfffos (}. 1j., Quebec, and congregations, situate within the Province of Ontario, and other matters affecting the same in view of the said union." The first section then vests all the property of the diti'erem Churches so united in the united body under the name of "The Presbyterian Church in Canada." Then come reservatidiis and modifications of certain rights, and then by section 4 certain legis- lation in Ontario respecting the property of religious institutiimsi, made applicable to the various congregations in Ontario in com- munion with the Presbyterian Church in Canada. Section .j de- clares that all the property, real and personal, belonging to or hekl in trust for the use (jf any college or educational or other institu- tion, or for any trust in connection with any of the said Churclies or religious bodies, either generally or for any special purpose or object, shall, from the time the said contemplated union takes place, and thenceforth, belong to and be held in trust for and to the use in like manner of "The Presbyterian Church in Canada. Sectioji 7 then deals specially with Kno.x College and Queens College, situate in Ontario, and with "The Presbyterian College and v'ith " Morin College," situate in the Province of Quebec. Section 8 deals with the Temporalities Fund of the Presbyterian Church of Cduaua in connection with the Church of Scotland. " administered by a Board incorporated by statute of the heietofore Province of Canada. " Section 9 deals Avith the Widows' and Or- phans' Fund of " The Canada Presbyterian Church " and " TIk Presbyterian Church of Canada in connection with the Churcli nf Scotland." Section 10 authorizes the new body to take gifts. devises and bequests ; and lastly, section 11 declares that " the union of the said churches shall be held to take place so soon as the Articles of the said union shall have been signed by the Moder- ators of the said respectiva Churches. " The legibxation in the Province of Quebec took the form of two Acts, 38 Vict. cc. 62 and 04, the former respecting the union of certain Presbyterian Churches ; the latter is styled ' ' An Act to amend the Act intituled ' An Act to incorporate the Board of Management of the Temporalities Fund of the Presbyterian Cliurcli of Canada in connection with the Church of Scotland.' " mSib ' 'il PRIVY COUNX'IL. 379 18K0 DoiilK TukTkmpo- kalitiics BOAUII. Cap. 62 of the 38 A'^ict., Quebec, with the exception of the secticm relatin" to the Temporalities Fund, is substantially the same as the Ontario Act, 38 Vict. c. 75. One or two differences it may, however, be well at once to note. The Ontario Act bestows all the above-mentioned privileges on "The Presbyterian Church in Canada ; " while the Act of Quebec bestows them on the body so (^. 15.^ Quebec. named, "or any other name the said Church may adopt." The i^m^^^ j Quebec Act declares that the union of the four Churches is to take place from the i)ublication of a notice in the Quebec Gazette to the effect that the Articles of Union have been signed by the Moderators nf the siiid respective Churches. The Quebec Act has also a section nhich, harmless in itself, is suggestive of the utmost confusion of ideas. It is as follows : "In so far as it has authority to do so, the Legislature of the Province of Quebec hereby authorizes the Diiniinio'' T.egislature, and the several Legislatures of the other Provinct pass such laws as will recognise and approve of such union throughout and within their respective jurisdictions." Tlie other of the Acts of Quebec can hardly be called an amend- ment iif the former Act of the old Province of Canada, for it trans- fers ahnost the whole of the Temporalities Fund over to the new Church, and confides its management to a Board constituted in a manner entirely difTerent from the Board under the old Act. The condition of union in Ontario was accomplished, and the notice has appeared in the Quebec Official Gazette. The Appellant, a minister of the Presbyterian Church in Canada in cimnection with the Church of Scotland, refused to concur in this fusion, and he petitioned for an injunction to prohibit the iJoard as now constituted from dealing with the Temporalities Fund. The Court below has dissolved the injunction ; hence this appeal. The statement in Respondent's factum, "that the petitioner and the seven ministers who continue with him outside the said imiun, have no right to continue the said Presbyterian Church of Canada in connection with the Church of Scotland, and that in fact they are dissentients, voluntarily separated from the said charge," is calculated to mislead. Whatever the legal eflfect of the proceed- ings may be, whole congregations have voluntarily separated them- selves from the said Church, if the eight ministers have. But whether the non-conformists be 8 or 8,000 is of no importance, except for the purpose of sensation. The rights of the few are as sacred in the eye of the law as the rights of the many. f S wns 1 ;i s' . ■1^ 380 PRIVY COUNCIL. 1: S I till n iniii! II I ii|f 1880 DoniK V. Thk Tkmpo- kalitiks ■ BOAKI). Q. 6., Queliec. Bamsay, J. A theological argument originally complicated the issues in the case ; but the learned judge in the court below, very properly, 1 think, dismissed it from his consideration. If we were to aellant contends that the Local Legislatui'e has no right to incorporate any companies l^ut those having Provincial objects (J7>. sub-section 11) ; that this is tantamount to saying that the right to incorporate companies with other than local objects is exclusively reserved to the Dominion Parliament (sect. 91, 13. N. A. Act) ; that the Board of Manage- JtMi'i'iiiiiMiiiii'ifcli 1 ': PKIVV COUNCIL. 381 DOBIE V. Thk Tkmpo- kalities BOAKU. lueiit was an incorporation for other than Provincial objects, and 1880 j[,j,,.yf„re that it could not have been created a corporate body by a l.ciil Act, and consecjuently that its Act of incorporation canm)t be iltviwl or amended by any Local Legisbiture. I must confess that the sections upon wliich the C(jntending lailies rely appear to me to be irrecfuicilable by tlieniselves. If c^ B., Quebec the IC' '1 power to legislate over property and civil rights in the uamsay, J. Province is to be interpreted to mean over "all' property, etc., "~~ iliHii the power of Parliament to incorporate ia illusory. In prac- tia' it never has been contended that property means all property. Kiihvay companies incorporated by Parliament, for instance, hold liiul manage their property under Dominion laws, and such com- ..luies evict people from their private property in each Province under Dominion laws. No one w ill venture to attirm that a local Act could confiscate the property of a railway company incorporated liv Parliament, or transfer it to another company or person. And sri it lias been decided in the case of Buunjolit v. The Q. , M. , 0. (C- O. tliiihiM'j Companij, by the Privy Council (1), that a railway with all its apjiurtenances, and all the property, liabilities, rights and rowers of the existing company, could not be conveyed to the Quebec Government, and, through it, to a company with a new title and a different organization, without legislative authority, and that if the railway was a Federal railway, the Act authorizing the transfer must be an Act of the Parliament of Canada. Nor, by [larity of reasoning, could the Local Legislature confiscate the sur- plus funds of a bank on the pretext that it was property in the Province. It is impossible to conceive more obvious limitations to the right to legislate as to property than these. Again, we have had two decisions limiting the sub-section in question. In the case of Evaiis V. llndon (2), Mr. Justice Kainville held that a local Act was unconstitutional which authorized the seizure by process of law of the salaries of Federal officers ; and the Court of Appeal in Ontario, in the case of Lepruhon'v. The Corporation of Ottawa (3), held, revers- ing the judgment of the Queen's Bench (4), that under the B. N. A. Act, 1807, a Provincial Legislature has no power to impose a tax upon the official income of an officer of the Dominion Government, or to confer such a power on the municipalities. These decisions can ■nly be sustained on the ground that property in the sub-section in 'luestion does not include such property and civil rights as are (1) 5 App. Cas. 381 ; ante, p. 233. (2) 22 L.C.J. 268. (3) 2 Ont. App. 522. (4) 40 U. C. Q. B. 478. U:' 382 PRIVY COUNCIL. DOBIK V, The Tempo- RALlTrKK BoAun. HI 1^ !!l-l|!ii!l ll: „ !i f ■ III i t 1 • * J? 1 ;■ f I: ! i 1 ' 1: t ' u i li 'i 1 Mi,' : 1 iL... 1880 necessary to the existence of a Eiminion object, to copy the phraseology of the B. N. A. Act. It may, perhaps, bo said tliat sec. 91, sub-section 8, B. N. A. Act, specially gives to tlie Fedeml Parliament the power of fixing the salaries ; but this does not seem to me to affect the (juestion. After the salary has been fixed Q.B., Quebec, and is possessed by the individual, it becomes property in tliu Kamsay, J. Province. We are, therefore, obliged to sustain the judgment on some other general principle which limits the effect of sub-section 13, sec. 92, B. N. A. Act. On the other hand, we have a decision of Yice-Chancollor Blaivo in the case of Coivax v. Wriglit (1), upholding the constitutionalitv of the Ontario Act 38 Vict. c. 75, except in so far as it atteniiited to deal with property in the Province of Quebec. This is of course a decision of the precise i)oint before us, and therefore it l)ec(iniea important to examine the grounds upon which it was rendered. It appears to me that it is undeniable that the Local Legislature. acting within the scope of its powers, has a right to legislate as absolute as the Dominion Parliament legislating within the scope of its powers. Indeed, this doctrine as to the respective powers of the Dominion and Local Legislatures seems to me to be almost tlie only one on which there has been entire unanimity of opinion. But when from this it is sought to glide to the conclusion tliat tlie words of section 92 are alone to be considered as dctining the exclusive rights of the Local Legislatures, I think we arrive at a doctrine opposed to positive law, and to tlie authority not only of the courts, but to the authority of jjractice. There is a sort of floating notion that by the conjoint action of different Legislatures, the incapacity of a Local Legislature to pass an Act may bo in some sort extended. Section 15 of the 38 Vict. c. 62 (Quebec), seems to have been added under the intluence of such an idea. By it the Dominion and Local Legislatures are permitted to recognise and aj^prove. I cannot understand anything more clear than this, that the Local Legislatures, by corresponding legislation, cannot in any degree enlarge the scope of their powers. "^Vhon the question ia between the authority of Parliament and .or '. Local Legislature, the forbearing to legislate in a particuLir ux ll by Parliament may leave the field of local legislation more ivv .n 'l"\. This is the only bearing I can conceive the case of the >' ,; ,' 'K Jacques V. BeUsIe (2) can have on this case. What the (1) 23 Grant, 616. (2) L. R. 6 P. C. 31 ; ante, p. 03. PJUVY COUNCIL. 383 1880 DOHIK ThkTkmi>(i- HAI.ITIKs f'rivv Council held in that case was that a special Act for the relief ,f a corporate body did not fall within the meaning of "Bankruiitcy I Insolvency" (B. N. A. Act, sec. 91, sub-sec. 21), and this more 1 irticularly as there Wivs no Dominion Act with which it interfered. It is therefore, dead a •'> Mi w 384 PRIVY COUNCIL. DoniK v. Thk Tkmi'o- HAi.rriKs UOAKD. Hiiinsay, J. 1 i i ■\ 1 1 .:^ in. ! J ! < I UU 1S80 that an Act which disposes of the property of a corporation ciuateil by a Federal law is unconstitutional. There is another way of considering the matter, which laiiiicm, to nie to bring forward this view still more clearly. If tiie I'lesbv- terian body all over Canada wanted an Act of incorporation t, (-1 B., (iiiehec. enable them to manage theij property, no local legislati(ju udn],! suttice. This brings me to still another consideration. The Umario Act and the 38 Vict. c. 02 (Quebec), are Acts of incoi'ijonti,,]! to all intents and purposes. It is true they do not, in sd iniiuv words, declare certain persons to be a body corporate, but each gives to a certain organization corporate powers ; each creora- tion, and not in favour of the Ontario body, it has confi.scated the property of "The Presbyterian Church of Canada in connection with the Church of Scotland." This mode of executive morsellin,' would have the effect of producing a result which no Legislature contemplated. If a donor directs that £5 apiece be given to ten persons, it may logically be assumed that to give £1 apiece to each is partly to fulfil his directions ; but to give the whole fifty pounds to one of the ten persons is to contravene his directions. There- fore, to let a law stand which is partly ultra vires and partly consti- tutional, may be the most perfect mode of defeating the legislative will. I therefore say that a law which is ultra vires in part may thereby be ultra vires in whole, and so it should be construed— at all events when it appears that the object of the Act is not attained Lit w'ltiintifii ^, PRIVY COUNCIL. 385 DOBIK V. Thk Tkmpo- RALITIEa BOAKD. 1 V a partial execution. Take for instance an Act of incorporation 1880 of a railway company from Quebec to Toronto. Could that be interpreted as an Act of incorporation from Quebec to the Province line? Unquestionably it could not be. But I shall be told "there is a special exception for that" (sec. 92, sub-sec. 10, a). The exception is not, however, more formal than the exception q. b. _ Quebec, from incorporation by local Act ot oonipanics havinj,' other tlian ji^~j,_ j Piovincial objects. I therefore think that the Act purporting to create the body to be benetited by the transfer of the Temporalities Fund is ultra vires in whole. I would therefore reverse, and Mr. Justice Tessier, I under- stand concurs in the conclusion at which I have arrived. McCoRP, J. :— It is unnecessary for me to state the facts of this case ; they are fully set forth in the printed remarks of the learned judge who rendered the judgment appealed from. As to the law of the case, resulting from those facts, I am of opinion that the Quebec Act, 38 Vict. c. 64, in so far as it alters the constitution, composition and succession of the Board for the management of the Temporalities Fund, is ultra vires. The Board in question is a corporation created by the statute of the late Province of Canada (now the Provinces of Quebec and Ontario), 22 Vict. c. 66. It was created for the management of a fund derived from, and existing in, both Ontario and Quebec, and belonging to a Church the territorial limits of which embraced both Provinces, and the government or synodical management of which was not carried on in one Province only, but in both. This corpora- tion was not created for a " Provincial (Quebec or Ontario) object," nor has it a Provincial character. On the contrary, it was created in the interest and for the advantage of both Provinces. Being created for two Provinces, and applicable to them both, it can only be altered by a Parliament having power to legislate for these two Provinces. The character or scope of this corporation could not cease or change by reason of the Fund happening at any time to be invested wholly in one of the Provinces, and of the place of busi- ness of the corporation being at that time within that Province. The Board could at any time remove its investments and its place of business to the other Province, and its powers of management were in nowise confined to either Province. The corporation ia not a mere accessory of the property which it has to administer ; 25 I,. >- i ,i li i %\' Ir 380 PRIVY COUNCIL. DOIIIK V. The Tkmpo. HALITIKa BOAKU. ' ^; i i ; liiilli I H I : ii hi ! ; f ! ! 1 • I '. , ; ,:iJ; 1880 and though the Provincial Legislature may control the " property" within its limits, and even the "rights " of the corporation in con- nection with that property, yet it ('-annot alter the corporiition itself If tlio legislative control of the property carried witji it tlio power to alter the corporation, the consequence would be that if, as nny Q. B., Quebec, be the case at any future time, one portion of the Fund was iuvestei M Cord J "* Ontario and the other in Quebec, one Provincial Legislature ciml.l enact that the corporation should be composed of one set of persmis, and the other Legislature could ordain that it should consist (f another set of members, and the absurd conclusion would be tlwt there could be two Boards of Management. It seems to me, there- fore, that the provisions of the Act 22 Vict. c. G6, respecting the composition and formation of the Board, have not been set aside l)v the Quebec Act 38 Vict. c. G4, and are still in force, for it is pviileiit that they could not be set aside by the mere action of the Syuod, [So much of the j udgment as relates to the power to eti'ect a union without legislation, and as to the locw standi of the Appellant, is omitted.] DoRiON, C.J. * : — This is an extremely important case, in which the Appellant, by means of a writ of injunction, contests the right of the Respondents to the management of a large amount of property. It involves one of the most intricate questions arising out of the distribution, under the B. N. A. Act, 1867, of the legislative powers attributed to the Dominion Parliament and the Local or Provincial Legislatures respectively. It is not surprising that difficulties of this kind are recurring very frequently under our Constitutional Act. I consider, however, that the Act is as clear as it could be made, to embrace so many questions in a small compass. The principal question presented in this caae resolves itself into this. A certain society was incorporated under an Act of the old united Province of Canada, 22 Vict. c. G6, and this society merged itself into a body embracing several Churches of like doctrine. The important inquiry is whether it was the Legisla- ture of the Dominion or of Quebec that had authority to legislate on this question. The society was incorporated by an Act of the united Legislature of Upper and Lower Canada, and the question * The report of the judgment of Chief Justice Dorion, in 3 L. N. 244, is imperfect. The report here given is from Doutre on the Constitution of Canada, p. 258. PRIVY COUNCIL. 387 DOBIB V, Thk Tkmpo- ualitieb Board, submitted to the Court is as to whothor tho Logislaturo of the Prov- 1880 incc of Quebec has tho power to amend, as regards that Province, an Act passed by tho Parliament of tlio late Province of Canada — thiit is, of tlio t''^" united Province of Ui»i)or and Lower Canada — entitled "An Act to incorporate the Board of Management f^^P ;»l .1, 1 , , i »i I' \ i*fll '*-W , ^J *V"? ! m .Si's i «-{ o i : 'H ^'^flQj^l 388 PRIVY COUNCIL. Ii li li li |i DoilIK r. ThkTkmi'o- balitikm BOAIU). II*' illiili iliilll ( I »l.Ll 1880 funds in Lower Canada and they wanted authority tn inanayo that fund, so as not to bo interfered with by any niombur of the corporation. The Local Legislature incorporated them and i^avo thoni the right to manage their property in this Province, hm it was said, that is spoliation. That question was decided by tlie Q.B., Quebec. Privy Council in the case of Union St. Jacques v. IklinUt. Thu Doriou~c J. Union was unable to pay the stipulated annuities to momliors and it got authority from the Local Legislature to commutu the payments for a fixed sum. The question was raised whether tho Province of Quebec could interfere with vested rights, and tlie Privy Council maintained the validity of the local Act. Hero the Legislature merely said to Mr. Dobie, if you don't wish to do .13 the others have done, your rights shall not be interfered with. If you don't join them, you shall not be deprived of any right. The Legislature of Quebec did not touch any rights which Mr. Dobie might have in the Province of Ontario ; if they had done so, it would have been a dead letter. But they expressly limited tliem- selves to the property within this Province. By section 92 of the B. N. A. Act, 1807, the legislative powers conferred exclusively upon the Local Legislatures are defined, and among them are to be found, at sub-sec. 11, " The incorporation of companies with Provincial objects;" at sub-sec. 13, "Property and civil rights in the Province ; " and at sub-sec. IG, " Generally all matters of a merely local or private nature in the Province." An Act incorporating a religious body for the purpose of acquiring property, and of managing it for the support of their ministers, and of educating young men for the ministry, is undoubtedly an Act conferring a civil right, by giving to the body so incorporated a civil status which it had not before. ^Vl^en the powers imparted by such incorporation apply to one Province only, Wv: ir corporation is for Provincial purposes, and its franchises can only Oe conferred by the Legislature of the Province where those f;.!ui' hises are to be exercised, and not by the Dominion Parliament. As regards the other Provinces of the Dominion, such a corporation has no rights in such other Provinces other than those which, according to the laws in force in each Province, may be exercised by any foreign corporation. A religious body so incorporated in one Province might, how- ever, wish to extend its operations and seek to obtain the same corporate rights in one or more of the other Provinces ; and, it can hardly be contested, each Local Legislature would have the \\W'\\k Jml.. PRIVY COUNCIL, 389 1880 DoniK I'. TiiK Tkmto- U.VLITIKH HOAHI). samo iKtwer to gmnt to a body already incorporated In one Prov- ince tlio same francliisos to bo oxorcisod within tlio limits of its own jurisilictidn — and all the Local Legislatures niiyht successively do tlio Haine. These corporate rights would not coase to bo civil rit'lits, nor to have Provincial objects, for having been successively granted in more than one of the Provinces of the Dominion ; and q, h., Quebec, the Doniiiiion Parliament could not, therefore, claim to interfere ])orioir~C J nncl 1,'rant to a society incorporated in Quebec the samo corporate — rii'hts in Ontario, under tho pretence that tiie society being already inciirporated in Quebec, its operations would extend to more than one Province by the new Act of incorporation ; nor could tho Dominion Parliament assume on the samo ground to repeal or amend an Act incorporating a society in one Province, with a view to extend its repealed or amomled provisions to two or more of tho Provinces. TlitTo is no power given by the Confederation Act to tho Dominion Parliament to amend or repeal an Act passed by a Local Legisla- tuie within the limits of its authority, and there is no concurrent authority conferred in this matter upon the Dominion Parliament and the Provincial Legislatures. If, therefore, the Local Legisla- ture has the right to incorporate a church society, and confer upon such society corporate rights and franchises within its own Prov- ince, this right is exclusive, and cannot be exercised by the Dominion Parliament, for it is not one of the classes of subjects montioned in sect. 92 of the Confederation Act, whereby a con- current power of legislation is allowed in certain special matters to both the Dominion Parliament and the Local Legislatures. If the right to incorporate a religious society, such as the one concerned in this case, belongs to the Local Legislatures when tho incorporation takes place successively in tho diti'erent Provinces, it is clear that tho several Legislatures may impose different condi- tions on the incorporated body, or may even refuse an Act of incorporation altogether. Let us sui)po3e that separate charters with different conditions were granted in several of the Provinces and refused in the others, on what ground could the Parliament of Canada interfere to make the same provisions for every Province, or even to impose such a corporation on the Provinces which might have already rejected it ? The B. N. A. Act was passed for the very purpose of allowing each Province to regulate its own internal affairs — including civil rights and incorporations for Provincial objects — without inter- ference on the part of the representatives of the other Provinces Hii iilii .f ; r 390 PRIVY COUNCIL. DouiB r. Thk Tempo- ralities Board. i .'/■■■ f i } i f : 1880 through the Doniir'erior C. , < Quebec. Jette, J. iiiJkSi ■ i- ! : ■ 304 PRIVY COUNCIL. of the Synod of the said Church, in January, 1865, and that. }, the statute creating and incorporating the said Board, it was anion other things provided and guaranteed that the property of the sail Fund should belong exclusively to the said Church, that th- revenue of the said Fund should be appropriated to the diti'cret;- annual charges imposed on it at the time of its creation in favour i • the ministers of the said Church, and finally that the members f : the said Board should always be ministers or members of the aai i Church in full communion therewith, and that four of tliem should retire and be replaced annually ; Considering that the pe^^^^+ioner alleges besides that at the time f; the creation of the said Fui. t he was -.-ne of the incumbents entitle-i to a charge or annual allocs n-jo -if 6450, to be taken from tht; revenue of the said Fund ; thai ;' -xa then covenanted, stipulate.! and admitted as a fundamental principle of the creation of the said Fund, that, in order to have a right to any revenue therefrom, i: should be necessary to be a minister of the said Church ; and tha'. the petitioner is still at the present time in full possession of hij rights and privileges in this respect, having remained a minister ,f the said Church, and in full communion therewith ; Considering that the petitioner alleges moreover that by an Ac: of the Legislature of the Province of Quebec, passed in 187o, bein.' 38 Vict. c. 64, the conditions of administration of the said Fund have been changed so as to continue in office the members of the said Board for the time being, and to provide for replacing them only in case of a vacancy by death, resignation, or absence, ami bv persons other than members of the said Presbj'terian Church : Canada in connection with the Church of Scotland, and that th- said Act authorizes, moreover, the said Board to take from the prin- cipal of the said Fund, but that this Provincial statute af(jresaid is unconstitutional, and exceeds the power of the said Legislature of the Province of Quebec ; Considering that the petitioner alleges further that the present members of the said Boai'd have illegally remained in utfice, as such, by virtue of the unconstitutional Act above mentioned, tbt they have no right to fill the said office, and that they have, more- over, acted illegally in paying divers sums to ministers no longer forming part of the said Church, and that iie prays that the said Provincial statute, 38 Vict. c. 64, be therefore declared unconsti- tutional, null, and of no effect ; that the defendants be declare'l not legally elected members of the said Board, and that they be liiLiii'k PRIVY COUNCIL, 395 DoisiE, V. Thk Tkmi'O- ualitiks BOAIU). Jette, J. rdered to cease from holding the said office and administering the 1870 -' id property ; and finally that it be declared that the Temporalities Fund is the exclusive property of the said Church, and cannot be mployed otherwise than for the objects provided in the first place, nJ moreover, that the Reverends John Cook, James C. Muir, George Bell, John Fairlie, David W. Morrison and Charles A. Superior C. Tanner be declared no longer ministers of the said Church, and to iuebec. luve no right to the revenue of the said Fund ; Considering that the defendants, except the Rev. Gavin Lang and Sir Hugh Allan, have contested this demand, affirming among other things the constitutionality of the statute attacked by the :,etitioner and the legality of their acts ; Considering that by section 92 of the B. N. A. Act, 18G7, it is ileclared that property and civil rights are exclusively under the jurisdiction of the Provincial Legislatures, and that the rights affected by the said Act, 38 Vict. c. 64, which the petitioner asks to have declared void, fall expressly under the dominion of the said section 92 of the Constitutional Act, and are therefore under the jurisdiction and power of the Provincial Legislature, and that consequently the said Provincial statute is valid and legal, and has full force and effect ; Considering that although the petitioner is not residing in the Province of Quebec, the legislation of the Parliament of this Prov- ince affects the rights which he may possess or claim in the said Province, and therefore that the rights which he invokes in the present case are of necessity subject to the provisions of il^e said Provincial Act, 38 Vict. c. 64 ; Considering that by the words of the said Act the defendants are lawfully in office as members of the defendant corporation, and that they are entitled to continue the administration of the pro- [lerty which has been entrusted to them as such ; Considering that as well by virtue of the said Act, 38 Vict. c. 64, as of another Act of the said Parliament of the Province of Quebec, namely, the statute 38 Vict. c. 62, the legality and constitutionality of which have not been called in question, the said Fund above mentioned has remained subject to all the charges placed upon it in favour of all the incumbents having right thereto, at the time of its creation, and that the right of the petitioner, therefore, to his annual revenue of $450 has been complete!)' piotected and guaranteed ; Considering, nevertheless, that by the two statutes last men- tioned, the property of the said Fund is no longer assigned IJIi m n w 396 PRIVY COUNCIL. 1879 DOBIR V. The Tkmpo- kalitieb Board. Superior C, Quebec. Jett^, J. ^I|!" ^ M I'll! \m\n exclusively to the said Presbyterian Church of Canada in connection with the Church of Scotland, but that after the extinction of all prior rights guaranteed by the said Fund, it is transferred to the Presbyterian Church in Canada, formed of the said Presbyterian Church of Canada in connection with the Church of Scotland an] of three other Churches, the union of which has been authorize! by the said statute, 38 Vict. c. 62, and that by virtue of the disposi tions cf the said statutes, the said Reverends John Cook, James C. Muir, George Bell, John Fairlie, David Morrison and Charles A, Tanner, were right in receiving, and the defendants were riglit in paying to them, the sums received by them out of the income of tiie Fund administered bj' the defendants ; Considering, therefore, that the prayer of the petitioner is mi- founded and cannot b 'maintained, and that the defendants (except the Rev. Gj.viu i iiig and Sir Hugh Allan) are well founded in their pleas ; Maintain the p'ea? ' the /i defendants (with the above exception), and dismiss in coii3e-v-^ J"a». 17, 18,20; The Windsor and Annapolis Eailway Co Plaintiff. Feb. 22. (hi appeal from the Supreme Court of Nova Scotia. [Heported 7 App. Cas. 178.] B. N. A, Act, 1867, s. 108 — Power of Canadian Legislature. Under the B. N. A. Act, 1867, s. 108, read in connection with the 3rd schedule thereto, all railways belonging to the Province of Nova Scotia, including the railway in suit, passed to and be- came vested on the Ist of July, 1867, in the Dominion of Canada ; but not for any larger interest therein than at that date belonged to the Province. The railway in suit being, at the date of the statutory transfer, subject to an obligation on the part of the Provincial Govern- ment to enter into a traffic arrangement with the respondent company, the Dominion Government, in pursuance of that obligation, entered into a further agreement relating thereto, of the 22nd of September, 1871. (^utre, whether it was ultra vires of the Dominion Parliament, by an enactment to that effect, to extinguish the rights of the re- spondent company under the said agreement. But hdd, that Dominion Act 37 Vict. c. 16, did not, upon its true construction, purport so to do. And although it authorized a transfer of the railway to the appellant, it did not enact such transfer in derogation of the respondent's rights under the agreement of the 22nd of September, 1871, or otherwise. Appeal from a decree of the Supreme Court of Nova Scotia (April 5, 1881), afifirming a judgment of the Judge in Equity of that Court (March 1, 1880). • Present :— Lord Blackburn, Lord Watson, Sir Barnes Peacock, Sir Robert P. Collier, and Sir Arthur Hobhouse. S : ' M ,i\-^ 1 fil'- I ■ : i = ; ^1: 1 7' -I I ■■'";■ ■ -m .u ■ '■ill I i.HJ 398 PRIVY COUNCIL. 1882 nm\ \\ i; l|i Mi;' •'Ml ii! til!! II ill: L. ii:|' hi! Si!; %iL i^ The facts are stated in the judgment of their Lord- Western Ships. Rail\va"co. The object of the suit was to obtain a declaration of Windsor ano *^^ respondents' title to a railway in Nova Scotia, calkil Annapolis Railway Co. Statkjient. I (If ' the " Windsor Branch," and to recover possession of the same, and for an injunction to restrain the appellants from keeping possession thereof, and »*unning train? thereon, and for an account of their receipts troui freiflit and passengers thereon since it came into their pos- session. The main contention of the appellants was that the effect of the Canadian Act (37 Vict. c. 16) had been to deprive the respondents of their rights in respect of the Windsor Branch. The respondents denied that such was the effect of the statute. The Courts below gave effect to this contention. The Equii,y Judge {Ritchie, J.) held that the true interpretation of the Act was that it only vested the Windsor Branch in the appellants so far as the Government were entitled to deal with it, and subject to the respondents' rights. The Supreme Court (Young, C.J., Kitchie, Desbarres, and Smith, JJ., James. J., dissenting,) without dissenting from the construction put upon the Act by the Equity Judge, held that it was unnecessary to consider it, on the ground that if the Act, upon its true construction, did deprive the respondents of their rights derived under their Act of incorporatiou and the agreement of 1871, it was a statute dealing with property and civil rights within the Province of Nova Scotia, one of the subjects specially reserved by the B. N. A. Act, 1867, to the Provincial Legislature, and was therefore ultra vires and void. Mr. Justice James, ou the other hand, held that — (1), the Act of 1867 vested the Windsor Branch in the Dominion Government free from any engagements contracted with respect to it by the Provincial Government; (2), that the Dominion ^ PRIVY COUNCIL. 390 Lefislature was entitled to pass any Act relating to it, and that, upon the true interpretation of 37 Vict. c. 10, it lJ-182 ve SVKrtTEKN sted the Windsor Branch absolutely in the appellants ];.ulwayT'o. aud deprived the plaintiffs of all right to it. Benjamin, Q.C., and Gathorne Hardy, for the appel- lant company, contended that the judgment of the maiority was wroug, and that the respondents had no title to the railway in suit. By the B. N. A. Act, 18G7, see, 108, the railway in suit was made part of the public property of Canada absolutely. The Dominion Govern- ment thereupon had full control over it, and the Domi- nion Parliament absolute legislative jurisdiction in re- spect to it. By virtue of the Act of 1867, the Dominion Parliament succeeded to the full legislative authority previously possessed in regard to this railway by the Pro- vincial Parliament of Nova Scotia. The agreement, how- ever.of the 22nd of September, 1871, purported to be made in pursuance of the Provincial Act 30 Vict. c. 36, by which the railway continued to be governed after the statutory transfer. It was, however, vMra vires the powers con- ferred by that Act, which did not authorize the execu- tive to enter into an agreement giving the respondents the exclusive use of the Windsor Branch and the right to collect all the tolls thereon. That Act was passed in the interval between the 29th of March, 1867, when the B. N. A. Act was passed, and the 1st of July, the date on which it came into force. So also the agreement of the 22nd of June, 1875, was ultra vires the executive, so far as it purported to revive or confirm the agreement of 1871, and was contrary to the Dominion Act 37 Vict. c. 16. The effect of that Act, and the action of the Government thereon, and the delivery by the Government and the acceptance by the appellants of the possession of the railway in suit, was to vest in the appellants the ex- WlMlSOU AM) Annapolis Uaii.way Co. augvmext. rrv -.vi' 'i'-hf' W ft V V>\\i i ItiiiiK ■ '. i I 400 PRIVY COUNCIL. 1882 elusive right to the possession of the said railway as thuir Webtkun absolute property, notwithstanding the agreements oi Kaii™'co. 1871 and 1875. It purported to extinguish the rights of Windsor and ^^^^ respondents in the railway, and was operative for lUn^wAvCo *'^^^ purpose, being intra vires the Dominion Parliament, Abgumknt. (!iH! I ( 'llil Horace Davey, Q.C., and Bompas, Q.C. (Beaumont witli them), for the respondent company, contended that their title to the railway in suit had not been affected by what had passed. The agreement of 1871 was intra vires the executive, and carried out the provisions of their Act of incorporation, 30 Vict. c. 36. Under that agreement, and its subsequent confirmation in 1875, the respondents were entitled as claimed. With regard to the Dominion Act 37 Vict. c. 16, relied upon by the other side, it did not, upon its true construc- tion, purport to extinguish the rights of the respon- dents. It did not confer any rights on the appellants, and did not enact any transfer in derogation of the re- spondents' rights. It merely authorized a transfer which had not been carried into effect. It could not be con- strued in the way contended for by the appellants unless the intention appeared from express words or necessary implication. Reference was made to Ward v. Scott (1) ; Barringtons Case (2) ; Prior, of Caatleacre, referred to iu Barrington's Case (3) ; Chalke v. Peter (4) ; Daivson v. Paver (5) ; Hammersmith and City Railway Compaivj V. Brand (6) ; Managers of the Metropolitan Asylum District v. Hill (7). Further, the Canadian Acts, which are in the nature of private Acts, are not to affect railways unless specially mentioned : see 31 Vict. c. 1, s. 7, sub-sees. 33, 34. (1) 3 Camp. 284. (3) Ibid. 138 a. (5) 5 Hare 415, 438. (7) 6 App. Cas. 193. (2) 8 Rep. 137 5. (4) Ibid. 136 6. (6) L. R. 4 H. L. 171. liiiWii iiJkL I ' PllIVY COUNCIL. 401 AlUiUMKNT. Then as regards the competence of the Dominion Par- 1882 lianii'ut to pass 37 Vict. e. IG, reference was made to the wkhtkkn B.N,A. Act, 1807, s. 92, sub-s. 10, which preserves to the rSiwll^Co. Provincial Legislature the local jurisdiction. But, assum- Windsor and ing that the Dominion Legislature has absolute power to jj^^f^v^^" oq liM'islate over public property (that is the interest of the Govumment or the public in the res), there was no power to extiuguish private rights therein — such, for in- stance, as the rights of the respondents under their Act I if incorporation, and the agreement of 1871 : see also siib-s, 11. The Dominion Parliament cannot repeal the ?iovincicu Act 30 Vict. c. 36, and thereby affect the teriiis of the respondents' incorporation. In s. 94, the Imperial Parliament contemplates double legislation on certain subjects, and provides for it. Reference was made toL'Union St. Jacques de Montreal v. Belisle (1) ; Dow V. Blach (2) ; Citizens Insurance Co. v. Parsons (3). Benjamin, Q.C., replied. The judgment of their Lordships was delivered by Lord Watson : — In the present case each of the contending parties claims the exclusive right to possess and work the Wind- sor Branch Railway, in the Province of Nova Scotia. This line was originally constructed as one of the public railways of the Province, and was intended to be part of a general system connecting Halifax and other towns of importance with the frontier of the Province of Xew Brunswick. After the passing of the B. N. A. Act, 1867, and in accordance with its provisions, all railways belonging to the Province of Nova Scotia, including the line in question, passed to and became vested in the Do- minion of Canada. (1) L. R. 6 p. C. 31 ; ante, p. 63. (2) Ibid. 272 ; ante, i>. 95. (3) 7 App. Cas. 96 ; ante, p. 265. 26 ii I ! I' m i 1 i' ■! ■ . \ . -X . ■ - ■ M ■ i i #■ -i 1 ^*« ' ! ■5 1 yj m Wi 11 '!■ 1. ' fiiii 402 rillVY COUNCIL. 1882 The Chief Commissionor of Railways for Nova Scotia acting under authority conferred upon hiin l)y the I'ro. Wkhteun RarwatCo. vincial Act 2(S Vict. c. 23, entered, in Novenil)er, Isof; WiNDsoH AND ^"^^ ^^ agreement with Messrs. Puuchard, I IC >l lit nlilHl - I: ' ' Hi i 1 u > V (U, . i i i f ! Barry, aii.l Annai'oli.s Clark, of London, wliereby those gentlemen bocam. ^ — bound to make a railway, which was to be their own inn. — perty, from Windsor, one of the termini of the branch in question, to Annapolis. By that agreement it was /»)/., alia provided that before the new line from Windsor to Annapolis was opened by Messrs. Punchard, Barry, unl Clark, a traffic arrangement was to be made between them and the Provincial Government, " for the nuitun! use and enjoyment of their respective lines of raihvav between Halifax and Windsor, and Windsor and Anna- polis, including running powers, or for the joint operation thereof, on equitable terms to be settled by two arlii- trators, to be chosen by the parties in case of difference. By an Act of the Legislature of Nova Scotia, passeij upon the 7th of May. 1867 (30 Vict. c. 36), Messrs, Punchard, Barry, and Clark were constituted a body corporate by the name of the Windsor and Annapolis Railway Company ; and the agreement of November. 1866, between them and the Chief Commissioner of Railways, was, by the same Act, adopted and confirmed, The Windsor Branch Railway became the property of the Dominion upon the 1st of July, 1867, being tlie dav appointed by Her Majesty, in terms of s. 4 of the B. N.A, Act, for the provisions of that Act coming into opera- tion. And on the 22nd of September, 1871, the Govern- ment of Canada, as then owners of the railway, and in implement of the obligation to make a " traffic arrange- ment" which is contained in the agreement of November. 1866, entered into a new agreement with the Respondents, the Windsor and Annapolis Railway Company. It is unnecessary to consider in detail the whole terms PRIVY COUNCIL. 4oy ANNAI'OLIS Railway Co. judgmknt. of the a,i,'reeinenfc of LS71. Its provi.sioiis, so far as W2 karinL' uj)Oii tho present case, Jiro in substance these: Wkhtkus The exclusive use and possession oi the VVindsor nranch i;.m,.wayCo. Railway were made over to the Respondent (,'oinpany,with ^v,^•Iwou ano ninnini ''^^ ^>vor the trunk line, also belonging to tlie Doiiu.iion Government, which conneets the Windsor Branch with Halifax. The Dominion Government wa.s to maintain the Windsor Branch as well ass the trunk line in workable condition, whilst the Respondent Com- i)anv undertook to render and adjust regular monthly accounts of all traffic carried by them over these lines, aiul to pay to the Government, not later than twenty-one (Jays from the end of each month, one-third of their gross earnings from such traffic. The company also undertook to provide rolling stock, a.nd to run a certain number of trains dai'"', with stated hours of departure and arrival, and to c ";t their business and traffic with impartiality and faiiiiv-.- . No right of re-entry was reserved in case of the company's failure punctually to make payment of one-third of their earnings, but it was stipulated (Art. 19) that " in the event of the company failing to operate the railways between Halifax and Annapolis, then this agree- ment shall terminate, and the authorities may immediately proceed to operate the railway between Halifax and Windsor as they may deem proper and expedient." Last of all, it was provided that the agreement should take effect upon the 1st day of January, 1872, and continue for twenty-one years, and be then renewed on the .same conditions, or upon .such other conditions as might be imitually agreed on. In accordance with the foregoing agreement, the Respondent Company, in January, 1872, took possession of and worked the Windsor Branch line. Shortly after- wards the monthly payments due to Government fell into arrears, but these arrears were paid in full in November, S ; ; "i ;: i !■■ i 1 i '' '■ i''- 404 PRIVY COUNCIL. 1882 1872, in consequence of a threat that Government woulj Wkstkun resume possession of the railway. During the following RAn!\vA"co. 'year the company again failed to make payment of thf V. WlNDSOU Annapcilis Railway Co. JUDCiMENT It I ' ! 1!^ I' <-, i I ^j^,^ third of the traffic receipts for which they were liable to the Dominion Government, who intimated that, unless all arrears were paid up on or before the 1st of October, 1873 they would resume possession. On the 22nd day of October, 1873, an order of tlit- Privy Council of Canada was passed, approving of a report, dated the 21st of the same month, from the Min- ister of Public Works, stating that " the Windsor and Annapolis Railw ay Company had failed to operate the railway known as the Windsor Branch, mentioned in Order in Council of the 22i-^ of September, 1871, and to comply with the other terms and conditions of that Order in Council, and now owe $30,000 to the Government of Canada, and though repeatedly called upon to pay have failed to do so; and recommending that, inasmuch as the said Company have failed to operate one of the railways between Halifax and Annapolis, the Government of Canada, known as 'the authorities' by the said Order in Council, do proceed immediately to operate the railway between Halifax and Windsor." On the same da)/ (the 22nd of October, 1873), the Governor-General in Council, subject to the sanction of Parliament, approved of a pi'oposal made by the Appellant Company for a transfer to them of the Windsor Branch Railway, upon these conditions: — " 1st. The said company will undertake to receive the said railway and appurtenances on the first day of December, Anno Domini 1873, and from that date to work it efficiently and keep the same in repair at their own proper costs and charges, collecting, receiving, and appropriating to their own use all the tolls and earnings of the saire. PRIVY COUNCIL. 405 "2n(i. That on the completion of the Western Counties 1882 Railway from Yarmouth to Annapolis (now in westkrn course of construction), the said railway and Railway Co. appurtenances, from Windsor to the trunk line, winpsor and shall be and become absolutely the property of j^^lw^yCo. the said Western Counties Railway Company. ■f.-ZZ'r.^.r "3rd. That, in consideration of the premises, the said — company hereby engage to prosecute the work of building the railway from Yarmouth to Anna- polis, and to complete the same with all reason- able despatch." On the 30th of October, 1873, the Governor-General in Council approved, subject as before to parliamentary sanction, of a further proposal made by the Appellant Company in these terms: — " 1st. That the Western Counties Railway Company shall carry, free of charge, all passengers holding Government tickets, on all their passenger trains runningr between Halifax and Windsor Junction. "2nd. That the said company, or their agents or assigns, shall have running powers over the Intercolonial Railway, between Halifax and Windsor Junction, with such privilege i as have been hitherto grant- ed in the agreement with the Windsor and Annapolis Railway." On the 26th of May, 1874, an Act was passed by the Parliament of Canada (37 Vict. c. 1(5), entitled 'An Act to authorize the transfer of the Windsor Branch of the Nova Scotia Railway to the Western Counties Railway Company." The proposals of the Appellant Company, whic'h were provisionally agreed to by the Orders in Council of the 22nd and 30th of October, 1873, respectively, were set forth at length in schedules A and B,. appended to the Act, and arc referred to and sanctioned by the enacting clauses. It will be necessary hereafter to lii 11! ?!. ,;r 40G PRIVY COUNCIL. 1S82 I) ' H Ihitli WiN'DSOR AND AXXAPOLIS Railway Co. Judgment. 1 ( ' n 1 1 ' 1 : ' 1 : 1 1 1 liili: 1 1 1 i ' f . : ■ iM'i ] . ■ ; I ; ; ti' ■ . 1 i J ; ; . examine this statute more closely, because the Appoll;.4' • Western case is mainly founded upon its provisions, and the parties Railway Co. ^^^ widely at variance as to their true import and ott'ect Upon the 22nd of June, 1875, the Respondent Coinpanv entered into an agreement with the Minister of Public "Works of Canada, by which the company, on the one hand, undertook to alter the gauge of the Windsor and Annapolis Railway from 5 ft. 6 in. to the standard gauge of 4 ft. 8^ in., to deliver to the Minister a certain quantity of locomotives and other broad gauge plant, and to release all claims and demands against the Gov- ernment of Canada up to the 1st day of July, 1875. On the other hand it wpii agreed that, upon the change of gaufre being effected, all arrears of traffic receipts due by the company to the Government, which had accrued up to the 1st of January, 1875, should be discharged, and that the Minister of Public Works should then deliver to the company a like quantity of narrow gauge engines and rolling stock. It was further stipulated that the com- pany should, on or before the 31st of July, 1875, make payment of the third of gross earnings which had accrued after the 1st of January, 1875, and that the proportion of such traffic earnings due to the Government, and thereafter accruing, should '• be paid monthly, as pro- vided in the said agreement under which the company hold and work the branch as aforesaid, which (except as aforesaid) is hereby declared in all respects in full force and effect." In pursuance of this agreement the Re- spondent Company altered the gauge of their line, and regularly made the payments therein stipulated, and an exchange of engines and rolling stock was also made in terms thereof. The Respondent Company remained in full possession of the Windsor Branch line, and continued to work the same from the beginning of the year 1872 until the Ist M PRIVY COUNCIL. 407 f August, 1877. On that date the Dominion Govern- 1882 uient took possession of the Windsor Branch line, and on western the 2-lth of September following transferred the posses- ra?l"v™o. .ion of it to the Appellant Company under the agree- wiNnson and ,aent scheduled to the Canadian Act of the 2Cth of May, rSIy Co. IS/ 4. JUDGMKNT. The Respondent Company, upon the 10th of October, — ls77 filed a bill in the Supreme Court of Nova Scotia a l'ihlh!| jilll! 1882 right to the exclusive possession, and a future right to Western ^^^6 exclusive property of the said railway ; and (2) that Railway^Co. *^® Parliament of Canada had, under the provisions of WiNDsoK AND ^^^ ^- ^- ^- ^^^' 1^^^' ^"^P^® Icgislativc authority to Annapolis ^a,ke away, without compensation, any right in or rolat- — injr to the railway which might be vested in the R.-. Judgment. ® . — spondent Company, and to transfer it to the Appel]ant<. It is not disputed that if eithe" of these propositioas le not well founded the Appell ^ts' case must fail. The 108th section of the B. N. A. Act, 1867, which must be read in connection with the third schedule of the Act, had the effect of transferring, upon the 1st of July, 1867, to the Dominion of Canada, all railways which were the property of the Province of Nova Scotia. Their Lordships are of opinion that it had not the effect of vesting in Canada any other or larger interest in these railways than that which belonged to the Province at th" time of the statutory transfer. Accordingly, the Domi nion took the property of the Windsor Branch Raihvay. subject to the same obligation by which the right of the Provincial Government was affected, viz., to enter into a traffic arrangement with the Respondent Company in terms of the agreement confirmed by the Provincial sta- tute of the 7th of May, 1867 ; and it was in pursuance of that obligation that the Dominion Government enteinl into the agreement of the 22nd of September, 1871. Th'- agreement thus made was valid, and must continue to receive effect until it has been terminated by tlie (h.'fault of the Respondent Company, by the mutual consent of parties, or by the action of a competent Legislature. As already stated, the Appellant Company maintains that the agreement in question has been put an end toly the Act of a competent Legislature. In dealing with that contention, it vv^ill be convenient to consider, in the first place, whether, on the assumption that the Dominion !1" PRIVY COUNCIL. 400 1882 Annapolis IiAILWAY Co. Judgment. Parliament had authority to enact the 37 Vict. c. 16, the provisions of that Act do extinguish tho.se rights in western relation to the Windsor Branch which are conferred UahI'wIy'cnx upon the Respondent Company by the agreement of w,ndsok and 1«71. The proposals or provisional agreements which are scheduled to the Act 37 Vict, c. 16, contain two dis- tinct stipulations, the one relating to the possession and use and the other to the property of the Windsor Branch Railway. By the first, the Appellant Company " under- take to receive the said railway and appurtenances on the first day of December, Anno Domini eighteen hun- dred and seventy-three," and to work it efHciently there- after. Although the company undertake to receive, there is no corresponding obligation laid upon the Gov- ernment to give them possession of the i*ailway, either upon the 1st of December, 1873, or at any other specified date. By the second of these stipulations, it is provided that, upon the completion of the Western Counties Rail- way, then in course of construction from Yarmouth to Annapolis, the Windsor Branch Railway and its appur- tenances shall be and become tba absolute property of the Appellant Company. The Governor-General, with ailvice of his Council, would probably have been entitled, by virtue of the administrative powers conferred upon him by the 12th section of the B. N. A. Act, 1867, to make a valid agreement in regard to the possession and woiking of the line ; but it is, at least, very doubtful whether he would have had the right to alienate the property of the line without the sanction of the Domi- nion Parliament. Be that as it may, the Parliament did interpose upon the 26th of May, 1874, to the effect, the Appellants say, of destroying the previously subsisting agreement between the Government and the Respondent Company. n 410 PRIVY COUNCIL. ii ! iiiii itlN lii iiLu^ 1882 Neither in the Act 37 Vict. c. 16, nor in the sche- Westehn dules appended to it, is mention made of the agreement rSuvIyT'o. of the 22nd of September, 1871, or indeed of any right Windsor and ^^ interest of the Respondent Company in the Windsor jrunv^vY Co ^"^^J^ch Railway. The canon of construction applicable , — to such a statute is that it must not be deemed to takf Jld(;mknt. ... — away or extinguish the right of the Respondent Com- pany, unless it appear, by express words or by plain im- plication, that it was the intention of the Legislature to do so. That principle was affirmed in Barrington's Case (l),and was recognised in the recent case of The River Wear Commissioners v. Adamson (2). The enun- ciation of the principle is, no doubt, much easier than its application. Thus far, however, the law appears to be plain — that in order to take away the right it is not sufficient to shew that the thing sanctioned by the Act, if done, will of sheer physical necessity put an end to the right ; it must also be shewn that the Legislature have authorized the thing to be done at all events, and irre- spective of its possible interference with existing rights. It appears to their Lordships that there is nothiiig in the provisions of the Dominion Act, 37 Vict. c. IG, to warrant the inference that the Parliament of Canada must have intended thereby to enact that immediate pos- tjcssion of the Windsor Branch, for the purpose of work- ing it, was to be given to the Appellant Company under the agreements scheduled, even though there should be a subsisting arrangement for the working of the line. Indeed, the contrary appears from the 2nd section of the Act, to which refeicnce will be made hereafter. The preamble of the Act recites the proposed tran,sfer of the railway to the Appellant Company, and also a resolution of the Canadian House of Commons, of date the 23rd of May, 1873, to the effect that the Government (1) 8 Ecp. 138 a. (2) 2 App. Cas. 743. ^ i i M m PRIVY COUNCIL. 411 Ik' . 1 , v; , - . I •»*, 1882 V. INDSOli AND Annapolis liAILWAY Co. JunOMENT. should be authorized to enter into negotiations for the transfer of the Windsor Branch to some reliable associa- wkstkun tion or company, " upon condition that such company ex- KAu!wirco. tend the railway from Annapolis to Yarmouth." It makes -^y no reference to any right belonging to or asserted by the Respondent Company, nor does it refer to that part of the scheduled agreement which relates to the willing- ness of the Appellant Company to undertake to receive the railway and appurtenances upon the 1st of Decem- ber, 1873. It is impossible, therefore, to gather from the terms of the preamble an intention to terminate at once any temporary right of possession which might belong to the Respondent Company. The transfer of the railway was obviously not expected to take place at once. It was dependent upon a condition which might never be ful- filled, and which admittedly has not yet been fulfilled, viz., the completion of the line from Yarmouth to Annapolis by the Appellant Company. Besides, the transfer of the property of the railway is nowise incon- sistent with the fact of working arrangements affecting the transferor's right continuing to affect the right of the transferee. Then comes the leading enactment of the statute, as contained in s. 1, which is in these terms : — "The agree- ments hereinbefore referred to, and set forth in the schedules A and B to this Act, being such as were adopted by the orders of the Governor in Council of the 22nd and -SOth day 3 of October, 1873, and ^ U the matters and things therein contained, are hereby approved and declared to be as effectual to all intents and purposes as if the said agreements had been entered into in pursuance of sufficient authority in that behalf given before the adoption of such agreements by Act of the Parliament of Canada." It was argued for the Appellants that the effect of the preceding clause is precisely the same as if the Parlia- li '^ '4 ^1 .:*^'*1 rr 412 PRIVY COUNCIL. 1882 ment of Canada had, prior to October, 1873, passed an Westkun Act authorizing the Governor in Council to make an RailwayTv). agreement with the Appellant Company in terms of the 'i^Hfiil Windsor ani> proposals set forth in schedules A and B. That lijjl!^^ ni VMl Annapoliis Railway Co, JunOMKNT, argu- ment appears to be well founded ; but what would have been the effect of such antecedent statutory authority ' Their Lordships are unable to discover any term in the contract contained in schedules A and B binding the Government to give the Appellant Compan}' immodiate possession of the line, or to transfer the property of the line, free of all contracts or arrangements whatsoever ; and if such an obligation cannot be inferred from the language of the agreements sanctioned by the Legislature, it is impossible to derive from the language of this section any intention to defeat the Respondent Company's right of possession. It appears to their Lordships that even if the terms of these proposals had contemplated the immediate transfer of possession to the Appellant Company, that would not have been necessarily conclusive against the Respondents in this appeal. There is a great difference between giving authority to make an agreement and authorizing it to be made and forthwith carried out so as to override and destroy all private rights that may stand in its way. The 2nd and only other section of the Act provides that until airrangements are completed for giving possession of the line to the Appellant Company, for the purpose of working it until the completion of their line from Anna- polis to Yarmouth, the Government shall have power to make such other arrangements as may be necessary, " by continuing the working of the same by the Windsor and Annapolis Railway Company, or otherwise." These provi- sions certainly do not suggest that it was in the contem- plation of Parliament that immediate possession of the Windsor Branch Railway was to be given to the Appellant zing it to be PRIVY COUNCIL. 413 1882 Company for the purpose of operating it ; on the con- trary, they are apparently intended to meet the case wkstkkv of the Government declining to give possession of the RAawIvT'o. line to the Appellant Company at the time when the Windsor and latter had undertaken to receive it. Nor do these pro- j^^^fwlv Co visions necessarily indicate that, if there should be a ^ — subsisting working agreement with the Respondent — Company, or any other company, that agreement was to be set aside in order to admit of the Government mak- • iiu' such an arrangement as is provided for in this sec- tion. In case of there being no such standing agree- ment in the way, the powers conferred upon the Gov- ernment are very wide ; and even if the agreement of 1871 had been determined, it is by no means clear that the agreement of the 2?nd of June, 1875, would not give the Respondent Company right to continue their posses- sion of the line. In the view which their Lordships take of the import and eflfect of the Canadian Act, 37 Vict. c. 16, it becomes unnecessary to decide whether, if it had chosen to do so, the Parliament of Canada would have had the power to extinguish the rights of the Respondent Company under the agreement of the 22nd of September, 1871. Whether that power is given by the provisions of the B. N. A. Act to the Dominion Parliament or to the Legislature of Nova Scotia is a question of difficulty and importance ; but seeing that it does not arise for decision in the pre- sent case, their Lordships express no opinion whatever in regard to it. Their Lordships will, therefore, humbly advise Her Majesty that the judgments of the Courts below ought to be affirmed, and the appeal dismissed. The Appel- lants must pay the costs of the appeal. !;];■ I ■ mm tii It 1 1 I ji » I 1 •■ •<%, p w 3? * IIN'I!! 414 SUPREME COURT OF CANADA. SUPREME COURT OF CANADA. 1 ( J 1' ! i , 1 j ! It 1877* ^^^ John Severn Ajipelknt, June 0, 7. ^± > 1878* AND Jau.2S.- The Queen llcspondnl. On appeal from a judgment of the Court of Queen^s Bench for Ontario. [Reported 2 Can. tS.C.R. 70.] 37 Vict. c. 32, O.—B. N. A. Act, 1807, sees. 91, 92.— Brewers' Licenses, power of Provincial Legislature to impose. i ; lLu 1 i / The right conferred on Provincial Legialatures by sub-sec. of sec, 92 of the B. N. A. Act to deal with "shop, saloon, tavern, auctioneer and other licenses," does not extend to licenses uii brewers. Begina v. Taylor, 36 U. C. Q. B. 218, overruled. [Ritchie and Strong, J J. , dissenting. ] Appeal from a judgment of the Court of Queen's Bench for Ontario, overruling the demurrer of the defendant, John Severn, to a criminal information filed against him by the Attorney-General of the said Province, on behalf of Her Majesty the Queen, in the aaid Court, on the 23rd day of January, 1877. This appeal was brought directly to the Supreme Court, by consent of parties, under sec. 27 of the Supreme and Exchequer Court Act. The information was for the contravention by the * Present: —Sir William Buell Richards, C.J., and Ritchie, Strong, Taschereau, Fournier and Henry, JJ. ^'^^^-'^'■■i^^ SUPREME COURT OF CANADA. 415 (lefentlant of the proviKions of the Act of the Legishituve of Ontario, 37 Vict. c. 32, respecting the sale of fer- mented or spirituous liquors, in that the defendant " on the nineteenth day of January, in the year of our Lord ftforesaid, at the Town of Yorkville, in the County of York aforesaid, after the passage of a certain Act of the Lefisliiture of the Province of Ontario, made and passed in the thirty-seventh year of the reign of our Sovereign Lady the present Queen, intituled 'An Act to amend and consolidate the law for the sale of fermented and spirituous liquors,' then heing a brewer licensed by the Government of Canada for the manufacture of fermented spirituous and other liquors, did manufacture a large quantity of fermented liquors, to wit, one thousand gal- lons of beer, and afterwards, to wit, on the twentieth day of January, in the year of our Lord one thousand eight hundred and seventy- seven, at the Town of Yorkville aforesaid, in the County of York aforesaid, unlawfully and wilfully and in contravention of the said Act of the Legislature of the Province of Ontario, did sell by whole- sale a large quantity of the said fermented liquor so manufactured by the said John Severn as aforesaid, to wit, five hundred gallons of beer, for consumption within the Province of Ontario, to wit, at the Town of Yorkville aforesaid, in the County of Y'^ork aforesaid, without first obtaining a license, as required by the said Act of the Legislative Assembly of the Province of Ontario, to sell by wholesale, under the said Act, liquors so manu- factured by him the said John Severn as aforesaid, for consumption within the said Province of Ontario, and without having obtained any shop license or any other license under the said Act, or under the Act passed by the said Legislature of Ontario in the thirty-ninth year of the reign of our Sovereign Lady the present Queen, intituled ' An Act to amend the law respecting the sale 1H77-S Seveun r. TlIK C^lKKN SlATKMKNl. ■:i:'i i'l . , .1 ! I '^^^«!fBHIBBt i pnr ' i 'i r liii; Hjll! ii w\ 1 • i i '..i I! " .11 1 1 Ik 1H77-8 Sevkun The C^lken Statemknt. 41G SUrilKME COUUT OF CANADA. of fermented or spirituouB liquors,' to sell wholeBiiIe, a> a brewer, liquor, in wilful contravention of the siiid Ad of the Legislature of the Province of Ontario, passed and made as aforesaid, and in contempt of our Sovorei"ii Lady the Queen and her laws, and to the evil exaniplt of all others in the like case offending, and contrary, tij the form of the Statute in such case made and provided, and against the i)eace of our Lady the (^ueen, her Crown and dignity." On the 25th of January, 1877, the said John Severn, liv his attorney, F. Osier, having heard the information read, said : that the information and the matters therein contained are not sufficient in law, and that the defeud- ant is not bound to answer the same. One of the points to be argued was' that the Legis- lature of the Province of Ontario had no power to pass the statute under which the said penalties were sought to be recovered, or to require brewers to take out iiiiy license whatever for selling fermented or malt liquors In- wholesale, as stated in the information. The Attorney-General joined in demurrer. In a case of a similar information, liefiina v. Jmiu's Taylor (1), the Court of Queen's Bench gave judf,'ment for the defendant on the demurrer to the information. The Court of Appeal for the Province of Ontario reversed the judgment of the Court of Queen's Bench and over- ruled the demurrer of James Taylor. An appeal was subsequently prosecuted by the said James Taylor to the Supreme Court of Canada, when, after argument, the Supreme Court decided (2) that it had no jurisdiction to entertain the said appeal, inas- much as the judgment appealed against was prior to the organization of such Court. (l)a6U. C. Q. B. 183; 218. (2) 1 Can. S. C. K. 65. 'I ill III I M SUPREME COURT OF CANADA. 417 Skvkun r. I'HK t^DKKN. Ill consequence of ihis decision, Hiivrison, C. J., 1R77-8 ildivered the judgment of the Court of Queen's Bench as fnllows : — "\Vc have read the decision of tlie Court of Appeal in siatkmknt }l,;jiiut V. Taiilor, 3(5 U. C. Q. B. 218, reversing the (licisiou of this court, reported at p. 183 of the same volume. "If tlie Court of Appeal were a court of final resort, we should, in the present case, follow the decision of the Court of Appeal without observation of any kind. But as the Court of Appeal is not a court of final resort, and lis we are informed that it is the intention of the defend- iiut in this case, with the consent of the Crown, under suction 27 of the Supreme Court Act, at once to carry this case to the Supreme Court ; and so, if possible, have llnfma V. Taylor, 3G U. C. Q. B. 218, reversed ; we, in lieforeuee to the existing decision of the Court of Appeal, and not from any actual conviction that it is correct, follow it, and give judgment for the Queen." The Act in dispute under this appeal is the 37 Vict. c. 82, of the Ontario Legislature. The clauses considered were the following : — " Section 24. No person shall sell by wholesale or retail, any spirituous, fermented or other manufactured liquors within the Province of Ontario, without having lu'st obtniiicd "' nsi under this Act, authorizing him so <1 Provided that this section shall not api)ly to aider legal irocess, or for distress, or sales by 411668 in insolvency. "2";. N person shall keep or have in any house, liuilding, shop, eating-house mloon or house of public entertainment, or in any room or place whatsoever, any spirituous, fermented, or other manufactured liquors, for the purpose of selling, bartering or trading therein, 27 ! ; ■■ f !'■ 1877-8 Sbvkrn v. The Qukkn. Statement. (i I ; h r i ' I imm ! - 418 SUPREME COURT OF CANADA. unless duly licensed thereto, under the provisions of this Act." The two preceding sections, by sec. 26, were not to pre- vent a brewer or distiller duly licensed by the Dominiou of Canada from keeping, having, or selling any liquor manufactured by him. Provided that such brewer, dis- tiller, etc., is further required to first obtain a license to sell by wholesale under that Act the liquor so manu- factured by him when sold for consumption within this Province, but not in quantities less than prescribed k section 4 of the Act. Section ?.2 enacts : " Tbore shall bo paid . , , for each license by wholesale a duty of fift;y dollars," All the duties under this section are for the purposes of Provincial revenue. Section 4. "A 'license by wholesale' shall be coii- strued to mean a license for selling, bartering or trj itick- ing, by wholesale only, in such liquors in wareho'jses, stores, shops, or places other than inns, ale or bed' houses, or other houses of public entertainment, in quan- tities not less than five gallons in each cask or vessel, at any one time; and in any case where such selling by wholesale is in respect of bottled ale, porter, beer, wine or other fermented or spirituous liquor, each such sale shall be in quantities not less than one dozen bottles of at least three half pints each, or two dozen bottles of at least three-fourths of one pint each, at any one time." Mr. J. Bethune, Q.C., for the Appellant : — The statute in question, 37 Vict. c. 32, 0., was j)asseil to consolidate the license laws of the Province, but it not only consolidates but amends these laws. In the consolidated Act there is no special amend- ment so far as brewers are concerned. Sec. 4 defines license by "wholesale." The effect of this seems to be to DA. lie provisions of i, were not to pre- by the Dominion jelling any liquor such brewer, dis- btain a license to 1 liquor so manu- option within this lan prescribed l)y 1 paid • • • 1^ of fifty dollars." for the purposes of alo' shall be ("Qu- artering or tri.tiicli- ors in warehoiises, inns, ale or beu' L'tainment, in quan- |h cask or vessel, at ■re such selling by porter, beer, wint Lor, each such sale me dozen bottles of dozen bottles of at ,1 any one time." |llant : — 32, 0., was passed lie Province, but it Ise laws. Ino special amend- Bd. Sec. 4 defines ■ this seems to be to SUPREME COURT OF CANADA. 419 1877-8 IKNT. eoriipel brewers to take out a license at an expense of $50 before selling by wholesale. Now, the Dominion Govern- skvekn inent derives its income from customs and excise, which rp^j, qY-kkn. are regulated by 31 Yict. c. 8, D. By the second section AmiTTra of that Act the word "brewer" is defined, and by the third it is stated that no other person than a licensed brewer can carry on business or trade, etc. The Do- minion Government thereby assumed jurisdiction in this matter. The point of importance is, what are the relative rights and relative jurisuictions of the Dominion Parliament and Provincial Legislatures over this sub- ject-matter ? The only authority under which the Provincial Legis- lature claims the power of making laws in relation to matters relating to trade and commerce is sec. 92, sub- s. 9, of the B. N. A. Act. But the whole of that sec- tion must be governed by sec. 91, ^mder sub-s. 2, of which the regulation of trade and commerce belongs exclusively to the Dominion Parliament. The fair con- struction of the words trade and commerce includes both internal and external. trade. The Dominion Goveriiment derives its income from customs and excise, which are regulated by 31 Vict. c. 8, 1). Under sec. 91, sub-ss. 2 and 3, the Dominion Parliament has the power to pass laws for "the regula- tion of trade and commerce " and " the raising of money by any mode or system of taxation." Now, the right of the Ontario Legislature to pass and maintain the provisions of this Act must rest either upon its power to impose direct taxation within the i vovince, in order to the raising of a revenue for provin- "lal purposes, or upon its power to legislate upon matters relating to licenses and municipal institutions. It can- not be denied that the whole B. N. A. Act shews that it was intended to divide the jurisdiction between the two Tl :',! I t! 1877-8 Skveun V. The Qukkn. Akoument. i :| i 1 Mi' 1 1 420 SUPREME COURT OF CANADA. legislative bodies, the jurisdiction of each being com- plete as to cases within its power. See upon this point the judgment of the Court of Appeal for Lower Canada in Ex parte Dansermu (1) ; ])ow v. Black (2) ; L'Unwn St. Jacques dc Montreal v. Belisle (3). Then, can this Act be sustained under sec. 92, sub- s. 2 of the B. N. A. Act; in other words, is this charge or duty imposed upon brewers a direct or indirect tax ? Appellant contends that it is an indirect tax, the effect of which is to raise the i^rice and value of the beer bv at least the amount of the tax. Imposing a tax upon the steamboat instead of the passengers which it carries, is an indirect tax: Gibbons v. Of/den (4). The Imperial Parliament treat this as an indirect tax, because thev Avould not have given the power by sub-sec. 9 if it was direct. The judgments of the Court of Queen's Bench and the Court of Appeal in llegina v. Taylor agree as to this. But it is contended that the Ontario Legislature possesses the right ol imposing this tax under sub-s. 9 of sec. 92 of the B. N. A. Act. Now, this sub-section must be looked upon as giving an exceptional right, limited in its character, to impose indirect taxation. You must either restrict this power of granting "other licenses" or give the Local Legislatu^'e a jurisdiction as complete and as full as that of the Dominion Legislature. Now, the trade of a brewer is one regulated exclusively bv the laws of the Dominion of Canada, and the history of trade and distilling shews that brewing was always regarded as coming under the Excise Laws. R. v. Justices of Snrreij (5); Burns's Justice of the Peace (6); Con. Stats, of Canada, cap. 19; Con. Stats, of Lower Canada, cap. 6, sec. 1 ; cap. 24, sec. 26, sub- (1) 19 L. C. Jur. 210. (4) 9 Wheaton 1, 231. (2) L. R. t> P. C. 272 ; ante p. 95. (5) 2 T. R. 504. (3) L. R. G P. C. 31 ; ante p. 03. (G) Vol. 2, p. 190. SUPREME COURT OF CANADA. 421 1877-8 sec. 10; 27 and 28 Vict. cap. 3; 29 Vict. cap. 3; Revised Statutes of Nova Scotia, cc. 17 and 19; Revised Statutes skvern of New Brunswick, vol. 1, cap. 18; Crabbe's History of theQuken. English Law (1) ; Temperance Act of 18G4, of the Province AiuJuiiENT. of Canada ; Quebec Resolutions, which constituted the " foundation of the Imperial Act; Journals Legislative Assembly of the Province of Canada (2) ; Journals of same Assembly (3) ; 29th Resolution, sub-sec. 4. Lord Carnarvon's explanation, on the second reading of the Bill in the House of Lords, shews that these Resolutions were the basis of the Statute (4). The jurisdiction as to excise was intended to be in the Dominion Parliament, and would therefore be exclusive. Ouo method of regulating excise is by taxation : Story on the Constitution (5). The only head of concurient jm'isdiction is under section 95, and even then Provincial Leijislatures must yield to Dominion when they conflict . Either the words "other licenses" must be construed to be of the same class as those mentioned in the preceding pai't of the sub-section : East London IVater Works v. Mile End Old Town rTrmteesJ (6); Beedv. hujham (7) ; Williams v. Golding (8) ; this is also the view taken by Torrance, J., in the case oi Aiifjcrs v. llic (jiiccii Insurance Co., decided at Montreal, in Apr'l, 1.S77 (!i) ;— or must be held to mean such licenGca t. . were before the passing of the Imperial Act under municipal or local control : Maxwell on Statutes (10). If the term "other licenses" be not thus limited, the Le;,'islature may require anything to be licensed, for instance, may require a license to be taken out by a captain of a vessel, or by a banker, or ollicial assignee. (1) pp. 477, 482. (2) Vol. 24, pp. 203, 209. (:f) Vi.l. 20, p. 302. (4) Hansard, Vol. 185, p. 5(53. {■<) Section 971. (6) 17 Q. B. 512. (7) 3 K. & B. 889. (8) L. R. 1 ('. P. 09. (it) 21 L. C. Jur. 81 ; ante p. 117. (10) Page 308. ;H.'.iU' n ■■■' I ! 1877-8 Severn V. The Queen. ARCiUMENT. i||f!!^i!i , 1 i I i : \\: . 1 ■t 1; ; 1 ■ i ■ ■ - . 1 p i; 1 yii., 422 SUPREME COURT OF CANADA. There are a large class of local licenses of less importance than those enumerated in this sub-section, such as those enumerated in the Municipal Act of 186i). As to the argument put forward on behalf of the Crown, in support of the judgment in this case, that the Act is not nltra vires, because it has reference to a subject-matter over which its powers are as full and complete as those of the Dominion Parliament as a matter of police — appellant contends that this power is a grant from the Dominion Government, a branch of criminal law over which the Dominion has entire control. What is known in the United States as police power in the States is founded upon the right which exists on the part of the State Legislatures to make laws for the good government of the State in all cases in which jurisdiction is not given to the Congress. The jurisdiction to enact Criminal Laws, except for offences committed on the high seas and offences com- mitted against the United States Government, exists on the part of the State Legislatures. The basis of the right to make laws of police is Criminal Law. License Cases (1). The cases decided by the United States Courts as to laws in the nature of police do not apply with equal force to Canada, because the Provincial Legislature; have jurisdiction only in such matters as are expressly mentioned in section 92. This is plain from section 91. The Quebec Resolutions numbered 29, 43 and 45 shew that this was what was intended. As to the power of disallowance, that power belongs to only one branch of the Dominion Parliament, and (1) 5 Howard, at pages 590, 591, 592, and 625 ; Story on the Constitu- tion, 4th edition, sec. 1954 ; Cooley on Const. Limitations, 483 ; Dwarris on Stats, by Potter, p. 450, and subsequent pages ; Blackstone's Cora?., vol. 4, page 113. imm SUPREME COURT OF CANADA. 423 1877-8 Skvkrn V. can be exercised in diiferent ways. In the United States it is held that the moment Congress exercises its power over a subject-matter the State has no control, provided tjjj. qubrn. that Congress was first to exercise it. ArgI^nt. It is further contended on the part of the respondent, that the power to sell in Ontario must come from the Ontario Government and that under the Act it can be called a shop license. The answer to this will be found in Brown v. State ofMari/lnml (1). It is as much a part of the trade of the brewer to sell as to manufacture. It would be mockery to say : I will give you the light to manufacture, but the Provincial Legislature says you must get a shop license before you can sell. See also Kent's Commentaries (2). If this sub-section 9 of section 92 gives power to require a license to be taken out by a brewer, the Legislature has power also to require the license to be obtained from the municipality or from the Provincial Government, or from both. This would very much embarrass this branch of trade, and might so fetter it as to destroy it. M iMli ■\ 1; ; 1 iiit m ill II B ' ' ft a. 1 i Mr. Mowat, Q.C., Attorney-General for Ontario (Mr. Crooks, Q.C., with him), for the Respondent : I claim for the Provinces the largest power which they can be given : it is the spirit of the B. N. A. Act, and it is the spirit under which confederation was agreed to. If there was one point which all parties agreed upon, it was that all local powers should be left to the Provinces, and that all powers previously possessed by the Local Legislatures should be continued unless expressly repealed by the B. N. A. Act. The larger (1) 12 Wheaton, pp. 442, 443, 446. (2) 12 Ed. vol. 1, p. 430. '}< I Ififlfffl 1877-8 Severn V. The Queen. Argument. [j I ! i HI mi Mil! ■ I III!'!: I iii ! I ■ !il 4,24 SUPREME COURT OF CANADA. powers given to the Dominion were for the purposes of nationaHty, so that in construing the B. N. A. Act, the intention was not to take from Provincial authorities any more than was necessary. Take, for instance, the administration of justice ; nothing in the Act savs to whom belong the executive powers of the administra- tion of justice, yet from the very beginning it \vas assumed that the local authorities have the same powers as before Confederation. We find that express power was given by c. 128, 14 and 15 Yict., to the City of Montreal to tax brewers. The same power irui.) -"v<-lv be trusted to a Provincial Government. Another point of great importance is the provision in the Act (sec. 90) by which legislation of the Local Legislatures can be vetoed. The relation of the Provinces here is dilierent from that which the States bear to the United States There the Courts alone have power to declare when thi States have usurped the higher powers of Congress, whilst here ample power is given to the Dominion Parliament of i)rotecting itself. This Act has now been in operation for several years. It has been contended that it is only one brunch of the Parliament that has the right of disallowhig the Provincial Acts. I think it will be admitted by all parties here that the Governor-General must take tin advice of his council when vetoing local Acts. This power of disallowance should be taken into consideration when the policy of the Act is urged against us. The regulation of the sale of all liquor for consumption in the Province, whether manufactured in the Province or not, is of Provinc.il concern, and the immunity of the person manufacturing in the Province, as part of the Dominion, under the excise regulation of the Inland Revenue Department, no more makes him free of Tro- iky,', nil. i ^ Tfr vmm SUPREME COURT OF CANADA. 425 vincial regulations, than the person importing liquor under the Customs regulations c+' another Deimrtment. Section 9*2 of the B. N. A. Act, 18()7, confers upon the Legislature of each Province the jurisdiction of raakiiif' laws so as to exclude the authority of the Parliament of Canadii in relation to matters coming within the classes of subjects enumerated in that section, and where the Legislature possesses jurisdiction the Court has no power to review the exercise of it. Where there is jurisdiction, the will of the Legislature is omnipotent according to British theory, and knows no superior law in the sense in which the American Courts are accustomed to adjudicate upon constitutional questions. See Blackstone (1); Sedgwick, Statutory and Constitu- tional Law (2) ; De Tocqueville's Democracy in America, cap. 6 ; Broom's Constitutional Law (3) ; Pomeroy's Constitutional Law (4) ; Story on the Constitution of the U. S. (5) ; Cooley's Constitutional Limitations (6) ; and cases commented on in these authorities. The requirement of the license is neither obnoxious as being an indirect mode of taxation, nor as being repugnant to the jurisdiction of the Dominion in the regulation of trade and commerce. The tax here is direct upon the person, and not upon the commodity, with the view of enhancing the selling prict' thereof to the extent of the tax imposed. See as to nature of tax, Fawcott's Political Economy (7); Baxter on Taxation (8); Bowen's Political Economy (Mass.) (9). (1) IJlackstone's Com. by Kerr, Vol. I, p. .%. (2) Pomeroy's Ed., 1874, and cases in note, pp. 404-5. (3) p. 795. (7) Book 4, ch. 8, p. 477. (4) Sees. 142, 143, 300 et seq. (8) pp. 15. 20 and 21. (o) Ed. 1873, Book 3, ch. 3. (9) p. 436. (0) Ed. 1871, pp. 2, 4 and 86. 1877-8 . Severn V. The Queen, .vugument. '\\ m I A .!l« :i M m tfil 'm m V V'- I . 1 1 diytlLL m 4 1877-8 Severn V. The Queen. Akoument. s ! !!:■: : i ' 11 - ii r ' : t 1 \ 1 426 SUPREME COURT OF CANADA.. The taxing power is also commensurate with and essential to the existence of the Government, and this mode of its exercise is not excluded from Provincial jurisdiction. See Marshall, C. J., in Providence Bank v. Billing (1); McCiilloch V. State of Marijland (2); In re Slavk V. The Corporation of Orillia (3) ; Marshall, C. J., in Gibbons v. Ogden (4) ; Story on the Constitution of tbe U. S. (5). Now, amongst the matters in which the Provincial Legislature has this exclusive jurisdiction under class i) are included " shop, saloon, tavern, auctioneer, and other licenses in order to the raising of a revenue for Provincial, local, or municipal purposes." (rt) The term ** shop " may as well cover the license to a brewer when selling for consumption in Ontario as any other seller by wholesale or retail. The brewer, quoad hoc, is in the like position. The same policy, whether of police or revenue, would also equally apply, {b) The term " licenses " is most general, and would include as a subject-matter not only all dealers in any commodity, but trades, professions and occupations. See Baxter on Taxation (6). (c) The rule of cjusdem generis is inapplicable here — first, in there being no controlling or particular classes to refer to in order to determine the like classes, to which the word " other" might be referred with any definiteness ; and, secondly, because the latter words enlarge "other licenses" into all such as the legislative authority may consider necessary to the raising of a Provincial revenue. The learned Counsel referred to the cases cited in the (1) 4 Peters, 514, 561-3. (2) 4 Wheaton, 316, 428. (3) 36 U. C, Q. B. 159, 172. (4) 9 Wheaton, 1, 203. (5) Sec. 1068. (6) pp. 34, 35. i>' li 'k,. SUPREME COURT OF CANADA. 427 1877-8 IS cited in the Skvkun f. jud foment of Draper, C. J., in the Court of Appeal, in Ut'iiimi V. Taylor (1) ; in addition to which he cited : Flcnrii V. Moore et al. (2); Begina v. Boardman (3); thkQvkkn. Cunadd Central Bailmry v. The Queen (4) ; The Que<^^)i augTment. and Lomjee (5) ; Sanaom v. Bell (6) ; Oswald v. Bencick-on- Tweed (7); Beed v. Ingham (8); Martin v. Hemming (9); In re Mew (10)', License Cases (11); Ward \ . Maryland (12); yVic License Tax Case (13); Cooley v. Board of Wardens (14) ; Metropolitan Board of Excise v. Barrie (15); Bor/e v. Maryland (16); Nathan v. Louisiana (17); Commonwealth X. Hoothooke (18); Illinois v. Thurher (19); B;o«/( V. »SYafe o/ Maryland (20). Supposing, now, this Act is viewed as an Imperial Act, the word "other" must be accepted in its broadest sense; •2 Burns's Justice of the Peace (21) ; Baxter on Taxation (22); Peto on Taxation (23); Broom's Maxims (24). The practice of the United States also may be referred to. How was this word accepted there? Sec Hilliard on Taxation (25) ; Strong on Constitutional Law, 1053 ; Kev. Stats. U. S. (26). The Provincial jurisdiction over licenses is not confined to shops and places where the sale is by retail, and the true construction to be given to sub- section 9 of section 92 is, that the words " and other licenses " include the superior as well as the inferior grade of licenses. (1) 36 U. C. Q. B. 218. (14) 12 Howard, 299. (2) 34 U. C. Q. B. 319. (ir.) 34 N. Y. R. 657. (3) 30 U. C. Q. B. 553. (16) 7 Gill, 326. (4) 20 Grant, 273. (17) 8 Howard, 73. (5) 10 C. L. J. N. S. 135. (18) 10 Allen, 200. (ti) 2 Camp. 39. (19) 13 Illinois, 554. (7) 5 H. L. 856. (20) 12 Wheaton, 419. (8) 3 E. & B. 889. (21) 30th ed., 193, 194. (9) 18 Jur. 1002. (22) pp. 34 and 35. (10) 31 L. J. N. S. Bkptcy, 89. (23) p. 170. (11) 5 Howard, 504. (24) pp. 585, 588, (12) 1 American R. 50. (25) p. 49, sec. 9. (13) 5 Wallace, 463. (26) p. 625. sec. 3, 243. ■^^^11 i WW-- i r^f ! ( 1 1 i I !i t : I i - 1 I I ; M If 'i; : ! i - f ( i ! 1 ' ' (iiiin :l 'I ■ ! 1 i - i f i if 'I I ill ilil 1877-8 Skvkiin V. The Qukkn. AlioUMENT. 428 SUPREME COURT OF CANADA. Mr. Crooks, Q.C., followed on the part of the Res- pondent : By the B. N. A. Act we are given a constitution similar to the English constitution. In each Provinct ajyh'fuim impcrium was constituted, and not a subordinatt authority, or one with only such powers as were speci- fically conferred. Once jurisdiction is given over a subject-matter, the power is absolute. The ease of L' Union St. Jacqncs dc Montreal v. Bclisle (1) seems to support this view. The only question before the court is whether tlu enacting body acted ultra rircs. By the B. N. A. Act two sovereign bodies were created, viz., the Dominion Parliament and the Local Legisla- tures. There is no question of the one being subordinate to the other. The Act has to be construed as an Imperial Act, and the jurisdiction given to the Local Legislatures must be absolute and complete. Assuming this, res- pondent contends that this statute was enacted by the Ontario Legislature in the exercise of that sovereignty. The Provincial Legislature possesses inherent con- stitutional power to enact all such laws as it thinks best for the welfare of the people of the Province, and to secure this end to prohibit the sale, traffic, or disposal of spirituous liquor or other commodities which the Leg- islature may deem injurious. With respect to siuli matters its powers are as full and complete as those of the Dominion and Imperial Parliaments in relation to matters Canadian and Imperial respectively. The principle of the maxim salus populi suprcinn /.r is strictly applicable, and sustains the Provincial juris' diction. See Lieber's Legal Hermeneutics (2); Sedgwick ou Stat, and Constit. Law (3). (1) L. R. 6 P. C. 31 ; ante, p. 63. (2) Ch. 6, sec. 10. (3) Ch. 10, p. 40 1 (Pomeroy'.s ed., 1874), and cases in note. lIlUi.Jl :. » ■ t 1877-8 Severn V. The Queen. Richards, C.J, i ! ml m i'iii m SUPREME COURT OF CANADA. Ontario stcatutes, is a means of raising monc}', and it, of course, is a tax. And there can be no douht it is an indirect tax ; and it is equally beyond a doubt that it is a means which may be resorted to by the Dominion Parliament for the raising of money. When, then, it is mentioned in the statute under consideration that the Dominion Parliament may raise money under any mode or 8;yfltem of taxation, and when, in the same Act, the taxing power of the Provincial Legislature is confined to direct taxation within the Province, in order to the rais- ing of a revenue for Provincial puri)oses, it seems to nii beyond all doubt (except so far as the same may bt qualified by No. 9 of sec. 92) that it was introduced not to allow the Provincial Legislature the right to impos- indirect taxes for Provincial or local purposes. The fact that in most European countries, as well a> in the United States and in the North American Pro vinces, by far the larger portion of the ordinary rovenui was raised by indirect taxes, seems to indicate that tlh framers of the D. N. A. Act considered this so important a power that it was not intended to entrust it to tli. Local Legislatures. The power of taxation, being si' essential to the maintenance of a Government, must necessarily be viewed as of the greatest importance to every Government, and it is mentioned as No. 3 of the puwers of the Dominion Parliament, and No. 2 of the Provincial Legislatures. Looking, then, at these provisions as they stand thus far, it would be reasonable to hold, in the absence of any other provision, that the framers of the statute did not intend that the Provincial Tjegislatures should liavt any but the pov/er of direct taxation for raising a revenue for Provincial purposes. It is not necessary to say much as to the effect of raising money oy direct and indirect taxation. AVheii f '^''f^flTP'^nfl SUPREME COURT OB' CANADA. 433 each inhabitant is compelled to pay a sum of money to 1877-8 a tax-gatherer, he knows and understands what he pays, sea-ern 1111(1 will no doubt look sharply after the expenditure of rp,jg quekn. money so extorted from him. But when the tax is indi- Ri,.hai^c. J. roctlv imposed, and the payer recoups himself by an extra charge for the commodity he deals in, the pur- chaser may buy the article or not as he pleases ; the money he pays is more like a voluntary payment for what may, perhaps, be considered a luxury, and when paid he does not look so sharply into the matter as he does in the payment of a direct tax. It is therefore obvious that the Provincial Legislatures would be much more likely to exercise prudence in the character of the expenditure of money if they are compelled to raise it by direct taxation. Besides this, the taxation for purely local purposes before Confederation was mostly direct, whilst that for the general purposes of the Provincial Government was indirect, and generally from customs and excise. In most of the Provinces a large portion of the indirect taxes, which might be considered as arising in the par- ticular localities and were collected through the medium of licenses, was applied to local and not general or Provincial purj)oses. We must assume this was known I'l the framers of the B. N. A. Act, and that, whilst they were in effect prohibiting the Local Legislatures from ^i'\Ting indirect taxes, they did not wish to deprive these I'lovinces or localities of the revenue which the local or tiuuiicipal authorities had Veen for many years receiving and applying to purely local purposes. In that view, then, when framing sec. i>2 of the -tatute, and by No. 8 providing for making laws for " municipal institutions in the Provinces," attention would be naturally drawn to the powers conferred on those bodies in the several Prov- inces, and the means which they had of raising money, 28 i 434 SUPREMK COURT OF CANADA. i^'ii'M'^ Ml I ((ill III Ml [la '.til il i!. 1877-8 and they would find that in most, if not all, of the Prov- Sevkrn inces, the amount to be paid for tavern licenses was The Quekn. fixed by the local or municipal authorities, and thelai}^er RiohaTd^c.j. portion of the money arising from that tax was applied to municipal or local purposes in contradistinction to Provincial or general purposes. If that system was to be continued it would be necessary to make special pro- vision therefor, inasmuch as the tax by license was an indirect mode of taxation, and the Dominion Parliament was intended alone to possess i... Giving power to tlic Local Legislature to legislate as to " shop, saloon, tavern, auctioneer and other licenses, in order to the raising of a revenue for Provincial, local or municipal purposes,' was certainly one mode of doing this. Suppose the word " Provincial " had not been there, would not the fair meaning br that it was intended to be confined '»■) licenses which were of a local character ? — and when it appears that part of the revenue derived from the tavern and shop licenses, as in Canada, had gone into the Provincial chest, an obvious reason existed for addin? Provincial to the local or municipal purposes. In tht Province where the most complete system of municijal institutions existed (and which is now the Province of Ontario), the shop and tavern licenses were issued on the certificates granted under the authority of by-laws passeil by the municipalities, or in cities by the Police Commis- sioners, and the moneys received therefor, except tli^ amount payable to the Provincial Government by way of duty, belonged to the corporation of the municipality in which they were issued. The revenue from auction- eers' licenses was ajiplicable to local ol)jects. There were issued under municipal authority a great number of other licenses, including auctioneer, which were spe- cially named and referred to in the Municipal Institution- Act, applicable to Upper Canada, then in force, to nanii !l!iH: SUPREME COURT OF CANADA. 435 l^iipil which minutely would have been pursuing a course aot 1877-8 desirable or convenient to adopt in an Act of Parliament skverw of the I'haracter of the one under consideration, but very -pj^p quej.j,.. proper in a statute establishing municipal institutionB Bi.,i,a^c. j. aud defining their powers. ■ Mr. Justice Wilson, in his very elaborate judgnien't in llcilina V. 'I'ai/lor (1), refers to the class of licenses which seem to have " a proper connection with and affinity to those licenses which are commonly mentioned and found aion'T with shop, saloon, tavern and auctioneer licenses," and then mentions licenses on billiard tables, victualling houses, ordinaries, lionises where fruit, etc., is sold, hawkers, pedlars, transient traders, livery stables, intel- hgeiiee offices, etc. In some of tb- Tt-^vinces a portion of the moneys from ^hop, saloon ai: ' tavern licenses (and perhaps also auc- fioneers' licenses) formed part of the Provincial revenue. The mentioning of these by name shews that the power to legislate as to them was intended to be given to the Local Legislatures, and thus to interfere with what would otherwise have been the exclusive right of the J)ominion Parliament to legislate on the subject. These were matters in which the municiijalities were peculiarly in- terested, and as to whicli the local authorities would be much more likely to work out the law in a satisfactory manner. In fact, as to the "other licenses" the Do- minion Parliament would be meddling with parish busi- ness if they undertook to legislate about them. We can, therefore, see very good reasons why these licenses as to local and municipal matters should be under the control of the Local Legislatures, and ecjually good reasons why, as regards licenses for such matters as would be likely to affect trade and commerce and the revenue derivable from the excise and customs, these latter affecting great i \ (1) M U. C. y. B. 183. rr ^r^ 1877-8 Sjcvkrn V. The Qt'KEN. RichRrds, C'.J. 1 i I 436 SUPREME COURT OF CANADA. and paramount interests, no express pc ver was given to the Local Legislatures. It seems to me, in naming " shop, saloon and auc- tioneer " licenses, the intention was to shew that, as these licenses might possibly be considered applying to objects from which the Dominion revenue was likely to be de- rived, though really matters of local concernment, it would be better to name them and leave the other unimportant licenses to be covered by the words "and other licenses." If it had been intended to allow the Local Legislatures to tax manufa3tures, and particularly the manufactures of malt and alcoholic liquors, from which so large a part of the public revenues had been, and was likely to be, raised, it would have been mentioned, and mentioned in other terms than " and other licenses." The Province of Canada, before Confederation, jjeinrf the largest territorially, having a greater population and raising a larger revenue than either of the other Prov- inces, and being formed by the union of two Provinces having dififerent laws, and to some extent different in terests, would naturally attract attention as the portion of the country where some of the objects of Confedera- tion had been practically worked out. The legislation which had prevailed there would naturally be referred to, and would probably have its effect in moulding; the measure which was to affect the destinies of so important a member of the new Confederacy, and which Avas to be worked out there in common with the otlier Provinces. I think we may, without violating any of the rules for construing statutes, look to the legislation which pre- vailed in any or all of the Provinces, in order to enable \\a to be put in the position of those who framed the laws, and give assistance in interpreting the words used and the object to which they were directed. . .iki. ''^ SUPREME COURT OF CANADA. 437 Xow, in considering the meaning to be attached to the 1877-8 words " shop licenses " (I am not aware that they were Skvebn used as appHcable to licenses in any other of the Prov- the Qukem. inces), we find, on referring to the Municipal Institutions RichaTdTc. j. Act of Upper Canada then in force, 29 and 30 Vict. cap. 51, " shop licenses " are said to be licenses for the retail spirituous, fermented or other manufactured liquors, in quantities not less than one quart in shops, stores, or places other than inns, ale-houses or places of public entertainment. " Tavern licenses " is a term of more general use, and probably had substantially the same meaning throughout all the Provinces, and that class of license is referred to in the same statute and section as licenses for the retail of the same description of liquors to be drunk in an inn, ale-bouse, beer-house, or any other hoube of public entertainment in which the same is sold. The anomaly of allowing the Local Legislatures to compel a manufacturer to take out a license from the Local Government to sell an article which has already paid a heavy excise duty tc the Dominion Government, and after he has paid for and obtained a license from the Dominion Government to do the very same thing, is obvious to every one. It is not doubted that the Dominion Legislature had a right to lay on this excise tax and to grant this license, and the Act of the Local Legislature forbids and punishes the brewer for doing that which the Dominion statute permits and allows. Here sm-ely is what seems a direct contiict and interfer- ence with the Act of the Dominion Legislature, and such a contlict as the framers of the B. N. A. Act never con- templated or intended. i should be very much surprised to learn that any gentleman concerned in preparing or revising the B. N. A. Act ever supposed that under the term " and other i :v • i;^!. w TT^^ 438 SUPREME COURT OF CANADA. 1877-8 Severn r. Thk Quken. Richards, C. J. licenses " it was intended to confer on the Local Lej^isla- tiires the power of interfering with every statute passed by tlie Dominion Parliament for regulating trade and commerce, or for raising money under customs and excise laws. If it be decided that the words used confer the power in the broad sense contended for, there c"n hardly be a,n occupation or a business carried on wliicl) may not need a license from the Local Legislature, and if they have the right to impose that kind of taxation, why should they be restricted from doing so *? I have already intimated that the largest portion of the revenues of Canada will probably be derived from duties raised under customs and excise laws, and that the power of direct taxation will seldom be resorted to, but that it was undoubtedly necessary, to guard af^jainst all possible contingencies as to a deficient revenue, to give to the Dominion Parliament the power of direct taxation. It may be urged that in this way a conniVt may arise between the two authorities. When a tax is directly imposed, the power imposing it authorizes its own officers to collect it ; but when the contiict arist> from a license, the party who is required to take out the license may or may not do so as he pleases, and t^o may ceastj to carry on the business, and in that way deprive the Government of the revenue it would otherwise have received. I do not think it necessary for the elucidation of my views to reiterate the arguments contained in the very elaborate judgment of Mr. Justice Wilson, in the case of Re(jhia v. Taylor. That judgment was prepared when I was a member of that court, after a most careful con- sideration and consultation with all the judges of the court. The fact that that judgment was reversed in the Court of Appeal of Ontario, and that so many of my learned SUPREME COURT OF CANADA. 439 brothers iu this court dissent from the views there ex- 1877-8 pressed, of course naturally creates in my mind some skvkrn 'listnist as to the correctness of my own conclusions. theQukkn. It may be that I do not take a sufficiently technical view juchnii^ c. j. of the matter, that 1 look too x'.uch to the surrounding circumstances and the legislation which I consider ap- plicable to the subject, and that my mind is too much iulluenced by those circumstances. But I consider the question to be decided is of the very greatest importance to the well working of the system of government under which we now live. I consider the power now claimed to interfere with the paramount authority of the J)o- minion Parliament, in matters of trade and commerco and indirect taxation, so pregnant with evil, and so con- trary to what appears to me to be the manifest intention of the framers of the B. N. A. Act, that J cannot come to the conclusion that it is conferred by the iaiiguage cited as giving that power. By the interpretation I give to the words, limiting them to the " other licenses " which are of a local and municipal character, and giving full force to the Mords " shop, saloon, tavern and auctioneer licenses," I think I carry out the intention of the B. N. A. Act, and make all the powers harmonize — those of the Dominion Par- liament to regulate trade and commerce and to exercise the power of indirect taxation, except the shop, tavern, saloon and auctioneer licenses, and those of a purely local and municipal character ; and the Local Legisla- ture has the power so excepted out of the exclusive powers of the Dominion Parliament, together witii the right of direct taxation. It is suggested that as, under section 90 of the statute, the Governor-General may disallow any Act of a Local Legislature likely to cause a conflict with statutes of the Dominion Parliament, any apprehended difficulty or v.,tJ'i/'J 440 SUPRKME COURT OF CANADA. 1877-8 Sbvkrn v. The Qukkn. HJchards, C. J. ii ii 1 ; i! ^ ■ i ] I i ii ! 1 i - \ : iiii. ■I niTsa inconvenience might be avoided by the exercise of that power. Under our system of government, the disallowing of statutes passed by a Local Legislature after due delibeiu. tion, asserting a right to exercise powers which tbov claim to possess under the B. N. A. Act, will always be considered a harsh exercise of power, unless in cases of great and manifest necessity, or where the x\ct is so clearly beyond the powers of the Local Legislature that the propriety of interfering would at once be recognised. My views may be briefly summed up thus : I consider, under the B. N. A. Act, the power to regu- late trade and commerce rests exclusively with the Do- minion Parliament, as also the right to raise money l;v the mode of indirect taxation, except so far as the same may be expressly given to the Local Legislatures. Making it necessary to take out and pay for a license to sell, by wholesale or retail, spirituous, fermented or other manufactured liquors, is raising money by the indirect mode of taxation. I think all the authority given to the Local Legislatures to exercise the power of raising money by the indirect mode of taxation is contained in sec. 92 of the B. N. A. Act, which gives power to legislate on the subject of " 8. Municipal institutions in the Province. " 9. Shop, saloon, tavern, auctioneer and other licenses in order to the raising of a revenue for Provincial, local or municipal purposes." Looking at the state of things existing in the Provinces at the time of the passing of the B. N. A. Act, and the legislation then in force in the different Provinces on the subject, and the general scope and object of Con- federation then about to take place, I think it was not intended by the words " other licenses " to enlarge the powers referred tc beyond shop, saloon and tavern licenses SUPREME COURT OF «■ ANADA. 441 *l in the direction of licenses to affect the general purposes 1877-8 of trade and commerce and the levyinjj; of indirect taxes, sbvkrn but rather to limit them to the licenses which might he 'r„u qV-^kn. required for ohjects which were merely municipal or ^i^i^;;;^ c. j. local in their character. If the power can bo properly exercised by the Local Lc'i'islatures to raise money by this indirect mode of taxation, I cannot doubt it will be largely exercised, and iirobably without reference to the effect it may have on the means which the Dominion Parliament may resort to for the pur^wse of raising a revenue. It is a signifi- cant fact that since the passing of the Act requiring manufacturers of spirituous, malt, or other manufactured liquors to take out a license to sell by wholesale, the Le^'islature of Ontario has increased the sum payable for such licenses from fifty dollars to one hundred and fifty dollars. I think the appeal should be allowed with costs, and judgment in the court below entered for the defendant on the demurrer to the information, with costs. , . 1. j j g a « V m PiITCHIK, J. : — The only question raised in this case is : Has the Legislature of Ontario authority to raise a revenue from lirewers by requiring them to take out licenses to enable them to carry on their business and dispose of their beer within the Province of Ontario ? This I should feel no difficulty in answering in the negative but for sub-section 9 of sec. 92 of the B. N. A. Act, 18G7. Xo doubt this is an indirect tax, and Local Legislatures are. by the B. N. A. Act, confined in their power of raising money to direct taxation within the Province, in order to the raising of a revenue for Provincial purposes, except so far as their power is extended by sec ion 92, ri r 1877-8 Sevkkn ThK QtKKN. Hitchie, J. !l!'r! i ( ' ( i ( 442 SUPUKMK COUUT OF CANADA. which authorizes the Legislature in each Province ex- chisively to make laws in relation to matters comiiiir within the classes of suhjects next thereinafter eiuinier- ated, of which sub-section 1) specifies : " Shoji, saloon, tavern, auctioneer, and other licenst-s in order to the raising; of a revenue for Provincial, locul or municipal purposes." This brings up the question on which, I humbly think, this case turns, viz., what licenses did the Legislature intend to cover by the words " and other licenses ? " Had the licenses specified in this section been ejusdem (irnni.^: had they been confined to those which, throughout tlit Dominion, previously to Confederation, had been granttd only by municipal authorities ; and had the revenue authorized to be raised been for municipal pur})oses alone, I should have thought there was much force in the contention that the words "and other licenses" should be read in a restricted sense. We are not, in my opinion, to look to the state of the law at the time of Confederation in the adjoining Republic, or the diliiculties there expe- rienced, as affording any guide to the construction of the B. N. A. Act ; nor, with all respect for the Province of Ontario, do 1 think the Act should be read by the light of an Ontario candle alone — that is, by the state of the law at the time of Confederation in that Province, with- out reference to what the law was in other parts of the Dominion. If the law at the time of Confederation is to be looked at as affording a key to the construction of the Statute, then the state of the law throughout the Dominion must, I think, be looked at, and not that of any individual Province, as I think it clear that the statute was to have a uniform construction throughout the whole Dominion, and the powers of all the Local LegisHliures were to be alike. But, as the ease stands,! can see no reason why the golden rule, as it has been SUrilEMK COURT OF CANADA. 448 often called, by which judges are to he guided in the con- struction of Acts of Parliament, should he departed from, viz. to read the words of an Act of Parliament in their natural, ordinary and grammatical sense, giving them a lucftning to their full extent and capacity, there being nothing to be discovered on the face of the statute to shew that they were not intended to bear that construc- tion, nor anything in the Act inconsistent with the declared intention of the Legislature. [ cannot think it was intended to confine the powers of the Local Legislature, for the raising of a revenue for Provincial purposes, to licenses of a purely municipal character, granted, most frequently, rather with a view to police regulations than for purposes of revenue, and which, when granted for the latter object, could hardly be supposed to be more than adequate for local and municipal purposes. I think the power given under sul)- scction 9 should be construed as intended to furnish the Local Legislature with the means of raising a substantial revenue for Provincial purposes from all such licenses as at the time of Confederation were granted in the now Dominion, either by Provincial or municipal authority. I have said before, the licenses named are not cjusdcm yucris, for certainly auctioneer licenses are not ejiisdcni (imeris with tavern I' enses, nor always granted by the same authority ; for in New Brunswick, while tavern licenses were granted by the municipal authority, auctioneer licenses were granted by the Lieutenant- Governor. And so with respect to distillers, an annual license had to be obtained from the Provincial Treasurer ; so also formerly with respect to hawkers, pedlars and petty chapmen, a Provincial duty was imposed, and they were required to take a license from the Treasurer of the Province (1) ; and again, in New Brunswick, licenses 1877-8 Skvkkn r, Thk C^ kkn. Kitcliio, J. ,1' I i (1) See 9 and 10 Geo. IV. c. 27. ^;^. ^ IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1 2.5 |l-25 III u 1 1.6 m ^ /a ^> .!>' Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, NY. 14580 (716) 873'4S03 ^ ^^% A 444 SUPREME COURT OF CANADA. '!! |.'> '. 1877-8 i'i* I i iiM ! i ■il.H.:' IMii lilllili'':! 1 1 I i:' ' ', Severn t;. Thb Qukkn. other than those of a police or municipal character were granted by municipal authority as licenses for the sale of liquors by wholesale, no person beinj,' allowed to Ritchie, J. sell any liquor by wholesale without license, which liquors the statute declared inter alia to be : " Ale, porter, strong beer, or any other fermented rr intoxicating liquor." From this brewers were not exempt, there being no exception in their favour. And by the G Vict. c. 35, it was enacted : " Sec. 3. That it shall and may be lawful for tli.? mayor of the said city (St. John), and he is herein authorized, to license persons being natural-born British subjects, or such as shall become naturalized or be made denizens, to use any art, trade, mj'stery or occupation, or carry on any business in merchandise or otherwise, within the said city, on paying yearly such sum, not exceed^'ng five pounds, nor less than five shillings, to be fix 3d and determined by an ordinance of the corporation, for the use of the mayor, aldermen and commonalty of the said city of St. John, together with the fees of otfiee, and be subject also to the payment of all other charges, taxes, rates or assessments as anv freeman or other inhabitant of the said city may, by law, be liable to or chargeable with. " Sec. 4. And that aliens, the subjects of any other country at peace with Great Britain, may be licensul by the mayor of the said city, to use any art. trade. mystery or occupation, or to carry on any business in merchandise or otherwise, within the said city, on payins annually, for the use of the mayor, aldermen and com monalty of the said city, a sum not exceeding twenty five pounds, nor less than five pounds, together with fee; of office to be regulated by an ordinance of the corpora- tion, and be subject also to the payment of all other .. •iiji^ ir fermented or SUPREME COURT OF CANADA. 445 charges, taxes, rates or assessments as any freeman or miv other inhabitant of the said city may, by law, be liable to or chargeable with." Therefore, I think the rule noacitur a sociis cannot apply in this case. It is said this construction conflicts with the power of the Dominion Government to regulate trade and com- merce, and the raising of money by any mode or system of taxation. All I can say in answer to that is, that so fiir, aud so far only, as the raising of a revenue for Pro- vincial, municipal and local purposes is concerned, the B. X. A. Act, in my opinion, gives to the Local Legisla- tures not an inconsistent but a concurrent power of taxation, and I fail to see any necessary conflict ; certainly, no other or greater than would necessarily arise from the exercise of the power of direct taxation and the granting of shop and auctioneer licenses specially vested in the Local Legislatures. It cannot be doubted, I apprehend, that both the Local Legislatures aud I'ominion Parliament may raise a revenue by direct taxa- tion, and, if so, why may not both raise a revenue by means of licenses ? There need be no more conflict in the one case than in the other. The granting of shop and auctioneer licenses necessarily interferes with trade iind commerce — the former with retail trade, the latter with both wholesale and retail trade ; for, in large busi- ness centres, auctioneers' sales on a wholesale scale are of daily occurrence. Should at any time the burden imposed by the Local Legislature, under this power, in fact conflict injuriously ^\ith the Dominion power to regulate trade and com- merce, or with the Dominion power to raise money by any mode or system of taxation, the power vested in the Governor-General, of disallowing any such legislation, practically affords the means by which serious difficulty 1877-8 Severn V. The Qdesn. Ritchie, J. S; ' . . 11 Ill 1'llili'i. 1877-8 Sevrrx V. ThK QlKKN. liitcbie, J. ! Hii' ri ■' ■ '^ 1 J ' 446 SUPREME COUUT OF CANADA. may be prevented. But I do not think we have anv right to suppose for a moment that the Local Legisla- tures would legislate save for the legitimate purpose of raising a revenue, and not so as to interfere unnecessarilv or injuriously with the legislation of the Dominion Parliament, still less so as to destroy the very business from which the revenue is to be derived. I think the construction I have indicated of the word^ " and otlier licenses " is not only in accordance with tli- literal interpretation of the language, but is consistent with the policy and purview of the statute, which, as I said before, in my opinion, was to give to the Local Legislatures the rights and power, in addition to direct taxation, to raise a substantial revenue, for Provinciu! as well as for municipal purposes, by mear "> of licenst« such as were and might have been granted at the time of Confederation by the several Provincial Government^ and municipal authorities, and is not confined to license which are of a pu.ely municipal character, and froiii which I do not think a brewer is any more exempt tliai a shopkeeper or auctioneer. He could not sell by whok sale in New Brunswick at the time of Confederatio! without a license, and I do not think he can do so now in Ontario. It may be right for me to say that it is only under tb words "and other licenses," and solely in order to tlu raising of a revenue for the purpose named in sub-sectioi; 9, that, in my opinion, the Local Legislatures have tb- right of imposing this burden or tax on brewers. Strong, J. : — I am of opinion that the judgment of the Court below ought to be aflfirmed. As this Court is now, for the first time, dealing vritli a question involving the construction of that provision oi ■ the Court belo^ SUPREME COIRT OF CAN'ADA. 447 the B. N- A. Act which prescribes the powers of the Prov- incial Legislatures, I do not consider it out of place to state a general principle which, in my opinion, should he applied in determining questions relating to the con- stitutional validity of Provincial statutes. It is, I con- sider, our duty to make every possible presumption in fiivour of such legislative acts, and to endeavour to discover a construction of the B. N. A. Act which will (liable us to attribute an impeached statute to a due txercise of constitutional authority, before taking upon ourselves to declare that, in assuming to pass it, the Provincial Legislature usurped powers which did not lefjally belong to it ; and in doing this, we are to bear in mind "that it does not belong to courts of justice to interpolate constitutional restrictions; their duty beiv" to apply the law, not to make it." It must, therefore, before we can determine that the Legislature of the Province of Ontario have exceeded their powers in passing this Act, be conclusively shewn that it cannot be classed under any of the subjects of legislation enumerated in section 92 of the B. N. A. Act, which is to be read as an exception to the preceding section. The provision contained in the 26th section of the Ontario Act, 37 Vict. c. 32, does not require all brewers to obtain licenses to enable them to sell the beer manu- factured by them ; but the restriction against selling without license is confined to the sale by wholesale of beer sold for consumption within the Province. I cannot well see with what object the distinction was made between beer to be consumed in and that to be consumed without the Province, unless it was either upon the assumption that the right exclusively conferred upon the Parliament of the Dominion to regulate trade and com- merce did not extend to the internal trade of the Prov- 1S77-H .Skvern r, Thk (}vkks. strong, J ' ( r I It 'I ! ):i i' I i 1 ! i Ij ■ 1 1877-8 Skvern V. Thk Queen. Strong, J. lilii.M.i i'il i 448 SUPREME COURT OF CANADA. I :■:.!■ ":!' 'f'l\' inces ; or upon the supposition that the law would be authorized by the right to legislate in exercise of what was designated in the argument of this ease as the police power, which, it was contended, the Provinces possess. Neither of these grounds constituted valid reasons for making this discrimination. That the regulation of trade and commerce in the Provinces, domestic and internal, as well as foreign and external, is, by the B. N. A. Act, exclusively conferred upon the Parliament of the Dominion, calls for no demonstration, for the language of the Act is explicit. With reference to the police power, I am of opinion also, for a reason which I will state hereafter, that the distinction could have no legal effect. I regard the Act, therefore, as one the validity of which is to be tested precisely in the same manner as if it had required all persons carrying on the trade of brewing in the Province of Ontario to qualify themselves by taking out licenses. It was argued for the Crown, and particularly pressed by one of the learned counsel, Mr. Crooks, that the fee payable for this license was a direct tax, or in the nature of a direct tax, and so authorized by section 92, sub- section 9. I do not think this argument well founded. It might not be easy to specify a priori what is meant by a diiect tax under that sub-section. One species of tax which would be a direct tax suggests itself at once — a capita- tion tax ; but it is not material to pursue the enquiry, as it is evident that, accepting the meaning given to the term ** indirect tax " by political economists, a tax ou manufactures by means of a license is within the defi- nition, since the payment of it ultimately falls upon the consumer. Licenses are always classed by economists with excise taxes. The authorities referred to in the judg- SUPREME COURT OF CANADA. 441, ment of the late Chief Justice of the Court of Appeal in p^eqina v. Tar/lor seem conclusive as to this. It was also contended by counsel for the Respondent, that under the words " Municipal Institutions in the Prov- ince " which constitute sub-section 9 of sec. 92, or under Bub-section 16 of the same section, which gives legisla- tive power in " all matters of a merely local or private nature in the Province, " the Provincial Legislatures pos- sess authority to legislate in exercise of what American authorities have conveniently termed the "Police power" —meaning a power to legislate respecting ferries, mar- kets, fares to be charged for vehicles let for hire, the regulation of the retail sale of spirits and liquors, and on a. number of other cognate but indefinite subjects, which, in all countries where the English municipal system, or anything resembling it, prevails, have been generally regarded and dealt with as subjects of municipal regula- tion. (1) Without expressing any opinion as to the soundness of this argument, I am of opinion, that, even if it was entitled to prevail, it could not warrant the imposition of a license tax upon the manufacture or wholesale sale of beer any more than it would authorize a similar tax upon any other manufacture or commerce by wholesale. I think, however, in ascribing the power of the Legis- lature to pass this statute to sub-section 9 of section 92, the learned counsel for the Crown put their case upon the true ground. That provision is in the following words : " Shop, saloon, tavern, auctioneer and other licenses, in order to the raising of a revenue for Provincial, local, or municipal purposes. " In li&iina v. Taylor (2), the Court of Appeal of Ontario, (1) See Ifunn v. Illinois, 4 Otto, 251 et seq. ; Potter's Dwarris, p. 462 ; Dillon on Municipal Corporations, sec. 93, (2) 36 U. C. Q. B. 218. 29 1877-8 .Skvkrn V. Thk Qukkn. Strons, J. •■■■ I ualifj i ill f M 1 !, i !, 1;^ ■M . '■ •<• i' f I ■ ) ; Ml ;■ ■ I ■ 1877-8 Skvkun V. Thk Ql'ken. Stroug, J. 450 SUPREME COURT OF CANADA. adjudicating upon the question now before this Court, determined that the words " other licenses, " as used in this section, gave power to impose licenses upon persons carrying on the trade of brewers. This conclusion was reached by the consideration that all powers conferred in section 92 were to be read and regarded as exceptions to those enumerated in section 91, and by that section given to Parliament ; that section 92 was, therefore, to be construed as if it had been con- tained in an Act of the Imperial Parliament, separate and apart from section 91, and is, therefore, to be read independently of that section. The rule applied in tin construction of statutes, which restrains general words following specific words to subjects vjmilcm (lencria witli those specifically mentioned, was thought not to be appli- cable, inasmuch as the specific words were not ejmdm generis with each other, and it was, therefore, impossible to say with which class of the specific classes mentioned the general words should be associated ; in short, it was held to be impossible to apply to this clause the well- known maxim of interpretation noscitur a sociis. The words "other licenses" were therefore held to be suscep- tible of only one construction, that which attributed to them the same meaning as if the expression in the Act had been" any licenses," or "all licenses," standiuj: alone unconnected with any specific words. I was a party to the judgment in Regina v, Taylor, and a careful consideration since has not only not led me to discover any error in it, but has brought to my notice authorities not quoted to the Court of Appeal, as well as some additional reasons for adhering to the decision. In Regina v. Payne (1) this principle of construction was applied. A recent text writer (2) gives a succinct statement of this case and of the principle involved in it, (1) L. R. 1 0. C. 27. (2) Maxwell on Statutes, p. 303. SUPREME COURT OF CANADA. 451 1877-8 Sbvirn Stronfi, J which I adopt, and which is contained in the following quotation : " Further, the principle in question applies only where ^^^ [^^^ the spet'itit words are all of the same nature. When they arc of a different nature, the meaning of the general word remains unaffected by its connection with them. Thus, where an Act made it penal to convey to a prisoner, in order to facilitate his escape, ' any mask, dress or dis- guise, or any letter, or any other article or thing,' it was held that the last terms were to be understood in their primary and wide meaning, and as including any article or thing whatsoever which could in any manner facilitate the escape of a prisoner, such as a crowbar. Here, the several particular words 'disguise' and 'letter' exhausted whole genera, and the last general words must be understood, therefore, as referring to other genera." (1) It is scarcely possible to suppose an authority more exactly in point than that just cited ; the only difference in principle between the two cases being, that, in the instance quoted, this rule of construction was applied in a criminal case and against the prisoner ; here, it was applied by the Court of Appeal in support of a presump- tion which the highest authorities, and which reason, if there was no authority, tell us ought always to be made in favour of the constitutional validity of a legislative act. But without any reference to authority, the impossi- bility of saying by which of the particular expressions, "shop, saloon, tavern or auctioneer," the general words were to be restrained, ought, I venture to say, with defer- ence to those who differ from me, to force the broad con- KN. (1) B. V. Edmundion, 2 E. & E. 77 ; Young v. Grattridge, L. R. 4 Q. B. 166 ; Bams V. Jenm, 9 C. B., N. S. 152 Pearion v. Hull Local Board of Health, 3 H. & C. 921. %i 'a ■ I 1 i ( I I i hi J ' s ■ M. 11 H ;1 I iri Hi t iiil: I . 1 w 1877-8 Skvkkn r. The l^iKKN. Strong. J. 452 SUPREME COUUT OF CANADA. struction of the words "other HcenseH," upon a court called upon to construe this clause, as a necessary and unavoidable interpretation (1). Then, the attribution of this meaning to the claiiso under consideration does not lead to any harsh or uniea- Bonable consequences. The result of it is, that the people of the Provinces have the power, through their represen- tatives, to tax themselves for Provincial, local or munici- pal purposes, by means of licenses, to any extent they may choose, which may, perhaps, not be considered to l)e an extravagant power when it is remembered that the license tax is the only source of Provincial revenue other than the public lands, the subsidy from the General Government, and money raised by direct tax- ation, which, however ample in this particular Province, and at the present time, may not, in other Provinces, or in this at some future time, be productive of sutlicieiit income to meet the expenditure required for carrying on the Provincial Government. The imposition of licenses authorized by this sub- section 9, is, it will be observed, confined to licenses for the purposes of revenue, and it is not to be assumed that the Provincial Legislatures will abuse the power, or exer- cise it in such a way as to destroy any trade or occuiia- tion. Should it appear explicitly on the face of auy legislative act that a license tax was imposed with such an object, it would not be a tax authorized by this section, and it might be liable to be judicially pronounced extrn vires. And however carefully the purpose or object of such an enactment might be veiled, the foresight of those who framed our constitutional Act led them to provide a remedy in the 90th section of the Act, by vesting the power of disallowance of Provincial Acts in the executive (1) See Cadett v. Earle, 5 Ch. D. 710, per Sir George Jessel, Master of the Rolls, decided since this judgment was delivered. SUPKEME COURT OF CANADA. 453 1877-« Sbvibn power of the Dominion, the Governor-General in Council. There in, therefore, no room for tho application of any ar"unuut '//' ineonnnirnti suflicient to neutralize the rule -j.,,^ Qp,,^. of verbal construction alrea)■ m i 1 *| 1 1 n 1 j- a 1 i . '» w- h ' m;' U mi m Wss I f I ^•' m. i ! 1877-8 Sbvbbn V. The Queen. Strong, J. !i I 1::: IliilH^ hi, ; I III n I'.i a ! I . I il' 456 SUPREME COURT OF CANADA. would, in my point of view, be extra-judicial, and there- fore improper. My conclusion is, that it was within the competence of the Legislature of Ontario to pass the statute in ques- tion, and that this appeal should therefore be dismissed with costs. Taschereau, J. : — The only question submitted for our decision U, whether the Legislature of Ontario had the power to pass the statute 37 Victoria, chapter 32, under which the Appellant was condemned, requiring brewers to take out a license for selling fermented or malt liquor by whole- sale. I must confess, that for some time I had stron" doubts against the legality of the pretensions of the defendant Severn, amounting very nearly to convictiou ; but after long and mature deliberation I came to the conclusion that the sections of that Act applicable to the defendant were ultra vires. On reference to section 92 of the B. N. A. Act, 18G7, we find that the subjects of exclusive Provincial legis- lation are determined in somewhat concise language; but, nevertheless, with sufficient explicitness to be well ascertained after a careful examination of the whole Act. On reference to sub-section 2 of section 92, we timi that direct taxation only is one of the privileges of Local Legislatures, in order to raise a revenue for Provincial purposes ; and under sub-section 9 of this same section 92, it is enunciated that their powers shall extend to make laws about " Shop, saloon, tavern, auctioneer, and other licenses, in order to the raising of a revenue for Provincial, local or municipal purposes ; " but it is evident, that in adjudicating on the extent of SUPREME COURT OF CANADA. 457 sub-section 9 of section 92, we must read it in connection 1877-8 with the remainder of the Act itself, and more particu- sbvern larly with sub-sections 2 and 29 of section 91, which theQubrn. indicates the powers of the Parliament of Canada. Taachereau, j. Under sub-section 2 of section 91, the Parliament has the exclusive regulation of trade and commerce; and under sub-section 29 of section 91, it is declared that " Any matter coming within any of the classes of sub- jects enumerated in this section shall not be deemed to come within the class of matters of a local or private nature comprised in the enumeration of the classes of subjects by this Act assigned exclusively to the Legis- latures of the Provinces." From section 122 of the B. N. A. Act we can safely infer that the Parliament of Canada has exclusive juris- diction as to excise. Coming to sub-section 2 of section 92 of the B. N. A. Act, I say that it is out of the question for the Crown to rest its case on this sub-section; for, according to it, the only tax the Government of Ontario could raise would be a direct one, and not an indirect one, such as the one complained of. The authorities quoted at the Bar warrant this interpretation of the nature of the tax. " A direct tax is one which is demanded from the very person who it is intended or desired should pay it. Indirect taxes are those which are demanded from one person in the expectation and intention that he shall indemnify himself at the expense of another." (1) Now, from what I have read and heard, I think there is no difficulty in assuming that the tax imposed on the brewer selling by wholesale in the present case, is an indirect tax, so that this question should not be further pressed against the defendant Severn. I •41 u ■4 on the extent of (1) Mill's Principles of Political Economy, Vol. II., Ed. 1871, p. 415. Mi ;' vJii * s i i .A- 'i vT'). .■,!'*S >r is \ : ;?l ;M i ' : 1 ■ ' i , 4 , ili; ' i.' r I'm j ' i < ■ i: . ! 458 SUPREME COURT OF CANADA. ' ii!' ill ! ■ : i l) - I > i i! r -. '. 1 n : f • ■ ! ■ 1 1 i i i B i ! ! i jr j : 1 ti ' |i- a 1877-8 Now, can the Crown justify the Act in question in this Severn cause under sub-section 9 of section 92 of the B. X. a. The Queen, -^^t, which grants to Piovincial Legislatures in the Tasch^au, J. Dominion of Canada the right of making laws about shop, saloon, tavern, auctioneer and other licenses? I think not. This power would evidently clash with the Dominion power of regulating trade and commerce, and of imposing duties thereon, and exacting licenses. If this right evsted, both Parliament and Provincial Legis- latures would possess an equal right to impose a dutv and exact licenses. But what is the meaning of the words " and other licenses," immediately following the words "shop, saloon, tavern, auctioneer?" I answer, that taken in connection with all the surroundirlg circumstances, and with the various sections of the B. N. A. Act, they certainly cannot mean anything which could be inter- preted as granting such powers as those claimed by the Ontario Legislature. They must not be so inter- preted as to clash with the general spirit of that last mentioned Act and its special enactments. In a word, they cannot be so interpreted as to give to the Ontario Legislature a right to affect the general control of the Dominion over trade, commerce and excise, and its sovereignty over the country, by diminishing some of its principal sources of revenue. If these words mean what is contended for by the prosecution, sub-section 29 of section 91 of the B. N. A. Act is nonsensical, and should be struck out of the statute. But these words may and must mean all matters and regulations of Police and the government of those saloons, taverns, auctioneers, etc., etc. ; and if these words cannot bear this last interpre- tation, the section has no meaning, or is ultra vires. I therefore say, that the defendant Severn could not be legally convicted under the Act in question, as he has SUPREME COURT OF CANADA. 459 l)een by the judgment appealed from in the present case, and that that judgment should be reversed. [Translated,] , FouRNiER. J. : — The only question to be decided in this case arises on the constitutionality of a law of the Province of Ontario, imposing upon brewers and distillers the obligation of takmg out a license of $50, in order that they may sell their products within the said Province. The question we have therefore to consider is, whether the law in question is, or is not, in direct conflict with the B. N. A. Act, and, more particularly, 1st, with No. 2 of section 91, relating to the " regulation of trade and commerce;" and, 2nd, with section 122, which gives to the Parliament of Canada the control over the custom aud excise laws, and, therefore, beyond the limits of the jurisdiction of the Ontario Legislature. Tbe principal provisions in the B. N. A. Act, which have reference to the present question, are the following : Sec. 91 gives power to the Parliament of Canada " To make laws for the peace, order, and good govern- ment of Canada, in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the Provinces ; and for greater certainty, but not so as to restrict the generality of the foregoing terms of this section, it is hereby declared that (notwithstanding anything in this Act) the exclusive legislative authority of the Parliament of Canada extends to all matters coming within the classes of subjects next hereinafter enumerated:" Amongst others — " '2nd. The regulation of trade and commerce. " 3rd. The raising of money by any mode or system of taxation 1877-8 Severn t'. The QuEBit. Tascbereau, J. M i Mi /I'll: «V it. Yi 1 'i I i ! : It. I ! 1877-8 Sevbbn V. The Qceen. Foumier, J. 460 SUPREME COURT OF CANADA. " And any matter coming within any of the classes of subjects enumerated in this section shall not be deemed to come within the class of matters of a local or private nature comprised in the enumeration of the classes of subjects by this Act assigned exclusively to the Legisla- tures of the Provinces. " Sec. 92. In each Province the Legislature mav exclusively make laws in relation to matters cominf; within the classes of subjects next hereinafter enumer- ated:" Amongst others — "2. Direct taxation within the Province in order to the raising of a revenue for Provincial purposes. " 9. Shop, saloon, tavern, auctioneer and other liceuses in order to the raising of a revenue for Provincial, local, or municipal purposes." " Sec. 95. In each Province the Legislature may make laws in relation to agriculture in the Province, and to immigration into the Province, and it is hereby declared that the Parliament of Canada may from time to time make laws in relation to agriculture in all or any of the Provinces, and to immigration into all or any of the Provinces; and any law of the Legislature of a Province relative to agriculture or to immigration shall have effect in and for the Province as long and as far onlv as it is not repugnant to any Act of the Parliament of Canada." "Sec. 122. The custom and excise laws of each Prov- ince shall, subject to the provisions of this Act, continue in force until altered by the Parliament of Canada." Before considering the two points abov.^ mentioned, I think it necessary to review briefly the argument of the learned counsel of Her Majesty, founded on their inter- pretation of the words " and other licenses," in paragraph 9 of section 92. They contend, as it was contended by the Court of Appeal of Ontario, in the case of lieginn v, SUPREME COURT OF CANADA. 461 /'/()/tor, where the same question arose, that the expression made use of is large enough to give jurisdiction to the Lliitario Legislatiure to pass the law in question. >'ow, if these terms are not to have the broad signifi- cation which, at first sight, their general meaning seems to convey, what restrictions should be put on them? What subjects would be susceptible of taxation by the mode of licenses, and what subjects would be exempt from such taxation ? The line of division is no doubt somewhat difiicult to be drawn, in consequence of a vaf'ueness and want of precision in drafting the para- fjraph in which these expressions are to be found; but the Dominion, no more than the Provinces, can increa-.e ita jurisdiction by its own legislation ; and we must therefore, notwithstanding the delicacy of the task, have recourse to a judicial interpretation in order to know the limits of both powers. Is it true, as is contended by the learned counsel of Her Majesty, that, being unable to construe the words "and other licenses" in paragraph 9 according to the ordinary rule that general words following specific words must be taken to mean something of the same kind, (jusdem (jeneris, the power to impose licenses is therefore absolute and unlimited ? They lay down their proposition as follows : "The rule of cjusdem ffeneris is inapplicable here — 1st, in there being no controlling or particular classes to refer to in order to determine the like classes to which the word 'other' might be referred with any definiteness ; and 2ndly, because the latter words enlarge * other licenses' into all such ps the legislative authority may consider necessary to the raising of a revenue." It is true that auctioneer licenses were for a long time regulated by a different law from that which regulated the granting of hcenses for shops, taverns, saloons, etc. 1877-8 Skvkrn V. The Quekn. 1- oumier, J. 'i' 'i' :f i'i 462 SUPREME COURT OP CANADA. ':;! WW I <: 1877-8 Severn ThK CiUKKN. Fournier. J. ( !' But even before Confederation the Legislature of Canada had assimilated them, at least in the Province of Upper Canada, to these other licenses, and had subjected them with the latter, to the .control of the municipalities They had, at least for that Province, become rjuadom fieneris. In Lower Canada the revenue derived from them had ceased to be appropriated for the general u?e of the Government, in order to form part of the nkk- niorial indemnity fund, for the purpose of paying off the dues of the censitaires which the Government had under- taken to pay. Without attaching more importance than is necessary to the application of the rule of ejiisdem fieneris, is it not more logical to suppose that the Imperial Legisla- ture, finding already in some of the laws these licenses treated as of the same Jdnd as other licenses, d a like- wise, and dealt with them as belonging to the one class ; and, therefore, should we not apply in construing this 9th paragraph the rule of ejusdem ffeneris !- Otherwise, we must come to the conclusion that the ixisertion of the word " auctioneer," which, no doubt, was put in to give the Local Government a further source of revenue, would have the effect of giving to the Local Legislature an unlimited power to tax by means of licenses. This cannot have been the intention of the Imperial Parliament. They cannot, by the insertion of that word, have made a provision which would have the effect of destroying the financial system of both the Dominion and the Provinces established by the Constitu- tion. The intention was no doubt that they should have a limited signification in accordance with the distinct powers so carefully allotted to the Federal and Local Governments. Moreover, I am far from admitting that the word " other," coming immediately after an enumeration, can WkiM fcure of Canada vince of Upper ubjected tbem, municipalities, lecome rjmilm I derived from ;he general use irt of the seic- if paying off the lent had under- lan is necessary im (lencris, is it Qperial Legisla- ?s these licenses censes, tl d like- ;o the one class ; construing this is / Otherwise, 16 iasei'tion of oubt, was put ] further source ng to the Local IX by means ot intention of the the insertion of would have the em of both the by the Constitu- they should have vith the distinct deral and Local SUPREME COURT OF CANADA. 40 S 1S77.S always have that broad meaning; on the contrary, I __ am of opinion that it should nearly always be accepted Skvkkn in a restricted sense, and that the cases in which its the g'lKKN. signification is absolute and unlimited are exceptional. i.-„u^r,i. This is the rule as laid down by Chief Justice Erie in the case of Williams v. Goldinp (1), when construing tiie words " other person;" and by Lord Campbell, C. J., in the case of Heed v. Ingham (2), while interpreting the words "other craft." See also the case of East London Water-works Co. v. Ml' End Old Tou-n {Trustees) (3); and the case of The Kiiiijy. The Justices of Surrey (4). Besides, if these words "and other licenses" should not be construed (which I do not admit) according to the above ordinary rule, would it follow that there is not to lie found in the Constitutional Act itself, taking a fieneral view of it, as well as of certain of its provisions, a mode of solving this question conformably to the spu'it of the Act, rather than according to the views of the learned Counsel of Her Majesty ? Fu'st, was it not the clear .intention of the Imperial Parliament to establish two distinct Governments, with special and exclusive powers, in order to avoid all con- liict between the different authorities ? To prove this it is not necessary to refer to the cir- cumstances before the present state of affairs. The clear and precise terms of the Constitutional Act itself are sufficient to shew this. It may be as well, however, to remark that the B, N. A. Act contains in substance hardly anything more than the Quebec resolutions, their object at that time being, most certainly, to constitute two distinct Governments with different and exclusive powers. This is also, in effect, what the new Constitution (1) L. R. 1 C. P. 69. (3) 17 Q. B. 512. (2) 3 E. & B. 889. (4) 2 T. R. pp. 604, 510. > ' 1 MM V 1 i i iii: t ; 1 [ i ;; 1 i ( ; ' II i-! li I ' li I i' 'I Lt IJ: ! r, I : If- 1877-8 Skvkkn The Quken. Fournier, J. 464 SUPREME COURT OF CANADA. provides for, especially by sections 91 and 92, whieli distribute the legislative power to the Dominion and Provincial Legislatures. The 9l8t section gives to the Federal I'arliament the general power of taxation, a sovereignty over all subjects except those specifically mentioned in section 92, as being subjects exclusively belonging to the Local Legis- latures. We find, among the exclusive powers given to the Federal Parliament, the power of rcffuhitiiKj trml' and commerce. This power, being full and complete, cannot be restricted, unless by some specific provision to be found in the B. N. A. Act. For this reason, the relative position of the Provinces toward the Federal Parliament is far different from that of the States towards the United States Congress. Here the power to regulate trade and commerce, without anv distinction as to interior and exterior commerce, belong exclusively to the Dominion Parliament ; whilst, in the United States, Congress has power only to deal with exterior or foreign commerce — commerce between the different States and that with the Indian tribes. The States, not having delegated to Congress the power of regulating interior commerce, still have power to legislate on it as they please. We should not, therefore, look to the numerous decisions rendered on the laws relating to the interior commerce as precedents applicable to the present case, but rather to the decisions given on laws passed by the State Legislatures which happened to come in conflict with the power of Congress to deal with exterior commerce. There is a decision, rendered as early as 1827, which has always been looked upon as being the true construc- tion of that Article of the Constitution of the United States which gives Congress power to regulate exterior >A » lw E >.lw4oMM,.Mr: . ' Jm^. SUPREME COURT OF CANADA. 4G5 commerce, and which is very applicable to the present case. It is that rendered in the case of Brown v. The State of M(^ri/lini(l (1). In order to raise revenue to meet the expenses of the State, the Legislature of Maryland passed a law by which, amongst other things, importers of foreign merchandise enumerated in the law, or such other persons as should sell by wholesale such merchan- dise, were directed to take out a license, for which they were to pay $50, before selling any of the imported foods, subjecting them, in case of neglect or refusal, to forfeit the amount due for the license and to a penalty of $100. Brown, who was an importer residing in the city of Baltimore, refused to pay this tax, and an information was, iu consequence, laid against him before the State Court, which declared the law to be valid, and condemned him to pay the penalty prescribed. This judgment was appealed by means of a writ of error to the Supreme Court, which court, for the reasons ?o ably propounded by the learned Chief Justice Marshall, ilt'clared the law void as coming in conflict with the power of Congress to regulate exterior commerce. The question here naturally arises, what was the extent of that power ? This question was considered at great length in the case of Gibbons v. Ogdcn (2), by Chief Justice Marshall, who answered it as follows : "It is the power to regulate ; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges uu limitations, other than are prescribed in the Consti- tution." Since this is the law in the United States, there is an additional reason why it should be so declared here, (1) 12 Wheaton, 419. 30 (2) 9 Wheaton, 1,196. 1877-8 Sevkkn V. Thk Quekn. Foamier, J. 'Vhii m 4G(; SUPREMK COFRT OF CANADA. 1877-8 Skvkun ThK t^UKKN. Fouruier, J. where our Constitution does not acknowledge, as in thr United States, a division of power as to commerce. The law declared void in the case of Brown v. 77,, State of Maryland, was of the same kind as the one enacted by the Province of Ontario. The only diffoinn, was that that law reached the importer, whilst tlie Ip under consideration here is directed against the manu- facturer. But is there not a perfect analogy between the two parties ? Have not both the importer and the mamifa'. turer the one object, viz., to sell their goods? Both- the first by purchasing in a foreign market, the lattoi by his industry — have filled their stores with good- which they cannot put into commercial circulation until they have paid the duties imposed upon them. The importation of foreign goods, no doubt, is sul)ject to the regulations of trade and commerce, but not more so than manufactured articles which are subject to tlit excise laws. If the Local Government have the right to tax the latter, they have the same right to tax the im- porter, by prohibiting him, as it is contended they have the right to prohibit the manufacturer, from selling hi: merchandise if he has not previously taken out a liceust allowing him to sell. If this contention is well founded, the payment of the custom and excise duties would not be all that the im- porter and the brewer would have to calculate upoi; before offering their goods for sale, for they would al:0 have to pay another duty in the shape of a license fee. It is also contended, that in this case the Federal Government having regulated only the manufacture of the beer, it was in the power of the Local GovernmeDt to regulate its sale. The following answer could be made to this argument, viz. : That if the Federal Government, in the exercise \ clge, as in tbo )iiimerco. Bnticn V. 'I'h u\ as the one only (lifffiino- whilst the lau nst the mauu- etween the two id the manufa'.- [roods ? Both- arket, the lattti [3res with gooiU circulation until , them. douht, is sulijed rce, hut not move .re suhject to tli'.- have the rigbt to [it to tax the im- iteiided theyluivt , from selling hi- aken out a license lie payment of the all that the im- to calculate upon Lr they would al:0 fe of a hcense fee. case the Federal 16 manufacture o! jocal Governmeni to this argument, Int, in the exercise ' SUPRKMK COIHT OF CANADA. 407 of its power, has not deemed it necessary to restrict the ,sile of l>C'er, it was because its intention was to leave it free. The rt<^ulations need not consist only of restric- tions. By imposing those mentioned in 31 Vict. cap. 8, was it not in eflfect enacting that there should be no others? To leave or to declare free a commerce, is it not txercising the power of regulating such commerce just as much as to impose upon it certain restrictions ? To impose upon beer consumed in the Province of Ontario a tax which is not imposed upon beer consumed in the other Provinces, is to decree that there shall be a differ- ence of price in favour of consumers of beer in the other Provinces against consumers in Ontario. It is regulating that commerce in such a way us to give to the first named an unjust preference which the Federal Govern- ment itself could not give without violating the principles upon which assessments are made. It would be stiange, indeed, if the Legislature of Ontario, by assuming this jurisdiction under the pretence of its being a license, could have over this matter more power than has the Federal Government. The power to tax is no doubt necessary to the exist- ence of the Local Governments, but it is limited and proportioned to the extent of their jurisdiction. Fulfil- ling only certain duties of a G(»vernment within certain limits, the power to tax was in consequence divided between the Federal and Local Governments. To the first, whose jurisdiction is larger, belongs the power of raising money by all modes of taxation, whilst Local Governments can only do so by direct taxation (1) and by the issuing of licenses. Moreover, the tax imposed in the shape of a license by the law of Ontario on the sale of beer which has not yet been taken away from the (1) B. N. A. Act, 1867, sec. 92, par. 2. Skvkkm I'. Fouriiior, J. 't ■■'■ u,. ill t ^ i iu^ i 4G8 SUPUKME C'OUUT OF CANADA. it; 1877-8 '— .—"^ Hkvkkn i: Thk (./ikkn. Fouriilcv, J. h I f. ! ft i'l i i!i. !w I ' ' stores of the brewer, is an indirect tax which must k- borne by the consumer (1). This new tax no doubt would have, as had the previous ones, to be added to the original cost of the beer, iu order that it may be paid by the purchaser. With hikh means at their disposal, the Local Governments mifrht control and regulate commerce and impose indirect taxes with as great security as if the power to do so was given to them instead of being specially taken away. Siicli a law comes certainly in conflict with the power of the Federal Government to regulate trade and commerce, and to impose indirect taxes. If it should be admitted that the different Govern- ments have concurrent power to impose taxes on Ibf commodities subject to excise, who could draw the line where each Government would have to stop ? if this power belongs to the Local Government, the exercise of that power must be complete, and be made use of according to the best of their judgment whenever the raising of money would be necessary. Now, in exercis- ing such a power, might it not happen that the taxes imposed would be so high as, practically, to considerably diminish, if not exhaust, this source of revenue '? What would then be the position of the Federal Governmeut? How could it meet its obligations ? Were not the duties of customs and excise left to the Federal Government, from which source it collects the largest part of its revenue, in consequence of having to bear the public debt of the Provinces and the expenses of a General Governmeut? Could we, without violating the Constitutional Act, alter this position ? To declare that both Governments have an equal right to legislate on these sources of revenue would place the Federal Government in the impossibility (1) See McCulloch on Taxation, pp. 1, 147, 242, 321; alao Mill's Princi- ples of Political Economy, Ed. 1872, pp. 495, 496, 605. which must lie SUPREME COUUT OF CANADA. 400 of meeting its oblipiations towards its creditors. By i«77-8 appropriatiiif,' tliis revenue to '^*'.ier purposes, it would skvern in fiict bo diminishing the security on which these THKt'iuEKN. creditors, when the Constitution was adopted, had the Tournier. j. riijlit to count for the repayment of their advances. Le;,'isliitiou which would transfer to the Provincial Legis- latures the control over these sources of revenue could not fail to considerably embarrass the Federal Govern- ment, and at the same time effectively afifect its credit. It must also be remembered, that under our actual political system the Dominion, having taken upon itself the burden of the Provincial debts, the Provinces, when Confedorat a was established, found themselves with a blank sheet on the debit side of their account, whilst there remained to their credit the Crown lands, the Federal subsidy, the power of direct taxation, and lastly, the limitrd power, in my opinion, to raise a revenue by means of licenses. A construction which would, more- over, give them the almost unlimited power of indirect taxation concurrently under the pretext of its being a license, would, no doubt, be the means of promptly and surely creating disorder and finally break up the Consti- tution. As soon as there should be confusion with regard to these sources of revenue, there would remain no more reason for a division of the legislative powers between the Federal and Local Governments. The confusion of the revenues would inevitably result in a fusion of the Governments. It would be the downfall of the present siructure, built with such care. Fortunately, however, such a calamity is not to be feiired, for the Constitution, in my opinion, contains no provision which can have the effect of bringing about such dangerous consequences. The prudence of the Legislature, in giving to each Government special legis- lative powers, has averted such a danger. Each Govern- m 1 i ' ■'1 1 ; pin : I- ,-! IJj •Tti !i I ill 4 ■ 1 ' 1 i ■ I -^ ; I :!? i ' f V ! , ■ : ii i ■ ' 1 ■ J : ! iir I * r.i ! r i i ; f ■ ■ ■ ' i • 1 1 \v ■ t Mi ' ' ' • , > 'i i ■ ■ ■ ' { J. , '■ . 11^0..) ikiikuiM ^BM 1877-8 Skveun V. The Queen. Fournier, J, 470 SUPREME COURT OF CANADA. ment has legislative authority over certain subjects, and it is only over these subjects that each can ei.ercise its powers. With the exception of agriculture and immi- gration, there is no subject-matter over which there can exist concurrent powers of legislation (1) ; and even then, should there be conflict, the authority of the Parliament of Canada is supreme. By the remarks which I have just made on the con- sequences of the adoption of the construction contended for by the Respondent, I do not mean to argue that the exercise, nor even the possibility of abusing this power to tax by license, is a reason why it should not exist, for •w^e can abuse all things. The proper way, no doubt, of solving this question is by referring to the express terms used in the Constitutional Act. But the clauses ah-eadv cited shew clearly to whom belongs this power assumed by the Ontario Legislature. The only reason for making these observations was to shew that the interpretation adopted by the Respondent would create a state of things quite different from that which the Imperial Parliament intended for us when they passed the B. N. A. Act. Nevertheless, I will add in support of my mode of reasoning, a passage from Chief Justice Marshall's opinion in the case of Broun v. TJw State of Marifland (2), and I also contend that in this case we should apply this ordinary rule of construction, that when a law is doubt- ful or ambiguous, it should be interpreted in such a way as to fulfil the intentions of the Legislature, and attain the object for which it was passed. Marshall, C. J., says: "We admit this power to be sacred (the State power to tax its own citizens, or their property within its territory), but cannot admit that it may be used so as to obstruct the free course of a power given to Congress. (1) B. N. A. Act, 1867, sec. 95. (2) 12 Wheaton, 419, 448, SUPREME COURT OF CAXADA. 471 Wheaton, 419, 448. We cannot admit that it may be used so as to obstruct 1877-8 or defeat the power to regulate commerce. It has been skvekn observed that the powers remaining with the States may thk quekn. be so exercised as to come in conflict with those vested Foumiei-, j. in Congress. When this happens, that which is not supreme must yield to that which is supremo. This preat and universal truth is inseparable from the nature of things, and the Constitution has applied it to the often interfering powers of the General and State Govern- ments as a vital principle of perpetual operation. It results necessarily from this principle, that the taxing power of the States must have soLie limits. It cannot reach and restrain the action of the National Govern- ment ^vithin its proper sphere. It cannot reach the administration of justice in the courts of the Union, or the collection of the taxes of the United States, or restrain the operation of any law which Congress may constitutionally pass. It cannot interfere with any regulation of commerce. If the States may tax all persons and property found on their territory, what shall restrain them from taxing goods in their transit through the State from one port to another for the purpose of re- exportation ? The laws of trade authorize this operation, iind general convenience r'^quires it. Or what should restrain a State from taxing any article passing through it from one State to another for purpose of traffic ? or from taxing the transportation of articles passing from the State itself to another State for commercial purposes ? These cases are all within the sovereign power of taxation, but would obviously derange the measm'es of Congress to regulate commerce, and affect materially the purpose for which that power was given. We deem it unnecessary to press this argument further, or to give additional illustrations of it, because the subject was taken up and considered with great attention in McCuUoch v. The State ■A s.S i .1 TTTI liH: It 1 } ill i ill i i i ' ] i s • 1 ; i 1 ■ I 1 ; ■ :■ ; ' ir. 11 Ml i i ;■ 1 j iJ 1 : • f • ! ' 4 . ^ i^l' 1877-8 Severn V. The Queen, Fournier, J. 472 SUPREME COURT OF CANADA. of Maryland (1), the decision in which case is, we think entirely applicable to this." The reasoning of the Supreme Court in that cast under a system of government which left to the States the regulation of the interior commerce, is not onlv applicable to the present question, but should have more weight from the fact that under our system the Federal Government has the exclusive power over commerce. But, secondly, this statute of the Province of Ontario not only comes in conflict with paragraph 2 of section 91, relating to the regulation of trade and commerce, but also with sec. 122 of the B. N. A. Act, giving to the Federal Government the power to regulate all matters of excise. The trade of brewing, here as well as in Eng- land, has always been regulated by the excise la^vs. Before Confederation the same state of things existed in all the Provinces of the Dominion. Under the neu regime this trade is still regulated by the excise laws, which, as we have seen by section 122, already cited, are subject to federal legislation. It is true this section does not, as do section 91 and 92, positively declare that it is an exclusive power, but, as it is given without anv restriction, it can only be possessed by the Federal Gov- ernment. The very fact of this power not being com- prised in the enumeration of exclusive powers given to the Local Governments, takes away from them all juris- diction over this matter. It is for this reason, no doubt, that on the 21st December, 1807, the Parliament of Canada, exercising the power which it had by sec. 1'2'2, abolished all the excise laws of Canada, as well as those or the Provinces of Nova Scotia and New Brunswick, ami regulated, at the same time, by a very complete law, this important trade in its most minute details. Section 3 of 31 Yict. c. 8, declares : (1) 4 Wheaton, 316. Id ilk'.'.u^ ■ 'k. ise is, we think, SUPREME COURT OF CANADA. 473 " From and after the pafssing of this Act, no person, 1877-8 except such as shall have been licensed as herein pro- Sevkkn vided, shall carry on the business or trade of a distiller, the Quekn. or brewer, or maltster, or of a manufacturer of tobacco, Four^r, j. or use any utensil, machinery or apparatus suitable for carrying on any such trade or business subject to excise." Section 26 imposes on the brewer the obligation of taking out a license, the price of which is fixed at $50, in order that he may carry on his trade. He is also subject to a tax of one cent per pound of malt used in the brewery. In addition to this, he is subjected to a severe superintendence in all his operations, of which he "s bound, under pain of heavy penalties, to render a minute account to the Inland Revenue Department. This is certainly a trade, a commerce, over which the Federal Government has fully exercised its exclusive power of regulation. Can it be said after +his, that be- cause this statute only regulates the manufacture of the beer, the Provinces are still at liberty to prevent its sale until a license fee of $50 is paid, as directed by the 23rd section of the Ontario Act '? Should a brewer, after having paid to the Federal Government the duties above mentioned, and after being obliged to submit to numer- ous and inconvenient restrictions, still find himself in the strange position of not being allowed to take his products out of his stores '? The agent of the Local Government would have the right to appear and say to him : The Federal Government can very well allow you to manufacture, but my Government w'ill not allow you to sell unless you purchase from us, by paying a $50 license fee, the right of selling. Would not such a pro- hibition be clearly contrary to the Act of the Federal Parliament authorizing the brewer to manufacture ? Can you give him the right to carry on his trade in virtue of the license fee paid to the Federal Government, I t il l-r |i i ; ■ : 1 , ! 1 I . j ; ; i . . -. ! . . 1 ' : ' I i IN' I I ; ; I Mi: 1 ; 1 1 ' Hili h < i r i . i : 1 i ■ ' • i , ; i i- i 1 1 1 ■ ^ li 1877-8 Sevkus V. Thk Qukkn. Foiirnier, J. 474 SUPREME COURT OF CANADA. without, at the same time, giving him the right to sell the products of his trade ? Do manufacturers manufac- ture for the sole pleasure of accumulating their products in their stores ? Isnot the manufacturer's sole aim to sell his manufactured articles ? and does not the right to manufacture necessarily imply the right to sell ? Here, again, the reasoning of Chief Justice Marshall, on the right to import, in the case already cited (1), is appli- cable : " We think, then, that if the power to authorize a sale exists in Congress, the conclusion that the right to sell is connected with the law permitting importation, as an inseparable incident, is inevitable " The distinction between a tax on the thing imported, and on the person of the importer, can have no influence on this part of the subject. It is too obvious for contro- versy that they interfere equally with the power to regulate commerce." The power to authorize the manufacture of au article must necessarily imply, as does the right to import, the right to sell. I am therefore of opinion, that the law of Ontario in prohibiting the sale of beer, unless the party complies with its exactions, comes in conflict with the 122nd section giving to the Federal Government the power over excise. Now, the tax imposed b^ the Act in question, it i? true, is only $50, but it might as well have been $500. If the Legislature have the right to impose this tax, the power must be plenary, and would be exercised according to their judgment and whenever the necessity of increas- ing the revenue arose. Already, since assuming this jurisdiction, the Legislature has increased the tax from $50 to $150, and if the power exists nothing could pre- vent them from fixing the amount so high as to virtually (1) Brown v. The State of Maryland, 12 Wheaton, 419, 448. SUPREME COURT OF CANADA. 475 1877-8 EBN. render impossible the collection of the excise duties on this article. Severn Moreover, if thiti law relating to brewers and distillers rp„j, q^ is leaal and constitutional, there can be no doubt that a pou^iHel-, j, law could be pas.sed reaching the manufacturer of to- bacco, of coal oil, cf vinegar, in fact of all articles subject to excise. The Local Government could even go further, and under the shape of a license reach the importer in the same manner as the brewer. If there was concurre nt jurisdiction, what would hap- pen when the collector on the part of the Federal Gov- iiument would come to seize for arrears of taxes ? Let us suppose that the collector of the Local Government has anticipated him, and for duties which were owing to his Government had seized and closed the brewery. He is the first on the spot, and, if he exercises a legitimate power belonging to his Government, he has the right to forbid the federal officer to come within the brewery. This latter otticer, however, in virtue of the Dominion statute, has the most plenary powers ; at all times he has access to the brewery. A conflict of authorities would necessarily take place ; which authority should yield ? For my part, not believing in the legal possibility of such a conflict, I need not seek for the means of avoid- ing it. But the learned Counsel of Her Majesty, whose argu- ment, should it prevail, would inevitably bring about this conflict, believe, that with the aid of the right of Veto which belongs to the Federal Government, all inter- ests might be conciliated, and the above inconvenient results avoided. The difficulty, they say, would be easily settled. The Constitution, by giving the right of vetoing Provincial legislation, has prudently given the means, if not to prevent, at least to put a stop to such conflicts of authorities. Such a law would be directly M < i] ft f- I lltlltlH: 1 ^ !ii I i i fi ! i M I I i I I ' 1 i ! 1877-8 Severn V. The Queen. Foiurnier, J. ilii i'.'i i i';' ; = | 1 i i i 1 i [ i if i • ■h^ 476 SUPREME COURT OF CANADA. opposed to the interests of the Federal Government, and tnay would be justified in disallowing it by exercisinc their right of veto. No doubt this extraordinary prerogative exists, and could even be applied to a law over which the Provincial Legislature had complete jurisdiction. But it is pre- cisely on account of its extraordinary and exceptional character that the exercise of this prerogative will ahvavi: be a delicate matter. It will always be very difficult for the Federal Government to substitute its opinion insteail of that of the Legislative Assemblies in regard to matters within their province, without exposing themselves to lo reproached with threatening the independence of the Provinces. What would be the result if the Province chose to re- enact a law which had been disallowed '? The cure might be worse than the disease, and probably grave complica- tions would follow. It cannot, therefore, be argued, that because this right exists we must adopt an interpretation which would lead to the necessity of having recourse to it. Before concluding my remarks, I wish to add a few words with regard to three of the principal points of argument relied on by the learned counsel for Her Ma- jesty in support of the validity of this law. They con- tend they can justify the law, 1st, by the inherent consti- tutional power which the Local liCgislatures, they say, possess to make laws for the general welfare of the peopk- of the Province ; and that, to give effect to their purport, they have the power to prohibit the sale of spirituous liquors and of such other articles as might be considered injurious ; that is to say, that in order to exercise this power, they have jurisdiction over this matter ; '2nd, bv paragraph 13, section 92, relating to property and civil rights in the Province ; 3rd, by paragraph 16 of the same SUPKEME COURT OF CANADA. 477 cause this right hicli "Would lead section, giving them jurisdiction generally over all mat- 1W7-8 ters of a merely local or private nature in the Province. skvkun 111 my above observations on the division of the legis- t^j^, qY-ken. lative powers, I believe I have answered the argument of FournlTr, j. that plenary power, plenum inipcrium, which the learned Counsel contend the Local Governments possess. I will onlv add, that while there can be no question of their exercising the police i)0wers, the license imposed by this law is evidently exacted for the purpose of raising a revenue. In support of the view I take with regard to the nature of this license, I will cite Cooley on Coneti- tutional Lhnitations (1) : •' License laws are of two kinds : those which require the payment of a license fee by way of raising a revenue, and are, therefore, the exercise of the power of taxation ; and those which are mere police regulations, and which require the payment only of such license fee as will cover the expenses of the license and of enforcing the regula- tion." Nor can the fact that the Local Government has the power over property and civil rights be relied on. The passage I have quoted above from Chief Justice Mar- shall's opinion in reference to the State power over property and civil rights is such a complete answer to this point that I need but refer to it. As to the third point, that it affects a matter purely local and private in the Province, I think I have also proved that this argument cannot apply in this case. The license imposed by this law is of a nature to affect all the Provinces, and it amounts in reality to an exercise of the power of regulating commerce. For these reasons, I have come to the conclusion that the law under consideration is ultra vires. These reasons can be summed up as follows : (1) p. 586. w V s , !i ■ u ipl ■Ii1 t U 1 i t i 1 ; ) ' 1877-« Severn V. The Qukkn. Fournier, J. 478 SUPREME COURT OF CANADA. Ist. The law in question is void because it comes in conflict with the power of the Federal Parliament to regulate trade and commerce under paragraph 2, sec. 91. 2nd. Because the words "and other licenses," in paragraph 9, sec. 92, are limited by the interpretation to be given to paragraph 2 of section 91. In order to conciliate these two provisions, the words "other licenses " must be read as if they were followed by thest words : " not incompatible with the power of regulatiu" trade and commerce." 3rd. Because the tax imjjosed by this Act is an in- direct tax which the Local Government has no right to impose. 4th. Because it comes in direct conflict with the 31 Vict. c. 8, relating to excise. Henry, J. : — The information in this case charges the Appellant with a breach of the Act of Ontario, 37 Vict. cap. 32, for having sold by wholesale a large quantity of fer- mented liquors which he had manufactured, he (the Appellant) then being a brewer licensed by the Govern- ment of Canada for the manufacture of fermented, spirituous and other liquors. To this information the Appellant demurred, and assigned as one of the gromids of demurrer that the Legislature of Ontario had no power to restrict by an Act the sale of such liquors ; or to impose a penalty for a breach of the restrictive pro- visions of the Act by a brewer duly licensed by the Government of Canada. This ground of demurrer was fully argued before us, and we, having fully considered it in all its bearings and consequences, have now to give judgment upon it. The constitutionality of the Act of Canada, 31 Vict. cap. 8, under which the Appellant was licensed, is '*TI»' t with the 31 SUPREME COURT OF CANADA. 479 admitted, and it is therefore necessary only to consider whether, in view of that Act, the Legislature of Ontario had power to pass an Act requiring a hrewer, holding a license under the first-mentioned Act, to take out another license, and pay an additional fee, or, in the event of his not doing so, to subject him to penalties, to such an extent even as might effectually render practi- cally useless his license from the Dominion Government. The Ontario Act in question, sec. 24, provides : "No person shall sell by wholesale or retail any spirituous, fermented, or other manufactured liquors, within the Province of Ontario, without having first obtained a license under this Act authorizing him to do so, itc." Sec. 25 : " No person shall keep or have in any house, building, shop, eating-house, saloon, or house of public entertain- ment, or in any room or place whatsoever, any spirituous, fermented or other manufactured liquors for the purpose of selling, bartering or trading therein, unless duly licensed thereto under the provisions of this Act." Sec. 26 recognizes the validity of the licenses granted by the Government of Canada, and provides that sections 24 and 25 shall not prevent any brewer, distiller or other person so licensed "From keeping, having, or selling, any liquor manu- factured by him, in any building wherein such manufacture is earned on, etc. . . . Provided that any such brewer, distiller, or other person, is further required to first obtain a license to sell by wholesale under this Act the liquor so manufactured by him when sold for consumption within this Province, etc." Sec. 22 fixes the wholesale license fee at fifty dollars for Provincial purposes. 1S77-S Skvkun V. TllK C^LKEN. llonry, J. .J] .'! I 480 SUPREME COURT OF CANADA. II f|fM 1877-8 Skvkkn V. Thk C^lken. Henry, J. J3y sec. 4, "wholesale " is defined to be over five gallons or one dozen bottles of three half pints, or two dozen of three-fourths of a pint each. xhis Act came into operation on the 24th of March 1874. Under the Dominion Act, 31 Vict. cap. 8, before mentioned, the licenses expired on the thirtictli of Juno of each year, and those granted after the thirtieth of June, 1873, were current when the Ontario Act came into operation. Up to the passing of the latter Act a brewer had, by the effect of his license from the Dominion Government, the right, not only to keep and have for sale, but to sell fermented liquors by wholesale. By the latter Act he is not only prohibited from sellin", but from keeping or having. Does not that Act, there- fore, virtually repeal, if effect be given to it, the Dominion Act in both respects, unless, indeed, the brewer should comply with its exactions ? What, in the case of his refusal to accept further conditions to his compact with the Dominion Government, would become of his manu- factured stock on hand ? The selling and keeping, or having on hand for sale, or for consumption, in Ontario, was prohibited, and his keeping or having it legally, after the passing of the Act, is made contingent on his taking out a license under it. He had legally accumulated a large stock, which by the Ontario Act he is forbidden either to keep or sell in pursuance of his rights under the license from the Dominion Government. It may be said the extra tax was a light one. No matter how light, it was in contravention of the rights he had acquu'ed ; and if the power to change the existing relations be at all admitted, the extent of the change cannot be questioned: for that is a question of expediency and parliamentary discretion, which no court could control or interfere with; and the same power which levied a contribution to the SUl'KEME COURT OF CANADA. 481 1877-8 Skvkhn extent of fifty dollars might raise it so high as to break up the maiuifiicture altogether, and thus indirectly render nn^^atory the Dominion Act and deprive the THKtVrEEN. Oovernnuiit of the revenue it would otherwise receive; hm^.j. and, conrierjucntly, as I take it, restrict the effect of the hnperial Act, section 91, sub-sections 2 and 3, which (dve to the Dominion Parliament the exclusive right of le^'islation in regard to " the regulation of trade and commorcf" and " the raising of money by any mode or .system of taxation." If, indeed, it were contended that the Dominion Act was iitfrth Legislatures have power under the Inipeviul Act \<\ legislate in regard to the matter l)efore us. Wliilo all admit tlie legislative right of the Dominion Purlifiinout, the power of the Local Legislature is denied. The claini for it has been urged on several grounds, one of uliieli is, that direct taxation for Provincial purposes ia <:;iven exclusively to the Local Legislatures, and that tli. license duty sought to be levied by the Act of Ontario i« a direct tax. I must dissent from that proiiosition, for reasons too well understood to require me to define what a direct tax is, or to shew that the imposition in thi« case is clearly an indirect one. The legislative power given to the Dominion Parlia- ment is unlimited " To make laws for the peace, order and good govern- ment of Canada, in relation to all matters not comiii): within the classes of subjects by this Act assigntil exclusively to the Legislatures of the Provinces," and we need not necessarily consider the provisions cf 8ub-sectior:s 2 and 3 of section 9L Enrythiiia in the shape of legislation for the peace, order and good government of Canada is embraced, except as before mentioned. But sub- section 29 goes further, and provides for exceptions and reservations in regard to matters otherwise included in the power of legislation given to the Local Legislatures, and also provides that : ** Any matter coming within any of the classes of sub- jects enumerated in ihis section shall not be deemed to )oininion Pailia- SrrUKMK ((JUllT <»l" ( AXADA. 483 come witliin tlie class of matters of a local or private na- W7-h tiiri' comprised in the enumeration of the classes of sub- rk\ khn ject.s 1)}' this Act assigned exclusively to the Legisla- theQukkn. turos of the Provinces." Hf~.j. "The regulatioi) of trade and commerce" aiid "the raisin;,' of money by any mode or system of taxation " are, however, s[)e('ially nuintioncd. and both include the right to miiko and have carried out all the provisions in the Doniiuioii Act. This position has not been, and cannot be, successfully assailed. The subjects ni all their (ktiiils of which trade and commerce are composed, and till' regulation of them, and the raising of revenue by iiulirect taxation, must, therefore, be matters referred to and included in the latter clause of sub-section 21>, litforc mentioned, and if so, " Shall not be deemed to come within the class of matters of a local or jjrivate nature comprised in the diinnoration of the classes of subjects by this Act assigned exclusively to the Legislatures of the Provinces." Every constituent, therefore, of trade aud commerce and the subject of indirect taxation, is thus, as I submit, withdrawn from the consideration of the Local Legisla- tures, even if it should otherwise be app<(rcntl/j included. The Imperial Act fences in those twenty-eight subjects wholesale and in detail, and the Local Legislatures were iutended to be, and are, kept out of the inclosure, and when authorized to deal with the subject of "direct taxation within the Province," as in sub-section 2 of section 92, and " shop, saloon, tavern, auctioneer, and other licenses," they are commanded, by the concluding clause of sub-section 29, sec, 91, not to interfere by measures for what they may call "direct taxation," or in regard at least to "other licenses," or in reference to "municipal institutions," with the prerogatives of the Dominion Parliament as to the "regulation of trade ;J V 5 , .5'ii ■-,i'\ ! mim ! I > I t I i I 1^' ! li! in 1S77-8 S EVE UN The (jiEEN. Heury, J. 481 SUPREME COURT OF CANADA. fiud commerce," including "Customs and Excise la^vs" and "the raising of money by any mode or system of taxation." I have already shewn, that the exercise of the power contended for by the Legislature of Ontario is incompatible with the full exercise of that of tlit Dominion Parliament, and might be used to its total destruction. The object of the Imperial Act was clearly to give plenary powers of legislation to the Dominion Parliament with the exception before stated, and just as clearly to restrict local legislation so as to prevent anv conflict with that of the former in regard to the subjects with which it was given power to deal. The "excise laws" of the Dominion must be affected I)}' an additional license fee being exacted by the Local Government. The " excise " revenues belong solely to the Dominion Government. The Dominion Parliament having imposed a license fee of $50 on a bre\Yer of fermented liquors, might, at an early future, desire to impose for revenue a higher fee. It has the acknow- ledged right to do so ; but, in the meantime, the Local Legislature has fully weighted the enterprise of brewing, and the result becomes, therefore, a transfer from thu sources of Dominion revenue to the coffers of the Local Government. Who can say, then, that there is not an attempt to collect Provincial revenue from a soiu'Ce clearly appertaining to the Dominion '? But we are asked to hold that, under sub-section 9, ''shop, saloon, tavern, auctioneer, and other liveiii^'s" will include licenses to brewers, in the position occupied by the Appellant, to sell by wholesale. Such an applica- tion can only be made by virtue of the concluding words: " and other licenses." The extent and limit to be given to those words have not been stated or referred to ; but some must exist to their application. If applicable to bretcers' and distillers' licenses, which, at the date of the T SUPREME COURT OF C'NADA. 485 I Excise la^^•s" e or system of the exercise of ture of Ontario of that of tilt sed to its total Act was ckarly ) the Dominion itecl, and just as to prevent any d to the subjects nust be affected ;ed hy the Local belong solely to Lnion Parliament on a bre^Yel• of future, desire to has the acknoTA'- ,ntime, the Local L-prise of brewing, i-aiisfer from tbt fers of the Local there is not an from a som-ce ler sub-section 9, Id other Uceim' [position occupied Such an applica- [oncludiug words; limit to be given referred to ; but If applicable to it the date of the Imperial Act, wert completely out of reach of any muni- cipal control, why not extend them to other traders '.* If uncontrolled, a Local Legislatm-e might organize a s^istem (if licenses, and indirectly not only tax, but regu- late and restrict certain industries, trades and callings, or might, indeed, virtually prohibit and destroy them. We must reasonably conclude the Legislature meant to restrict the power at some point, and we must determine where that restriction should be imposed, not only from the words of the sub-section in question, but from the tenor and bearing of the whole Act, the state of the law at the time, the peculiar position of the United Provinces and the object of their Union, with the means for work- ing out the Constitution provided. Taking the words themselves, what is the law as to the construction of them ? From a review of all the cases cited, and others, I am forced to conclude that the words " and other licenses " must be restricted. We find them preceded by the words " shop, saloon, tavern, auctioneer," and I cannot decide that brewers or distillers are ejimhnn (jeneris with them or any of them. That they should be, to include the right of legicIatio?i claimed, taking the whole of the Imperial Act topjther, is a posi- tion too clearly established to be doubted. In Reed v. Jmjhim (1), the law is clearly sttwtxl by Lord Campbell, C.J., andalso in East London ]Vate]-tL'orks Co. x.Mile End Old Toini [Trnstees) (2). In the latter case the word "tenements" had to receive a consti'uction. Referring to it, Lord Campbell said "tenements" must be under- stood according to the antecedent enumeration, and as comprising only matters ejnsdem [lenerii^. That rule of con- struction was followed in Rex v. The Manr}i':ste)' and S>d- U'rd Water -irorks Company (3), which is admit.'ed to have been well decided. Coleridge, J., in the same ca.se says: 1877-8 Severn V. The Queen. Henry, J. (1) 3 E. & n. 889. (2) 17 Q. B. 512. (3) 1 B. .t 1877-8 Skvkrn r, Thk Qlekn. Heuiy, J. iimiir H ' i ' ' ■ Hi:' : iii ;; i 48G SUPREME COURT OF CANADA. " If the Appellants are liable, it is because they oceiipv a tenement which is ratable. It is admitted that the word cannot have its fuU meaning in either pla^e where it occurs in the section 30. In the first, it clearly means something inhabited or belonging to a dwelling. In the second, where it is admitted that some restraint must lie l)ut upon the construction of the word, ilic rule (ittucha, that (I (lenvral irord folio ic in (j Hpevijic ones must hi' tahnt hi mean soinethin;/ of the sunw hind.'' A similar construction was put upon general words in Saiiilima)! v. Breach (1). The 29 Car. 2, cap, 7, jiro- vided that " No tradesman, artificer, workman, labourer, or otlier person or persons should work at their ordinary ealliu'^ on the Lord's day." Per Lord Tjnterden : "It was contended that under the words 'other person or persons ' the drivers of stage coaches are incUuled. But where general words follow particular ones, the rule is to construe them as applicable to persons cjmdm peneris. "We think the words 'other person or persons' cannot have been used in a sense lar(:i enough to inehide the owner and driver of a stage coach." I feel bound, therefore, on principle, and as the result of all the cases, to construe the ,vords in question as controlled by the other portions of the Act, and there- fore, not to include power to the Legislature of Ontario to legislate for licenses to brewers or distillers to sell In- wholesale. I will not,, however, say that where the terms used art exhaustive of the particular class or subject named, vc are bound to apply the principle of construction ju^t stated ; and it may possibly be argued that such is liert (1) 7 B. & C. 96. general ^YOl•(ls in 2, cap. 7, 1*0- SUPREME COURT OF CANADA. 487 the case iu respect of the words preceding " and other licenses." In such a case, where there are no controlling conditions, the words might he sufficient to give the riffht claimed for the Local Legislature ; hut when con- sidering the ohjocts and purview of tne whole Act, and the mode provided for eli'ecting them, I can come to no other conclusion than one founded upon the duty I feel incumbent upon me, of reading the whole Act together, and therein and therehy, and not from the technical reading of a few words in a sub-section, however other- wise important, seek for the intention and meaning of the Legislature. By this mode the Act is made to harmonize in all its parts, and the feasibility of working it out is established. By the other construction, and not iu my view the proper one, the evident intention of the Let'islature is frustrated, and the legislation itself made absurd and inconsistent, and the working out of the details made most difficult, and, it may be found, totally impossible. I am of opinion, for these reasons, that the Act of Ontario in question was idtni vires, and that the appeal should be allow ed with costs and judgment entered for the Appellant. Ajyptnl allowed with costs. 1877-8 Sevkun ThJ'; (.iLKEN. Heury, J. '4 I i 488 SUPREME COURT OF CANADA, II • ! t h ^1 I:! m ttr^ i:l M, i r;" 1879* yan. 30; iVov. 4. SUPREME COURT OF CANADA. Peter H. Lenoir e^ a^ Appellants, AND — Joseph Norman Ritchie Respondent. On appeal from the Supreme Court of Nova Scotia. [Reported 3 Can. S. C. B. r)75.] Powers of Lora' Leqinkitures — Queen's Couiisel, Foiver of Appoini- ment of. A Provincial Legislature has no power to authorize the Lieutenant- Governor to appoint Queen's Counsel, or to graiit to any member of the Bar a patent of precedence in the courts of the Province. (Henry, Taschereau and Gwynne, JJ.) The question arose on an appeal by a Queen's Counsel appointed by the Governor-General, the Respondents being i)ersons appointed by the Lieutenant-Governor under Acts of the Provincial Legislature ; and Strong, Fournier and Taschereau, JJ. were of opinion that the Provincial Acts of which the appelLint complained were not intended to affect the precedence uf Queen's Counsel appointed by the Governor-General; and it was therefore held, Per Strong and Fournier, JJ. , — That as this court ought never, except in cases when such adjudication is indispensable to the decision of a cause, to pronounce upon the constitutional pdwer of a Legislature to pass a statute, there was no necessity in this case for them to express an opinion upon the validity of the Acts in question. Appeal from a Rule of the Supreme Court of Nova Scotia made on the 26th March, 1877, ordering that the rank and precedence granted to Joseph Norman Ritchio, Esquire, the respondent, be confirmed, and that he have rank and precedence in the said Supremo Court over all * Present : —Strong, Fournier, Henry, Taschereau and Gwynne, .TJ. uLwtuL' ,ii 'U '^oiver of App(AHi- m n SUPREME COURT OF CANADA. 489 Queen's Counsel appointed in and for the Province of i«79 Xova Scotia since the 26th day of December, 1872. i.enoik The following are the material facts of the case : eitchik The respondent, a barrister of the Province of Nova statemkn Scittia, was appointed to be one of Her Majesty's Counsel learned in the law, in and for the Province of Nova Scotia, on the 26th December, 1872, by Letters Patent under the Great Seal of Canada. On the 7th May, 1874, the Legislature of Nova Scotia passed an Act whereby it was declared and enacted that it was, and is, lawful for the Lieutenant-Governor, by Letters Patent under the Great Seal of the Province of Nova Scotia, to appoint from among the members of the Bar of Nova Scotia such persons as he may deem right to be, during pleasure, Provincial officers under the name of Her Majesty's Counsel learned in the law for the Prov- ince of Nova Scotia (1). On the same day the same Legislature passed another Act, entitled " An Act to regulate the precedence of the Bar of Nova Scotia" (2). By the first section of this Act it was enacted that the following members of the Bar should have precedence in the following order : The Attorney-General of the Do- minion of Canada, the Attorney-General of the Province, members of the Bar who were before the 1st July, 18G7, appointed Her Majesty's Counsel for Nova Scotia, so long as they are such Counsel, according to such seniority of appointment as such Counsel. The second section is as follows : " Members of the Bar from time to time appointed after the 1st July, 1867, to be Her Majesty's Counsel for the Province, and members of the Bar to whom from time to time Patents of Pre- cedence are granted, .shall severally have such precedence in such courts as may be assigned to them by Letters ;nt. > ? '*:! 1 * and G Wynne, .TJ. (1) 37 Vict. f. 20. (2) 37 Vict. c. 21. s ■ I ■ m r ' . I| -^ ; ; i is f ■ t ^' I * ' 1-.* '1 ■ ■ ' /.A i ( . O i 1 i, : ' ■ ! \ In ! 1 '.! I ! ( ii:i Ifii 1 1 ■ If I LUiktutiii,.' i 1.^^ 1879 Lknoir V. RiTCHIK. Statement. 492 SUPREME COURT OF CANADA. hereby strictly enjoin all our said courts to grant prece- dence to our said Counsel learned in the law in the order above recited. " In testimony whereof we have caused these our Letters to be made patent, and the Great Seal of our said Province of Nova Scotia to be hereunto affixed. " Witness our trusty and well-beloved the Honour- able Adan:« HA-^^^g:: Archibald, member of the Privy Council ri Canada, Companion of the Most Distinguished Order of St. Michael and St. George, Lieutenant-Governor of Nova Scotia, at our Government House, in our city of Halifax, this twenty-seventh day of May in the year of our Lord one thousand eight hundred and seventy-six, in the thirty-ninth year of our reign." " By command, (Signed) "P. Carteret Hill, " Provincial Secretary." On the 30th May, 1876, the respondent wrote the fol- lowing letter to the Provincial Secretary : " Halifax, 30th May, 1876. " Sir, — I obsei've by this morning's paper that my name is included in a list of Queen's Counsel, published in the Royal Gazette of the 27th inst., to whom prece- dence has been given by His Honour the Lieutenant- Governor. " As I have not asked for this privilege, I beg most respectfully to decline the honour intended to be con- ferred, and request that my name may be omitted from the Letters Patent. " I have the honour to be. Sir, " Your obedient servant, (Signed) "J. N. Ritchie. " To the Honourable the Provincial Secretary." t wrote the fol- SUPREME COURT OF CANADA. 493 Lknoik V. RiTCHIK. He received the following answer : 1879 " Provincial Secretary's Office, " Halifax, N.S.. May 30th, 187G. « gm^ — I have the honour to acknowledge the receipt Statement of your letter of this day's date, requesting that your name may be omitted from the patent of precedence of Queen's Counsel, recently appointed. "I have it in command to inform you, that as the Government did not appoint you a Queen's Counsel, they have no power to deprive you of the position. " I have the honour to be, Sir, " Your obedient servant, (Signed) "P. Carteret Hill. "J.X.Ritchie, Esq." Subsequently, the protlionotary of the Supreme Court of Nova Scotia at Halifax, in making up the dockets, etc., gave the appellants, with others, precedence over the respondent, which had not been accorded to them since the date of the respondent's api)ointnient in 1872. Thereupon, on the 3rd of January, 1877, the respondent obtained from the Supreme Covirt of Nova Scotia the following rule nisi : — " Snp^eme Court, Halifax, N.S. " In the matter of the application of Joseph Norman Ritchie, for the recognition of his rank and precedence as Queen's Counsel. " On hearing read the Letters Patent under the Great Seal of Canada, dated the 2Gth day of December, A.D. 1872, appointing the said Joseph Norman Ritchie one of Her Majesty's Counsel learned in the law, the affidavits of the said Joseph Norman Ritchie, sworn to on the 12th and 27th days of December, 1870, and the exhibits annexed thereto, and the documents or Letters Patent, dated on the 27th day of May, A.D. 187C, with IP 404 SUPllilME COURT OF CANADA. ■ ! I i;! i":- ! ) I, m |i 1879 Lknoiu jj itch ik. Statesient. reference to Queen's Counsel, and filed in this court on the 7tli (lay of November last, — It is ordered i.iat tlii; rank and precedence granted to the said Joseph Noriiiiin Ritchie by said Letters Patent of 26th December, A.!), 1872, be confirmed, and that he have rank and pixit'odcncv in this court over all Queen's Counsel appointed in aii'l for the Province of Nova Scotia since the said 2(itli day of Decendier, A.I). 1872, on the following grounds : " 1. Because the Letters Patent of 2Gth Decomliei', 1872, give rank and precedence to Mr. Ritcliio, as a Queen's Counsel, from the date thereof, which liave ntver been legally taken away. " 2. Because the document or Letters Patent of tli-; 27th May, 1876, does not in any way affect said rank and precedence. " 3. Because said last-mentioned docun)ent is not Lettei's Patent issued by the Lieutenant-Governor ol Nova Scotia under the Great Seal of that Province. " 4. Because no Patents of Precedence have been granted to any Queen's Counsel appointed after the 2Gth December, A.D. 1872, giving them rank ml precedence over Mr. Ritchie. " 5. Because no Letters Patent, or Patents of Preci- dence, have been granted giving the Queen's Counsel appointed since 26th December, A.D. 1872, by Letters Patent under the Great Seal of Canada, precedence over Mr. Ritchie. " 6. Because chapter 24 of the Acts of the Logislatuie of Nova Scotia, for 1874, and all Letters Patent or other documents granted thereunder, are illegal and ultra vim, in so far as they may affect the rank and precedence of Mr. Ritchie, as granted to him by the Letters Patent of 26th December, 1872. " 7. Because last-mentioned chapter has not a retro- spective effect. SUPRKMK ComiT OF CANADA. 49; has not a retro- " 8. Bfcauso the Act of the Local Legislature of Nova 1S7« Scotid, namely, chapter 20 of the Acts of 1874, under Lknoik nhich crtain harristers were appointed Queen's Counsel Kin'mK. t,V the Lieutenant-Governor of Nova Scotia, l)y the statkmkni a'lcumont or Letters Patent of the 27th Ma}^ A.D. LS70, is ulti'o vires, and such appointments are therefore invalid and of no ertect. "!j. Because the Acts authorizing the Lieutenant- Governor of Nova Scotia to appoint Queen's Counsel^ ami to five precedence to certain members of the Bar of Nova Scotia, were not passed until long after the i'rant of the Lett'Ts Patent conferring the rank and preceilenre on Mr. Ritchie, and cannot affect the rights thereby conferred. "10. And for other grounds appearing from the said papers, affidavits and exhibits, unless cause to the con- trary be shewn before the court on the third Saturday of February next ensuing. "And it is further ordered that a copy of this rule be served upon each of the following Queen's Counsel and BaiTisters, viz.: C. B. Owen, Esquire; S. H. Morse, Es(iuire; Henry Pryor, Esquire; William Howe, Esquire; Henry A. Grantham, Esquire ; The Honourable P. C. Hill; Peter H, Lenoir, Esc [uire; M. H. Richey, Esquire; The Honourable D. McDonald; J. N. S. Marshall, Esquire; Kobert G. Haliburton, Esc^uire ; Otto S. Weeks, Esquire; and The Honoiu-able H. A. N. Kaulbach. " Halifax, 3rd January, A.D. 1877. " By the Court. (Signed) " M. I. Wilkins, " Protkunotary." The Supreme Court of Nova Scotia, by a majority of judges, made the rule absolute on the second of the above grounds, maintaining the validity of the Acts I !! -^1' I . ! h: :|!^i!l ^ I i^l: II ; I ! 11 if; ifliliil 187II 1 Lknoiu KrrciiiK. ';; .Statkmknt. 40(; SUl'UEMK COUllT OF CANADA. niontionod, and also held that the seal affixed to the patent was not the true Great Seal of Nova Scotia. Tlie case was twice argued before the Supremo Court of Canada, in consequence of the resignation of two of the judges wlio heard the first argument. As to the validity of the Great Seal >\i the .scconil argument before the Supreme Court, two Acts had hoeu passed to settle this question (1), and theret'ore nj further reference need bo made to it. A preliminary objection was raised on behalf of tht; respondent to the juri.sdiction of the Court to entertain the appeal, on the ground that the rale absolute in this case was not a "judgment," from which an appeal will We under the 17th sec. of the Supreme and Exche(|uer Court Act, but the Court decided to hear the appeal on the merits. Mr. Haliburton, for the appellants : [The argument as to tlie Great Seal of Nova . ah is omitted.] No question arises here as to whether the Crown liaJ issued Letters Patent granting: what did not bcloni; to the Crown, or what was not within the exerci.se of iU prerogative, precedence at the Bar being beyond (juestiuii a matter of prerogative. The only (juestion here is whether the Crown, thioii!.'li its Keeper of the Great Seal, has not issued Letter.^ Patent of Precedence which affect rights granted under previous Letters Patent. Mr. Ritchie claims that he lia^ vested rights under his patent which cannot be super- seded or afi'ected. The eighth ground relied on by him in his factum is the same as in his rule nisi, and is the only one that touches upon the validity of chapter 21 of Acts of l^li or of the Patent of Precedence issued under it (1) 40 Vict. c. 3, D., and 40 Vict. c. 2, N. S. ±1AM. SUPUKME fOUHT (>F CANADA. 40" "Because cap. 21 of the Acts of the Loj^islatvuc of Nova Scotia for 1H74, and all Letters Patent or other (iocunionts ijranted thereunder, are illegal and altrknce of Mr. Rifchie as granted to him V»y Letters Patent of tlu' 2Gth December, 1y statute, can issue sccoirI Letters Patent which operate by way of e.\tin- 'Tuishiiient of previous Letters Patent. — 17 Vin. (93 M. B. ,V), 100, 101) (Q. B. 2), sec. 8. See argument of Attorney- Cuncral, also judgment of court /n re Bedtird (1). To prevent error or surprise on part of the Crown, 6 Hun. VIII. c. 15, makes second Letters Patent void where they do not refer to previous Letters Patent. But wliere there are no fees or emoluments attached to subject of i;rant, such recital is not considered necessary : Vin. 101), Q, B.; T(ie King v. Foster (2). Though a subject may be injured by the issue of such subsequent Letters Patent, yet they must be recog- nised and respected by the court until duly eancelled by issue of scire facids by leave of the Crown, such Letters Patent being not void, but only voidable. "When a patent is granted to the prejudice of a suhject, the King of right is to permit him, upon his petition, to use his name for the repeal of it in scire facias at the King's suit, to hinder multiplicity of actions on the case."— 2 Vent. 344. 17 Vin. 98, 100, 109, 115, 122 (u. b.), 1.55, sb. Scire facias may issue to revoke grants injurious to the rights and interests of third parties ; though, if the patent be void in itself, non con- cessi7 may, it seems, be pleaded without a scire facias. — Chitty on Prerog. eh. 12, s. 3 (cites 3 Com. 200, 2 Rol. Ab. 191, S. pi. 2). Sir George Mackenzie says that by the law of Scotland, which on this point we find the (1) 7 Moore, P. C. C. 23. 32 (2) 2 Freeman 70. IS7!> Lknoik HiTOiui:. ^iiiiii '> i , til «v --r iil t : III' '■ i i Hi i i M ' i I Ml/ ! I I ■ lili 187!) Lenoiu ;'. RlTOHlE. Akoujiknt. 4D8 Sl'PllEME COURT OF CANADA. same a«* that of England, the validity of second Letters Patent must be raised, not by pleading, but by an application to have them cancelled. "No right onct- {:)a.ssed under the Great Seal can be annulled by way of exception, but only by way of reduction. When di;ulk' rights are passed, the first is put to the necessity of a reduction " (1). We contend that 37 Vict. c. 21 and Letters Patent issued thereunder are not, as contended for by respond- ent, " illegal and ultra vires in so far as they may affect the rank and precedence of Mr. Ritchie, granted to hiin by the Letters Patent of the 20th December, 1872." As respects the precedence of Queen's Counsel ap- pointed .since 1807, sec. 2 of 37 Vict. c. 21, is merely declaratory, and did not alter or abridge the previous riglit of the Lieut.-Governor to issue the Letters Patent of precedence in question. — See James, N. S. R. 182. As that Act refers to matters exclusively reserved for the Local Legislatures, it is not ultra vires so far as the rights of the Dominion Parliament are concerned. It cannot be contended that the Act is ultra vires be- cause it may lead to the passing of Letters Patent wlncli may affect the priority of persons claiming precedenct under Letters Patent issued since 1807 under a Greater Seal by the Governor-General. The Patent of bSo4, issued by the Lieutenant-Governor to Mr. Uniacke, gave him precedence over Queen's Counsel holding patent.- directly from the Queen. The commission and instruc- tions of the Governor-General are unchanged, so far a^ any right to issue Letters Patent of Queen's Counsel i> concerned. (1) See Obs. on the VI. Parliament of James V., Sir George Macken zie's Works, 1278. Also, 4 Inst. 87, 88, Bro. Ab. Tit. Scire Fimas, 6H, 185. Dyer, 1976, 1986. Ca-ses cited iu 2 T. K. .564. Bro. Ab. Tit. Tatents 1>1. 2, R. V. Chester et af. 5 Mod. 301. Rex v. Kemp, 4 Mod. 277. The Kim V. Foster, 2 Freeman, 70. DA. »f second Lettei-s ling, but by an " No right oncf inulled by way of n. When douljlf lie necessity of a id Letters Patent I for by respoml- ,s tliey may affect e, granted to him mber, 1872." een's Counsel ap- ,. c. 21, is merely the previous right Letters Patent of , S. K 1S2. ively reserved for ires so far as the concerned. is ultra vires be- tters Patent which iiniing precedence 7 under a Greater Patent of 1S54, VIr. Uniacke, gave holding patent? ssion and instiue- changed, so far as Queen's Counsel l- ) r., Sir George Mackeii- . Tit. Scire Fari'ii, •)'.'• Bro. Ab. Tit, Patents 4 Mod. 277. Th( Kim SUPREME COURT OF CANADA. 499 A Provincial Act within the limits of local legislation, may, if assented to, limit the Royal prerogative as fully as if it were an Act of Parliament, or a Dominion Act within the scope of Dominion Legislation, The effect of the assent given to the Prince Edward Island Land Act is in point — it being held hy the Crown that it was bound by the assent given to that Act, and that the pre- nirrative was thereby limited. The Crown does not regard this Act as. infringing upon its prerogative, as it was passed at the suggestion of the Imperial Government. " When an Act of Parliament doth authorize the Lord Chancellor or Lord Keeper to make or grant any com- mission under the Great Seal, he may make or grant the same without any further v/arrant, because the King is a party to the Act of Parliament, and there cannot be a I'reater warrant to the said Chancellor than an Act of Parliament."— 4 Inst., ch. 29, p. 109. From 1803 the use of the Royal Warrant was dispensed with by a despatch from the Secretary of State for the Colonies in the case of all appointments except in the Admiralty Court. The intent of the Act and of the Letters Patent of pre- cedence is clear and explicit. No reasonable doubt can exist that the Legislature by this Act proposed to regulate the precedence of all Queen's Counsel not appointed prior to July, 1867, as it ^vas entitle 1 "An Act to regulate the precedence of the Bar of Nova Scotia," and was passed with the sole ob- ject of enabling the Lieutenant-Governor to assign to the Queen's Counsel whom he might appoint such re- lati e rank as he might think fit, as respects the Queen's Counsel that had then been appointed since July 1st, 1807. Section 2 of the Act provides that members of the Bar appointed Queen's Counsel since July 1st, 1807, and 1879 Lknoik r. Ritchie. Ahgumknt. 4 ii-: :^:->,l| rwrr,^ i li i ; .' ! li! J: I il::! !'» i!' IfllHIi! li If 1879 Lknoir v. RiTC'Hii:. Akgument. i J I i . i., , ! ii i i, ' 500 SUPREME COURT OF CANADA. members of the Bar to whom, from time to time, Patents of Preceaenco may be granted, " shall severally have such pi'ecedence as may be assigned to them by Letters Patent, which may bo issued by the Lieut.-Governor under the Great Seal." The Act being therefore clear, the intent of the Letter interpretations. 1st (in direct contradiction to the very words of tlif Letters Patent), that they only regulated the precedence of the Queen's Counsel then appointed " as between eacli other," and not " as to all members of the Bar whose pre codence is not fixed by the said Act" (i.e., all not ap- pointed prior to July, 18G7). 2nd, a nugatory and absurd intent — that thouj^h the Patent of Precedence proposed to give some of tlit Queen's Counsel then appointed precedence before Mr, Ritchie, it did not affect his precedence as respects then;. It is impossible to see how the court, unless it is all' to cancel or ignore the Letters Patent, can assume that s. list of precedence which includes Mr. Ri*;chie by naiii* was not intendfrd to affect his precedence. * JMi. A. to time, Patents erally have such lein by Lctttvs Lieut.-Govcrnor nt of the Letter's arry out the pro- A.fter appointiir: Z5ou. i, the Let- jrocced : " We dn ahove appointeil, is to say "— It ;ir being called to ■en's Counsel, in- , and all not iip- ist, the appellants. )unsel, liave rank- ad been appoint&l adopt one of t\V'> ^ery words of tlio ed the precedence " as between each ,he Bar whose pre ' {i.e., all not ap- that though tlie nve some of tk ledence before Mr. le as respects then:. t, unless it is al'i- can assume that a Ritchie by nam^ ice. SUPREME COUllT OF CANADA. 501 Even if he had not been mentioned, his precedence would have been atfectod by implication. The com- mission of a Justice of the Pea^.e may be superseded " by a new commission, which virtually but silently discharj^es all the former justices not named therein, for two cora- inissions cannot exist at once." — 1 Comm. 353. As the Act in question provides that members of the Bai from time to time appointed after the Hrst day of July, A.D. 18G7, to be Her Majesty's Counsel for the Province, etc., shall severally have such precedence in ■^ijvh courts as may be assigned to them by Letters Patent which may be issued by the Lieuteuaut-Governor under the Great Seal, he can claim no precedence not assigned to him by such Letters Patent. There are no vested rights in Patents of Queen's Counsel, or Patents of Precedence, but the Crown, as " the fountain of justice and of honours," can at all times, at its will, regulate precedence at the Bar. The Attorney- General, in In re Bethvrd (1), contended that " the Crown can by Letters Patent give precedence at pleasure, except so far as this preruyative is controlled by the statutes: 31 Henry VIIL, c. 10 ; and 1 W. & M, s. 1, c. 21. All degrees of nobility and honour are derived from the King as their fountain, and he may institute what new title- he pleases. It is a part of the prerogative at common law. No one can doubt that the Queen has the right to give precedence among Queen's Counsel. " The court decided iu that case that Letters Patent of Precedence to a Judge atlecting precedence under previous Letters Patent were valid. " A custom has for some time prevailed of grant- ing Letters Patent of Precedence to such barristers as the Crown thinks proper to honour with that mark of dis- tinction, whereby they are entitled to such rank and pre- audience as are assigned in their respective patents, (1) 7 Moore P. C. C. 2X 1879 Lenoik V. RlTCHIK. AKOL'MKNI. "■i . ;' ' " ^ " "'■% '-^'■\H ■■«.:: 1 "-^^^f ; ■! i J m mi .-./I 1 nmx '# I.!' ml n I ii;i !' M -■ ■ ^i:!j ni! iri' if 1 i i 1 i 1 1 r j ^ 1 ) i i f I ' 1 i, i - '.ttt 1879 Lknoib t'. Ritchie. Arkumknt, 502 SUPREME COURT OF CANADA. sometimes next after the Attorney-General, but usually next after Her Majesty's Counsel then being." — 3 Comin. 28.— See also James, N. S. R. 182. 4 Inst. 107, 802. 1 Oomm. 272. Chitty on Prerofr. 77, 82, 107, 112, 132, .^30 note g, also 331. Manning's Case of the Serjeants, 127. Droit Public de Domat, Liv. i. tit. ii. sec. 2, p. 10 (Fol, Ed. 1745). In ex partt Aohertson (1), the court refused to enquire into the issue of Letters Patent b}'' a Governor and Coun- cil superseding previous Letters Patent, the office in question being held at will. Respondent's application is irregular and unprece- dented. Even assuming that no Act had been passed, author- izing the Lieutenant-Governor to issue Letters Patent nf Precedence, or, if passed, that it was ultra vlvei^, and that the Keeper of the Great Seal improperly and without any warrant affixed the signature of Royalty to Lettirs Patent of Precedence, yet these are matters between the Crown and its Keeper of the Great Seal, into which the court cannot enquire, but it must recognise the Letters as valid and binding upon the Court until an Act of Par- liament has been passed to annul the Patent, or the Crown itself issues a scire facias to cancel it. "Thr Gi'eat Seal shall always be credited, and where the certi- ficates under it are not strictly true, there is no reuicily but an Act of Parliament, or by authority of the Cliaucel- lor of England to cause parties to bring them into Chan- cery "(2). That the Crown to this day jealously preserves its pit- rogative of enquiring into the validity of its grants, i- clear from the fact that in the recent Su[)reme Court "t Judicature Act, whereby it was proposed to transfer t > (1) 11 Moore P. C, C. 288. (2) 17 Vin. 71-78. Nel. Ab. III., 207, 210. SUPREME COURT OF CANADA. 503 the new Court of Appeal the jurisdiction of the Court of Chancery, a,s well as of the House of Lords, and of the JiKlicial Committee of the Privy Council, one of the few thing's reserved was " any jurisdiction vested in the Lor^ ii;h a series of h the courts of voidahle, it can le and l.y leave •n to Mr. Ritchie till open to him ^e Letters Pcatent. isive jurisdiction ■Governor repre- by him prior to nization of the were coniirmed SUPRKMK tOl'RT OF CANADA. 50^ of the court which goes beyond this, and decides that tiie Lieutenant-Governor is not the Queen's representa- tive, and that the Queen is no part of Provincial Legis- latures, is a serious one, that vitally concerns the whole Dominion. This is a constitutional question which was not argued liefore. Supi)Osing the Patent void, or rather voidable, we are (lealing with the Lieutenant-Governor here as Keeper of the Great Seal, an oflice which does not necessarily require the person holding it to be the Queen's repre- ,,uiitative. The Keeper of the Great Seal in England is not the Queen's representative. If he has improperly nsucl the Great Seal, there are recognised modes of can- celling the Patent. it cannot be said that the Queen has not authorized the issue of this patent, for it is ainucd hij tlw Sovereign. The B. N. A. Act, assented to by the Crown, conthiued to the Provinces the use of their Great Seals, and the Great Seal is recognised everywhere as "tJte most solemn li'liKiturc of ihe Sorereii/it."' Whether the Crown was wise in allowing its signature to be used by the Lieu- ttiuuit-Governor is not a question for this court. It has authorized the use, and the signature must be recognised aud respected until the Patent is properly cancelled by srin'fiteitts, or an Act of Parliament. Whether the title of Queen's Counsel is a legal rank or a title of honour does not arise here, as the Patent of Queen's Counsel issued In 1870, under c. 20 of Acts of 1H74, did not affect Mr. Ritchie's rank under his Patent of 1872. The Patent of Precedence, however, issued under c. 21, did affect him, and the only question for our consideration is as respects its validity. It confers no rank or status outside the courts, and is merely a mode of regulating the business of the courts by speci- fying the order in which counsel will be heard. 187!t Lenoik V. KlTCHIK. AlUiLMKNT. i "1 S sl^ ■'i '^; "i t Iffll •Wf U »' U |(' i 'h hi in !l! i ; 1 hi'- 506 SUl'JJEME COURT OF CANADA. 1879 I Ihul the responsibility unexpectedly thrown upon rne Lknoik of (lefenfling the status hitherto claimed and enjoyod Iv Ritchie. Lieutenant-Governors and Provincial Legislatures, and I AuGUMKNT. therefore do not profess to do so, as the subject was not discussed in the argument before the Supreme C(jurt of Nova Scotia. It was quite unexpected by mo, and apparently also by respondent, who, in his factum, has given no authority or reference on this point, except the Governor-General's Connnission, which, as respects these questions, is the same as before the Union. The subject is of such gi-ave public importance that it is to be hoped it will not be necessar3', under the circum- stances, for the court to consider it. Mr. Cockburu, Q.C., for the rej+i)oudent : I contend that the statute of the Province of Xova Scotia, 37 Yict. c. 20, respecting the appointment of Queen's Counsel, and so much of the statute 37 Viet. c. 21, as affects the right of precedence and of preau- dience of Queen's Counsel, are ultra vires, and that the Letters Patent of 27th May, 187C, issued under the authority of the latter statute, are wholly inoperative. The appointment of Queen's Counsel is a prerogative of the Crown, and no such power is conferred on the Lieutenant-Governors of Provinces, nor could the Pro- vincial Legislatures under the Constitution {■■icc B. X. A. Act, sec. 92) legislate on any subject of prerogative law. By the Royal Commission granted to the Governor-General under the Great Seal of the United Kingdom, certain limited powers to represent the Crown in its prerogative rights are conferred (paragraph 3 clearly embraces tk appointment of Queen's Counsel). But the royal instruc- tions which accompany the commission guardedly require that all Bills passed by the Parliament of Canada which touch the prerogative shall be reserved for Her Majesty's SUPREME COURT OF CANADA. 507 mi [irown upon me md enjoyed by islaturos, and I uibject was not [)rerae Court of (i by lue, and tiis factum, has s point, except ieb, as respect: le Union. The ,ce that it is to (ler the circum- it: rovince of Xova appointment of I statute 37 Vict. and of preaii- -s, and that the isued under the inoperative, is a prerogative onferred on the could the Pro- ion {src B. X. A. jrerogative la^'. overnor-General ingdom, certain 1 its prerogiitivi y embraces tht he royal instruc- ;uardedly require )f Canada which ■or Her Majesty's pleasure. And while the Provincial Legislatures may enact laws for the amendment of their own Constitutions, thev are prohibited from altering the otfice of the Lieu- tinant-Governor (B. N. A. Act, sec. 92. sub-sec. 1) ; so that unless this otlicer has power conferred upon him l)y the Constitutional Act to represent Her Majesty in the exercise of her prerogative powers, he can neither do so now, nor can he at any future time be empowered to do fo by the Legislatures of the Provinces. The ofBce of the Lieutenant-Governor is defined in sees. 58 and 59. He is the representative of the Governor-General, not of the Queen ; be assents to Bills in the name of the (iovernor-General, not of the Queen ; and in the exercise of his powers withholds Bills for the Governor-Greneral's, and not for the Queen's assent. All the laws of the Parliament of Canada are made by the Queen, the Senate, and the House of Commons. The Queen is present, and is a constituent part of Parliament. She does not merely assent to Bills, she is also an enacting party ; not so with the Provincial Legislatures. Those bodies exclu- sively make the laws within the limit of their authority. While the most jealous care is taken in the B. N. A. Act to provide for the speedy transmission of authentic copies of all Bills passed by the Parliament of Canada for Her Majesty's pleasure, no similar provision exists as to the Provincial Legislatures. The Queen may be wholly unadvised and uninformed as to the laws they are enact- ing, and there exists no necessity for supervision, inas- much as Imperial and Prerogative questions do not fall within the scope of their powers. There have been three important occasions on which the powers of the Lieutenant-Governors, in respect of their being representatives of the Crown, have been brought up for consideration since the Confederation. The first was the claim of the Lieutenant-Governor of 1879 Lknoik i'. RncMiic. Arcdmknt. HI < ? ■:m : f '' li' . I : Tm );.! in , >' 8 ' ( ••ll. ! I I 187'J Lr.suiH r, Knt'HiK. AXIUUMKNT. 508 Sll'UlvMK (OL'UT OF CANADA. New Brun.swick to exercise the pardouiiig power. (See tlie report of the Mhiister of Justice, 21st of J)ecombir, 18(58, and the despatch of Lord Granville to the Governor. General of 24th of February, 180D.j Tlie second was the (question as to the anniesty claiiiki! to have been promised by the Lieutenant-Govornor ui Manitoba in the Lepine case. (See the despatch of Luri Carnarvon of 7th of January, 187-).) On botli of these occasions the pretension was cluaiiv refuted and refused. The third occasion arose (indirectly) on the que.stiijii of the Ministerial responsibility of the Governur-Geueiari advisors for his disallowance of Bills passed by tli. Local Legislatures within the sco})e of their po\vir>. (See the report of the Minister of Justice, 22nd Ducfiiibd, 1875, in which he says: "The powers of Provincial Legislatures are, by their constitution, limited to certaiB subjects of a domestic character, so that their leyisktiuii can affect only Provincial, and at most Canadian interests. Provincial Acts, to the extent to which they may trans- cend the competence of the Legislature, are inoperativ.j ah initio ; there is no power to allow them, nor cau any attempt at allowance give them vitality, so that voiJ Acts left to their operation are void altogether.") . . . The contention of this State paper was that the Dominion Government alone should supervise and control the Pru- vincial legislation. The theory that the Queen is bound by certain statutes because she is an assenting party, has no appli- cation to the Provincial statutes. These must stand oi fall on a strict interpretation of the powers of the Local Legislatures. The two Acts in question are clearly idif'i vires for the reasons given, and the Letters Patent appoint- ing Mr. Lenoir and others to be Queen's Counsel must therefore fall to the ground. L^.ii''.li^ Qsion was clcaiiv SUPREME rOITRT OF CANADA. 500 In any casf those statutes could not have had a retro- ■.tifctive ('fleet so as to annul the right of pre-audienco alrcadv granted to Mr. Ritchie under the Great Seal of the Dominion. On the constitutional question, the learned counsel nferred to Sessional Papers, 18(J7 and 18(58, Vol. I., No. 22: Sessional Papers, 18(in, Vol. II., No. l(i; Sessional PaiHTs, ls75, V..I. VI II., No. 11 ; Sessional Papers, 1870, Vol. IX., No. IKJ; return to an address for cori-espond- enc relating to the appointment of Queen's Counsel, Session of 1S73, No. 50; B. N. A. Act, sees. 9, 17, 01, 92 (sub-sec. 1), 50, 5s, 50 ; Mr. Todd's Pamphlet on a Consti- tutional Governor, p. 20 ; Chitty on Prerogatives, pp. 107, .331 : Bac : Abr : Title Prerogative. I fiu-thH|i- Hi 510 SUFUKME COURT OF CANADA. Stroxo, J, : — Was of opinion that the Nova Scotia statute did not uffoct tlio prt'Ct'dence of Qncen's Counsel appointed hv the Crown, and that consequently the Court was not called upon to pronounce upon the constitutional pi)\ver of the Legislature to pass that statute. He was tlitTe- fore of opinion that the a})peal should be dismissed with costs. [Transkited.] FOURNIER, J : — [Tlio learned judge having stated at length why, in liis oiiininii, the court had no jurisdiction, and ouglit not to entertain tliuaiiinal, proceeded as foUows (p. 005).] For these reasons I should bo inclined to decide that this court has no jurisdiction, and ought not to give anv judgment. But, as I am under the impression that I am alone in holding this opinion, I shall .shortly state the reasons of my decision on the merits of the i|uostion at issue. After Confederation, difficulties arose in the Province^ of Ontario and Nova Scotia as to the power of the Lieu- tenant-Governors to appoint Queen's Counsel. As this question affected the Royal prerogative, it was refenvl by the Privy Council'of Canada to the Colonial Secretary, in order to obtain the opinion of the law othcers of the Crown. The memorandum of the Privy Council, signiM by Sir John Macdonald, after citing sec. 92, sub-sec. U of the B. N. A. Act, relative o ti rgai ligation of courts, contains the follow' <, ' ^laration: " Under this power, tl .idersigned i : opinion that the Legislature of a Pro nee, b< ing charged with the administration of justice and tiie c ^anization of the coiiitv may, by statute, provide for the general conduct of !'"'• ness before those courts ; and may make such prov; b:^ with respect to the Bar, the management of aii'l tlio ri^'ht of pre-auiliencc, as it sees fit. Such (iuaot- Lknuik iiinit must, however, in the opinion of the un(lersii,'ne(l, be inrl'mK. ,!ilijoct to the exercise of the Iloyal ])roroifative, which Foun^r.j. is i)araiiionnt, and in no way diminished by the Act of Coiift'iloration." To this part of the memorandum the Colonial Secre- tary, Lord Kimberley, made the following reply, in his (Irsi^atch of February 1st, 1872 : "I am further advised that the Legislature of a Prov- inct' can confer by statute on its Lieutenant-Governor tho power of ajjpointing Queen's Counsel ; and with ivspect to precedence or pre-audience in the courts of the Proviuce, the Legislature of the Province has power to decide as between Queen's Counsel appointed by the Oiivenior-General and the Lieutenant-Governor, as above explained. " Tho Chief Justice, Sir William Young, in tho reasons for his judgment in this case, speaking of the eft'ect of this correspondence upon the two Acts in question, expresses himself as follows: "Among the gi'ounds taken in the rule it is urged that the 2()th and 21st chap- ters of the Provincial Acts of 1874 ^m ultra vires, and the appointments under them invalid and of no effect. But the Crown, through its Secretary of State, having authorized such enactments, and the Acts having gone into operation, this contention is quite untenable." As the decision of this case does not require it, I shall not examine the question whether the reply of Lord Kimberley, making known the opinion of the law officers, is to be taken to involve a sufficient consent on the part of Her Majesty to authorize the legislation which fol- lowed thereon. Suffice it to .say, that I recognise the wis- ct is as follow^ " Members of the Bar from time to time appointed aftfr the 1st day of July, 18G7, to be Her Majesty's Counsel for the Province, and members of the Bar to whom, froi:; time to time, Patents of Precedence are granted, sha!! severally have such piecedence in such courts as may h assigned to them by Letters Patent, which may be issiuii by the Lieutenant-Governor under the Great Seal of the Province." The Appellants contend that the terms of this section give an absol-ue power to the Provincial Government t'^ assign to the Queen's Counsel whom it may appoint l\v virtue of that Act, rank and precedence over tho-^e previously appointed by Her Majesty or her representa- tive. This interpretation is certainly erroneous. Tli? section is designedly worded so as to give it a pro.spective effect oidy. It does not contain a sing) ^ one of the ex])ressions ordinarily employed to -I.u a retrospective effect. To admit that this Act is retrospective would f^ a violation of the follov. ing general rule of interpretation: " It is a general rule that all statute;i are to be considered ka SUPREME COURT OF CANADA. 513 to operate in future, unless from the language a retro- 1^7^ spective effect be clearly intended." It would be useless Lknoik to cite here authorities for this princij^-le. Suffice it to iiiichik. sav, that I rely on the numerous authorities cited in the Fourm7r, j. case of The Queen v. Taylor, (1) decided by this court, upon the retrospective effect sought to be given to one section of the Act by which this court was constituted. Reljnng on these authorities, I am of opinion that the section of cap. 21 above cited hns no retrospective effect ; t'lat the Letters Patent gi zing rank and prece<.lence to the Appellants ought not to have any greater effect than the Act itself, nor to affect in any manner the position of the Respondent. I am therefore of opinion that the appeal ought to be ilismissed with costs. erroneous. Henry, J. :— This is an appeal from a decision of the Supreme Court of Nova Scotia, on an application sustained by affidavits of the Respondent, asserting a riglit of pre- cedence as Queen's Counsel over the Appellant, he, the Respond'i-uc, having been appointed by the Governor- General in Council, previous to the appointment as Queen's Counsel of the Appellant by the Lieutenant- Governor of Nova Scotia in Council, under an Act of the Legislature of Nova Scotia, passed subsequent to the appointment of the Respondent, and by which prece- dence over the Respondent was given to the Appellant. The court of Nova Scotia, while upholding the con- stitutionality of the Act, held that, while the right to regulate the matter of precedence generally appertained to the Local Legislature, it had not by the Act exercised the power to the extent of giving precedence to counsel appointed under it over those previously appointed by 33 (1) ICan. S. C. K.C5. rrrrrr II iliii: 1 i ; \\ \u' imiljiiH lAnm i 1 : i i ' i; ! ■ ; ■ ' 1 1 ■ 1 i . ' ■ i ■ 1 ' ' V 1 ; ' ;i; ; aid;. 187!) Lenoir r. Pi ITCH IK. Henry, J. 514 suriip:MK coiiiiT of caxada. the Governor-General in Council, and that it conse- quently had no retrospective operation. I feel bound to dissent from that proposition. The second section of chapter 21 provides that : " Members of the Bar from time to time appointed afcr the first day of July, in the year of our Lord 1807, to k Her Majesty's Counsel for the Province, and members of the Bar, to whom from time to time Patents of Precoilence are granted, shall severally have such precedence in nu^: courts as may be assigned to them by Letters Patent "vvhich may be issued by the Lieutenant-Governor mvh the Great Seal of the Province." The retrospective operation is not onl}' seen, but tik limit of it is to be back to a certain date. How thtii can I conclude the Legislature did not moan what it « plainly says ? This section in plain words is retro- spective. It provides that all Queen's Counsel appoints after the first day of July, 18G7, with those subseijueiitly a|_nointed, shall have the precedence awarded thtui by the Letters Patent to be subsequently issiu d. Both classes are by the provision put upon the same footin,^ and an individual is to have precedence irrespective of any position he formerly held. If, indeed, the words war-: merely that Queen's Counsel thei'eafter should Iiave the precedence awarded by the patents, for the mm of which it provided, a question might then be fairly raised that it was not intended to be ap}>lied to pvevio'.i> appointments ; but here the provision by unniistahlk language includes all appointed since the date specially limited, and applies as forcibly to the Resj)ondent as t" the Appellant. The words " from time to time" in ilif section do not only authorize the interference with tlif patents issued since the date mentioned, but would, in my judgment, authorize the change "from time to tiiiif of the precedence given by any patent previously issue! u -n !>:!?? 'I? id that it con>e- I feel bound to )vides that : mc appointo(latt.:r [■ Lord 1807, to U e, and mcniljers of ;ents of Preceilencf precedence in such )y Letters Patont rit-Goveriior iinik only seen, but tk I date. How thtu ot mean what it s j in woi'(ls is K'tivi- , Counsel appointc'i those subsequently lee awar'loii thiiii ntly issutil. Botk the same footinL', nee irrespective of aed, the words were lifter should have its, for the issuing ■ht then be fairly ipplied to previo'J- by unmistakaM' the date specially Res))on(lent as i le to time" in llif erference with tb ned, but would, in om time to time previously issued SUPllEME COURT OF CANADA. 515 Niiliit' under the same section. Having arrived at these conclu- sions, it becomes necessary to ascertain whether the Local Legislature had the power to pass an Act with such a provision. hi the argument before us it was contended, as it ha? terms of the Imperial Act, must necessarily be vJ.tr'i vires. That the right of granting Letters Patent (jf Prece- dence to barristers is personal to the Sovereign, is a proposition that has never been questioned, and thii- is no record of any parliamentary attempt to interfere with its exercise. Chitty, in his work on Pierogativt; (at page 110), says: — " If a Peer be disturbed in his dignity, the regular course, says Lord Holt, is to petition the King, and the King indorses it and sends it into the Chancery or tL- House of Peers, for the Lords have no power to judge::' peerage unless it be given to them by the King." At page 118: " To the Crown belongs also the prerogative of raisin.' practitioners in the Courts of Justice to a superi?: eminence by constituting them Serjeants, etc., or li granting Letters Patent of precedence to such barristtr: as His Majesty thinks proper to honour with that mark ;i distinction, whereby they are entitled to such rank at; pre-audience as are assigned in their respective pattiit- At page 107 : " The Crown alone therefore can create and confer dignities and honours. The King is not only the fountain. but the parent of them. Nor can even an ordinance of th House of Lords confer peerage." The Sovereign in England manifests his will by tb issue of patents, but I can see no objection to tlie dele;.?- tion, without any legislation, of the power to any imu diate representative of the Crown to issue such pattni" !sts his will by tfc ection to the dele^^s- power to any iwi"^' to issue such patent" SUPREME COURT OF CANADA. 517 within his territorial jurisdiction. The Imperial Parlia- ment, by an Act assented to hy the Sovereign, could, no doubt, otherwise provide for conferring dignities find fur ;'iving precedence to barristers in the courts, and could specially authorize colonial legislation for that iiurpose ; but, without that authority, I cannot discover, in the present constitution of the Local Legislatures, any power to deal with the subject. A despatch of Lord Kiinberley, Colonial Secretary, in 1S72, adx the Governor-General, representing the Sovereign. Tlie Sov- ereign could, no «loul)t, under her Royal sign manual, give the necessary power to a Governor, but the mere despatch of a Colonial Secretary cannot be held .sufficient to transfer to any body the exercise of a purely pieio[;a- tivc right of the Sovereign, Avhen merely suggesting tln' usurpation of that right by a subordinate, or, indcii], any C(donial Legislatui'c. If, as I has^e ahvinly .shewn. the local legislative power is limited by the Imperial Parliamentary authority which created it, a statutorv prohibition is thereby interposed to legislate beytind tli-' prescribed subjects, and that prohibition is ope rati ve I) make void any Act embraced witliin any sui ii-et-matter of such prohibition. This doctv'ne is applicable imle- pendently of any (question of conflict in legislation U- tween the Dominion Parliament and the Local Legisla- tures. The power of the Imperial Parliament in the matter of the creation and distribution of the colonial legislative powers is supreme, and no Colonial Secretary has ex ojfficio the right, by a despatch or otherwise, either to add to, alter, or restrain any of the legislative powers conferred by the Imperial Act in question, or, indeed, In any Act, or to authorize a subordinate Legislature todo.'^u, The special assent of the Queen to the local Act pro- viding for tlie issuing of patents of legal precedence could not, in my opinion, validate it. The Local Legis- latures have, as I have already stated, a prescribed anl limited jurisdiction, and, if the subject in question i- beyond their legislative limit, the mere sanction of the (,>ueen could not validate the Act passed in reference to it. But, as the Sovereign is the source of all honours anl dignities, it is argued that the Royal assent to the A< t i;U.multl.j. MSii . SUPREME COURT OF CANADA. 510 I i . Iv .suffifestinf' till? nate, (ir, inilunl, e ali'L'inh' shewn, by the Imperial i it, a statutorv slate l)eyi)n(l t!i-' a is operative lo ly sni.icct-inatt(r applicable imle- in legislation Lo- ll e Local Legisla- arlianient in the n of the colonial olouial Secretary otherwise, either egislative powers on, or, indeed, hy jfislature todoso, e local Act pro- egal precedence The Local Legis- a prescrihed aivl t in question i'^ sanction of the sed in reference however otherwise ultra vires, must l)e taken as a legis- lative Jeclaratiun of the waiver and transference of the Sovereign's functions. Several ilifficiilties, however, pre- sent themselves. The first is, that by such a conclusion the Act of the Liiperial Parliament would be extended, if ;iot in part repealed. Second, if the local Act be (ib initio void, it cannot become law merely by the assent of the Sovereign. It might as well be claimed that an ordinance of a City or County Council of the same tenor, ;'iving power to a Mayor or Reeve to ai)})oint Queen's Counsel, if assented to by the Queen, would be valid. If the Imperial Statute has not given the necessary legis- lati\e p(jvver to the Local Legislatures, an Act of theirs Aould be of no higher value than a city ordinance such as I have stated. The argument of this question, how- ever, is unavailable, for the Queen has not signified her assent to the Local Act in question. By the provisions of section 90 of the Imperial Act, the Governor-General, and not the Queen, assents to local Acts made in his name, as provided. The Lieutenant-Governors are ap- jiuiiited, not by the Queen, Itut by the Governor-General in Council. It cannot, therefore, be successfully con- tended that the Queen has assented to the local Act in question ; nor can it be with greater success contended that by assenting to it the Governor-General had any power in doing so to interfere with the Royal prerogative in (juestion. It is not necessary to say what means dirtetly used by the Sovereign would be operative to authorize the issuing of patents for the ai)pointments in question. Some may be found, but it is only necessary at present to deal with the course which has been already taken. Luoking, then, at sub-section 14 of section 92, let us ascertain the ground it covers : "The administration of justice in the Province, iuclud- 187'.» L EN out c. RiTCHIK. Henry, J. m '1} isiwmntt: :' ■I I ; ill ; pf M I' llihs ill ! i n. if '^i 1 ^-^ ' i. ^ J ; ■■ : ' ■ ' ■ 1 . . f ' 1 ' 1870 Lenoiu I'. ElJCHIK. Henry, -T. 520 SUPREME COUUT OF CANADA. ing the constitution, maintenance ami organization of Provincial courts, and including procedure in civil mat- ters in those courts." Tlie matter of the administration of justice, the con- stitution, maintenance and organization of cinuts auil procedure therein, has for centuries challenged ami ob- tained Pai'liamentary consideration in England, and statuses have been frequently passed to regulate tlaiu; but in none of them is found provision for the appoint- ment of Queen's Counsel. The prerogative of the Sov- ereign has been universally and at all times aduutti'l and exercised. Such being the case, how can we say tliat it was intended by the section in (piestion that tiic Im- perial statute should give to the Local Legislatures a power to regulate the appointment of Queen's Counsel, when Parliament itself, recognising at all times the Royal prerogative, exercised no such power ? The legis- lative powers given by sub-section 14 are full and com- plete as far ns they extend, and may be fully oxecutel without including the right to provide for the appoint- ment of Queen's Counsel. Provisions for such appointments are not necessarily included in those for the administration of justice, or for the constitution, maintenance or organization of courts; and as, at the time of the passing of the Imperial Act, the Royal prerogative in regard to them had never been questioned in England, we are bound to conclude, in the absence of express legislation, that its Parliament did not intend to interfere with its exercise, and did not intenJ to give to subordinate Legislatures a power to deal with a subject which it had never itself exercised or contended i*)V. Independently of that construction, we have to le governed by the well -settled doctrine that the Crown is not aft'ected b}' legislation unless specially referred to, )A. organization of ure ill civil mat- justice, the con- n of C(jurt.s ainl illcngcd and ul- n England, an-i ) regulate tlim; I for the appoint- tivo of the Suv- I times adinitted w can wo say that iion that the Lu- lal Legislatiivos a Queen's Counsel, it all times the wer ? The legi:?- are full and coni- e fully executnl ! for the appoint- not nocestsarily of justice, or fur ation of courts; imperial Act, the lad never been conclude, in tlie arliament did not d did not intenJ wer to deal with sed or contended we have to ho lat the Crown i» ally referred to, z SUPREME COURT OF CANADA. 521 and consequently that its fully admitted prerogative of reflating precedence at the Bar can only he affected or taken away l»y constitutional legislation in clear and (.•x])ress terms. I entirely agree with a remark contained in one of the judgnients of the court in Nova Scotia, tliat it would be ridiculous and an absurdity " that a scale of precedence should be adopted by the Lieutenant-Governor to-day, to be overruled by another framed in Ottawa to-morrow, and that reversed the next day by a fresh gubernatorial act in Nova Scotia." But I cannot concur in the conclusion drawn, that ''therefore the Act confers on the Lieutenant-Governor tlie exclusive right of regulating the precedence of Counsel in this Province," — for the best of all reasons, tliat, in my opinion, the local statute is ultra vires — gives no power to the Lieutenant-Governor to issue patents for such appointments — and therefore no sucli ridicu- luus or absurd condition of matters can arise or e.\ist. Tlie anomaly and absux'dity would appear only by the improper assumption of the right by which they would be created, and the suggestion of them is rather an argument against the right claimed for tlie Local Legis- lature. The preamble to the local Act in question is as peculiar as illogical. It recites that " Whereas the regulation of the Bar in Nova Scotia is vested in the Provincial Legislature ; it is expedient, for the orderly conduct of business be ire the Provincial Courts, that provision be made for the order of precedence of the members of such Bar in such courts." It rests the right to legislate in respect to precedence upon the properly alleged right to legislate in respect to the Bar generally, but the latter right, being limited short of the matter of precedence, cannot in its exercise 187U Lknuir r. RiTCHIK. Honry, J. ■ .1 :m i, . I i • V I ' 1879 LKNdlU r. KlTC'llIK. Jloury, J. Ill nil; - 522 SUPREME COl'HT OF CANADA. affect tliat suliject. It might liavc bet'ii consideicd expe- dient to deal with the matter of the ap[)()iiitiiii'iit of Queen'.s Counsel, but that consideration has littli' valui/ in determining the matter of legislative jiirisdicti(jii. In England, the Sovereign, as a general rule, uses the prerogative to confer honours and dignities upon eininent and deserving Itarristers, noted for the exliihitiun of superior legal talents and abilities and public services. The object of the local Act in (piestion, as the preainlle exhibits, is not only very dilferent, but novel. On behalf of the Appellant, an objection was taken which denumds notice. It is that the only niude of attacking the patent issued to him was by Hciri; fdcias. Had the ])roceeding been to vacate or rejieal a patent of the Crown, valid until set aside, the objection would have been good, but it does not re({uirc any such proceeJiii!' in a case where the fact of a valid patent ha\ ing beeu issued is negatived, as it is in this case, by an adjudi- cation that the patent was ah initio void. It does not require a procedure by scire facias to avoid the conse- ({uences of an unauthorized patent. A scire facias admits the validity of a patent. A court is a^ked, for reasons shewn, to vacate or repeal it, in the same way as an action for divorce must be shown to be based upon ca legal marriage. And, in an action for infringing a patent, a plea denying that it was issued would put in issue the validity of it. The position of the Respondent, as given by the patent under the Great Seal of Canada, when issued, was not only unassailed, but admitted at the aigiuuents, and as to it T am not, therefore, called upon to express an opinion ; and as, in my opinion, the subsequent local Act is ultra vires, I can come to no other conclusion than one in favour of the precedence acquired by the Respoiulent under his patent. His application to the court below SUl'UKME COriJT OF CANADA. .',23 was for the ju i lUl- ■ . i 521. SL'l'RKMK COl'HT OF CANADA. 1S70 considered by the learned judges of the court appiali'd Lknciiii t'r trn, Imt also have been fully an'*' *^^'*' hearing, I feel that I cannot, by deciding the caw Tasohereau, J. '"^ minor issncs, rid myself of the roHj)onsibility of con- sidering th('S(i grave and important (juestions, the detor- mination of which this court has been more specially created for. Tt is perhaps better that I should first consider the statute authorizing the appointment by the Lieutonant- Governor of Queen's Counsel in Nova Scotia, .'37 Vict. c. 20, as one of the Respondent's contentions is that the Appellants are not Queen's Counsel at all, and that tho said chapter 20, under which they claim to have boun named as such by the Lieutenant-Oovern: " where a Bill passed by the Provincial Legislatures is ''?"!lW-.:H|^f| SUPRKMK f'OT'RT OF CANADA. 529 Init also t1iat i/-ince to do so, ley have it fur ' any one elso. :' Hci- Majesty'< ne the exercl'^o I my opinion, a t in the B.N.A. ,t.h, is that th-.' eclevation, mor- Legislatures in ia«\a hii ■e. This, in my ity (loos not form islatuvos, and tlv heir Bills in H«r N. A. Act ontk \arliavuent and "f ^vcU known tkt perhaps refer to the Bills. As to ts that: theravliamenti^ die Qvieon's a-ssent. ■ction, hut sul^t :I('r Majesty's in- ■to in the Qneen'^ [assent, or tha:li^ l,u ot the Qu^'en^ k section ')-^ a^>- pe read as follo^;^ ial Legislatures i- presented to the Lieutenant-Governor for the Governor- 187!> General's assent, he sliall declare, according to hi.s di.s- LENora cretion, but suhject to the provisions of this A.ct and to i{itchie. the Governor-General's instructiorv>, either that he assents Taschomiu, j. till ri.'to in the Governor-General's nftnie, or that he with- holds the Governor-General's assent, or that he reserves the Bill for the signification of the '/ Mvernor-'jeneral's ph'a.sin'e." And section 5G, for the Province, must be read as fol- lows : " where the Lieutenant-Governor assents to a Bill in the Governor-General's name, he .shall by the first con- venienv opportunity send an authentic copy of the Act to the Covernoi'-General ; and if the Governor-General in Council, within one year after receipt thereof by the in> nior-General, thinks fit to disallow the Act, such .1 . llowance (with a certificate of the Governor-General o by the respective Provincial Legislature's, no more than there is any legal objection, in this case at least, to the Provincial officers named in Nova Scotia under tlie statute in (question taking the name of Queen's Counsel, so long as it is not in Dominion Couri.s, nor anywhere else uut of Nova Scotia, and only as membeis of a Provincial iffice or order that they lay claim to it, and without assuming to l)e of the rank of Queens C'-un>*d known under that name in the Empire. And thi.^ may explain ■^atisfaetcrily why this Act was not veto- d at Ottawa. It niav have been considered as ireatin-' a Provincial "tlico only, and so not affecting Her Majt-^ty's preroga- tives. The Act so taken being constitutional, the Federal authority had no reason for interfering, and allowed the law to stand. But the Appellants read the Letters Patent naming them, issued under that law, as crf^atiug tht-m of the ■auie rank and dignity as the Respondent, who has been is:;) .KNOIH I'. ire II IK. :-chenMin, J. "«ww r^:H KUI'RKMK COURT OF CANADA. , mm 'In m Hi m isrn app(iintt:'(l a Queen's Counsel by Her Majesty tlimi^'Ii Lknoik tl'C" rJovernor-General in 1S72. That is an error. Iftliov KiTciiiK. ^'^^'^ ^^^ statutes, they will sec that, thou^^h tlioy are Tascb'emui, J. Called hy the same name, it is only a new order or office which was created thereby; and a reference to tlieir Letters Patent will convince them that it is merely of this order or ncAV otHce that they have been ai>p(iiiite.l officers : " Now know, that we have appointed ant] (1„ hereby appoint" Messrs. Lenoir and Haliburton "to be during pleasure — Provincial Officers" say their Letters Patent. Evidently, these words "Provincial Oflicers" in the statute and in these Letters Patent hav<' bftn in- serted purposely, because the legislator was not prepared to openly and frankly assei't his rights to legislate on one of the Queen's prerogatives, and he felt himself tliat his powers to do so were very doubtful. I say, then, that the Appellants are not Queen's Counsel at all in the sense attached to this name in, for instance, the Respondent's commission, and that, for this reason, independently of the reason I gave in the first in- stance, their appeal, in my opinion, should be dismissed, Now, as to the other statute, the 37 Vict. c. 21, rcgidating the precedence of the Bar in Nova Scotia, little remains for me to say. Applying to it the prin- ciples which I have enunciated, and which must also g ivern it, I hold that thoiigh it may be legal in the enactment regulating the precedence of the Provincial officers named under the preceding statute between themselves, it is ultra vires and unconstitutional inso- much as it purports to regulate the precedence between Queen's Counsel najned by Her Majesty herself, or k the Governor-General in her name, and insomuch as it purports to give to other members of the Bar precedence over such Queen's Counsel. The Provincial Legisla- tures cannot, directly or indirectly, interfere with Her SUPUE.ME COIUT Ul-' CANADA. 535 i.-iff "''I » sv are not Queen's I this name in, for ind that, for tins ve in the first in- uld be dismissed. 37 Vict, c, -21, in Nova Scotia, (T to it the pvin- liich must also be legal in the of the Provincial statute between Institutional inso- icedenee between ty herself, or In- d insomuch as it ,e Bar precedence ovincial Legisla- terfere with Her Lknoik KiTCHIK. Majesty's preroj^'atives, or with her acts dune in the 1879 e.vercise ot" these prerogatives. As remarked by one of the learned judges in the court below, it would be absurd if a scalo of precedence could be adopted by the Lieu- Tascbereau, J. tenant-Governor to-day, to be overruh'd by another framed at Ottawa to morrow, and that reversed the next day by a fresh gubernatorial action in Nova bcotia. The learned judge is of opinion that to prevent such absurd conse(piences, it must be held that the Lieutenant- Goveruur has the exclusive right of regulating the pre- cedence of counsel in the Province. This, I hold, cannot hi', duite. Her Majesty's prerogative rights over the Dominion of Canada, as the fountain of honours, have not, in the least degree, been impaired or lessened by the B. N. A. Act, and Her Majesty, as heretofore, either directly from England, or through the Governor-General from Ottawa, has the right to appoint Queen's Counsel and regulate the precedence at the Bar (1). This the Appellants do not deny, but they claim that the Lieu- tenant-Governor has a concurrent power to exercise the .-ame right in Her Majesty's name. Well, I repeat it, I cannot see that he has that power by the Imperial Act, and still less that the Provincial Legi.slature could invest him with it, and authorize him to so use Her Majesty's' name. The confusion of powers and conflict of authority which would inevitably ensue if this right could be exercised in the Province as at Ottawa, or in England, cannot have been intended by the Imperial Act. The Provincial Legislatures have the right to regulate the Bar, but they cannot, by any legislation, either directly or indirectly, limit or lessen Her Majesty's rights or reader tliem inoperative. They cannot, in any degree, lessen or take from the ranks and dignities w^hich it ^Hfl ' i1 'V (1) Chitty on Prerogativea, 32, 33. J ■ M ! i j'Uu ;ii' 1 i ,1 L i ■ 1 1 ! '. 1 : ■ ' 1 ; i 1 580 SUI'REMK COURT OF CANADA. 1«7!) liKNOIK r. KlTClllH. ploaKcs Her Majesty to establish and confer. It would be a singular state of things, indeed, if a Queen's Counsel appointed by Letters Patent in England or Ottawa by TttHchomui. J. T^er Majesty could be the next day superseded in his rank by the Lieutenant-Ciovernor, and put at the foot of the Bar Ijy tlie issue of new letters of precedence. Yet, such is the Appellants' contention, or, at least, where their contention leads to. Mr. Ritchie, the Respondent, was duly ap[»niiite(l a Queen's Counsel on the twenty-sixth day of December. 1.S72, by Letters Patent from Ottawa, under the (Jreut Seal of Canada. On the twenty-seventh day of May, 1K70, Letters Patent were issued, under the two statutes, cc. 20 and 21, to which I have referred, by the Lieu- tenant-Governor of Nova Scotia, purporting to name the Appellants Queen's Counsel, and to give them prece- dence over Mr. Ritchie. The prothonotary of the Supreme Court of Nova Scotia, subsequently, in making up the dockets, etc., gave the Appellants precedence over Mr. Ritchie. Of this Mr. Ritchie complained to the said court, and obtained a rule nisi to coiifirm the precedence given to him by his Letters Patent of 1^72, and to direct that he should have precedence in court over the Appellants. The court granted his demand, and made the said rule absolute in the following terms: — " It is ordered, that the rank and precedence granted to the said Joseph Norman Ritchie by his Letters Patent of 2Gth December, 1872, be contirmed, and that he have rank and precedence in this court over all Queen's Counsel appointed in and for the Province of Nova Scotia since the said 2Gth day of December, A. D. 1872. From this judgment and rule the Appellants have brought the present appeal to this court. I am of opinion their appeal should be dismissed with costs. SUPREME COUUT OF CANADA. 537 nfur. It woulil Queen's Counsel or Ottawa Ly perseded in liis it at the foot of ecedeiice. Yet, ;a.st, where thuii ly appointed a ,y of December. nder the Ureut th day of May, le two statutes, 1, by the Lieu- ortini,' to name five tlieni prece- of the Supreme makiuf,' up the donee over Mr. ed to the said the precedence 1872, and to court over the and, and made ms: — ence granted to tters Patent of that he have er all Queen's i^ince of Nova r, A. D. 1872.' ipellants have urt, I am of ith costs. GwvXNK, J.: — The Respondent ha.s rai.sed tiiree points of ohjeetion to the present appeal : 1st. He contends that the order of tlie Supreme Court of Nova Scotia ai^'ain.st which this appeal i.s liro'.u'ht is not one from which an appeal lies within the meaning of the statute constituting; thi.s court ; hut tL..t order is undoubtedly a final disposition of the matter relatini,' U> which it is made, and, if the contenti{>u of the Appellants he well founded, materially impairs the h'!j;al riifhts of the Appellants, and does, therefore, clearly, as it appears to nie, constitute appealable matter. 2nd. He contends that the Letters Patent by which the Appellants were purported to be matlo Queen's Counsel were not under the Great Seal of the Province, as they professed to be. It was admitted on the argu- ment, that we have been relieved by an Act of the Do- minion Parliament, 40 Vict. c. 4, from the necessity of determining this point, and of entering into the interest- ing heraldic research which it seemed to open ; from this necessity, however, in the view which I take, we shotdd have been relieved independently of that Act. And 3rd, which is the sole objection on the merits, he contends that the appointment of Queen's Counsel i* ■I'ti'it. rires of the Provincial Executive, and that the Act of the Legislature of Nova Scotia, 37 Vict. c. 20 (in virtue "i which the appointment of the Appellants is, by the Letters Patent under which they claim, professed to be made), is idlra vires of the Provincial Legislature. This latter point the Supreme Court of Nova Scotia, while deciding in favour of the Respondent upon other grounds,. pi'jnijunced to be (|uite untenable, but, with great defe- rence to the learned judges of that court, it seems ta raise a very grave constitutional question. isrit Lkmuii lint 111 K. Uwjniio, J. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I liitZA |2.5 |5o ■^~ H^H <^ Ui 12.2 2.0 1.25 i 1.4 m 11^ PhotDgraphic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 4^ } C/. ¥ o 0^ r il I ' 1 ! ■ V : > hi . i M I ! i !!■ iillli^^ll il" 1870 Lkxoik KlTtHIK. •Gwynno, J. iiiMilh'ri r)3s Sl'PUEME COURT OF CANADA. It was not disputed, as indeed it could not be, thai tlic i-ii,d)t to appoint Queen's Counsel is a branch of tb; Royal prei'ojrative, that it (eciually with the power tu grant Letters Patent of Precedence, to make Serjeants- at-law, Judges, Knights, Baronets, and other ;superior titles of dignity and lionour) flows from the f(juiitain of lionour, which has its seat and source in the person '' Royalty. In England, in point of form, a Queens Coun- sel is the standing Counsel of the Queen, retained by her to be of her Counsel in all matters in which slie mav require his services. Substantially, the title is one uf honour and professional rank, conferring precedence ujm the person invested with the honour. Though, in point of fact, tiie recipients of this honour are nominated and selected by the Chancellor for the time being, yet, in point of form, the Queen's pleasure is taken upon their apvointment. In the colonies the appointments were made some- times, I believe, under the Royal Sign- Manual, but more usually by Letters Patent under the Gi'eat Seal of the particular Province of whose Bar the recipient is a mem- ber, signed by Her Majesty's representative within the Province, in virtue of the authority vested in him by his commission appointing him Her Majesty's representa- tive, and in pursuance of Royal instructions from time tu time given to him, governing him in the execution of the powers vested in him in respect of mattei-s in which the Royal prerogative is concerned. An Act of Parliament passed by the old Legislatures of the respective Provinces which now constitute the Confederated Provinces of the Dominion of Cauada, under the constitutions which they had before Con- federation, of which Legislatures Her Majesty was an integral part, as she is of the Imperial Parliament, upon being assented to by the Crown, was competent to divest f!!' ■H? SUPRKME COURT OF CANADA. 539 iSiXO'ta Hor Majesty of the ri,i,'lit to exerciso within tlie Prov- 187!» iiice any portion of her Royal prerogative; hut, at the Lknoiu time of tlie (lis3ohition of those oM Provincial con- Kit(hie. stitutions, upon the passing of the B. N. A. Act, and of gwj^, ,i. till.' creation of the new constitutions unF CANADA. necessity for stripping the Crown of its prerorrative in respect of the particular matter in question, for the purpcvA of placing it under the control of the subordinate executive or legislative authorities of the respective Province- which the Act brings into existence. The particular right in (question cannot consistently be vested in tlie Crown, and also at the same time in either the executive or the legislative authorities of the respective Provino\ To be invested in either of the latter, it must he absi- lutely sei)arated from the prerogative, for if Her Majesty should still retain the power to appoint Queen's Couns.l or to grant Letters Patent of Precedence, slie inu«t retain it in virtue of that prerogative in virtue of which she originally held it. It would be quite anoinalou>. and unwari'auted by anything in the British constitution of an analogous .•^haracter, and it would be quite deroga- tory to the Royal dignity, that this power to confer rank and precedence, which, by the constitution. Her Majesty possessed in right of her prerogative, should be shared by her with any subordinate person or authority. If either authority should have power at pleasure to make appointments superseding those made by the other, the right to confer rank and precedence wouM in fact rest with neither. In order, therefore, to vest the power in the subordinate. Her Majesty must, quoad the power, be divested of her prerogative. Now, does the B. N. A. Act, in express terms or by irresistible inference, divest Her Majesty of this branch of her prerogative ? By this Act, which is the sole constitutional charter of the Dominion of Canada and of the respective Province? constituting the Confederation, Her Majesty expressly retains all her Imperial rights, as the sole and supreme executive authority of the Dominion, and her pjsitiun as an integral })art of the Dominion Parliament. Tla Dominion of Canada is constituted a quasi Imperial SUPREME COURT OF CANADA. 541 ivjwer, ill which Her Majesty retains all her executive aiiJ legislative authority in all matters not placed under the executive control of the Provincial authorities, in the vame manner as she does in the British Isles ; while the Piuvincial Governments are, as it were, carved out of, anl subordinated to, the Dominion. The head of their executive Government is not an otHcer appointed by Her Majesty, or holding any commission from her, or in any manner personally representing her, but an officer of the Dominion Government appointed by the Governor- Gtmeral, acting under the advice of a Council, which the Act constitutes the Privy Council of the Dominion. The Queen forms no part of the Provincial Legislaturp~. as she does of the Dominion Parliament. The Provin ial Legislatures consist in some Provinces of such subordi- nate executive officer and of a Legislative Assembly, and in others of such executive officer and of a Legislative Council and Assembly. The use of Her Majesty's name by these Provincial authorities is by the Act confined to the summoning and calling together the Legislatures ; and, singular as it sieuis, this is, by the 82nd section, rather by accident, I apprehend, than design, confined to the Lieutenant- Governors of Ontario and Quebec. By the 9 1st section it is declared that the Acts of the Dominion Parliament shall be made by the Queen, by and with the advice and consent of the Senate and House of Commons, treating the Queen herself as an integral part of the Parliament, while the 92ud section enacts that the "Legislatures" of the respective Provinces, that is to say, the Lieutenant-Governor and the Legis- lative Assembly in Provinces having but one House, and the Lieutenant-Governor and the Legislative Council and Assembly in Provinces having two Houses, shall make laws in relation to matters coming within certain 187D Lenuiu f. RiTCHlK. Owynne, J. AH t H M I ^1 F ' *' ""^""iPII li ( ' '.IL. .. . _1_ J M ffl 1 T ; i 1 ■■ i ■ ' 1 i II n 4 ill 1 i ■ I 5 IM II, w J:: i 1870 Lenoik KlTOHIK. Gwyune, J. 542 SUPREME COURT OF CANADA. enumerated classes of subjects, to which their juris words or necessary implication, it appears to me to 1>; very clear that nothing in this section can have the effect contended for ; for Queen's Counsel have never bcdi nor can they be, regarded as a neces.sary element in tlie constitution and organization of courts either of civil or criminal jurisdiction. Those courts, in fact, were con- stituted and in perfect organization before ever the title or rank of Queen's Counsel was created, and tliev could still be conducted in full and perfect efiiciency though that rank should never have been confciTel They are not in any sense officers of the courts, nor Provincial officers. In the whole course of Imperial and SUPREME COURT OF CANADA. 513 1S70 Lknoik Provincial leifislation, although courts of justice have been constituted l»y Act of Parliauient, never has pro- vi>i()n ho'n made for the appointment of Queen's kitchik. Counsel as part of the constitution and organization owyn^o, j. of such courts, nor has it ever been suggested, I venture to say. until now that they form a part of such organi- zation. The power to create this rank or ordcT having, hv the constitution, existed always in virtue of the Roval prerogative right to create titles of dignity and honour, the transfer of such branch of the prerogative from the Crown to tlie Provincial Legislatures could only Ix! effected by language expressed in the most explicit terms. P)}^ the 9Gth section of the Act, the power of appointing judges, who do form a most essential element in the constitution of courts for the administration of justice, is transferred — not, however, to the Provincial, liut to the Dominion Government. As to the appoint- ment of Queen's Counsel, nothing is said, nor is there any subject placed under the exclusive control of the Provincial executive or legislative authorities which, by the most forced construction, can, in my opinion, be .said itmssarihj to involve the right to appoint Queen's Counsel. The result must therefore be, that the right still continues to form, as it ever has formed, part of the Royal prerogative vested in Her Majesty (who still retains her supreme executive authority over the Dominion of Canada equally as over the British Isles), to be exercised by her at her pleasure, either under her »i(,m-manual, or through the high olTieer, the Governor- General of the Dominion, who alone within these confederate Provinces fills the position of Her Majesty's representative. The Provincial statute, in virtue of which the Letters Patent appointing the Appellants are professed to be issued, recites, that the Lieutenant-Governor of right 'Pi *f ' ■ ' ■■ '^ *» ■ t ■ --(f ■ > - ' '-i I V, 1 < I! I 'iJ PI If HtIi ': W i " i ^\ lip' il ^p 11 ir i I li:; ' 1 s* 1S70 LlNOIll r. lliniiiK. CIWNllUO, J. r)44 SUPREMK COURT OF CANADA. ouf/hf to have the power of appointment. I fail to sre however, by what right that officer, who is not by the (•onstitntion Her Majesty's representative, ought to have the power to confer this title of honour in preference to Her ^lajosty herself, and to her representative the Governor-General of the Dominion. I presume it will not be contended, that greater discretion in conferrinf the rank upon the most worthy would be thus secuieij. The Imperial Parliament, however, is the only power which can vest the right in the Provincial executive, and, if it has not done so, no other power, not even the Provincial Legislature, is conipetent to say that of ridi. the power ought to be vested in it. There are other considerations also which appear to shew the inoonvenience of vesting such a right in the Provincial authorities. If vested in them, it might with much force be asked, what right could their Letters Patent confer to entitle the recipient to recognition in this court, or in .any other Dominion Court, as, for example, the Maritime Courts or an Insolvent Court, if such should be established? while Her Majesty's appoint- ment can confer the like rank in all those courts, as well as in her Provincial courts, and as well out of those courts as within their precincts. Then, again, by an old law of the Province of Upper Canada it was enacted, that it should no longer be necessary that commissions should be issued for holding Courts of Assize and Nisi Prius, Oyer and Terminer and General Gaol Delivery, but that if they should issue, they should contain the names of the Chief Justices and Judges of the Superior Courts of Common Law, and that they might also contain the names of any of the Judges of the County Courts and of any of Her Majesty's dounsel learned in the law of the Upper Canada Bar, •one of whom shall preside in the absence of the Chief im DA. snt. I fail to see, 10 is not })y the ^e, ovfjht to have [■ in preference to 3presentative the I presume it will ion in conferrinf be thus secured, i the only power ^incial executive, wer, not even the > say that of riyld which appear to ch a right in the lem, it might with uld their Letters to recognition in on Court, as, for nsolvent Court, if ajesty's appoint- lose courts, as well ell out of those [rovince of Upper jld no longer be issued for holding md Terminer and ley should issue, hief Justices and [on Law, and that ly of the Judges |>f Her Majesty's l)per Canada Bar, ince of the Chief SUPHKMR COURT OF CANADA. 545 'V ' Justices and of all the other Judges of the said Superior 1W9 Courts, and that, if no such commissions sliould be issued, Lknoir the said Courts should be presided over by one of the Kitchik. Chief Justices or of the Judges of the said Superior q^^^ j. Courts, or, in their absence, then by some one Judge of a County Court, or hy some one of Her Mnjentyti Counsel li'arned in the law of the Upper Camula Bar, upon such Judge or Counsel being requested by any one of che said Chief Justices or Judges of such Superior Courts to attend for that purpose. Now if, by any chance, a <,'entleuian claiming to hold the rank of a Queen's Counsel, in virtue of Letters Patent signed by the Lieutenant-Governor, should preside at a Court of Oyer and Terminer upon the trial of an important criminal case, and the validity of the trial should be called in (|uestion, upon the ground that the gentleman presiding was not qualified to sit as a Judge, not having any commission from the Dominion Government conferring upon him the rank of "Judge," and not having any appointment from Her Majesty conferring upon him the rank of " Queen's Counsel," a very embarrassing question might arise, and the ends of justice might be frustrated. Convenience, therefore, as well as the obser- vance of uniformity in the exercise of the power, would seem to concur with other considerations in pointing to the pi'opriety of this branch of the Royal i)rerogative being maintained, as of old, inseparably annexed to that prerogative, and to be exercised at the sole discretion of Her Majesty, thi-ough her sole representative in the Dominion, His Excellency the Governor-General. The Provincial Act which contains the above recital proceeds to declare and enact that it was and is lawful for the Lieutenant-Governor, by Letters Patent under the Great Seal of the Province of Nova Scotia, to appoint from among the members of the Bar of Nova Scotia 35 • .11 n I 4H SI I'UKMK COL'llT OF CANADA. 1877 Lknoir J', Hnt'HiK. Nova Scotiii. YouDK, C. J. Tho corrospondonco which lot! to these Acts is to ho found in tho Dominion ScsHioniil Piii»ur8 for 1873, N<». 50, and it is Ht rani,'!' that no ruferunco was inado to it in tho recent argument of tliisciist> Lord Kiinhorley's desiiatch of Ist February, 1872, is a ituhlic duoii. ment, hav ing a significant bearing on tho point now before ii.s. After Htatiny that a Lieutenant-Governor, appointed since tlie Union caiiu' into cflect, had no power to appoint Queen's Counsel, lie siivH, ''I am furtiier advised tliat tlio Legislature of a Province can cunfir liv statute on its Lieutenant-Governor tho power of such appnintnunt, and with respect to precedence and pre-audience, in the Courts (f the Province, the Legislature of tho Province has power to (Iteide as l)etween Queen's Counsel appointed by the Governor-(itiieral and tho Lieutenant-Governor, as above explained." It is to be iinted that both the IVIinister of Justice and tho Privy Council of Ciinada recoj,'nise the rigl't of Her Majesty directly, as well as thr()u;j;li her representative tho Governor-General, of selecting from tlie Bars of tho several Provinces her own counsel, and as the fountain of honour, of giving them such precedence and prc-a>idionce in lur Courts as she thinks proper. This power, of course, still exists, and it is pointed out by tho Privy Council that, when the Suiireinu Court or other Dominion Courts are established, commissions issued by the Lieutenant-Governor would not, as of right, give precedence or position in those Courts, though it might be advisable that such commissions should be recognised. Mr. Ritchie's patent, under the Great Seal of Canada, bears date the 27th December, 1872, and by tho uniform practice of our Coun he had precedence over all tho members of the Bar not holdin,' l)atents prior to his own. But by letters patent dated the 2Gth Moy, 1876, purporting to bo under the Great Seal of the Province and signed by the Lieutenant-Governor and Provincial Secretary, seventeen members of the Bar were appointed Queen's Counsel for Nova Scotia, and a new order of precedence was established, as it would seem from the recital among the several persons above, that is thereinbefore, appointed, but as it appears from the enumeration, among all the Queen's Counsel previously appointed since the 1st July, 1807, being thirty-three in all, including Mr. Ritchie, and giving precedence and pre-audience above him to several persons who did not enjoy it before. Upon affidavits disclosing the above and other facts, and producing the original commission and letters patent, the rule niai of 3rd of January last was granted and the recent arguuients were lield. ho fmind in the it IB Htriini^u that uciit (if this ciise, , is IV i)Vil>lic (liicu- lu'fi irons. After :o tho I'niiincanir uisL'l, he Hiiys, "1 inco can ctmftT liy inch aiiiKiintinont, 3, in thu Courts (i LB iHiwor til (k'culi- Guvcrnor-deiioral " It is t7, to be Uer Majesty's Counsel for tho Province, and members of tho Bar to whom from time to tinio liiiteiita of precedenco are granted, shall severally have such preoo- dence in such Courts as may bo assigned to them by letters pateiM. which may be issued by tho Lieutenant-Governor under tho tJru.ii Seal of tlie Province " , t tho argument it was vehemently urged uiMin us that this clause gave tho Executive Government an absolute uncontrolled .Ihoritv over tho members of tho Bar, so tliat the yiiungest and most inexperienced among them might have prece- dence over tho oldest and most eminent wh(» had not become (jtueen's Counsel previous to tho Union. Sympathizing as I do witli tlie reputation and dignity of tho Bar, I am unwilling to give to this Act an interpretation so injurious to their feelings and so destructive of their rights. Is tho language so strong and so clear as, for tlie sake of this obvious injustice, to oblige us to give it retro- siiective operation / Hero is a distinction, highly valued, won, in some eases at least, if not in all, by honourable service, and approved liy all the world, swept away without fault and without compensa- tion, by giving to an Act of our own Legislature an effect which I think of them too highly to believe that they ever entertained or understood. But what do the true principles of construction teach us as applied to a statute ? Shall the construction of this Act be retroactive or prosiiective ? Shall it apply to the past or only to the future t The maxim, Noca cutuititutiu futuris fonnam debet imponerc mm jjj'tt- teriik, adopted by this court in 1 Oldright, 07H, is best illustrated in Sedgwick on Statutory Law, lCl-4. A statute which takes away or impairs any vested right acquired under existing laws is to be deemed retrospective. Statutes should have a prospective effect »nly, unless the language is so clear and imperative as not to admit of doubt. "Tho principle," said Rolfe, B., in Moon v. Dttrden (1), "is one of such obvious convenience and justice that it must (1) 2 Ex. 22, 33. 1877 Lenoiii V. UlTCHIK. Sup. C, Nova Scotia. YouDK. <-'■ J- I liitiiffi Ml I. M •il! ^m « \u ' ^h ;|iil .1 yi Mm mm ^M Ff li- ': \ f^ ■ -''•!' iilijill!' ■■' ilM 187 Lexuik r. Ritchie. ^ Sup. C, Nova Sciitia. YouuK, C. J. 5.50 -UPRKME COURT OF CANAIU. iilway.? 1)1' ailliered to in tlie ci^nstruction of statutes, unless in cases whore tliere is something on the face of the enactment piittiii' it beyond tloubt that the Legislature meant it to operate retrospec- tively. " But I am of opinion that such an intention on tlie imrt of our Legislature is by no means clear, and therefore that the lottorj patent, although no (juesticm had been raised as to their validity, would 111 it atlect Mr. Ritchie's precedence. But we all know that a very important (jucstion did must unex- pectedly aiise on the first day this case was argued, as to thu seal impressed upon these letters, which many obvious considerations oblige us now to consider. [The remainder of the judgment of the Chief Justice deals witli that (juestion, and his conclusion was that a wrong seal had been used, and that the commission in (question was void on that ginuml. 11 ^ ! I ■ I WiLKINS, J. : — In my view of the case, it is iMt necessary for me to consider more than the following ground stated in the rule nisi obtained Ijv Mr. llitcliie. It is in terms as fidlows: " Because the Act of the L - cal Legislature, namely, c. 21 of the Acts of 1874, under wju.h certain barristers were appointed Queen's Counsel by the Lieutenant- Governor of Nova Scotia, by document or letters patent of the"27!li of May, 187t5, is ultra circ.s. " It appears to me that that this con- tention is, on the clearest i)rinciple3, without foundation. The sta- tute thus questioned has in effect received the royal assent, untl Her Majesty must therefore be considered tiiereby to have cm- powered her Lieutenant-Governor to exercise in her name all the powers purported to be conferred on him by the statute. I am un- able t(j conceive in what respects it can be held to invt>lvo kyisla- tion ultrit riv's. The sul)ject of our enquiry respects the exercise of a right to appoint Queen's Counsel for the Province. I nnist regard the statute as perfectly valid; and it appears tome that, when it is construed in the only way in which it can be inter- preted, the question of precedence before us is dis>»osed of as a legal couse(iuence. The recital of the statute m.ay be, by addini,'a few W(inl.^ that I distinguish by brackets, paraphrased thus: " Whereas the regulation of the Bar in Nova Scotia is vested (<»'' mode) in the Provincial Legislatui'e, anu it is expedient for the orderly ct)nduct of business before the Provincial Courts, that pro- vision be made for the order of precedence of the members of sudi Bar in such Courts (but saving all rights of precedence heretofore •iAwJtLUi lIU. tutes, unless in cases enactment puttin.; it to (iperate rutiosiiec- ention on the jiart nf efore that the li'ttLT.s I .13 to their viiliihty, 'stion dill most unex- irgued, as to the seal ivious consitlerations i Justice deals witli vrong seal had lieen i-oid on that 'Tounil.' •y for me to consiiler rule nisi ohtainod by use the Act of tlieL ■ f 1874, under wlii'.h selby the Lieutenant- ers patent of tlie '27th lie that that tliis con- undation. Tlie sta- the royal assent, ami lereby to have cm- in her name all the e statute. I am un- l to involve le:,'isla- espeets the exercise Province. I nnist appears to mo that, lich it can he inter- is disposed of as a may be, by adilin,'a paraphrased tints ; Scotia is vested (■'<"'' s expedient fur tiie ial Cotn-ts, tlnvt pm- he members of stieh ecedencc heretofnre SUPllKME COURT OF CANADA. ooJ at any time granted by Her Majestj', or since the first day of July, A.D. 1H07, granted by His Excellencj' the Governor-General of Canaila, to any member or members of the said Bar)." Tlie ([uestion which we have to decide arises under the second clause of the statute. That clause must be so construed as not to restrict nr interfere with any right of precedence at the Bar, con- ferred on any member of it, before the passing of the Act, by the Oaeen — the acknowledged fountain of honour — or by any one duly authorized to confer it by Her Jlajesty. No such right can be ju- ilieially lield to be prejudiced by the clause in (juestion, or by the exercise of an authority under ii, witj:out violating these funda- mental principles 1 cognised as governing the construction of sta- tutes, viz. :— !ir.st, that the Sovereign is not boinid by a statute by a mere iinpltcation of a legislative intention to that etfect ; secondly, that vested riglits are not taken away by legislation without the plainest evidence of an intention to divest them. It cannot bo questioned that Her Majesty has, by assenting to this statute, ex- pressly so far parted with her prerogative right in the subject- matter of the legislation, as to authorize, prospectively, after the passing of the Act, her Lieutenant-Governor of this Province to exercise it to the extent in which it is necessarily conferred on that iiigh officer by the statute. We are bound so to construe this second clause as. wliilo giving full eflFect to the clear intention, not to adopt a construction that will derogate from any right which, before the Act came into operation, had been grantvl by Her .Majesty or by ati authority duly delegated by her. The ol.iiise, then, must be so construed as that it shall not be held to have authorizetl the Lieutenant-Governor to degrade any member of the i5ar fmni that relative position at the Bar which had been specially assigned to him, directly or indirectly, by Her Majesty, in the in- terval that elapsed between the Ist day of July, 1807 — the date be saved also. Now, Mr. Ritchie had been appointed one of Her Majesty's Counsel learned 1877 Lesoih IIlTCniK. ^Sup. r., Nova Scotia. Wilkins, J. ; m s ' m I I : :' In n :i • i 1877 Lenoir V. Ritchie. Sup. C, Nova Scotia. Wilkins, J. !.■: 1 ''i ill' Llliii! 552 SUPREME COURT OF CAXADA. in the law for this Province on the 2Gth of December, A.D. 1872 by letters patent under the Great Seal of the Dominion, by the Governor-General in the name of Her Majesty. On His Excel- lency Her Majesty had before then conferred the right to make such appointments, and by virtue of her undoubted prerogative. Her Majesty's right to do so could no more be questioned than could have been the right granted by Her Majesty to lier royal son, the heir a^tparent, in Her Majesty's name, to bestow honours and titular dignities on selected subjects of the " Empress Queen of India," \;hich right His Royal Highness exercised on the occa- casion of his visit to the East. Mr. Ritchie's right of precedence at the Bar under tlie Ouver- nor-General's patent, as claimed by him, existed, and, in my opinion, remained intact, at and since the passing of the statute and was not in any manner prejudicially affected by the patent granted by the Lieutenant-Governor. His relative position at the Bar must be governed by the patent that he holds, so long as it re- mains in force, notwithstanding any patent or patents tiiat have been or may be granted by the Lieutenant-Go vernDr of Nova Scotia under the authority of the statute in question. [The remainder of the judgment of Mr. Justice Wilkins refers to the question of the seal, as to which he diilercd from the Chief Justice.] James, J. : — The task which I have now to perform is, I need hardly say, one which I would gladly have avoided. It is to give my opinion in an important case — a case, as it now stands, virtually decided by this honouriible court, of astounding importance — in opposition to that of four judges, all of them my seniors, and three of venerable age and experience, extending over decades of years ; and I n^ay well presume, when I consider their ability, learning and experience, that I am wrong in the opinion I am now to deliver. Nevertheless, I have a clear and well-defined opinion on this question, which has been forming and ripening during all the discussions which have taken place. It was but on Saturday afternoon that I became aware, to my great disappointment, that there would be a differ- ence of opinion on the Bench, and that I should occupy the position of being alone in my opinion. Perhaps it would have been better had I accepted the offer so kindly made to me by iny learned brethren, of a postponement of the decision, in order to enable rae H )A. SUPREME COURT OF CANADA, 553 to prepare an opinion which would do justice to my own convic- ti(in8. I have Iiad but a few hours to write my judgment, and therefore I have not been able to attain that end, but I may, per- haps, have succeeded in shewing that there is at least some reason for the results at which I have arrived. And first, as to tlie (question of Mr. Ritchie's precedence, inde- pendently of its reliition to the seal. The validity of the precedence sranted to Mr. Lenoir and others, against which he contends, depends on the validity, effect and construction of two Acts of the Lociil Parliament which have been already fully referred to. Their validity, or ratlier their effect, in transferring the exercise of llie royal prerogative was questioned at the argument, but it has been sustained by the opinions of the learned judges who have preceded me, in which I am happy to concur, they having already decided that these Acts are not ultra vires, but that they confer upon, or at least contirm in, the Lieutenant-Governor the right to exercise the prerogative of the Crown in the appointment of Queen's Counsel, and in regulating the precedence of the Bar of this Province. I do not consider the first of these Acts at all derogating from or trans- ferring the Queen's prerogative. As the sole fountain of honour throughout her vast dominions, whether on the plains o' Hindostan or in the Province of Nova Scotia, this prerogative is still vested in her. But by assenting through her representative, the Governor- General of this Dominion, to this Act, she has rendered legal the exercise of that prerogative by her representative in this Province, without her more immediate intervention either personally or by her officers. This Act I hold not to take away her prerogative, but merely to place the exercise of it in the hands of the Lieutenant- Governor. It is still her royal prerogative, by whomsoever it may be legally exercised. But I think it is obvious from both of these Acts that in trans- ferring the exercise of her prerogative she intended to do so, and has done so, in a plenary manner. The language of the Acta is as strong, clear and definite as is possible. They profess to give to the Lieutenant-Governor not only the unlimited power of appoint- ing Queen's Counsel, but the unlimited power of regulating the Bar, by giving precedence to such of its members as he shall see tit. I need not enquire whether Her Majesty, by assenting to the first of these Acts, gave up all power of interference with the appointment of Queen's Counsel. Clearly there is nothing on the face of it to restrain the Imperial or Dominion Governments from 1877 Lknoir I'. RiTOHlK. Sup. C, fova Scotia. James, J. .H\ !'!l '!■ V I lAM ": * i ! ■ T"P^^^ ! f hW , Mi ii;; i t t i , ■ ' ■ i \r ) • 1877 Lenoir V. E ITCH IE. Sup. C, Nova Scotia. Jumes, J. 554< SUPREME COURT OF CANADA. exercising that power, anJ there is nothing in the exorcise of that power by eitlier of tliese bodies necessarily conflicting with the power of appointment conferred on the Licutenant-Govornor. But when we come to the question of precedence conferred by thu second Act, it is obvious that it is a power which could nut U- exercised by more than one of these bodies without the grossest confusion. It would be ridiculous to suppose that either Her Majesty or tlic Legislature intended that a scale of precedence should lie ado|)te,i by the Lieutenant-Governor to-day, to be overruled by another framed in Ottawa to-morrow, and that reversed the next day by a fresh gubernatorial act in Nova Scotia. Such a state of a.4'airs would be a patent absurdity, which could not be thought of bv anybody, and therefore I am clearly of opinion that this Act con- fers on the Lieutenant-Governor the exclusive right of regulatiii;; the precedence of counsel in this Province. But to what extent I Can the Lieutenant-Governor only regu- late the precedence inter sc of the Queen's Counsel appointed under that Act ? Or has he all the power which before the Act was, and still is, vested in the Ci'own ? I will further observe that the second of these Acts, which I liave now under consideration, is quite general in its language ; its title is " An Act to regulate the Precedence of the Bar in Nova Scotia, and its preamble is as follows : "Whereas the regulation of thv> Bar in Nova Scotia is vested in the Provincial Legislature, and it is expedient, for the orderly conduct of business before the Prov- incial courts, that provision should be made for the order of pre- cedence of the members of the Bar in such cases. " There is not a word in the title or preamble indicating any inten- tion to limit the operation of the Act, nor is there a word in any part of the Act to limit or restrain it except the express limitationj in the Ist, 2nd, and 3rd sub-sections, giving precedence to the Attorney-General of the Dominion, the Attorney-General of Nova Scotia, and the Queen's Counsel appointed before July 1st, 18G7. All other Queen's Counsel and other members of the Bar, by worda as express as the English language can supply, are entitled to such precedence as the Lieutenant-Governor shall from time to time see fit to grant to them, and no more. But it is objected that this Act, express as is its language, could only refer to such gentlemen as had not received the honorary dis- tinction of the silk until after the passing of the Act ; and that to tliiylik' Jfi r;.:taf;i^s.n SUPREME COURT OF CANADA. 000 "i\e it a lar;^'er construction would be to give it an fx ponf facin iiiioration, so as to interfere with vested riglits. If it wore so, \\\\- ,i,,ubteillv this woukl bo a valid if not conclusive argument .against -ivinc the Act the more extended operation whicli is imported l)y ij clear, exjjress language. But is it the fact that the precedence ,,t a Queen's Counsel is such a vested right and interest that it can- iijt be taken away without moral wrong and injustice? If it be, I'leii the iireced'jnco of every senior member of the Bar is unjustlj- interfered with wIkju one of its junior '.members is elevated, by his a'.iiuintiuent as Queen's Counsel over his seniors at the ]?ar. Do we nut know— do I need to refer to the abundant authorities cited i.n the argument, and numerous others, to shew that it is the con- stant practice for tlie Crown in England not only to confer i\ se liMnurary distinctions on junior members of the Bar, by appointing them over their seniors, but to select a particular barrister or junior Queen's C()unsel and give him rank over Queen's Counsel of 1 n;' staiuling, with no better reason than the Sovereign's will and [leasure I Is this, then, which is oixlinary usage and practice of t'le Crown, an immorality ? Is it such an act of wrong and injustice that we must presume, rather than permit it, that an Act of Par- liament nuist be lield not to mean what it expressly and positively declares '. If it be, then our Sovereign Lady the Queen is in the constant practice nf committing the most atrocious acts of injus- tice—an idea so repugnant that it appears to me to render my argu- ment conclusive. And not only so, but if this be immoral, then t::e whiile Act, from beginning to end, is based on a corrupt ami dishonest principle, for its whole scope and essence is to enal '.e i!ie Lieutenant-Governor to do the very thing in all time to come that is now complained of as .an act of injustice. It is true that the Serjeants of the Common Pleas, in 1810, niade a gallant stand for their privileges, when, by an order under the R'lyal Sign Manual, their rights of exclusive audience were inter- fered with, and barristers from other Courts permitted to plead in t.iat C(iurt, with precedence according to their rank and seniority. The position whicii they assumed was thfit the Court itself, as well as the rij/hts of all its officers, were of common law origin, and were fixed by immemorial usjige and prescription — that the Ser- jeants were a part of the Court itself, and had been so from time immemorial, .and that the Crown, by a Roy.al Mand.ate, could no mure abrogate the office of Serjeant, or control its privileges, than It could take aw.ay the Court itself or direct that the Serjeants N is7r Lenoik V. R ITCH IK. Sup. ('., ova Scotia. JiiiiieB, J. H m ''it li > i. in 'f • %■ ■i i i 1 ;{ 55G SUPREME COURT OF CANADA. 1877 Lenoir V, Ritchie. Sup. C, Nova Scotia. James, J. should \)G the Judges. And it was contended by Sir William Fc 1. lett and Mr. Austin, on behalf of the Serjeants, in arguments of the higliest learning and most consummate ability, which I Imve rt*! with great pleasure, not as in this case, that their rights cmildnit be taken away by Acts of Parliament, but that being fixed by the common law, they could not be taken away by any lesser authdritv. But the case of the Serjeants is an exception. In all tlie other Courts the power of the Crown to regulate the procuediims nf th^ Bar is unlimited. No doubt if this power were exercised in an arbitrary or capricious manner, it would be the subjett of grave complaint and dissatisfaction. But such a thing as a Queens Counsel in England contending that he had a vested right in his precedence, or to place a junior over his head was per w an injustice to him, would be, I venture to say, an unheard-of prdceediiii,'. I therefore hold, with very great deference to the learned and nblj Judges who have given their opinions, and who are in all pr a- bility in the right, that Mr. Ritchie had no vested interest in Lis precedence as Q. C. , any more than any of his seniors ni.iy have had when he, in compliment to his great ability and high stiuulin,' at the Bar, was very properly elevated over their heads to the Inner Bar ; and as I have already endeavoured to maintain the position that Her Majesty intended by that Act to transfer to the Lieutenant- Governor all her prerogative in relation to precedence at the Bar nc: therein specially excepted, it follows, if I am right in these premises, that this Act having transferred no power which Her ]Majesty in person, or by her advisers, might not justly and legally have exer- cised had the Act not passed, no wrong will be done to Mr. Ritchie in holding that the Act is not retrospective in any unjust or impri per sense, and therefore ought to be construed according to its plain intent and meaning as expressed by its language. [The learned judge then proceeded to consider the (juestionof the seal, as to which his judgment was in support of the o:it mission.] by Sir William F.l in arguments of tlk- y, which 1 hiive rta4 leir rif^hts cnuldni; it being tixcil liy tl;o any lessor authnrity, ion. In all the otlier le proceediiiL's <]f thf were exercised in an the subject of ijTavt; thing as a Queen's I a vested right in liis was per .'••'! an injustice sard-of proceedin;,'. I I the learned and iible who are in all pr a- vested interest in liis : his seniors may have ility and high standin: heir heads to the Inner > maintain the position isfer to the Lieutenant- icedence at the Bar nc ight in these premises. which Her JIajesty in and legally have exer- le done to Mr. Ritchie any unjust or improper according to its plain lage. insider the question i:f support of the w SUPREME COURT OF CANADA. 557 1870* June Iti, 17 ; SUPREME COURT OF CANADA. The Picton. C. J. McCuAio AND E. B. Smith Appellants, AND David Smith Keith Respondent. Dec. 1:3. On appeal from the Maritime Court of Ontario. [lieported 4 Can. S. C. R. 64S.] Maritime Co^irt, poiver to establish in one Province. The Act 40 Vict. c. 21 (D), establishing a Maritime Court, with jurisdiction limited to the Province of Ontario, is within the powers of the Dominion Parliament. Appeal from a decree of the Maritime Court of Ontario, in a case of damage, instituted by the owners of the steamer Southern Belle against the steamer Picton, the owners intervening. [The appeal involved certain questions of fact which it is not necessary to detail.] Mr, Maclennan, Q.C., for the appellant : The first point I will raise is whether the constitution of the Maritime Court was illegal and ultra vires of the Par- liament of the Dominion of Canada. This is a Dominion court, establi.shed to execute Dominion laws in the Prov- ince of Ontario. If the power exists under sub-section 2 of section 91, which gives the Dominion Parliament power to legislate about trade and commerce, then it would be competent for the Dominion to create a court which would have exclusive jurisdiction over subject ♦ Present : -Ritchie, C. J., and Strong, Fournier, Henry and G wynne, J J. 7 1 f 1? iMIfi i } ■ \ isk\^^ }w "■:i< *: ' .1 % :iJiiliii ( ;. 'i' i i I f I ^ i 1 i 1 ; i ( .! M 558 SUPREME COURT OF CANADA. 1879 The Picton. AH(iUME.\T. matters which arc now tried by our Provincial courts. If it is a Dominion court, its jurisdiction slioulil nut l..- limited to one Province. (The Chief Justice: — If there is one subject mattti over which the Dominion Parliament has KHrislativL authority it is this. There is nothinj^ to provoiit the Parliament from limiting the territorial jurisdiction of a Dominion court. You might as well contend that tlio Exchequer Court Act is ultra vires because some parts are only applicable to one Province. I do not tliink this is an arguable point.) ATr. Juhn E. Ruse for the respondent. [The argument and judgment on the facts of the case are omitted.] Ritchie, C.J. (p. G55) : — As to the constitutional question which has been suf'- gested in reference to the court: the 40 Vict. c. 21. which establishes a Court of Maritime Jurisdiction in the Province of Ontario, and gives to all persons the like rights and remedies in all matters (including cases of con- tract and tort, and proceedings in rem and in 'personnm) arising out of or connected with navigation, shipping, trade or commerce, on any river, etc., of which the whole or part is in the Province of Ontario, as such persons would have in any existing British Vice-Admiralty Court, if the process of such court extended to the saiil Prov- ince, the B. N. A. Act, section 91, gives to the Dominion Parliament the exclusive legislative authority over these several subjects, and also power to establisli courts for the better administration of the laws of Canada. I have not heard a word that in my opinion casts the slightest doubt on the validity of this Act. Provincial courts. tion shouM not U mo suVtjcct matter lit has legislative [ig to prevent the al jurisdiction of a contend that the ecausc some parts I do not think this SUPREME COURT OF CAN'ADA. 550 Henrv, J. (p. G.')7) : — 1879 I have considered the objection to the jurisdiction, but The Picton. have been unable to discover any reason to doubt that Hocry, j, the Act establishing the court was intra vires. [Strong, Fournier and Gwynne, JJ., agreed generally in affirming the judgment.] I'll n^aXs ■wV ^ Vmm :f ■''■■{. e facts of the case hich has been sug- 16 40 Viet. c. 21. ne Jurisdiction in ill persons the like ading cases of con- and in perso)J«ni) t^igation, shipping, ■ which the whole 3, as such persons -Admiralty Court, to the said Prov- s to the Dominion .thority over these stablish courts for f Canada. I have casts the slightest tr % f; it iji; III H i! r I 1872* March 11. 1873 Jrin. 8. 500 ONTAUIO COCUT OF Al'I'KAL. ONTARIO COURT OF APPEAL. Jie GooniiuE. Tuvey V. Ooodhur ; Gooillnf v. Tovcy [Reported 19 Grant, .Wo\+] Juriadicfion of Local Lcijinlatures — 3^ Vict. c. 09 (O.) ~-I)„miiil, A testator had dovisocl tho residue of his estate in trust for such of his chililren as should bo living at the decease of liis wiJmv and for the children of any of them who should then ho (luad, liefore the widow's death, and on her application and that of the testator's cliildren (all of whom were living), the Provincial Legislature of Ontario passed an Act (34 Vict. c. !)!») fur diviil- ing the property among the testator's children forthwith. Held, that such an Act was within the competence of thu Pin- vincial Lcgislatm-e, but tho court held further (Draper, C. J., and Spragge, C. , dissenting) that the testator's graudchiklrni not having been expressly named in the Act and tliere bciii;' no express and explicit enactment specifically referring to anl barring their rights, their interests remained unatl'ected by the Act. The Hon. George J. Goodhue, the testator, by his will dated 8th Decemher, 1809, devised all his residuarv estate, real and personal, to trustees to convert into money, and to accumulate during the lifetime of his widow; and, after the payment of certain anticipated claims thereon, in trust for all the testator's children who should be living at the decease of the widow, in * Present :— Draper, C.J., Spragge, C, Hagarty, C.J., Morrison, Wilson, Gwynne, .and Gait, JJ., and Strong, V.C. In the report in 19 Grant, it is stated that Mowat, V.C, was present, but on exaniiiiatioD of the papers in the case, it appears that he was not present at the Hecomi argument, and took no part in the judgment. t The statement of the case is abridged from the report in 19 Graut, with one or two variations. -LLi; ONTAltIO COURT OF APrKAL. 5G1 IlifltKi- Vict. c. TO) fiinliviil- Mi (flual sliares, and for the child and children of such of i«72 ;} the testator's children as might then bo dead, in equal jie (Ioobhi k. shares ; such grandchild or grandchildren to be entitled .statkmknt. to the share which his, her, or their father or mother would have been entitled to if living. After the testator's death, the widow and children of the testator, by indenture dated 2<)th September, 1870, after nciting the will, and after other recitals as to the payment of annuities and legacies under the will, and that the residuary estate amounted to more than $800,- 000, and that it was desirable that each of such children of the testator should enter into possession of their shares respectively without waiting for the death of the widow, thereby provided for the allotment to each of the testator's children of his and her respective shares. They also stipulated to apply to the Provincial Legisla- lature to confirm the arrangement, and for all necessary and incidental powers. Application was accordingly made to the Legislature by petition, setting forth the will at length, and the names of all parties, infants as well as adults, interested thereunder, for an Act to con- firm and validate the settlement which had been so made. Thereupon an Act was passed enacting that the said deed should be confirmed and made valid ; and the trustees uuder the will were authorized and required to carry into effect the provisions of the Act, and were thereby declared to be saved harmless and indemnified. One of the trustees under the will refused to carry out the arrangements contemplated by this deed, and con- firmed by the statute. Thereupon, a petition was pre- sented to the Court of Chancery by the testator's chil- dren, praying that the trustees might submit their accounts ; that a referee might be appointed for making the allotment and distribution provided for by the inden- ture ; that the trustees might be ordered to carry into 36 m .) i ;> 5G2 ONTARIO COURT OF Al'PKAF,, I..! ) It:' 1872-3 effect such allotment and (Hfltribution when made ; and Re (ioouMVK. that all proper directions might be given, inquiries Statk^knt. ^^^f^» '^"^^ accounts taken. The court, by an order (May 3rd, 1871) granting tlii prayer of the petition, did " order and direct that the said trustees do hrir^ in and submit to the ^Master of this court at London proper statements and accounts of so much of the trust estate in the said petition mentioned, as at tbt date of the passing of the said statute was within thi Province of Ontario, and what the same consisted of, and its present condition, and this court doth refer it to the said Master to make all proper enquiries respect- ing the said trust estate in Ontario as aforesaid, and to take all necessary accounts thereof. " And this court doth further order and direct that the residue of the said trust estate in Ontario be divided into six separate shares or allotments of equal value, in the mode provided by the said indenture and according to the terms thereof." Against this order the trustee appealed : 1. Because it was beyond the power of the Legislature to pass the statute, and it ought not to have been acted on by the court. 2. Because it appeared that some of the i)arties prejudicially affected by the statute were domiciled in Great Britain, and others in the tnited States of America, and never had their domicile in this Province. 8. Because a considerable portion of the testator's estate was not in this Province at the time of his death, i. Because the order directs the appellant to commit a breach of trust without affording him any protection, 5. (At the second argument, by permission of the court, the point not having been taken in the court below or raised by the reasons for the appeal) That the statute does not take away the rights of the infant grandchil- dren, or destroy the trusts in the will for their benefit, or svhon made ; and pivcn, inqulrios 171) Ri-anting tin iroct that the said aster of this court ints of BO much of ntioned, as at the e was within the amc consisted of. Durt (loth refer it enquiries respect- 3 aforesaid, and to and direct that the ario or allotments of the said indenture ialed : 1. Because ilature to pass the ,en acted on by the |ome of the parties were domiciled iu United States of |e in this Province. ;he testator's estate ^e of his death, i luant to commit a im any protection. ission of the court, the court below or |l) That the statute infant grandchil- for their benefit, or ONTARIO f'OURT OF Ari'FAL. r)()3 authoii.''c or direct the present division v.* distribution I872;j of any prc.Dcrty, real or personal, wherein under the will /if (Joohhuk. they have a ^ontinp;ent or other estate or interest. statkmknt. A suit was also instituted in the Court of Chancery in the names of three infant grandchildren of the testator, not livinj,' in the Province, and by the trustee, against all the children of the testator, and against the several husbands of his daughters, and some of the testator's grandchildren. The bill, amongst other things, set forth, that by the royal instructions the Governor-Gen- I ral was directed to re^-^rve for the royal assent, or to dis- allow, any bill of an ext lordinary nature and importance, whereby the rights and property of Her Majesty's sub- jects not residing in the Dominion of Canada might be prejudiced. That the petition above stated had not been served on the infant plaintiffs or infant defendants in the respective suits, nor was any notice given them. And it prayed for an injunction against any act or thing by virtue of the order of the court, on the aforesaid peti- tion, or the statute, or the indenture or deed of distribu- tion, and that the indenture of distribution, statute and order, might be declared void, and that the trusts of the will might be carried into effect. The testator's son, Charles F. Goodhue, demurred to so much of this bill as seeks relief in respect of the orders of the court, as no case is made for relief by the bill, and as the matters thereinbefore specified were adjudicated on at the hearing of the petition. Some of the other defendants also demurred to the amended bill, on the ground that it made no case for relief. The Court of Chancery allowed the first demurrer giving leave to amend, and disallowed the second. The plaintiffs appealed against the order allowing the demurrer, and the other demurring defendants appealed against the disallowance of their demurrer. •I J ■'11 < < ^!t) i ■P^"^¥P hiU i [: I ■ 504 ONTARIO COURT OF APPEAL. 1872-3 The case in appeal was first argued in June, 1871, iJeGooDHLE. and, as the judges ware equally divided, it was re- Statkmknt. argued on March 11th, 1872. On January 8th, 1873, judgments were delivered in favour of the appellant, all the judges holding that the Act was not ultra vires; hut the majority allowing tlie appeal on another ground, Draper, C. J., and Spragge, C, dissenting therefrom. Mr. }t<)})iuso)i, Q.C., Mr. C. S. Patterson, Mr. Andn- son and Mr. Moss, for the aj)pellant. Mr. J. Ilillijard Cameron, Q.C., and Mr. Blake, Q.C., for the respondents. Draper, C. J. (p. 378) :— The first question arises on the first reason of appeal against the order made upon the petition, viz., that it was beyond the power of the Legislature to pass this statute. If the Act can be shewn to be a dead letter, the order founded upon its validity falls lifeless and inoperative. It required an Act of the Legislature to alter a will after the death of a testator, which will was, at the time of its execution, made in strict accordauci with the law of the land, and in exercise of his rights and power ; for it is not questioned that he had sutScieut discretion to make a will, and that he exercised his own free will. He was under no legal incapacity, and it stands admitted that before this Act was passed the will was operative ; the estates and interests created and given, vested in the trustees and beneficiaries named ; and the very deed by which the children of the testator agree to defeat, as far as in them lies, the accumulation directed by the testator, as well as certain contingent interests given by him to his grandchildren, provides that it, the deed, shall be of none effect unless the Act desired is obtained from the Legislature 'EAL. led in J'lne, 1871, Lvided, it was re- were delivered in 8 holding that the jority allowing the 1. J., and Spragge, terson, Mr. Andn-- id Mr. Blah; Q.C., ONTARIO COURT OF APPEAL. 5Go )( The testator intended that his residuary estate should 1872-;} accumulate during the life of the widow. He intended ijcGooi'ntE. also that the children of any of his children who died in DraperTc. j. the lifetime of his widow should take their parents' share, and he provided for both these matters in lan- guage as clear as that used by him in making gifts to his children. But his intention evidently has met neither their wishes nor their expectations, and there- fore the deed of 26th September, in which there are no other considerations suggested than these — because the residuary estate exceeds $300,000, because "it is de- sirable " that the children should get their shares imme- diately rather than that they should wait for the period lixed by the testator, and because they executed that deed to secure to each child such immediate possession by an immediate division of this large residue, they mutually agree on a mode of division which shall bind them ; and because it was " doubtful " whether their arrangements could be legally assented to and carried out by the trustees, by reason of the coverture of several of the parties, and also from the insufficiency of the powers of the trustees under the will, they agree to apply to the Legislature to confirm their arrangements, and to compel the trusteer. to carry them out in place of those stated in the will ; in other words, to abrogate the disposing power of the testator after he had unequivo- cally exercised it, and to take away the possibility which the will had created in favour of grandchildren ; in short, to deprive him of powers which the law had given him The Legislature have passed such an Act as the parties applying desired. They have, in effect, altered the testator's will — not to supply a defect which rendered it difficult or impossible for his trustees to carry his inten- tions into effect, but to sub'^titute an intention contrary • -I ^l' It « iiillHN; '■■ ' ! I l.i I i ; ; ; IP mi i .HIM Mr ■Mi. 1 i: ( i ft***^ 5G6 ONTARIO COURT OF APPEAL. 1872-3 to what he has expressed, by rendering the accumulation AcGooDHUH. impossible, and making the division immediate which orap^c. J. he directed should await the death of his widow. • ••••••••, No English authority has been cited, nor do I think there is any, which would warrant our denying the power to pass such an Act. There may be cases in which the decisions look in the direction of neutralizing the enact- ment by construction, or in which a long series of deci- sions have, as it were, fined away the force of the language used, so as apparently to disappoint the inten- tion of its framers ; but they do not apply here. Among the classes of subjects with regard to which exclusive power is given to the Provincial Legislatmes to make laws, we find "property and civil rights in the Province," and " generally all matters of a merely local or private nature in the Province." I cannot say that the present is not a matter belonging to one or other of these classes. Nor do I think that we can derive any help from American authorities, though there is much to be found full of valuable suggestion to those who wield the legis- lative power. For as in England it is a settled principle that the Legislature is the supreme power, so in this Province I apprehend that within the limits marked out by the authority which gave us our present Constitution, the Legislature is the supreme power. It is on this principle that private Acts of Parliament are upheld as common modes of assurance, being founded upon the a-tual or implied assent of those whose interests are affected. But this power of binding private rights by Acts of Parliament is, as Sir W. Blackstone suggests, to be used with due caution and upon special necessity : as to cure defects arising from the ingenuity or the blindness of ONTARIO COURT OF APPEAL. 507 conveyancers, or from the strictness of family settlements, I872-3 or ill settling an estate, as where the tenant of the estate ne goouhuk. is abridged of some reasonable p'ower, or to secm-e the Dra^eTc. j. estate against the claims of infants or other persons under legal disabilities. In these or the like eases " the transcendent power of Parliament is called in to cut the Gordian knot." The restoration of Charles II. gave rise to a good deal of this private legislation, and at the close of the session (13 Ch. II. 1661) His Majesty observed on the unusual number of private Bills: "But I pray you let this be done very rarely hereafter. The good old rules of the law are the best security. And let not men have too much cause to fear that the settlements that they make of their estates shall be too easily unsettled when they are dead by the power of Parliaments " (1). "As to what has been said as to a law not binding if it be contrary to reason, that can receive no countenance from any court of justice whatever. A court of justice cannot set itself above the Legislature. It must suppose that what the Legislature has enacted is reasonable ; and all, therefore, that we can do is to try to find out what the Legislature intended. If a literal translation or construction of the words would lead to an injustice or absurdity, another construction possibly might be put on them ; but it is still a question of construction, and there is no power of dispensation from the words used" (2). Mr. Sedgwick, in his learned and admirable treatise upon Statutory and Constitutional Law, argues, and I think unanswerably, that the judiciary have no right whatever to set aside, to arrest, or nullify a law passed in relation to a subject within the scope of legislative authority, on the ground that it conflicts with their (1) Pari. Hist., Vol. IV. p. 247. (2) Per Lord Campbell, in Logan v. Bursleui, 4 Moore P. C. C, p. 296. ill mh- • I'm :,.m I M ?' ^ I ;.-!*«. I ; i I' i * ii: ii 'lii i Ii lii i!-: :f!i !lili :i: MM ' ill!: 5G8 ONTARIO COURT OF APPEAL. 1872-3 notions of natural right, abstract justice, or soud'I Ji€ gZ^hvk. morality (1). DrapOTTc. J. Again, Chancellor Kent (2) : " When it is said in tlit books that a statute contrary to natural equity or reason or repugnant or impossible to be performed, is void, the cases are understood to mean that the Courts are to give the statute a reasonable construction. They will not readily presume, out of respect and duty to the lawgiver, that any very unjust or absurd consequence was within the contemplation of the law. But if it should happen to be too palpable in its direction to admit of l)ut one construction, there is no doubt in the English law as to the binding efficacy of the statute." • ••••••••, I think nothing is to be gained by a theoretical dis- tinction, which has been suggested, between the authority of the Legislature to pass laws upon certain subjects and the right to exercise that power as they may deem fitting. Whether it be called a power or a right, it comes to the same thing ; since, though our Legislature is limited by the Constitutional Act to certain defined sub- jects, the Act imposes no limit to the exercise of the power on those subjects. It does provide checks, for the Lieutenant-Governor may withhold the necessary assent or the Governor-General may disallow Acts to which his subordinate has assented; but if these powers are not exercised, however self-evident to other minds the pro- priety or duty of such exercise, and if the new law be within the class of subjects committed to the Provincial Legislature, I know of no authority in Provincial tribu- nals to refuse to give it effect, applying to its lauguajje the same rules of construction that are applicable to any other statute passed by competent authority. It was observed during the argument that although (1) p. 187. (2) 1 Com. 447. :al. ustice, or soud'I 1 it is said in the A equity or reason, )rmed, is void, the Courts are to give n. They will not ty to the lawgiver, quence was within it should happen admit of l)ut one English law as to a theoretical dis- tween the authority in certain sul)ject5 as they may deem or a right, it comes our Legislature is ertain defined sub- lie exercise of the idc checks, for the le necessary assent Acts to which hi; se powers are not er minds the pro- if the new law be d to the Provincial Provincial tribu- tig to its laugua;;e e applicable to any hority. ent that although ONTARIO COURT OF APPEAL. r)G9 ri (2) 1 Com. 447. the Imperial Parliament possessed an entire supremacy 1872-3 in making laws, still that exalted authority could pass iZcGooDHUK. no law which was contrary to natural justice. There Drap^c. j. are dicta, no doubt, which apparently sustain that pro- position, as that of Coke in Dr. Botiham's case; of Hobart, C.J., in Day v. Savage; and the remarks of Holt, C.J., in The City of London v. Wood. Sir William Blaekstone, however, puts this construction upon them : " If the Parliament will positively enact a thing to be done which is unreasonable, I know of no power, in the ordinary forms of the Constitution, that is vested with authority to control it ; and the examples usually alleged in snpport of this sense of the rule, do none of them prove, that, where the main object of a statute is unrea- sonable, the judges are at liberty to reject it; for that were to set the judicial power above that of the Legis- lature." The spirit of this passage applies to the present question. Very recentlj', in the case of PhiUi2)s v. Eyre (1), Mr. Justice Willes says : " A confirmed Act of-the local Legis- lature lawfully constituted whether in a settled or con- quered colony, has, as to matters within its competence and the limits of its jurisdiction, the operation and force of sovereign legislation, though subject to be controlled by the Imperial Parliament" (2). Again, in Smith v. Brown (3), Blackburn, J., observes : "My doubt, however, has been whether the words used by the Legislature were not such as to shew that the Legislature have enacted in a way I think rash and careless, but still have so enacted." I refer also to Lord Tenterden's remarks in Doc v. Brandlinff (4). (1) L. R. 6 Q. B. p. 20. (2) See Mr. .Tujftice Boothby's case in 2 TocM's Pari. Government in Kngland, at p. 762. (3) L. K. G Q. B. 729. (4) 7 B. & C. p. 660. '1 I n m ■ 1 ,ffe» u 570 ONTARIO COURT OF APPEAL. ili W H>ij| i ) i ' i ^ t liM .ii I ■! f i i ill :n 1872.3 Conceding to the fullest extent that the powers of the Be Goodhue. Legislature of Ontario are defined and limited by the BraperTc.j. B' N. A. Act of 1867, I conceive that, within those limi- tations, Acts passed in the mode descrihed by that statute are, as to the Courts and people of this Province, supreme. This Act is within its defined powers, for it is of a local and personal nature, and relates to property and civil rights. [The remainder of the judgment relates to the construction and effect of the Act 34 Vict. c. 99, and is omitted. His Lordship was of opinion that the interests of the grandchildren were bound by the Act. Spragge, C. (p. 417) : — [The first part of the judg- ment is omitted, as it refers only to the construction of the statute. His Lordship was of opinion that it bound the interests of the grandchildren.] It is made a question whether the passing of this Act by the Legislature of Ontario is not ultra rires. I have read the judgment of his Lordship the Chief Justice of this Court upon that point, given after the first argu- ment of the case, and the observations which he has made since the last argument, and I so entirely agree with them that I do not think it necessary to add any observation of my own, except this — that, undoubtedly, as was well observed by Mr. Blake, this povirer existed before Confederation ; that under the Confederation Act it certainly is not given to the Dominion Legislature; and if it is not possessed by the Provincial Legislature, it is a power taken away by implication. The true prin- ciple I take shortly to be, that under the Confederation Act there has been a Federal, not a legislative, union ; that to the Provincial Legislature is committed the power to legislate upon a range of subjects which is indeed ONTARIO COURT OF APPEAL. 671 limited, but that within the limits prescribed the right 1872-3 of legislation is absolute. n,, g^hi k. I have, I confess, come to a loss decided opinion upon sriosge, c. the question of domicile than upon any other question in the case. I incline to think that it is the domicile of the trustees that must govern. The view taken of the whole ease by a majority of the Court renders it less necessary than it otherwise would be that I should come to a decision upon that point. Upon the whole, I agree in the conclusion arrived at by the Chief Justice of the Court. V :; Hagarty, C. J., C. P. : — The judgment of Chief Justice Hagarty is omitted, as it refers only to the construction of the Act 34 Vict. c. 99. His Lordship was of opinion that the Act did not bind the rights of the grandchildren.] Morrison, J. (p. 427) : — I entirely agree with so much of the full and able judgment of the learned Chief Justice of this Court as applies to the power of the Legislature to pass the statute in question, and I concur in the remarks of the Chief Justice made in reference thereto. [The remainder of the judgment refers to the true construction of the statute, which his Lordship was of opinion did not bind the grandchildren.] Wilson, J. ; — The judgment is omitted, as it relates only to the construction of the statute. His Lordship concurred with Hagarty, C. J., and Gwynne and Gait, JJ.J GWTKNE, J. : — The judgment is omitted for the same reason. His H-rt' *• mmmm 572 ONTARIO COURT OF APPEAL. It .1 II u i : i M M 1872-3 Be Goodhue. Stroug, V.C. Lordship was of opinion that the statute did not bind the interests of the grandchildren.] Galt, J. : — [The judgment is omitted, as it relates only to the con- struction of the statute. His Lordship was of opinion that it did not bind the interests of the grandchildren. Strong, V.C: — [His Lordship, after expressing his entire concurrence with the judgment of Hagarty, C.J., and stating reason? for holding that the statute, by the true construction thereof, did not affect the contingent interests of thi grandchildren, proceeded to observe as follows with re- spect to the jurisdiction of the Provincial Legislature (p. 452).] By section 92 of the B. N. A. Act, the exclusive power to legislate is, amongst other matters, conferred ou tin Local Legislatures as regards " Property and civil rights in the Province," and generally in respect of " all matters of a merely local or private nature in the Proviuce." It must be from one or the oth 3r of these sources that the power to pass private Acto of Parliament affcetiug private property is derived. That the Legislature have that power in all cases where the property and rights sought to be affected are " in the Province," to the same unlimited extent that the Imperial Parliament haveiu the United Kingdom, I have not the slightest doubt. In the distribution of the legislative powers just referred to, it must have been intended to confer the right of legislation in private matters, and in matters of property and civil rights theretofore exercised by the Logishiture of Canada, either on the Parliament of the Dominion or on the Provincial Legislatures, and there is nothing in the Act shewing an intention to give any part of it to m KL. ) did not bind the 59 only to the con- ip was of opinion I grandcbildreu.; entire concurrence lid stating reasons ) true construction it interests of the as follows with re- ?incial Legislature the exclusive power rs, conferred ou thi jrty and civil rights ipect of "all matters in the Proviuce.' these sources that 'arliament affecting le Legislature have .roperty and rights ivince," to the same Parliament have Id slightest doubt, powers just referred confer the right of matters of property by the Lcgishiture of the Dominion or there is nothing in Ive any part of it *« ONTARIO COURT OF APPKAL. 573 the Parliament. But the laws to be made by the Prov- 1872-3 iucial Legislatures are confined to property, civil rights, ^ goodhuk. and matters of a local and private nature in the Province ; strongTv.c. so that, although no limitation is imposed as regards the extent to whicn the Legislature may in their discre- tion affect private rights within their jurisdiction, they are limited to dealing with rights and property within the Province, Where limited legislative powers are con- ferred, it must always be the duty of every judicature, when called upon to expound and apply statutes made in the exercise of such an authority, to inquire whether or not the bounds set by the Sovereign Legislature have iieen exceeded. To put a plain case, I will suppose that a Provincial Legislature should assume to confer on a Justice of the Peace out of sessions power to try summarily a charge of felony. It cannot be doubted but that it would be the duty of the tribunal, although the lowest in the scale of jurisdiction, to treat the Act as a nullity. This has been already so determined in this Province in reference to criminal legislation ; and in the case of Tulhi V. The Principal Officers of Ordnance (1), the late Sir John Robinson, C.J., seems to have inclined to the opinion that a statute of the late Province of Canada was void, as being beyond the competence of the Prov- incial Legislature, who had assumed to deal with certain rights of property vested in the Imperial Government. It has then been objected that inasmuch as the plain- tiffs, the infant children of Mrs. Tovey, one of the testa- tor's daughters, are, and were when the Act was passed, domiciled in England, it was beyond the competence of this Legislature to extinguish their rights in the trust fund created by this will. It will be observed that the will directs an absolute and immediate conversion of all (1) 5 U. 0. Q. B. 6. Ti' 1 ,, Pi i,ur fl[ ' M" 1" .1 f!'' ' \ ill !( |i- i:',' I r)74 ONTARIO COURT OF APPKAL. 1 II' 1 1 ' 1 < 5 , ilL • 1 f f ■ f 1 (il iK72-.'{ the testator's estate into personalty, and it is to bo re- Hi (;oodhuk. taineil, invec L-d, and ultimately divided as pcrsonaltv, strongTv.c. The trust estate, therefore, whether actually converted or not, is to be considered as money, moveable property, or personalty from the date of the testator's death ; nud the rights of the beneficiaries must consequently be di- termined as though all had been left by the testator in the state of personalty, and the interests conferred bv the will had been ordinary pecuniary legacies. What, then, is the locality of the right which tbt plaintiffs have of being substituted for their mother in case she should be dead at the time of distribution? Does this right differ in any material respect from the right to recover a legal debt ? That the money which may constitute the plaintiff's share is only payable in a certain contingency, and that the payment of it could only be enforced in a Court of Equity, cannot, on any principle which I can discover, constitute any difference between this right of the plaintiffs and an ordinary legal debt, as regards the question of locality. Then it has been determined in the English Courts by decisions never reversed, and which must, as I conceive, give the rule to us, however much foreign jurists and writers on international law have differed on the point, that the locality of a debt is at the domicile of the creditor : Silh V. Worswick (1). Such is also the determination of the Supreme Court of the United States, which has held that statutes of bankruptcy do not bind foreign credi- tors. Wliarton's Conflict of Laws, s. 528; 2 Ke)\(i Gomm. (2) ; Baldwin v. Hale (3). Then if the Legislature of the domicile of the debtor has no power to declare that the foreign creditor's debt shall be extinguished on the creditor being paid his fair proportion of the debtor's whole estate, it surely has not (1) 1 H. Bl. 690. (2) 9 Ed, p. 503. (3) 1 Wallace, 222. LULL fi ONTARIO COURT OF APPKAL. 575 m i the power to declare that the creditor's right shall be 1872-3 ahsolutely extinguished without even partial satisfaction, jie GoonaiK. If the trustees, instead of having taken the wise course strongTv.c. which they have followed, had acted on the petitioner's view of the statute, and had dealt with the estate accordingly, what would have been their position if, after the death of the testator's widow and the mother of the plaintiffs, they had been called to account in the English Court of Chancery ? The jurisdiction of that Court, at least as regards any of the trustees who might have been served with process in England, could not have been questioned. It would therefore have been incumbent on the trus- tees so sued to have shewn in their defence, that the interests of the children, at the date of the passing of the Act, constituted property or civil rights within this Province ; and this, I am of opinion, on the authorities which I have referred to, and which seem to me to be directly applicable, it would have been beyond their power to do. "N^Hipii 570 ONTARIO COURT OF AI'PEAL. 1: ;:i 1 ' < l! !l ».,' ipi I>cc. 15. 1877* March 17. ONTARIO COURT OF APPEAL. Smiles v. Belford, On appeal from the Court of Chancery. [Reported 1 App. Rep. (Ont.) ^.r j^tI 187ti-7" Smiles V. Bklford. Burton, J. A. i: n^ "■i^ if 1 I '"PI ■'W}' 1876-7 Smiles r. BKLfORI). Burton, J. A. ' Mm ' i t- ill il i i iiU; I ! Mil I I 580 ONTARIO COURT OF APPEAL. had received the royal assent in the usual way, it could not have the effect of repealing the 5 and G Vict. ; but it was contended that inasmuch as it had been confirmed by an Act of the Imperial Parliament, it must be regarded as having the force of an Imperial statute, and that beinc, as it was contended, inconsistent with the former Act, it must be held to have impliedly repealed it. But on referring to the Imperial Act we tind the rea son, and the only reason, alleged for its passage to be the assumed repugnancy of the reserved bill to the orders in council of 1868. Those orders and the modifications which they effected in the provisions of the 5 and 6 Vict. are referred to in the preamble, and after reciting that a bill respecting copyrights had then been recently passed by the Parliament of Canada, whereby provision was made (subject to such conditions as in the said bill mentioned) for securing in Canada the rights of authors in respect of matters of copyright, and for prohibiting the impor- tation into Canada of any wwk for ivhich copyrigU under the said reserved hill had been secured, it is de- clared to be expedient to remove the doubts which had arisen as to whether a mere assent would make the bill operative as against the orders in council, which had tliu force of statutory enactments, and it was therefore de- sirable to confirm the bill by Imperial kgislatioii. It is scarcely reasonable to suppose that if the Im- perial Parliament had thought fit to accept the Canadian enactment as a substitute for the 5 and (i */^ict., they would not have repealed it, so far as it atfected Canada, in express terms, or that when stating a reason for Im- perial legislation they would have confined themselves to a reference to the order in council, which dealt only with a portion of the prohibitions referred to in that statute, I am of opinion, therefore, that they have stated the only reason which rendered it expedient to seek a con- OxVTARIO COURT OF APPEAL. 581 firmation of the Provincial Act, and that it was intended to preserve intact so much of the Imperial Act as pro- hibits the printing of a British copyright work in Canada, but giving to the author a further right on cer- tain conditions of securing a Canadian copyright, and thus preventing the importation into Canada of foreign reprints. Some reference was m.i,de upon the argument to the language used by the Secretary of State for the Colonies in introducing the bill. I apprehend that in this as in the case of any ordinary enactment little or no weight could be attached to the language or opinions of indi- vidual members of the Legislature or Government, even if there were any mode of bringing that language under our notice judicially ; but if it were allowable to refer to the remarks of Lord Carnarvon when introducing the measure, I should say that it seems to favour the view which I have expressed. As reported in Hansard, 255 vol. 425, he says the bill did two things : 1. It affirmed the principle that copyright in England should carry copyright in Canada. 2. It would make the owner of an English copyright secure of a copyright for 28 years iu Canada on condition of publishing there ; by which I understand him to mean that, whilst under the English law the author could prevent the printing in Canada, being still subject, however, to be driven from the Cana- dian market by foreign reprints, he could, by availing himself of the Canadian Act, make his copyright per- fect, as he would thereby acquire the additional right of preventing the im[)ortation of foreign reprints. For he says in a subsequent part of his speech : " The ''ill is a compromise. He believed most authors and publishers would avail themselves of it. Those who did not wish to do so would keep themselves under the ex- t>!tiny law, and take their chance of what they might receive under the 12^ per cent, ad valorem duty." 1876-7 Smiles V. Bklkord. limtOD, J. A. T iWfrn * 1 li '^^ ""11 t ' ll ( ■■'. i i M* > ; ! I 1 1876-7 Smiles V. Bklford, Burton, .T. A. 582 ONTARIO COURT OF APPEAL. For these reasons I think the decree made by the learned Vice-Chancellor was correct, and that the appeal should be dismissed with costs. Moss, J. A. : — I confess that it is not without reluctance that I have arrived at the same conclusion. I fear that the state of the law which we find inflicts a hardship on the Cana- dian publis; ' % while it confers no very valuable benefit upon the Br>i' ' author. Its effect, if I rightly under- stand the maitev iS to enable the British author to give an American publisher a Canadian copyright. It is no very violent assumption that every American publisher who treats with a British author for advance sheets of his work, will stipulate for the use of the author's name to restrain a Canadian reprint. By this arrangement he will be enabled to secure the practical monopol}' of the Canadian market, for which he may be induced to pay the author some consideration ; but however small this consideration may be, I apprehend it will be found suf- ficient to induce the author to concede the privilege rather than secure Canadian copyright by treating with the Canadian publisher. But I need scarcely remark, that the possible or probable effect upon a branch of industry, however valuable or important, cannot affect the interpretation which the Court is bound to place upon the statutes by which the subject is governed. It Avas contended in the Court below, and stated as one of the grounds of appeal, that by the B. N. A. Act the exclusive right to legislate in relation to copyright was vested in the Parliament of Canada, and that con- sequently the Canadian Copyright Act by its own intrinsic force superseded the Imperial Act of 1841 This point was not pressed in argument by the learner 1 counsel for the appellants, but was simply suggested for kli A-i-l- ONTARIO COURT OF APPKAL. 583 1 consitleration out of deference to the language used by his Lordship, the Chief Justice of this Court, in Regina V. Taylor (1). I believe that his Lordship did not de- liberately entertain the opinion which these exprejaions have been taken to indicate. He simply threw out a suggestion in that direction, but further consideration led him to adopt the view that the Act did not curtail the paramount authority of the Imperial Parliament, but merely conferred exclusive jurisdiction upon the Domi- nion Parliament as between itself and the Provincial Legrislatures. It must be taken to be beyond all doubt that our Legis- lature had no authority to pass any laws opposed to statutes which the Imperial Parliament had made appli- cable to the whole empire. Now it was settled by the highest authority, that a copyright when secured in England extended to every part of Her Majesty's domi- nions, including Canada: Routledge v. Low (2). Except so far as his rights were affected by the A.ct 10 and 11 Vict. c. 95, and the order in council made under its pro- visions, he was absolutely entitled to the protection of the Imperial Copyright Act. By that Act he had the sole and exclusive right of printing and otherwise multiply- ing copies of his work in Canada. The Act of 10 and 11 Vict, did not touch the question of Canadian reprints. It only permitted the importation of foreign reprints upon payment of a duty for the benefit of the author. Independently then of the legislation of 1875, it is clear that the respondent was entitled to copyright in this country, with the single limitation that foreign reprints might be imported. It is equally clear that colonial legislation alone could not have affected his rights. The Canadian Copyright Act of 1875, if adopted by the two branches of the Legislature and assented to by 1876-7 Smileh V. Bklford. Moss, J. A. (1) 3(i U. C. li. B. 218. (2)L. K.yil. L.IOO. ■ ! it'll '■ (; !' i PP I Mi ! ( I I ■ I ■ m 1,1 . ■ ■ !" -Mi ai:.; , ,. :l 1876-7 Smilks Belfobd. MOBB, J. A. i 1 r i ! ■ i| ; i ' ■ 1 , i ; |.h:. 584 ONTARIO COURT OF APPEAL. the Crown in the usual manner, would have been wholly powerless to abridge his existing right. He would still have been entitled by virtue of his British copy- right to restrain any Canadian reprint. These propositions, which were scarcely contested in argument, narrow the controversy to a consideration of the true scope and effect of the Imperial Act 38 and 39 Vict. c. 53, intituled " An Act to give effect to an Act of the Parliament of the Dominion of Canada respecting copyright." Is its effect to make the Canadian equiva- lent to an Imperial enactment, so that assuming the terms of thf Canadian Act itself to be sufficiently wide to hav .". ccjv.j. jlledthe British author to comply with its conditions before becoming entitled to copyright, if the Britisiv Pa "am ^ had been divested of and the Cana- dian Parliament exclusively invested with the legislative jurisdiction, he is now subject to these conditions ? Or is its effect merely to remove a real or supposed difficulty in the way of Her Majesty assenting to the bill in the usual manner, without giving to the Act any greater force or operation than if no difficulty had existed and the usual assent been given ? The more I have considered the case and weighed the able arguments addressed to us, the less doubt have I felt upon the answer that must be given to these questions. The first recital in the Act is a statement of the effect of the order in council of the 7th July, 18GS, made under the authority of 10 and 11 Vict. c. 95, by which prohi- bitions against the importation and sale of foreign re- prints were suspended so far as regarded Canada. This order, therefore, was the first matter to which the au- thor of the bill deemed it necessary to direct legislative attention with the view to a proper comprehension of the measure ; and the reiital is confined to the annun- ciation of the simple fact that such an order existed. lacl existed and ONTARIO COURT OF APPEAL. 585 The second recital states that the Senate and House of Commons of the Dominion had passed a bill intituled "An Act respecting Copyrights," which had been reserved. It is obvious that no special inference can be drawn from this recital. The third states that by the reserved bill provision is made, subject to such conditions as in the said bill are mentioned, for securing in Canada the right of authors in respect of matters of copyright, and for prohibiting the importation into Canada of any work for which copy- right under the said reserved bill has been secured. The significance of this declaration was much debated before us. I do not think that, upon any legitimate prin- ciple of construction, it can be held to involve an assertion that a British author is deprived of his rights under the Act of 4 and 5 Vict, and is obliged to subject himself to the conditions of the bill in recital, if he desires to insist upon copyright in Canada. It does no more than state , and so far as it goes correctly state, the purport of the bill. Consider the position of the British author inde- pendently of the bill. By the combined effect of the Act i and 5 Vict, and the order in council of 18G8, he was entitled to a limited copyright in Canada. He could restrain a Canadian reprint, but he could not prevent the importation of a foreign reprint. The bill was to enable him, by compliance with its conditions, to prevent this importation and to secure a perfect Canadian copyright. But there is no trace of an affirmation that if the bill were assented to, the author would be compelled to accept its terras. It is not suggested that if he did not desire the complete copyright which the bill offered, its intention was to deprive him of the measure of protection he already enjoyed. Thus far the recital has consisted of statements of facts. It now proceeds to mention the ground for appealing to 187G.7 Smiles V. Bklkokd. Mobs, J. A. !|!|li!f 1 ^^ 1 ■•i1 «11 ■pp 586 ONTARIO COURT OF APPEAL, iiij i':i 1876-7 Smiles V. Belford. Moss, J. A, Parliament ; and that is, that doubts have arisen whether the reserved bill may not be repugnant to the order in council, an.d it is expedient to remove such doubts and to confirm the bill. This is the reason, and apparently the only reason, given for the passage of the enactment. It seems almost equivalent to a leclaration that but for the existence of these doubts. Her "V''"jf^sty -"'ould have dealt with the bill without any refei'encft to the Legislature. Nor can I find in the enacting clauses any support for the appellant's contention. It l.i not declared tliat the Canadian Act shall have the effect of an Imperial statute. It simply empowers Her Majesty to signify her assent, if she should be so pleased, and enacts that, if her assent is given, the bill shall come into operation at such time and in such manner as shall be directed by order in council. It thus carries out the theory that legislative action was only sought to remove the supposed impediment to execu- tive action. It was strenuously argued that the terms of the 4th section shewed that copyright in Canada could only be secured under the Act. It declares that where any book in which at the time when the reserved bill comes into operation there is a copyright in the United Kingdom, or any book in which thereafter there shall be such copy- right, becomes entitled to copyright in Canada, /^iprtrsit- ance of the provisions of the reserved bill, it shall be unlawful, without the consent of the owner of the British copyright, to import Canadian reprints into the United Kingdom. The contention is, that this language is repugnant to the notion that the possession of copyright in Great Britain gives any right in this country. I do not think it can be so construed. It certainly implies that the possession of British copyright does not entitle to complete copyright in Canada, as is undoubtedly the case, for it does not prevent the importation of American ve arisen whether it to the order in ach doubts and to d apparently the le enactment. It a that but for the "'■ouhl have dealt the Legislature. !3 any support for declared that the n Imperial statute. gnify her assent, if lat, if her assent is n at such time and y order in council. islative action was pediment to execu- terms of the 4th ada could only be at where any book -■ed bill comes into J nited Kingdom, or \all be such copy- Canada, in imrsu- id bill, it shall be wner of the British ,3 into the United this language is ssion of copyright lis country. I ^^lo certainly implies ht does not entitle ■is undoubtedly the tation of American ONTARIO COUUT OF APPP:AL. .587 leprints. But it does not imply that if the author chooses to remain content with the protection ottered him by the Act of 4 and o Vict, as modified by the order in council, he shall not be at liberty to do so. By the 5th section the order in council is expressly preserved in force with regard to books not entitled to copyright in pursuance of the reserved bill. That order, while it removed the prohibition against the importation of foreign reprints, had, of course, left the Canadian pub- lisher under the disability imposed by the Act of 4 and .') Vict. Under that disability I think he still remains. I am not prepared to assent to the proposition that we are at liberty to regard the language of Lord Carnarvon when introducing the question to the House of Lords. But if we were, I agree with my brother Burton, that it does not aid the appellants. On the contrary, I think it is strongly in favour of the respondent's view. His Lord- ship said pointedly that the reason why he was unable to advise the Crown to sanction the Act passed by the Canadian Legislature without the bill he was then proposing, was, that sanction could not be given by order in council to any colonial bill which was repugnant to an Imperial statute, and as the Act of 1847 allowed the importation of foreign reprints on payment of a certain duty, the recent Act of the Canadian Parliament was in form repugnant to it. He added that the repugnancy was only technical. It seems clear that, in his Lordship's view. Her Majesty might, without any Act of Parliament, have assented to the reserved bill and given it full effect, but for the prohibition it contained against the impor- tation of foreign reprints. But as no Canadian Act, although reserved and assented to by Her Majesty, could impair the author's right to restrain a Canadian reprint, which the Imperial Act of 4 and 5 Vict, had given him, it is certain that his Lordship would not have used such 187(5-7 V. Belfoud. Moss, J. A. TT m !rWi ' ^ V ';: . V i |i < 1 t : ilfi i. I 1} I'l [ IN ■P i* f I 1 h I 1876-7 Smilem Bklkohi). MOSB, J. A. ! ■ ! ''->■ i f : ^ i . ! : , . ' r ■ )■■ ' ' ■ ' '^ 5cS8 ONTARIO COUUT OF APPEAL. language if ho had deemed that this was the effect of the reserved bill. He would undoubtedly have told the House that the necessity for legislation arose from the Act trenching upon the privileges which the lTn[)erial Copyright Act conferred upon the British author. I agree that the appeal must be dismissed. Spraooe, C, and Patterson, J. A., concurred. Ajypeal dismissed. Judgment in Court of Chanckky. [Reported 23 Grant, 590.] Proudfoot, V.-C. : — The Imperial statute 5 and 6 Vict. c. 45, sec. 3, enacted that the copyright in every book which should, after the passing of the Act, be published in the lifetime of the author should endure fur the natural life of such author, and for the further term of seven years, commencing at the time of his death, and should be the property of the author and his assigns. By the 24th section no proprietor of copyright shall maintain any action or suit, unless before commencing tlie action he sliall have caused an entry to be made in the book of registry of the Stationers' Company, of such book, pursuant to that Act. Ami by the 29th section it was enacted that the Act shall extend to every part of the British dominions. It is conceded that this governed the subject of copyright of British authors until the passing of the B. N. A. Act of 18G7, but the defendants say that the Imperial Parliament, by this last Act, divested themselves of all power respecting British copyright in Canada. The 91st section conferred on the Parliament of Ciinad;i the power of making laws in relation to all matters not coming within the classes of subjects assigned exclusively to the Legisla- tures of the Provinces, and declared that the exclusive legisLitive authority of the Parliament of Canada extends to all matters coniin;; within the classes therein enumerated, and among these is copy- right. ^L. ONTARIO COURT OF APPEAL. 589 1870 Smilks I'. PjKLFOUI). Chancery. This section !>1 is under tho division of the stiituto headed " Dis- trilmtion of legislative powers." I have not been able to discover anything,' in the statute conferrin<^ any greater powers in this respect on the Dominion and the Provinces than was previously enjoyed by the Province of Canada. There is notliing indicating any intention (if the Imperial Parliament to abdicate its power of legislating on Proadfoot, V.C. matters of this kind. The Parliament of Canada is authorized to make laws " for the peace, order, and good government of Canada." The 14 Geo. III. c. 83, sec. 12, enabled the Council to be appointed under that Act "to make ordinances for tho peace, welfare and ','00(1 government of the Province of Quebec," and the 31 Geo. III. c. 31, created a Legislative Assembly in Upper Canada and in Lower Canada with power ' ' to make laws f, and an Imperial Parliament, kes on the Buhjcct nf Let of 1875 came intu to bo seen wliat etl'uct , liaa upon the subject. a or any part of the a book, etc, to liave ng, and Vending such ;imo of recording' the . bo printed and pub- a, but in no case sliall ter it has exi)ired any- 1 for by section 7, and pyright pending pub- sh authors may obtain the exclusive right uf I, and thus effectually g, or sale of pirateJ extinguish the copy- )8e to obtain Canadian d to be repealed either ming it. If he dues British copyright, he )ut he cannot prevent lewhere, and can only I copies under the 31 6 Vict, in our Act vi iwt it is repugnant to the 10 and 11 Vict., ted on payment of a ed liere pirated copies ount that an Act Iwd referred to as shewing it was contemplated that British authors would have t(j (detain Cana- dian copyright. But it imly provided, in the interest of British iiublishors, that no one but the owner of the copyright should import into Uritain copies published in (^inada of any British copyright book ; but it contains nothing to (jualify or abridge the British copy- riidit if the author is contented to rely upon it. In tiie view I have taken of our Act of 1875 it is unnecet>sary to omsider whether the copyright in Britain is obtained by publication alone, or if registration at Stationers' Hall is not essential. For if it is only upon registration that an author becomes entitled, the [ilaintill's book was registered, and although it was after the Act came into force, yet it is optional with him to secure copyright hero. Hut I am (juite i)repared to hold that registration only ailects the right of suit or action, not, as it wiva contended, for the penalties only, but of any proceeding for the protection, or to prevent the infringement of the copyright. The 24th section of the 5 and 6 Vict, seems to me expressly to declare this. And in Murrtm v. Biiipit (1), Kiudersley, V.-C, says : " So that, as to books first i)ub- lished after the Act, although the author has the copyright in them, he cannot sue, either at law or in equity, to protect himself against infringement of the Act, unless he has registered his book at Stationers' Hall." Tho motion for an injunction was by consent turned into a motion for a decree. The bill prays for an account of the profits made by the defendants fmm the sale of the books, and that the damiiges which have been sustained by the plaintiff from the sale of the books may be ascer- tvined, and for an injunction. I think the plaintiff entitled to an account of the profits from the sde of the books, and to an injunction, and the decree will be accordingly. I give no account of the damages caused to the plain- tit!' by the sale, as it seems to me to be impossible to ascertain them. The in(piiry could not proceed on the assumption that every one who bought a eo])y of the cheap edition would have bought one of the more costly ; and if some assumption of that kind were not made, there would be no data from which to ascertain the damages. The plaintiff would have been entitled to an order for the delivery to him of the unsold copies, but as he has not asked it, I presume he does not desire it. The defendants will pay the plaintifTs costs. (1) 1 Drew. 353, 304. lH7r> Hmilks r. Bklkoud. Chancery. Proudfoot, V.C. m \ m I m il!; V i » 'in ■■ ■ l! ' . i 1 1877* Sept. 4. 1878* March 30. 592 ONTARIO COURT OF APPEAL. ONTAEIO COURT OF APPEAL. Leprohon v. The Corporation of the City of Ottawa. [Reported S App. Rep. (Out.), 52.2.] Jurisdictioii of Local Legislature — Power to tax income of Dominion officer — Assessme)t,t law. A Provincial Legislature cannot impose a tax upon the official income of an officer of tlie Dominion Government, or confer such a power on the municipalities. This was an appeal from the judgment of the Queen's Bench, reported 40 U. C. Q. B. 478, making absolute a rule nisi to set aside a verdict for the plaintiff and enter a verdict for the defendants. Mr. G. liohinsou, Q.C., for the appellant. Mr. M. G. Gameron, Q.C., and Mr. Bethunc, Q.C., for the Respondents. The following authorities were cited : — For tne Appellant : SuUey v. The Attonn'ij-Gcneral (1); Vdney v. The East Ixdiu Co. (2); Veazie Bank v. Fcnno (3); liefj. V. Hills (4); lie Goodhue (5); Cooley on Taxa- tion, 43, 51, 61 ; Pomeroy on Constitutional Law, lPO-2; Hilliard on Taxation, 148; Senior on Income Tax, 1'28; Bank of Commerce v. Neiv York City (6); U Union St. Jacques dc Montreal v. Belisle (7); Reg. v. Wood (8); Saunders v. Evans (9) ; Oshorn v. United States Bank (10); * Present :— Spragge, C, Hagarty, C. J.C.P., Burton ami I'attersou, JJ.A. (1) 5 H. & N. 711. (2) 13 C. B. 733. (3) 8 Wallace, 533. (4) 2 E. & B. 176. (5) 19 Gr. 3(J0. (6) 2 Black, 020. (7) L. R. 6 r. C. 31. (8) 5 v.. k B. 49, 55. (9) 8 H. L. C. 721-729. (10) 9 Wheaton, 738, 859, 800. 'laiii: '||\i|P||! ;al. ONTARIO COURT OF APPEAL. 593 It >PEAL. E City of Ottawa. ;r to tax income of ut law. \ tax upon the official Government, or confer inent of tlie Queen's i, making absolute a le plaintiff and enter )ellant. Bethiine, Q.C., for ed: — ,l«o/-/fc(/-Gt'/H'r(il(l); 'eazic Bank v. Fenno 5); Cooley on Taxa- tutionalLa%v,lW-'2; ,n Income Tax, 1"28; ity (6); VVnionSt. Iti'ij. V. ir'X'rf (8^; [tedStaUsBank{l(iy> Cnuviuirattersou.JJ.A. Lack, 020. Ir. 6 r. C. 31. V & B. 49, 55. V L. C. 7'2l-7'20. ^heaton, 738, 850, SCO. Ottawa. AUOl'MENT. Bmni V. State of Manjland (1); Bank Tax Case (2); 1S77-8 B. N. A. Act, s. 91, 8ub-8. 8 ; s. 92, sub-s. 2 ; ss. 130, 131. lkprohox For the Respondents : In re Yenour's Settled Estates cm" ok (3); Dennhon v. Ilniry (4); Tliomson v. Paeijie liailnny (5); Truster of the Methodist Church v. 7':///,s (6); 29 and 30 Vict. c. 53, ss. 4, 8, 9, 10, 36, 40 ; IG Yict. c. 182, s. 5; Municipal Act of 1866, s. 225 ; B. N. A. Act, ss. 90, 1'25, 120 ; s. 92, sub-ss. 8, 13 and 16 ; 32 Vict. c. 36, ss. 4. 5, 8, 9, 10, 35 and 39 ; 34 Vict. c. 18, s. 1, 0. ; Maxwell on Statutes, 264. SpRAfiCK, C. : — This suit is by an officer of the House of Commons of the Dominion of Canada, against the Municipality of the City of Ottawa, and raises the question whether it is ^Yithin the power of the municipality to tax, for municipal purposes, the salary of the plaintiff, derived from his appointment as an officer of the House of Commons. We are informed by counsel for both parties, that it is not their wish that any distinction should be drawn between the position of the plaintiff and that of the ordinary civil servants of the Dominion Government, but that this suit be taken as a test question, applying to all the otHcers of the Government of the Dominion, so far, at least, as they can make it so. The questions involved in this appeal have been very fully and ably discussed at the bar, as well as in the judgments given in the Court below, and by Mr. Justice Moss at the trial of the cause : so fully, indeed, that I do not find it necessary to go at such length into the question raised as I otherwise should do ; and I do not propose to discuss at all the question whether the plaintiff's .; t; (1) 12 Wheaton, 436, 44C. (2) 2 Wallace, 200. (3) 2 Ch. D. 522. 38 (4) 17 U. C. Q. R. 27fi. (5) 9 Wallace, 579. (6) 38 Ind. 3. 4 I 594 ONTARIO COURT OF APPEAL. Lepbohon V. City op Ottawa. 1877-8 salary was extmpt under the words of sub-s. 12 of g, 9 of the Ontario Assessment Act of 1868-G9, 82 Vict. c. 86, 0., exempting "any salary derived by any person from Her Majesty's Imperial Treasury, or elsewhere out spragge, c. qJ ^jjjg province." I propose to discuss the general con- stitutional question only. Our function upon this appeal is, in my view, only that of interpreters of the constitution under which we live and are governed — the E . A. Act. The powers of the Dominion Legislature and of the Provincial Legislature are distributed in classes assigned to eiich — the Provincial Legislature having only the powers specifically conferred ; the Dominion Legislature having, besides those specifically conferred, all powers not specifically conferred upon the Local Legislature. It would seem to follow that Acts of the Provincial Legis- lature which conflict with the powers conferred specifically or generally upon the general government are ultra vim; so, on the other hand, Acts of the Dominion Parliament or Government conflicting with powers conferred exclu- sively upon the Provincial Legislature would be uhi vires — would be acts of usurpation. This must result from each being creatures of the one power ; each deriv- ing its authority from the one source. For executing the functions assigned to each, some machinery was necessary, and an essential part of it would be executive officers ; and so we find, in the clause? of the Act distributing functions and powers to the Dominion and to the Provinces respectively, provision i= made accordingly. For the Dominion, in class 8, ?. 91, in these terms : " The fixing and providing for th: salaries and allowances of civil and other officers of the Dominion of Canada ; " and for the Provinces in ekv 4 of s. 92 in these terms : " The establishmcut auJ tenure of Provincial offices, and the appointment anJ payment of Provincial officers." ^ iillii ONTARIO COURT OF APPEAL. 595 [ BUb-8. 1'2 of 8. 68-69, 32 Vict. c. sd by any person or elsewhere out 8 the general con- 1 upon this appeal of the constitution -the E • A. Act. slature and of tlie in classes assigned ! having only the .minion Legislature inferred, all po^vera Local Legislature. he Provincial Legis- conferred specifically ,mentareu?tranra; )ominion Parliament ,ers conferred exclii- iture would be uUh This must result |e power ; each deriv [igned to each, some ^essential part of it •e find, in the clauses and powers to tlie Ipectively, provision^' anion, in class 8 ^ ,nd providing for ft^ other officers of tte [lie Provinces iu cla>^ .e estabUshmeutaui] the appointment 1877-8 Leprohon V. City of Ottawa. Spragge, C. Other clauses of s. 92 have also been referred to as bearing upon this question. Ey sub-s. 2, authority is given to Provincial Legislatures for " direct taxation within the Province in order to the raising of a revenue '^ttaw for rrovincial purposes." Siib-s. 8 has "Municipal institutions in the Province." Sub-s. 13, "Property and civil rights in the Province." Sub-s. 16, "Generally all matters of a merely lof'al or private nature in the Province." Op' tain powers are given in terms, and certain powers must arise by implication from the conferring of powers to deal with certain matters, upon the principle that general powders being given in respect of a certain subject matter, these powers carry with them all that is necessary for their due execution. To apply this to the case of municipal institutions. The raising of money is necessary for their due and effectual working ; and the giving to them the power to raise money by taxing inhabitants of the municipality for municipal purposes would seem to be within the power of the Provincial Legislature. There is, at the same time, an implied limitation upon every power con- ferred, whether conferred in terms or by implication, that it must not encroach upon or interfere with the powers conferred elsewhere. To apply it to the case before us, the power to tax, whether by Provincial Legis- latures directly, or the municipal bodies empowered by the Legislature, is limited by this implied disability. What the Legislature of Ontario has done (assuming it for the present not to be ultra vires) has been to declare income to be personal property, and to make land and per- sonal property liable to taxation for municipal purposes ; at first continuing an exemption then upon the statute book, and then by a subsequent Act, the Act of 1871, abolishing that exemption ; leaving income? of Dominion i ' ■sir * i JfUff I: 'i' . ( T' H I ; ! ■ 1877-8 Lepuohon Cn V OF Ottawa. Spragge, C. ■..;l '4h 596 ONTAUIO COUKT OF APPEAL. as well as Provincial officers, as a rule, liable to taxation as a species of personal property. Indirectly the Legis- lature has done this : it has enacted that all incomes (with some exceptions that do not apply here) shall, under the name of personal property, be liable to taxation for municipal purposes, and that the salaries given by the Dominion to '*s officers shall be no exception. It ig not quite accuru.o' to say that the tax is upon an inhabi- tant of a municipality, qua inhabitant. It is upon the salary of a Dominion officer, whose official duties make it necessary, or at least proper, that he should reside iu a certain municipality. Kesiding there, his salary for services to the Dominion is taxed. The function of the Dominion in regard to its officers is thus defined : " The fixing of and providing for the salaries and allowances of civil and other officers of the Government of Canada ; " in other words, to iix the amount and mode of compensation, and to provide fcr its payment. I premise that the Provincial Legi.shiture cannot do indirectly what it cannot do directly. If it cannot impose a direct tax upon public salaries, Dominion as well as Provincial, it cannot empower municipalitie- to do so, under the name of personal property or other- wise. Among the powers of the Provincial Legislatm'e is this: "Direct taxation within the Province, in order to the raising of a revenue for Provincial purposes." It would, I apprehend, be within the competence of a Pro- vincial Legislature, under this power, to impose a j)r.' rata tax upon all salaries given to Provincial officers. It would be so because it would be acting upon those over whose salaries they have control. But suppose such tax imposed upon the salaries of all officers of Goverumeut, Dominion as well as Provincial, it would raise a very different question ; it would impose a burden upon the ONTAUIO COURT OF APPEAL. 597 salary of the Dominion officer. The salary fixed by the proper authority of the Dominion Government would be subject to reduction by Provincial authority. There would, moreover, be an incompatibility between the action of the two authorities. One, the Dominion Government, fixes the salary of a certain officer at a certain amount, being, it is to be presumed, a proper compensation, and no more than a proper compensation, for the duties he is to discharge ; another authority, a Provincial Legislature, intervenes and reduces the amount below what is fixed as a proper compensation, and does this in the case that I am putting in order to the raising of a revenue for Provincial purposes. If it be said that the Dominion Government, in fixing the amount of salary, would take into account all that the recipient of the salary would have to bear, not only household expenses, servants' wages, rent, fuel, and the Hke, but also taxes, we may take as a test the case of taxes imposed to raise a revenue for Provincial purposes. The Dominion Government might well object that it was only a mode of taking a portion of the revenue of the Dominion to assist in the raising of a revenue for Pro- vincial purposes ; uiid palpably it would be so — indeed so plainly so that a tax in such terms would scarcely be pressed. But suppose a general income tax passed by a Provincial Legislature in order to the raising of such a revenue, and we had to deal with a claim for exemption by an officer of the Dominion, could we fail to see that the necessary effect of such a tax upon him was either iliminishing the amount fixed by the Dominion Govern- ment as proper compensation, so intervening between the Dominion and its servants in a matter strictly within its competence ? And supposing it argued that such tax ^as probably taken into account in fixing the amount of salary, would not the answer be that that could not be 1877-8 Lkpkohon r C:ty ok Ottawa, Spragge, C. >1 1877-8 Lepuohox V, City of Ottawa. SpraRge, C. 698 ONTARIO COURT OF APPEAL. assumed, as it would be taking a portion of the revenue of the Dominion to aid in raising a revenue for Provincial purjioses ? If this could not be done by way of direct taxation for Provincial purposes, can it any more be done in order to the raising of a revenue for municipal purposes ? It would be conferring upon municipalities a power not possessed by the body by whom the power was assumed to be conferred. It may be put thus : the power to tax directly the salaries of Dominion officers is not possessed by a Provincial Legislature, but a Provincial Legislature may confer such power upon municipal bodies. This would at once stand condemned as an illogical proposition. It has been i)ut by the advocates for the imposition of the tax, that the question is a very trivial one ; that it is idle to suppose that a State would not be as well served if its officers have to pay municipal taxes as if they are exempt. I do not know that it can be said that municipal taxes in cities (and Governm mt officers as a rule must live in cities) are so light as not to be felt to be burdensome by those who pay them. If a man's salary is measured by his necessities, taxes not being taken into account, taxes would be a burden not counted upon and not provided for. A truly conscientious man would serve the State as faithfully and perhaps as well though the burden miglu be heavier than he had counted upon, but it is not desirable in the interest of the State that its servants should be underpaid ; the tendency, be it great or small, is to "mpair their efficiency, and so to lessen their value as public servants. As public servants, the}* are an essential part of the means and instruments by which the government of the Dominion is carried on ; and the question is not whether they will discharge their duties, although burdened with municipal taxes, but whether a Provincial Legislature ONTARIO COURT OF APPEAL. 599 y has the power to impose a burden upon any instruments by which the Dominion Government is carried on. The position of the civil servants only of the Govern- ment has so far been considered, but the Dominion has other than civil servants. Among the duties committed by the Constitution to the Dominion is that relating to the " Militia, Military and Naval Service, and Defence." The pay of officers of Her Majesty's service is exempt from municipal taxation by the Ontario Acts of 1866 and 1869. The Dominion has exclusive jurisdiction also in matters of navigation and commerce. The service of all officers employed on these duties is for the benefit of the whole and of every part of the Dominion. Suppose a 'military force embodied, or a naval force constituted, would the pay of the officers, wherever stationed, be subject to taxation for municipal purposes ? It would seem strange if they were ; j'et their position is substan- tially the same as that of the civil officers of the Dominion. All are alike means and instruments by which the affairs of the Dominion are administered. I have referred to the conflict of authorities, Provincial and Dominion ; the encroachment by the former upon the functions of the latter, as defined in our Constitutional Act; and the anomalies to which, in my opinion, the claim of the defendants leads. The question is not one of degree, but of principle ; the principle being that a tax by or through a Provincial Legislature, upon the means or instruments by wh'cli the Dominion Govern- ment is carried on, is ultra vires, and therefore void. I have explained shortly the reasons which have led me to this conclusion, without referring, so far, to the American cases upon like questions arising in the United States. Those cases, without being authorities in the sense that the decisions of the Courts of the mother country are authorities binding upon us, arc yet entitled 1877-8 Lkpbohon V. City ov Ottawa. SpraRge, C. Ill I .1 1 t'\l i ni r ijmm IV m ' i ; 4^' '^lii I 1 TUS I III'.' ^1 ■ 'i ' ii V, !!' niiii iMI , ill! 1877-M Lepkohon V. City of Ottawa. Spragge, C. 600 ONTARIO COURT OF APPEAL. to the highest respect. They are the judgments of very eminent jurists, whose minds have been trained to the consideration of these and cognate questions, from the frame of their Constitution, with powers of government distributed, some to a federal authority, and some to governments of States, analogous generally to the allotment of powers with us, some to the Dominion and some to the Provinces, with this difference, that powers not specified reside in the several States, as well as those specifically committed to them, while only those speci- fically committed to the Federal Government l)elongecl to that authority. The converse is the case in our Constitution, and the difference makes the American decisions a fortiori in favour of the principle alHrmed liy them ; perhaps I should rather say that the principle is, if anything, more free from difficulty in its application to our Constitution than to that of the United States. I have examined these American cases with great attention, and could not fail to be struck with the great erudition and ability displayed in the masterly judgments delivered by the very learned judges before whom they were heard and adjudicated upon. Many passages from these judgments appear in the published reports of judgments delivered in this case, and others are quoted in judgments to be delivered in this case by learned judges in this Court. That being the case, I do not propose mj^self to quote from the American cases, but content myself with expressing my high appreciation of their great merits and value, adding only this, tiiat the process of reasoning upon which the judges in these cases proceed is, in my humble judg- ment, incontrovertible. My opinion is, that the judgment of the Court below should be reversed, and that the plaintiff is entitled to a verdict, and that the judgment should be for full costs. ONTARIO COURT OF APPEAL. 601 Haoabty, C. J. C. p. : — The general subject has been so fully discussed in the judgments already delivered here and below, that I wish to confine my remarks into as narrow a compass aa possible. Before and at Confederation, the power to tax in the Parliament of Canada was unlimited. Income derived from office was unquestionably assessed and assessable under certain exceptions, covering the plaintiff's case. The claim against the plaintiff rests therefore wholly on the legislation of the Ontario Parliament. The much-discussed sub-s. 12, of s. 9, in the Act of 1866, copied into the Local Assessment Act, c. 3G of 32 Vict,, when it speaks of a pension, salary, etc., derived from the Imperial Treasury or elsewhere out of this Province — i.e., Canada as it was then — left the whole class of merely Canadian officials unaffected. But when the same words were used by an authority limited to Ontario, it becomes important to consider whether the plaintiff is not necessarily included in the exemptions. He is certainly a person with a salary derived out of this Province of Ontario. It is contended with much force that the whole exemp- tion clause refers to Her Majesty's military and naval service, and that we must regard the special intent of the clause to control any apparent generality of the language used. The words, to my mind, are unquestionably wide enough to reach the plaintiff's case. If soldiers, sailors, or in fact any Imperial agents or servants, be alone intended, the reference to the Imperial Treasury would have been quite sufficient. The words, "or elsewhere out of this Province," i.e., Ontario, would be wholly needless if Imperial agents be alone affected by the clause. 1877 8 Lkprohon V. City ok Ottawa. Hagarty, C. J. i^i u '(■ 602 ONTARIO COURT OF APPEAL. 1877-8 u. u r I Mi'iiip III' Lkprohon V. City op Ottawa. The clause must be either confined to the army and navy, or the general words would seem to prevail. If we do not confine it to the two services, then it must cover all salaried officers and pensioners of the Imperial Hagarty.c.j. Treasury, military and civil. The military have been already provided for by the words " full or half pay." If the Imperial Government had any civil servants under pay in Ontario, I think the words would certainly apply to them. But as such civilians are included, can we exclude all other civilians drawing salary " elsewhere out of Ontario?" A Dominion official, doing duty for the Dominion in Ontario, would seem to be as much out of the reach of the Ontario taxes, as an Imperial official resident therein. For many years, I understand, in the United States, municipalities have been allowed to assess income ; but in England such power is only exercised by the State for national purposes, and it has been always spoken of as a great resource in exceptional emergencies. It is not easy to understand the principle on which such a property is made a subject for taxes of a purely local character. I do not desire to discuss the wisdom of such a law. I content mysdlf with remarking that, to my under- standing, it is wholly unintelligible how it is brought within the grasp of a merely local rate. I only notice this as it bears upon the widening or the narrowing of our judicial interpretation of this exemption clause. Unassisted by a reference to any other parts of the statute, I think we would naturally construe this clause so as not to credit the Legislature with the intention of allowing each city or township municipality to assess for local rates all the salaries of Dominion officials happen- ing to reside therein. But a perusal of the whole Assessment Act leaves, in my mind, an impression that :.-|f!^:jJ lL. to the army and n to prevail. If es, then it must s of the Imperial litary have been I or half pay." ,iiy civil servants 8 would certainly are included, can salary " elsewhere the Dominion in ut of the reach ol il resident therein. he United States, ssess income; but ed by the State for rays spoken of as a encies. It is not on which such a of a purely local om of such a la^\•. lat, to my under- how it is brougbt ite. I only notice the narrowing of Qiption clause, other parts of the jnstrue this clause ■th the intention of .pality to assess for 3n officials happen- usal of the whole an impression that ONTARIO COURT OF Al'l'KAL. G03 Lkphohon V. Cnv OK Ottawa. the Ontario Legislature considered that it had the right 1877-8 to tax salaries derived from sources outside its juris- diction, otherwise they have exhibited needless caution in specifying exemptions. They declare the official income of the Governor- "'^e'^^c.j General and also of the Lieutenant-Governor to be exempt; also, immediately following the exemption clause, so much already discussed, they exempt all pensions of $'200 a year and under, payable out of the public moneys of the Dominion of Canada or of this Province. But they go further in caution by declaring u3 the first of exemptions, "All proj^erty vested in Her Majesty," etc., etc., which, by sec. 125 of the Federation Act, was declared not to be liable to taxation. It may bu that this particularity in exemptions was designed to facilitate the operations of the assessors, and not as indicative of the assertion of a right to legislate on the subject. When, in the subsequent Act, the Legislature specially repealed the exemption clause as to government officials, we must naturally suppose that they understood it as a subject within their powers. I do not feel clear as to the complete application of the ordinary rules of construction of statutes being fully applicable to the statute of a Legislature not possessing, as it w-ere, lerjal omnipotence over the subject-matter. A glance at the rules of construction elaborately stated iu such cases as Hawkins v. Gathercoh (1), and the very late decision of Hirer Wear Commissioners v. Adamson (2), (judgment of Lord Blackburn), may perhaps suggest some difficulties as to the application of these rules to the laws of a limited jurisdiction. I prefer, however, to rest my decision on a broader ground. m « i im (1) G DeG. M. & G. 1. (2) 2 App. Cas. p. 762. 1 rw r 'i-iisap 1 t 1 ! 1 . !^ }m : i C04 ONTARIO COFRT OF APPEAL. V. City of Ottawa. lll^iiH:' ( , Him I i 1 I.; 1 1877-8 We must take the Confederation Act as a wholly new Lkprohon point of departure. The paramount authority of the Imperial Parliament created all the now existinj,' Legis- latures, defining and limiting the jurisdiction of each. Hasarty. c. J. rjij^^ Dominion Government and the Provincial Crovern- ments alike spring from the one source. For the pur- poses of our present discussion, I see no practical difference in the principles governing the relations of these new jurisdictions and those that have been declared to regulate the relative authorities of the United States and the several State Governments. Whether the governing principles be set forth in the written Constitution of the United States, or be emljodied in an Act of Parliament passed by paramount authnrity, as in our case, creates no difficulty, in my mind, as to the application of the broad principles laid down by the distinguished American jurists so often referred to in this discussion. Our law books are necessarily almost barren of authority on the subject of limited Parlia- mentary jurisdiction. It is to the Marshalls and Stem of the neighbouring Republic, and to their successors in that Court which is still true to the traditions of the best age of American jurisprudence, that we have to look for guidance and assistance on a subject most familiar to them — most unfamiliar to us. We must bear in mind that the class of officials sought to be taxed owe their existence to the new state of thin ■ No such offiicers existed prior to Federation. Tl "1- d is an officer of a new organization, and a my view, a wholly different position from an o or of the superseded Parliament of Canada, which was the S'le source of legislation for Ontario. The Dominion Goveiu- ment have to appoint numerous officers to carry out their peculiar functions and jurisdictions, and who, for such purposes, have to be resident in various parts of Canada. ;Aii. t as a wholly new i authority of the ow existin}^ Le^^is- [•isdiction of each. Provincial (lovern- ce. For the pur- see no practical ,{T the relations of that have been authorities of the lovernmeuts. be set forth in the ates, or he embodied iramount authority, , m my mind, as to lea laid down by the often referred to in le necessarily almost of limited Pavlia- [larshalls and Storys their successors in ,raditions of the best ■we have to look for ict most familiar to iss of officials sought I new state of tbiiv^ ration. Tb pln i \, and 1 'y m\ an i ^'i' of t^^ (which was the ? e le Dominion Govern- lers to carry out their 1, and who, for such [ous parts of Canada. ONTAIUO COURT OF Al'l'EAL. 005 liKl-UOHO.V (JlTY OK Ottawa. Sec. !)1 of the Federation Act gives to that Parliament if^"-^ the exclusive jurisdiction of (sub-s. 8) " Fixing of and providing for the salaries and allowances of civil and other ollicers of the Government of Canada." The same Act, 8. U2, Bub-8. 2, gives to Ontario the exclusive ""Kurty. c. j riiTht of " Direct taxation within the Province, in order to the raising of a revenue for Provincial purposes." Can this latter right be exercised on the salary of the ])ominion officer lixed by his Government ? If it can be at all, it can of course to an unlimited extent. According to the decisions of the United States Supreme Court, the exercise of such a right would im- pair, if not defeat, the operations of the Federal authori- ties. I need not repeat the language on this head cited in judgments already delivered. ' Then, when we look at the right given to the Provinces of "Direct taxation within the Province," can these words ligitixuately extend to such a subject-matter as an income derived wholly or partially without the Province ? If, for example, the Government of Nova Scotia chose to employ ill! iiRont for emigration or other purposes at Toronto, could the salary paid to him by his employers be properly a subject for taxation within Ontario ? The ordinary meaning of such words would, I think, apparently be taxation on persons and property within the Province. If such be the true meaning, such an income cannot lie 1 '.ought within the grasp of the collectors of local .ate>, l)y the Legislature of Ontario attaching any defini- * on it pleases to such a word as " Income." The last ilustration rests wholly on the meaning of the words used in the Federation Act. Our Asse'^sment Act, 82 Vict. c. 36, s. 5, 0., says : "Ail muni( pal, local or direct taxes or rates, etc., shall be levied equally upon the whole ratable property, real and personal, of the municipality or other locality," etc. |iM iv.r^'^mmm '] 3;:i 60G 1877-8 Lkprohon V. City of Ottawa. Hagarty, C. J, ll!!l!il!^ ; ; f; i ,1 ' . . ■ • ! . j i ; : ■ I ', i • ■ - • ' ! I I';n :: ONTARIO COURT OF APPEAL. Sec. 28 speaks of income derived from any trade, office calling, profession or other service whatever, not declai' ; exempt by this Act. The Imperial Income Tax Act, 16 and 17 V^ict. c. 34, s. 2, provides that Income Tax shall be payable for or in respect of the arnual profits or gains arising or accruing to any person residing within the United Kingdom, from any profession, trade, employ- ment or vocation, whether the same shall be respectively carried on in the United Kingdom or elsewhere, or accrue to any person not resident v/ithin the United Kingdom from any property whatever in the United Kingdo^i, or from any trade, profession or vocation exercised in the United Kingdom. This language is far wider and more precise than our Assessment Act. It is commented on in Attorney-General v. Alexander (1). Chief Justice Marshall, in McCulloch v. Maryland (2), says : " The people of a State, therefore, give to their Government a right of taxing themselves and their property, and, as the exigencies of Government cannot be limited, they prescribe no limit to the exer- cise of this right, resting confidently on the interest of the legislator and on the influence of the con- stituents over their representative to guard them against its abuse. But the means employed by the Government of the U aion have no such security, nor is the right of a State to tax them susKined by the same theory. Those means are not given by the people of a particular State, not given by the constituents of the Legislature which claim the right to tax them, but by ! > L. lecause it is the of a single State tal failure of this id by the Govern- its powers. The whether it has also 1 Kent Com., £8 on the relative rovernnients apply .dian Constitution. a Sovereign State the Governmeut its to form a part. nperial Parliament, [II. ; again, on the ucesas "Canada;" Our present legis- lie latter enactment, disallowance by the law was a suf&cien; er, so as to ensme affecting the provi- do not see how the ihe constitutionality not exercise their af the Provinces by rnment. They are pvince has no Bove- r as existing by its tsion. leclared the "lauds ■i ONTARIO COURT OF APPEAL. G09 and property " belonging to the Dominion should not be 1877-8 subject to taxation. We may understand the general lepuohon object to be the prevention of any claim to place a burden city ok on the assets and resources of the general Government. ^^"^J^^*^- Quite within the spirit of such legislation, though outside "'^sarty^c. j. its letter, would be the extension of the prohibition to the moneys applied to the remuneration of services for the performance of the necessary duties of that Govern- ment. The r ^asoning of the Supreme Court seems to me to he sound, and directly in point on the case before us, and, in my judgment, ought to be adopted by us. I think the appeal must be allowed. Burton, J. A. : — Among the reasons against the appeal, the point is taken that the plaintiff is not an officer of the Dominion Government ; but it was abandoned upon the argument, and it was stated by counsel on both sides that this is in fact a test case, in which both parties are desirous of having the judgment of the Court upon the substantial question in issue. I have assumed, therefore, that the plaintiff is such an officer, and 1 ."e considered the question in that view. The case presents itself in two aspects : 1st, as to lA-hether, upon the proper construction of the Assessment Acts of Ontario, the income of the plaintiff derived as a salary from the Dominion Government is declured exempt; and if not, 2nd, whether the Legislature of Ontario has power to impose a tax upon the salary of such an officer, or to confer such a power upon the several municipalities. In tracing back the Assessment Acts of Ontario, we find that until the passage of the 29 and 30 Vict. c. 63, 39 Ml ^..V:j ■1 610 ONTARIO COURT OF APPEAL. V, City of Ottav.a. Barton, J. A. 1877-8 there was no exemption of any of the official salaries of Lkpuohon the officers and servants of the several departments of the executive Government and of the two Houses of Parliament; but by the 23rd section of that Act thev were declared to be exempt ; and such was the state of the law when the B. N. A. Act was passed and Confedera- tion established. The Ontario Legislature, in its session of 1868-9, con- tinued this exemption, applying it in terms both to the government officials of the Dominion and those at Toronto. But that Act was varied by the Ontario Statute of 1871, and the Local Legislature have manifested their intention, by the repeal of sub-s. 25 of s. 9, to dis- continue the exemption. It was indeed contended that under sub-s. 12 of s. 9, this salary was exempt, as included under the words "any salary .... derived by any person from Her Majesty's Imperial treasury, or elsewhere out of this Province." The first and concluding portions of that section have reference to the full or half-pay of Imperial military and naval officers and their personal property when on actual service, and it is quite possible, though by no means free from doubt, that that portion of the section which refers to any pension, salary, gratuity or stipend, must refer to that class of persons deriving them either from the Imperial treasury or from some colonial or foreign Government, and not to a class of persons like the plaintiff, whom the Legislature seemed to thinii it necessary to exempt by express words, but which ex- emption they intended to sweep away by the Act of 1871 ; and this would seem to be borne out by the 13th sub- section, which exempts all pensions of $200 a year pay- able out of the public moneys of the Dominion of Canada, which would have been already exempt under the r2tli 1 ONTARIO COURT OF APPEAL GU i 'i Leprohon V. City of Ottawa. sub-section if the words "elsewhere out of this Province " 1877-g are to be construed as the plaintiff contends. We have had occasion in a previous decision to refer to the difficulty of applying the ordinary rules of con- struction to the present Assessment Acts, but upon the burton, j. a best consideration I have been able to give to the matter, I have individually come to the conclusion that the Legislature of Ontario has manifested its intention to tax these official incomes, and that effect must be given to that intention unless it should be found to be ultra rim; and the point really for consideration is their power to do so. In considering this question we shall derive but little assistance from English decisions, as under their system the question could probably only arise if an attempt were made by a colony to tax the salary of an officer of the Imperial Government, and because the Parliament of England has not yet discovered the propriety of con- ferring on local or municipal jiuthorities the power to tax incomes or other property which derives no benefit from municipal government or police regulations. Under any well-matured or intelligible system we would expect to find municipal burdens so apportioned that the pro- perty partaking to a greater or less extent of the benefits of police protection and local improvements would bear their fair proportion ; and one would naturally expect that real and personal property having an actual situs within the municipality, including household furniture and effects, would be selected as fit subjects for taxation ; but upon what principle a person deriving an income from property not protected by the municipal authorities should be taxed ujxm that income, it is difficult to discover, and the incongruities and injustice of the system now in force in this Province are brought out in bolder relief when we refer to recent legislation, conceding additional power illff ' f ^i. V^^tf J • lip , H^" ' ■ 'i:''' G12 ONTARIO COURT OF APPEAL. 1877-8 Lki'uohon V. ('ITY OF Ottawa. Burton, J. A. rf ; I 111, : I in to municipalities of granting moneys in aid of local rail- ways and manufactures, for which a person assessed solely upon income is compelled to contribute, although lie is l)y the same law excluded from the privilege of voting upon the by-law granting such aid, notwitlistand- iiig that he may be the largest ratepayer on the assess- ment roll. It is merely necfjssary to state the case to demonstrate its manifest injustice. This is, however, an anomaly with which the Legislature alone can deal. We have nothinr' to do with the policy or impolicy, the justice or injustice of taxing such a description of property for purely local purposes, but are confined to the consideration of whether the Local Legislature has the power to impose, or authoiL-^c a municipal body to impose, a tax upon that description of income which is granted as a salary by tLe Dominion Government to one of its officials, or whether such an exercise of power is ultra vires, and the levy of the tax illegal. Both the Dominion and the several Provinces of which it is composed derive their legislative powers under w hat is known as the B. N. A. Act of 1867. A Parliament for the whole Dominion, consisting of the Queen, Senate, and House of Commons, is thereby established; ami under the 69th section a Legislature for Ontario, consist- ing of the Lieutenant-Governor and one House, styled the Legislative Assembly of Ontario, is likewise estab- lished. The powers of these several legislative bodies are defined by the 91st and 92nd sections of that Act. By the formal the Queen, with the advice and consent of the Senate and House of Commons, is to make laws for the peace, order and good government of Canada, in relation to all matters not coming iciihin the classes of suhjnii assigned e.cclitsirelg to the Legislatures of the Provinces; iu ONTARIO COURT OF APPEAL. 013 Ottawa, Burton, J. A, and for greater certainty, but not so as to restrict the if'rr-s generality of the foregoing terms, it was declared that leiuohon the exclusive legislative authority of the Parliament of city ok Canada should extend to all matters coming within certain defined classes of subjects, inter alia, "the fixini; of caud pxoviding for the salaries and allowances of civil and other officers of the Government of Canada." And the Act provides that "any matter coming within any of the classes of subjects enumerated in this section shall not be deemed to come within the class of matters of a local or private nature comprised in the enumeration of the classes of subjects by this Act assigned exclusively to the Legislatures of the Provinces." By the next section, which in similar terms defines the exclusive powers of the Provincial Legislature, it was provided that the Local Legislature might make laws m relation, inter alia — sub-s. 2 — to "direct taxation within the Province in order to the raising of a revenue for Provincial purposes;" and — sub-s. 8 — to "muni- cipal institutions in the Province;" and — sub-s. 16 —"generally all matters of a merely local or private nature in the Province." If the Provincial Legislature could not, for Provincial purposes, impose a tax of this nature, a fortiori they could not delegate such an authority to a municipal body for carrying out the mere purposes of municipal govern- ment — such as the paving of streets, police, and other matters that come within the jurisdiction of those bodies. We are driven then to consider the broad question \vhether, under our Federal system of government, a Provincial Legislature is prohibited from taxing an officer of the Dominion for his office or its emoluments, the arguments against such power of taxation benig that such a tax having the effect of reducing the compensation for the services provided by the Act of the Dominion ^ Hi ' li i 1877-8 Lkpkohon v. City ok Ottawa. Burton, J. A. I ■ t M ■ \ 1 IH! 014 ONTARIO COURT OF APPEAL. Avoiild to that extent conflict with the Act and tend to neutralize its purpose. The Supreme Court of the United States has held in a long course of well-considered decisions, commencing with McCiiUoch v. Mori/land (1), that the States cannot tax the agencies of the general Government, for, as it is urged, if they could, it would be within their power to impose taxation to an extent that might cripple, if not wholly defeat, the operations of the national au- thorities within their proper sphere of action. Mr. Justice Morrison is reported to have said, in giving judgment in the Court below, that the principle laid down in that case has been reversed by a subsequent decision in the case of the National Bank v. The Commomcenlth (2) ; but with great deference I am unable to agree in the view which he takes of the judgment in that case. The learned Judge who delivered that judgment, refer- ring to the leading case, remarks that the doctrine which exempts the instrumentalities of the general Gov- ernment from the influence of State taxation, being founded on the implied necessity for the use of such in- struments by the Government, such legislation as does not impair the usefulness or capability of such instru- ments to serve the Government is not within the rule of prohibition ; in other words, that the State Legislature might exert their power of taxation generally upon per- sons and property within their boundaries, but that they could not thereby interfere with any functions of the nation ; so far from being in conflict with the leading case, it appears to me to confirm it, drawing a distinction be- tween the power of the State Government over the per- son and property of the official, and the right to tax the means used by the Government of the Union to execute its powers. (1) 4 Wheaton, 316. (2) 9 Wallace, 3ri3. ONTARIO COURT OF APPEAL. 616 >t and tend to !8 has held in a 9, commencing 3 States cannot nent, for, as it hin their power might cripple, ,he national au- ;tion. ve said, in giving inciple laid down )sequent decision he Commonwcnlth aable to agree in aent in that case. , judgment, refer- hat the doctrine f the general Gov- taxation, being le use of such in- gislation as does ly of such instru- within the rule of State Legislature snerally upon per- Iries, but that they functions of the fh the leading case, |g a distinction be- ° ent over the per- ,ie right to tax the Union to sKecute [2) 9 Wallace, 3ri3. A similar question was raised in Osborne v. The United States Bank (1). The State of Ohio had laid a special tax of $50,000 a year upon a branch of the bank, no doubt for the express purpose of destroying it. But the Court fully alhrmed the principles laid down by Marshall, C. J., in McCulloch V. Maryland (2), and held the tax invalid. I also fail to see how the case of Dobbins v. The Com- vmioners of Erie County (3), is distinguishable; still less would I venture to question the soundness of a decision in which so eminent a jurist as Chief Justice Taney, followed the opinion of his illustrious prede- cessor, Chief Justice Marshall, whatever might be my view of its application to the case under considera- tion. The learned judge who delivered the opinion used this language at p. 447 : " Taxation is a sacred right essential to the existence of government ; an incident of sovereignty. The right of legislation is co-extensive with the incident, to attach it upon all persons and property within the jurisdiction of a State. But in our system there are limitations upon that right. There is a con- current right of legislation in the States and in the United States, except as both are restrained by the Con- stitution of the United States. Both are restrained upon this subject by express prohibitions in the Consti- tution; and the States by such as are necessarily im- plied when the exercise of the right by a State conflicts with the perfect execution of another soverei^. i power delegated to the United States. That occurs when taxation by a State acts upon the instruments, emolu- ments, and persons which the United States may use and employ as necessary and proper means to execute their sovereign powers." For the same reasons, although for some time a dif- (1) 9 Wheaton, 738. (2) 4 Wheaton, 316. (3) 10 Peters, 435. 1877-8 Lkprohoh c. City ov Ottawa. Burton, J. A. T !] 1 1 ' i :**■' % A ■ ■' ■ Si ' If 616 ONTARIO COURT OF APPEAL. 1877-8 ferent opinion prevailed, the National Government caii- Leprohon ^^^ ^^^ ^^^^ agencies of the State Government. Tho same City of supreme power which established the departments of the Ottawa. General Government determined that the Local Govern- BTirtonjf. A. ments should also exist for their own purposes, and should retain their original powers, except in so far as they were granted to the Government of the United States. In Collector v. Dut/ (1), Nelson, J., at p. 127, says in respect to the "Reserved powers:" "Tho State is as sovereign and independent as the General Govern- ment. And if the means and instrumentalities employed by that Government to carry into operation the powers granted to it are necessarily, and for the sake of self- preservation, exempt from taxation by the States, why are not those of the States depending upon their reserved powers, for like reasons, equally exempt from Federal taxation? . . . In both cases the exemption rests upon necessary implication, and is upheld by the great law of self-preservation ; as any Government whose means employed in conducting its operations, if subject to the control of another and distinct Government, can only exist at the mercy of that Government. Of wbat avail are these means if another power may tax them at dis- cretion ? " The question arose in a somewhat different form in 1862, in the case of The Bank of Commerce v. The City of New York {1). The statute of New York State provided for taxing banks upon the amount of their capital. The bank had a capital of several millions of dollars, and the largest proportion of it was invested in United States securities, which the bank claimed were exempt from taxation. The assessors fixed the taxable property of the bank at the whole value of the capital stock, without regard to the (1) 11 Wallace, 113. (2) 2 Black, (320. overnment can- aent. The Hiime )artmoiit3 of the le Local Govern- Doses, and should so far as they United States. at p. I'-iT, says " "The State is General Govern- talities employed ation the powers the sake of self- r the States, why pon their reservid npt from Federal mption rests upon by the great law ent whose means if subject to the irnment, can only Of what avail tax them at dis- dififerent form in \nerce v. The CiUj |)vided for taxing The bank had L and the largest I States securities, Dm taxation. The [the bank at the lut regard to the [2)2 Black, 620. ONTARIO COUllT OF AFPKAL. G17 fact of its being chiefly invested in the public debt of the United States, but added that the assessment was not made upon the public debt, but upon the bank capital. The Court of Appeals of New York held the assess- ment valid, distinguishing it from Weston v. The City Council of Charleston (1) ; the distinction insisted on being, that in the latter case the tax was laid upon United States stocks "€o nowtne," while in the New York case the securities were included in the mass of property owned by the corporation, and were taxable with that aggregate. The Supreme Court repudiated that distinc- tion and reversed the decision. It was conceded that the taxing power, so far as it was reserved to the States and used by them within constitutional limits, cannot be con- trolled or restrained by the national Court, the prudence of its exercise not being a judicial question, but that a State tax on the loans of the General Government is a restriction upon the constitutional power of the United States to borrow money ; and if the States had such a right, being in its nature unlimited, it might be so used as to defeat the national power altogether. Prior to this decision the laws of New York had re- quired that the capital ciock of banks should be assessed and taxed at its actual value. Shortly after it, the Legis- lature of New Y'^ork changed the language of the statute, and enacted that all banks should be liable to taxation, at a valuation equal to the amount of their stock and their surplus earnings. Under this the bank was assessed and taxed upon such valuation. The Court of Appeal again sustained the action of the assessors, and held that the tax was not imposed upon the bank capital, and as a consequence was not imposed on the national secu- rities in which such capital was invested ; the substitu- tion of an intangible valuation instead of the real capi- (1) 2 Peters, 442. 1877-8 Lkproiion r, CiTV OK Ottawa. Hurton, J. A. ' 1 m ' H !•■; ■ V 1 1 ( 1 1 ■ 1 1 J I -i 1877-8 liEHROHON V. City op Ottawa. Hurton, J. A. !r li l,:l 618 ONTARIO COURT OF APPEAL. tal was treated as u substantial cliange. But the Su- preme Court, in the bank tax case, swept away these re- finements, and re-affirmed the doctrine of The lian' i,f Commerce v. Neiv York ('ity (1). The case referred to in the Court below, of Mflcher V. The City of Boston (2), does not conflict with these decisions. The plaintiff there was not an officer of the National Government, but was a clerk in the Post- Office, appointed by the Postmaster, and paid by him from funds at his disposal for the general management of the office. The judge, it is true, seemed to hold dif- ferent views upon the subject generally from those ex- pressed by the eminent jurists I have referred to, but was careful not to commit himself to any decided opinion, and admitted that he had not investigated the question, as the plainiiff had failed to bring himself within Dohhm V. The Com)inssioner8 of Erie County (3), he not being an officer of the United States in any such sense as would exempt him from taxation on income. The reasoning in these cases, apart from the high au- thority of the distinguished jurists who decided them, is to my mind so convincing as to leave no room for doubt, unless a distinction can be drawn so as to render them inapplicable under our system of government. It is said that the relative positions of the United States and the several States of the Union differ essentially from that of the Dominion and the several Provinces ; but granting this, is there any intelligible distinction as regards the question we are now discussing ? In the case of the American Constitution, as appears by the recital in that instrument, the people of the Unitd States, in order to form a more perfect Union, etc., ordained and established that Constitution, and declared that it and the laws of the United States, which should (1) 2 Black, 620. (2) 9 Metcalf, 73. (3) 16 Peters, 435. AL. ge. But the Su- pt away these re- e of The Bunk nf bolow, of Mfkher onttict with these t an officer of the erk in the Post- and paid by liim loral miinagonient jemed to hold dif- lly from those ex- re referred to, but iiy decided opinion, ;ated the question, self within Dohhini^ 3), he not being an uch sense as i^voukl from the high aii- .0 decided them, is |no room for doubt, las to render them irnment. It is said Ited States and the lentially from that iices ; but granting ion as regards the Itution, as appears heople of the Unital erfect Union, etc., |ution, and declared ites, which should (3) 16 Peters, 435. ONTARIO COURT OF AITKAI.. G19 1)0 made in pursuance thereof, and all treaties made under the authority of the United States, should be the supreme law of the land — that is to say, as has been well HpresHcd, " It means, that so far as tho people of the United States — the natinn — have seen fit to delegate a portion of their own inherent powers of legislation and (.'overnment to their appointed rulers, just so far those iippointed rulers are supreme throughout the land in the exercise of those delegated powers. " The !)th article of the amendment provides tiiat the (numeration in the Constitution of certain rigL'i ; shall not be construed to deny or disparage others retained by the people ; and the 10th provides that the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people. Here then we find the former article recognising the people as the one source of all power, as they could not retain what they were not before possessed of, and the latter speaking of some powers which had not been con- ferred by the people on its General Government as allotted to the States. The powers delegated to the Government of the United States, like those granted by the Imperial Legislature exclusively to the Dominion, concern, speaking generally, public functions and duties of a higher and more exten- sive order than the remaining powers which the people reserved to the States Governments. In other words, the people entrusted to the central authority the powers and functions which were deemed necessary for carrying on the government of the Union, whilst those deemed appropriate for the carrying on the government of the in- dividual States were reserved to the State authorities. With the exception of the power of declaring war and making treaties, the powers granted to the General Gov- 1877-.S Lkpkohon V. <'lTV OK Ottawa. Hurtou, J. A. G20 OXTAUIO COUUT OF APPEAL. Leprohon V. City ok Ottawa. 1877-8 ernraent of the United States are similar to those granted by the Imperial Legislature to the Dominion — among '^thers, the power of appointing its own ollicers and an unlimited power to raise money by any mode or Kuru^j.A. system of taxation. The States had also originally the power to tax a8 bodies politic, which power was still retained in all in- stances, and in all methods, except so far as they are re- strained by the National Constitution — that is to sa^-, they are expressly rootricted from imposing taxes or duties on exports from any State, duties on imports or exports or tonnage ; and although there is no express re- striction, there is the implied limitation of imposiuir taxes on the property of the General Government, or upon the means which that Government has adopted to carrv on its public affairs. The principles enunciated in these decisions apply, as it appears to me, with equal, if not greater force, to cases of a similar nature arising under our own Constitution. In the one case the Government of the United States was created, not (as is sometimes inaccm-ately stated) by the several States, but hy the people of the United States — the nation, possessed of su- preme power— whose creature and agent the Government of the United States is. In the same way the States de- rive their authority from the same source, the sovereign people ; the powers of legislation and administration are derived from them ; those granted to the Central Govern- ment are, as in our own case, higher and more natiomil than those entrusted to the Local Government, hut, as with us, ivifJdn tJteir rcxpective limits each is uncoHtmlhi hy the other. We also deiive our Constitution from the sovereign power, the T^egislature of Great Britain. The powers gran .I'd to the Dominion are very similar to those granted by the sovereign power to the Government 01 the United States. The powers granted exclusively 'PEAL. ONTAIMO COURT OF APPKAL. G21 •e similar to those re to the Dominion iting its own otYicers, oney by any mode or the power to tax as A\ retained in all in- so far as they are re- ition— that is to say, n imposing taxes or duties on imports or there is no express re- ,tion of iniposinc; taxts Government, or \\\m\ ; has adopted to carry es enunciated in tluN me, with equal, if net ^r nature arising undir case the Government not (as is somctimis al States, but by the at ion, possessed of su- agent the Government trae way the States di- source, the sovereign lind administration are ,0 the Central Govern- ler and more national il Government, but, lis ,7s each is uHcoHinM Constitution from the )f Great Britain. Tlie ,1 are very similar to ,wer to the Government Irs wanted exclusively to the Province are very similar to those reserved to the States, each Government is distinct and separate from the other. But it is said that there is this important dift'erence from the Federal Constitution of the United States, that the Dominion Government have in their hands a check upim the legislation of the Provinces, in the power of dis- allowing any statute passed by them, so as to prevent any legislation which tends to obstruct, defeat, or im- pede the Dominion legislation. No doubt there is this additional check, and in cases where a Provincial Act is supposed to affect the whole Dominion, or to exceed the jurisdiction conferred on Local Legislatures, or even where the jurisdiction is concurrent, but clashes witn the legislation of the general Parliament, this power of disallowance has been sometimes, but not invariably, ex- ercised; but whether allowed or not, to the extent that the Provincial Acts transcend the competence of the Provincial Legislature they are void. If I am right in supposing that the Local Legislature had no power to im- pose this tax, no declaration of exemption was of course necessary, and there was nothing upon the face of the Municipal Act which either called for or would have jus- tified its disallowance. All that can be said is, that the Act does not warrant the tax in question. The exemp- tion which was contained in the foimer Acts was in itself partial and unjust, relieving officials at Toronto and Ottawa from the tax, but leaving all officers in other places liable to its exaction. If the construction I place on the law be correct, all these officers will be placed on the same footing, all equally relieved, because they are all agents of the Dominion Government, whose salaries niither the Province nor the municipal authorities can iuti-rfere with. And lastly, it is urged that this is a mere fanciful is7r.s Lki'uohon r. City of Ottawa. Hurtou, .1. A. jif G22 ONTARIO COURT OF APPEAL, { / i! m^ ll'i!! m% if !!! Ottawa. Bartou, J. A. 1877-8 ground of objection, and that the tax is in itself so small Leprohon as iiot to interfere materially with the salary which the City" ok Government has allotted to the plaintiff ; ])ut if tho power exists at all, it can be exercised to any exteut, ami in the event of any Province being dissatislied with the Dominion Government, it would hold in its hands a wea- pon which it might resort to to harass the Government and enforce its demands. I am therefore of opinion that the tax was illegally im- posed, that the appeal should be allowed, and the rule nisi to 63t aside the verdict discharged with costs, Patterson, J. A. : — It is unnecessary to notice the pleadings in this case. The parties agree that the sole question to be tried is whether the corporation of the city of Ottawa can legally assess and collect from an officer of the House of Commoug of Canada a tax or assessment upon his income, derived and received as set out in the agreed statement of facts ; and the material facts are that the plaintiff lives in Ottawa and has his place of business there, and that the income in respect of which he is taxed, is his salary as an officer of the House of Commons. The tax was imposed nmler tlie assumed authority of the Ontario Assessment Act, 'A'l Vict. c. 86, 0. The plaintitf disputes the power of the Provincial Legislature to tax the salary of an officer of the Govern- ment of Canada ; and he contends that, even if the juris- diction exists, he is exempt by the terms of the Asbess- ment Act. The constitutional question which is raised has en- gaged the att<^ntion of four learned judges before comiUp before us upon this appeal. The present Chief Justict of this Court, by whom the case was tried, held, at iiw jjWms, that the jurisdiction claimed for the Local Legis- ' * 1 ONTARIO C'OrRT OF APPEAL. 623 Patterson, J. A. lature did not exist. In the Queen's Bench, the Chief larr-s Justice took the same view ; while the majority, consist- lkpuoho.v inc of my brother Morrison, who was then a member of (-ity of that Court, and Mr. Justice Wilson, vnere off a different ^'ttawa. opinion. The difficulties indicated by this even balance of judi- cial opinion retain their magnitude as we proceed with the consideration of the subject. They arise not so much from divergent views in the application of princi- ples upon which all are agreed, as from uncertainty as to the principles themselves upon which the solution should rest ; and for this reason they can only be definitely re- moved by a ( ourt of final resort. Before referring to the B. N. A. Act, 18G7, it may be useful lo I'Ote the history of the Assessment law, so far as ii soeiits to touch the matter in hand, and to consider its application to this particular case. • The present system of assessment dates from 1850, having been initiated by the Act 13 and 14 Vict. c. 07. Before that date the property liable to be rated was defined by the Act of 1819, 59 Geo. III., c. 7. It com- prised land, dwelling-houses, mills, store-houses, shops, horses, oxen, cows, young horned cattle, and pleasure carriages. The statute fixed arbitrary values for assess- ment purposes upon the property of different classes within these general divisions. The Act of 1850, 13 and 14 Vict. c. G7, declared all land and all such personal property as the Act defined, in Upper Canada, liable to taxation, subject to certain specified exemptions. Personal property was defined as iueluding all such goods, chattels, and other property, as were enumerated in Schedule A, and no other. The 'numeration in the schedule was confined to horses, neat nittle, carriages, stocks-in-trade, and shares in vessels uwued within the municipality. And section 4 of the 024 ONPARIO COURT OF APPEAL. ililr 11 ^ .1 _' '' • ill 1877-8 statute providerl that " no person deriving income from Lkprohon ^^y trade, calling, office or profession, exceeding the City of amount of i*50 per annum, should be assessed for a less Ottawa, ^xim, as the amount of his net taxable property, than the PatterBon.j.A. .^^^^^Qm^t derived from such income during the year then hipt past, but such last year's income sliall be held to be his net taxable personal property, unless he had other taxable personal property to an equal or greater amount." This Act did not profess to tax income simply as in- come. Under it a man having an income of A'oOO a year from his profession, and owning horses, carriages, or shares in steamers to the value of ,£500 or upwards, was taxed nothing in respect of his income ; but if he had only ii'400 of other personal property, he was assessed for 4'500, that is, for his income alone, taking no account of the oth^' property ; his income being held to shew the amount of his net taxable personal property. There may be no difference that will bear examination between this idea of calling income personal property, and taxing income eo no)nine. In fact, the same statute provided a form for inserting it upon the assessment roll as "amount of taxable incomes," I merely note the facts that at first the tax was not upon all income; and that, by the device of calling the last year's income the taxable personal property of the current year, the direct avoM.^! of the imposition of an income tax was avoided. The Act of 1850 was repealed in 1853 by IG Yict, c. 182, which amended and consolidated the Assessment laws. As before, all land and personal property (subject to exemptions) were made liable to taxation ; and the Act extended the definition of personal property to include all goods, chattels, shares in incorporated companies, money, notes, accounts and debts at their full value, ami s;-. ONTARIO COURT OF APPEAL. 025 [Cf income from exceeding the sessed for a less opcrty, tlian the II g tlie year then tail he lield to he ess lie bad other liual or greater ne simply as in- ncomc of i:500 a horses, carriages, ,i>500 or upwards, income ; but if he •t.y, be was assessed , taking no account 3eing beld to she\\- A property. III bear examination personal property, ■t, tbe same statute tbe assessment roll [lerely note tbe facts income; and that, .income tbe taxable ., tbe direct avo^-Vi ,s avoided. .853 by IG Vict, c, ,ed tbe Assessment property (subject to ation ; and the Act ]operty to include all jorated companion, ,tbeir full value, ana all other property, except land as defined in the Act, and i«7r-H property therein expressly exempted. lki^iun It would not be easy to frame a more comprehensive j.,^y ,,^. scheme for the taxation of property, even for Imperial *'|^-^- purposes, than that embodied in these words; but still ^'"•"°'''''^"'- J- -■• they did not go so far as to include income in the defini- tion of property. The clause respecting the taxation of income was in the same words as in the Act of 1850, leaving the law on that particular subject just as it was. One of the ex- emptions which originated in this Act I shall have occa- sion to refer to again, farther on. Sec. (3 enacted that the following property shall be exempt from taxation : — "EiilJitJdi) — The full or half pay of any one in any of Her Majesty's naval or military services, or any pension, salary, or other gratuity or stipend derived by any per- son from Her Majesty's Imperial Treasury, or elseirJicrc uHt of this Province, and the personal property of any such persons in such naval or military services on fall pay, or otherwise in actual then present service ; nor shall such persons be liable to perform statute labour or to com- mute for the same, " The Act of 1853 took its place in the Consolidated Statutes of Upper Canada of 1859, as chapter 55, with- out alteration in any of the particulars to which I have alluded, except that the reference to statute labour was omitted ; and it continued in force until 18(3(1, when it was repealed, and a new Assessment Act, 21) and 30 Vict. c. 53, was passed. This Act repeated the provisions I have quoted from the previous Act, with no other change than including income in the definition of personal property — "debts at their full value, income and all iather property"' — and itadM to the exemptions, "23. The annual othcial salaries of the officers and servants of the several depart- 40 '.|.y,l| ■••! Ill' ONTARIO COURT OF APPEAL. V. City of OT'IAWA. .1' ' 1 ! t ! 1 • 'III Hi 1877-8 merits of the Executive Government and of the two Leprohon Houses of Parliament resident at the seat of govern- ment." The Assessment law in force when Confederation Patterson, J. A. t^ok place was that of 1866, 29-30 Viet. c. 53. Up to that time, as I have shewn, the Legislature had never imposed for municipal purposes, ui indeed for any purpose, a general income tax. Income was only taken into account when its amount exceeded that of the rate- payer's taxable personal property. If the property was in excess of the income, he was not taxed on income. If the income was the iarger amount, the property was not reckoned; but the amount of the last year's income was ti^keii to be the amount of his net taxable personal pro- perty ; and, whether he had other personal property or not, the salary of a person in the position of the present plaintifif was exempt from taxation. The Confederation was effected in l'^67. In 1869 the Legislature of Ontario passed the Assess- ment Act, 32 Vict. c. 36, 0. In this Act the detinition of personal property given in the Act of 18<)<;, which in- cluded "income," was retained; but the tnxation of income was put on a new footing. It was not left to depend upon the accident of the non-existence of other proi)erty, but was made the subject of specific assess- ment. The closing provision of sec. 35 is: "Such last year's income, in excese of $400, shall be held to be his net personal property, unless he has other personal pro- perty liable to assessment, in which case such excess am! other personal property shall be added together and con- stitute his pereonal property liable to assessment." But while incomes in general were thus distinctly made liablo to taxation, the salaries of the officers and servants of the several departments of the Executive Government and of the Senate and House of Commons, resident at L. and of the two ' seat of govern- sn Conft'devation ,. c. 53. e Legislature bad ^c indeed for any le \s'a8 only taken d that of the rate- the property ^vas ^ied on income. It' e property was not ; year's income was cable personal pro- jrsonal property or iition of the present passed the Asscss- Act the definition of 18t)C, which in- Lit the toxatiou of Xt was not left to n-cxistence of otlier of specific assess- ,. 35 is: "Such last ai be held to be bis other personal pro- lease snch excess ami 3d together and con- , assessment." But [istinctly made liable ers and servants oi ,cutive Govornmeut annions, ivsi^^entat ONTARIO COURT OF APPEAL. ()27 the seat of government at Ottawa, and of the officers and 1877-8 servants of the several departments of the Government lepkohon of Ontario, resident at Toronto, were (by sec. 9, sub-s. (.,^y ^j,, 25) exL^mpted. ^^™''^- In this state of tlie law the present contest could not ^'■^^^^'•sQ"- J- A' liave arisen. It has become possible, by reason of the repeal of sub- s. 25 in 1871, by 34 Vict. c. 28, 0. The defendants urge that the effect of this repeal is to bring the salary of the plaintiff distinctly under the operation of sec. 35, and to make it liable to taxation. The plaintiff, while relying upon the constitutional question, also contends that he is still exempt by force of sub-s. 12 of s. 9, 32 Vict. c. 36, 0. This sub-sec. resembles the sub-s. 8, which I have already quoted from the Act of 1853, but ext-irds the exemption to the houses and premises occupied by certain persons whom it specifies. Its language is: "12, The houses and premises occupied by any of the officers, non-commis- sioned officers and privates of Her Majesty's regular army or navy in actual service, and the full or 1ia[f jxii/ of a hi/ ono ill 11111/ one or either of such servieen ; and aiii/ pension, snlnrii, (jratnitij or stipend derived by anij person n-ain Jler .V(/jV.sf//'.s Imperial treasury, or elsewhere out of this Pror- inrc; and the personal property of any person in such naval or military services on full pay, or otherwise in actual service." The plaintiff contends that hip salary is an income derived from an extra Provincial source, within the meaning of the words salary derived out >>/ this Prnfiuce. Reading the sub-sec. by itself, it does, in my opinion, cover the case of the plaintiff. It deals separately with t'.io three subjects of taxation — lands, income, and per- i-"ual property. As to two of these, viz., their dwelling bouses and their personal property, it exempts such 1 j Mi i ( • \ 1 • l! ■,5 ' I , 028 ONTAUIO COURT OF APPEAL. Lkpuohon r. iJlTY OK Ottawa. * 1 Mil:!! i 1877-8 naval and military men as may happen to })e on dutv in the municipality, hut no other persons. The first part and the last part of the clause, omitting the middle part which I have put in italics, deal with these two exemp- vatteraoii.j.A. ^jq^jc.^ 'j;\^q other branch is not confined to soldiers ami sailors. It is covered by the words I have italicised. I perceive no principle of construction which requires the words " elsewhere out of this Province" to be limited in their signification to the classes provided for in the first branch and the last branch of the clause ; and I imagine I can see good reason for struggling against so construing it, even if the grammatical indications of such a meaning were stronger than they are. It is only this clause, so far as I can discover, which relieves such a person as the Consul of a foreign state from being called upon to contribute a percentage of his official salary to the funds of the local municipality where he happens to live (assuming for the moment the power to tax the incomes which residents derive from beyond the Pro- vincial limits) ; and I do not know why he has not at least as good a claim to exemption as a half-pay officer who, for his own convenience or pleasure, chooses to live in the same town. We should be obliged, in my opinion, in giving to tiit language of the clause its plain grammatical nieaiiin,!:, to read the exemption as embracing the salary paid to a Consul by the state he represents ; or coming from with- out the Province to any recipient who happens to live here. It is argued, however, that the intention is apparent from other parts of the statute not to include in this particular exemption salaries paid by the Government of Canada ; and some specific exemptions are referred to, which, it is said, would have been unnecessary except ou the understanding that sub-section 12 did not treat the ONTAF'O COURT OF APPEAL. (J29 Lepkohon V, City ok ( )TT.\\V.\, Central Government as being "elsewhere out of this 1877-8 Province." Thus sub-section 11 exempts the "personal property and official income of the Governor-General, ami the official income of the Lieutenant-Governor of the Province"— the salaries of both these otBcers being paid ^'""orBon, j. a. bv the Central Government; sub-section 13 exempts all ptnsions of §200 a year and under, payable out of the public moneys of the Dominion of Canada, or of the Province ; and fiub-section 25 exempted the salaries of officials both of the Central and Local Governments who nfi-e resident at the seat of government. It is further urged that by repealing sub-section 25, the Legislature asserted the right and intention to tax the salari(!S of Dominion officials. It cannot be denied that these are objections of great weight against the construction for which the plaintiff contends ; and they are further enforced by the fact that the language in question is merely repeated from the statutes of earlier date than Confederation. On the other hand, there are not wanting , considerations which weaken their force. It happens that each of the sub-sections 13 and 25 deals not only with incomes derived from the Dominion Government, but also with those paid by the Province. In expressly exempting those of the latter class, it may well have been that (• majorx cant eld, and to guard against the inference that one being expressly exempted the other was meant to be liable, both were included in the express exemption. It is accordingly no exceptional distinction to this statute to say that we do not find it framed with so much pre- cision and care as to make it always safe to deduce the necessity for a particular provision from the fact that we liud it there. For proof of this we need not go beyond this ninth section. Thus, the express exemption by sub- section 1, of all property vested in Her Majesty, or vested lu any puljlic body or body corporate, officer, or person in ■'J iM'^jj; ■ f 1 i 1 1 • i t i !if -f ' ll ■ ! I:: I 1'" ■ V. hi ■i ! ii I in. ! ! 030 ONTARIO COURT OF ATM'KAL. ^- I i ^1 i -f I 1S77-R trust for Hor Majesty, or for the puhlic uses of the Prov- Lki-koiion- ince, involves the assumption that tliere was powci- to tax City ok property which section 125 of the B. N. A. Act (leclarcs Ottawa. yiiaU not he liable to taxation. Sub-section 18 professed PatterBon.j.A. ^^ exemj^t all real and personal property owned out of tlie Province — a meaningless provision if it referred to pro- perty which was not in the Province; and one wliitli con- tradicted the whole scheme of the Assessment law, if tho idea was to exempt property in the Province when its owner lived elsewhere. This inadvertency was corrected l)y a later statute. Then we have sub-section 21, exemptin" the annual income of any person, provided the same does not exceed $400 — a correct enough j^rovision, but un- necessary; because section 35, under which income is assessed, makes only the excess over $400 taxable. Provisions like some of these may, though not strictly necessary, be more practically useful than a more scien- tific arrangement of the enactments. My only object in ♦ criticising them is, to point out that we cannot disregard the characteristic structure of the Act, when we are asked to reason from the existence of sub-sections 13 and io that the Legislature could not have intended the language of sub-section 12 to bear what would otherwise be its plain signification — these two sub-sections not being inconsistent with No. 12, but only covering again a part of the same ground. The influence of sub-section 11 upon the construction of sub-section 12 is certainly no greater than that of 13 and 25. Passing over the cir- cumstance that it is a continuation of the provision which, from 1853 downwards, had apjilied to the Governor or Lieutenant-Governor of the Province, which may have no significance, because during all that time the salary was paid by the legislating Province ; and merely notic- ing that, placed as it is immediately before sub-section 12, it may properly be read with it as one clause, and so AL. uses of the Prnv- D WRH powir to tax ^. A. Act declares ction 18 professed y owned out of the it referred to pro- ,nd one which con- ssracnt law, if the nee when its owner vas corrected hy a tion 21, exemptin;^ ided the same does provision, but un- r which income is $400 taxable, though not strictly than a more scien- My only object iu e cannot disregard when we are asked ections 13 and -25 ave intended the lat would otherwise sections not being ering again a part of suh-section U |l2 is certainly no sing over the cir- he provision which, the Governor or which may have ,t time the salary and merely notic- lefore sul)-sectioii lone clause, and so ONTARIO COURT OF AITEAL. G31 City ok Ottawa, read there would he no room for the argument now is77-8 founded upon it ; wo should hesitate to infer that the lkpkohon Legislature considered an express exemption necessary to prevent the corporations of Ottawa and Toronto in- sisting upon a percentage of the sums appropriated nnder ^'"■*'«^|;^ •^- ^• sections 00 and 105 of the B. N. A. Act, to the represen- tative of the Crown and his lieutenant, because by the same rule we should have to regard suh-section 1 as shewing that the Legislature supposed it had power to tax public property. The argument from the repeal of sub-sec. 25 is, that the Legislature in 1871 indicated by that measure the intention that thenceforward the incomes mentioned in that clause should be taxed ; that, in fact, the bare repeal was ecpiivalent to an affirmative enactment that they should no longer be exempt. Doubtless this would have been its eifect, if the exemption depended upon this clause, as it did in the case of the Ontario salaries. It was a clause which, as I have already pointed out, dealt with Provincial as well as Dominion salaries ; and it con- tained another feature which may have excited opposition to its continuance, by creating a distinction of an invi- dious character between those officials who lived at the seats of government, and their fellows who w^ere scattered through the Province. I have given my opinion of the effect of this clause and No. 13 together. I do not see that if its existence failed to qualify the operation of sub-sec. 12, that result can have been accomplished by its repeal. I cannot say I am much pressed by the consideration that the language of sub-sec. 12 was framed before the Dominion was constituted. I am rather disposed to regard the clause as shewing a perception of the unsound- ness of the principle on which incomes are made liable to local taxation. T '■T^^ 1 IMAGE EVALUATION TEST TARGET (MT-3) ^ "^ .v^ /. IL ^ 1.0 I.I 1.25 Mi 1^128 |2.5 1^ Ih 122 1^ 1.8 U ilb I Photographic Sciences Corporation 33 WEST MAIN STREET WEBSTER, N.Y. M580 (716) 873-4503 C/u <\ ^ -'TTWfmnm '^m v i I 'i|!i ■1; ! ;m, ' ! ■I '\ 032 ONTARIO rOURT OF APPEAL, i 1 .1 } i, I 'i r i 1877-8 " It is an important principle " — I quote from J. S. Lkprohon Mill — " that taxes imposed by a local authority, being Cm OK ^^^^ amenable to publicity and discussion than tlie acts Ottawa, ^f ^jjg Government, should always be special ; laid on for ratterson, J. A. gQjjjg definite service ; and not exceeding the expense actually incurred in rendering the service. Thus limited, it is desirable, whenever practicable, that the burden should fall on those to whom the service is rendered." In our system of municipal institutions the principle of imposing special taxes for special and definite services, though occasionally resorted to, as in the case of the local improvements provided for in ss. 464 and 469 of the Municipal Act of 1873, does not form the general rule ; and, considering the scope and variety of the functions and powers of our municipal corporations, it is probably a principle which could not in practice be con- veniently extended to the revenue raised for general pur- poses. But the rule that the burden should fall on those who benefit by the outlay nevertheless holds good ; and should apply to exclude the salaries of officials like this plaintiff, if not incomes in general, from contributing to the local expenditure. It seems not unfair to assume that whatever argnraents may have, in the legislativemind, prevailed over the very cogent ones adducible against the taxation of any income for local purposes, the incomes derived from extra Pro- vincial sources were recognised as proper subjects for exemption ; and to treat sub-see. 12 as at least embodyini:; that principle, and therefore not to be restricted in its application to the particular instances which we may conjecture were in the mind of the draughtsman ^vho first penned the clause, or of the Members of Parliament who originally voted for it. The defendants do not gain much assistance from the direct language of the affirmative provisions of the Act. m AL. [juote from J, R. I authority, being ion than the acts pecial; laid on for iding the expense ice. ThusUmited, , that the burden rvice is rendered." lis the principle of .d definite services, in the case of the j8. 404 and 469 of , form the general nd variety of the II corporations, it is in practice be con- sed for general pm- should fall on those ss holds good ; and ,f ofhcials like this [rom contributing to [whatever arguments availed over tlie very nation of any income ^ved from extra Pro- proper suhjectK for Is at least embodyins ]be restricted in its [ices which we may draughtsman vrlio ibers cf Parliament assistance from the )visions of the Act. ONTAFIIO COURT OF APPEAL. C33 Lkprohon V. City of Ottawa. Section 8 declares that " all municipal, local or direct 1H77-8 taxes or rates shall, when no other express provision has been made in this respect, be levied equally upon the whole ratable property, real Brnd personal, of the munici- palUij or other locality, according to the assessed value of ^^'^tterson.j. a. such property, and not upon any one or more kinds of property in particular, or in different proportions." And by sec. 9, "All land and personal property ?« the Province of Otitario shall be liable to taxation, subject to the fol- lowing exemptions." There can be no pretence that these words of themselves convey any suggestion of taxing incomes. We have personal property defined as including ?»ro;/u.'; but that word, without more, cannot be read as declaring that such an income as the one now in discussion is personal property in the Province, much less property of the locality. Turning to sec. 35, we find that "No person deriving an income exceeding four hundred dollars per annum from any trade, calling, office, profession or other source whatsoever, not declared (xempt by this Act, shall be assessed for a less sum as the amount of his net personal property than the amount of such income during the year then last past, in excess of the said sum of four hundred dollars; but," etc. Reading this by the light of ss. 8 and 9, the natural impulse is to read " No person deriving an income in this Province, exceeding," etc. The words are not "having" or " being in receipt of" an income, but (leririurj ; the same word used in sub-sec. 12, which exempts incomes flmvcd from extra Provincial sources. The idea that extra Provincial incomes are covered by the language of sec. 35, comes rather from the exempting clauses than from those relied on as authorizing the tax. The defendants, who assume to impose a burden upon the plaintiff, have to shew us not merely that it is possible to interpret the statute in the sense for which they con- ■ i i ■ m 1 .■ft" : t'' i SB 634 ONTARIO COURT OF APPEAL. CiTT OK Ottawa. 1877-8 tend, but that their reading of it is the natural and Lkprohon proper rendering of its language; or, if the language admits of two constructions, they must shew that that which supports their case is indicated as correct by its Patterson, J. A. accordance with sound principles, or the clear intention of the Legislature. I am not satisfied that this has been done ; and I therefore think that if the case had to be decided on this point, the proper conclusion would be, that they have failed to establish their plea of justification. The more imjwrtant question is that of the jurisdiction of the Legislature under the effect of the B. N. A. Act, 1867, which is the charter of our Constitution. It has been urged before us, as it was in the Courts below, that the Constitution of the United States of America is so far analogous to ours that the principles settled by the Courts and recognised in practice as governing similar questions with them, may safely be adopted as furnishing the rule by which we should be guided. In one respect the Constitutions are similar. There are, in each case, the Central Government and the Local Government, each with its powers more or less distinctly defined and limited. How much farther the analogy extends it is not at present important to inquire, as these are the points of resemblance which affect the matter before us. The importance of having the line which separates the jurisdiction of the Central Govern- ment from that of the Local distinctly marked by express stipulation or recognised principles is in each case suffi- ciently obvious. The B. N. A. Act is the source to which we must appeal for a declaration of the powers of each of our Governments, central and local. Among the subjects enumerated in sec. 92, as those in relation to which the Provincial Legislature may exclu- ONTAKIO COURT OF APFKAL. G35 if sively niakie laws, is " 2. Direct taxation within the Prov- i«77-8 iuce, in order to the raising of a revenue for Provincial lkpkohon purposes." There is also, "8. Municipal institutions city of in the Province." ''™*- It docs not strike me that any argument of much force ratterson. j a. ill the present contest can he hased upon the latter article, or that it is necessary to resort to it as a basis for argument. If no express power to tax had been given, it is probable the power would, nevertheless, exist as incident to the working of municipal institutions ; but, as the express power is given, we are not driven to seek for it by implication. In my judgment, it is in the second article alone we find the foundation and the restriction of the neral power of taxation conferred upon the Provincial Juegisla- tures. The general power is to raise a revenue by direct taxation. The restriction confines such taxation within the Province. Special powers, such as the power of indirect taxation by means of licenses under tiie rinth article, we need not notice at present. Taxation within the Province must mean the taxation of property within the Province, or a poll lax on persons within the Province. The tax now in question is not a poll tax, and the Legislature of Ontario has never pro- fessed to tax property out of the Province. I have already quoted the words of section 9 of the Assessment Act, which declares that all land and per- sonal property in ths Province of Ontario shall be liable to taxation; and the words of section 8, which put forward the principle of imposing all municipal taxes equally upon the whole ratable property, real and personal, of the muuicipnlitif. It is true that, by a somewhat recent extension of the definition of property, that word, as now used in the Assessment Act, includes income ; and it may be that by expressly exempting extra Provincial mm ■ if! i '■'■ m ii WT ii i Hiiii^ 1 I 1' f illi. G3G ONTAIJIO COURT OK APPKAL, City ok Ottawa. 1R77-8 incomes enjoyed by residents of our Province, it is shewn Lkpkohon that the Legislature treated those incomes as being property within the Province; though, for reasons abeady given, it may be tliat we should not draw that inference Pattersou.j.A. fj.Qjjj ^.j^g insertion of the exempting clause; and it is true that municipal bodies have not always been eareful to inquire whether the personal property they assumed to tax was in truth property in the Province ; as in the case of stock in banks, whose chief place of business was not in the Province, which was in question in Xicldc v. Douglas (1). But, having regard to the restriction of the right of direct taxation to the Province by the terms of the B. N. A. Act, it is obvious that unless the income in (|ues- tion is in truth praperty ivithin the Province, the impositiou of any tax upon it is ultra vires of the Provincial Legisla- ture ; and another reason is furnished for reading the exempting clauses as I have before suggested, and for classing sub-sec. 12 in its relation to incomes derived from extra Provincial sources with the Ih-pc sub-sec. iu its relation to public property, as declaring exempt what there was no power to tax. In construing the words of the second article of sec. . 92 of the B. N. A. Act, " Direct taxation within the Prov- ince," as confining the power to tax property to property within the Province, and inquiring if these incomes are property within the Province, we have necessarily to disregard the definition of property by the Ontario Assess- ment Act, so far as the status of the income us heiug property, or as being within the Province, depends on that definition. Both the learned judges who formed the majority of the Court in giving the judgment now in review, refer to these incomes as being property within the Province, either in their true character or by force of the Assessment Act. That position does not seem to (1) 35 U. C. Q. B. 120 ; 37 U. C. Q. B. 51. Ht ■ r ONTARIO COUllT OF AI'PKAL. G37 ince, it is shown comes as being IT reasons already w that iufennce ilause ; and it is •ays been careful rty they assumed )vince ; as in the ;e of business was Dstion in Mcldr v. e restriction of the by the terms of the he income in ([ues- [»(•(', the impositiou Provincial Legisla- ed for reading the suggested, and for to incomes derived le iirph suh-see. iu .aring exempt what lond article of sec. on within the Trov- »roperty to property these incomes are lave necessarily to the Ontario Assess- le income as heiug ovincc, depends on judges who formed le judgment now in [ng property within laracter or hy force ,n does not seem to Lki'kohon c. City hk Ottawa. have been controverted ; and the question whether a iT-s salary paid from abroad to an olHcial living here, or an income such as dividends on stock, like that which in Sivlde V. Ihniijhis was held not to be property in the Province, can in any proper sense be called property in ^""®1^' -^ -^ the Province, has not been argued before us. I express no decided opinion upon it ; and, as the present decision proceeds upon other grounds, it is not necessary to do so, I notice the question principally for the purpose of saying that it still remains open. The eighth article of section 91 of the B. N. A. Act enumerates, as one of the classes of subjects to which the exclusive legislative authority of the Parliament of Canada extends, " The fixing of and providing for the salaries and allowancos of civil and other officers of the Government of Canada." The defendants in effect contend that the Assessment law of Ontario entitles them to require from the plaintiff a share of his salary so fixed and provided for ; and that the power of direct taxation within the Province enables the Provincial Legislature to confer that right upon the city corporation. The claim is resisted upon the same grounds on which the decisions have proceeded in the Supreme Court of the United States, under which the principle has been established that the State Legislatures cannot, by the imposition of taxes or other burdens, impair or do what tends to impair the efficiency of the instruments employed by the Central Government. The leading case of McCidloch v. Mari/land (1), and the cases which have followed that most important decision, have been referred to and commented on so fully in the judgments delivered in the Courts below, and hy my brother Burton in the judgment he has (1) 4 Wheaton, 31ti. ] i ijP^^'' ii'ilHI: '4 l\:im 7 !'■'!!*■ (INTAKIO COUKT OF APPEAL. just cleliverctl, that I do not attempt any review Lkprohon them. City ok The principle which they establish, and which is recog- omwA. nised as the settled law of the United States, as I gather p.i-teraon, j.A. fj-Q^ ^jjg tcxt-writcrs upon the subject, would pronounce a statute passed by a State Legislature, and having the effect which the defendants seek to attribute to our Assessment laws, unconstitutional and void; ami this, not by the force of any positive provisions of their \Mritten Constitutions, but upon reasoning which appears to me to be entirely applicable to our Constitution, and the force of which is increased by the effect of the eighth article of section 91. It is argued that the reasons which had force in the Supreme Court, when dealing with the Constitution of the United States, are not applicable with us, or have less weight. Thus, when it is said, as in the leading case, at p. 431, " ihat the power to tax involves the power to destroy ; that the power to destroy may defeat and render useless the power to create ; that there is a plain repugnance in conferring on one government a power to control the constitutional measures of another, which other, with respect to those very measures, is declared to be supreme over that which exerts the control, are propositions not to be denied," the answer to the argument based on those propositions, as it is summa- rized by Chief Justice Marshall, is very much the same as that by which a similar argument is met before us. He puts it thus : " But all inconsistencies are to be reconciled by the magic of the word ' confidence.' Taxa- tion, it is said, does not necessarily and unavoidably destroy. To carry it to the excess of destruction would be an abuse, to presume which would banish that confi- dence which is essential to all government." The appeal to confidence which the Supreme Court ONTARIO COURT OF APPEAL. 639 t any review of id which is recog- itates, as 1 gather would pronounce B, and having the attribute to our d void; and this, revisions of their ing which appears Constitution, and Bffect of the eighth I had force in the ;he Constitution of e with us, or have as in the leading tax invohes the destroy may defeat e ; that there is a one government a leasures of another, very measures, is exerts the control, the answer to the ,s, as it is sumiua- sry much the same is met before us. stencies are to be Iconfidence.' Taxa- y and unavoidably [f destruction would banish that confi- iment." he Supreme Court held to be ineffectual, does not possess, in my judgment, W7-» any greater weight when advanced in our tribunals. Lkpbohon There is no security that, in the exercise of a power (<,ty or which is capable of being used to the detriment or Ottawa. embarrassment of the Central Government, the Pro- ^•'*^^«"""-J a. vincial Legislature will always be guided by a judicious regard for the harmonious working of all the departments of the Constitution. What motive may be found suffi- ciently powerful to lead to antagonistic legislation, or whether any such motive may arise, or whether, from caprice, or from crude theories of political economy, or from any cause whatever, the power now in dispute may be exercised in a vexatious manner, must be matter of speculation. The very Assessment law we are discussing affords at least one example of departure from a professed principle, under the influence of a motive of sufficient force. Equality of taxation of all property of the municipality, real and personal, is announced as the fundamental principle of the law. Every statute from 1850 down- wards has contained the same announcement. It was discovered, however, and was one consequence of taxing personal assets for local purposes, that it was impolitic to treat investments in bank stock as the same money, if invested in real property, would be treated ; and accordingly, by 37 Vict. c. 19, s. 3, 0., the shares held hy any person in the capital stock of any incorpo- rated or chartered bank doing business in this Province, were exempted from assessment for municipal or other local rates or taxes, and the dividends only were made assessable as income. I do not doubt or question the wisdom or the expediency of this change in the law. I refer to it merely as illustrating the instability of pro- fessed principles of legislation, even on the subject of taxation, in the presence of a powerful disturbing v r': 640 ifi -mm 'i'flfflM; 1877-8 Lkphohon V. ClTV OF Ottawa. Patterson, J. A, \IW ONTARIO COIKT OF APPEAL. influence. Who can say that a further (liscriminaticm in favour of other property as against the iucomos of Dominion officials, or an avowed abandonment of the equality principle, is impossible, for some reason wliich, in a time of political excitement or discontent, may lie thought sufficient to warrant such a measure '? I have had an opiwrtunity of seeing some of the judK- ments lately delivered in the Supreme Court at Ottawa, iu Jlit/iiKi V. Sm-rn (1), and I observe that more than one of the learned judges, in deciding against the Province the question of the right to require a brewer to obtain and pay for a license to sell his beer for consumption in the Province, for which the Provincial Government had con- tended under the ninth article of sec. 92 — " Shop, saloon, tavern, auctioneer, and other hcenses " — gave weight, as a reason for the construction which they placed upon the words "other licenses," to considerations based upon the impolicy of conferring upon the Local Legislature a power which might be made use of to impede the opera- tions or thwart the policy of the Central Government. To hold the taxation of the incomes of Dominion officials ultra vires of the Provincial Legislature by uo means involves the exemption of those perhous from bearing their share of the burdens which ought to k borne by all persons associated within the precincts of a municipality. The maxim of Dr. Adam Smith, which has met witi; such universal acceptance, that " the subjects of a State ought to contribute to the support of the Government in proportion to the revenue which they respectively enjoy under the protection of the State," has but little diiect application to local municipalities ; but even substitutmg Municipality for State, the rule would seem to be satisfied by a tax on the real property one holds, and perhaps oe (1) 2 Can. S. C. R. 70 ; aiUe, p. 414. I ' * ONTAHIO COUHT oh Al'I'KAI.. an Ah. ler (liHcviiuinivtidU Bt tlie iucomes of amloiHiient of tlie ome reaBoii whieli, discontent, may lit neiiBUie ? ,g some of the ]wk- , Court at Ottawa, in lat more than one of nst tlie Province tliu i-ewer to obtain aiul consumption in tbe government bail con- .. 92— " Bhop, saloon, les "—gave weight, a^ .ch they placed upon liderations based upou ^e Local Legislature a to impede the opera- entral Government. .ncomes of Dominion jial Legislature by uo . those perhous from Q8 which ought to k ,hin the precincts of a I, which has met vriti- the subjects of a StaU of the Government iii ■hey respectively enjoy B " has but little dliect /. but even substituting Luld seem to be satisfied I holds, and perbap^^ ante, p. 41*' 1877-8 (*ITY OK Ottawa. lertiiin kinds of tangible persona' property wbieh may 111' supposed to beuutit by tlie municipal expenditure. These taxes, of course, every resident or property owner must pay. just as he must pay his rent to his landlord for the house he lives in, from whatever source bis money P^tto iHon .j a. lomes. It is so far a matter of TTA\VA. liH:' llll ' liji, I'i 'I' I ; ill 1(^77-8 inj; of. It Ih exactly of the Hamc character whtn tliu Lki'kohon otlicial happens to Hve in the city of Ottawa. The objects an they are, 1 know of nothing in their chanicttr whid, brings the qidil pro quo doctrine, however liberally intoi- preted, to the support of the right now in dispute. To take an instance: a substantial proportion of the expendi- ture of most of our towns and cities, as well as of manv rural municipalities, is incurred by the bonuses graritnl to railway companies or other enterprises, from wliicli the municipality, in fact or in anticipation, derive-i material benefit. By whom are these benefits enjoyed? It would be out of place to discuss the policy of incurrini: onerous debts for the objects alluded to; but it is ai)positt to our present purpose to bear in mind that the practice is supported by the argument that property will increase in value, and business will be stimulated ; and these predictions are often verified. Those who have l)uildin- lots to sell find more purchasers and get better prices : and those who are engaged in trade find their account in the larger number of customers and the brisker demand; and the facility for moving agricultural produce, wiiile it brings trade to tlie city, directly adds to the produetiv. value of the farm. The man who stands outside of ali this prosperity is the otficial working for his salary, h. respect of his otUce and of his salary he derives no l)euelit. If affected at all, it is more likely to be in the wayo! harder work and higher rent, yet, though not of the clas- who gain, he is to be iii the class who pay. We are, therefore, in the absence of other foundation for the defendants' claim, referred back to the sovereignty of the Provincial Legislature over property and people r i* Al.. aractor when tlif itawJi. ay of our munii-i- •tiouH and iiowcrs ,-ouil the viiuKi' ')t Lve anil varied u ir chariicttn- wliul. jver liberally inttv- ow in dispute. To ftion of the expcmii- as wcdl as of manv ,he bonuses <;rantid rpriBes, from wlncli inticipation, derive^ se benefits enjoyed? le policy of incurring' Lto; but it is apposiu ,ind that the practice property will i^creim Emulated ; and tks. ge who have buildin;; |nd get better pricey. find their account ui .the brisker demand, jural produce, wliile it .ds to the productiv. stands outside of all lig for his salary, la he derives no beuttit. to be in the^vayo( Ihoughnotoftlicclnf^ ho pay. L of other foundation lack to the sovereignty property and peopV ONT.VHIO (oritr (»l AI'I'K.VI.. vAn liKI'ItOMON (', CWi (IK ()TT.\\V.\, within the range of its jurisdiction: to tlio argument tliat iH7''-f« it is the legislative mandate ; and to tlie (pu'stion, is that mandate iuttui riirx.' In tlie plaintiff's view, the position is this: — For thr (liBcharge of my duties, and to enable mv suitably to ''""®;;21!"' '^" maintain myself and those dependent on me, the i'arlia- ment of C'anada has fixed my salary at $ir)()0. The defendants, under the assumed authority of the Provmcinl Legislature, declare that I shall not have $1500 for those purposes, but that I shall share it with tlioTn, After the best consideration I have l)een allt to give to the case, and with the assistance of the able arguments to which I have listened, as well as th ^)eru8al of i,lie judgments delivered at nisi priun and in the (^ueei s Bench, lai.. 5,' ible to find any rear on satisfactory to my mind for refusing to apply to this case the p)in(ipl<'s of the United States decisions. I think those principles, if properly applied in the cir- cumstances of the cases in which the decisions were given, have an (i fortiori application in a case like the present, which does not, like several of the American cases, arise in relation to the imposition of a tax for the purposes of the State or Provincial revenue, to which the tax itself ' would be admittedly appropriate, but in reference to the execution by a local municipality of a power founded, to my apprehension, on a questionable principle. Acting therefore upon the authority of the eminent .\merican jurists which has settled the question in tiie neighbouring republic, I hold that the imposition of the tax upon the plaintiff in respect of his salary was a matter which the Provincial Legislature could not authorize without exceeding the authority conferred by the B. N. A. Act. I doubt if, in any proper sense, the plaintiff's salary can be called property within the Province, and am therefore inclined to the opinion that it is not reached by iiU (t.STAUlU COLKT Of AI'l'EAL. 1877-K the ))ower of (lirect taxation k itiiiii the Vroviiuc under tli( Lki'koiion second article of sec. 1)2, and that we have not only tlii V. (!lTV OK l)roliibition dediu-ible from the ninth article of sec, Dl Ottawa. |,^^ .^ failure of ori}^inal or n priori authority; and I'attprsou, .J. A. fm-ther hold, though with distrust of my correctness, tlia upon the proper construction of the Assessment Act tin exemption of salaries like that of the plaintiff has bcei recognised, and that the transgression of the Provinciai jurisdiction exists in the action of the defendants only and not in the true effect of the statute under which tlifj assumed to act. 1 therefore agree that this appeal be allowed, witli costs. .J ruiJMENTs IN Quken's Benlh. [llepurted 40 U. C. Q. B. J,7S.] Haiiriisox, C. J.: — The only (jiicstion argued before us was, whether tlic uHi cut cor salary of the plaintiH", an otticer of the House of Cominoiis of t Doniiniou of Canada, is exempt from municipal taxation, and th; question must be decided on the proper interpretation to be plac on the H. N. A. Act, I8(ir. When that Act became the supreme law of the Provinces, the for the first time united, the annual official salaries of tlie dtli and servants of the several departments of the Executive (imeri ment and of tlie two Houses of Parliament, resident at tlie seat (iovernment, were, in tlie Province of Ontario, by express logis tion, exempt from municipal taxation : 29 and 30 Vict. c. 8. 0, sub-s. 23. A similar exemption was declared in the Ontario Assesaiiieiit A 8ubse(iuently passed: 32 Vict. c. 36, 3. U, sub-s. 25 ; but in If* the Legislature of Ontario assumed to repeal the exemption Vict. c. 28, s. 1, O. When the (juestion is as to the interpretation of a statute wlii extends ecjually to several Provinces, unless it bo made to aiijv that the law on the point under investigation was the same in e Province before and at the time of the passing of the statute, reliable argument is furnished for its interpretation. ONTAKIO coUKT of Al'l'KAI. (14." )eal be allowi-^l, witli law of the rrovinccs, then. ial salaries of the ottieirs of the Executive liovern- lent, resident at the seat uf Ontario, by express legisU- 09 and 30 Viet. c. o3, pretation of a statute which unless it be made t..m>ear ligation was the same iueacb ,e i.,v8sing of the statute, >. interpretation. 1«77 I/KI'UOHON /'. Cn V or ( »'n AWA. We are not informed as to the law of exeniiitiona in the sevi'ral Provinces of Nova Scotia and Now Brunswick at the time of tlie passing of the Act, and so must adjudicate on tlie (|uestinii now before us without light, if any, in that respect from either of tlicsu Provinces. . . . . i^i. I'., ( intiu'io. The B. N. A. Act, which is now our written (^institution, has, like the Ctmstitution of the United States, federally united sever.-d HarriHon^ r. .J. coniiiiunitios, before the union having sei>arate fiovernments iiiul separate Parliaments, rulinif and legislating independently of each other, and without reference to eacli others interests. In each Constitution (that of the; United States and ours) Ave see traced in strong characters the separate functions of tlie executive, the Legislature, and the judiciary de])artments of government ; and provision is made in our Constitution for the independent exercise of the executive and legislative functions, not only by the central authority, but by the authorities of each Province. Neither Constituticni attempts to make provisi(m for all exi- gencies that may arise in the exercise of these functions. In considering the Constitution of the United States, the eminent jurist, Chief Justice Marshall, felicitously said : "A Constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects bo deduced fjom the nature of the oVijects themselves : " MctUiHorh v. The Siatv <>/ Manjlund (1). In our jiresent enquiry wo are alone concerned with the legis- lative powers conferred on the Parliament of the Dominion of Canada, and the Parliaments of the several Provinces. These .are to be found, so far as expressed, in sections 01 and 92 of tlie R. N. A. Act. The former section, 91, confers on the Parliament of Canada power to make laws for the peace, order and good government of Canada, in relation to all matters not coming within tlie classes of subjects by the Act assigned exclusively to the Legislatures of the Provinces. (1) 4 Wheaton, .31(5, 407. 1- if I*i '^t I -iMJ; ()4-(j ONTARIO COIHT OK APPEAL. The latter section, 02, assigns certain classes of subjects ilescribuj exclusively to the Legislatures of the Provinces V. The inference whicii I draw from the reading of these two suc- O'fTAWA. tions is, that unless a particular legislative power be found clearly 1H77 liKI'KOHON 'i,; i H Mi S(. JacqucH de Moidmd v, Hdkh' (2) ; D,nr et al. v. iJIxH Ci). In this respect there is a difference between our Constitution and that of the United States, for by the tenth amendment of the C(in- stitution of the Uniteu States it is provided that " The powers not delegated to tlie United States by the Constitution, nor prohibited by it to tlie States, are reserved to the States respectively, or to the people." Where, under our Constituticju, a Bill passed by the Houses of Parliament is presented to the Governor-General for the Queen s assent, he shall declare, according to his discretion, but subject tn the provisions of the Act and to Her Majesty's instructions, eitlier that he assents thereto in the Queen's name, or that he with!i(ilds the assent, or that he reserves the Bill for the signification of Her Majesty's pleasure : sec. ;>.'). Where the (iovernor-Geaaral assents to a Bill in the Queens name, he shall, by the first convenient opportunity, send an au- thentic copy of the Act to one of her Majesty's principal Secretaries of State ; and if the Queen in Council, within two years after the receipt thereof bj' tlie Secretary of State, thinks fit to disallow the Act, such disallowance (with a certificate of the Secretary of State of the day on which the .\ct was received by him) being signified by the Governor-General by speech or message to each of the Houses of Parliament, or by proclamation, sliall annul tlie Act from and after the day of such significati. OX (.3) Il>. 272 ; aiitr. p. >)',. ONTAUIO f'OUHT (>F AIM'KAL. 647 : li^ I ft '} It ■; li ^ 4j a f subjects describud inces, as if those provisions were re-enacted and miidc ai>i)licable in 1877 terms to the respective Provinces and the Let'islatures tlieroof, with , "'■~ Lki'uohon the substitution of the Lieutenant-Uoveruor of the Province for ). the Governor-General, of the Governor-General for the Queen and ()J-x\\v.| fur a Secretary of State, of one year for two years, and of the l-roviuce for the DonnnK^n of Uanada : sec. ;»0. The effect as regards Bills passed by the Pn.vincial l.ojj;i8latures, "'^'"'"'^ t;. J. I take to be as follows : 1. Tlie Lieutenant-Governor of the Province, on i)resentation of ii Bill for his assent, shall declare accordin;^ to his discretion, but subject to the provisions of the Act, either that he assents thereto in the Queen's name, or that lie witldiolds the Queen's assent, or 'hut hi- reserves the Bill for the signification of the (Jovernor-Gen- I'tals jileasure. •J. Where he assents to a Bill, he must, by the first convenient ipiiortnnity, send an autlientic copy of the Act to the Governor- lleiieriil, and if the Governor-General in Council, within one year after receipt thereof, thinks ht to disallow the Act, such disallow- iiiice being signified by the Lieutenant-Governor by speech or measiige to the Provincial Parliament, shall ainnd the Act from and after the day of such signification. Tlie power of the Governor-General in Council to disallow a Pnivincial Act is as absolute as the power of tlie Queen to disallow I Dominion Act, and is in each case to be the result of the exercise ■)f 11 sdiind discretion, f. <••<■ (1) .')]■;. & H. 4!>, G48 ONTARIO fOUHT OF APPKAL. 1877 ^— '/^^ Lephomon c. City ok Ottawa. t^.B., Ontario. Harrison, C. J. rights, and generally as to all matters of a merely local or piivatu nature in the Provinces : sub-ss. 8, 13, and IG of sec. 92. The latter powers are subject to the declaration in sec. 12.5, tli.it " no lands or property belonging to Canada or to any Pidvinci.' shall be liable to taxation." Power is, by sec. 131, given to the Governor-General in Cnuncil, until the Parliament of Canada otherwise provides, from time tn time, to appoint such officers as deemed necessary or proper for tin effectual execution of the Act ; and by sec. 130 it is provided tlmt, until the Parliament of Canada otherwise provides, all of licors oi the several Provinces having duties to discharge in relation i» matters other than those coming within the classes of subjects In the Act assigned exclusively to the Legislatures of the Provinces. shall be " officers of Canada," and shall continue to discharge tlic duties of their respective offices under the same liabilities, responsi bilities and penalties, as if the union had not been m.ade. An office, says Marshall, C J., is a public charge or employment. and he who performs the duties of the office is an officer. If em ployed on the part of the United States, he is an officer of the United States : United States v. Maurice (1). Although the plaintiff was not appointed by the Governor-Gen erftl of Canada, but by the House of Commons of Canada, of which it is admitted he is an officer, he is, T think, for the purpose of the question before us, to be deemed as much an officer of Canada and of the Government of Canada as if appointed by the Governor- General in Council. The same word, owing to the poverty of our language, is often used in different places to express different ideas. The word "gov- ernment " may, in a general sense, be taken to express the ruling powers of a country, including legislative and executive, or, in a m I'e limited sense, only the chief executive officers to whose adminis- tration the executive duties of government ai'e especially delegateil. In the former sense. Parliament or the Legislature is as much a department of Government as the executive, and it is in this sense I think the plaintiff should be held an officer of the Government of Canada, although not appointed by the Executive Government of Canada. Ever/ argument which can be urged in favour of the exemption from taxation of the salaries of officers appointed by the Executive (1) 2 Brock, m, 102. jrcly local or piivatu » of sec. VV2. tion in sec. 125, that or to any Province r-Gencral in Council, rov'iiles, from tiino t" sary or piopcr for tlu K) it is provided that, trovides, all ofHcers of ;harge in relation t" classes of siilijects by res of the Pnivinees. inue to Hcable to an officer appointed by cither branch iif the Legislature of the Dominion of Canada as to officers a])- puinted l)y the Governor in Council. The great question therefore is, whether there is such can exemp- tion as claimed on the part of the officers of Canada, whether appointed by the legislative or executive departments of the General Government. In the determination of this (juestion 1 propose, so far as neces- sary, to refer (mly to the decisions of the Supreme Court of the I'nitud States, .and not to any of the decisions of State Couits in conflict with the decisions of th i Supreme Court. It is III it pretended that on the face of the B. N. A. Act there is in words any exemption from " municipal taxation " of the salaries iif such officers, but the argument is, that the exemption ii as neces- sarily intended and as effectual as if expressed in words. The principal argument against the exemption is, that the Imperial Legislature having, in sec. 125, provided for certain exemptions, none others should be inferred, according to the maxim " e:rpfcssio nidus est exdusio alterius." But this maxim, although general, is by no means of universal application : see per Lord Campbell, in fiaunders v. Evans et al. (1). The sages of the law (according to Plowden) have ever been guided in the construction of statutes by the intention of the Legis- lature, which they have always taken according to the necessity of the matter, and according to that which is consonant to reason and good discretion : Plowden, 205 b. By sub-sec. 2 of sec. 10 of the Constitution of the United States, it is provided that " No State shall, without the consent of Con- gress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws," etc., and from this it was argued that, with the exception stated, any State had power to lay on taxes not being imposts or duties on imports or exports on any person or property within its territorial jurisdiction ; but in no case has the Supreme Court of the United States ever given etlect to this argument. The leading case on the point is McCidloch v. The State of Munjiand i2), mentioned in the judgment of Mr. Justice Moss. In that case it was held that a law of the State of Maryland imposing a tax on the "perations of the Bank of the United States was unconstitutional. 1877 liKI'KOHON V. City or ( )ttawa. <^B., Ontario, HiirrlBon, C. J :f I I I, (1) « H. L. Cas. 721, 729. (2) 4 Wheaton, 316. 050 ONTARIO OOT^RT OF API'KAF.. IS77 Lkpuohon fit iii In delivering judgment Chief Justice Marshall said, at p. 42ri : " That the power of taxation is one of vital importance ; tlmt V. it is retained by the States ; that it is not abridj^'od by tlic Orrwvv grant of a similar pcnver to the government of the I'nioii ; tli;u it is to be concurrently exercised by the two u;overnmtnt3, un; "' ' ' truths which have never been denied. But such is the pain- Harr lHou, C. J. jj^^^,^,jjj^ character of the Constitution, that its cajjacity to with- draw any subject from the action of even this jiower is admitteil. The States are expressly forbidden to lay any duties on iiniinr's or exports, excei)t what may be absolutely necessary for execiitin,' tlieir inspection laws. If the obligation of this prohibition must be conceded — if it may restrain a State from the exorcise uf its taxing power on imports and exports — the same piirauioimt character would seem to restrain, as it certainly nuay restrain, a State from such othfr exercise of tliis power as is in its nature in- compatible with, and repugnant to, the constitutional laws of the Union.' In a subsecjuent part of the same judgment, at p. 432, the samo learned and distinguished judge said : "If tht. States may tax one instrument employed by the government in thle. They did not design to make their government dependent on tlio .States, The result, as expressed at p. 430, was, that " the States have no power, by taxation or otherwise, to retard, im])ede, l)ur(len, or in any manner control the operaticms of the constitutional laws enacted by Congress to carry into execution the powers vested in the genei'al government." liut it was said that this "doesn, 44ti. i:f) 2 Peters, 449. (4) 2 IJlack, 620. (oi 4 Peters, 514. ((i) -A Wallace, .W?. (7) 4 Wallace, 244. (8) G Wallace, 594. (0) lb. Oil. r)r,2 ONTARIO COURT OF APPEAL. LKI'KOHON V. CiTV OK Ottawa. (•i.B., Ontario. 1877 The case, however, whicli on the facts most resenihlcs tin- (. is^ bef(>re US, is Dohbinx v. Tlo' Commissi i me rs of Eriv Ctnintii (]'. j,, that case the Supremo Court of tlie United States hold tliat ii Stat' had no power to tax an ofKccr of the United States f(ir his (iftice c.r its emoluments. It was said to he tlie only instance of a tax l)cin • rated in the State of Pennsylvania upon the salary of an ofliconf "°"' ' ' ■ the United States. The officer was in comnisvnd of the reveiuu cutter Erie, on the Erie station. He had been for several veii. resident and domiciled in Erie city, and voted there. He Wil^ rated for the years 1835, 183G, and 1837, for §500— tlio salary, i his office. The State law was, that an accoimt should bo taken "of all offices and posts of profit," and that it was the duty nf assessors " to rate all offices and posts of profit, professions, tra'les. and occupations, at their discretiim, having a due regard to tlin profits arising therefrom." It was plain, therefore, tliat tlio tax was on the emoluments of the office, and not simply on the dlfioi'. But whether it was the one or the other, it was pointed out by Mr. Justice Wayne, who delivered the judgment of the court, tlmt the tax could not be sustained. The learned judge said, at p. 445 : " The emoluments nf tht office, then, are taxable, and not the office. But whether it be one or the other, we cannot perceive how a tax upon either conduces to comprehend within the terms of the Act the office or the compen gation of an officer of the United States. It will not do to say, as it was said in argument, that though the language of tlie Act may import that offices and posts of profit were taxable, that it was the citizen who holds the office whom the law intended to tax, and that it was a burden he was bound to bear in return for the privileges enjoyed and the protection received from government ; and, then, that the liability to pay the tax was a personal chars^o, because the person upon whom it wjvs assessed was a taxable person." In answer to such suggestions, the learned judge proceeded t' say : " The obligation upon persons to pay taxes is mistakerj, and the sense in which a tax is a personal charge is misunder- stood. The foundation of the obligation to pay taxes is nf tin; law : (1), Huiil: r.»..' OisMi'j. Constitutional Law, sec. be sununarily statuil as t taxation generally uiion larioa ; but they cannot 18 of the nation. They jnces of the national ikht ■ated by the nation as a ilaries of national officers, d by the nation to carnj I'U d the reach of the sewm' utional Limitations, M liard on Taxation, 148; , 507 and note. the Constitution of the irs are with the States ui question the law of the ;o our Constitution, where ,e with the General Gov mcrs of Erie ^'onnin iS', an attempt was niaJe by ly of a judgvT appointed by ;o be unconstitutional. le cases appear to be, that Governments are, as it lans and instrumentalities iovernment are not to be to tax involves the power the one Government on is inconsistent with imle- lat in such cases excnn'tion Ithe National Constitution. (3) 16 Peters, 435. (4) 11 Wallace, IK'. oNlAUlo coUHT (»K .M'I'KAL. 055 rrnr I 1 wrr?i i i i i These principles appear to me to bo, if possible, more applicable to our Constitution than to tiiat of tho United States of America. It does not, liowever, follow from them that railway corporations and other corporations created by or under the authority of the 1S7 LKI'UOHoN r. CMty or Ottaw.v. Umniiiion Legislature for other than (lovernment purpfises, would k more free from municipal taxation than companies incorporated '' ' by the Provincial Legislatures. Harrlgoii. r. j. For tliese reasons I concur in tho decision of the learned judge who tried the cause. In my opinion the rule nisi should be discharged. .Morrison, J. : — After the best consideration I have been able to give to this case, I have arrived at the conclusion that our judgment should bo in favour of the defendants. The B. N. A. Act defines by sections 01 and 92 tho exclusive objects of legislat.on which are respectively within the jurisdictions of the Parliament of Canada and the Provincial Legislatures. The terms used designating such respective objects, classes, and powers of the Local Legislatures, are necessarily general, and in sr)me instances dithcult of an accurate or certain interpretation when it kcomes necessary to define in detail what matters are or are not within the particular class, or are limited or excluded by some other power or class assigned to the Parliament of Canada. Among these terms are sub-sec. 8 of sec. 92, " Municipal institutions in the Province;"' sub-sec. 13, " Property and civil rights in the Province ;" • sub-sec. 16, "Generally all matters of a merely local or private nature ir. th) Province." In neither sections 91 nor 92 is there to be found any expression indicatinj,' the exemption of any person, or the property or income of any person, from taxation, whether Dominion, Provincial, or •Municipal. We have therefore t> consider whether there is any- thing to be found in any of the respective powers implying any exemption, or whether there is any principle authorizing us to imply that the officers or employees of the Dominion Government are not liiible to be assessed or taxed for municipal purposes as other 'esidents within a municipality. That the subject of exemption from taxation was considered by the framers of the B. N. A. Act is apparent from section 125, which declares that "No lands or property belonging to Canada or any Province shall be liable to taxation." VI ^m^ > 1877 IjKI'KOIION City ok Ottawa. t^. li., Oiitiirii Morrison. J. 050 ONTARIO COUUT oF AI'l'EAL. It HitputirH to mo that tliis uxpruss uxeiiii)tion of piililic inoiierty clutui'iiiiiiuR the limit of uxumptioii, und liy imiiliciition h|| (,(|,^,|. property is littblu unilur tlio roHpuctivo powers confurrud l)y lliuHlst iinil \)2\u\ HuotioiiH. I'luler the class " Miiiiici|)al institutions within tho I'loviini. thu making of a law for tho assessmont of personal iiropfity fi,i' nuniicii)al [inrposes ia certainly a law in relation to a matter within that class, and is conso(|Uently within tiio exclusive jHiwir nf tl^ Piovincial Legislature ; but it is arj^ued that upon some guiarai principle, which wo are to imply, tho utlicors and employees of t\^^ Dominion Cjovernmont aru not liable to the same extent of taxfition for mimicipal |)uri)oses as other residents. Tiiero is no such principle or usaj^o that I am aware of roi'ni,'ni.sy(l in England ; but it is said that our system of government ami cmi. stitutiun is like that of the United States, and we have laen referred to cases decided in the United States courts as imlicutiiiij the principle 1 have referred to ; and it has V)een argued tlnit mir system of confederation is so similar to that of the United Statis that the grounds upon which those deci3i(jns have been deciilid are applicable to tho state of things existing in this country ami the respective powers of the Dominion Parliament and the Provincial Legislatures, liut it seems to me those cases are (|uite distiiiguiah able, and were decided upon grounds and f(jr reasons that do not apply hero. The several States of the Union are .sovereign iiidei)t'ndi.i)t States. Their Constitutions and powers are not expressly draij; naled or limited, but the Constitution of the United Status i- limited ; as said by Chancellor Kent (1), it " is an instruiueiit cnii taining the grant of specljic powers, and the Government of thi- Union cannot claim any i)ower8 but what are contained in t!.L gi'ant, and given either expressly or by necessary implication. " The distinguishing character of our system is, that the B. N. .\ Act ia an Act of the Imperial Parliament conferring certain specilic powers upon the Parliament of Canada, and certain specific poweis upon the Provincial Legislatures, with this other important ditl'ei- ence from the Federal Constitution of the United States, tliat tlio Dominion Government have in their hands a check upon the Legis- latures of the Provinces in the power of disallowing any statiitf passed by them, and so may prevent any legislation which tends t^ (1) Kent's Com., Vol. 1, 12th ed., p. 3i;{. !n aL. ONTAUIO COrilT Ol' AIM'llAI. C,n7 in of i>»0>lic jiiinnit} imiilicivtioii all i>l\\v\ i conferrftU)}- tUo'ilst rtithin the Proviiue, pcrsiiiml i»riii)i'ity fm lull to ii lUivttor witlmi •xclusivo iiowir "t tlio lUt upon 8O1110 gOlUTal i IVlul ClllployOt'S of tllU Biuue uxtt'iit of taxation iini ivwiiroof rcc('!^ui»fil of govermueut and cmi 03, and wo havo butii XtiS courts 1V8 iiuliciitiii- A been argued thiU 'm Lilt of the Unitud States us have been duciiled ari; La this country and tlie ,«nent and the l'r.>vina;il i8e8are(|uitedistmt;mili for reasons that du nut sovereign independi'iit are not expressly dosi- [uf the United States is It " is an iustruiueiit oiir the Government uf tli.' lat are contained i" il.^ [cessary iuiidication. jtenx is, tliat the B. >'• -^ [conferring certain specilii Ind certain specitic puweis lis other important ditiei- [e United States, tliat the Is a check upon the Legi^- pf disaUowin^' any statuii' [legislation which tends t' ed., p. ai:'' nlrtlnict, defeat, or impede tlio constitutional acts of the Dominion 1877 rarliameiit or (lovernment. Tlio '•• tvincial Legislature is in that , ~'^ LKinuiiios aspect not like a sovereign State of tlio I nitm, but suliordinate t»» ,. that of the Dominion Govornmont, and tliero are conseiiuently not on\w\ those grave difKcidties and dangers U) bo appreliended here, as , . ,, ■ ,, » . , , T . , Q-I^M Ontario. su;'i,'e8tcul in the cases in tlio American courts, fni'ii tliu Lcgisla- tmeniif tho States of tho Union, and wiiicli ikj doubt pressed upon ' '"" '"*"" ' ' the learned judges of tlio Supreme Court wlio had to consider the cases we liavo been referred to. I may hero remark that this is not tho case of tho Local Legisla- ture enacting that the otiicers of the Dominion (jiovornment shiili [.ay any particular tax, or that the otHce itself .shall be taxed ; but the Act complained of is, the exorcise of an alleged municipal right ti assess personal property of residents within tho municipality. Tho Abh 'iiuent Act, 32 Vict. c. 3(i, (). , and the amending statute 34 Vict. c. 28, O. , are uniiuostional)ly constitutional. They contain no clause or provision in violation of the 15. N. A. Act. All tliat can be said is tliat the othcers of tho municipality of Ottawa, under tho authority of tho ABsessmont laws, assessed tho ]ilaintiti' for liis personal property in the manner pointed out in tho oJth section of tho 32 Vict., which provides that tho ratepayer's list year's income in excess of i^iOO shall be held to be his net per- siiial property for the current year, unless he has other property liable to assessment, in whicli case such other property and such excess shall be added together and constitute his personal I'loperty liable to assessment. Tlie cases we liavo boon referred to in tho United States courts, mure particularly tlie leading case of Md.'ulloi-h v. Tin: Sfatc uf ManjhiHd (1), are, I think, quite distinguishable, and d(j not aiiply. The general principle laid down is, that the several States have no power of taxation or otherwise to retartl, impede, bu-len, I r restrain in any manner tho powers vested in the General Govern- ment ; but the principle so laid down in that case has been limited W a subseiiuent judgment of the Supreme Court in the case of The National Bank v. Commonwealth (2). , Mr. Justice Miller, who delivered the judgment of tho court, after stating that the principle laid down in McCulloch's case had been repeatedly affirmed, said, at p. 3G1 : "The doctrine lias its foundation in the proposition, tliat the right of taxation may be so ^m\ (1) 4 Wheaton, 310. 42 (2) I) Wallace, 353. ■^ 1 ('■ ' '■ i « \ ■ ■! ' ■. !<■ Mk ONTARIO COURT OF APPEAL. ' t I • ill H* LKrUOHON /•. City of Ottawa. Q.B., Ontario MorriHon, J. used in such cases as to destroy the instrumentalities hy which tl G(jvernnieiit proposes to ert'ect its lawful purposes in the Status, at it certainly cannot be maintained that banks or ovher corponuioi or instrumentalities of the Government are to be wholly witlulraw from the oj)erati(m of State legislation. The most imi)ortant ageii (if tlie Federal Government are its officers, but no one will cunteii that when a man becomes an officer of the Government he coasos t be subject to the laws of the State. The principle we are discussin has its limitation — a limitation growing out of the necessity o: which the principle itself is founded. The limitation is, that tli agencies of the 'i'ederal Government are only exempted from Stati legislation so far as that legislation may interfere with or iinpai their efficiency in performing the functions by which they are de signed to serve that Government. Any other rule would convert; principle founded alone on the necessity of securing to the Govern ment of the United States the means of exercising its legitiniatt powers into an unauthorized and unjustifiable invasion of tlii rights I )<^ the States. The salary of a Federal officer may nut bo taxed ; he may be exempted from any personal service which inter- feres with the discharge of his official duties, because those exemptions are essential to enable him to perform tiiose duties. But he is subject to all the laws of the State which affect his fami or social relations, or his property, and he is liable to punishine for crime. ' And, again, in Thomson v. Pacific R. W. Co. (1), Chief Justice Chase, in delivering judgment, says, in commenting on Mdk v. Mf a revenue cutter was, eijually with the vessel, her guns, etc., means to enforce the law, and that a tax upon such an officer was an interference with the constitutional means of the United States, within the principle laid down in McCuUoch's case. 1 am not at all disposed to admit that that de- cision was a sound one. I may also refer to the case oi Tin' Cvl- (ii/or V. Daij (2) to sliew that the decision in Dobbins' case was rested mainly upon the ground that he was captain of a revenue cutter. Nelson, J., in delivering judgment, said, at p. 127, the rule and principle of the case (Dobbins') was, that "the exemption rests (1) 16 PeterB, 435. (2) 11 Wallace, 113. I •\'U I' li .i| 1 l ■ i 1 ■ ■ i : ■ .1 1' i 1 i i: ■ M coo ONTARIO COURT OF APPKAL. 1877 TiKPKOHON li iipun nocessary implication, and is upheld by the great law of solf- prosorvatiun ; as any Government whose means employed in conduct- ^, ing its operations, if sul)ject to the control of another and distinct City ok Government, can exist only at the mercy of that Government. Of Ottawa. ' •' •' • " wluit avail are these means if another power may tax theui at C>.7i., Ontario. ■,■ . ■ .,. ' ' discretion i Mo rriBoi ], J. j cannot see that such reasoning can apply to the relations existin" between the Government of the Dominion and the Provinces, or to the case of this plaintiff, or any clerk or person employed iu any othce of the Dominion Goveriiment. I also refer to the case of Mvlclier v. City of Boaton (1), a casu somewhat like the one before us, as shewing the view entertained by the learned judges of the Supreme Judicial Court of Massaolm- setts, of the decision in the case of Dobbins. The learned judge who delivered the judgment of the court said, [). To : " Tlie piaintiti" relies upon the case of Dulibins v. Commis- aianers of Erie, as an authoritative decision governing the present case. Giving to that decision all the force and effect of a judgment of the highest tribunal ujmn the question there I'aised, yet tliert; iirise, in the case at bar, tw<; important cjuestions for our considera- tion. 1st. Was the plaintiff an otHcer of the United States, in any such sense as would entitle him to the immunities from taxation which were adjudged to attach to Dobbins, as a captain of the United States revenue cutter i? 2nd. May not a tax upon ' iiicume be assessed up(m all citizens lif Massachusetts residing therein, us well where such income is derived from the National Governnient, by way of compeii.salKjn for services rendered to it, as from any other source r' And after referring to the Act of Congress regu- lating the post-ofiice department, and the poaiticjn of the plaintitf as a clerk, etc., he said : — '' The case in 10 I^'iters, 435, already refei- re.!'.., Ontario. the case of Dd'liin.'i v. Cutniniii.Hiotii'rn uf Erir ; not being an officer (if the United States in any such sense as will exempt hiiu from taxa- tiim in common and in the like manner with all other citizens and residents of Massachusetts. He is therefore liable to taxation ' for income,' and tliat as well for income derived from compensation for services rendered to the National Government, as from any otiier ' ' suurce." The learned judge then says that it is not necessary to express iinyopinit)n up(m the second question, whether a tax upon "income"' may not be well assessed upon one holding a public oftieo under the General Go^■ernment, and proceeds, at p. 77 : " But we deem it proper to say, that such form of taxation may present a ditrerent nuestio!!; and authorize a different decision from that in Dobbins' case. The tax upon income is not a tax upon the ofhce directly. Jt would seem to be c^nly carrying out the great principle of assessing taxes proportionally and eijually, according to the ability of the persons taxed. Its form is unobjectionable, pointed at no particular dass, whether olhce-holders or otherwise, but embracing, as proper sul)jects of taxation, all who place themselves under the protection of our Local Government, and participate in common with others ill the free enjoyment of our schools, our humane institutions, the priitection of our laws and the benefits resulting from their due lulunnistration, our public ways, and all those beneficent objects for which these taxes are assessed. We are not disposed to assume in ulvance that the Supreme Court of the United States will decide that a tax ' upon income' will be illegal, if assessed upon a resident ■t Massacliusetts, deriving his income from the compensation alluwed him for services as an ofticer of the United States." The court lield that the tax was properly demanded of the plain- titf. The judgment in this case seems to have been acquiesced in, as it does not appear to Iiave been carried fiu'ther. It seems to me tn he a decision (piite applicable to the case now under judgment. If the princiide or rather suggestion of impairing the efficiency of the officer, by reason of his pecuniary means being affected by sucli taxation, can be invoked to entitle the idaintiff to exemption, upon the like principle every employee of the Dominion Government "light to be exempt from any law which might bo passed compelling I'lymcnt of debts by the application or attachment of any moneys, the proceeds of an officer's income or emolument received by him. And it would be pushing the principle of implication to an unrea- 1 I A ,■' 1 '■ '■; ■ ' ' i I t llii ,Mt, i|i! I 1 ( I i i ^!| , i I 1 : ■ 1 • I ll tiiiiiii:^ 6C2 ONTARIO COURT OF APPEAL. 1877 sonable length to assume that the Dominion Government, wlitn , ^"^ fixing sahiries, etc., did so contemi)hiting such immunities fidin LePROHON a 7 , in III ('. taxation. If tlicy entertained such a view, we may aHsiiiuc that Ottawa *'^® Government would have so indicated by some legislative enact- ment. If the Dominion Parliament, under sub-s. 8, sec. Dl.hafl "' ' enacted that all the salaries and allowances of its officers slmulil be or nsoi i, J. exempt from Provincial or municipal taxation, I should have lia' difficulty in saying wliether such an Act would be constitutinnal. or not an encroachment upon the powers conferred on the Provincial Legislature. The Dominion Parliament has not so declared. As said by Cliivse, C. J., in Thomnonv. Fdcific li. W. Co. (1), when Congress lias nut interposed to protect and exempt their officers or employees, the taxation in question is not obnoxious to the principle contended fur by the plaintiff". The general rule in construing statutes is, that where a general power is conferred, any particular power is also conferred ; and so in the case of L' Union St. Jacques de Montreal v. BAisle \2\ the Privy Council observe that the scheme of enumeration in the B. N. A. Act was to mention various categories of general subjects which may be dealt with by legislation. " Such legislation," they said, p. 36, " is well expressed by Mr. Justice Caron wliun lio spcak« of . . faiUite, bankruptcy and insolvency, all which are well- known legal terms, expressing systems of legislation with which t subjects of this country, and probably oi most other civilized countries, are perfectly familiar. The words describe in tlicir known * legal sense provisions made by law for tlie administration of the estates of persons who may become bankrupt or insolvent, accinl ing to rules and definitions prescribed by law, including, of course. the conditions in which thpt law is to be brought into operation. the manner in which it is to be brought into operation, and tht effect of its operation." And so in like manner the terms " Municipal institutions in the Province " necessarily include the whole government of munici palities, and the subject of taxation upon ivll persons and property within the municipality. And, as an example of the wide interpre- tation put on the classes of subjects enumerated in sec. 02, I inav refer to Dow v. Black (3). It was there argued that the secoiil (1) 9 Wallace, 579, 591. (2) L. K. G P. C. M ; ante, i>. m. (3) L. R. 6 P. C. 272 ; ante, p. 95. ONTARIO COURT OF API'EAL. G03 Lepuohon V. City ok Ottawa. Q.B,,Ontari(i class, " direct taxation within the Province in order to the raising 1877 ,,f a revenue for Provincial purposes," only meant a revenue for ■'eiieral purposes, that is, taxation incident to the whole Province. But tiieir Lordships of the Privy Council saw no ground for giving S.I limited a construction to the class ; but they held that it enabled the Provincial Legislature, whenever it saw fit, to impose direct taxation for a local purpose upon a particular locality within the " """^"" ' ^ Province. I may also refer to section 129 of the B. N. A. Act, which declares that all the laws in force in the Province shall continue as if the union had not been made, subject to be repealed, abolished, or altered by the Parliament of Canada, or the Legislature of tlie Prov- ince, according to the authority of the Parliament or the Provincial Lei,'islature. Now, in Ontario the right to tax the personal estate and income nf officers of the Government, in common with all others, existed at the time of the passing of the B. N. A. Act. It is true that for some special reason the officers of the then Government residing at Ottawa were exempt — not, I take it, as a matter of right, but for some special reason at the time. In 18(19 the Ontario Assess- ment law was repealed, but virtually re-enacted, exempting the like officers of the Dominion Government, and by the 34 Vict. c. 28, O. , this exemption was repealed. Can it be said that the Ontario Legis- lature acted unconstitutionally in doing so ? I think not, and if the authority to assess officers of the Government existed at the time of and after Confederation, the Parliament of Canada, if the rijjht of so exempting its officers is within any of its powers, has not in any way repealed or abolished the right of the Province to do so. If the plaintiff is right in his contenti(jn, and the principle is pressed to its consequences, any officer or employee in the service of the Dominion, such as the customs, excise, the post-office depart- ment, in the public works and government railways, and various other officers, would be equally exempt. On the whole, I see no ground, either by implication or otherwise, for holding that this plaintitt" is exempt from the operation of our Assessment laws or the mode of assessing and arriving at the amount of his personal estate which he complains of. I cannot apply the reasoning upon which the American authorities are based, and say that this assessment is a tax on the operations of the Dominion (Jovernment, or, to use the words of the learned judge of the *i M 1 ; ;i^i; 1. 1; U! i i! 1H77 Lei'iiohon Cirv OK Ottawa. Q.B., Ontario, ^rorrison, J. G64 ONTARIO COURT OF APPEAL. f^. Supremo Court of the United States, on one of its instrumentalities in tlie sense used by them. I think the defendants are entitled to our judgment, and that tlie rule should be absolute to enter a verdict for them. Wilson, J. : — It is plain that the Assessment Act, 32 Vict. c. 3G, s. 0, 0, amended as it has been by 34 Vict. c. 28, s. 1, (). , does not exeniiit the income of officers of the Dominion residing in Ontario. Tlie ifeneral enactment of that statute is, that all land and personal property in the Province of Ontario shall bo liable to taxation, subject to certain exemptiijns : — And personal property is, by section 4, declared to include all goods, . . income, and all other i)roperty, except land and real estate, as defined by section 3. And by section 5 : Property includes both real and person;U pro- perty, as above defined. Some of the exemptions are those in the following sub-ss. of sec. 9 : — 11. The personal property and official income of the Governor- General of the Dominion of Canada, and the oflBcial income of the Lieutenant-Governor of the Province. 13. All pensions of 8200 a year and under, payable out of the public moneys of the Dominion of Canada, or of the Province. 14. The income of a farmer, derived from his farm, and the income of merchants, mechanics, or other persons, derived from capital liable to assessment : 33 Vict. c. 27, s. 2. 21. The annual income of any person, provided the same does not exceed $400. 22. The stipend or salary of any minister of religion, and the parsonage or dwelling-house occupied by him, with the lands thereto jittached. The repeal of the 25th sub-section, which in express terms applied to this case, is a very significant fact against the allowance of such an exemption. But it is said, if this claim cannot be sup23orted on the ground of an exemi)tion, tliat it is still maintainable, because it is an uncon- stitutional tax which the Local Legislature cannot impose. That, of course, can only arise under the Confederation Act. ONTARIO COURT OF APPEAL. fi(55 its instrumentalitios, real and pers.B., Ontario, Wilsou, J. \' H ;■ J-)k G6G . 1877 Lki'uohon V. City of Ottawa. Q.B., Ontario, Wilson, J, ONTARIO COURT OF APPEAL. would be or might be detrimental to the public interest if tliat re- muneration should be lessened by any municipal burden put u[i(iii him, taxing that income, inasmuch as the payment made to liim must be presumed to be necessary for the due performance of his duties and the maintenance of that proper social position and dignity recjuired of a public f)flicer. It is upon that ground, and for that cause partly, but not altn- gether, that the half-i)ay of an officer cannot be attached (jr assigiiLMl. Such allowance is partly in resjject of services thereafter to hu ron- dered ; but it is not a permanent grant — it is voluntary, and may be withrawn at any time : Flarty v. Odium (1). In Ex parte Hawker, Re Kcely (2), it was held the retiring pen sion of an officer could not be taken by the assignee in bankruptcy. In De)U V. Dent (3), it was held that the pension of a retired officer, received wholly in respect of past services, was liable to se- questration — but that half -pay could not be taken, as it was partly in respect of future services. The sequestration would relate only to pay actually due : Knight v. Bnlkeley (4). A superannuation allowance is not a debt which can be attached: Innes v. The Ead India Co. (5). It is clear that the assignment of a salary of a public otKcei would not be supported. The assignment of the whole of a pension for past services, or nf half-pay, or of an annuity granted by Parliament to maintain the dignity of a title — as in Davi^ v. Duke of Marlborough (6) — or of the pay of an officer, or the attaciing them for debt or taking them in insolvency, so far as it can bj done or cannot be done, are entirely different from this case, ^'uichis the claim to exemption for pay- ment of an ordinary municipal tax upon a salary or income, which every one else with a few exceptions is subjected to. The doctrine of public policy, which is treated of very freely in the different cases on the subject of pay and pensions before re- ferred to, and in the otliers which are therein cited, is in no way violated by a tax oi this kind. The plaintiff, as a public otticer, is not a person over whom the Dominion Legislature has exclusive jurisdiction, and it cannot be said that the imposition of the tax upon his income is an unwarranted interference with him by the municipality under the authority of the Local Legislature. (1) 3T. R. 681. (2) L. R. 7 Ch. 214. (3) L. R. 1 P. & D. 366. (4) 4 Jur. N. S. 527. (5) 17 C. B. 351. (6) 1 Swanston, 74. ;al. ONTARIO COURT OF APPEAL. f>n7 c interest if tliat re- lal burden i)Ut upon laynient made to liini le performance uf his r social position and partly, but nut altd- B attached or assigned. !S thereafter to be ren- 3 voluntary, and may I). held the retiring pen- .ssignee in bankruptcy. e pension of a rotired vices, was liable to se- taken, as it was partly ition would relate only which can be attached : iry of a public officer I for past services, or of ament to maintain the luiljowuyh (G)— or of the iebt or taking them in [)t be done, are entirely to exemption f^r pay- alary or income, wiiich ected to. •eated of very freely in and pensions before n- in cited, is in no way fl", as a public officer, is legislature has exclusivo le imposition of the tax ■erence with him by the cal Legislature. LEI'UOHOX V. City of Ottawa. Q.B.. Ontario. (4) 4 Jur. N. S. 527. (5) 17 C. B. 3.51. (6) 1 Swanston, 74. He might with more reason claim to be exempt from statute 1^77 hibour, or from the requirement to* remove snow, ice, etc., from the sidewalk opposite his house, because that might take him away from his public duty. He would, but for the special exemption granted to him and to many others by the jur^- law, be liable to serve as a juror. He has no privileges but such as are specially given to him. His ' ^"" ' ' office or duties give him none. He is subject to arrest like any tilher person. The case of McCnUoch v. The State of Maryland (1), determined that a bank established by the Nati\\i vpitation tax ptit upcu lilt of coiirso vodueiM jolicy is, that it may e public servico. difficulty we arc ciilkil !)/ Erie (.'ounf;/ (1) is II favour of till) liliiiii- .3 " all othces and pusts captain of a revumie it, and it was held that era execute their nttices I of reaping frci thence r may deserve, without except by the sovereign )ointment." verse case to the last, 3 taxed by the Xatioiwi \ie claim of the plaintitf. roe or reasoning of the hunty just nieutioniHl. ^d a certain jurisdictiiin Government. He was nothing but his orticial Government, wliilf a [ry other respect. And or p(jst, should not be that of every other citi- >fficers of the National Q. M., Ontarii), riiivernnient, or had l)een in any way rostrietivo or ox(!e]>tioiial, 1 1.^77 Cdiil'l under.stand tlie ol)jectiou that was made to it. I5ut wlien it , """ LKI'UOIION gubjei'ted iiini to tho liko and to no other or i^reater lial)ility than r. was iiiipo.sed on every citizen over wliniii, in common with liimsolf, onlw"! the State had jurisiliction, tlie conclusion that was come to seems ;,i me incoii8ei|Uential, and tlio Lfrounds of it very imaginary. The case of Mclclur v. Citij <>/ linstun (i) is very much oiiixised '*' tuthe one before referred to. But <,'rauting it full authority in cases under the liko circum- stances, it does not follow that it is entitled to prevail here. Tlio Local Legislature had at tlie time of confederation full power ■<\\'v suoli a tax, and that power is expressly granted to it, or iiitiitT lias been preserved to and reserved for it, under the head of '• Municipal institutions. " Tliat these sa'aries were at that time by a special clause of ex- eaiptiou not then taxed does not alter the case, because the puirer •verall such matters remained with, or was granted to, the Local Li';'islature and to these municipal bodies to deal with as theretofore, aii'ltiiat which had before been an exemption could not have been understood as intended always to be an exemption, or to l)e an irrevi (Cable declaration that such salaries never would be taxed. I cannot conceive that such a /(otnr to deal with exemptions as ivc [)lea.sed which unquestionably existed before, and at the time of iMiifodenvtion, and whicli has not been interfered with, directly or iinlirectly, by that Act, can now be questioned on the fanciful ground that the like tax put on the plaintiff's income or salary which is put iil«in all other incomes of jvery kind, but a few which have been txcupted, can be considered illegal and unconstitutional because it is an assumption of power, or because it is opjiosed to public policy, rthat its tendency is to diminish the plaintifi"s usefulness in the iiiblic service by reducing his salary below the amount which the UiUiinion Government has thought fit to estimate his services and ttstfulnesa at. That a grant or seizure of the salary for debt jli'iuld not be allowed, is comprehensible, but that an income tax should be illegal is not to me reasonable. These two matters are aitierent in their nature, conse({uence and purpose, and are not to be confounded by any generalities that a right to tax is a right to 'leitroy. The municipality was also dealing, as it has the right to ^ s with a matter affecting property and civil rights, for income is \: (2) 11 Wallace, 113. (1) 9 Metcalf, 73. 070 ONTARIO COURT OF AI'PKAL. 1877 oxprossly property hy tlio AHHussmont Act. Tliu iiuostion inmt , "'"' always ho, and only bo, in thore tho n /"Huk. But as I am desired to express an opinion, I shall endeavour to do w be- fore entering a verdict. This case is one of considerable difficulty ; the time and oppr- tunities T liavc had to investigate the subject have been wholly inadequate to that full consideration which it must ultimatily receive , ai.d I have made no attempt to reduce my views td writiii; I have endeavoured, however, to form an opinion upon the various points submitted to me by the learned counsel in the course of their able argument. The question which it seems convenient first to considei' i>. whether, upon the proper construction of the Assessment Acts : Ontario, the income of an oflicer of the House of Commons islinUe to taxation. On behalf of the plaintifl' in this case, who is an officer of the House of Commons, and whose salary is payable in the manner stated in the admissions, it was argued that iipoii tlif mm W^ ONTARIO CHJLHT OT AI'I'KAL. 071 the ccwe came in tk led me at the outset, tlm itely obtain an oxprcssi'ii the Dominion upon tin- opinion, thorefure, is ;i without any impropvitty. evdict pro forma. But as all endeavour to ilo so bo- true constniotion of the AHHOHsmcnt Acts, tlio LogiHliituro of On- 1877 tario, 8o far from impoHJng any charyo uiion tho income of gucli an "^^ itHciftl, liami)t. Witli this cnntontion I am ,•. n.it al)lo to ai^reu. It" o.,. a<.* ..f iwr.i: ,.,i,;,.i. „.,.. ;.. f........ ..f fi,„ Cuvok OlTAWA. liy tho Act of 18(i(5, wliich wivs in foruo at tlio time tlio B. N. A. Act wna passed and Confodoratiou establisliL'd, the salaries of ofUcials in the position of the plaintiflf were exempt ; '"' [^'"'"* iiml ill the Ontario statute of 18i>!), rchitin<{ to tho assessment of [ifiiperty, that oxomption was continued, tlie hvnguajjii) of tliu stiituto lieinj,' only varied from that of 1HI!(J so far as the changed circum- stances of our political condition rendurod necessary, liy the Act uf 180!) it was clear that these official salaries were not subject to taxation. Sub-section 25 of section !) expressly includes, among the exemptions from liability to taxation, thu annual official salaries nf the officers and servants of the House of Commons resident at the seat of government at Ottawa. The plaintiff is a servant of tho House of Commons, resident at tho seat of governinent at Ottawa, luJ therefore if that clause had continued in force he would liavo been exempt by the express enactment of the Legislature. But subsection 25 of section 9 of that Act was repealed by the xVct of 1871, and theref(jre, in tho existing statute law of the Province, there is no express exemption of tho salary of a person occupying the position of tho plaintiff. liut it was argued that an exemption was constructively contained ill sub-section 12 of the same section, which exempts any pension, salary, or gratuity or stipend derived from Her Majesty's Imperial Treasury or elsewhere out of this Province. The contention of the [ilaintitF was, that this was a salary derived out of this Prov- ina*. 1 do not think that exemption extends to the present case. The course of legislation seems to me to be (piite opposed to this construction being placed up(m sub-section 12. That sub-section is tu be found in the Acts of 18GG and 18(5!), and contains precisely the same words " or elsewhere out of this Province." Notwithstanding the use of these words, the Legislature, when it desired to manifest its intention of exempting such salaries, deemed it necessary to use express language. This appears enuivalent to a legislative declara- tion that the words in the 12th sub-section did not cover the case. If they did, the express exemption in the 25th sub-section was wholly unnecessary. It may be said that this was done for greater lirecaution. But, even if that explanation was otherwise satis- factory, what is to be said of the repeal of sub-se.ction 25 by the Act of 1871 ? It cannot admit of serious doubt, I think, that the MOHH, .). ll mm w^'^. 672 ONTARIO COURT OF APPEAL. 1s77 — /-^ Leprohon V. City of Ottawa. ^i. B., Ontarii ^ross. .f. intention of the Legislature in repealing the Act was to roinove these ofHcial salaries from the list of exemptions. On tlie wlmle 1 tliink that upon the con8tructi(m of the Ontario Assessment Acts the Legislature of Ontario have not exempted the incdiiies nf ofHcers of the House of Commons from liability to assessuiont. Tile grave question then arises, whether the Provincial Loi,'isla- ture had prnver to impose a tax upon the salaries of such otiioers. I need not say that I approach the solution of this question with very grave doubt and very great hesitation. It is a constitutinnal ([uestit)ii, involving delicate considerations and affecting very con- siderable interests. The beat conclusion which I have been able to form is, that upon the construction of the powers wliicli are vested in the Legislature of Ontario, the officers in the position of tlie plaintiff are not liable to be assessed upon their incomes. I louk first, as I am bound to look, at the language of the B. N. A. Act. Upon the terms of this statute the defendants relied for tiudin;,' the power to impose a tax upon these incomes. The 2nd, Stii, and 13th sub-sections of the 92nd section are the clauses upon which the defendants mainly rely. The object of the !)2nd section was, to define the matters with which the Provincial Legislature shoukl alone have the power to deal, and to describe the subjects which should be withdrawn from the legislative control f)f the Ddmiiiinn Parliament. The 2nd sub-section gives the Legislature of each Province power to legislate in relation to direct taxation in the Province, in order to the raising of a revenue for Provincial pur- poses. I am (if opinion that the assessment in question cannut be said to be a matter of direct taxation in order to the raising of a revenue for Provincial purposes. It is an assessment levied fur raising moneys for municipal purposes. Then the Legislature ut each Province has also power, by the 8th sub-section, to make laws relating exclusively to matters coming within the class "t municipal institutions in the Province. Now, no doubt, under this aub-section, it belongs to the Provincial Legislature to detenniiu' generally the mode of assessment for municipal purposes, and uii what property taxation should be levied. The power to authurizi; the mode of assessment and levy of taxes for municipal purposes. it may be conceded, is impliedly contained in the power to legislatf generally with respect to municipal institutions. But the extent and limits of this power are not expressly stated. It arises by im plication and necessary intendment, not by express enactment. I do not think that that section of itself contains any express authmity to levy such a tax as that in question. The 13tli sub-sectiuii, "R '• ?! 1 ONTARIO COURT OF APP!:. G73 e Act was to remove ons. On the whole, 1 ario Assessment Acts iptod the incDuies of lity to asaessiiient. he Provincial Lcgisla- hvries of such officevs. , of this question with It is a constitutional and att'ecting very con- liich I have been able to powers which- are vested 3 in the position of the their incomes. Honk [ae of the 13. N. A. Act. Iita relied for tindin:^ the lea. The 2nd, 8th, and the clauses upon which of the 0-ind section was, incial Legislature should cribo the subjects which control of the Doniiuiun the Legislature of each to direct taxation in the enue for Provincial pur- lit in question cannot he order to the raising '>U an assessment levied fnr Then the Legislature ot Isth sub-section, to make aning within the class ot ow, no doubt, imder tins Legislature to determhie aunicipal purposes, and .m The power to authorize for municipal purposes. ,d in the power to Mate .titutions. Bitttho extent ^y stated, it arises by m^ by express enactment, itains any express authoruy The 13th sub-sectu.ii, 1877 Lki'kohon ('. City ok Ott.vwa. ivhich gives the exclusive legislative jurisdiction over property and civil rights, does not appear to me to be applicable. On the whole, I do viot find in the B. N. A. Act that there is an express provision either authorizing or prohibiting any tax on such incomes. TJi.tt being the case, there being no express provision, and the instrument which forms the great charter of our Constitution ^" " ' |1 '^""' being silert on the subject, it appears to me that the Court will Moss^J. have to consider the question in relation to the Federal character iif the Dominion. The (juestion has been frequently considered in that aspect in the United States. Numerous decisions of the Supreme Court and of the State Courts were referred to by the learned counsel during the argument. Now, it is quite true, as suggested in the argument, that these decisions are not binding upon the humblest judge of this Province, but they are the opinions of eminent jurists, distin- guished for learning, and deeply versed in the solution of questions if constitutional law. I think, therefore, that their rei)us opinion of the Court in that case. After puimin,' out the inanimate objects, the use of which the Constitiitiin contemplated, and the management of which had been en- trusted to tile central authority, such as ships of war, wliieh wiTi- j the means of carrying (jut the object of the Central Goveinmoni and could not be taxed by the State, he proceeded, at imi.'e44S: " Is not the officer more so who gives use and etficacy tu thoj wIkjIc ? Is not comiiensation the means by which his services are! procured and retained ! It is true it becomes his wliou he liasj earned it. If it can be taxed by a Sta..e as compensation, will i\vl\ Congress have to graduate its amount with reference to its ieJiic-| tion by the tax ? Could Coiigress use an uncontrolled discretii iiij in fixing the amount nf compensation, as it would do witlidiit tliej interference of such a tax i The execution of a national puwer! way of compensation to officers can in no way bo subordinate tnth action of the State Legislatures ujion the same subject. It HnuM'i stroy also all unif speak, overruliiy tlij case, 1 could not come to any other conclusion. Our circuuHtmciij (1) 16 Peters, 435. A.L. meiits, aiul hold that iilenil Uui'iu tn \m- impiiir in ivny \v;iy which hiul heeu yii- it was unnecessary tn )f the United StiUts ,'11 were iiuite enough, 8ub3C(iuent cases tlay Ifis V. (.'omrn'mmnaa >•} by Mr. Cock\)uvn, the ipreme Court nf IVnn- y which the State hiiJ States. Tlie (lUostiMii, ly before the Supi'enu' ming of the case in 4 I of its princii'lfb, sucli etter than refer to the judge who priniounce.l ,t else. After puimiiv^ which the Coustitutiui' which had V)een en- liips of war, which were le Central Govevumem | Iproceeded, at page -148 ; use and efficacy to the] ^ which his services are I icomca his when he hiJ |i3 conipensatiou, will 1^1 .th reference to its redid uncontrolled discretion, lit would do withutit tli^ juof a national power 1 Way bo subordinate t-.tim [une subject. U would u* tor the same service, .»^ Le is precisely m'H Ion Without exvres.ni ftto speak, overruliwthl asion. Ourcircumstancej OiNTAUIO COURT OF APPEAL. 676 i I' It appears to nio, sufHciently resemble the circumstances that existed in these cases to render the principles entirely applicable. Tliere is but one other case to which I shall refer, The Colkdor V. Day (1). In that case Mr. Justice Nelson said: "It is conceded in the case of MrCullDcli v. Mamjland, that the power iif taxation by the States was not abridged by the grant of a similar "' "'_ ' 1877 Lkpuohon City ok Ottawa. power to the Government of the Union; that it was retained by the States, and that the power is to be concurrently exercised by the two Governments ; and al3(j that there is no express ccjnstitu- tional prohibition upon the otates against taxing the means or in- strumentalities of tlie General Government. But it was held, and we agree properly held, to be prohibited by necessary imidica- tion ; otherwise the States might impose taxation to an extent that would impair, if not wholly defeat, the operations of the Federal luithorities when acting in their appropriate sphere. "These views, we think, abundantly establish the soundness (jf the decision of the case of Dubbins v. Commissioners of Erie, which determined that the States were prohibited, up next thereinafter enumerated, and amongst other tbintrs. No. 9, " Shop, saloon, tavern, auctioneer, and otber li- censes, in order to the raising of a revenue for Provincial. local, or municipal purpo.ses." And, No. 15, "The impo- sition of punishment by fine, penalty, or imprisonmont. for enforcing any law of the Province made in relation to any matter coming within any of the classes of sub- jects enumerated in this section." And, 16, "Generally (1) 29 U. C. % B, 81. (2) 1 B. & B. 574-5. (3) 17 U. C. C. P. 534. (4) 23 U. C. Q. B. Oil. ONTAIUO COURT OF QUEENS HENCH. 070 amongst other thin" 1871 liEOINA r. all matters of a merely local or private nature in the Province." There seems no reasonable tloubt that inider sec. 92 boakdman. and Nos. 9 and IG, the Local Legislature not only had RicUaToa^cj. power, but the exclusive right to legislate in relation to shop, tavern, auctioneer, and other licenses, in order to raise a revenue. It seems equally clear that they had the right to im- pose punishment by fine, penalty, or imprisonment for diforcing any law properly passed by them on matters within their exclusive jurisdiction. Mr. Harrison in his argument referred to Lucas v. ilcGhishan, decided in this Court, and the authorities there cited and referred to, to shew that when a penalty is imposed on a defendant as a punishment for the viola- tion of an Act of Parliament, not imposed for private purposes, but for public objects, and when such penalty i< recoverable in a summary way before a Justice of the Peace, who may commit the offender to the common gaol until the penalty is paid, that the offence which may be pimished in such a manner is a crime, and if so, a fortiori it is a crime when the puni.shment is imprisonment in the common gaol, and not a fine at all. And the argument was then pu.shed to the full extent, that the decided cases ihewinsj that an offence so created is a crime, the law creating it must be a criminal law, and under the Do- minion Act the power to pass criminal laws is exclusively in the Dominion Pcrliament. But there can be no doubt that it was intended that the Local Parliament should not only have power, but the exclusive right to legislate on some subjects, and to impose punishment by way of fine and imprisonment for mt'orcing the laws they may make in relation to those sub- jects. We think we must therefore come to the con- clusion that when the Imperial Parliament u.sed the (' r :■ ij fill M ■ ! '1! ' • ' 11' (580 ONTARIO COURT OF QUEEN S RKNCH. 1 ';'l!lin' I I . ! ! " ' 1871 words, "The Criminal Law" and "including the prow Rk(;[na "^iiii'tJ in criminal matters" in the B. N. A. Act, thoy di iJitAKD.MAs. ^^^ mean that the Local Legislature had not the powt KichaTd^c. r. to legislate so as to punish by fine or imprisonment, wit the view of enforcing the laws, when such power i expressly given by that Act. The conclusion which we may properly arrive at ii that they shall have the exclusive power to legislate i this way in those matters in which power is not given t the Local Legislature to legislate. In The Attorney-General v. Radlof (1), Baron Marti says : " There are many crimes, properly so called, wliic are liable to be punished on summary conviction. Bu there are a vast number of acts which in no sense ar crimes, which are also so punishable ; such, for instance as keeping open public-houses after certain hours, and i variety of 'reaches of police regulations, which wil readily occur to the mind of any one. The bringing to bacco into this kingdom is of itself a perfectly innocen act ; but the requirements of the public revenue, whic induce the Legislature to impose a very high duty upo the article, probably render it matter of necessity tlia the bringing it into the kingdom without payment of tli duty should be subjected to a penalty. But this canno affect or alter the intrinsic and essential nature of th act itself, and it seems to me that it cannot be denoni nated a "' crime ' according to the ordinary and comnio usage of language, and the understanding of mankind." I refer to this language, not as shewing that the ca> in our own Court and those there cited were not properl decided, but as indicating the poi)ular idea of crimini law, in which view it may have been used in the statut The cases referred to by my brother Wilson, in Liiain (1) 10 Ex. p. 9G. ;n's bench. ONTARIO COURT (W QUEEN S BENCH. CSl "includinji; the procf- B. N. A. Act, thoy did re had not the power or imprisonmont.witli when such power i^ properly arrive at is power to legislate in 1 power is not given to ilof (1), Baron ^lartii: [•operly so called, wliieli imary conviction. But which in no sense an ible ; such, for instance, ber certain hours, and ii ■egulations, which will one. The bringing to- ilf a perfectly innocent public revenue, which a very high duty upon latter of necessity tlwt without payment of the snalty. But this cannot essential nature of the \at it cannot be denouii- e ordinary and common ■standing of mankind, shewing that the Cftse cited were not properly ipular idea of criminal been used in the statute ,her Wilson, in Lucan v, McGlaslum, .shew the extreme length to whicli the dcH- i^'i nition of crimes and criminal law and civil proceeding juswna may be carried, such as parties being indictetl for non- BoaiuVman. payment of assessments which the statute makes it uicuards, c. .r. olili^atory on them to pay : Rec/lna v. Satcliff'e (1). An innkeeper may be indicted for not receiving a guest at his inn, he having no lawful excuse for his refusal : Rex v. Jrens (2). And it is .said [not] to be the test of an act bein'^a crime whether an indictment will lie for it : Ban- croft V. Mitchell (3) ; Megina v. Master (4), per Mellor, J. The old appeal of murder was a civil proceeding, though the defendant was hanged if the verdict was found against him : Ashford v. Thornton (5). The.se cases .shew the difficulty of construing the B. N. A. Act in the rigidly technical manner that we were pressed to do on argument. The Local Legislature then having the exclusive right to legislate in relation to shop and tavern licenses, etc., and having power to impose puni-shment by fine or im- prisonment for enforcing that law, to encourage prosecu- tions for breaches of the law, and as a means of enforcing it, gives the informers or prosecutors a share of the pe- cuniary penalties that may be recovered for such breaches of the law, and with a like object, to secure the enforce- ment of the law. By the 32nd section they provide for the imprisonment, at hard labour, in the common gaol, of any person who had violated the statute, who should compound or settle the offence with any person with a view of stoppiag the prosecution or getting rid of the complaint. And by the 33rd section they provide a punishment for every person who shall be concerned in or be a party to such compromise or settlement. n v^ 9G. (1) 13 Q. B. 833, (2) 7 0. & P. 213. (3) L. R. 2 Q. B. r)49. (4) L. R. 4 Q. B. p. 289. (5) 1 B. & Al. 405. l{^ f 1 M 1 'i! I j ' • f ; ■ ■ I ! 'I ,i'l, I , I iiii ■ fi 682 1H71 Hkoina r. BOAIIDMAN. Richards, C. J. ONTARIO COURT OF QUEEN S llENCH. This all seems to us to be within the reasonabU' scopo of the powers conferred on the Local Lej^islatuif What has been done by this section was done with a viow of effectually enforcing the law which they had the powei' to make, and which seems to be a matter of a nicrelv local character. If the Local Legislature were to pass a geneva! law forbidding the compounding or settling of the otfence liy any person who had been guilty of a violation of local statutes, and declaring the same to be a misdemeanor t'oi which the party could be indicted and punished by tini' and imprisonment, that might with more propriety lie considered as passing a criminal law and regulating thr procedure in it. But in this case it seems not an uniua- sonable mode of ensuring the proper enforcement of the primary ol>ject of the law, the preventing of ])artics from exercising the calling of shop, saloon, or tavernkee)tor, without obtaining and paying for the proper licx'nse for that purpose. The object of giving half the penalty to the informer was clearly with a view of enforcing the law by the con- viction and punishment of those who violated it, and tlie punishment of those who prevented the enforcement of the law by compromising the jiroceedings taken, or which might be taken, to enforce it, is for the saino object, and seems not unreasonable to secure obedience to the law which they had the power to make. We think the prisoner should be remanded for tin remainder of his term of imprisonment. ni;N(ii. ONTAKIO COURT OF QUKEN S UKNCH, f).S3 e reasonable scopo je^'islatui-f Wlmt one with a viow of hey had the powur latter of a nicivly ")a.ss a general law itr of thii otlence hv I violation of local I a misdeuieauor for id punished by tini' more propriety Iv and regulating tln' eems not an unrea- enforeement of tlie iting of parties from )n, or tavernkeepcr, le proper license for ty to the informer he law by the con- violated it, and tlic the enforcement of )eeedings taken, or is for the same secure obedience to make, remanded for the at. ONTARIO COURT OF QUEEN'S BENCH. Beard v. Step:le. [ReiHjrted 34 U. C. Q. B. 4.3.] Bill vf LihUiuj—33 Vict. c. I'J, O.—B. N. A. Act, s. 91, mih-a. S. A Provincial Act to the effect that all rights of suit should pass to the consignee of goods named in any Hill of Lading or to the endorsee thereof, to whom tlie property in the goods should be transferred by such consignment or endorsement, and that every such instrument representing goods to have been shipped should, in the hands of a consignee or endorsee for value, be conclusive evidence of shiitment as against the person signing the instru- ment, was held not to be beyond the powers of the Provincial Lejj'islature as being an interference with trade and commerce. This was an action by the consignees for non-delivery of goods in accordance with the provisions of a Bill of Lading. At the trial, among other objections rai.sed on lielialf of the defendant, it was contended that the plain- tiffs could not recover, as the agreement (if any) was made with other parties than the plaintiffs. The case was tried by Gait, J., without a jury, and the plaintiffs were non-suited, leave being reserved to them Ui move to have a verdict entered in their favour. Mr. Lash obtained a rule nisi to set aside the non-suit and for a new trial. Mr. Harrison, Q.C., .shewed cause, urging amongst other arguments (p. 49), that the Act 33 Vict. c. 19, O. (which corresponds with Imp. Act, 1(S and 19 Vict. c. Ill), was vltra vires. 1873 Mr. Lask supported the rule. U.S4 ON'TAHKl COITUT Ol" (^I'KKN S ItKNCII. ; ( si I;: I' 'I II ji m f'H; (;}M !'•; 1, I i 1K7H r, Stkklk. Wilson, .1. The judgiiicnt of tljo Court (Ilithards, CI., ainl M,,,. risoii and Wilson, J J.,) was delivered l»y 'i^"^- Wilson, J. :- (P. 54) So far we have considered the case without reference to the Ontario Act .S.S Vict. c. '^), enaetinjjtlic Imperial statute with respect to Bills ^adin^, lucausc it was said the Act of our Legislature was unconstitu- tional, as being an invasion of the jurisdiction of tlie Do- minion Parliament, which alone has the power to re;;u- late trade and commerce. We think we may satVlv ac- cept this statute as passed with due authority, declaiin;: the rights and liabilities of parties under these ordinary instruments of traffic, without infringing on the ] lowers and authority of the Dominion Parliament, and the plain- tiff's rights under that statute are admittedly free from all doubt and question. [The remainder of the judgment is omitte' reference to the present (luestion.] same not liaviiii! (1) By 33 Vict. c. 19, a. 1 : "Every consignee of goods named in a Bill of Lading, and every endorsee of a Bill of Lading to whom the property in the goods therein mentioned shall pass upon or by re.ason of such con- signment or endorsement, shall have transferred to, and vested in him all rights of suit, and be subject to the same liabilities in respect of such poods, as if the contract contained in the Bill of Lading liad been made to himself." Sec. 2. " Nothing herein contained shall prejudice or affect any right of stoppage in transitu, or any right to claim freight against the original shipper or owner, or any liability of the consignee or endor.see, l)y reason or in consequence of his being such consignee or endorsee, or of his re- ceipt of the goods by reason or in consequence of such consignment fir endorsement." Sec. 'A. "Every Bill of Ladiiij; in the hands of a consignee or endorsee for valuable consideration, rejiresent- ing goods to have been shipped on board a vessel or train, shall be cdh- elusive evidence of such shiiinientas against the master or other liersw, signing the same, notwithstandin; that such goods, or some part thereof, may not have been so shipped, unless such holder of the IMl! of Lading shall have had actual notice, at tlie time of receiving the same, that tiw goods had not in fact been laden on board, or unless such Bill of liadiuL' has a .stipulation to the contrary ; provided " that the person signing; maj' exonerate himself in respect to such misrepresentation on certain grounds specified. IIKNCII. ONTAllIO ((([JUT OK (^CKKN S IIKNCH. OSo 1 Is, C. .1., iiinl Mur- the case witlimit "'■'), enai-tinrj till' xjadinjij;, Itocausf (' was unconstitu- sdictiou of the Do- he power t(j ve;,'\i- we may satVly ae- luthority, fleclarin.' tier these ov(Unary icfine: on the ituWL'rs nent, and the plaiii- dmittedly free from same not having •e of such consignment or int." I' ' Kvery Bill of Laclinj; in lof a consifiiiee or endorsee le consideration, represent- to have been shippeil '^n Issel or train, shall lie cmi- Idence of such shipment as master or other jiersou |e same, notwitlistanilin.' toods, or some part thereof, kve been so shipped, unless ir of the Bill <>i Ladini: had actual notice, at the leiving the same, that the not in fact been laden on inless such Bill of badim: lidation to the contrary: that the person sitiniii:! irate himself in respect (representation on certain lecified. ONTARIO COURT OF QUEEN'S BENCH. Cromhik r. .Iackson. [lieporti'it -I't if. V. l, Kuh-H. 21 — [iiitoli't'nrit — I'toixtitj ii nil ciinl riijhf.f— S2-i^J Vid. c. 10, a. 5i), />. Section ."iO of tho Insolvent Act of 180!), whicli proviilecl that claims by and against assiynoos in insolvency niiylit be disposed (if by the Judge of the County Court or by the County Court on petition, and not by any suit, attachment, opposition, seizure or other proceeding whatever, was held not to bo beyond the power of the Dominion Parliament, because the right to legislate on the subject of bankruptcy and insolvency belongs exclusively to that Parliament, and because, at the passing of the B. N. A. Act there was a system of proceeding in insolvency in force in the former Provinces of Upper and Lower Canada very similar to the one established by the Act of 180U. Denuirrcr, Declaration for entering a mill and taking and converting })haintifr,s goods. Plea, in sul)stance, that the plaintitf's claim to the goods and mill is under a mort- irage made by one W., who, before the grievances com- plained of, made an assignment under the Insolvent Act of 1869, to defendant of all his estate and eti'ects, includ- ing this mill and goods, subject to plaintiff's mortgage; that W. was then in possession of the premises, and such possession was transferred to defendant, who took pos- session as such assignee ; and except as assignee, defen- laiit has in no way interfered with the mill or goods : that the plaintiff's alleged right of property can be determined by the County Ju(^-c , and that this Court has no jurisdiction to try the .same. Mr. Harrison, Q.C., for the demurrer. Mr. M. C. Cameron, Q.C, contra. 1874 ^1 08G ONTARIO COURT OF QUEENS BENCH. 1874 CnOMBIE Jackson. Wilson, J. Wii.soN, J. * : — A,s,suiniiig the plea to be sufficient in suljstancc, as shewing a good defence if the law be as it is contended it is by the defendant, I think there is no constitutional difficult}' presented here. The exclusive legislative authority respectin '/ict. c. d.!, 0. Under the exclusive legislative authority given to it witli ruganl ti " Municipal Institutions," and to " matters of a merely loc;il or private nature in the Province," a Provincial Legislature can confer on municipal corporations power to pass b} laws whcjlly prohibiting the sale of spirituous licjuors in shops ami pl.aces other tlian houses of public entertainment, and limitin.' the number of tavern licenses ; and the conferring such powci' is not an interference with " the regulation of Trade audCuiii- merce," assigned exclusively to the Dominion Parliament. In Trinity Term, August 28th, 1874, Mr. i)/. G. Canvro,. Q.C., obtained a rule 7iisi to quash certain by-laws ut'tln' village of Orillia. As to No. 54, passed 20th March, 1874, for prohibitin: the sale of liquors in .shops and places other than hoiisi'> of pul)lie entertainment, at the village of Orillia, on thi ground : That the Legislature of Ontario has no power to au- thorize a municipal corporation to limit the number u! shop licenses, but only to authorize the iiupositiuu nf licenses for the purposes of revenue. As to No. 53, pa.ssed 17th February, 1874, for limith'. the number of tavern licenses to be issued within tli' limits (jf the said village, etc., on the ground : That the corporation had no authority to limit tli' Tiumber of tavern licenses ; that the Legislature of ONTARIO COURT OF QUEEN S BENCH. 080 iLN'S BENCH. N OF THE Village Statement. Ontario has only power to deal with licenses for tho pur- 1874-.5 poses of Provincial, or local, or municipal revenue, and Slavin cannot authorize a municipal corporation to limit the villacik of number of licenses to be issued, and the said by-law is *^""'^''^' heyond the jurisdiction and power of the corporation to pass. Of No. o4, the enacting part was as follows : " That from and after the passing of this by-law, no shop license shall be granted within .the village of Orillia, and that the sale of fermented, vinous, or rpiri- tuous liquors in shops and places other than houses of public entertainment, shall be wholly prohibited. "That the votes of the electors shall be taken on the >aid proposed by-law at the following places, that is to say; at Temperance Hall, in the village of Orillia, on Friday, the twenty-seventh day of February, A.D. 1874, commencing at the hour of nine o'clock a.m., and closing at five p.m. of the same day, and that Frederick John Robert Grant, Clerk of the said municipality, shall be Returning Officer for taking the said votes. Of No. 53, the enacting part was as follows : "That no more than nine tavern licenses shall be issued within the limits of this corporation ; that no person convicted during the year last past of a violation of the license law shall be allowed to hold a tavern license during the current year. That in lieu of the sum fixed by by-laws forty-four and forty-six of this municipality, the sum to be paid for ach tavern license shall be one hundred dollars over and above the Government duty, and a foe of one dollar •) the Clerk of the municipality for issuing the necessary f'ertificate for obtaining the same." « r Mr. Kenneth Mackenzie, Q.C., for the Government of Ontario, as to the power of the Local Government to 44 090 ONTARIO COURT OF QUEEN's BENCH. 1874-5 Slavin v. Village of OUILLIA. AU«UMKNT. authorize the municipality to pass by-laws Nos. 53 and o4, referred to the argument in the case of Reaina v Taylor, which was argued on the same day (1). If tlie Local Government do not wish a revenue from shop dr tavern licenses, they may forbid their issue altocfether : Sec. 02 of B. N. A. Act, sub-sec. 9. Mr. F. Osier, for defendants shewed cause. Mr. M G. Cameron, Q.C., contra. The limiting the numbfc jt shop licenses is a restraint of trade, which is a matter solely under the control of the Dominion Parlia- ment. The B. N. A. Act does not give the Local Legislature the power to delegate to municipal councils the right of deciding as to the number of licenses, or to refuse grantin ' licenses. The prohibiting the sale of intoxicating liquoi> in stores is as bad as prohibiting it entirely, liegina Wood (2) shews that the right of the Legislature t) confer this power to pass the by-law ought to be con- sidered, and when power is given to a subordinate body it will not be extended by construction. The power conferred on the Local Legislature was solely for tlie purpose of revenue. Ehvood v. Bidloek (3) shews that municipalities cannot pass by-laws nominally for pur- poses of police, but really in restraint of trade ; and that these by-laws for either purpose must be reasonable. The judgment of the Court (Richards, C. J., and Mu rison and Wilson, JJ.,) was delivered by Richards, C. J.: — At the time of the passing of the B. N. A. Act, l^'i the Municipal Institutions Act of Upper Canada tiitaj in force was 29-30 Vict. c. ol, passed in August, LH(J(l, (1) 3G U. 0. Q. B. 183. (2) 5 E. & B. 49, 54. (3) 6 Q. B. 383. S BENCH. ONTARIO COURT OF QUEENS BENCH. 691 )y-laws Nos. .53 and case of Regina v. me day (1). H tl\'; (venue from shop or sir issue altogether; ed cause. I. The limiting tin: it of trade, which i> ,\ the Dominion Pailia- ! the Local Legislatuir I councils the right ot 3, or to refuse grantiii;^ oi intoxicating liquoi- t entirely. Regina v. of the Legislature t) r-law ought to be con- to a subordinate body itruction. The power Lve was solely for tlie idloch (3) she\vstliat| s nominally for pui- jnt of trade ; and that I tust be reasonable. Ichards, C. J., and Mov- 3red by ItheB. N. A. Act,lh%l If Upper Canada tkal |sed in August, 1H0«. (2) 5 E. & B. 49, 54. By the 24th section of that Act, " the Council of every 1874-5 township, town, and incorporated village, and the Corn- si.avin raissioners of Police in cities," might respectively pass vn.LAdK ov by-laws, amongst other things : Oiulua. 4. "For limiting the number of tavern and shop li- ^"•-"'^^c.J. censes respectively ; but in no municipality shall tavern license certificates be granted in a proportion greater than one for every two hundred and fifty souls resident therein," and 9. " For prohibiting the sale by retail of spirituous, fermented, or other manufactured liquors, in any inn or other house of public entertainment ; and for prohibitii)g totally the sale thereof in shops and places other than houses of public entertainment ; provided the by-law, before the final passing thereof, has been duly approved by the electors of the municipality in the manner pro- vided by this Act." At the same time there was a statute, 27-28 Vict. c. 3, in force, compelling brewers and distillers to take out licenses to manufacture spirits and beer, and imposing a duty of excise on the articles manufactured by them ; and these articles were also subject to a duty on being imported into Canada, by 29-30 Vict., c. 6, on spirits and strong waters to the extent of 70 cents a gallon for proof. The manner in which the revenue for the sale of ardent spirits by retail and in taverns was raised, was by enacting that any person who should sell ardent spirits without a license should suffer a penalty ; then the mode of obtaining the license was defined, and the amount payable therefor was to be fixed, as far as the munici- pality was concerned, by the municipal authority. At the time of the passing of the B. N. A. Act, there prevailed in this country a well-established mode of licensing shops and taverns. fci ;t i] '■* '1 f ?mT » •ill iiii V'l ii,: ' i M MM r I I [f : ' i l'6 i!4.'l •:'■ ft! -. . . ,■ ! i hi!- ^1 i :: i; 1874-5 Slavin V. Villa(;e ok OlUI,MA. Richards, C. J. ; OXTAUKJ COURT OF (^UEEX'S HEXCH. Shop licenses were declared in the Municipal Act of 180G, 29-30 Vict. c. 51, s. 249, sub-s. 1, to be "licenses for the retail of such liquors in quantities not less than one quart, in shops, stores, or places other than inns or places of public entertainment. " And under section 252 of the same Municipal Act it was provided that " No tavern or shop license shall bt; necessary for selling any liquors in the original packages in which the same have been received from the importer or manufacturer ; provided such packages contain resi)ee- tively not less than five gallons, or one dozen bottles.' The statute under which the two by-laws, Nos. 53 and 54, were passed, was 32 Vict. c. 32, 0. Sec. 40 of thai Act repealed the sections from sec. 249 to 263 inclusive, of the Municipal Act of Upper Canada, 29-30 V^ict. c. ol, in relation to the granting of licenses, and introduced similar provisions into the statute which was then passed, Sec. G of 32 Vict. c. 32, enacted that " The Council of every township, town, and incorporated village, and the Commissioners of Police in cities, may respectively pa>.s by-laws : " . . Sub-sec. 4. " For limiting the number of tavern and shop licenses respectively." . . Sub-sec. 7. " For prohibiting the sale by retail of spirituous, fermented, or other manufactured liquors in any tavern, inn, or other house or place of public enter- tainment ; and for prohibiting altogether the sale thereof in shops and places other than houses of public enter- tainment ; provided that the by-law before the tinal passing thereof has been duly approved of by the elector^ j of the municipality in the manner provided by the Acts 29-30 Vict. c. 51." Sub-sec. 8. " For appointing annually one or more tit j and proper persons . . to be inspector or inspectors ot | licenses." S HENCH. ONTARIO COURT OF C^UKEN S RKNCH. (Jl>8 le Municipal Act of s. 1, to bo "licenses itities not less than ther than inns , , me Municipal Act it ^hop license shall bi; ihe original packaj^'e^ id from the importer cages contain respec- 3ne dozen bottles.' by-laws, Nos. 53 and O. Sec. 40 of thai 249 to 263 inclusive, ada, 29-30 Vict, col, snses, and introduced rhich was then i)as.sed. that " The Council of rated village, and the ,ay respectively pass lumber of tavern and the sale by retail of Inufactured liquors in jlace of public enter- rether the sale thereof )uses of public enter- [law before the final [oved of by the elector. provided by the Acts mually one or more & i spector or inspectors of Sl.win r. II.I.AliK Ob' Orim.ia. Sub-sec. 9. " For fixing and detining the duties, i«74-5 iiowers, and privileges of the inspector or in.specturs so appointed ; the remuneration he or they .shall receive ; ^ and the .security to be given for the efficient discharge of the duties of the office of inspector." "^ KichardB, c. j It is said that the Local Legislature of the Province of Ontario had no authority to pass the last statute of 32 Vict. c. 32, or at all events the portions of the statute which authorized the municipality to pass by-laws to limit the number of tavern licenses to be granted, and to , prohibit the granting of shop licenses. If the Legislature of Ontario had no power to make these provisions in their statute, had they power to repeal those provisions in the Act of the Parliament of Canada ? And if they had no power to repeal these sections they must now be in force, the 129th section of the B. N. A. Act directing that " all laws in force in Canada . . at the union . . shall continue . . as if the union had not been made ; subject . . to be repealed, abolished, or altered by the Parliament of Canada, or by the Legislature of the respective Province, according to the authority of the Parliament or of that Legislature under this Act." Under the head of "Distribution of Legislative Powers," Powers of the Parliament," by section 91 of the B. N. A. Act it is provided that " It shall be lawful for the Queen, by and with the advice and consent of the Senate and House of Commons, to make laws for the peace, order and good government of Canada, in relatioio to all imttcrs not coming witnin the classes of subjects by this M assigned exclusively to the Legislatures of the Prov- inces; and for greater certainty, but not so as to restrict the generality of the foregoing terms of this section, it is hereby declared that (notwithstanding an3'thing in this Act) the exclusive legislative authority of the Parlia- ^^'A: ! '!i!: .1^ I 694 ONTARIO COURT OF QUKEN S BENCH. 1874-5 Slavin V, VlI-LAOK OK OUILI.IA. KioliardB, C. J mont of Canada extends to all matters coming within the classes of subjects next hereafter enumerated ; that is tu say " (amongst other things) : " 2. The regulation of trade and commerce." " 3. The raising of money by any mode or system of taxation." And under the head " Exclusive Powers of Provincial Legislatures : " Section 92. " In each Province the Legislatuie niav exclusively make laws in relation to matters coniinif within the classes of subjects next hereafter enumerated, that is to say " (amongst other.s) : " 8. Municipal institutions in the Province." " 9. Shop, saloon, tavern, auctioneer, and other licenses in order to the raising of a revenue for Provincial, local. or municipal purposes." " 13. Property and civil rights in the Province." " 15. The imposition of punishment by fine, penalty, or imprisonment for enforcing any law of the Province niaJe in relation to any matter coming within any of the classes of subjects enumerated in this section." " 10. Generally all matters of a merely local or private nature in the Province." It is contended that the limiting the number of licenses to be granted to taverns in a municij>ality, or preventing the issue of shop licenses, is interfering with the exclu- sive right of the Legislature to pass laws for the regula- tion of commerce, and that the statute of the Ontario Legislature authorizing this to be done is ultra vires. On the other hand, it is urged that the regulating of taverns, the limiting the number of licenses, ami the dealing with the subject of the keeping and retailing of certain classes of articles must be in the nature of police matters, properly pertaining to the powers of niunicipali- S BENCH. ONTARIO COURT OF QUEKX S BENCH. 695 •s coming within the imerated ; tluat is to immerce." mode or system of ^wers of Provincial he Legislature may to matters cominii- ereafter enumerated, Province." er, and other licon«;es for Provincial, local, the Province." it by fine, penalty, or of the Province mailu within any of the s section." erely local or private \e number of licenses pality, or preventing ring with the exclu- aws for the regiila- tute of the Ontario )ne is ultra vires. it the regulating of of licenses, and the ■pmcr and retailing of the nature of police Dowers of municipali- ties, and must be " matters of a merely local and private 1874-5 nature in the Province." , slavis In January term, 1847, in the Supreme Court of the villauk ok United States, judgments were pronounced in what are ^^""''•'•^' there styled the License Cases (1). The cases were ar- ^^^''^^l^^'-^- ijaed by some of the most distinguished lawyers in the United States, including the late Daniel Webster. The doctrine contended for by the parties who opp0h.ed the laws was, that though they authorized the commerce ill wines and spirits in quantities not less than 2(S gal- lons, they were repugnant to the constitution and laws of the United States : 1st. In the power to regulate foreign commerce. 2nd. In the power to collect revenue on imports into the several States. 8rd. In the equal apportionment of taxes and duties in all the States. Ith. In the power to make treaties. The general course of the argument was, that no State had the right to prohibit the sale of merchandise by wholesale or retail, authorized by a valid law of Con- gress, or by treaties, to be imported into its markets, the retail sale being as indispensable to the object of impor- tation — viz., use and consumption — as the wholesale. If a State can control, to the extent of prohibition, commerce in imported merchandise up to her boundaries or the in- stant it shall pass in bulk from the hands of the impor- ter, she can thereby exclude foreign commerce, and deny her markets to foreign nations. The laws of Congress make no distinction between commerce in imported wines and spirits and other foreign merchandise. The recognition of the power of a State to exclude the first from its market whenever public sentiment requires it, must embrace the like power in respect to all other de- scriptions of imports whenever the |)ublic sentiment of a State demands its exercise. The point where regula- (1) 5 Howard, 504. ■ 1 1 <^ 1, 1 !'' (' i 1 1 ( ; 1 1 \' i 11' ' ■! ( 1 ( ■ i 1 ^' ■ \ ! 1 1 1 ! ( i [ ! ft., I ! i: i iiii 1 ;; . i i 1874-0 Slavin r. VlLL.\(iK Of (htir.LiA. KicbardH, 0. J. ill if. GOO ONTARIO COURT OF QUEEN'S HENCH. tion ceases and prohibition begins, is the point of colli- sicn and of unconstitutional operation of a State law atl'ecting foreign commerce. In any and all cases the power to deny sale includes the power to prohiliit im- portation ; and the question of power is the same, whether exercised directly by the Legislature, or in- directly by its agents thereunto authorized. The opera- tion of the law on foreign wines and spirits deprives im- ported articles of their vendible quality. The right t(» sell is connected with the payment of duties, and the right to sell must extend beyond the importer or it is an inoperative right. By treaty with France their \vine< are admitted to consumption in the markets of the United States. The law complained of shuts the mar- kets of the State against the fair and just operation of those laws and treaties of the United States, and renders them so far inoperative. The Act blends two powers to be exercised at pleasure under the statute — the one legitimate, to regulate ; the other unconstitutional, to prohibit whenever the public sentiment of the State comes up to that point. If one State can exclude one or more articles of import, she pays so much less revenue than other States that admit all, and in this way the " duties are not uniform through- out the United States." If a State shuts its markets against one or more articles admitted under a reciprocal treaty with a foreign nation by denying a sale of it, then the United States cannot, in good faith, perform its re- ciprocal engagements. The line of argument in favour of the constitutionality of the law was after this sort : — The State has a right to provide for the health of its citizens by police regula- tions. A law restraining an indiscriminate trathc in wines and spirits, designed to protect life and health .by promoting temperance and sobriety, is a police la\v. In -'^imm^ i BENCH. ONTARIO COURT OF QUEEN S HKNCH. 007 the point of colli- on of a State law and all cases the A'^er to prohibit ini- wer is the same, Legislature, or in- prized. The opera- spirits deprives im- iity. The light tn of duties, and the importer or it is an France their wine- he markets of tlie of shuts the mar- Qd just operation of [ States, and renders ixercised at pleasure te, to regulate ; the henever the public ihat point. If one icles of import, she States that admit ot uniform through- shuts its marketsi under a reciprocal ins: a sale of it, then lith, perform its re- 16 constitutionality State has a right to IS by police regula- criminate trathc in life and health .hy is a police law. In Jjimvn V. Maryland (1) the Court observes that " the 1874-5 power to direct the removal of gunpowder is a branch of si.avin the police power, which unquestionably remains and vn.LAiiK ok ,iuiTht to remain with the States," and the removal or '*""'''-^' ilestruction of infectious or unsound articles is undoubt- i'"=iJ"^rd8^^'' J- edlv a branch of the same power. Harbour laws, bal- last laws, etc., are of a similar character. They are sus- tained because they are police regulations of the States, and are not regulations of foreign commerce, though for the purpose of protecting health and property they ne- cessarily deal with it, and such laws are not incompati- ble with or repugnant to foreign commerce. Police laws have in fact everywhere been maintained against the su- preme power of the United States, notwithstanding this obvious interference. The design of the law is mani- festly to prevent tippling and disorder, by promoting temperance and sobriety, and whether it be a regulation of trade or police, or both, relates to affairs completely internal. Is this a suitable matter to engage legislative attention ? Does such a traffic demand restraint, or does the Legislature employ it as a pretext to regulate foreign commerce ? Whether an applicant for a license is a >uitable person, or whether the public good requires the grant to be made, are facts to be ascertained which must i.pend upon evidence, and the question cannot be de- cided without an exercise of judgment. It is difficult to comprehend how a selection of suitable persons or of suitable places can be made without the exercise of so much discretion as such a decision implies. Police laws may be carried to any extent which the public welfare demands. If the cargo of a vessel is infected and danger- ous, it is destroyed, and all revenue and private interests are sacrificed for the public safety. Gunpowder is re- ijuired to be landed and stored in a way which saves life (1) 12 Wheaton, 419, 443. if •I ■ i ) ■ : I 'ill Mil I ;■ ■! , .li'^ i i.'i i ; :| ill '^H -!lll I ' ( cm ONTAIUO COURT OF (^UKKN S MKXCH. ia74-r) and property from jeopardy. Ballast is rerjuinMl to bn Hlavin depOHitod where it does no mischief to navigation. The ViLr,A(iK OF l>ublication by .sale or otherwise of obscene books, prints oiuujA. picture.s, etc., is an indictable ottence. Yet such laws uicbaniH^c. J. ^^e undeniably constitutional, and are maintaintid as police regulations on the groimd that the public liealth, morals, and property demand protection. The legal pro- vision in that behalf must be such as to meet the oiik-r- gency. If excessive indulgence in intoxicating diinks be an evil, it should be guarded against by wise an-l prudent regulations. If the evil be of such magnitude as to demand stringent provisions reaching to exclusion, there is no constitutional objection to such legislation. The reasoning for the law, it was contended, estatjlishcil amongst others these propositions : that the trat^c in wines and spirituous liquors has in the public judgment, as expressed through ages and centuries, demanded re- straint and regulation ; that if the right of a State to maintain police Ipws is complete and unqualitied, there can be no constitutional conflict with the laws of the United States, as the power is absolute and supremo : See also 12 Wheaton, 549, 550, 571, as to admitted poliee powers. The license system was adopted in England at a very early period of her history, and has ever since composed a part of the ]iolice system of that kingdom : Crabbe's History of the English Law, 477. License re- gulations were adopted by the Provincial Legislature of New Hampshire: Provincial Laws of New Hampshire, ed. ofl7Gl, pp. 64, 143. In giving judgmen: i Justice Taney stated. p. 573, that " The validi, )f each of thcui (the laws) has been drawn in question, upon Hie ground that it is re- pugnant to that clause of the Constitution of the United States which confers upon Congress the power to .. i- late commerce with foreign nations and several States." among the ONTARIO COIJUT OF (^IKKNS IJENCH. 099 Ami at p. 577 : "These laws may. indeed, discourage 1874-5 imports and diminish the price which ardent spirits Slavin would jtherwise bring. But although a State is bound villa(ie o*- ti receive and to permit the .sale by the importer of any ^^""•'''•^' article of merchandise which Congress authorizes to be Kioinmis, c. J. imported, it is not boun»nging to foreign commerce as already defined." Mr. Justice Woodbury said, at p. 021 : "The leading' [ >J S BENCH. ONTARIO COURT OF QUEENS BENCH. 701 1874-5 Slavin luluiio-ino: to foreign ). G21: "The leadiiii: ject of the license is to ensure the sales of spirit in quan- •jos not likely to encourage intemperance, and at places a! times, and by persons conducive to that end." Villvgk ok And at pp. ()24, G2o : " This local, territorial, and de- ^Jrilua. liled legislation should vary in different States, and is ^' '^°''''^^' ^' ''' htter understood by each than by the general Govern- jent; and hence, asth.e colonies under an empire usually rteiul to all such local legislation within their limits, -aving only general outlines and rules to the parent coun- |::V at home ; .vs towns, cities, and corporations do it jjrv^ugh by-laws for themselves, after the State Legisla- ;!]re lays down general principles ; and as the war and havy departments, and courts of justice, make detailed |ules undor general laws, so here the States, not conflict- ing with any uniform and general regulations by Con- liTess as to foreign commerce, must for convenience, if not Mcessity, from the vevy nature of the power, not be de- kred from any legislation of a local and detailed cha- racter on matters connected with that commerce omitted I by Congress." lu deciding that these laws were constitutional, several I Oi the judges referred to the doctrine now well estab- lished in the United States, that the powers which were not delegated by the State Governments to that of the I'mted States remained 'vith the States, and contended that the power to license and regulate the sale of wines and spirituous liquors w^as one which was not surren- lered iu giving to Congress the right to regulate com- merce. Here, however, our Local Legislature, it is contended, only possesses the powers expressly granted to it, the more extended powers remaining with the Dominion Legisla- tuie. Admitting this to be so for the purpose of the present discussion, it by no means follows that the Local Legislature does not possess the power in this matter ii ^ww^mff j 702 ONTARIO COURT OF QUEi:N S HPJNC'H. i I '■ n , !(l (I i ,|:( I I I 11! i I; 1874-5 which would be necessary to sustain the two by-laws Sr^N referred to. Viul'dK OP ^^® must assume, what is not probably at all doubteil, OiuLUA. ^i^g^^ ^Yie Imperial Legislature, in passing tlie B. N. A Kicbardj, c. J. Act of 1867, introduced the various provisions as to the respective powers of the Local and Dominion Leiqsla- tures on the suggestion of, and on conference witli, tlie delegates from the various Provinces, who had before that met to discuss the basis of the confederation. As far as the Province of Upper Canada was eoncermil, the delegates who represented the views of that sectiun of the United Province of Canada well knew what tlie municipal institutions of Upper Canada were, and soiik' ^ one of them had probably introduced and carried throui:! the Legislature, only a short time before, the Act passoi on the loth August, 1SG6, entitled "An Act respectinr the Municipal Institutions of Upper Canada," 20-30 Vict. c. 51. They knew that in the sections of that Act already referred to the power was granted to the muni- cipalities in Upper Canada, under certain circumstances, to limit the number of taverns and to prohibit tlie licenses of shops for the sale of spirituous liquors in tho several municipalities. When, then, this Imperial Act uses the very words of the title of this Bill in giving as one of the class of subjects on which the Provincial L gislature may pass laws, viz., " Municipal InsfitiUions in the Province," can there be any reasonable doubt that it was expected and intended that the " municipal insti- tutions " which were to be constituted under that au- thority would possess the same powers as those which were then in existence, under the same name, in the Pruv- ince ? I should think not. I think we may properly hold that the powers now- contended for were intended to be, and were, vested in the Provincial Legislature by these very words. Their H 15p:nch. ONTARIO COURT OF QUEEN's BENCH. 703 11 the two by-laws ably at all doubteil, assing the B. N. A. provisions as to the [ Dominion Legisla- ionference with, tlii^ es, who had before jonfedevation, jiada was concerneil, 'iews of that section well knew what the tiada were, and some I and carried throuirli lefore, the Act passed " An Act respecting )per Canada," 21i-o(l s sections of that Act crranted to the muni- rtain circumstances, and to prohibit tlie tuous liquors in th" , this Impei'ial Act Ithis Bill in giving us ;h the Provincial Le- mcipal rustitiU'iom ■easonable doubt that ;he " municipal insti- lUted under thatau- wers as those which le name, in the Prov- [hat the powers now \, and were, vested in very words. Their (IH OF OlllM.lA. being followed by : — " 9. Shop, saloon, tavern, auctioneer 1874-.5 and other licenses, in order to the raising of a revenue si.avin for Provincial, local, or municipal purposes," does not, in villa our oi)inion, shew it was the intention to limit the exer- cise of the powers which municipal institutions ought to "■ictiards. c. j have, and which they had had, of limiting the sale by re- tail in inns, or prohibiting the sale thereof in shops, but rather to remove all doubts as to their right to raise a revenue either for Provincial, local, or municipal pur- poses by the issuing of these and other licenses. The B. N. A. Act of 1867 must have been passed on a conference with the delegates from the ditferent Prov- inces, and the various provisions as to the powers and subjects of legislation by the Dominion and Local Par- jiaiaents must have been suggested by these delegates. Their suggestions must have been based on personal knowledge of the various modes in which legislation on those subjects had been had in the various Provinces be- fore the Confederation, and if it had been intended that similar legislation should not have been continued as be- fore by the various Provinces, there is no doubt that such intention would have been expressed in the Act. And when words and expressions are imported into that Act which have been in common use in legislating for these Provinces, we must continue interpreting these words in the same manner aiK' '.o mean the same thing as we decided they nitant in statutes passed by our own Le(i;islatures. It would create great difficulties and in- convenience if we did not act on this rule. Under the 252nd section of the Municipal Act of 1806, it was declared that no tavern or shop license should be necessary for selling liquors in the original packages in which the same have been received from the importer or manufacturer, provided such packages contain re- spectively not less than five gallons or one dozen bottles. in !!?Trawwf j U! >-tM mi \i i I f! 1874-5 Sl.AVIN V. Vjlla{ a license for that purpose. The Legislature of the Province of Canada, up to the time of the confederation of the Provinces, seems to have limited the granting of licenses /or the sale ofivinesmd spirituous liquors to shopkeepers, and to tavern ami saloon keepers and the like, who sold by retail ; and did not make it necessary for the importer or manufacturer to take out a license to sell when selling by wholesaJ' which at first was limited to quantities not less thaii three gallons, and latterly to five gallons. The lecjislation as to the excise on the manufacturr of licjuors, and the licensing of those engaged in that business, seems to have been kept separate from the le- gislation as to granting licenses to shopkeepers and tavern keepers. We think, looking at the legislation by the Province nt Ontario as applicable to the giving the powers of limit- ing the number of taverns in a municipality or prohibit- ing the sale by retail of spirituous lic^uors by shopkeeper^ I BENCH. ONTARIO COURT OF QL'I':EN S I'.KNCH. 05 s, I think we may nil' the parties to power, under the t the sale by retail s licpiors hy retail relation to the sale • the Imperial sta- £1 168. for any li- house or any othev or the retd'dmj of rituovis litiuors, was statute of U. C, o" per who sells wino, lors in less (luantity shall he iwssessed of ,f Canada, up to the Ivinces, seems to have the sale of wines and and to tavern an.i id by rettil ; and di'i rter or niannfivctuvei' selling by wholm.l< .titles not less than Alons. on the manufacturr ,ose engaged in that [eparate from the lo- to shopkeepers aii'l on by the Province of | the powers of liwi^- liicipality or prohibit- Luorsbyshopkoepor^ in such municipality, that this is a ]iower which may l)i> properly oxei-cised by the Local Legislature as a mat- l«74-"> Slavin ter chiefly of police, of a merely local and private nature, vii.LAiiK ok when it does not interfere v»^ith the sale of imported or ^^""''•''^' manufactured li([uors otherwise than as by retail. Bicbarda. c. -i. We further think that the power may be exercised, looking at the nature of the legislation on the subject, under the power given to the Local Legislature to legis- late exclusively in relation to municipal institutions, and that the power to legislate as to shop and other licenses, ill order to the raising of a revenue, does not limit such power, but was so placed there rather with a vio*v of re- moving all doubts as to the rights of the Provincial Le- ,'i.slature to raise a revenue hy those means. In connection with this subject, and in reference gene- rally to the discussion of constitutional questions, I will refer to the language of Chief Justice Marshall, when de- ciding such questions in the Supreme Court of the United States. In McVulloch v. The State of Maryland (1), he said : A constitution, to contain an accurate detail of all the viibdivisions of which its great powers will admit.and of all the means by which they may be carried into execu- tion, would partake of the prolixity of a legal code, and coidd scarcely be embraced by the human mind. Its na- ture, therefore, recj^uires that only its great outlines shoulil be marked, its important objects designated, and tlie minor ingredients which compose those objects be ki-luced Irom the nature of the objects themselves." And again, at pp. 409, 410 : " The Government which iias a right to do an act, and ha,s imposed on it the duty of performing that act, must, a-jcording to the dictates of reason, be allowed to select the means ; and those who tontend that it may not select any appi'opriate means, (1) 4 Wheaton, ;- been truly said that the presumption is in favour of every legislative act, and that jhe whole burden of proof lies on hira who denies its constitutionality." Mr. Justice Johnson, of the Supreme Court of ih United States, in Gibbons v. 0 over these subjects would not possess power to reguhur connnerce." We think the party who applies to (piash these In- laws has failed to shew that the Legislature of the Pio\- (1) 12 Wheaton, 436. (2) 9 Wheaton, 229, 23U. BENCH. ONTARIO COURT OF QUEEN S BENCH. 707 le object is except- )f establishing that nd construction of ational Legislature leans by whicli tlu' bo execution, whidi licrh duties assif'iied the people. Let the le scope of the con- api)vopriate, whicii ti are not prohibited, rit of the constitu- >id (1), the same dis- ; language: "Itha.s ion is in favour of hole burden of proof inality." i-eme Court of the (2), thus refers to Iniplest signification, the advancement of .elligence, care, and ine conunodities, and |ie vehicle, the agent, objects of commer- carrying trade, and ,1 agents of commev- |h could not legislate iss power to regulat- L to quash these by- rislature of the Prov- [9 Wheatou, 229, 230. ince of Ontario had not a right to pass the statute un- 1874-5 der which they were framed. Si.avin On the contrary, we think they have the power con- vii.laok ok ferred on tliem to pass such by-laws by the reasonable ^ ""''''^' and proper construction of the words of the B. N. a. ^^''^''!:!!l^' •^• Act, 18(57. We think the course of legislation in Canada previous to the passing of that Act shew^s that the granting of licenses to sell wines and ardent spirits by retail was a matter properly entrusted to the municipal institutions in this Province, and that *-he power to prohibit such sale under certain circumstances was also proper to be entrusted to those institutions ; that the power to legis- late for such institutions necessarily carries with it the right to confer on such institutions all such powers, par- ticularly of police, as could be most conveniently and with advantage to the community exercised by them, and when such matters may be said to be of a merely local and private nature in the Province, they cannot be said to interfere with the rights possessed by the Domin- ion Parliament. We think the right to license brewers and distillers, and to impose duties of excise on their manufactures, is one that has never been conferred on nnmicipalities in this country, and would not properly come within the power usually conferred upon municipal corporations. They have always been looked upon more as matters of & quasi national character than of the character pertain- ing to municipalities. The imposition of taxes on wines ami .spirits iujported from abroad has also been treated and con.sidered in the same way ; and in all our statutes of a prohibitory character, passed before confederation, the right of the importer and manufacturer to keep and , the same nut haviii'^ ONTARIO COURT OF QUEEN'S BENCH. Ekoina r. Roddy. [Reported 41 U. C. Q. B. 201.] .W Vict. 1: JO, .s. 4, O. — Wliat in '' a crime'''— Evidence. An information under an Ontario Act, for soUin}^ intoxicating li(|Uoi's (iM Sunday, was held to be so far a charge of a criminal character that the dofondaut could not be cfjuipelled to give evidence against himself. Mr. (}. H. Watson, on February Gth, 1877, obtained from (iwynne, J., a rule returnable before the full Court, call- ing on John Ritchie, license inspector for the west riding (if the County of Peterborough, and David George Hatton, Esq., Police Magistrate in and for the town of Peter- borough, to shew cause why a certain conviction made by the said David George Hatton, dated 4tli December, 1870, whereby the defendant Robert Roddy was convicted of selling intoxicating liquors on Sunday, /5th of November, 1876, contrary to the statute in that behalf, should not be quashed, upon the ground that the said conviction was illegally obtained, in this, that the said Robert Roddy ^vas called upon and compelled to give evidence against bimself, notwithstanding his own objection and that of • bis counsel to be sworn or to give such evidence ; and on the ground that section 4 of 3(5 Vict. c. 10, 0., under which the Police Magistrate compel' d the defendant to k'ive evidence, is beyond the jurisdiction of the Legislature of Ontario to pass, and is unconstitutional. The rule was obtained on reading a writ of certiorari m\ the return thereto, including the information, depo- sitions, and conviction had and taken by and before tho police magistrate of the town of Peterborouirh. 1877 Ma// 2!) ; June ',iO. I' ' 'it m ml ' ti I. :!■ •f : I i ■'. •t ' i i % I ']'] !• I Pi li Hi! ^ i AH' I. n L 1877 IkKdINA V. llODDY. Statkmhnt. \kl 710 OXTAUIO COLUT OK (^I'KKN S IJKNCH. The information, whicli was that of John Uitchlu, license insj)eL'tor, and dated 14th November, 1870, statcil that he had ^ood reason to believe and did verily l)olievi' that the defendant Eoddy did, at his place of Ijiisiness in the town of Peterl)orough, on Sunday, the lit'th day of November, 1870, dispose of intoxicating li(|iior contrary to the statute in that behalf. There was no evidence against the defendant to sustain the charge except his own testimony. Pie ol)jocted to Ix sworn or to give evidence, but was compelled to do so, and under compulsion gave evidence which established the charge. He was thereupon, on 4th December, 187(5, convicted of the oft'ence charged in the information, and adjiuli^'ud as follows: "For his said offence to forfeit and pay tln' sum of twenty dollars, to be paid and applied according' to law," and also "to pay to the said John Ititcliie, tlu- complainant, the sum of four dollars and fifty-iive ceiiti for his costs in this behalf; and if the said several sums be not paid forthwith, on or before the seventh day of December instant, I order that the same be levied bv distress and sale of the goods and chattels of the said Robert Roddy; and in default of sulHcient distress, I adjudge the said liobert Roddy to be imprisoned in tin common gaol of the said county of Reterl)orough for tli> space of fourteen days at hard labour, unless the saiii several sums and all costs and charges of conveying tli' said Robert Roddy to such gaol shall be sooner paid. " Mr. Graver shewed cause. The conviction was liaii under 37 Vict. c. 32, s. 34, 0. If it does not disclose a crime, the evidence was proi)erly received under 36 Vid. c. 10, s. 4, 0. The cases shew that it does not disclost a crime: Russell on Crimes, Dth ed., 88. Mr. Bethune, Q.G., contra, Mr. JVatson with him. The 36 Vict. c. 10, s. 4, is impliedly repealed by 37 Vict, HENCH. ONTAiao rol'llT ol'" (^LKKNS liKN'cll, 711 of John Hitcliic, ml)er, 1H7G, stated I dill verily liolicvi' )liice of Imsint'Hs in ,y, the fifth day of ng liciuor contrary efeiidant to sustain He objected tn 1)1 compelled to do so, ! which established )cr, 1H7('), convicted lit ion, and adjud^^id forfeit and pay tin.' id applied accordiii!: d John lUtcliic, tlu ; and tifty-five cent> lie said several siim« the seventh day of same be levied l)y chattels of the said Isufficient distress, 1 le imprisoned in the .Peterborough for tin |our, unless the said Icres of conveyin<^ the 1 be sooner paid." conviction was had [i does not disclose a ieived mider 36\iet. it does not disclose a ;8. latson with him. The •epealed by 37 Vict, c. 32, 0. Section 14 of the latter Act provides for a now procedure. It declares that the maj^istrate shall hear and determine in a summary manner accordin*; to the practice iind procedure contained in Con. Stat. C. c. 103. And the latter Act contains no such provision as HO Vict. c. 10, s. 4. If this bo not so, it must be held that 3(1 Vict, e. 10, s. 4, is unconstitutional: Attorui'tj-Gctiei'td v. Iind- 1-/(1), Cuttle V. Irr>i<>n (2), 7^/ LncdH oml Mrdhixhatt (3). June 30. The judgment of the Court (Harrison, C. J., and Morrison and Wilson, JJ.,) was delivered by HAunisoN, C.J. : — The conviction was made under 37 Vict. c. 32, ss, 28 and 34, 0. Section 28 provides that " In all places where intoxi- cating; liquors are, or may be, sold by wholesale or retail, 111) sale or other disposal of the said liquors shall take place therein, or on the premises thereof, or out of or from the same, to any jjerson or persons whomsoever from or after the hour of seven of the clock on Saturdav night till six of the clock on Monday morning thereafter ; . . . nor shall any such liquor be permitted or allowed to be drunk in any such places during the time prohibited by this A* !^ for the sale of the saine." Section 34 provides "For punishment of ofifei^ces against section 28 of this Act, a penalty for the first oft'ence against the provisions thereof, of not less than S'iO with costs, or 15 days' imprisonment with liavd labour, incase of conviction, shall be recoverable from, and levi- ahle against, the goods and chattels of the person or per- sons who are the proprietors in occupancy, or tenants or agents in occupancy, of the said iDlace or places, who shall be found by himself, herself, or themselves, or h's, 1877 JtKta.SA r. liODDV. AUdUMKNT. (1) 10 Ex. 84. (.{) 29 r. C. Q. B. 81. (2) P:, B. & E. 01. i:^; !■:!, 'illli^ If I I'll!!' ! 1^ ; ! ti in fi ■ ' I { I t 712 oNTAiao couin' <»k (^i'kkns hknch. 1M77 Kk<;ina r, HOUDV. HarriHon, ('. !!l her, or their servants or agents, to have contrnvoiK I the enactment in tlio said twenty-eighth section or aiiv part thereof ; for the second olTence a penalty of not less than $10 with costs, or 20 days imprisontiicni with liard Idhaio-; for a third offence, . . m peuiiltydf not less than $100 with costs, or 50 days' iinprisouuK'nt. So far there is nothing expressed in this Act as to pro- cednre or evidence, hut reading further we find section^ from 44 to 53, hoth inclusive, under the heading " rrocecd- ings and Evidence." Section 44 declares that "All prosecutions for tin punishment of the several offences against the provision^ of this Act, contained in sections numhered respoctivdv 28, 20, 30, 85, and 30, whether the prosecution be for tin recovery of a penalty or for punishment by imprisoninont, shall take place . . . in cities and towns where tlKiT is a police magistrate, before the police magistrate," and he " shall have authority to hear and determine the same in a summary manner, according to the practice and procedure, and after forms contained in and appended to the Act, c. 103, of Con. Stat. C." Section 44 also : provides that "on such trials and pro- ceedings the prosecutor or complainant shall be a "oiii- petent witness." Section 47 provides that "No person shall be rendircd incompetent as a witness by reason of his being interested in any portion of the penalty sought to be recovered." The Act, it will })e observed, does not contain any pro- vision that the accused shall be competent or compellable to give evidence against himself, nor does the Con. Stat. C. c. 103, contain any such provision. Such a provision for the first time appears, and only appears, in 36 Vict. c. 10 s. 4, 0., which declares that "On the trial of any proceeding, matter, or question, under any of the Acts of the Province of Ontario, relating ONTARIO COURT Ol' QUKKNS RKNCIl. ■]'.] is7r r. ItiiUDV. i-rlson, C. J. to tnvorn or whop liccnHes, or undor the ^runicipiil IiiHtittuious Act of Ontario, or under the AHHessnient Act iukuna of Ontario, or under any other Act of the Le^'irflative Assembly of the Province of Ontario, or on the trial of nar any proceeding, matter, or question, before any justice or juHtices of the peace, mayor, or poHce magistrate, in any matter cognizable by Hucli Justice, . . . uotlwituj ,1 rrinii', the party opposing or defending, or the wife or husband of such person opposing or defending, shall be corapoli'ut and compellable to give evidence in such pro- ceeding, matter, or question." The first question is, ^,hether 80 Vict. c. 10 s. 1, ()., is, as regards proceedings under the Tavern and Shop Licenses Act, repealed by ;}7 Vict. c. 82, 0. The latter Act recites that it is expedient to amend and consolidate the Acts 32 Vict. c. 32, 0., 33 Vict. c. 83, 0., and 36 Vict. c. 31, 0., and repeals "the several Acts in the recital thereof" mentioned. It does not in any manner refer to or mention 30 Vii-t. c. 10, 0. Itrej)eals only the Acts mentioned in the recital. 80 Vict. c. 10, s. 4, 0., is not one of them. There is no provision therein contained actually repugnant to 30 Vict. c. 10, s. 4, 0. We are unable to decide that 80 Vict. c. 10, s. 4, 0., is in liny manner repealed or affected by 37 Vict. c. 82, O. We are therefore forced to put a construction on sec. 4 "f 36 Vict. c. 10, 0. The general policy of the law is, that no man can be compelled to criminate himself, imno tenetur se ijisuin nfcusdre: Con. Stat. U.C. c. 32, s. 18; 83 Vict. c. 13, s- .", sub-s. 4, 0.; Taylor on Evidence, s. 1223; Powell's Principles of Evidence, 4th ed., 40; Paley on Summary Convictions, 5th ed., 109. An individual charged with the commission of a criminal act cannot, conformablv to the course of uistice in our tribunals, be interrogated by the Court with I i i .■ \:t ' Miiii ! miu' ,mvi ■\, ! i I . ■ ill I! II (i 1877 l\K(il.\A V. KODDY. Harrison, C. J. 714 ONTARIO COURT OF Ql'KEN S RHNlIl. a view to eliciting the truth, nor is he a competent witnis, in the cuBe: Broom's Legal Maxims, 4th eel., !);U. We have no douht that the words "notheingacrinit," as used in 3G Vict. c. 10, s. 4, 0., apply to the whoK section, for at least two reasons. 1. liecaujo the Provincial Legislature ha^ no (liroit power to legislate either as to crime or criminal procedure — B. N. A. Act, 1867, s. 91, sub-s. 27 — and it cannot lie intended that the Provincial Ijcgislature assumed to dti that which it had no jiower to do : See Wilde v. Baircn d). 2. Because even if it had for any purpose the power, we cannot sujipose that it was the intention of the Legis- lature, by the language used, to reverse a maxim of our law as settled, as important, and as wise as almost anv other in it : See per Coleridge, J., in Scott's case (2). While it may be held that the B. N. A. Act has ecu- ceded to the Provincial Legislatures the incidental power of enacting certain laws of a criminal character wluu necessary for the enforcement of laws properly passed by them on matters under their exclusive jurisdiction— sic Begina v. Boanbitan (8) — it cannot be held thattliev havt the power, directly or indirectly, of destroying the general rules of evidence appertaining to criminal procedure, or qii((}ii criminal procedure throughout the J)ominion. What we mean is this— that while the Provincial Legi>- lature has, under sub-s. lo, of s. 1)2 of the B. N. A. Act, the power to enact "The imposition of punishment by tine, penalty, or imprisonment for enforcing any law nf the Province made in relation to any matter coming' within any of the classes of subjects enumerated in tbis section," the Provincial Legislature has no power in doiuj,' so to alter well understood rules of evidence made for ih>: protection ^'^ persons substantially accused of crime. (i) ^7 U. C. Q. B. 504. (2) Dears. & K. 47, (11. (3) 30 U. C. Q. B. 553 ; ante, p. 67(i. S HKNCM. ONTAiaO (^OURT OF QUEEN S REXCH. 715 a competent witness 4tli ecL, \m. 'notbeinff a crime," apply to the wholt ,ture liaT no (lircet ; criminal proeeiluve 7 — and it cannot be iture assumed to do ]]"il(le V. lidirni il). ■ purpose the powii-, itention of the Legis- erse a maxim of our wise as almost any 1 Scott" s case (2). i. N. A. Act has con- the incidental power inal character wln^u s properly passed by ive jurisdiction— Sic held tlia.t they liavi estro> ing the general iminal procedure, ^r the Dominion. 10 Provincial Legi>- )f thcB. N.A. Ad, of punishment by n forcing any law nt' any nuitter comiii!^ enumerated in tbis las no power in doiiifj ideneo made for ih ,ecused of crime. (2) Dears. & B. 47, til. p. G7<). Recina r. KODlJY. !t follows that in every case coming under s. 4, of 30 i'"^"' Vict. c. 10, where it is attempted to compel a man to testify against himself, the enquiry must arise whether the charge against him is in substance a charge of crime. HarrisoiTc. j. This is the enquiry now raised before us, and from the decision of which we have no escape. Whether a particular act is a crime or not must depend upon the nature and character of the act. It is not in the power of the Provincial Legislature to declare an act which by the laws of the Dominion is a crime, not to be a crime, so as to make persons substan- tially accused of crime compellable to give evidence ugainst themselves. This, it appears to us, the Provincial Jjegislature, in the Alt before us, has not attempted to do, but it may be said that short of such an attempt, such a provision as s. 4 of 36 Vict. c. 10, will be practically worthless ; but the [inswer is, that if the attempt were made the provision would be of no greater .alue. It will be well for the Provincial Legislature to consider whether, under the circumstances, the further retention in the statute book of such an embarrassing provision as HIj Vict. c. 10, s. 4, is ex})edient, but while we tind it hi the statute book we must expound it. If the act with which defendant is charged under s. 28 A 37 Vict. c. ;V2, is, according to the well-understood principles of the laws of England, a crime, s. 4 of 3t) \kt. c. 10, whatever it may mean, or whatever its operation, is inapplicable to this case ; and as under colour of it the defendant was wrongfully compelled to testify against himself, the conviction obtained by such illegal means must bo quashed. The question what is a criminal proceeding, as the subject of summary conviction, in England, according to Paley on Summary Convictions, 5th ed., 112, 113, :i i* 7in ONTARIO COCCT OF QTEKN's I'.KNCll, M !! > ! I! 1877 "depends on the manner in which the Legislatinc Imv, Reoina treated the cause of complaint, and for this purpose tL' Roiinv. scope and object of tlie statute, as well as the laiK'na-, Hflrris^'c.j, <>f its particular enactments, should be considered, h may oe, as a general rule, that every proceedinjr ijef,,,.,, a magistrate where he has power to convict, in contra- distinction to the power of making an order, is acrimiii;i| proceeding, whether the magistrate l)e authorized, in tli- first instance, to direct payment of a sum of monuv i^ a penalty, or at once to adjudge the defendant to L. imprisoned; and it must be borne in mind, that where a statute orders, enjoins, or prohibits an act, cvorv (li>. obedience is punishable at common law by indictment: in such cases the addition of a penalty, to l)e rt'coveml by summary conviction, can hardly prevent the proceediuo in respect of the offence from being a criminal one." Any wilful contravention of any Act of the Domniiv,. Parliament, which is not made an offence of some other kind, is a misdemeanor, and punishable accordinffly : ;il Viet. c. 1, s. (>, sub-s. 20, D. So any wilful contravention of any Act of the Legis- lature of any of the Provinces within Canada, which is not made an offence of some other kind, is also a misde- meanor, and punishable accordingly : 31 Vict. e. 7! s. 8, J). Now, assuming the constitutionality of ss. '28and:)2 of ;J7 Vict, c, 82, the question is, whether it is not :i crime, in the broad sense of that word, for a persiMi authorized to sell spirituous licpior to make a sale there- of on Sunday, contrary to the provisions of tiiat Act? It is difficult to imagine a sale on Sunday wliicli wnulil not be a wilful one, but apnrt from this it is obvious, fmui a reading of the Act, that the offence is one a^'aiust ili' public interest, and may be punished either by tint or imprisonment at Imrd labour. ONTARIO COURT OF QUEEN'S HENCH. 717 i r.KNCH. Ijegislatiire liavi • 31- this purpose tbt ill as tlu' liinsuai'. be considered. It f procoedinj::; before 1 con r let, in contra- 1 order, is a crimiiiHl )e authorized, in tlit a sum of money as che (lefendiuit to be 1 mind, that wbere a s an act, every (li>- law by iudictnient ; ilty, to be recovt-rid re vent the proceetling a criminal one." Act of the Domniiv,. offence of some otlior able accordingly : ;U iiy Act of the Le^is- 1 Canada, which is ind, is also a misile- ly : :31 Vict. c. Tl lity of ss. -ZBaud;!'] whether it is not a word, for a person to make a sale there- liions of t'iiat Aef? 1 Sunday whicliwmia liisit is obvious, from .(, ia one a^'ains^ttbe ird either by tine or "Tlu^ proper definitioi i of the word ' crime ' is an oft'ence l«77 [ir which the law awartis punisbment: " Per Littledale, rkijina ]., ia.l^^^j V. Oireii (1). Roody. \ crime or misdemeanor is an act omitted or committed HarriBmre. J. a violation of a public law either forbidding or command- ui,f it. This general definitio^a comprehends both crimes and misdemeanors, which, pr(>i>f'rly speaking, are mere ;vuonymous terms, though in common usage the word ■ eiime" is made to denote such otf* nces as are of a deeper aud more atrocious dye, while smaller faults and omis- hions of less consequence are comprised under the general aames of misdemeanors only: Bitttx. Coiuoi ('!). The ilifldculty is not so much to find definitions as to l;,;ii)ly them. This ditficulty has ever been felt both in iEiij;land and in this country, as an examination of the aises will shew, whenever an eftbrt has been made by I tiie Courts to draw the line between civil and criminal Ijirocedure — between acts illegal which are not crimes, I and illegal acts which are crimes. hi Atiiirncij-Ot'iicntl v. Bowman (3), an information a^aiust the defenda}it for keeping false weights was [held by Eyre, C. B., not to disclose a crime, and the krncd judge, being of that opinion, rejected general levidiiice as to character tendered on l)ehalf of the de- [ididant. In lltintleij v. Liiscombe ^4) it was made a question hiiether a commitment in execution for a penalty before la magistrate for an oft'ence against the excise laws is a pumitment for " a criminal matter " within the provi- jsious of the Ildlicas Corpus Act. Ill Rex V. Mi/ers (5) it was held that a person who Iliad been convicted in a penalty under the Lottery Act, (1) 9 IJ. & C. 595, <)02. (2) 1 B. & B. r.48, 575. (3) 2 H. & P. 532 (uote). (4) 2 B. & P. ,530. (5) 1 T. R. 205. 718 ONTARIO COURT OF QUEP^N S J$ENCH. Il:''i! ft i . I 1877 Regina V. Roddy. Harrison, C. J. 22 Geo. 111. c. 47, and arrested on a Sunday, and sent to the house of correction for want of a sufticient distress was not a criminal, so that his arrest on Suudav was unlawful. In Re Efifjington (1) it was held that a town clerk dis- missed from office, and convicted before two justices of the peace, under statute 5 and (i Wm. lY. c. 7ij, s. lio for wilfully refusing to deliver account books up after notice, was not a criminal, so that his arrest on Sunday was illegal. In Attorn('!/-G('neral v. Siddoii (2) it w^as made a ques- tion whether a trader concealing smuggled goods and subject to penalties under the Customs Acts, is to W held accused of crime, so as to be free of the misconduct of his servant, and liable only for personal guilt. In Easton's Case (3) it was held that a person sen- tenced by two justices to imprisonment with hard labour, under the Smuggling Act, 4 and 5 ^Xm. IV. e, 13, s. 2, was in execution for criminal matter under tLe Habeas Corpus Act, Lord Denman saying "the party is sentenced to imprisonment at Jtan' hthoiir, which puts the point beyond doubt." In Attonieij-Geiiend V. Radlolf' (4) the Court, consist- ing of four judges, was equally divided on the questiuii whether the trial of an information filed by the Attorney- General for the recovery of penalties for smuggling un- der ss. 4(5 and 82 of 8 and 9 Vict. c. tl, was a civil in- criminal proceeding. Contradictor}' opinions as to wliat acts are or are not crimes were given by the learnul judges, but as the case decides nothing we forbear to quote them. In Re [jucds and McGlasJuni (5) this Court held tliiita (1) 2K. & B. 717. (2) 1 Cr. & J, 220. (3) 12 A. & E. 64.5. (4) 10 Ex. M. (o) 2!) U. C. (I 15. Ml u S BENCH. ONTARIO COUllT OF QUEENS 15ENCH. 719 Sunday, and sent to I sufticient distress, est on Sunday was lat a town clerk dis- ifore two justices of Nm. IV. c. 7*5, s. (iO, ount books up after his arrest on Sunday it was made a ques- smuggled goods ami stonis Acts, is to lit ree of the misconduct lersonal guilt. I that a person sen- Lsonment with hard . 4 and 5 Wm. IV. c, .nal matter under tie saying "the party is ihoiir, which puts tlic the Court, consist- ded on the questiuii tiled by the Attoriuy- s for smuggling uu- c. 11, was a civil iH' y opinions as to what | oiven bv the learnul othing we forbear to] this Court held that a I (4) 10 Ex. S4. (5) 2!t U. C. Q. B. 81 le conviction under the Inland Revenue Act, 31 Vict. c. 8, 1877 s. 130, for possessing a distilling apparatus without hav- Rk.una ingmade a return thereof, was a conf iction for a crime. ho'ody. In Tdfihirs ( V/.sv (1) it was held under the Ilaheas Cor- Ham^oiTc. j ftUH Act that a person committed for contempt of court was committed for " criminal or supposed criminal matter." In Cohhctt V. SloicuKtn (2) it was held that a person in custody under a commission of rebellion issued out of eiiuity is not in custody for any criminal or supposed criminal matter within the meaning of the Habeas Cov- m Act. In Caftcll V. Ireson (3) it was held that a person con- victed by justices under 1 and 2 Wm. IV. c. 32, s. 23, for using an engine for the purpose of taking game with- out tlie authority of a certificate, was a criminal proceed- \\\% within the meaning of s. 3 of Lord Denman's x\ct, 14 aud 16 Vict. c. 99, so that the party charged was neither competent nor compellable to give evidence against him- self. Ill V(a'h('v V. Green (4) a proceeding before justices preferred under 9 Geo. IV. c. 01, against a person licensed to sell excisable liquors by retail, for " that he did unlawfully and knowingly permit and suffer persons i notoriously bad character to assemble and meet to- gether in his house and premises," was held to disclose a charge of crime, and that the defendant was not a competent witness. Croiupton, -T., in delivering judgment said, p. 311 : "When a proceeding is treated by a statute as imposing a penalty for an offence against the public, the amount nvliieli penalty is to be meted by the justices according to the magnitude of the offence, there can be no doubt i (1) :? East 232. {•1) It Ex. i;;«. (3) E. B. & E. 01. (4) 2 Ji. & S. 2y9. ONTARIO COURT OF <,)UKEN' S RENX'H. w 1877 Kkoina KODDV. Harrison, C. J. Ml the iDrocceding is a ciimiiial one." And Wightinan, .]., said, p. iiO\) : " The justices may punish such otTciuler bv fine, thus treating fine as a punishment for oll'enci. against good order and rule." The latter decision was followed in Rofiinn v. Siillir,tii (1), where the charge was " for keeping a dog without a license, contrary to the Dogs' liegulation (Ireland) Art, 1865. ■■ Talles, C. Ji., s; 1, p. 407: " The penalty is im- posed by way of punishment, and not as compensation to any particular individual." In Sivcciiy v. Spooncr (2), where the informutioii was under 5 Geo. IV. c. 83, s. 4, charging the defendant with running away from the parish of B., whereby hi,- wife became chargeable to the parish, it was made a (juestioii whether the charge was not so far of a criminal nature as to render the wife's evidence inadmissible agaiiist him. And in liecrc v. Wood (8), where under s. 8 of tlif same statute the charge was against a person for negket to maintain his wife and children, the wife of th. accused was excluded a:« a witness. In Blnck v. li(tcl,h(im (4), it was held that a proceecliut; under 1 and 2 Vict. c. ll>(), q 32, against a l)enefice(l clergyman for penalties for non-residence on his beiu- fice, was a civil and not a criminal proceeding. Siuli was also the decision in Hackhaiii v. Jiluck (5). In Bardcr v. OWiiU ((5), where the suit was against a clergyman under thv Church J)idcipiine Act for immo- rality, it was held that the clergyman was not either a competent or compellable witness, but in the Binhop ><} Noruicli V. PrafHt' (7) the contrary was held. In The (Jiicen v. Sfci-l (8) it was held that an order for costs made on tht^ trial of a criminal information i^ 1 liH! (1) L. R. S Ir. C. L. 404. (2) 8 B. & S. :<2!i. (;i) 5 li. & S. :i()4. (4) 5 Moore P. C. C. 305. (5) 9Q. 15. (iOl. (0) ;» Jur. N. S. llOi). (7) L, K. 2 A.l. & E. 281. (8) 2 (). B. D. 87. S HKNCH. O.NTAIUO COURT OF (,)UEKN S liKNCll. 721 Vnd Wiglitinan, .1., Lsh such otfunder by jhnieiit for olTenci- ii liCfjiivi V. Siillir.iu ng '.I dog without a ition (Irehmd) Ae't, ' The penalty is iiii- t as compensation tu the information \vii> ir the defendant with B,, wherehy hi,- v,il> was made a question f a criminal nature inadmissible against lere mider s. H of tin ^ a person for uegket 11, the wife of tlu- eld that a proceeding against a beneficrtl jsidence on his benr ,1 proceeding. Suuli , Black (5). [le suit was against a )line Act for imrao- .an was not cither a but in the ii(s/(oj) <■: was held. Iield that an order di Liinal information ^ '.)Q. B. 691. It Jnr. N. S. llO'.t. L. K. -2 All. & E, '281. '2 (). B. U. ^7. criminal procedure, so that under the Judicature Acts of ^>^" 1873 and 1875 there could be no appeal from it. uwuna In 'Jlic (Jin'cn V. FlctrJicr (1) it was held that a rule for i;(,V)t)Y. ■icnliorttri to bring up a summary conviction by justices, Hanisi^cj. for the purpose of quashing it on the ground of want of jurisu .'ion, was in substance as well as in form criminal procedure, so that there could be no appeal under the Judicature Acts. The conclusion which we draw from these decisions is, that the accusation against the defendant here was so far of a criminal nature that he ought not to have been compelled to give evidence agahist himself, and there- fore that the conviction must be quaslied. Although it is not possible to reconcile the decisions, it would seem that where the proceeding, although be- fore justices of the peace, is not simply for the re- Lovery of money i^ayable to some individual informant, !iut for the punisliment of an offence against social order, and where the punishment may be not only the imposition of a fine but imprisonment, and that at hard labour, the offence, by whichever Legislature created or assumed to be created, is to be looked upon as a crime, and the prosecution a criminal prosecution, so as to ex- ehidethe testimony of the accused, either for or against himself. Huh' iihsohite. (1 2 (,). v.. \\ 43. 4« oNTAIilo coriiT <»l" qi'ep:xs hkxch. ( ' t ! I ' ii I ■ ; I ■ I m if /)(,: 1. 1.S7S ONTARIO COURT OF QUEEN'S BENCH. liKdiNA r. Gkor(ik Ani'irir.ATj) Amkr an'd Laiiax Amkk. [L'ijxHfni ,;..-' (J. ('. Q. II. .an.] i'lrrogatii-c of the ('nurn — B. N. A. Art, ,ss. 1.', H.',^ HI, 'J.', .''6— /',„. viHUDuil District of Alijomu — Ci)nimis!ilon, of Oyer hwI Trrtninur to District Jiutijc — J'owcr to /.s.skc. Tlio provisidiis of tlio B. N. A. Act luivo not sui)ui'sudu(l tlio [ne- roLfiitive right of the ("I'own to issue a commission to the Judi'e of the Provisiouiil Judicial District of Algoma to liokl a Court of Oyer and 'roriiiiner and (Jenoral Gaol Delivery, for trial nf felonies, etc. — and such a conuuission bj' the Deputy of tiieGnv- ernor-General was held to be legal. Per Wilson, J., the Lieutenant-Governor of Ontario, as well as the Governor-General, has the power to issue c(jmmissioii3 tu li41 Courts of Assize. Criminal Case stated imder Con. Stat. t^C. c, ll'l. The prisoners were tried at a special Court of Oyer iimi Terminer and (leneral Gaol Delivery, in and for the pro- visional district of Algoma, on the 2nd October, 1877, at Sault Ste. Marie, in the provisional district of Algoma. before the Hon. Walter McCrea, judge of the provisionai j'vidicial district, for murder, on two several indictments. The one was for the murder of William Bryan, the otlit r for the murder of Charles Bvjan. On the first of these indictments George ArchihaM Amer was found guilty of manslaughter, and Labau Aiiiti was found not guilty. On the second of these indictments the two prisoner^ were found guilty of murder. The counsel for the prisoners objected to the passini.' of judgment upon them — 1. Because neither the autlio rities of the Dominion, nor of the Province of Ontari i. ■ ! U : i',i;ncii. ONTARIO ('(JUUT OF QUEEN's JJEXCH. 723 N'S BENCH. ANi> Lai'.an Amki;. I of Oiicr awl Ti'rinina- lot supersuilod the iHf- Dinmissiou tn the .Iiul'j;e \li'oma to hi)lcl a Court ul Delivery, for trial nf • the Deputy of the d a- f Ontario, as well as tlu' lue coiiiniissioiis to liul.l ^tat. U.C. c. 112. ial Court of Oyer m\ in and for tlie pvo- nd October, 1877, at district of Algouia, ge of the provisional several indictment^. am Bryan, the otlu v ts George Archibald ter, and Laban Amev Its the two prisoner' lected to the passini: he neither the autli'v Province of Ontaii". had p; wer to issue a commission to the said AValter JlcCrea as a judge of a Court of Oyer and Terminer and (ieneral Gaol Delivery under Con. Stat. I'.C. c. 11, as he was not one of tlie several classes of persons named in section 2 of that statute, l)ocause Con. Stat. CO. c. 1'28, s. ill, respecting unorganized tracts, gave him the same power and jurisdiction as County Court judges have, but for the purposes of such Courts only, and did not render him eligible for any appointment beyond that as judge of the said District Court. ■J. That the authorities of Ontario liad no power to appoint a judge, and the commission which was issued by them was void; and the authorities of the J)ominion luul no power to constitute a Court except by Act of Parliament, and there was no such Act constituting the Court, and their commission was also void. The learned judge held the Court under two commis- sions, one issued by the Lieutenant-Governor of Ontario, dated 11th September; 1877, and the other l)y the Deputy- Governor of the Dominion, dated 'i'ind Se})tember, 1S77. The commissions were addressed by name to the several Cliicf Justices and Judges of the (Queen's Bench and Common Pleas, and to "the Honourable Walter McCrea, Judge of the Provisional District of Algoma, in the Prov- ince of Ontario." The commissions followed in form that given in 4 Chitty's Criminal Law, 2nd ed., 184, and authorized the holding of a Court of Oyer and Terminer and General (iaol Delivery. Mr. Il'ivdi/, Q.C., for the Crown. The Con. Stat. U.C. c. 11, s. <>, autliorizes special commissions of Oyer and Terminer, ov of Gaol Delivery, for the trial of offenders whenever deemed expedient. ( liapter 128, s. 98, of the Con. Stat. U.C, authorizes the 1M77-S llKi.lNA /', .\mkk. Sl.MKMKM. '¥ 724 (iNTAUKt (Ol'KT OV (/UKKNS liL;N('||. if ii n liiijl in, §m\» if ' i ^ 1 ■ 1 i ' 1 i^mip. :i'l' ,MM; Vh \4 ' 1 ; : ! i ■ : ii:! kii M: 1877-M 1 1 EC IN A r. Amkh. AlHHMKNT. Governor, during the continuance of any provisional judicial district, to issue the necessary comnn'ssioiis autlioriziu}^ the holding therein of such Courts of Assize and Nisi Prius, Oyer and Terminer, and General (iaoj Delivery: and section 2 of the iirst of these Acts docs not restrain the generality of the other sections which are referred to. J3esides, if c, 11 relates only to counties, c. 12H relates expressly to such a place as Algoma, and hy it a commission may he issued, as hefore mentioned, and it need not he directed to any i)articular class of persons. It is also said that Mr. McCreais not a Cdiintii Court judge, so as to he within c. 11, s. 2. He is u piu- visional judicial District Judge, "with the powers, duties and emoluments of a County Judge in Upper Canada.' But that does not shew that the commission might not lawfully he directed to him: iM/. v. SiiUiran (1). (Harri- son, C. J. — There is also the case of ]' in Vpper Oanada." nnission mij^ht not iidUnni [D. (Harri- ]'rogatives, 77 ; 1 Chitty's Crim. Law, "ind ed., 112 ff .sw/.,- 1 JJl. Com. ;3rd td., 310; 2 Hale's P.C. 2!) rt nrq.-, Hawkins' P.C., book ii. c. 5; 1 Inst. c. 2H. The commissions in such cases may issue by prerogative: Chitty on Prerogatives, 84; For- syth's Constitutional Law, 1()7 ct -sw/.,- The Governor- Gencral's Instructions, Sess. Papers of l(S()7-8, No. 22, .Vrticle 8. As to the construction of the statutes, ho referred to Dwarris on Statutes, 2nd ed., 504, 528. 582. (i04; Hawkins, P.C, 8th ed., book ii., c. 25, p. 2U0, note 2; Atlonii'iz-dciicrdl v. Xcicniau (1). yiv. M. C. Cdmcron, (^.C, contra. There is a distinction between general and special commissions. The latter are for special times or special purposes. Although Con. Stat. U. C. c. 11. s. 2, says that the commissions innji also contain the names of County Court judges and Queen's Counsel, besides those nf the judges of the Superior Courts of common law, yet from the general terms of the enactment it is restrictive, ami the commission can be directed only to such persons. As c. 128, s. 03, names no person to whom the commis- >ion is to be directed, it must therefore be directed to such persons as by law may be appointed to perform such duties. l\y section !>4 the judge" of the district is not nuule a judge of a Cemnty Court although he has 1S77-S l!i;i;iNA /'. Amkh. AlUilMKNT. I (2) ^0 Am. 50. (1) 1 I'rice -l.'fS. IMAGE EVALUATION TEST TARGET (MT-3) A V3 >? W *> ^>» / ^ vV^ <9 / 1.0 1^128 1 2.5 I.I IM 1.25 1.4 1.6 ^ 6" ► Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. MStO (716) 872-4S03 , now in question, has not heen superseded hy any legis- lative authority which has heen granted to us. In the commission which was granted to Lord Monck as Governor-General, as referred to hy Mr. Ilanlii, lliert is express power conferred to exercise: authority in (.asu.' requisite as to the appointment of commissioners of Oyer (1) 10 Co. r.8, 1). r S BENCH. ONTARIO coiRT OF (,>ii:i:ns r.KNCII. 727 1" i and Torininer, and otlicr lucrssary otlictTs and ministers 1^7 for the better administration of justice and putting the h law into execution. The jurisdiction of the Superior Courts of law in l\nn- land to issue a writ of iKdicas corpidi to this country, was held not to have been taken away by the creation of an iiuleijendent Legislature in Canada: Kx pavle Anderson ll). It was said in 7^y/. v. Birtraml (2), " It seems undeni- able that in all cases, criminal as well as civil, arising in places from which an appeal would lie, and where, either by the terms of a charter or statute, the authority has not been parted with, it is the inherent prerogative light, and, on all proper occasions, the duty, of the (Jiieen in Council to exercise an appellate jurisdiction, with a view not only to ensure, so far as may be, the due administration of justice in the individual case, but also to preserve the due course of procedure generally." These cases shew the power and right of the Crown in such cases. These commissions now l)efore us are general in their terras. They are not confined to the trial of any parti- cular persons, or of any particular crimes, but are expressed in the language of the ordinary commissions which are issued at the appointed times for holding such Courts. It appears commissions do not go to this judicial dis- trict at the usual stated times at which they go to the organized parts of the country. These commissions were issued for the holding of the Courts between Trinity and Michaelmas Terms in the '^ame period in which the ordinary Courts of that nature throughout the other par.s of the Province are held. Are these then general or special commissions ? KiilNA Amkic \VilKUKEN S BENCH. In A 131. Com., ITtli ihI., 311, it is said : "Sonutinits, also, upon urfront occasions, the Crown issues a s|niial or extraordinary commission of Oyer and Termiiur and Gaol Delivery, conlined to tliose offences which stand in need of immediate en(]uiry and punishment, upon whidi the course of proceeding is much the same as upon j^tn eral and ordinary commissions." In Chitty on Prerog., 77, it is said: " So the Kinij; luav issue special commissions for doing justice according tc law. in extraordinary cases requiring si)eedy remedy ami animadversion: though in ordinary cases connuissioiis of Oyer and Terminer can he granted only to the justices of either hench or to the justices in Eyre," referrini^ tn 13 Edw. I., St. 1, cc. 29, 30; 1 Wood, 97. Lord Cok. says: "Commissions of Oyer and Terminer are of threi sorts : one general, at the sui'. of the King, as to hoar and determine all manner of treasons, felonies, riots. trespasses," etc.; " another particular, at the suit of tin part}', and that in two sorts, one naming particularly tlu party grieved. . . Ex fintri qm-reld J>. <(ccepiiini>t; . . and the other is more general and of this form : . . E.v rlanioais qiicriiiinniis dircrnonim Jiomimnii. . . Tlit third is as well at the suit of the King as of the party. all in one writ or commission: " *2 Inst. -419. See also I\ X. B. 110 rt s,',i. Again, in 4 Inst. UVI, it is said: "Of commissions of Oyer and Terminer there he two sorts — one general, so called hecause it is general in respect of the persons, tin offences, and the places where the offences are committed." And at p. 1(')3, "Particular commissions of Oyer and Terminer, so called in respect of the persons, of tlu offences, or of the places, whereof you shall lind five pii- cedents in the register." The register referred to is F. X. li. 110 ct scq., bet'ori mentioned. H"' S BKNf'M. oNTAiuo COURT oF (.»ri:i:N S nKN'CIl. 7'2'.) A said : " Sonutiiur.-, m\ issues i> siH'cial • and Tenniiitr innl ices which Htand in ihmeiit, upon \\\m]\ same as upon gen- : "So the Kiiif,' may justice according tc ; speedy remedy and cases connuissions I only to the justices Eyre," retVri'ing tn od, 07. Lord Cokt- erminer are of threi he King, as to lioav sons, felonies, riots. lar, at the suit ofthr ling particularly tlu I ]). ((ccepiinuH; , . of this form: . . omimox. . . Tin ing as of the piuty, nst. 419. Sec also Of commissions of ;s — one general, so of the persons, tin ices are committed." issions of Oyer and ;he persons, of the Li shall tind the pre- )'. 110 s a •pecialor extraordinary commission of Oyer and Terminer iiid (taol Delivery, confined to those ofienees which stand iuneed of innnediate enrpiiry and punishment, and not founded upon any particular Act of Parliament, hut on the general prerogative of the King to grant them." See ;ilso Hawkins, hook ii. c. o, ss. 21 to 32 inclusive. Aecording to these opinions, and leaving out of con- -ideration at present the placr in which the commissions were to he executed, the commissions are general and not special. They have not heen issued upon any special agency, or for any extraordinary case re(|uiring speedy ;iuimadversion. In England the practice seems to he as foil ^.^ ._ — In 4 Blackstone's Com., 17th ed., 270, i. is said the lommission of Oyer and Terminer " is directed to the judges and several others, or any two of them; l)ut the judges, Queen's Counsel, and barristers having patents of precedence, or Serjeants at law only are of the quorum, -0 that the rest cannot act without the presence of one of them." In Cliitty on Prerogatives, 77, it is said: "though in ordinary cases, commissions of Oyer and Terminer can 1)8 granted only to the justices of either J3ench, or to the justices in Eyre." In 2 Chitty's Crim. Iiaw, 143, it is said: "The com- mission of Oyer and Terminer is under the great seal iirected to the Chancellor, President of the Council, Lord Tiesident of the Council, Lord Privy Seal, several noble- men, two Judges of the Courts at Westminster, King's 'ounsel, Serjeants, and Associates ; ])ut the judges, ser- vants-at-law, and King's Counsel therein mentioned are t)1ie of the quorum, so that the rest cannot act without the presence of one of them." i.'^rr-s 1 ! K' . I N A /', Amkh. Wilson, J. r i'i? 4 >]> I 730 ONTARIO COURT OF gUKKN S BENCH. h! : 1877-8 Regina V, Amek, Wilson, J. In p. 145 it is said; "The commission of General Gafil Delivery is directed only to the judges themselves, tlu Serjeants, the King's Counsel, and the Clerks of Assize and Associate." It is said in Cora. Dig. Justices, G. 2, '• The justices of Oyer and Terminer shall be justices of the one l)oiieh or the other, or justices errant by 2 Edw. III. c. 2; "' aiulin H. it is said by the 4 Edw. III. c. 2. "Good and discreet persons shall be assigned to deliver gaols thrice a year or oftener if need be." In 2 Westm. c. 29, it is enacted that "a writ of tre.-- pass (| ssing of a particular | grievance at the suit of tlie party," and "because there uiay be a mischief to the subject from such special com- missions which cannot be feared from general ones; for the party who sues out such a special commission may thereupon take out a writ to the sheritT, commanding him to arrest the goods supposed to be wrongfully taken away, mid to keep them in safe custody till some order be made coucorning them by the justices assigned to determine the matter, which may be very inconvenient to the per- son complained of. Neither can it be imagined that the jtatute intended to restrain general commissions to enormous trespasses, which could not l)ut hinder the due fxeeution of justice, which requires the punishment of all kinds of misdemeanors. But it is reasonable, indeed, that such special commissions should not be granted but upon urgent occasions; and accordingly we find prece- tlents for the superseding of them, where the King has lieen informed that he was imposed upon in granting them on a suggestion tliat the injury complained of was of a heinous nature, when in truth it was but a slight, inconsiderable trespass.!' The argument of Hawkins is that these statutes relate luly to .S7>f'<'i(/^ commissions "granted at the complaint if particular persons upon some great injury suggested to have been done to them," and not to general commis- sions, nor to what are now called special commissions, i>sued at the instance of the Crown on an extraordinary or very urgent occasion. It appears to me that the reasoning referred to is very -trong to supi)ort the argument maintained, and that the hject and purport of the statutes tend greatly to confirm I the opinion whieh Hawkins has expressed. But while the later writers state the law to be differ- jent.l would not feel it safe in a capital case to vary from the law and practice so adopted, if the English law I we to govern in this case. l«77-8 l\K- trict, one of the quorum ; or I should rather say, as ail who are named are of the quorum, one of the numlRi- j •who, equally with the others, might hold such Courts. But independently of the prerogative right, I am very ^ IlKM li. (iNTAIMO rorUT OF (.(I'KKN S lUCNCII. ■:]t] own l"'^isliitiiin mh r. C. r. l-jS, ,•,. V I'vovincc. 1, provides cxiivcs^ly to provisional jiiili- whom tlit'V shiill !»■ 1 of adnrmistnitinii io iire to 1)1' '■ tiiu- wards, if nccis^arv, » wliieli, !is a iiiattir en'H writs shall run [ Ontario : s. HS. Q such conniiissi()ii> ized districts arc \v<\ hat the general juv- with in issuing sikIi cessary to prDvide ;i e 2 Westin. c. 'ill, nr i; issue of these com- :d that the unorj.'aii- judicial district only. ■ the due admiuistni- ssiou should issue in persons as Her Ma- [occasion. Il issue a connnissinu :ial district by pv^'"- ,ons therein nanul the judj^'e of the di- M rather say, a;- ail one of the nunil»r| hold such (,'()urt>. tive right, I am very much inchned to think tliat Mr. McCrea, as the jnd;^e ,,f the provisional (hstrict, haviii}.,' ijy s. !ll of c. liis, •the same powers and duties as a (,'ounty jud^e in L'p- n-r Canada,"' mij^hthave hoen appointed unch-r c. 11, s. •J, in like manner as a County judj,'e, to act as commis- •ioner. He is not a Cmtiitu .iud<>;e, hut a I tistritt Jud^'e : s. :',. Jle possesses the like powers wliicli a County :ii(l),'e does. He holds a County Court, presides at the \ssions of the Peace, and holds J)ivis:.)n Courts, and aay exercise all powers under the Insolvent law which ;i County judf^e can do. He is in ell'ect a County ulije in all but name. And therefore it is, 1 think, iiaving "the same powers and duties as a County iulKe," he may even under c. 11 be nominated to hold ilie Courts under the commissions in question in like aanner as a County judge might he nominated. There is another view of the case to be consideved. These commissions consist of two jmrts : Firstly, of that 1 art relating to the holding of a Court of Oyer and Ter • miner; and secondly, of that part relating to the hold- ing of a Court of General (laol Delivery. In Cora. Dig. Justices, H. 2, it is said that by 4 Edw. 111. c. 2, " discreet persons " are to hold the Court of 'itneral Gaol Deliverv. I am not aware of any other "legislation on that sub- Iject before the creation of our own constitutional [wers. But for the enactments of the Legislature restraining the exercise of the power of the Crown in such cases, Her Majesty might appoint by such commissions any [one "to whom she will at her pleasure : " 2 Inst. 420. It is also well settled that the same persons having I the different commissions of Oyer and Terminer, and of Genual Gaol ])elivery and of the Peace, may proceed |{ki.in.\ Amkk. WiUciii, .1. 7."}4 ONTAIUO ((HUT OF (^L'KKN S IIKNCII. ' ♦* ;■ ■■ i\:^-\:< IH77-H KK(1INA r. Amkh. WilHOIl.J. by any oiu' of tlioin where they have no jurisdiction \,\- anotlier : 1 Cliitty's Crim. Law, 1 12 ; 2 Hale's 1'. C. M: Hawkins, bk. ii. c. 5, h. 21. If Mr. ^TcCrea could not act under the ciuuiiiissioii of Oyer and Terminer, I see no reason why he ini;,'lit imt act under the other part of the conimission relutiii;,' tn the gaol delivery. I may therefore say that the cominiHsinus arc, 1 think, valid under Con. Stat. U. C. c. 12H, l)y tiu' pit- rogative right and power of the Crown to issue tlieiii in the course of the due administration of justice in that provisional judicial district. I think, also, they are valid under Con. Stat. C. ('. i, 11, as rightly directed to Mr. McCrea as one of the com- missioners, because he is in effect in all but name a County judge, and he has " the same powers and diitii> as a County judge." I do not say because the judge of the said district has the same powers and duties as a judge of the I'ouiity Court, that he is a County judge, or that it would be proper to describe him as one. The meaning of it is, that he may exercise these pow- ers and duties by his own title and designation of such district judge. Although justices of the peace have a clause in their commission ar/ audiendnm et tcrmindndnm felonies, etc., yet they come not under the name of justices of Oyer and Terminer within those xVcts of Parliament that mention justices of Oyer and Terminer : 2 Hale's P. C. 2;i. Because there was a commission of Oyer and Ter- miner known distinctly by that name, and the commis- sion of the peace known distinctly by another name: 91 Co. 118 /a ; 3 Inst. 103; and because that designation j applies to those who have general commissions, ami nut to them who have but a special commission only as I -; iiKNcii. ONTARFO COIMIT oK (,)rKKN' S HKNcH. 735 no jurisdiction liy 2 Half's I'. C.ni: ■ the commission of 1 why he ini^^ht nut mission r(.'liitin«,' tn 'ommissions aiv, 1 c. 128, by the pit- )\vn to issue them in 1 of justice in tlmt sr Con. Stilt. V. (.'. c 311 as one of the uoiu- , in all hut uiuuf a le powers and diitiis I the said district has udge of the County or that it would be exercise these po^Y• designation of such ,ve a clause in their iitdiiin felonies, etc., justices of Oyer ami j lament that meutiou ] lale's P. C. 23. m of Oyer and I'lr- ,me, and the commis- by another name : 9 1 ,use that designation iommissions, and nut commission only a= iusticos of the peace have: Wilson's Case, Cro. Kliz. .101. I think it cannot bo said that cither comniisHion cs- tiiblislicd Courts of Oyer and 'rerniincr and (lencral ii!U)l Delivery. These Courts wen* already estal)lished lu and throughout the Province, and all that these coni- :ais8ions hpve done was to nominate [)ersons to take ,aul hold such Courts. If that he so, and I think there "s no doubt of it, the omraission issued at Ottawa was not an excess of power, -von if it created a judge or judges, for the (lovernor- ireneral does possess such a power. There has manifestly been a fear of there being an im- perfect exercise of power by the issue of a commission from only one of the two powers, and therefore it is that the Ottawa as well as the Ontario authority has each issued a commission. The Legislature of Ontario, by the B. N. A. Act of 1867, s. 02, sub-s. 14, has the exclusive power to make iiws in relation to " the administration of justice in the I'rovince. including the constitution, maintenance, and I organization of Provincial courts, both of civil and riminal jurisdiction." But there has been no legisla- lion liy Ontario declaring that the Lieutenant-Governor may issue commissions for holding Courts of Assize, etc. By s. ()5 of the same Act, however, the power and [authority to issue such commissions were vested in and exercisable by the Lieutenant-Governor of Upper I Canada before the legislative union of Upper and Lower Canada, and were vested in and exercisable by the Gov- I ernor-General after that legislative union up to the time of the Dominion Act taking effect, and such power and [authority were, at the taking effect of the last named Act, capable of being exercised after that Act in relation to the Government of Ontario, and therefore they vested in 1H77-H IvKCINA r. Am KB. Wilsdii,.!. I! I 1N77-H -^^^^ l!K(ilN.\ r. A.MKK. Wilson,. r. (fii! 7.S()wers and authcn'ities of the (iovirnoi- (leiicral, as s. (Jf) is worded with respect to the power ninl authoritioH of the Lieutenant-' lovernor. It would appear, theretVu'e, that they can i^ach issuf i eonimissions of this nature. Sec. 9(5 of the Act, which empowers the (ioveiiior- (ieneral to appoint the jndges of the Snperior, District and County Courts in each Province, does not apply uj terras to commissioners who are to act as judges of tlioi Courts of Assize, etc ; so that his power to appoint such persons must be exercised under s. 12, above mm- tioned. I agree, therefore, in the way in which the questions] have been answered by the Chief Justice. Haruison, C. J. : — Although, under our system of government, tliej monarch has long since ceased personally to actasaj judge, the administration of criminal justice still tea] great extent, pertains to the prerogative of the Crown. The monarch may, by virtue of this prerogative, tx-j cept so far as restrained by Act of Parliament, consti- tute what number of Courts and in what place.< sliej pleases : Chalmers' Opinions, 195, 484, 542, 044. The issue of commissions of Oyer and Terminer wA General Gaol Delivery, both general and special, still , 'I ■^ iir.Nt'ii. oNTAUIn (OUirr or (^UKKN S HKNfJI. 7.S7 ti'niint-("<»vt nmr (,f Act. be liltlf (l(»iilittliiu lius the powiv uml lid t'ouvts of Assizf, llbt of such [n)\\v\ nun- is, that s. 12 of un' mimner, with it • OS of the (iovenioi- [)ect to the powt r lUi'l nor. they eiiu each issue )0\vevs the dovornor-] he Superior, Distvi.' ce, does not appl) uii act as judges of the is power to apiioint| er s. 1*2, ahovc nun- which the questions] iistice. of government, tliel personally to actasal linal justice still, to a| ;ative of the Crown. this prerogative, «•] >f Parliament, constij d in what places sh^ , 484, 542, r)44. ■er and Terminer aD(! teral and special, stil prorced from the Crown, sul)ject only to sueh restraint ih77-w us till' Legisliiture may have imposed on the exercise of Ukoina till' prerogative. Amkr. While tlu' ordinary or general coiniiiissions must he HuniH^, c. .i. issued only " to the justices of fithur hcneh or the jus- ticoft in I'^yre," this limitation does not appear to extend to special commissions, or commissions in whatever form issued for doing justii'e according to law on extraordi- iiiiry occasions." — .S'cr Cliitty on Prcrog. 77 ; Hawkins' I'.C. I)k. ii. c. 5, s. '21 to ss. ;VJ, ;}!, !{7 inclusive ; 'i Hale-s I'. ( . '1-2. rile issue of such a commission to soin* place where none of the ordinary justici-s of the '' iperiov C'ourl of law could he either found or exi)ecteo io hi- found nnist, i'l lie absence of legislative prohil)ition, -.till rest on myal prerogative. — Sir 1 Chitty's dim. Law, 14!> ; 4 I'.l. Com. 3rd ed. HU). (iovernors of eolonies are in gem ral invested with this royal authority, rrlimi picir, their acts on behalf of tlu- Sovereign are good. .\nd unless their acts on be- half of the Sovereign are contrary to the law of the land whore exercised, the Sovereign alone can disallow them. ~Saj Chitty on Prerog. 154 ; Chalmers' Upinions, 288, m, 484 ; Porsyth, h\7. The prerogatives of the Crown are not to be deemed IIS abridged or restricted by mere general words of legis- liitioii. The language must be express and free from ;iiul)iguity. If the language used bo consistent with the ixistence of the prerogative, it must be held that the [irerogative is not affected. It is to be presumed that the Legislature does not in- tend to deprive the Crown of any prerogative unless it ixprosses its intention to do so in explieit terms or makes the inference irresistible : Willton v. Berkley (1) ; Rex 47 (1) Plow. 223, 239. V r 738 ONTARIO COURT OF QUEENS BENCH. i; .' 11!^ HI- 1877-8 Ukcixa Amkh. Hnrrinoii, ('. J N Cook (1); Attorney-General \. Newman {^) \ Meg.y Bevtrand (3) ; lie(j. v. Davidson (i) ; Maxwell on Intir l)retation of Statutes, 112, 118. The Legislature of the former Provmce of Uppei Canada and of the late Province of Canada, whili' mak ing provision for the issue of ordinary commissions o Oyer and Terminer and General Gaol Delivery, wne most careful not to be understood as interfering with the prerogative of the Crown as to the issue of special (.'om- missions on extraordinary occasions. The declaration in the Act of 1822 is, " that nothiiic herein contained shall prevent, or be construed to pre- vent, the Governor, Lieutenant-Governor, or person ad- ministering the Government of this Province, from is- suing a special commission or commissions for the trial of one or more oft'ender or offenders upon extraordinary occasions, when he shall deem it requisite or uxpedicnt that such commissions should issue : "' 2 Geo. IV. c. 1, s. 28. Similar cautious language was used in the Act ot 1837, 7 Wm. lY. c. 1, s. 8; the Act of 185(), 19 Viet.i. 13, s. 152 ; and the Act of 1857, 20 Vict. c. 57, s. 80. These Acts are the origin of s. 6 of Con. Stat. V. C. e. 11, to which reference was made on the argument. The only one of these Acts which, prior to the unimi of the Provinces of Upper and Lower Canada, made any allusion to the issue of ordinary' commissions for new m outlying districts, was 7 Wm. IV. c. 1, s. 8, which con tained these words : " Nothing contained in this Ai t shall render it necessary to hold any court in any ne ^ district of this Province lately organized, or hereafter u be organized, at an earlier period than is or may be pro- vided in the Act erecting such new district." (1) 3 T. R. 519, 521. (2) 1 Price, 438. (3) L. R. 1 P. C. 520. (4) 21 u. c. q. 15. n. NS HENCH. \ewmun (2) ; licj. va I ; Maxwell on Inteij Province of l'[)\m Canada, while mak] lary comnii.ssions oj Gaol Delivery, \vti6 s interfering witlitlia issue of special com-j '22 is, " that notliinn be construed to pre-l vernor, or person adn s Province, from i»-l missions for the trial) upon extraordinary •equisite or expedieiitj p : •• 2 Geo. IV. c. 1, used in the Act ot'i of 185(), 19 Vict. I . Vict. c. 57, s. 80. Con. Stat. U. C. c. ihe argument, prior to the iuiii)ii Canada, made any I iraissions for newoij 1, s. 8, which con- tained in this Alt court in any ne>\ ized, or hereafter tu m is or may he pro- istrict." ») L. R. 1 P. C. 520. I) 21 U. C. q. ]\. 41. ONTARIO COURT OK (^UEKN S HKXCH. 73! t In the Act which was passed after the union of the Provinces of Cpper and Lower Canada, KJ Vict. c. 17(), making better provision for the administration of jus- tice in the unorganized tracts of country in Tpper Canada, there is a similar provision. It is as follows : '' It shall be lawful for the Governor of this Province from time to time, and at all times hereafter, during the continuance of any such provisional judicial district or provisional judicial districts, whenever it may be deemed advisable and expedient to do so, to issue the necessary commissions authori:dng the holding of Courts of Assize and Nisi Prius, Oyer and Terminer, and General Gaol Delivery, in any such provisional judicial district, or provisional judicial districts so formed as aforesaid:" s.2. This enactment is the origin of s. J)8 of Con. Stat. U. C. c. lis, to which reference was also made on the argument. While some portions of the Con. Stat. U. C. c. 11, appear to apply only to the settled parts of the Province where there is a complete organization of counties, the whole of Con. Stat. U. C. c. 128, applies to what are called or known as "the unorganized tracts." And while the former expressly affirms the right of the Governor to issue special commissions of Oyer and Ter- miner, or of Gaol Delivery, for the trial of offenders when- tver he deems it expedient, the latter in no manner pro- hibits or interferes with the exercise of that prerogative. The only conclusion to be drawn from these premises is, that the prerogative as to the issue of special commis- sions of Oyer and Terminer, and General Gaol Delivery, exists in all its intep'ity in the case of what are now known as the unorganized tracts or provisional judicial ilistricts. If in this case exercised by the proper colonial authority, it has certainly been wisely exercised by in- luding in the commission, as one of the quorum, the 1H77-.- Rki.ina A.MKK. Hiiri-ison, C. J. j i > I'f 1'f r ■ 1 ^;i' '1 it 'll * f ^ 1 1 1 1 t ■ l\\M^^ I Hi!: i 740 ONTARIO COURT OF QUEENS BENCH. 1K77-H judge of tlie provisional district of Algoma, wlio by iiKiiNA statute has all the powers in that district possessed bv A M KH. any County judge in the organized territory of this Prov- Huni^, ( .1. ^^^^ ' ^^^- ^tfi-t- ^- C. c. 128, s. 04. The exercise of the power by the Governor-General of the Dominion, or by the LieuteUeUit-Governor of the Prov- ince, is not inconsistent either with sub-s. 27 of s. ill, or sub-s. 14 of s. J)2 of the B. N. A. Act. The first empowers the Legislature of the Dominion to make laws in relation to the criminal law, except the constitution of the Courts of Criminal Jurisdiction, but including the procedure in criminal matters. The second empowers the Legishiture of the Provinco to make laws in relation to the administration of justice in the Province, including the constitution, maintenance. and organization of Provincial Courts both of civil and criminal jurisdiction, and including procedure in civil matters in these Courts. But neither Legislature has as yet attempted to inter- fere with the prerogative as to special commissions in the case of the unorganized tracts of country or provisional judicial districts ; and when either Legislature shall at- tempt to do so, it will be time enough to decide which, under the B. X. A. x\ct, has the power to do so. There still remains the question as to where, since con- federation, the prerogative power exists. The B. N. A. Act, in s. 9, enacts that the executive government and authority of and over Canada "'is hereby declared to continue and be vested in the Queen." The power being a prerogative one, can only be exer- cised by the Queen or her representative. The Governor- General of Canada is the only executive officer provided for by the Act who answers this description. The Act, however, bj' s. 14, makes it lawful for the Queen, if she see fit, to authorize the Governor-General from time to time ONTARIO COUKT OF (^UEKN S IJENCH. 741 'Hi Mgoma, who by rict possessed by itory of tins Prov- ivernor-General of vernor of the Trov- sub-s. 27 of s. '.)!, et. of the Dominion to lal law, except the bl Jurisdiction, but natters. ire of the Trovincf listration of justice utioii, maintenance, s both of civil and f procedure in civil , attempted to intev- l commissions in the imtry or provisional legislature shall at- |ugh to decide which. [er to do so. |s to where, since con- ists. Is that the executive f\ over Canada ''is ■ested in the Queen." .e, can only be exer- Itive. The Governor- | Ltive officer proviaed iscription. The Act, Ir the Queen, if she see ■al from time to time to appoint any person or persons, jointly or severally, to ih77-h be her deputy or deputies within any part or parts of kkiuna Canada, and in that capacity to exercise during the plea- a.mku. sure of the Governor-General micJi of the powers, n,,,,-^, c. j authorities, and functions of the Governor-General us the Governor-General deems it necessary or expedient to assign to him or them, subject to any limitations or directions expressed or given by the Queen. The commission used by the Dominion Government is tested in the name of the Honourable William Buell Richards, deputy of the Governor-General of Canada ; and as there is no statement to the contrary in the case, I must assume that the Queen authorized the appoint- ment of a Deputy Governor, and tliAt the prerogative power in question was conferred by the (fovcrnor- (ieneral on the Deputy Governor without any limitation or direction on the part of the Queen, and so that it has been exercised by the proper authority. I am therefore of opinion — 1. That Judge McCrea was legally eligil)le and legally competent to act under a commission of Oyer and Terminer and General Gaol Delivery propt^rly issued. •2. That such commission was properly issued l)v the Deputy Governor of the Dominion of Canada. 3. That the appointment and acting of Judge McCrea under the iast-mentioned commission was legal. I express no opinion as to the authority to issue sucli a commission cither under Con. Stat. U. C. c. 11, or • Con. Stat. U. C. c. 126, independently of the prerogative of the Crown, or as to the Government empowered to issue such a commi.^sion when issued under either of these statutes. In my opinion the conviction must be alUrmed. Armour, J., took no part in the judgment, not having been present at the argument. ONTAKIO COURT OF QUEENS HENCH. I , ;. I ■ /I h : 1878 ONTARIO COURT OF QUEEN'S BENCH. RkGTKA ''. L.VAVRKNCE. [lieportcd 4S U. a (,K B. 10.'/.] B. N. A. Ad, /.sv;,", *-. .7?, xnh-^s. .s\ I'l I'oircrof Lira} Lriishihin — Criminal Lmr. A Provincial Le^islaturo cannot legislate witli respect to otFenccs of a criminal nature, except where such legislation is re()iiirtMl for the direct enforcement of a law of tlie Province made in re- lation to a matter coining within its exclusive jurisdiction. In legislating in regard to a matter within Provincial jurisdictitni. a Provincial Legislature has no power to enforce its law hy provisions respecting the trial and punishment of otfendt is in respect of acts which would be criminal offences at common liiw Section 57 of the Liquor License Act of Ontario, R. S. (). c. 181. by which it was [)rovided that any person who, on anj' pmse- cution under that Act, tami)ered with a witness, or induci-d or attempted to induce any such person to absent himself or t > swear falsely, should be liable to a penalty of S50, was, tliere- fore held to be invalid. Appeal from a judgment of Gwynne, J. On the lOtli of January, 1878, one Richard Lawrence was eonvieted before the police magistrate of the city of Toronto for unlawfully inducing certain witnesses in a prosecution under the Liquor License Acts to absent themselves. The conviction was made under R. S. 0. c. 181, s. 57. Various objections were made to the conviction, and amongst others : — That the tampering wuth a witness is a crime indepen- dently of the Local Act, c. 181, s. 57, R. S. 0., under which the conviction took place, and that therefore pro- ceedings should have been taken under the Dominion Statute. ONTARIO COURT OK (,tUKKN S HKNCII. 74:{ ;'S BENCH. rof Loci'l 7y-3;,s'|(((i' 7 Eichard Lawrence trate of the city of ain witnesses in u ise Acts to absent lule under U. 1^-0. ;be conviction, and is a crime indcpen- 57, R. S. 0., under that therefore pro- ider the Dominion That the Act under which the conviction was had, namely, B. S. 0. c. IHl, s. 57, is ultra rircH of the Local Legislature, inasmuch as it professes to enact proceed- ings and punishment in respect of what was already a crime, or declares that to he a crime and punishable in an exceptional manner which was not a crime before, and in either case is iilfni (w'/v.s. Gwynne, J., gave judgment d) (Feb, 22nd, 1878 1 quashing the conviction, and on the same day ^Ir. Fcntoii obtained a rule nisi by way of appeal. Mr. I)l(«l:xt()trabling it, but all such changes are jealously watched. It is important that the law of a country as to crime land criminal i^rocedure siiall be uniform, so that the [right.s of all citizens shall be, as much as possible, (1) pa»t, p. 7-51. 1S78 I;k(,ina I-.\\vukn(;k. Statkmkxt, tf.' I 744 ONTARTO <01'HT OF QFKEN's BENCH. I! -if i i:|; , ■I I M .jm iiU ^'1^ 187« C'4iially respected, and the public wrongs of any eitizoii RK(iiNA ii3 much as possil)le, eciually jiunished. Lawkknck. 'i'^^6 Imperial Legislature, when uniting the colonits HarriBoiT, c. J "*^^^' forming the Canadian Confederation, wore inriu- enced by these considerations, for it is expressly declared in the B, N. A. Act that one of the subjects excliisivilv entrusted to the General Parliament, or Parliament of the Dominion, shall l)e "the criminal law," includinf " the procedure in criminal matters:" Sec. 91, sul)-,s. -j;. It is supposed that to this there is an excei^tion in that part of the same Act which enables a Provincial Parliament to pass laws for the imposition of punishment l)y tine, penalty or imprisonment, for enforcing any law oftli. Province made in relation to any matter coming within any of the classes of subjects entrusted exclusively to the Provincial Legislatures, s. 92, sub-s. 15 ; but this, when closely examined, will not be founa to be so mueh an exception as the creation of a new rule not necessaiilv in conflict with the complete exercise of the Dominion powers. ^yhile two legislative bodies exist, each having dis- tinct and exclusive legislative powers, there must bt care exercised by each to avoid encroachment l)y either body upon the exclusive powers of the other, and thi- must be prevented by the Courts, whether the encroach- ; ment assume the guise of an honest neutral, or the garb of an aggressive enemy. It never could have been the design of the Imperial Legislature, as manifested by the language which it ha used in the B. N. A. Act, to permit any legislative body, under pretence of exercising only its own exclusive legi lative powers, to cover ground which in truth by the Constitution belongs to another. The whole domain of crime and criminal procedure U the exclusive property of the Dominion Parliament, au^ RmhI: I ^ HENCH. ONTARIO COURT OF QUKKN H BENCH. 745 digs of any citizen, to allow the Parliament of a Province to declare that an i^"*^ act which, by the f^'eneral law, is a crime, triable and kkoina pimisliahle as a crime, with the ordinary safeguards of lawkemk. the Constitution affecting procedure as to crime, shall Hani^, c. j. be something other or less than a crime, and so triable before and punishable by magistrates as if not a crime, would l)e destructive of the checks provided by the gen- ftal law for the constitutional liberty of the subject. Tht're are many acts, not being crimes, which are triable before and punishable by magistrates, which, although called offences, are not crimes, and which by the proper legislative authority may be made the sub- ject of summary magisterial jurisdiction, either with or without appeal, but these are not to be mistaken for acts in themselves crimes, and the subject of indictment and of conviction under indictment, either at the common law or by statute. Such acts as these may, by the Pro- vincial Legislature, be made the subject of punishment by fine, penalty, or imprisonment, when this is done for the purpose of enforcing any law of the Province made in relation to any matter coming within any of the classes of subjects exclusively assigned to the Provincial Legislatures. One of the subjects exclusively assigned to the Pro- vhicial Legislatures is the right to make laws as to " shop, " saloon, tavern, auctioneer, and other licenses, in order to the raising of a revenue for Provincial, local, or muni- cipal purposes." Where the purpose of the Provincial statute is not to raise a revenue for any such purpose, but to suppress some public vice, even by the sacrifice of revenue, the Act is not one which can be validly passed under the words whicU we have quoted, and, unless held to be the exercise of mere police or municipal power, is void. Where the effect of such a statute is to interfere with M r»i' I'l 740 ONTARIO (CURT OF (^UKEN S HEX( U. 1878 the trade and commerce of the Dominion, it is n. dirtet Rkoina encroachment upon tlie powers which exchisiveiy ]k'\u\\„ Lawrenck. *o *^^® Dominion or general Parliament of the countrv : Harrison, C. J. ^' ^^' SUl)-8. 2. The Lef^islature of the Province of Ontario liav. passed among the Revised Statutes of the Province. "An Act respecting the sale of fermented or si)iritu()iis liquors." It prohihits sales without licenses, makes pro- vision for the issue of licenses, for a revenue to be de- rived hy the issue of licenses, for the regulation of per- sons licensed, and for the punishment of persons violat- ing particular provisions of the Act which are intended to he for the enforcement of the Act : See ss. 39, 10, 4:j- 45, 51 and 53 of the Act. All prosecutions for the punishment of any oflViice against any of the jjrovisions of these sections, or any section of the Act, for the contravention of whi(di a puu- alty or punishment is prescribed by s. 51, whether the prosecution is for the recovery of a penalty, or for pun- ishment by imprisonment may take place before any two or more justices of the peace : sec. <)8. All prosecutions under the Act, other than those men- tioned in the preceding section, whether for the reeoven of a penalty or otherwise, may be brought and heard be- fore any one or more of Her IMajesty's justices of the peace : sec. ()J). Among the prosecutions covered by the last section is the one now before us, and which depends for its validity upon the constitutionality of sec. 57 of the Act. This section is as follows : "Any person who, on any prosecution under this Act, tampers with a witness, either before or after he is summoned, or appears as sue!) witness on any trial or proceeding under this Act, or by the offer of money, or by threats or in any other way, either directly or indirectly, induces or attempts to BENCH. ONTARIO COI'RT OF QUKKN S HKNCH. 747 lion, it is a dinct exclusively Iteloni; nt of the comitrv: of Ontario luivc the Proviuec. ".\n ited or spirituous !censes, makes pro- a revenue to be (k-. regulation of per- t of persons violat- •hich are intended See ss. ;31», 10, 4:J- nt of any ollVnee Bse sections, or iniy ion of wliicli a ptu- i. 51, wlu'tlier tlie nalty, or for pun- ace before any two er than those iiieii- ler for the reeoverv ];ht and heard be- y's justices of the the last section is nds for its validity the Act. erson who, on any s with a witness, or appears as such der this Act, or by in any other way, s or attempts to nduce any sncli person to absent himself, or to swear Ijlsely, shall be liable to a penalty of 850 for each i'Dce. The constitutionality of this clause is called in ([ues- I ;i,iu, because it is atlirmed that the acts with which it Icals are, and each of them is, the subject of an indict- aeut by the criminal law, and so not the subject of the urcise of power by the Provincial Legislature. If this contention be well founded in fact, we are of ■pinion that it is a good contention in law. No effort was made to sustain the clause under the Iwwerof the Provincial Legislature to make laws as to laiinicipal institutions in the Province (13. X. A. Act, ,[)'2, sub-s. H), probably because it does not appear in :iic Municipal Act (Pv. S. ()., c. 174) ; and whether or |:ot, we are of oinnion any such attempt would be futile. By the criminal law it is clear that every step towards I ■misdemeanor by an act done is itself a misdemeanor; ;,';. V. Chapniiin (1) ; and this, whether the offence was Ttriited by statute or was an offence at the common law: IL'm' V. liiifjrr (-2); Ii>.r v. Citrtivrifiht (3); Fux v. Ui-rirk (4). Subornation of perjury is a crime independently of ;i;itute, but is expressly made so by 32 and 33 Vict. ,2:{, s. 1, D. He who endeavours to stifle the truth and prevent the 'm execution of justice, is punishable as a criminal : Hawk. P. C, 8th ed., Bk. 1, p. 04. So he who dissuades, I r endeavours to dissuade, a witness from giving evi- idice against a person indicted : Ih. This is the law according to 1 Eussell on Crimes, 5th "i. p. 3()1 ; Stevens' Digest of Crim. Law, p. 97 ; and 1 lUishop's Criminal Law, 6th ed. s. 408. isrs liKdlNA V. L.WVKKNC'K. II irrisoii, C, J. (1) 1 Den. C. C. 432. (2) G C. & P. 368. (3) E. & 11. C. C. 107. (4) 7 C. & P. 795. . * m i \:- i.l !t i,' '■' M ■ 1 i|/!' f ill-" i f n > . ! il '■ 74.S 1K7H Hkoina 1'. Lawhknck. llurrison, (', J, • oNTAiuo corin' of qukhns iikncii. The Ibriu of the indictment for diHHiUKlin^' n witu,,. from fjfivinp; evidence against a person indicted will 1m. found in 2 Chitty's Criminal Law, p. •235. One test would be whether, under the law which ren- dered a witness incompetent on the ground of infainv (Com. Dig. Testmoigne, A. 4), a person convicted i if '| tampering with a witness either before or after he j^ summoned or appears as such witness on any trial or proceeding before magistrates, or who, by the offer nf money, or by threats, or in any other way, directlv i.r indirectly, induces, or attempts to induce, such persmi to absent himself or swear falsely, would ])e rejected as infamous. The rule was, that it was tlie crime and not the jjunl ishmcnt which made the person infamous and iiicompc.] tent as a witness: Pciidock y. Mdchctider (1) ; I'r'nhlh'-i'i Case (2). Persons convicted of the followiii",' (itlencisl have been held infamous : petit larceny : Pcntlork v.| Machender (1): conspiracy: Priddle's Case (2); auij tampering with a witness: Clanceya Gdne (8). Clancey's Case (3) contains some ol)servati()iis iif| value in this case. The point arose in this raaniur; Upon a debate in the House of Lords, on the 15tli ofj December, 16015, relating to the Bill for attaintini; Sir John Fenwick of high treason, the opinion of all the] judges then present was asked whether one CliUKty,] who had been convicted of the misdemeanor of aetiia! giving one George Porter 300 guineas and proini.sin;;! more to withdraw himself into France, thereby to pro- vent his further evidence against Sir John Fenwick ami others, might be admitted as a witness. And it was ad-| judged that Clancey was incompetent, " for his crime was a base and clandestine endeavour to obstruct the (1)2 Wils. 18. (2) 1 Leacli, 442. (•i) Fort. 208. lUONCli. UNTAHKI COIRT OK (^IKKN S HKNCIl. 74!) suadinj^ !> wituus- on imlicti'd will li,. 235. the law whicli reu- 2 {^'round of infamy jrson coiivicted of! fore or after he is] less on any triiil nr tio, by the otTcr nfl ler way, (hvoftlynr nduco, such porsun .voiiUl l)e rojei'ted us] le aiul not the i)un- imous and iiieoiupt- \i')iih'r (1) ; I'ri'UJrii e following' (>ffeiict^^s| irceny : Pi'mlorl: v, le's Case (.2) ; ainl] Cdse C?). ne o])servati()ns nf| 3se in this inaiiiur ords, on the l.ltli d for attaintin<,' Sir] opinion of all tbej ether one Claneey, ameanor of iU'tuallyj eas and pronu.^in^j lice, thereby to pvt- John Fenwiok aul ss. And it was ad^ mt, " for his crime lour to obstruct tli« public justice of the kinf,'doni, not hy discoursing^ or ar- i«7h i-uing with a witness, or en(h'avourin<^ to convince him kkcina I with reason, hut by downri^^ht bribery and corruptin;^' FiAWKKNCK. lliiiii with money, wiiich no man wouhl attempt but a ii,i,.ri^, c. J. 'niiso, mean and infamous rascal." This case was, in 1H2(). followed in nitfihcl v. Barrett 1 i, where the person offered as a witness, to cli tlie witiU'SH is cmi^ the course of justice The mi((liiitiiilc ofiha attempted to ol)stnu'i pervert is thr siuud rh treason or a misdei I dechirecl to be offonci'^ Act of Ontario, wtrril ;riminal offences iit tlid ;he power of a PiDvinj under " Municipal hij of being passed to cu] ,avern, auctioneer an(l ,ising of a revenue foj ■poses. .pinion of Mr. Justicj ,f the Liquor LiceiisJ ;hat a conviction M (2) 17 U. c. c. r. 534. UNTAllIo CorUT OK Vl'KKNS UKNCH. 751 JrixiMKNT OK (jIwynnk, J. {hrfiiri- whom thv ca.tc rainc in the Jimt i.H( pnwor of tlio Liiciil Lo^isliiture to puss any livw intlicting "- iiiinislunent uimhi any purHon fur thu ooinmiHsioii of any iiut of thu lutureof ii crinio, is to bu foiuitl in tho lotli siil)-«uc. of thol)2nd soc. ,t tiio B. N. A. Act, Ity wliicli it is cnactod tliat tho Luj,Mslaturo in iMO h I'ruvinco may niako laws in relation to tho ini[)o8itiou of pun- by ftmeni oy nne, ponalty, or nnprisonniont, for onforciiii,' any law of the Provinco made in relation to any matter coming within any ,,f the classos of subjects onumoratecl in the D'Jnd soc. Ill the !>th suh-sec. , which is the ono with which we have to deal herr ^ ' find the Local Ijogishitiiro empowered to make laws in rtliii. .1 to shop, saloon, tavern, auctioneer, and other lioen*«'a, /h nhr to flu- niitinii of a reveaur for Provincial, l(»cal and munici]>al ■luriioscs, Takini,' these two sub-sections together, tiie result ap))ear8 M be tliat, in order to the raising of revenue for Provincial, !al or municii)al purposes, the Legislature may pass laws im- :'08iiig a fee or duty for tavern and other licenses ; and for enforcing such law, they shall also have power to impose ;iumshment by tine, penalty, (jr imi)risonment. Now, what is ilw legitimate construction of the term "/'"' enforciwj" a law ii'latiug to tavern and other licences, in order to tho raising t 11 revenue for Provincial, local or municipal purposes '. The oltject of the law is the raising of a revenue. In order '"the raising of n rcceniir, tho Legislature may pass a law imposing I fee [() be paid for tavern and other licenses. For enforcing this kw— tliat is to say, as it appear^to me, for enforcing obedience to this I aw -the Legislature may prohibit tho sale of spirituous liquors ■Jtherwise than is prescribed in the license or authorized by the law ; ad for any violation of the terms of such license, or of the law re- j.nlatiiig the granting licenses, the law may impose a tine, penalty, r imprisonment, thereby enforciny obedience to it. Now, tho 57th and 59th ss. of c. 181 of tho Revised Statutes, I which are the 42nd and 43rd ss. of 37 Vict. c. 32, and which, to- hether with the G5th sec. of c. 181, identical with the 21st sec. of 40 rict. c. 18, are the clauses relied upon as supporting this convio- jiim, enact that "any person who, on any prosecution under this .1, .■.. . (- ! 1 i W 7o2 ONTAIllO COURT OF QUEKN's HKNCH. 1878 Act, tampers with a witness, eitlior befcire or after lie is .suinmonei ~'~' or appears as such witness on any trial or proceedin;,' luiiliT this \ct i: or by the oH'er of money, or by tlireats, or in any other wuv, eitlie iA w ithx ch. ,iji.e(.jiy Qj. indirectly, induces or attempts to induce any .such per Ciw yiiue , .T. son to absent himself , tn- to swear falsely, shall he liahlu t.. u pen alty of Hfty dollars for each offence : [\7 Vict. c. '.\'2, .s, 4'j •. i,,:,! [ the ti.ie be not paid, and no sufhcient distress is fouml tn satisfi the conviction, then it shall bo lawful for the justices m- imlic, magistrate to (jrder that tlie person so convicted be imprisunud ii any common yaol, etc., within the county, etc., for any [turidd n,, exceeding thirty days, unless the penalty and all costs are sn, hum paid • ;:57 Vict. c. '.V2, s. 43. And by 40 Vict. c. 18, s. 21, it is enacted that all infonu;iti(]iis or complaints for the prosecution of any olk-nce against any <<{ tin provisions of this Act, or of the Acts thereby amended, indiidin'j 37 Vict. c. 32, shall be laid or made in writing, etc., l)ut niav bu made without any oath or aflirination to the truth thereof, and the same may be according to a form given in a schedule of tlie Act. Now, dissuading a witness from appearing and giving ovidenw on an indictment for any offence is a misdemeanor at ciniinion law : Ii<>.c V. Laaiey (1). In 2 Chitty's Criminal Law, 235, a form of indictment is u'lviii in such case, where it is also said that the mere attempt to stitie evidence is criminal though the persuasion should not succeed, di the general principle now fully established, that an incitement to conmiit any crime is itself criminal. i In 1 Russell on Crimes, 5th ed. , p. 301, the law is laiddMuiil thus : " All who endeavour to stifle the truth, and [ireveut the duel execution of justice, are highly punishable ; and therefore the Jis suading or endeavouring to dissuade a witness from giving evidencij against a person indicted is an offence at conuuon law. tli'Hi;;h thi persuasion should not succeed." And in 3 Russell on Crimes, ]i. ll Inciting a witness to give partkular evidence, where the incitt| does not know whether it is true or false, is a high misdemeari'i indictable at connnon law ; citing lley v. Udu-anh, ilecided 17C4. In Rex V. Hi, is S HENCH. ONTARIO COURT OF QUEEN S BENCH. 753 V after lie is smninoned ,ceediu'4 under this Act, lU any ntlier way, either to induce any such \ier- hall be liable t', a pen- Vict. c. '.V2, s. 4-J; ami if stress is fnuml tn satisfy ^ the justices or ],.,,lice iivictedbe imprisnned in , etc., tor any i>erin(lu.it iind all costs are suiaiev ed that all infnrmatiniis j olleuceas^ainst anyMfthel yreby amended, ineluaiud xvvitini^,etc.,b»t may be j the truth thereof , aivl the ^ a schedule of the Act. earing and givin- evi.l.mce j luisdeuieanur at ch, decided ; I that anattenrptt-cnmiin tnor So where 'm m.ta- attempt t.> suborn uu. .'j (2) 2 East, ■"'■ 1^' 1R78 REfilNA commit perjury, it was unanimously liolden by all the Judges to be a misdemeaiicv : and in Jolinson's Case, there cited from 2 Show. 1, the offence said to have been charged vras, tampering r. witli a witness before trial to give evidence for a corrupt con- ^a\\kknck. sideration, which was held to be an offence against public justice. Gwyuno, J. And in such a case, namely, inciting another to connnit a n\isde- ineauur, it is not necessary to aver that anything was done in pursuance of the incitement (1). The rule as laid down tliere is "all offences of a public nature, that is, .all such acts or attempts as tend to the prejudice of the community, are imlictable. " Now, granting tliat tli3 Local Legislature has authority to pass a law imposing a duty for tavern and other licenses and imposing a tino for selling li([Uor witliout paying such duty, or contrary to the Mnis and conditions of a license thereupon granted, or for a licensed person selling at proliibited hours, and assuming it also to have authority to give to a single magistrate jurisdiction to hear md determine any prosecution for such offence without a jury, and ini))ose a tine upon conviction, then the Magistrates" Court being so made tlio competent tribtuial to hear and determine the charge, it seems to me to be as much to the prejudice of the com- munity, and as derogatory tf) the due a. In my judgment it cannot. The provision in the 57th sec. is made in relation to an offence wholly collateral to the prosecution for a violation of the Liquor License Act. That prosecution may be said to be fur enfurcimj the law, but a clause for punishment of suborna- tion of perjury committed by persons, it may be, utter strangers tj any license, and in no way guilty of violating any of the provisiuiw relating to licenses or the sale of liquors, can in no sense be said to be a clause /o/' eu/(»'C(/i;/ obedience to the law relating to the sale of spirituous liquors, or regulating the licenses issued therefor ; that is a matter ati'ecting the due administration of justice, in whiclulie community at large is interested. It is a clause which in fact pro- fesses to provide a Court and procedure wherein and wheroliy, in a particular case, a person guilty of an offence indictable at conuuoii law may be tried and convicted, contrary to the course of the com- mon law or of the criminal statute law in like cases. It atl'ects to , alter the procedure 'n a criminal case in a very marked degree, anJ aflfects to C(Hupel a person charged with subornation of perjury in a prosecution under the Liquor License Act to submit to the juris- dictiim of a single magistrate without any information upon oatii being laid, and to be tried and sentenced to fine and imprisonment j without the intervention of any jury and against the will of the ac- cused. The Local Legislature has no more power, as it appears to j ONTARIO COURT OF QUEEN S BENCH. 755 me, so to interfere with the procedure in a charge of subornation of perjury comnaitted or attempted to be committed, in one case any more than another, or to deprive tlie subject of his constitutional riglits when accused of such an offence, whether the offence be charged to have been committed in connection with a prosecution instituted for enforcing the Liquor License Act, or in any other matter. Clause 57, therefore, of c. 181 of the Revised Statutes, appears to me to be ultra r/res of the Local Legislature, and to be an encroachment upon the jurisdiction of the Dominion Par- liament. The conviction, therefore, which is rested solely upon that sec- tion and s. 65, must, as it seems to me, be (juashed. 1878 Heo ina V. Lawrence. Gwynne, J. i Hf Wf\ P'W* PHPHtB 4 ' . II i '1 750 ONTARIO COURT OF QUEENS BENCH. ONTARIO COURT OF QUEEN'S BENCH. ! If 'f 187; > Aiii/. 2!t; Dec. 12. JiC ILviUllS AND TlIK Coni'OIlATION OF THE ClTY OF IIaimilton. [Reim-teil 44 CI. C. y. /A (<7//.] MiiniciiMl Corporations — Murkct licjula^ions — Foiirr of I'l-uiiiicial LcijidatHrc — A'. S. 0. c. IL'^, ,s. 4'''', siih-s. Ci. The jji'ovisiou contained in tlio INIunicipal Act of Ontiirio, aiithur- izing City Councils to pass by-laws " for preventing,' criiM.s (unl vendors of small ware from practising their callini; in the market, public streets, and vacant lots adjacent therrto, ' is not ((//;■(( cirea of the Ontario Legislature, as being a regulatinii of trade and commerce. In giving jurisdiction to the Provincial Legislatures in all iimttors relating to municipal institutions, the intention must liavobeen that those Legislatures should have power to alter autl aiiiLiid all the existing lawt, with respect to such institutions, anil especially to enlarge the scope of a power existing in the Muni- cipal Act at the time of Confederation. ^ On the 24tli of June, 1879, ^h'. liohinson, Q.C., obtiiintd a rule iii.ii, on behalf of George Harris, calling upon the Corporation of the City of Hamilton to shew cause wliy by-law No. 149 of that corporation, passed December !)tli, 1H78, should ' -jt be quashed, wholly or in part, with costs, on the ground, amongst others, that if the said by-law was authorized by Act of the Provincial Lei,nsl:i- ture the said Act was unconstitutional and iiUni cirr^. The clauses in question of the by-law were as follows ; 3. On and after the first day of May next, after the passing of this by-law, no crier or vendor of small WiUes shall practise his or her calling in the James stmt market, or in the public street adjacent thereto. ENCH. ONTARIO COURT OF QUEEN S BENCH. 757 S BENCH. TiiK City of -Foiccr of /'(-(U'liicid! , subs. Ci. t of Ontari(N author- [)roveutin!j; criovs ami their calling in tho adjacent thereto." is as being a remilatinn jlatnres in all mattevs ^ntionnnist liavcbeeu V to alter and auiLuJ uch institutions, ami existing in the Muni- .so»,Q.C.,oljtinue(l t, calling upou the ,0 shew cause wliy sed December !ltli, or in part, willi i, that if tlie siiul 'rovincial Lej:;isl!i- and iiltnt rir^^- Iw were as follows; [ay next, after the Idor of small waves the James street lit thereto. •1. On and after the first day of May next, after the passing of this by-law, no person shall use or occupy any portion of the James street market for the purpose of exposing for sale or selling dry goods, fancy goods, small wares or merchandise, pastry, confectionery, medicines, or any article other than meat, fish, fruits, vegetables, poultry, eggs, and farm and dairy products. 5. From and after the eighteenth day of December, one thousand eight hundred and seventy-eight, and up till the first day of May next thereafter, that part of the James street market consisting of the north-east corner thereof, and being bounded on the north by Merrick street, on the east by the poultry-sheds sidewalk, on the west by the central main sidewalk running north and south, and on the south by the sidewalk running in a westerly direction from, at or near the end of the fish- .stalls, shall be set apart for occupation by all criers and vendors of small wares or merchandise, and such other persons as under sections three and four of this by-law shall, after the said first day of May, be thereby excluded from the said market; and such criers and vendors of small wares or merchandise, and other persons in this section referred to, shall, from and after the passing of this by-law, be entirely excluded from all parts of the said James street market, other than the portion thereof contained within the limits in this section mentioned. ^Ir. McKelcan, Q.C., shewed cause. ^Ir. IL J. Scott supported the rule. Armour, J.*: — By the municijial law, as it stood before Confederation, '2!l 0^ 80 Vict, c, 51, s. 21)0, the Council of every city, town, and incorporated village might respectively pass 1879 Hakius City ok Hamilton. Statkmknt. i * This case was heard by Armour, J., sitting alone. 758 ONTARIO COURT OF QUEEN S RENOH. M •■I .; " .* '< 1879 Hahris I'. City of Hajiilton. Amiour, J. by-laws for the following puri)oses : sub-section (fi) for establishing markets ; (7) for regulating all murkots established and to bo established — the places, however, already established as markets in such municipality shall continue to be markets, and shall retain all the privilejres thereof, until otherwise directed by competent authoiitv, and all market reservations or appropriations heretofore made in any such municipality shall continue to be vested in the corporation thereof ; (8) for preventing or regulat- ing the sale by retail in the public streets of any moat, vegetables, fruit, or beverages ; (9) for preventiiij:; or regulating the buying and selling of articles or animals exposed for sale or marketed ; (10) for regulatinjj; the place and manner of selling and weighing butchers' meat, fish, hay, straw, fodder, wood and lumber. Of these sub-ss. 0, 7 and 9 still continue to be the law, and appear in the R. S. 0. as sub-ss. 2, 3 and 5 of s. 46G of c. 174. Sub-ss. 8 and 10 of 29 &: 30 Vict. c. 51, s. 296, had sub- stituted for them by 33 Vict. c. 20, ss. 5 and G, the followiug Bub-sections, which are now sub-ss. 4 and 6 of R. S. 0. c. 174, s. 460; (4) for preventing or regulating the sale In- retail in the public streets or vacant lots adjacent thereto of any meat, vegetables, grain, hay, fruit, bevova|j;es, small ware, and all other articles offered for sale ; ((>) for regulating the place and manner of selling and w<. ighiug grain, meat, vegetables, fish, hay, straw, fodder, wood, lumber, shingles, farm produce of every description, small ware, and all other articles exposed for sale, and the fees to be paid therefor ; and also for i^reventing criers and vendors of small ware from practising their calling in the market, public streets, and vacant lots adjacent thereto. It was contended that these two sub-ss. 4 and 0, having been enacted since Confederation, were, or at all events that part of sub-s. 6, for preventing criers and vendors ONTARIO COURT OF QUEEN S BENCH. 759 of small wares from practising their calling, etc., was ulfni vires of the Ontario Legislature, as heing an inter- ference with " the regulation of trade and commerce," — a matter within the exclusive legislative authority of the Parliament of Canada. I do not, however, think that the provisions in question are a regulation of trade and commerce within the mean- ing of these words as used in the B. N. A. Act, so as to be beyond the powers of the Local Legislature, hut are provisions f(,r municipal government, and as such within the powers of the Local Legislatures, which may exclu- sively make laws in relation to matters coming within that class of subjects denominated municipal institutions in the B. N, A. Act. In using the term municipal institutions in the B. N. A. Act it must have been in the contemplation of the Legis- lature that existing laws relating to municipal institutions should not be affected, and that the Local Legislatures should have power to alter and amend these laws, especially where, as in the case of the provisions under discussion, the Local Legislature has only enlarged the scope of a power existing in the Municipal Act at the time of Confederation. The Councils of cities, towns, and incorporated villages could pass by-laws, at the time of Confederation, for pre- venting the sale, by retail, in the public streets, of any meat, vegetables, fruit, or beverages. The Local Legis- latures have surely the authority under their powers to make laws in relation to municipal institutions to extend the scope of this power of prevention, by applying it to vacant lots adjacent to the public streets, and by includ- ing within it grain, hay, small ware, and other articles offered for sale. The power to prevent the sale, by retail, of certain articles in the public streets is the same in substance as 1879 ^— .-^ Hahuis r. Cirv OF HAMII/rON. Arruour, J. \ iriii' 1 '^ ( 1879 HAHKia v. City of Hamilton. Avuiour, J. 760 ONTAUIO COURT OF QUKKN S liKNCH. the power of preventing the sellers, by retail, of sucli articles from practising their calling in the pul)lic streets. and it is merely an extension of the scope of that powov to prevent the criers and vendors of small ware I'luin practising their calling in the market, public stre( ts. iini vacant lots adjacent thereto. I think the sub-sections in question were not bovon.l the powers of the Local Legislature to enact, iiiid that the by-law is not assailable on that ground. [The remainder of the judgment is omitted, the same not luivin" reference to tlie present (juestinn.] ONTAltIO COURT OF QUEEN S I5EXCH. 701 i, the sanio ii'H linvin? ONTARIO COURT OF QUEEN'S BENCH. Regina v. The College of Piiysiclvns and Surgeons OF Ontakio. [ReporifdU U. C. Q. B. 56.',.'] ilciliad practitioner — Rcijist ration in Emjlund — liefiitial to register —B. N. A. Ad, s. 03. The Iiuperial Parliainont having enacted since Confederation that any person registered as a medical i)ractitioner under tlie Englisli Medical Act (21 and 22 Vict. c. 00), sliall be entitled to he registered in any colony up(jn payment of the fees rc(iuircd for such registration, and tliat the term "colony" shall include any of Her Majesty's possessions which liave a Legislature, the enactment was held to ap[)ly to Canada and to override Provincial regulations for the examination of appli- cants for registration, notwithstanding the Confederation Act and the exclusive power given thereby to the Provinces to legislate in relation to education. Mr. Kiufistoue obtained a rule nisi calling on the defendants to shew cause why they should not admit to itgistration, and enter, or cause to be entered, by the registrar of the said college, the name of Albert Elhanan Mallory in the book or register of the said college, as being duly qualiiied and licensed to practise medicine, surgery, and midwifery, in the Province of Ontario, and as a member of the said college. It appeared from the affidavits filed, that the said Mallory had been duly registered under the Imperial Act, known as the Medical Act, on the oth of April, 1879, and that on the 9th of May following he applied to the Registrar of the College of Physicians and Surgeons of Ontario to be registered under the " Ontario Medical 1870 Nov. 27 ; Dcr. 27. ', ,i: ! ■ 1 ; ,;( !l !M 1879 IlGGINA Ooi,L. OK -'HYSUrANS AM) SuU(!K(JNH, Ontauio. Statement. 702 ONTAHIO COURT OF QUEKN S UENCII. Act" (R. S. 0. c. 142), payinf; him the ref,'istration foe of $10, but that the college refused to enter his iiumo ui)on their register. Mr. Crooks, Q.C., shewed cause. The question raised is, whether the provisions of tlie Ontario Act, under which this college has been incor- jDorated, justify its council in refusing to admit to their register the applicant, notwithstanding his being upon the Imperial medical register. The college contends that it is entitled to impose such conditions upon such apph- cants for registration here as in its judgment it iniiy think proper; and thu college has required that all those upon the Imperial medical register since 1870 should success- fully pass the examination in the regular sul)jects pre- scribed for the linal examination, and should also pay certain fees. About a year since Dr. Baldwin presented the same question for the consideration of the colle^'e, and the council then thought fit to accede to his request, upon the assumption that the Imperial Act might be held to govern in such a case, and with the intention on the part of the council to make such representations to the Imperial authorities as would preserve in the future the authority conferred upon the council by the Provincial Act. The council considered that an express provision of the B. N. A. Act of 18(57, under which that authority was conferred, had been violated by the British Act of 18(58 ; and that upon this being rej)re8ented to the Im- perial Government the jurisdiction of the Provincial Legislature would be allowed its full effect. As the sub- ject is before the Imperial Government for consideratiou, the council consider that if this Court were to decide that the Imperial Act overrides the Provincial Statute, it would be an additional reason for the Imperial Goveru- ment limiting their Act, so as not to conflict or interfere 5 KENCH. ONTARIO COURT OF QUF^KN's HF.NX'H. 703 nth tlio jurisdiction of t'lo Ontario Lc^'islature. The ^iise is therefore siii ncncris. It is not a question of iiltrn nirs, but of a Provincial Act on a sul)je( i which, by the |i3r(l section of the B. N. A. Act, is within its exclusive I irisdiction to deal witli. Formerly there were some live iiodies whose degrees or examinations would entitle to iractise. These facilities led to abuse, and justified the ;dieral opinion, which was carried into effect by the Provincial Act, that there should l)e a uniform course of itiuly and system of examination for the license to prac- Itisi'in Ontario. The collc^'e in its course requires not inly theoretical knowled. vincial Li'f;;iHlatiU'c *? Thu Act which is invokc'd ju imsw, r to this is the Impcriiil Act, passed the 2!)th !\ray, iHiN (c. 2!), 31 Vict.), which extends the Slat section of tip " AFedical Act" of 1H^)H. The ([ucstion depends ujn,;, the legal i)rinciples which should he applied to such im Act, havinp; regard to the B. N. A. Act of isiiy, and tho condition of matters at the time the Act of isiiH was passed. Persons registered under the Medical Act of 185S had uo right, hy virtue of such registration onlv, to practise in the Province of Ontario, and had to rdy on such provisions as were made in their favour in the Pro- vincial Statute. Hence the attempt of those who were instnmiental in secnring the passing of the Act of 18(18 would have evidently heen to include this I'lovince us well as other dependencies of the empire. Ilt'ncc sec. 2 we find the word "Colonies" given a very exten- sive interpretation, and which, primd facie, would emi- stitute registration mider the Act of 1858 full authoritv to practise in any part of Her Majesty's doniiuions, including those possessing Legislatures as well us Crown colonies. To this extent, therefore, the argument is against the college ; and it is upon this that the otlur side relies. Before, however, any of the express powers granted by the B. N. A. Act, either to the JJominion I'nrliament or Provincial Legislatures, can be repeiikil, the imperial Parliament must have used language sulli- ..i' iitly clear and explicit to shew that such repeal wiii intended by the Imperial Parliament, and not to be tlk' result of general words which do not indicate the j:;rave and important step Parliament was about to take, re- stricting in its effect the unlimited jurisdiction confernd on the Provincial Legislatures by the S)3rd section of the B. N. A. Act. The argument, therefore, is that when, in 1867, the Imperial Parliament thought lit to grant to the 1 S llKNCIl. ONTAIUO ContT (»l' (^M'KKN S IlKN'CH. 705 pstinjj; witli the Pro- iHinvoliL'd in iinswir tlu) '2S)tli May, iHils 81 st section of tlif stion depends uimiu e applied to such iin Act of 1H(')7, imd the the Aet of JHliH was the Medicnl Art of , registration only, lo and had to vA\ mi i eir favour in the Pro. it of those wiio \\v\\>\ ig of the Act of Isils iide this Proviuoe iis ! empire. Hcncf iul given a very cxten-j >ii(t facie, wouhl w\\-\ i 1858 full authority ilajesty's doniinion>,! res as well as Crowiij jre, the argument i^ this that the othiv f the express powiTn er to the Dominion! es, can \)v repeiik'd used language sui'ti-l [that such repeal \vai| t, and not to l)e thd It indicate the si""^*! s about to take, re- urisdiction eonfem-d e i)3rd section of the [fore, is that when.iu lit lit to grant to the Provincial Fiegislatures the whole jui-indiction and duty if^T'.t iiVO X education in the Provinces, and endxidied this as nil iinpor taut article of a formal constitution, then, l)e- loiv the jurisdiction can he considered to have been witii- Irasvn or in iiny way limited, the Imperial I'arliament Iniiist he shewn to have done so by express words whicdi ■roiild unecpiivocally shew that it was the deliberate in- iditioii of the Imperial I'arliament to infringe u[)ou this [lovincial jurisdiction, and to deprive the Legislature of its rights and duty of exercising iis judgment in the matter. This, again, would involve such a change in the policy of the whole scheme of Confederation, l)y ffliicli this and other subjects were exclusively conlined I to the Local Legislatures, and which, as recited in the B. |\'. A. Act, was in the nature of a compact between the ['uitod Kingdom and the several Provinces, that if there .viT was a ease for the application of the principle con- iduled for this is a case of the kind. Effect can be given to the Imperial Act without carrying it to the extent of iitiii;j; ail invasion of Provincial rights ; namely, by giving ;o registration on the J^ritish Aletlical Pegister the same htatiis in the Provinces when further conditions have not lieen lawfully imposed by the sovereign legislative authority of any such Province. The position would then I he very much like that in Sinih's v. Bdj'ovd (1), where the [court held that, in order to obtain the complete benelit of an Imperial copyright in Canada, it was necessary for I the publisher to bring his work within the Canada Copy- |iif!ht Act as well. The college, under the authority of the Provincial Act, requires an examination from all I (tiactitioners who are on the British Medical llegister >iiice 1870, and it insists on cvcrti one being up to its jtandard of examination before being entitled to be placed on the Provincial Register. This is the only liKiMNA ('. CiiLt.. (IK I'llNSlCIANS AMI SrUCKONM, O.NTAItlO. Aui.iMcvr. M\ % (1) 1 App. Rep, 43(i ; ante, p. 076. l\ 7G6 ONTAllIO COURT OF QUEEN S BENCH. lH!if| *i' Hi! jy I': i I ■ ■■ it l\ ll( II: el 1S79 question which has given rise to the present dispute ]{E(iiNA The proper view, and the one which removes all conllio Coul OF between the Imperial and Provincial jurisdit-tidn, is t ''"^\si)^^'^ construe the position granted under the Imperial Act Si-HciKONs, ijects in ' ' Province, and in the following year passing another A which does not assume to refer to such sptciaUy con ferred autliority, it would be to impute to the liii[)i'ria Parliament such a hasty change of intention as \Y')iil(ll)e opposed to the whole course of its proceed in.ns. There is, in truth, such repugnancy between the assimied operation of this Act of 18()8 and the full jurisdiction ex- pressly conferred l)y that of 18()7, that upon this prin- ciple also of repugnanc}^ the Act of 1808 must bo liraitei in its effect, as contended for. The duty imposed on the Provincial Legislature for the welfare of its coinniiniity is not fulfilled by requiring that the fees only should bt paid, but it is bound to go further and to recpiirc that medical efficiency in this Province should be secured bv such means as in its judgment it may deem best. It would be a derelicftion of such duty to omit to do this. and especially where one of its beneficial results is, tbo great improvement in the standard of medical education. and the progress of medical study and higher training in the medical schools, not only in this Province, but else- where where medical study may bj pursued. Tlit EN S BENCH. ONTARIO COURT OF QUEEN 's RENCH. 707 the present ilisputt... 1 removes all coiilliot 3ial jurisdiction, is to 3r the Imperial Act of ise of such autliority as had committed to it. i of Sniilcs V. ])i'li(iril_ )n has heen j^ivon to rliamcnt expressly a>:- ;eneral jurisdiotioii in inent is not rroiiif; too istitutional x\ct of 18GT clear provision ior un )ecified subjects in this IV passing iuiotlur Act to such spcciaUv con- npute to the lni|ii'i'i;il if intention as W'nild lif ts proceed in,u;s, Tlitrt between the assumed | he full jurisdietien i-v- 7, that upon this priii- f 1808 must be limitel e duty imposed on the are of its couimuiiity 10 fees only shoukl bt ler and to re(piire that should be seeurnl hy it may deem best. It y to omit to do tlii-. loticial results is. the 1 of medical education. and higher training in lis Province, but (l>i- y bd pursued. Tlic Le;uslaiure and council ^f the college have not exceeded this duty, and the examination is only a reasonable regulation. Applicants for registration are only sub- jected to the payment of the fees for registration and examination as in all other cases, and such applicants are not placed in any worse position than a graduate with a medical degree obtained in the Provincial Univer- sity here. It is always open for the Legislature to im- pose checks upon any unreasonable regulation, or one which would be prohibitory or unfairly discriminate be- tween the two classes of applicants. It is also always open to the Dominion Government to disallow Provincial Acts, just as Dominion Acts may be disallowed by the Uiioon in England. The cases discussed in Maxwell on the Interpretation of Statutes, pp. 157, 1G4, support the proposition that general Acts do not repeal Acts confer- ring special powers or privileges. No enactment has been passed in modern times of such gravity as the Con- stitutional Act of 18G7, and it is well known that all its provisions were as carefully discussed and considered as if it had been a compact between independent nation- alities. It was necessary, it is true, that it should assume the form of an Imjierial Act, but it was intended to be lasting and permanent, 'uid therefore only sul)ject to alteration after the like corsideration by the contract- ing parties ; and eer^ t nly it would bo a surprise if the powers and authorities thereby deliberately confemd were to be liable to restriction or limitation in any P >,- : of the Imperial Parliament without previous communi- cation with, or reference to, the relatively independent Legislatures thereby established. Such would be an infringement of that liberty of govcrn:'ng ourselves and of managing our own affairs which was granted to us by the B. N. A. Act, and which no 'essarily invol 'ed new relations between the Dominion 1 arliament aid the JvKCINA r'oi.i.. (IK l'iiVM> i.\:-s A N 1 > Sih(;khv.--. O.NIAKIH. AUUCMKNT. ! 4 768 ONTARIO COURT OF QUEENS BENCH. 1879 Ekuina 1 :. t )"■: I - Legislatures of the different Provinces and the Imponui Parliament. It would take by surprise any of the states- men who had to do with Confederation in 1H()7 to lin 1 Coll. ov ' ' Physicians that in the first year thereafter an Imperial Act was AN It , . riruoKON's, passed which, if the contention of the other side [jrevail, -^ ' would deprive this Province of one of the powers e.\- — ■ ' pressly conferred upon it. While the 93rd section is explicit as to the Provincial jurisdiction over education, yet the argument is applicable also to any infringement of the full jurisdiction which is given to the Provinct over local or Provincial subjects. Where the jurisdiction has been expressly given, then it is further necessaiv that there should be express and particular words in order to effectually repeal express and particular powor^, granted by the former Act of Parliament. Without such particular words it cannot be said that the Legis- lature meant to take away these powers, especially when tliere was no reservation to that effect. In a case before Lord Hatherley, when ^'ice-Cllancellor — Fit::iicr(ilii v. Champnqis (1) — he says : " In passing the special Aet, the Legislature had their intention directed to the special case which the Act was meant to meet, and considered and provided for all the circumstances of that spciial case ; and, having" so done they are not to be considere.l by a general enactment passed subsequently, and making' no mention of any such intention, to have intended ti) derogate from that vvLi^b., by their own special Act, ihey had thus carefully supervised and regulated." So that something more is required before it can be held that the provisions of the Act of 18G8 were intended to infrin;,'o upon this Provhicial jurisdiction. It does not assume to do this, but is only an enabling Act under whieli the practitioner may place himself in an authorized posi- tion to practise, but not to free himself from other (1) 2 J. & H. pp. 54, 5r). BENCH. ONTARIO COURT OF QUEEN S BENCH. 7G9 1 and the Impeml e any of the statos- )n in 18()7 to Ihul Imperial Act was other side [irevail, of the powers ex- he 93rd section is ion over education, any infriii>^emeut ni to the Province lere the jurisdiction 3 farther necessary )articular words in id particular powers •liament. "Without aid that the Logis- ■ers, especially when pt. In a case before ellor — FitzijcraU v. ug the special .Vet, rected to the spociul cet, and considered ices of that special not to be considoreil uently, and mukin,' 10 have intended to ivn special Act, ihcy gulated." So that an he held that tlie Liteuded to infringe does not assinno to ;t under which the ,n authorized posi- liimself from other conditions which may be imposed by such Legislatures as have been expressly authorized to do so. If the con- trary is held, the consequences will be serious. It will be a blow to that exclusive jurisdiction of the Provincial Legislatures in local matters, which was the chief cause for bringing about the Canadian Confederation, and if within the ordinary exercise by the Imperial Parliament of its powers it can as readily affect the legal profes- sion, and even the jurisdiction of the Dominion Parlia- ment on larger subjects, even that of the tariff. In fact, the B. N. A. Act would cease to be regarded as possessing the fundamental qualities of a constitution or system of government. The Court of Appeal, in Smiles v. Bdford, pointed out the necessity there was, in order that British copyright might be effectual here, that a Canadian one should also be obtained, or that there should be further legislation in Canada. If it was intended that the Im- perial Parlifimeut should retain power of authorizing practitioners on the British Medical Begister to practise in Canada on such terms as that Parliament should think tit to prescribe, it should have reserved this in the B. N. .\. Act. The whole scope and framework of that Act shew that it intended to give to the people of Canada, in their Dominion and Provincial relations, the fullest lights of self-government according to the principles of the British Constitution, the same in all Canadian matters as the people of the United Kingdom enjoy. The ex- pression in the Act of 18()8, " notwithstanding any Legislature," cannot properly be construed to apply to restrain any such powers in the future as have been exercised b}^ the Legislature of this Province under the circumstances mentioned. The position that it was a uecessary and beneficial measure on the part of the Ontario Legislature to pass its Act in 1860 is further established by experience since, as the college has been 4'J 1879 Reg IN A r. Coll. of Physici.ws ANU SURllEONS, Ontauio. Arc.imknt. 1879 llEUlNA r. Coll. of Physicians AND SUR(!K0N3, Ontario. AU(!IMENT. 770 ONTARIO COURT OF QUEEN's BE^X'ri. found to have succeeded in thoroughly fulfilling the objects for which it was incorporated, in raisiiiir tlu' qualifications of medical in'actitioners throughout this Province. There is no doubt that if the attention f)f the Imperial Parliament had been called to this Act, and to its operation as is now contended for, it would have been deemed such an interference with the provisions of tlie Confederation Act passed in the previous year that this Act would never have received the assent of the British Parliament, or have become law. The mischief of such interference would have been readily seen, anditsresuhs rvevonted by proper provisions inserted therein for the purpose. il ^^'«-.MIj Mr. Kiiif/stone, contra. Dr. Mallory is entitled to be registered in the Medical Register of the Province of Ontario, for he has proved, and it is not disputed, that he has been duly regis- tered in the medical register of the United Kinifdom. Being so registered, he is, apart from the late Imperial Act, entitled, by virtue of the Medical Act, 1858 \ii Vict. c. 90, s. 31), to practise medicine and surgery in any part of Her Majesty's dominions. By the Imperial Act known as the Medical Amendment Aet, 1868 (32 Vict. c. 21)), a power which they had not hefore was conferred on Colonial Legislatures, to make laws for enforcing the registration in the colonies of persons registered under the British Medical Act ; but, while con- ferring that power, the Imperial Legislature chose to impose on the Legislature exercising that po^YC'r a cer- tain condition, namely, that in the event of the Legisla- ture requiring gentlemen registered under the JJritisli Medical Act to be registered in the colony, those gcutk- men should be entitled to be registered in the coloiiv on j payment of the fee prescribed for registration. ONTARIO COURT OF QUEEN'S BENCH. 771 hly fulfilling the (1, in raising tbo 1 tlu'ougliout this le attention of the this Act, and to it would have been ) provisions of tlie ious year that this ,ent of the British le mischief of such seen, and its resuUs ted therein for the tered in the :Me(lical for he has proved, as heen duly rej^is- le United lungdom, »m the late Impoviiil [dical Act, 1858 i'1'1 idicine and suvsery ominions. By the al Amendment Act, they had not before •es, to make haws for colonies of persons Act ; hut, while con- legislature chose to ng that power u eer- , event of the Legisla- d under the British j colony, those geutk- ■red in the colony ou I igistration. The Legislature of the Province of Ontario took ad- vantage of this Act, and hy 37 Vict. c. 30 (c. 142, K. S. 0.), compelled gentlemen registered under the British Medical Act to be registered in this Province. See sees. 31, 40, 42, 43, 44, 4.5 and 55. These gentle- men are therefore entitled, on payment of the fees, and without submitting to any examination, to demand regis- tration with the Medical Registrar of this Province. It has been argued that sec. 93 of the B. N. A. Act conferred on the Province of Ontario the exclusive right to legislate respecting education, and that this question of education is one of registration, and that the Legisla- ture of Ontario has given the College of Physicians and Surgeons the option of refusing to admit to the Medical Register of Ontario gentlemen registered under the British Medical Act. There arc two answers to this argument. Li the first place, the exclusive power referred to is "exclusive" merely as regards the Dominion Parliament, and has no reference to the Imperial Legislature : See s. 91, sub-s. 10, where exclusive powers conferred on the Dominion, cannot be construed to exclude legislation by the Imperial Parliament, l)ut merely that by the Local or Provincial Legislatures. See also Smiles v. Bclford (1). In the second place, the words of the Imperial Act of 18()8 are positive and distinct, and leave no room for argument as to what their meaning is, and the Act is later than the B. N. A. Act. It is therefore simply a question of the paramount right of legislation vested in the Imperial Parliament. That the Imperial Parliament has such a right, see Routh'diic v. Loir (2), Broom's Com. vol. i. pp. 120, 12(), 191 ; Stephen's Com. vol. i. 125. The College of Physicians and Surgeons is not inj ured by being compelled to register those registered in the 1879 Regina r. Coll. of Phy«icianh AND scuoeons, Ontario. AlUSUMKNT. (I) 1 Ai.p. Rep. 442 ; ante, p. 570. (2) L. K. 3 H. L. 100. (<};., / ii; i l/i i!'i • I ; i,i f nii-n 772 ONTARIO COURT OF QUKKNS RENf'H. 1879 United Kingdom, for the college had no corporate! exist- Rkgina ence until after the Medical Act of 1H58 had been passed, Coil, of '^^^^ ^^^^ ''^^^ ^f iMliS was a relaxation of the law in favour Physicians ^f ^.jj^^ college, by enabling it to enforce registration AND U Ot Si'iuiKONs, those registered under the British Medical Act, tlioiu'li Ontario, " ' "^^'n" preserving the right of the latter by enabling them to Arcu'.mknt. claim registration as a right. The answer to the analogy sought to be established from the local laws relative to English barristers is, that there is no Imperial statute defining their position in Canada. Some reference has been made to a In-law of the college, whereby gentlemen claiming registration under the i^rovisions of the Imperial Act are required to pay a fee of $40 instead of the usual fee of $10. Such t by-law is clearly bad, as an evasion of the law ; l)ut it is not necessary to consider it here, as Dr. Mallo) y's ive was paid and accepted by the college before the by-law was passed. The judgment of the Court (Hagarty, C.J., and Armour and Cameron, JJ.) was delivered by Hagarty, C.J. : — In the manner in which the matter has been argued and placed before us, we understand that, apart from tech- nical objections, our opinion is desired as to the rin;ht of the defendants to refuse registration to a regularly quali- fied and registered practitioner, under the Imperial Act known as the Medical Act, without submitting to the examinations prescribed by the rules of the defendants' college. This applicant has paid, or offered to pay, the ordinary fees required for registration. Shortly before Confederation, the then Parliament of Canada passed the Act (1865) 29 Vict. c. 34, providing for a register of licensed practitioners, and for the admis- ONTARKJ (!OURT OF QUEEN S I5ENCH. 773 ,s been argued and I, apart from tech- as to the rij^lit of a regularly quali- the Imperial Act Isubmitting to the ft" the defendants' lo pay, the ordinary sion thereto on a fee of $5 for qualification obtained up to Ist of January, 18(56, and not to exceed §10 for quali- tication obtained thereafter. Schedule A contained a list of the qualifications required] for registration, amongst them medical or surgical degree or diploma of any Univer- sity in Her Majesty's dominions ; di])loma or license as physicians or surgeons from the Royal College of Physicians or Royal College of Surgeons, London ; or a crrtificate of registration under the Imperial " Medical Act " 21 & 22 Yict., or any Act amending the same. The B. N. A. Act, passed 29th of March, 1857, see. 98, declares the Provincial Legislpiure " may exclusively make laws in relation to education." On the 24th of March, 1874, the Ontario Act 37 Vict, c. 30, was passed, to amend and consolidate the laws relating to the medical profession in Ontario, ropeal- in},' previous Acts. The main provisions appear in E. S. 0., c. 142, s. 24. All persons qualified under schedule B prior to July, 1870, may register on payment of a fee of not over $10 ; and (sec. 25) all persons not so qualified should submit to examination. This section B (as in the Act of 1865) allows as a qualification the certificates of registration under the Imperial Medical Act, or any Act amending same. But as the present applicant obtained his Imperial qualification long after 1870, it is urged here that he cannot claim any privilege therefrom. Sec. 23 leaves it optional with the council to admit to registration persons registered in Great Britain, on such terms as the council may deem expedient. Sec. 25, as to a person not qualified under schedule B : besides examination he must pay such fees as the council may by general by-law establish. On behalf of the applicant, the Imperial Act 21 cl- 22 Vict. c. 90, and the amended Act of 1868, hereafter cited, are strongly relied on. 187; • 1!k(;ina V. Coi.r,. OK I'UYSR'IANS AND SuiUiKOXS, D.NTARIO. Hagarty, C. J. ,,:M \-i M ¥f' Tm !'■ «• Ji' • ill! F !l f liji 1879 llK(iINA r. CoI.L. OK PHY^SICIAN.S AM) SflUiKONS, O.N-TAKIO. Ila: rty, C. J. 774 ONTARIO COURT OF QUEEN S HKNCH. The Imperial Act (1858) established a Medical Council and Register. Sec. 31 declared that every person so re- gistered should be entitled to practise medicine and sur- gery " in any part of Her Majesty's dominions." The Imperial Statute 31 Yict. c. 29, was passed on the 29th May, 1808. It recites that by sec. lU of the "Medical Act," 21 & 22 Vict. c. 90, it is enacted that every person registered under this Act shall be entitled, according to his qualification or qualifications, to prac- tise medicine or sm-gery, as the case may be, in any ])art of Her Majesty's dominions, and to demand and recover in any Court of law, with fnll costs of suit, reasonable charges for professional aid and advice and visits, and the costs of any medicines or other medical or .vvcriidl appliances rendered or supplied by him to his patients. It enacts (2): "The term 'Colony' shall in this Act include all of Her Majesty's possessions abroad in which there shall exist a Legislature as hereinafter defined, ex- cept the Channel Islands and the Isle of Man. The term ' Colonial Legislature ' shall signify the authority other than the Imperial Parliament or Her Majesty in Council competent to make laws for any colony." 3. " Every Colonial Legislature shall have full power from time to time to make laws for the purpose of en- forcing the registration within its jurisdiction of persons who have been registered under the * Medical Act,' am- thing in the said Act to the contrary notwithstanding ; provided, however, that any person who has been duly registered under the * Medical Act ' shall be entitled to be registered in any colony, upon payment of the fees (if any) required for such registration, and upon proof, in such manner as the Colonial Legislature shall direct, of his registration under the said Act." The case on behalf of the defendants was argued by Mr. Crooks in a very fair and candid spirit, admitting, (KNCH. ONTAHTO COITUT OF QUEEN S .BENCH. 77c Medical Council jry person so ro- lediciiie and sur- iiinions." vas passed on tlie sec. 'U of the i is enacted that shall be entitled, Lcations, to pnic- ,ay be, in any part mand and recover if suit, reasonable ce and visits, and aedical or .,v>'(;ical Q to his patients. ' shall in this Act 15 abroad in Mhicb inafter defined, ex- )f Man. The term 16 authority other Majesty in Council 11 have full power the purpose of eu- idiction of persons Viedical Act,' any- notwithstanding ; Lvho has been duly hall be entitled to lyment of the fees 1, and upon proof, lature shall direct, Its was argued by spirit, admitting, as of course was necessary, with the Federation Act be- fore us, that if the Imperial Parliament distinctly lefjis- late for us they can do so, notwithstanding any previous enactment or alleged surrender of the power of exclusive legislation on any subject. But it was ably urged that, as the subject of education was one in which the exclu- sive right was given to this Province, we should read the subsequent Imperial Act as not interfering with the right so granted. To this it may be argued that where the Federation Act speaks of any such exclusive right, it means exclu- sive as opposed to any attempt to legislate by the Dominion Parliament. But it appears to us that the language of the Imperial Act already cited is too clear for dispute. It declares pointedly and most distinctly that a person on its register shall be entitled to registration in any colony on payment of the fee (if any) required for such registration ; and the detinition of " colony " clearly includes Canada. It is impossible for us to refuse to these clear words their equally clear interpretation. It must be borne in mind that at the date of Confederation the Imperial Act of 1858, with the general words " in any part of Her ilajesty's Dominions," was in force, and that in the amending Act of 1868 the Imperial Parliament was legis- lating for over forty colonial possessions of Great Britain, and not merely for the British Isles. It was hardly, in anj'^ view, an unreasonable assump- tion that for such a diversified empire, with so many colonies in various stages of national development, to take it for granted that a scientific qualification deemed sufficient for the advanced civilization of the parent State would be willingly accepted as sufhcient for the empire at large. It would have been, perhaps, not free from reasonable 1879 IvKdlNA r. Coi.r,. OF Physicians AND svikikons, Umakio. H i.iirty, C.J. i' h 4.11 '!. II 770 ONTAIJJO COURT OF QUKEN S BKNCH. i ! 187!t Rkcji.va r. C"i)I,I,. OF PllVsrciANH AM) Slkc ICONS, Ontahio. Hagarty, C. J. objection to have admitted to practise in En^^land ovoij person said to be qualilied by any loc d law in any of the colonies. It would have been, perhaps, painfully in- vidious to except any one or more of the (Queen's posses- sions, on the assumption that it had attained a lii^i^.i. level in medical education. We do not think it necessary to discuss a (luestion suggested rather than argued, as to the right of de- fendants to require persons claiming registration with- out examination to pay any increased fee demanded by them. Mr. Crooks did not press any such point, and we do not feel inclined to impute to a body of gentlemen represent- ing the medical profession in Ontario, standing so de- servedly high in public repute, a desire to do more than to ascertain their legal riglits, and not to evade their performance, or induce sul)mission to an unlawful re- quirement, by the imposition of what may be ttruied " differential duties " against those who may seek to make this country their home, on the faith of the general h\\ of the empire. Utile ah>tnliit,: !i i: OXTAUIO COURT OF QL'EEN's IJENCII. 777 link' ah>iiibitf. ONTARIO COURT OF QUEEN'S BENCH. JoNKS V. The Canada Central Railway CoMrANY, [Reported J,6 U. C. Q. B. 250.] Private Act — Effect of — JiirisdidUm of Local Legislatures — Domicile of party affected. Provincial Legislatures are not restricted to legislation respecting property such aa bonds held in the Province, and where debts or other obligations are authorized to be contracted under a local Act, passed in relation to a matter within the power of the Local Legislature, such debts may be dealt with by subse- (juent Acts of the same Legislature, notwithstanding tliat by a fiction of law they may be domiciled out of the Province. Declaration : That the Brockville and Ottawa R. W. Co., on 2nd July, 18G0, by their "debenture transferable," overdue, is.sued under 23 Vict. c. 109, in con.sideration of £100 stg., promised to pay to bearer £100 stg. 20 years after Ist July, 18G0; and afterwai'ds said R. VV. Co., by an Act of the Dominion of Canada, became amalgamated with defendants, and defendants thereby became liable to plaiutitt* (the bearer) for the amount of the said deben- ture ; and although plaintiff became holder of said deben- ture before this action, neither the B. & O. R. W. Co., nor defendants as their successors, paid the sa?.)' or any part thereof. Third plea : That after the alleged claim accrued, and before action, by an Ontario Act entitled " An Act for the conversion of the ordinary Bonds and old Stock of the Brockville and Ottawa Railway Company into re- duced new Stock, and for other purposes," the liability of the said B. &l O. R. W. Co, to pay said debentures in 1881 Oct. 11 ; Noi\ 1. ■, ;i. ■ i |V i 778 OVrAUIo COUIIT OK t,)rEEXS IJEXCII. !t ; I! 1881 JoNKS i: Canada Ckntkal Raiiavay Co. Staikment. money wholly coasod ; that said (lel)eiitiire was one of a certain class of bonds dcsit^nated in said Act as (ndinaiy bonds, and it was provided by said Act that, Itoui uinl after the [)assing of said Act, the holders of such ovdinaiy bonds should have no claim up'^" said B.k^ 0. R. \V. Co,, at law or in equity, in respect aid bonds, ex('(|it l',,,. the conversion of said bomls into new paid-up stock in the capital of said B. & O. R. W. Co., as authoi i/.cd ly said Act, at the rate of twenty-five cents in the dollar on the amount of such bonds and of the coupons thereto at- tached ; and said B. fc O. R. W. Co. always were icaily and willing to issue to said ordinary bondholders ci'ititi- cates of proprietorship of fully paid-u[) shares in mw stock proportionate to the amount of said bonds. And by the Act of Parliament of Canada in the dcclaiation mentioned, whereby the B. & 0. R. W. Co. becanic ainal- gamated with defendants, it ^' amongst other things enacted that the stock of th .algamated company, these defendants, should be allotted to the stockholders of the said two companies, in the case of the B. & 0. R, W, Co., at the par value of the existing stock of said com- pany, including the stock which was due to the former cre- ditors of said company, and had not been received by tlicin in exchange for their claims ; and the defendants, .since the said amalgamation, have always been ready and will- ing, on surrender of said debenture in the declaration mentioned, to allot to the plaintiff, or other holder of said debenture stock in defendants' company, at the par value of the stock of the said B. & 0. R. W. Co. existing at the time of said amalgamation, but neither plaintiff nor any other holder of said debenture has ever demanded the said stock. Replication : That the Ontario Act mentioned in said plea was null and void and of no effect, so far as plaiutitfs rights were concerned, upon said debenture transferable, m i'r ONTAUIO COLKT ol' (jUKKNS HENCll. 779 because said Act was liltiut r//7'.s siiiil Ijc^lslatiu'i', inas- ift8l iiuicli as in the said Act tho [tlaintiir, or the liuliK-r of t1\c .Tonkh siiiJ (lobcnture transferal tie at the time ol' passing of.saiil canalv Act, was not s|)ecially named therein, nor a petitioner for u,[i""^.'vVco. ^,ia party to said Act, which was in the nature of a i)ri- ^•^.^^ijijTJ^^^.,., vato Act, nor were tl\cir or either of their riglits sp<'cially taken away or limited by said Act, or nnder the Act of the Parliament of Canada mentioned in said plea. Tliat at the time of the passing of the Ontario Act, said dehen- tiu'o transferal )le was payaV)lc at London, England, and was there domiciliated, and the lioMer or l»(!arer thereof resided in England, beyond tlie jurisdiction of tho Legis- lature of Ontario, and said lioldev or bearer of said de- liidture transferable had no notice or knowledge of said Act, and was not a party to the passing of said Act, and said Act did not affect, nor did the subsequent Act of the Parliament of Canada affect or limit any rights upon said debenture transferable or any property therein. Demurrer: That the Ontario Act was not ultra I'ires, and the rights of the jtlaintitf as holder of said del)enture transferable, or ordinary bond, were determined and fixed by said Act ; and the liability of the dcfemlants in re- spect to said debenture transferable, or ordinary l)ond, was also thereby determined, and plaintiff was limited to tlie rights thereby given. Mr. Watson for the demurrer. The Canada Central, originally the Brock ville and Ottawa Railway, is a local undertaking within the meaning of sub-s. 10, s. 92, of the Confederation Act. The Provincial Act in question is tliereforew^vcfc vires. Mr. 0. A. Maeh'vzie contra. Though the Act may be i'i\tro, vires as to holders of bonds living in the Province at the time of its passing, it is ultra vires as to those not living in the Province. The bond in question was held by a',. I i •! 780 ONTARIO COURT OF QUEENS BENCH. i;i . M lii si ifii) if \ VI 1881 J., WES V. Canada Centual Railway Co. Arglment. a resident of Great Britain at the time the Act was passcl it was therefore not " property " or a " civil right " within the Province. See Ee Good/me (1), In re Eiuin (2j ; ^',7/ V. Worsivick (3) . OSLER, J.* : — The Brockville and Ottawa Railway Cumpanv was incorporated by Acts of the Parliament of tin old Province of Canada, 1(5 Vict. c. 100, and 18 ^'ict. c. Is;]. By 23 Vict. c. 109, a special form of debenture \v;k provided for an authorized debenture issue of .€:).50,0()(i stg., referred to in subsequent legislation as "uidinaiv bonds." These debentures were, by the Act, declared to lie a charge upon the lands, tolls, and revenues of tlie coinjtaiiv next after a preferred charge in respect of a loan made tn the com[)any by the municipalities through which the road passed. They were made payable twenty years after the date mentioned therein, with interest at the rate of six per cent, per annum, to be paid on the first days of January and July in each year, upon presentation and sinrender of the proper coupons thereto attached at the otiiceuf , in the city of London, England. The debenture mentioned in the declaration is one of these debentures. By the 27 Vict. c. 57 (18(13), the preamble of which re- cites that the company, by reason of financial einKairass- ments, had for a long time been unable to pay the inte- rest upon their mortgages and bonds, and that it wa. ex- pedient to provide by legislation for the reorganization of the company, whereb}- the extension of the road nu^ht be secured and a sacrifice of the interests of the uninicipal, bond, and other creditors avoided, the company were (1) 19 Grant, p. 454. (2) 1 C. & .T. 156. (3) 1 H. Bl. 090. * Tliis case was heard by Osier, J., sitting alone. ONTABIO COURT OF QUEEN S BENCH. 781 S BENCH. ; the Act was passed ; " civil right " within 'u re Ewiii (2); Sill Railway Cumpany Parliament of tliu G,andl8 Vict. c. 1^.3. m of debenture was i-e issue of .CooO.OOO elation as "urdinary Act, declared to be a onuesof the company lect of a loan made to i through which the y^ears after the date the rate of six jier tirst days of January ation and siinvndrv iched at the otiice of ondon, England, declaration is une nf •earnble of which ro- Hnancial einl»arras.s- ible to pay the inte- 1, and that it wa.; ox- )r the reorganization on of the road nii^i'lit ests of the municipal, the company were (3) 1 H. Bl. (ion, , sitting alone. authorized to issue preferential extension bonds for £00,- OOO stg., to be applied to the special purpo.ses mentioned in the Act, and to execute a mortgage upon the railway and works to secure such bonds, which should form the j^ tirst charge thereon, next after and subject to the claims of the municipalities. The railway being, at the time of the confederation of the Provinces, a local work or undei'taking situate wholly within the Province of Ontario, the power to legislate in respect of it after that time belonged to the Provincial Legislature, which, in 1868, passed an Act ("U Viet. c. 44) intituled, " An Act for the conversion of the ordinary bonds and old stock of tlie Brockville and Ottawa Railway Company into reduced new stock, and for other purposes." The preamble recited the 27 Vict. c. 57, and that, owing to alleged default in payment of the interest on the pi'c- fereiitial extension bonds, the trustee under the mortgage had taken possession of the railway, and was about to foreclose and sell the road in consequence of such default, and that under that Act all outstanding liabilities of the com[iany had been or were convertible into ordinary bonds of the company, raidiing next after the preferential extension bonds ; that the interest on the ordinary bonds of the company was accumulating, and a financial reor- ganization of the company sought ; that it had been mutually agreed by and between the preferential bond- holders and a large majority in value of the ordinary liondholders, and by three-fourths in value of the sliare- holders, that such reorganization should be carried into etiect upon the terms of the memorandum set forth in the preamble ; and that an Act of the Legislature wa,' /'equired to carry such agreement into effect. Tlie Act then (sec. 1) reduced the capital stock of the company to $500,000, or such other sum, more or less, as should be sufficient to cover the outstanding ordinary 1881 J0NK8 ('. Canap.x Ckntk.m, VILWAV Co. Oslor, J. I p w W7m In 1 ' 1 H '! ::i- I ;i I . is it III il/i*:: ! :;ir ft! 782 1881 Jones r. Canada Cknthal ]\AIL\VAY Co. Osier, J. IM ONTARIO COURT OF QUEENS BENCH. bonds, or claims convertible into such, and the existing paid-up stock converted at the rate of ten cents in the dollar. By section 2, ordinary bonds held by preferential ex- tension bondholders at the date of the passage of the Act of 1863, were converted into new paid-up stock, at the rate of fifty cents in the dollar on the amount of sucli ordinary bonds and coupons overdue thereon, and the re- maining ordinary bonds, with overdue coupons, were con- verted into new paid-up stoc a,t the rate of twenty-five cents in the dollar. Section 6 enacted that the conversion yji ovidod for | should take effect immediately after the passage of the Act, and that the management and possession of the rail- i way should, within four weeks thereafter, be restored hv the trustee of the preferential extension bondholders tn the company. By section 8, the right of these bondholders to forocluM their mortgage, or otherwise to dispose of the road tho),-- under, was forever extinguished ; and the 7th section t n- acted that from and after the passing of the Act the ordi- nary bondholders should have no claim upon the company at law or in equity, in respect of these bonds, except t'm the conversion of the same into new stock. The claim of the municipalities was not interfered with, In the year 1874, Acts were passed by the Legislature of the Province and the Parliament of tlie Dominion, which authorized the transfer to the Canada (Jentn Railway Company of the claim of the municipalities in satisfaction of the claim of that Company against the Province (see Canada Central R. W. Co. v. The Queen) (1), and the Brockvillo and Ottawa Company were authoriznl to issue bonds called preferential mortgage debentures for the amount of such liability, which debentures it was (1) 20 Grunt, 273. S BENCH. ONTARIO COURT OF QUEENS BENCH. 783 :h, and the existin" of ten cents in the . by preferential ex- e passage of the Act laid-up stock, at the the amount ot" such thereon, and the re- le coupons, were con- e rate of twenty-five /■ersion y/iovidod fnv 3r the passage of th.' possession of the rail- euf ter, be restored liy nsion bondhohlers to i idholders to foreclose ose of the I'Ocad thcr.'- id the 7th section en- <^- of the Act the onli- ni upon the company, lese bonds, except tVir stock. IS not interfered with. 1 by the Legislature lit of the Dominion, ;he Canada (^'entrall die municipalities in i ompany against th^^ Co.y. The QaecR){l]^ )aiiy were authorize mortfrajie ilebentures ch debentures it was I enacted should rank pari inissii with the preferential ex- tension bonds issued under the Act of 18G3, and form with them a first charge upon the railway. The last Act necessary to be referred to is 41 Vict. c. ;](), D. (1878), intituled "An Act to amend the Act incor- pirating the Brockville and Ottawa and the Canada Cen- tral Railway Companies, and to provide for the amalga- mation of the said Companies." This Act (sec. 1) declared the Brockville and Ottawa Railway to be a work for the advantage of Canada. Section 2 empowered the two companies to amalgamate, under the name of the Canada Central Railway Company. Section 4 invested the amalgamated company with all the rights, powers, franchises, and property of both com- panies, specified in, and in them vested by, the several Acts relating to the comi)anies; and provided that the amalgamated company should be liable for all the debts, duties, and obligations of both companies. The 7th section declared that the existing preferential liabilities and liens should not be aiiected ; and the 8th provided that the stock of the new company should be allotted to the stockholders of the old companies — in the case of the Brockville and Ottawa Company, at the par value of the existing stock of that conij)any, including the stock, if any, due to the former creditors of the com- pany, and which had not been received by them in ex- change for their claims. The plaintiff" sues as the holder of one of the ordinary bonds issued under the Act of 18(50, and the defendants in effect say that the liabilif y of the Brockville and Ot- tawa Company thereon was extinguished by the Ontario Act of 18G8, and that they are and have always been ready and willing to exchange such bond for reduced new stock, as provided by that A ct and the Dominion Act of 1878. 1881 JONKS V. Canada Ckntual Kailwav Co. Osier, J. il: H ^,■ 784 ONTARIO COURT OF QUEEN's BENCH, !; li 1881 JONKS V. Canada Central Kailway Co, Osier, J. In the third replication the plaintiff contends that tlie Act of 18G8 is void and of no effect as regards him, and is ultra vires the Ontario Legislature, because .such Act is in the nature of a private Act, and the plaintiif, or the holder of the de})enture at the time of passing the Act w^as not specially named therein, or a petitioner for or a party to the Act, nor were his rights specially taken away or limited by that Act or the Dominion Act of 1878. The fourth replication alleges that the Act is ultra vires, because, at the time it was passed, the debenture in question was payable in London, England, and was there domiciliated, and the holder and bearer thereof then re- sided in England, beyond the jurisdiction of the Ontario Legislature, and had no notice of and was not a party to the passing of the Act. These are the replications demurred to. The question really intended to be raised by the tliinj replication is not, as it rather inaccurately states, whether the Act of 18G8 is ultra vires the Ontario Legislature, but whether the plaintiff is brought within its o})oration or affected l)y its provisions. I must say that it seems to me quite clear that lie is. ' ; I ' One of the expressed objects of the Act is, to provide some relief for the ordinary bondholders, and to save fur them, if possible, something out of the wreck of a ln)|ie- lessly insolvent concern. The best way, in the opinion of the Legislature, to effect this was to validate the scheme which the large majority in value of such bonil- holders had approved of ; and this they accordingly pro- fess to do by the Act in question. Their power to do so, if otherwise exercised within the limits of the Confederation Act, was absolute ; and tiie plaintiff, who is an ordinary bondholder, cannot, in my opinion, impeach it. ONTARIO COURT OF QUEP^N S BENCH. 786 lite clear that lie k U Act is, to provide lers, and to save for he wreck of a hojio- Ivay, in the opinion 'as to validate tlie lvalue of sucli \mv\- ley accordingly pvo- The question raised by the fourth replication is a more serious one, and I would gladly have I'eferred it to the full Court had I been at liberty to do so, as a decision artecting the powers of either Legislature under the Con- 4itutional Act ought to have all the weight it vvould de- rive from being the o))inion of the full Court, or of the Court of Appeal. But, as I am now obliged to decider all matters coming properly before me, I must dispose of this question here, with the satisfaction, however, of knowing that if my opinion is erroneous, it can speedily k' correctetl elsewhere. It is argued that the Act is idtra vires as regards the [plaintiff, because, at the time it was passed, the dcljenture [was domiciliated out of the Province of Ontario, i. c, in I England, where the holder thereof resided, and therefore [was not, within sec. 92, sub-sec. 13, B. N. A. Act, property I or civil rights within the Province so as to be the subject i.f legislation by the Provincial Legislature, and many I authorities were cited to enforce the application of the uiaxiiii, mohilia semiiintur personam,. Some of them are referred to, and their result expressed by Strong, V.C, n\R(i Goodhue (1) : "It has been determined in the Eng- lish Courts, by decisions never reversed, and which must, as I .' jnceive, give the law to us, however nmch ibreign jurists and writers on international law have (littered jiitlio point, that the locality of a debt is at the domicile ' the creditor"." The rule, however, is not of universal application, and I in the case of Nickle v. Douglas (2), on a question arising las to the construction of the Assessment Act, it was held IBot to ijovern. I may here refer to the recent case of Re Cigalas Set- 'ment Trusts (8), as contirming the view of the learned ]{ 1881 Jones ('. Canada Ckntual ailway uo. Osier, .1. I'll 19 Grant, p. 454; ante, p. 574. (2) 35 U. C. Q. B., 12G ; 37 U. C. Q. B. 51. (3) 7 Ch. 1). 3r)l. 50 1 ;.! ii,i M t' ■ ■ 1 i . , i ij- 1881 Jones V, Canada Ckntral Railway Co, Oaler, J. 786 ONTARIO COURT OF QUEENS BENCH. Chancellor, now the Chief Justice of Ontario, i^ ile Good. hue (1), that where ])roperty is settled in trustees the governing domicile is that of the trustees and not of the beneficiaries. The argument for the plaintiff, pushed to its legitimate extent, would, if well founded, go a long way to minimise the powers of the Legislature in respect of Provincial railways or other works. For the purpose of financial operations, of raising means to construct, e(|uip, maintain or extend the road, the bonds or debentures of the con- cern are frequently, and I suppose as a rule, made pay- able abroad. Equally, as a rule, it has unfortunately been found necessary, in oi-der to avert the total loss of I their capital by the original, or the first, second or third preference bondholders, to carry on the work, or ])rocure additional capital, by rearranging, consolidatino', aini postponing or reducing the bonded debt. The continued! existence of the road, either as a going concern, or one in I wfiich the original creditors shall any longer have an in- terest, may depend upon some scheme of this kind beiii;^! legalized by the Legislature, where it is not within the! powers conferred by the charter of the company, or wherel the requisite consent of every creditor cannot be obtained. All Acts of this kind, whether they relate to railways or any of the other numerous undertakings incorpm'ateil orj chartered by the Provincial Legislature, must, in onel sense, affect property and civil rights out of the Provincei when any of the creditors of the company do not residaj therein. Whether they defer, reduce, or entirely ex-l tinguish tlie debts they profess to deal with, is merely a! question of dei'-'^'^e. They must therefore be uJ'ra rim as regards^ such creditors, and so practically useless, ii| sub-sec. 13 of sec. d2, B. N. A. Act, is the limit of Proving (1) 19 Grant, p. 418 ; ante, p. 571. BKNCH, ONTARIO COURT OF (JUEEN'S BENCH. 787 ntavio, i^ lie Good- ed in trustees the jtees and not of the led to its legitimate ag way to minimise spect of Pnn-iucial purpose of financial Lict, eijuip, maintain, bentures of the con- as a rule, made pay- ) has unfortunately vert the total loss nf first, second or thinl ! the work, or ])i'Ocaie ;, consolidating, auilj debt. The continued in IT concern, or one in ly lon<::;er have an i'l- lue of this kind hein;^ it is not within thej le company, or \vhere| or cannot be ohtaineil.l relate to railways orj ^ino-s incorporated orj lature, must, in onel out of the Province! ompany do not vesidal luce, or entirely «-r leal with, is merely i srefore be nUra rini practically useless, ill s the limit of Provinj eial powers, and the legal fiction or maxim already ad- verted to is applicable. I hesitate to adopt so narrow a construction of the section. To ([uote again from Re Goodhue (1), per Si)ragge, C. : ■ The true principle I take shortly to b(! that, under the Confederation Act, there has been a federal, not a legisla- tive union ; that to the Provincial Leijislature is commit- ted the power to legislate upon a range of suVyeets which is indeed limited, but that, within the limits prescribed the right of legislation is absolute." One of the matters in relation to which the Provincial Legislature may make laws is local works and undertak- ings, with certain exceptions not affecting this case : s. 92, sulvs. 13. The scope of these words, " in relation to," is extremely wide. Proj)erty and civil rights within the Province is also ijiie of the matters assigned exclusively to the Provincial Legislatures ; yet it is well settled that the Dominion Par- iameiit may legislate with respect thereto where it be- cuiiies necessary to do so for the purpose of legislating generfdly and efi'ectually in relation to matters exclusively within their own legislative authority : I'he N'mgara kdlon Case (2) ; Valia v. Langlois(S) ; Gashing v. If the powers conferred upon the Provincial Legislature I are to be efireci"ually exercised, they must, I think, receive I a not le.is liberal construction. The Act of liS(]8 is certainly an Act relating to what Iwds at the time of its passage a local work or undertak- ing, nor is it less so because it oidy deals with the debts and liabilities of the company. 1881 Jones ('. Canada Ckntral Railway Co. Osier, J. f% l\ p. 571. (1) 111 (Jrant, p. 418 ; ante, p. .570. (3) 3 Can. S. C. R. 1 ; ante, p. 158. (2) 2'J U. C. C. P. 2(Jl. (4) a App. Gas. 41 f ll i !|- 1882 Re Sql'ikr. Statkmknt. other tilings, it was in ett'ect by the said statute cnaettd that if any person liolding an office in any colonv of Great Britain should neglect the duty of such otliiu', or otherwise misbehave therein, it should and in\>j;]\i i,e lawful to and ibr the Governor in Council to reniovy such person from such office. It also recited that ccrtuin members of the legal profession residing and ])vactisiiKf in the county of Huron, in the Province of Ontario, lia,| by their petition to the Governor in Council, prctrrn.il certain charges against his Honour Wilmot Riohanl Squier, Judge of the County Court of the county of Huron, alleging neglect of duty and misbehavioui' in his capacity as such judge, which charges were pavticiilarly set forth in such petition, a copy of which was atuicxoil ; and that the Governor in Council deemed it ex])e(lit'nt that enquir}^ should be made into the said charges, The commission then proceeded, and appointed tlie said David B. Read, the commissioner in that behalf, to examine into and report upon the matters and tliiiii;.s so charged against the said judge, and particularly set forth in the said petition. The commission concluded : " And we do hereljy coiifiv upon you, the said David Breakenridge Read, full powor and authority of sunimoning before you any ]>aity or witness, and of requiring them to give evidencf^ on oath orally or in writing (or on solemn affirnuition, if they be parties entitled to affirm in civil matters), and to produce such documents and things as you, as such connuissioner, may deem requisite to the full investigation of the matters into which you are appointed to examine ; and we do re- quire you, the said David Breakenridge Read, forthwith after the conclusion of such enquiry, to make full report to us touching the said investigation, together with a re- turn of all or any evidence taken by you concerning the same." 5 BENCH. ONTARIO COURT OF Ql'KEN S RENCH, 7!)1 Under that commission, the commissioner, by his notice in writing dated the Hth of January, l(ScS2, addressed to the said judge, required him to take notice that he, tlie commissioner, appointed Monday, the IGtli of January, 1,SS2, at the office of J. T. Gan'ovv, l)arrister, at Godcrich, between the hours of 10 A.M. and 4 P. M., to receive any answer in writing tlio .said judge might wish to make to the charges contained and set forth in tlie paper to the said notice annexed, whicli answer was required to be left in an envelojie addressed to the said conimi.ssioner at Toronto ; and the judge was further required to take notice, that by virtue of the said commisdon the said commissioner had appointed Tuesday, the 24th of January following, at the Grand Jury Room in the Court House at the said town of Goderich, at the hour of 10 o'clock in the forenoon, to proceed with the investigation of the charges contained in the said petition, and to hear such evidence as might be ofiered in regard to the same, and to hear the answer and such evidence as the judge might adduce respecting the same, and the judge was thereby required to attend in person at the time and place last appointed. The judge made affidavit on the 14th of the same month, that he was served with the said notice; that he be- lieved the said D. B. Read intended to, and would unless prohibited therefrom by the writ of this Court, ])rocced at the time and place appointed to hold in a public manner a so-called investigation as stated therein, and call upon sundry persons then and there to give evidence, and permit such persons to make in a public manner, and under the colour of giving such evidence upon the said investigation, various calumnious and scandalous state- ments in reference to the charges annexed to the said notice ; and he added that he entirely denied the right of His Excellency the Governor in Council to cause the 18^2 Re Stil'IER. Statkmknt. 1 ] '1)2 (INTAIUO COrUT (ti' (.HKKXS ItKNCII. 18A2 Be S(iiiKU. Statkmkst. I ■ ■^^ isHue of the said coinrnissioii, or to nutliorizo tlir sai,l commissioner or any person to hold the so-called iiivosti- yation ; and he j)rotested against and objected to a nditlc. man attlie liar, however eminent he nii<;ht be an against judges of the County Courts for inability oi' :y \y ONTARIO C'OUUT OF Ql'KKN S UKNCll. 703 iiiisbehaviour in oflice was establislied Ijy the 20 Vict. 1^'*'- C. •')'^. lie .SiiilKR. \)y 82 Vict. c. 22, s. 1, O., the Ijo;j;l.slatiiro aHsnmed to statk^Tknt. repeal Con. Stat. U. C. c. 15, .s. 2, which j^^ave tlie Oovernor power to appoint County Court and Junior County Court juilife.s. My s. 2 of the .same Act, ,s. J} of the Con. Stat. U. C. c. 1'), above stated, was also assumed to be repealed, and power was assumed to enact that County Court judj^es should hold their offices during pleasure, subject to bo rt'iiioved by the Lioutenant-Covernor for inal)ility, in- capacity, or misbehaviour, established to the satisfaction of the Lieutenant-Governor in Council. By the 8.3 Vict. c. 12, 0., s. 2 of the 32 Vict. c. 22, was repe:\led, and this last enactment declared the (^Vninty Court judges should hold office during good behaviour, but be removable by the Lieutenant-Governor for in- ability, etc. By the 32 Vict. c. 20, 0., the Legislature assumed the power to repeal the Con. Stat. U. C. c. 14, and thereby to abolish the Court of Impeachment. The R. S. O.c. 42, s. 2, continues the 33 Vict. c. 12, s. 1, declaring County Court judges shall hold their office (luring good behaviour, but be removable by the Lieute- nant-Governor for inability, incapacity, or misbehaviour, established to his satisfaction. The remedy now pursued, to hold an enquiry into the conduct of the judge by commission, under the Imperial Act, recited in it, is not maintainable in law. The learned counsel further argued that the power.s of that Act can only be exercised when there is not a con- stituted government with the wide and liberal powers which are possessed by Canada. If, however, such power can in any case be exercised here, it can only be in the event of there not being any other remedy provided by % i) .t t .i ri:p 794 ONTARIO COURT OF QUEENS BENCH. the legislation of the countiy. Here there is a court specially created for the purpose of making sucli an (inquiry. It is true the Ontario Legislati.io assumed, a.s just stated, to abolish it; but there was no such power vested in that Legislature, because it was a court I'stab- lished for the trial, not of Ontai .o officers, but of olHeers of the then Province of Canada, and who are now, and were at the time when that court was attempted tu be abolished, officers of the Dominion of Canada. It is, therefore, notwithstanding the assumed power of the Ontario Legislature to abolish it, a court still in I'nll force and operation for the trial of such matters as are the subject of investigation under this commission. Again, the Imperial Act of 1782 applies only to eases in which patents have been issued in England, and not when they are issued in the colony. All th" f'ases are of that description. A sei. fa., it is laid down, may lie to repeal the patent. But whatever the remedy, the one which is now taken under the Imperial Act is not the proper one. Commissions which are legally issued may be executed in the manner in the Con. Stat. C. c. 13, and the 31 Vict. c. 38, D., mentioned; but these Acts do not authorize commissions to be issued. He referred to (^o)n. Dig., Officer K; Bac. Abr., OtHce M.; 17 U. G. L. J. N. S., pp. -tOO, 445. The Crown is not autliorized to issue commissions to make enquiries of this nature without the sanction of Pai'liament. The Oxford University Commission, which will be referred to on the other side, is a case in point. Mr Robinson, Q.C., on behalf of the Dominion G()\ern- ment, shewed cause. In addition' to t .e statutes already mentioned, 8 Vict. c. 13, s. ':', lua} De referred to, by which the County Court judges hehl their offices during good behaviour, removable on the address of the Legisla- tive Council and Legislative Af^jsembly. It may be that ONTARIO COURT (»F QUF.KN S BENCH. 795 m ill? Act relatiiig to tlie Court of Iinpeachniont, Con. 1882 Stat, U. C, c. 14, is still in force, and the Ontario Lei,ns- ijcScjiiKu. lature had not the power to rei)eal it, either under the argumknt. B. N. A. Act, s. 92, or undt»i any otlier of their pcvers. Eut the case of Willis v. Glpps (1), and Montngue v. The Llou!e)ianf-Goverv.oy of Van Dieme)Cs L(vaii (2), shew that the Imperial Act of 1782 applies to judges. It is not confined to cases in which the grantees of office have received their patents in England, and there can be no rea on why the Act should not be equally operative when the patent of oifice has been granted in the colony. That Act may still be proceeded under, although there uijiv be other remedies as well taken against the indue : See Rerjimi v. Amev (3); Ex parte Robertson, In re Governor-General and Council of Nevj South Wales (4) ; Osgood V. Nelson (5) ; Miisciravc v. Pidido (G) ; The Queen v. Coote (7), and the memorandum of the Lords of the Council on the removal of C^olonial judges, as stated ill () Moore P. C, pp. Ix. to xx. in the Appendix ; Chitty on Pi-rogatives, 77. The Governor may, under the Act of 17'S2, and notwithstanding the Court of Impeachment, '.iioceed under the commissicm. There is nothing in eitlier statute to prevent it. Under the latter Act, sec. i. the Governor does not and is not re([uired to forward every case to the Court of Impeachment, but only if he "finds the same sufficiently sustained and of sufficient moment to demand judicial investigation by the Court of Impeachment." That secius to contemplate a pre- liuiinary investigation by the Governor. If the (Jovernor had power to issue a commission under any authority which is vested in him, but had not the power to issue it under the Act of 1782, the recital in the connnission (1) 5:\roore, V. C. C. 370. (2) (J Moore, 1\ C. C. 48!». (;{) 42 U. C. Q. B. 391. (4) 11 iMoore, P. ('. C. 288. (5) L. 11. r, H. L. o;?(;. (d) T) App. C;is. U)L'. (7) L. K. 4 1'. C. C. 099. f I w,^. ! li I; (I I, )i ill !:;:;. I !.: Ml! )| I'Tf 1882 ^f ScjUIER. AKGUMEN'T. 79G ONTARIO COURT OF QUEENS BENCH. of that Act may be rejected and the commission be sup. ported under his own powers or under the prerogative authority. The case of the Oxford University eomiiiis- sion shews an extraordinary difference of opinion aiuonii' the most eminent counsel of the day as to the validity of that commission : Turner, Bethel, Keating, aiul Kenyon pronounced the commission to be "not consti- tutional or legal," and Dodson, Advocate-General ; Cock- burn, Attorney-General; and Page Wood, tSolicitor-CJciie- ral, saw " no reason to doubt the perfect propriety of the commission on legal or constitutional grounds." If no statute authorizes the issue of the connnission, and if the Crown have power to issue such a commission, thu right of the Governor to issue it must depend upon the exti'iit of his commission : Miisgravc v. Pitlido (1). He referred also to High on Extraordinar}'- Remedies, sec. 7 Moore F. C. N. S., Appendix ix. to xx., is a very important docuiueiit, It states, "That although," as in the case of Mr. Justice Boothby, " the Legislature of South Australia had passeij addresses to the Crown for his removal, that nieasmv did not sufiice as it would have done in England ; auil that although the Legislature might act as his accuser, it rested with the advisers of the Crown in England to dis- pose of the charges against him. " All the forms of suspension or removal wliicli aiv in use," the memorandum states, " lead by ditferent roail> to the same result, viz., a hearing before the Piivv Council. When a positive amotion has been made uudei Burke's Act, 22 Geo. III. c. 75, the appeal to the Queen in Council is stridisshni Juris, being provided for liv the statute itself." They do not recommend the Local Legislatures pre- senting memorials to Her Majesty, because they are in the nature of original proceedings before the Judicial Committee, but recommend the proceedings shall be hy investigation in the colony, and by suspension or amotion there, with the right of appeal to the Privy Council. It appears then that the mode of procedure in all thtst cases under the 22 Geo. III. c. 75, was by enquiry audbv examination before the Governor and Council, and not by commission, and not under oath. Does the Imperial Act of 1782 authorize the Governor to issue such a commission as the one in question : that is, one to enquire into the conduct of a judge, and to call for witnesses and books, etc., and to swear the witnesses, iENCH. ONTARIO COUHT OF QUKKN S BENCH. 80:} ,f ,lso taken by cor- Council, whereby L-der was reversed Council. e Council on tlir in 6 Moore f. C. jortant docunu'iit. a,se of Mr. Justice istralia had pussuvl )val, that measvuti in England ; ami at as his accuser, it in England tn db- •emoval whicli avi- 1 by ditt'erent road> before the Privy Eis been made iiudiM )peal to the Queen provided for l»y Legislatures pre- lecause they are in if ore the Ju.licial edings shall be ly pension or auiution Privy Council. It edure in all these by enquiry and by I Council, and not "orize the Governor in question: that , judge, and to call /e&Y the witnesses, le although the commissioner is not to try or dctennine the matters committed to him ? 1 am of opinion it does not. The commission is a delegation of authority. In Osgood v. Nelson (1), it was held that the mayor and council of the City of London, having the power of removal, might refer to a connuittee of their own body the task of examining into the complaint and receiving evidence upon it and reporting thereon ; and that the re- ference to such committee was not a delegation of authority. The committee was to report to the Common Couneil, and that body was then to dispose of the nase by a trial, if there was ground for a trial. Besides, the Governor and Council have no power by the Imperial Act to put witnesses under oath, as has been done in this case. In the opinion of the law officers of the Crown on the Oxford Commission, they say as to a commission of enquiry such as that was, which was " a commi.ssion issued for the purpose of obtaining information in a matter of public concern without the assumption of any compulsory power, and whose sole authority is derived from the respect with which it may be expected that a royal commission will be treated by Her Majesty's subjects, more especially by public bodies and constituted authorities." The commission now in question goes far beyond the commission referred to,and that one had no other authority than the respect which .should be voluntarily given to it. The commission in question cannot in my opinion be sup- ported under the Imperial Act, nor at common law. If the commission is not .sustainable under that Act, is it authorized by the Con. Stat. C. c. 13, and 31 Yict. c. 38, D. ? The later of these two Acts is the same as the earlier one, excepting that the words " or the administra- (1) L. R. .5 H. L. 636. 1882 Wilson, C. J. I f 1 i ,1 n !,; ' i 1 ! .i i !!li llil!.., It .If t'f '1 1 ; i l! "Ill f Ik. ■MJ! ii f I ill ..I 18^2 Ke SwriER. Wilson, C. J. m 804 ONTARIO COURT OF QUf^KN S UENCil. tion of justice therein," which are in the earlier Act, aw not contained in the later Act. It is under the earlier Act then this conunissiou nmst be supported, if it is to be supported. That Act provides that: (Seel) "Whenever the Governor-in-Council deems it expedient to cause enquiry to be made into and con- cerning any matter connected with the good government of this Province, or the conduct of any part of the puljlic business thereof, or the administration of justice therein, and such enquiry is not regulated by any special law, the Governor may by the commission in the case confer upon the commissioners or persons by whom such en([uiry is tu be conducted, the power of summoning before them any party or witnesses, and of requiring them to give evidenct^ on oath orally, or in writing (or on solemn affirmation, it' they be parties entitled to affirm in civil matters), and to produce such documents and things as such commissioners deem requisite to the full investigation of the matters into which they are appointed to examine." Sub-s. 2 provides for enforcing the attendance of wit- nesses and compelling them to give evidence, and for the punishment of false testimony as perjury ; "but no such party or witness shall be compelled to answer any ques- tion, by his answer to which he might render himself liable to a criminal prosecution." It is under this Act the commission has in part been framed. It was argued that the Act gave no power to issue com- missions, but only provided how they were to be executed when they could lawfully be issued. I am of opinion it does confer the power to issue com- missions for the purposes in the Act mentioned. Then it was said a commission, if it can be lawfully issued under the Act, can only be for the purpose of causing, so far as this case is concerned, " enquiry to be ONTARIO COUHT OF QUEEN S BENCH. 805 II e earlier Act, are n has in part been made into and concerning any matter connected . . . issa with the adiiiini.stration of justice " in the Province — that jic Si,h ikk- is, into the subject of the adniiiii>stration of justice ; Vmt wiUouTc. j. that enquiry cannot be had or made into tlio conduct of any person or official connected with the administration of justice ; that it may be made for the purpose of enquir- inff into the defects in the law, so that the administration of justice may be amended, but it cannot be made for the purpose of getting evidence against any one for his ])un- ishment, suspension, or amotion from office. The words of the Act are not so precise as they might have been to cover such a case as the present, but I am of opinion the fair construction of the Act will cover an enquiry into the conduct of any one connected with ti»e administration of justice. The first section provides that any imrty or witnesses may be summoned to give evidence ; and sub-s. 2 provides that no such parti/ or witnesses shall be compelled to answer any question which may render him liable to a criminal prosecution. The Act contemplates that there may be parties besides witnesses, strictly speaking, who may be affected by or concerned in such enquiry ; just as Mr. Siguier, the County Court judge, is a party, and as the petitioners against him are parties. But the objection, in my opinion, to the applicability of this Act in support of the connnission is, that the Act only applies when " such enquiry is not regulated by any special law ; " and there was from the year 1858, and still is, although the Ontario Legislature assumed, as before stated, to repeal it, a special law which expressly regu- lates the enquiry in question into the cond.:ct of the County Court judge. I refer to the Con. Stat. U. C. c. 14, the Court of Impeachment Act, under which the necessary enquiry can be made. i i! ' ■ill ' 11 ^ Ii!«^ lit SOG ONTAHIO COfUT or tJUEKN's HKNCIi. 1; ! ) 1 j ' 1 1 ■ j.i; : j : ' ,^ 3 ' '< i 1 ■ ' ^^^^B ;^^^B ;^ i J' 1 1 i ' 1 i; i ii^^^^^^B ■; , r ' : 1 i. ■ j ll J ■ U'.i .' 1 H H ' i 1 W^^H ? I^^B^^HI ■ : ^^H \m j : 'i.^ iBU t^HI i ■:! M^ii^l U ::/^ i I^^^^bI ^H^ ^ Til ' 1 If'^Z So thiit I am of opinion the connnission cannot bcsini. Re SyiiKK. ported under tin; Con. Stat. C. c. l.*3. Nor can it, I tliink, wiiHoii.c.j, ''« supported under the C'ourt of Inipeaclnnent Act, (.'on. Stat. U. C. c. 14, s. 4, althoui,di the CJovernor may call t'or further information and particulars before he considi-is tlie case to be suthciently sustained and of sulhciont moment to demand Judicial investigation by the Court of Impeachment; but he cannot issue a commission to get that further information, and certainly it caimot lie got under the oath of the witnesses or of the complain- ant. I may refer also to 1 Wm. »!c M. sess. 2, c. 2. The County Court judges under the Act 2 Geo. iV, c, '2, s. 2, were appointed under the Great Seal of the Prov- ince. It is not said what their tenure of ofHce then was. 1 think it was during ])leasure. The 4 and o Vict. c. 8, does not .specify the tenure of othce of County Court judges. I think they still con- tinued during pleasvu'e. The 8 Vict. c. 13, s. 2, made their tenure during good behaviour, removable on a joint address of the Legislative Council and the Legislative Assembly. The 20 Vict. c. 58, which, among other things, estali- lished the Court of Impeachment, did away with tlie procedure of removing County Court judges upon tli'' joint address of the two Houses ot the Legislature, and gave, by .section 10, judges of the County Courts a tonniv of office during good behaviour, but removable by the Governor for inability or misbehaviour, when inability or misbehaviour was established to the satisfaction of tliu Court of Impeachment then created ; and such continued to be their tenure of otfice (see Con. Stat. U. C. c. 15, .s. o) until the 32 Vict. c. 22, s. 2, 0., which made their tcnuiv during pleasure, removable by the Lieutenant-Governor for inability, incaj)acity, or misbehaviour established to his satisfaction. The tenure was again altered by the KNCll. n cannot he nwy- V can it, I think, liment Act, (^>ii. rnor may call i'm' fore he considers md of HuHiciciit on by tho ( 'o\n't a commission to inly it cannot ln' of tho conipkin- es9. 2, c. 2. i Act 2 Geo. IV. c. Seal of the I'rov- of office tlifn was. cify the ten\n'e of nk they still con- c. 13, s. 2, uwh movable on a joint L(l the Legislative jhov things, cstal'- Id away with tlie judges upon the e Legislature, and ty Courts a tonun" •emovable by the |ur, when inalnlity satisfaction of tlie uid such continued iat.U.C.c. 15,s.ri) I made their tenure iutenant-Governor lour established to ain altered by the ONTAIUO C'OrCT OK (^X'KKN S lUlNCII. S07 31^ Vict. c. 12. .s. 1, 0., which made it during good 18«2 hehaviour, removable, as before stated, l)y the Lieu- /e^sguiKn. tenant-Governor for any of the cau.ses mentioned, estab- wiuon, o. J. lished to his satisfaction ; and so it remains by the R. S. 0., c. 42, s. 2. All mention of the Court of Liipeachment has been dropped in these two last-named statutes, because tho S2 Vict. c. 20, 0., repealed, or, I should say, a.ssumed to repeal, the Court of Impeachment Act. These three last-named Acts are not maintainable, so t'ar as they altolisl. the Court of Impeachment, which was admitted by Mr. Rohinsoa in his argument, and . assume to confer power on the Lieutenant-Governor to remove such judges for any cau.se. Their tenure of office may therefoi'e Ijc described as that of judges during good behaviour, removalde by the Governor for inability or misbehaviour, in case it i.s estpblished to the satisfaction of the Court of Impeach- ment, just as it is described in the Con. )Stat. U. C. c. 1.5, s. .S. And our own statutes should, I conceive, be amended in these respects. As (Jounty Court judges are no longer removable by the Governor upon a joint address of the two Houses of the Legislature, when the Court of Lnpeachment was specially established to meet 'their case, it is a strong reason why their conduct should not be enquired into by conunission under the Con. Stat. C. c. 13. If the joint adilress was done away with for the cause stated, the proceeding by conunission to make enquiry is equally dune away with by the Court of Impeachment Act, which certainly gives an enquiry regulated by a special law. The modes of procedure which I conceive may be taken for the amotion of County Court judges in thi.s; Province are : 1. By proceedings taken under the 22 Geo. III. c. 75, by and before the Governor and Council. I 808 ONTARIO COUJIT OF QUEENS J5ENCH. \\l' nil' :i\>- :! J I m 1882 2. By proceedings carried on l)y and l)efore the Court /{cSquieh. of Impeachment, upon the Governor transmitting;' tlic Wilson, c. J. complaint made to hi'.ri and all papers connected with it to the Chief Justice of Ontario, as president of the Court. under the Con. Stat. U. C. c. 14, s. 4. 3. By scire facias, when the conditiouj and terms of the patent have been broken : Com. Dig. Officer, K. 1] ; Bac. Altr., Offices and Oncers, M. 4. Of course the Legislatures either of Ontario or df the Dominion can address Her Majesty to remove a judjfo but such proceeding is the institution of an original cause before the Judicial Committee — Imperial Act 3 and 4 Wm. IV. c. 41, s. -^ : but that course the Judicial Committee do not recommeiid to be adopted. It is quite clear from the authorities quoted by Mr Todd in his very able work on Parliamentary Government in England, vol. ii. p. 729 ci seq., that notwithstanding the introduction of responsible government into many of the colonies, and the facilities alForded in the colonies for the removal of judges, the remedy given by the Imperial Act 22 Geo. III. c. 75, can still be adopted ; and it may be adopted, as tho cases shew, as well when the judge i- appointed by a Colonial as by an Imperial patent. As to the remedy by prohibition, see Com. Dig. Pro- hibition, A 1 , A 2 ; Bac. Abr. Prohibition, voh G, p. 564, and Prohibition I, K ; Chahot v. Morpeth (1) ; In re Birch (2) ; Ex parte kirayth (3). See also opinion of counsel for University, p. 26 of the Blue Book. I am of opinion it may issue in this case to restrain the execution of this commission, as the commission is, for the reasons I have stated, not maintainable in law; but I shall ''eserve that part of the case, as it may be unneces- sary absohitely to determine it, and will atibrd the parties (1) 15 Q. B. 446. (2) 15 C. B. 743. (3) 3 A. & E. 7r.>. O.NTARIO COURT OF QUEEN's BENCH. 809 an opportunity of knowing that my opinion i.s against the vahdity of the commission, to determine what course tliey may, and more especially the Crown authorities will take, or wish to take, concernino- it. 1882 Be Squier. Wilson, C. J. (3) 3 A. & E. 7VJ. 810 ONTARIO COi.KT OF QUEENS l^ENCH. I'l^i i i'ji ; ; ;; ij|! i'iijp' 1808. Oct. 4. ONTARIO COURT OF QUEEN'S BENCH. The Quken v. Reno and Anderson. [Reported 4 Practice Reports (Ont), 2SL] B. -/. A. Act, ss. 6'), 137 — Administrathtn of justlrf — Fnir, ,■ ,,f Provincial Lcfjislature. W An Act (if the old Province of Canada authorized the Govonior to ajipuint rolice Magistrates ; the Act was temporary : /A/./, that an Act of the Ontario Legislature, continuing the same in force, was valid. In this case, which came before Draper, C. '■ , lie prisoners had been committed to gaol by G. McMicken, Police Magistrate for the Comity of Essex, on an appli- cation for their extradition to the United States as haviiiff been concerned in the robbery of a train. An applica- tion was made for the discharge of the prisoners, on tlie gromid, amongst others, that the Police Magistrate had no jurisdiction. Mr. McMirJidcJ and Mr. (Y Con nor for the prisoners. Mr. JdincH Pdterson for the Crown. Mr. Albert Prince, Q.C., for the Express Company. [The judgment, so far as relates to the present ques- tion, is as follows, p. 293. Draper, C. .7.: — The pressure of other business compelled me to defer giving judgment until some days after hearing tlit application, when 1 was a little startled to hear for the ONTARIO COTRT OF QUEENS BENCH. 811 continuing the same n' the prisoners. first time aii oi)iection raised by the prisoners' counsel, i«t>« that the Act 28 Vict, c, '20 had expired, and with it the theQuekn 1. AND Andeiwon. DnqxT, C. J. authorit_y of the PoUce Magistrate ; and as there was lig^-o then no time to examine into the enactments bearing on the point, the case stood over until this morning. I have no doubt now that there is nothing whatever in tlie question rpased. The statute of Canada (28 X'nt. c. 20) authorizes the Governor to appoint lit and proper persons to act as Police Magistrates within any one or more counties in Upper Canada. Section 8 defines their powers, and they clearly relate to the administration of justice. This statute received the royal assent on the 18th of March, 18f35, and was to continue in force for two years, and thence until the end of the xiext ensuing session of Parliament. On the 2l)tli of Mareh, 1867, the Act creating the Dominion of Canada was passed, and it was brought into operation (by proclamation) on the 1st of July follow- iii^:;. Among the powers which this statute assigns (.occlusively to the respective Legislatures of the Prov- inces is the administration of justice therein. By section ()5, all powers, authorities and functions, which before and at the union were vested in or exer- cisable by the respective Governors or Lieutenant-Gov- ernors of Upper Canada, Lower Canada, or Canada, shall, so far as the same are capable of being exercised after the union, in relation to the government of Ontario ami Quebec respectively, be vested in or may be exercised by the Lieutenant-Governors of Ontario und Quebec re- spectively, etc. See also section 6(5. By section 137. the words " and from thence to the fiul of the then next ensuing session of the Legislature, or words to that effect, used in any temporary Act of the l^rovince of Canada, not expired before the union, shall If mt m • I r 1 ! 'I . f - I! :•■■ mm !■! 18()8 Thk Qlke.v V. Reno anh Anperson. Draper, C.J. 812 ONTARIO COURT OF QUEENS BENCH. be construed to extend to and apply to the next session of the Parliament of Canada, if the subject-matter of the Act is within the powers of the same, as defined by this Act, or to the next sessions of the Legislatures of Ontario and Quebec respectively, if the subject-matter of the Act is within the powers of the same, as defined by this Act." By 31 Yict. c. 17, the Legislature of Ontario continuLil this statute 28 Vict. c. 20 until the first day of Janu- ary, 1869. I have no difticulty in holding that the statute 'IH Yict. relates to the administration of justice, and i:« within the powers of the Legislature of Ontario ; and if I were not free from doubt I could not, while not clear in an opposite conclusion, refuse to adopt the evident con- struction which the Legislature of this Province have put on section 137 in relation to this particular statute, by continuing it as already stated. I do not think the statute of Canada, 31 Yict. c. ?6, at all afi'ects this conclusion. [This Act, by sec. 1, gives the Governor in Council power to appoint Commissioners of Police within any one or more of the Provinces of Canada or within any one or more of the districts or counties in anj^ Province, etc., and provides in sec. 4 that " Every Commissioner of Police appointed under this Act for the purpose of carrying out the criminal laws and other laws of the Dominion only, shall have and exercise within the Province or Provinces, or district or districts, or county or countierj, or temporary judicial district, or provisionul judicial district, of a Province for which he is appointed, all the powers and authority, rights and privileges hy law appertaining to Police Magistrates of cities in the same Province, and all the powers and authority, rights- and privileges appertaining to Justices of the Peaet generally," etc.] 5ENXH, ONTARIO COURT <)F CHANCERY. 813 the next session ject-mattor of the IS defined by tin-, atures of Ontario matter of tlie Act aued by tbis Act." 3ntario continued [irst day of Janu- at the statute 28 of justice, and is 3f Ontario; and if ,, while not clear in pt the evident con- :his Province have . particular statute, ada, 31 Vict. c. ?i, overnor in Council Police within any .ada or within any es in any Province, ^-ery Commissioner t for the purpose other laws of tlie ercise within the districts, or county ,rict, or provisional ch he is appointed, and privileges by ,tcs of cities in tlk- id authority, right- ;tices of the Pean ONTARIO COURT OF CHANCERY. The Attorney-General Tin: Niagara Falls International Bridge Company. [Beported ;20 Grant, o.',.] Infiii'iivititia — Lijunj to Pahlir — Pniprf otfircr to comjilnin of. The Att'irnoy-General of the I'rovincu is the otlicer of the Crown will) is cuiisidored as present in the Courts of tlie Province to assert the rights of the Crowi , and of those who are under its protection. The Attorney-General of the Province, and not the Attorney- General of the Dominion, is the proi)er party to tile an infor- mation where the C(jniplaint is not of an injury to pro[)erty vested in the Crown as representing the Government of the Dominion, but of a violation of the rights of the iiuV)lic of the Province, even though such rights are created by an Act of the Parliament of the Dominion. The Attorney-General of the Province is t!'.e [iroper person to file an information in respect of a nuisance caused by interference with a Railway. Though the jiower of making criminal laws is vested in the Dominion Parliament the Attorney -General of the Province is the proper otlioer to enforce those laws by prosecution in the Queen's Courts of Justice in the Province. Demurrer for want of equity by the defendants, the Great Western Railway Company. Mr. o. Blake, Q.C., and Mr. *Si. Barker in support of the demurrer. Mr. Crooks, Q.C., and Mr. il/o88, Q.C., contra. Strong, V.C. : — This is an information filed by the Attorney -General of Ontario, at the relation of the Erie and Niagara Rail- way Company, conjoined with the bill of that com- 187;$ 814 ONTARIO COUUT OF CHANX'ERY. lif iiU ,iih I i! I a .!! I i liii ii ii',: i.i !' f- I'f 1873 Attouney- UKNEKAr, r. Niagara Falls Intkk- national BnuMiK Co. Strong, V.C. pany, agairst the Niagara Falls International Bijdi^re Company (a foreign corporation, incor])orated by an Act of the Legislature of the State of New York), the Niagara Falls Suspension Bridge Company, and tlie Great Western Railway Company. [The learned judge, after setting out the statements of the information, proceeded (p. .*57) as follows :] On the argument of this demurrer, two ohjeotioiis were urged : first, that the information was impropeily filed by the Attorney-General for this Province, it being contended that the proper officer to complain of the injury to the public, which is the subject of the suit, was the Attorney-General for theDominion; and secondly, that the agreements between the Bridge companies and the Great Western Railway Company were witliin the powers of the former companies. The tirst objection is, in my opinion, without founda- tion. The Attorney-General tiles this information, nut complaining of any injury to property vested in the Crown, as representing the Government of the Doniiniiin, l)ut in respect of a violation of the rights of the public (if Ontario. The Attorney-General of this Province is the officer of the Crown, who must be considered to be pre- sent in the Courts of the Province to assert the rights of the Crown and those who are under its protection. If an ex officio ini:'(n-nmtion in respect of a nuisance caused bv illegal interference with a railway, wdiich is a public higliway, were to be filed in a Court of common law. there would, I should think, be no doubt but that the Provincial Attorney-General was the proper officer to prosecute. Then on what principle could it make any difference that the railway in the supposed case, as the bridge here, belonged to a class of works, over which, as extending beyond the limits of the Province, the B. N. A, Act had conferred legislative powers on the Parlia- ment of the Dominion ? I can discover nothinij incon- KRY. rnational Bridife r))orated liy au New York), the iinpany, an^l the the statements of illows :] IV, two ol>jections \ was improperly this Province, it 31- to comphTin of subject of the suit. nion; and secondly, a-e companies and ' were within the 11, without foiinda- is int'ormatiun, nut irty vested in the it of the Dominion, Its of the public of lis Province is the isidered to be pre- assert the rights of ,s protection. If an uisance caused hy which is a public rt of common law. loubt but that the e proper officer to ioukl it make any iposed case, as the [^rks, over which, as ivince, the B. N. A., srs on the Parlia- ,ver nothing incon- ONTAIIIU COURT OF CHANCERY. 81o rrruous Or inconvenient in the Attorney-General for the 1873 Province being admitted to sue on behalf of the public, even in respect of the violation of rights created by an Act of the Parliament of the Dominion. So far from that being so, the whole system of the administration of ■ "iminal justice furnishe.s an analogy to the contrary^ The power of making criminal laws is in the Legislature of the Dominion ; but it has never been doubted that the Attorney-General of the Province is the proper officer to enforce those laws by prosecution in the Queen's Courts of justice in the Province. For the purpose of obtaining redress for any injury to, or for restraining undue interference with, public pro- perty vested in the Crown, for the purposes of the Gov- ernment of the Dominion, I can conceive that it might be argued with much force that the Attorney-General for the Dominion should be admitted to sue by informa- tion. That, however, is a totally ditierent case from the present. In the case of a public nuisance caused by an illegal obstruction of a railway, as I have alreaily said, the Provincial Attorney-General would be the proper officer to prosecute in a Court of law. A Court of equity, however, would also lend its aid on an information being filed by the proper officer to restrain such a nui- sance. Would it not be a strange anomalv that whilst the criminal information could be preferred by the Provincial Attorney-General, the information in the Court of Chan- cery must be filed by the Attorney-General of the Do- niiniou ? Such a conelu.sion would not result from the exclusive legislative power being given to Parliunient, and there is nothing else in the Imperial Act which can be suggested as authorizing sucli a mode of proceeding. My judgment, therefore, is against that ground of de- murrer. [The remainder of the judgment, which relates exclusively to the second ground of demurrer, is omitted.] Attouney- (Jkneh.vl r. Falls Inteh- N.\TION.\L Biui)(;e Co. Strong, V.C. 41 ifa'./. .M 816 ONTARIO COURT i )F CHANCERY. ONTARIO COURT OF CHANCERY. I .i; IMh Hi' fit 1878 June 22. f i ' i ,f r ill Hi Mi ' 1 1 Board of Trustees of the Roman Catholic Separate Schools of Belleville r. Grainger. [Reported 25 (Irdnt, '770.] (ieparnU Schools, leijislation n-aprdincj — B. N. A. Act, s. UJ. A Provincial Legislature may legislate in regard to separate scliuols. provided that the rights or privileges with I'espect to denniniiiu. tional schools which any class of persons had by law in the Province at the time of Confederation, are not projiulicially affected by such legislation. TheB. N. A. Act provides by sub-s. 3 of s. 93, that " Wherein any Province a system of .separate or dissentient schools exists by law at the Union, or is thereafter established by the Le^'is- lature of the Province, an appeal shall lie to the Govenmr- General in Council from any Act or decision of any rruviiKia! authority affecting any right or privilege of the Protestant or Roman Catholic minority of the Queen's subjects in relation to education;" Held, that this enactment gives an appeal in re- spect of those decisions alone which are Legislative Acts nv tluir equivalents, and not in respect of matters affecting merely tlie every-day detail of the working of a school. In election matters, separate schools have the same right of appeal to a County Judge as public schools have. The bill in this cause was filed on the 13th of Feb- ruary, 1878, by the plaintiffs, as the duly elected trus- tees of the Roman Catholic Separate Schools of Belle- ville for the year 1878. The bill alleged that the defen- dant Grainger, the secretary and treasurer of the Board for the year 1877, together with the other defendants, who pretended that they had been elected trustees of the said schools for the year 1878, claimed to be entitled to the custody of the books, papers, etc., the property of the h ;ry. ONTARIO COURT OF CHANCERY. 817 NCERY. THOLic Sepauati: LAlNtJEU. N. A. Act, s. [!■'>. cl ti) aeparat'j schnoh, I'espoct tu doriDiiiuia- us had by law in the iiro not prejudicially 03, that " Wherein sentient schools exists published by the Lo^is- lie to the GovoriiMr- aion of any Provinciul |e of the Protestant or subjects in relation to jives an api)eal in re- ie<4islative Acts or tlkir ■s atfecting merely the pul. e same right of appeal li the 13th of Feb- duly elected trus- Schools of Belle- IfTcd that the defen- jsurer of the Board other defendants, Icted trustees of tlie led to he entitled to I the property of the plaintiffs. The plaintiffs contended that the defendants 1878 were not duly elected, inasmuch as the pretended elec- skpauatk tions at which they alleged, they were elected were not ^* ",1^^!^.!; q"""^' held hy the returning officers, by whom the municipal i^kli.kvillk elections for the city of Belleville had been held for the Graingkh. year 1878, nor at the places at which the said municipal Siatkmknt. elections had been held as required by the existing law. In consequence of the claim of the defendants, pro- ceedings were taken before the judge of the County Court of the county of Hastings, under the provisions of the statute in that behalf, in order to test the right of the defendants, and the said judge decided that the pre- tended election of the defendants was wholly illegal and void. Notwithstanding this decision, the defendants continued to act as trustees, and refused to deliver up the books and papers and other property of the Board to the plaintiff's. The bill prayed, amongst other things, that the defen- dants might be restrained from assuming to act as trustees of the said schools, and that, if necessary, their pretended election might be declared illegal and void. The plaintiffs gave notice of motion for an injunction in the terms of the prayer of the bill ; which, on the motion coming on, it was agreed should be treated as a motion for decree. Mr. Bcthune, Q.C., and Mr. Moss for the plaintiffs. Mr. L. WaUbriddc Q.C., and Mr. Wells for the de- fendants. Blake, V.C. : — 1^ After examining the enactments bearing on the elec- tion of separate and other school trustees prior to Con- federation, and shewing that some ambiguit}' existed respecting the time, place and mode of holding the elec- tion for trustees, s. 79 of Con. Stat. U. C. c. 64, being 52 ONTARIO COURT OF CHANCKRY. I . 1S78 Sk' MtAI'K Sniooi, Tiiis- TKKS Of Hkm.kvim.k (iHAIN(iKll. BliikL', V.C. in apparent conflict with the prccedinfr sections of tlmt Act, the learned Judf,'e continued as follows (p. r)7M>: This election is governed by the law as it stood on tlii' 81st of Decemljer, 1877, at which time a material change had taken place in the school law of this Trovince. The "Public School Law" had been amended and consolidated by 37 Vict. c. 28, and the ambij^niity as f.i the a1)()ve referred to ss. 3, '20, (i'i, G;3, (51 and 7!) (of Con. Stat. U. C. c. (Jl) had been removed. The clause of the Separate School Act which governed the election in question iippears as s. 28 of c. 206, E. S. 0., and reads as follows : " After the establishment of any separate school, the trustees thereof shall hold ofiice for the same period and be elected at the same time each year that the trustees of public schools are, and all the provi- sions of ' The Public Schools Act, ' relating to the motlr and time of election, appointments and duties of chair- man and secretary at the annual meeting, term of ol'lioe and manner of filling up vacancies, shall be deemed and held to apply to this Act." By this clause the mode of procedure as to rural districts set forth in the Puldio School Acts must be followed in the election of trustees under the Separate School Act in rural districts, and the mode of procedure pointed out as to urban districts in the Public School Acts must be followed in the urban districts under the Separate School Act. The clause in the ** Public Schools Act " to which re- ference is made is s. 59 of c. 204, R. S. 0., and it is as follows: "In every city and town, on the second Wed- nesday in .January, an election shall be held in even- ward at the place of the last municipal election, and under the direction of the same returning officer and deputy-returning otidcers, and conducted in the same manner as an ordinary municipal ward election ; but the voting shall be by open vote, and the provisions of the Acts respecting voting by ballot shall not apply to II Y. OXTAUIO COURT OK CHANCERY. SI 9 sections of Unit 3 it btooil on tllr material cUiin^^u s ri'ovinoc. ni iimendr^l uu'l aml)i!-!;uity as t.. i;j, (U aiitl "'.»!'-»' .>d. The clavisc of 3(1 tlie oloctiitn in S. C)., and vc!i4. of any separate )mce for tilt' same ae each year that ,11(1 all the provi- atingto the luodr Lid duties of chair- ting, term of office all he deemed and [clause the mode of •orth in the rul)lic [election of trustees a districts, and the lu-han districts in ,^ed in the urban let. Act " to which re- . S. 0., aiul it is as ^n the second Wed- ,1 he held in every cipal election, and ,urning officer and .cted in the samo ard election ; but the provisions of shall not apply to Sf'iiooi, Tiu:k- IKKS OF r>Ki,r,i:vii.i,K (iK.MNCKU, niako, v.c; such elections." The time, place and manner of holding ih7h these elections is thus completely provided for, and those skpakatk clauses in the Act which caused the amhiguity prior to consolidation, are happily wanting in the enactment as we have it to-day. It was further argued by the learned counsel for the (U I'endants that the Legislature had no power to pass any law to interfere with the position or mode of election of trustees of separate schools, as settled by statute prior to Confederation, and s. \)l\ of the 15. X. A. Act, 18G7, was cited in support of this contention. It would be a most unfortunate result of this enactment if it were found that it precluded the remedying defects in, or im- proving the machinery for working out, the separate school system. The first sub-section of clause 93 says : " Nothing in any such law shall prejudicially affect any right or privilege with respect to denominational schools which any class of persons have by law in the Province at the Union." It is clear that it was not intended by this sub-section to preclude all legislation, for the third sub-section enacts that " Where in any Province a sys- tem of separate or dissentient schools exists by law at the Union, or is thereafter established by the Legisla- ture of the Province, an appeal shall lie to the Governor- General in Council from any Act or decision of any Pro- vincial authority affecting any right or privilege of the Protestant or Roman Catholic minority of the Queen's subjects in relation to education ;" and further by clause 4 it is enacted that ' ' In case any uch Provincial law as from time to time seems to the Governor-General in Council requisite for the due execution of the provisions of this section is not made, or in case any decision of the Governor-General in Council on any appeal under this section is not duly executed by the proper Provin- cial authority in that behalf, then and in every such case, and as far only as the circumstances of each case li ^ ^^. IMAGE EVALUATION TEST TARGET (MT-S) .^' ^^ 4i, 1.0 I.I tii m Ui 1 28 1 2.5 ■50 ~^~ ni^H lis IIIIIM 1.8 1.25 1 U 1 lA -^ 6" ► Photographic Sdences Corporation 23 WEST MAIN STREET WEBSTER, NY. 14580 (7*6) 873-4503 &y i/j 820 ONTARIO COURT OF CHANCERY. I !':; ■ fli! 1878 Hepakatk ScMooi, This TKEH OK Bkllkvillk V. Grainoeu. Blttke, V.C. require, the Parliament of Canada may make remedial laws for the due execution of the provisions of this sec- tion, and of any decision of the Governor-General in Council under this section." So that there is here laid down a system of appeal in case there be legislation In- u Province injuriously affecting any right or privilege of the minority in relation to education ; and also a sys- tem of appeal is awarded in case needed legislation be not had by the Provincial Legislature when required in relation to education ; and power is given to the Parlia- ment of Canada to make remedial laws in such cases. It is therefore clear that the Provincial Legislature has some power to legislate as to denominational schools ; and it is scarcely possible to conceive a case in which it could and should more properly interfere than where, as here, it is asked to remove an ambiguity in the working of the Act, and to give to the separate schools the same class of machinery for carrying on its work as is givon to the public schools — a machinery which, after much thought and many years' experience, is found to be the- best and simplest we have yet had. No protest has been lodged against this Act, no appeal has been presented to the Governor-General in Council, and as, on the argument of the motion, it could not even be suggested in what manner it could " prejudi- cially affect any right or privilege with respect to de- nominational schools which any class of persons have l)y law in the Province," I cannot conclude but that the statute is constitutional. The remarks which I have made as to the removal of the ambiguity as to the mode of election, apply also to the removal of the difficulty which exists in dealing with ss. 25 and 72 of Con. Stat. U. C. c. 64, and s. 13 of 23 Vict. c. 49. The Legislature was as much justified in the one case as in the other in making plain by the sul)- sequent enactment what was meant, and in allowing to ..-a^i' ONTARIO COURT OF CHANCERY. 821 separate schools the same right of appeal to the County Court judge as was given to the public schools. The rle- fendants appear to have accepted this, as being the true reading of the enactment, for they summoned the plain- tiffs before the judge of the County Court, who investi. gated the matters presented to him connected with the election, and found in favour of the plaintififs' election and against the defendants. I assent to the finding of the judge of the County Court. In the present case the matters in difference have been presented to the forum chosen by the defendants, who now object to the tribunal they selected, the learned judge having found against them. This Court is not sitting in review of the conclusion arrived at by the County Court judge, but is merely applying the auxiliary relief without which the finding of the other tribunal would be nugatory. It is clear that this jurisdiction has not been withdrawn from this Court, whcrevor the right of appeal,if any there be from the County Court judge, may lie. I cannot attach any weight to the argument of Mr. WaUhridcje, that under the words " An appeal shall lie to the Governor-General in Council from any .... decision of any Provincial authority," found in the B.N. A. Act, 18G7, the persons interested in separate schools have the right to present such a difficulty as the present to the Governor-General in Council. The meaning to be attributed to the word " decision" is explained by the words which surround it. The word "Act," which precedes the word " decision, " and the words "of any Provincial authority," which follow it, shew that the matters contemplated as those which should be pre- sented to the supreme authority are such as are "Acts," or their equivalents, and not the mere every-day detail of the working of a school. [The remainder of the judLjment is omitted, the same not having reference to the present ([uestion.] 1878 Ski'akatb SCHOOI. TkU8- TKKH OK Bkli.kvillk (Srainoer. Hliike, V.C. 822 ONTARIO COIUT or CHAXCi:UY. 1 1:; ■ •:' i''U in! 1878 June 29. ONTARIO COUliT OF CHANCERY. CuEDiT Vallky Rulway C():\irANY r. Grkat Westkun Railway Company. [Reporkd 25 Grant, 507.] Prori icial linUivinj croMituj Ihiniuion lidiltraij, apjirontl rninii;;!. Where it is necessary fur a Provincial Railway in Ontario to cross a Dominion Railway, the Company desiring to effect such cross- ing must procure the approval of the Commissioner of I'uhlio Works for Ontario, as well as the approval of the Railway Ctunmittee of the Privy Council of the Dominion ; and tlie Railway Companies cannot, by agreement, waive this provision. Demurrer for Nvant of equity. Mr. M. C. Camcro)!, Q.C., aud Mr. A. Iloskin for the demurrer. Mr. Boyd, Q.C., ami Mr. Wells, contra. Proudfoot, V.C. : — A motion for an injunction in this case was inter- cepted by a demurrer to the bill. The demurrer raises the question whether, where ii Provincial railway in Ontario crosses a Dominion rail- way, it is necessary to procure the approval of the Com- missioner of Public Works for Ontario, as well as the approval of the Railway Committee of the Privy Council of the Dominion ; and also, if that be so, whether the companies can waive this provision ; and lastly, if they can waive it, have they done so in this case ? By the Dominion Act of 1872 [So Vict. c. 05, s. 5), thi Great Western Railway works were declared to be for :iiY ONTARIO fOURT OF CHANCERY. 82.'} sTEUY. GUKAT WksTLUN ti/, (ii>proml rcijinri-il. in Ontario to cross u 5 to ett'ect such cross- iimissioner of Pulilic >ival of the Riiilwiiy Dominion ; and tliu , waive this provision. A. Jloskin for the ,ra. s case was iutei- whether, where a a Dominion ruil- n-oval of the Com- •io, as well as the the Privy Council e so, whether the and lastly, if they case ? ct. c. 05, 8. 5), the declared to be for (JUKAT Wk-ikiin Railway Co. •rouilfoot, V.C. the general advantage of Canada, and subject to the ii'TS 130th section of chapter (U) of the Consolidated Statutes ruKuir of Canada, which prohibited it from availing itsolf of i^uiavay\'o. crossing powers over other railways without getting tlie '' approval of the Board of liailway Commissioners, for whom the Itailway Committee of the Privy Council was , 8ul)stituted by section 23 of the Act of 18()8 (31 Vict, c. 68, s. 23 et. aeq. D.). By an Act of 1877 (40 Vict. c. 45), the powers as to crossings in the Act of 1808 were extended to railways iucori)orated under Provincial Acts, in any case in which it is proposed that they should cross a railway under the legislative control of Canada. I apprehend there can be no ijuestion that this Act of 1877 is quite within tiie competenc of the Dominion Parliament, as necessary and I'ssential for the protection of the Dominion railways within their control ; so that the approval of the liailway Connuittee is requisite before such a crossing can be enforced. By the Revised Statutes of Ontario, c. 105, sec. 9, sub-s. 10, no railway company shall avail itself of the crossing powers (in sub-s. 15) without the approval of the Commissioner of Public Works ; and by section 4, the Act applies to any railway subject to the legislative authority of the Province. The Credit Valley liailway Company was incorporated by the Ontario Statute 34 Vict. c. 38, and is therefore subject to this provision. Hence it would seem that where a Provincial railway crosses a Dominion railwaj% the approval both of the Pailway Committee of the Privy Council and of the Commissioner of Public Works must first be had. The control exercised by the Legislature over railway companies is not merely for the benefit of the companies themselves — it is also for the protection of the public. The numerous provisions in the Pailway Act of 1808 — I ( iJ I ^;-' i * !' 15'; lit!l 1 I 824 ONTARIO COURT OF CHANCERY. V '; i ■J '11 1 t Ml hk MiiL !■•; ''nl 1 I mm |g' ysi 1H78 r.f/., prft venting the opening of a railway till after a Ckedit month's notice to the Railway Committee of intention to RailwayV'o. "P'^1 it (s- 25) ; — for the examination of the railway prior Great Westek\ to opening (a, 27) ; — for condemnation of a dangerous Railway Co ^''^^Iway (s. 30) ; — powers to require permanent bridges Proiuifoot vc ^^^' 'lovable ones (s. 35) ; — powers in regard to the cross- — ing of highways (s. 36) ; — requiring notice of accidents, etc., to be given (s. 39) — shew that regard for the public safety is a material ingredient in considering applications by one railway to cross the line of another, and that it is not merely a question of comparative cost or incon- venience to the companies. The provision requiring the approval of the authorities vested with these powers and duties is therefore not one that can be dispensed with by any agreement, express or implied, of the companies affected. It is true that these provisions of the Eailway Act of 1868, which applies to Dominion roads, do not seem to be repeated in the Revised Statutes of Ontario ; but I have only referred to them as shewing what kind of consideration must necessarily be involved in any appli- cation to the Commissioner of Public Works, — not only the price of the crossing, and arrangements connected with its maintenance, but also the supreme questior, the security and safety of the public. It may be said that the approval of all the Railway Com- mittee affords all the protection requisite for the public safety. Perhaps it does, but the Legislature have thought fit to require the additional protection of the sanction of another officer. [The remainder of the judgment, which refers exclusively to the • tjuestion wliether there had been any waiver, is omitted.] ONTARIO COURT OF CHANCERY. 825 i4 1 the Eailway Com- isite for the publif Legislature have protection of the ONTARIO COURT OF CHANCERY. Re The Toronto Harbour Commissioners. [Reported gS Grant, 105.] Dominion pniperty in Province — Law of Province, effect of. Held, — following the case of The Commimoners of the Cobonrff Trnva Trust, 22 Grant, 377 — that the Commissioners of the Toronto Harbour were entitled to compensation for their ser- vices, and this whether the harbour belonged to the Dominion or the Provincial Government ; as in the event of it being found to belong to the Dominion, it must be assumed that tlie Domi- nion Government intended the Commissioners to be subject to the law of the Province in which the trust was to be adminis- tered. This was a petition presented hy several of the Com- missioners of the Toronto Harbour, to have an allowance tixed as compensation for their services in discharging the duties of such trust. Mr. Boijd, Q.C., in support of the petition. Mr. Foi/ and Mr. Tapper contra. Spragge, C: — This case is not distinguishable in principle from the ease of The Comiuissioners of the Cobourfi Town Trust (1), decided by my brother Proudfoot. I have perused the report of that case, and find that almost every paragraph of the judgment applies to the case before me. The only argument advanced in this case that was not advanced in the case in 22 Grant, where the case was (1) 22 Grant, 377. 1881 t: ; S20 OXTAUIi) COURT OF CHAXCKRY, m ; un Harboik fiprvigt, C. arpm-il bv Mr. ]i<>if,l for the Commissioners, and by tlie prtBent Cliief Justice of Ontario af^'ainst the allowance I*rayee to nullify the powers of I'liilin. ment, not only in its le^'islation upon the two suhjeets ta which I have ex[)ressly referred, hut upon many otli. i- Huhjects which are nnuh' expressly suhjects of its juiis- dietion; not certainly less than one-half of the twcntv- nine suhjects in which exclusive legislative authority is given to the horainion Parliament. I agree with what was said l)y Wilson, C'.J. (then a judge of the Court of (Queen's Bench), upon this point in Cnnnhic v. Jdrlcsim 1 1 i. [Thy rcmiiindur nf tho judi^'inont is omittoil, the same not Imvin.' reference to tlie present . j). ('.80. ;ftlT; ONTAIlIu corin" <»r roMMoS I'MIAS. «31 oNT.viiio conrr of C()M>r()x pleas. CFfi'iicir /•. Fknton. \l{ri,n,(r,l .'S U. <'. C /'. .IS',.] Iit'lliiH litu'h - I'll"''!- ti> (iiy — /»'. A', A. ./.7,.-i. .''/, .-lu^y. ,'J. Tlu'so "IivihIh resurved fur tlio Iiulians, " whicli l>y s. !»l, H(i -m. 24, of tluj H. N. A. Act, ivro plivcoil imdur tins uxclusivp loi,'iHliiiivo jurisdictiini (if tho Piuliiunoiit nf Ciiiiiidii, ar Ijoso ludiiin lands only wliiuli Iiivvo imt boon snn'ondtMi 1 by tlu! 1 uli.ins, iind ,, . . boon rt'^orvod for thoir msu, and do not incluti- landa to which tho Indian title haa been oxtingiiiHhod. Tiio Ontario Loyislaturo has power to tax ayainat a vcndno unpa- tented landa which tho Indiana have aurroiuluri'd for tlio pin- poao of Ijeing aoid ; all unpatented landa, wiiotlior Indian lands or f'rown landa, whon once ai^roed to bo sold, beitii; upon the same fu, 71,188-191,206,207, , 210, 219, 254. {99, 408. 459, 460, 472, 474, 608, 630, 048, 040, 665. 124, 160, 152, 17.5, , 195, 197, 200, 20;), I, 332, 351, 353, 304, , 391, 392, 603, 093. INDEX OF PRINCIPAL MATTERS. PAGE. ACT OF PROVIXCIAL LEGI.SLA- TUKE— Test of Vftliditv of . . 3.51 See Lkgislatukkh ok Ontario and QUKBKO. ACTS- Scc Statutks. ADMINISTRATIOX OF JUSTICE 810 See PiioviNciAL Lkoislatuhes, 4. AIjGOMA — Gommission of Oyer and Terminer to District Judge— Power to issue 722 Sec Prerooativb of thk Crown. APPEAL — Case reserved in Trial for Felony 57 See Provincial Legislatures, 1. Education .... See Separate Schools. Special leave See Provincial Courts. 816 158 Prerogative of Crown to admit . 252 See Legislative Power, 4. ASSESSMENT— See Indian Lands. Provincial Leolslatures, 6. ASSURANCE POLICIES— Power to impose Tax on 117 Sec Legislative Power, 1. Contracts, Regulation of . . 265 See Trade and Commerce. ATTORNEY-GENERAL OF PROV- INCE -Proper officer to complain of violation of public rights . . 813 -See Injury to Public. BANKRUPTCY ... .685 See Insolvency. BANKS — Power to authorize transfer of warehouse receipts to . . . 828 See Legislative Power, 5. BILL OF LADING— 33 Vict c. 19, 0.— B. N. A. Act, 8. 91, 8ub-B. 2. A Provincial Act to the efiFect that all rights of suit should pass to the consignee of goods named in any Bill of Lading, or to the endorsee thereof, to whom the property in the goods should be transferred by such con- PAGE. signment or endorseuient, and that every such iuHtrument representing goods to have been Hhippe,'ht, waB to place the right of deal- ing' with colonial copyright within the Dominion under the exclusive control ()f the Parliament of Canada, as distingniahed from tlie Provincial Legislatures, in the Hame way as the Act has trannforred the jjower to (leal with banking, bankruptcy and insolvency, and other speciliecl sub- jects, from the Provincial Loj,'isla- tures, and placed them under the ex- clusive jurisdiction and control of the Dominion. The Parliament of the Dominion has no greater power to deal with the subject of copyright than was pos- sessed liy Provincial Legislatures prior to Confederation. The Imperial Coi)yright Act, 5 and 6 Vict. c. 45, was in force in Canada at the time of Confederation, and is in force in Canada still. It is not affected by the Canadian Cojiyright Act of 1875, which Act is also in force. Smiles v. Bel ford , COUNTY COURT JUDCE- Charges of Misconduct— iJ/i^/ziVf/ by Commiiision — Court of Impeachment, By the B. N. A. Act, 18ti7, a. 96, the Governor-Oeneral is authorized to appoint the Judges of the County Courts, and th Provincial Legisla- ture of Ontario had no power to pass an Act authorizing the removal of County Court Judges by the Lieu- tenant-Governor for incapacity or misbehaviour, and had not power to fass an Act abolishing the Court of mpeachment, which existed in Canada before the B. N. A. Act, for the trial of charges against County Court Judges. A County Court Judge miay be removed by the Governor-General in Council under the Imperial Act 22 Geo. III. c. 75, but there is no power under that Act, or the Con. Stat. C. c. 13, or under the common law, to issue a commission for a pre- liminary enquiry under oath with re- spect to such charges. Re Squier PAOR. , 2(55 576 789 CRIMINAL LAW- ^'"'^' 1. li.N.A. Act,im, ». •.t2, »„l,:i,. 8, \Ty—Jari»dirtiitn of Local Lrgishi. tiire—R. S. O. c. 181, t. 57. A Provincial Legislature cannot legislate with respect to offences of a criminal nature, except where such legislation is required for the direct enforcement of a law of the Provincn made in relation to a matter coming within its exclusive jurisdiction. In legislating in regard to a matter within Provincial jurisdiction, a Pro- vincial Legislature has no power to enforce its law by provisions respect- ing the trial and punishment oi offenders in respect of acts which would be criminal offences at com- mou law. Section 57 of the Liquor LiceuNe Act of Ontario, R. S. O. c. 181, by which it was provided that any jier- Hon who, on any prosecution under tliat Act, tampered with a witness or induced or attempted to induce any such person to absent himself or to swear falsely, should be liable to a j)enalty of §;">(), was therefore held to be invalid. Ilvgina v. Lawrcwe . 742 2. Crime ^— What is a— 'M> Vict. c. 10, .1. 4, U. — Eridince. An information unler an Ontario Act, for selling intoxicating liquors on Sunday, was held to bo so far a charge of a criminal character that the defendant could not be compelled to give evidence against himself. Jieiiinn v. Roddy .... See Injiky to Public. Tavekn and Shop Licex.sks. DENOMINATIONAL SCHOOLS . Sec Skpakate Schools. DIRECT TAXATIOX- See Legislative Poweu, 1, 3. DISTRIBUTION OF LEGISLA- TIVE POWEU- See liKGisLATivE Power. Dominion Parliament. Provincial Legislatures. DOMICILE- See Provincial Legislatures, 3,7. DOMINION CONTROVERTED ELECTIONS ACT See Provincial Courts, DOMINION OFFICER— Power to tax income of See Provincial Legislatures, 6. DOMINION PARLIAMENT- Juris- diction of— B. N. A. Act, 1867, a. 108. Under the B. N. A. Act, 1807, s. 108, read in connection with the third 709 816 138 592 INDEX OF FIIINCII'AL MATTKHS. 8+5 k'AL SCHOOLS . 81t) k'HOOLS. llON- ToWKii, 1, 3. OF LEOISLA- |e Power, 'arliamknt. leg18latukk9. Ll Lkoislaturks, I Legislatures, 6. ^lAMENT-Juris- I. Act, 1867, ». 108. ^L A. Act, 18G7, ». fction with the third I'A •«• Bchedule thereto, all rnilwayH lielon^- inK to the Province of Nova Scotiii, including the railway in Htiit, paxtted to and became vented on tiie Ixt of July, 18)i7, in the Dominion of Cui>ada, hut not for any larger inter- ent therein than at that date belonged to the Province. The railway in suit being, at the date of the statutory tranxfer, subject to an obligation on the part of the I'roviiicial Government to enter into a trathc arrangement with the reHpon- dent company, the Dominion (iovern- ment, in purnuance of that obligation, entered into a turther agreement relat- ing thereto, of the 'J'Jnd of September, 1871. Quirre, whether it was ultra vires of the Domi'i' n Parliament, by an enactment I ' '.i.it elfe ct, to extinguish the rights ol le respondent company under the said agreement. But held, that Dominion Act, 'M Vict. c. 1(>, did not, upon its true construction, i)uri)ort ho to do. And although it authorized a transfer (if the railway to the appellant, it Y RIGHT. Insolvency. Legislative Power. Maritime Court. Provincial Courts. Statut es. DOMINION PUOPEllTY IN PROV- INCE— Law of Province, effect of. Held, following the case of the Conjmisaicmers of the Cobourg Town Trust, 22 (irant 377, that the Commissioners of the Toronto Har- liour were entitled to compensation for their services, and this whether the harbour belonged to the Dondn- i'ln or the Provincial Government ; as in the event of it being found to belong to the Dominiim, it must be assumed that the Dominion Govern- ment intended the Commissioners to tie subject to the law of the Province in which the trust was to be admin- istered.— iJe Toronto Harbour Com- missiotiei'S 825 DOMINION RAIL WAY— Provincial Railway Crossing, approval required 822 See Provincial Railway. • Power to transfer to new com- pany 233 -See Provincial Lkgiblatubes, 2. EDITCATION- Her .Mkiucal Practitidnkr. SkI'AKATE S('II()(J|,.S. ELECTION See Provincial Coirts. EVIDENCE Crime . See Criminal Law, 2. PAGE. . 158 . 70!) FEDEIJAI, COMPANY Power to dissolve (ir transfor to new uonipany . 233 .s>( Provincial LKiiisLAruREs, 2. EIRE INSrUANCE CONTRACTS — Regulation (if .... 2()."> iVrTuAliE A.NI) COMMERCE. FIRE MARSHALS Court of . . 57 Hee Provincial Legimlaturkm, 1. GOVERNOR-UENERAL -Appeal to, under s. '.13 of the 15. N. A. Act . 810 See Separate Schools. I M P E R I A L PA RLI AMKNT- Aiithority of See Cui'Y right. Medical Practitioner. INCOME OF DOMINION OFFL CER— Power to tax . . . . o92 See Provincial Leimslatures, (5. INDIAN LANDS-Power to tax.- B. N. A. Act, n. Itl, xuh-s. 24. Those "lands reserved for the Indiana," which by s. Ul, sub-s. 24, of the IJ. N^. A. Act, are placed imder the exclusive legislative jurisdiction of the Parliament of Canada, are those Indian lands only which have not been surrendered by the Indians, and have been reserved for their use, and do not include lands to which the Indian title has been extinguished. The Ontario Legislature has power to tax against a vendee unpatented lands which the Indians have surren- dered f.tr the purpose of being sold; all unpatented lands, whether Indian lands or Crown lands, when once agreed to bu sold, being upon the same footing a.s respects liability to municipal taxation.— C'AurcA r. Fen- ton 831 INFORMATION— Proper person to file 81!', See Injury to Public. INJURY TO PUBLIC-Proper offi- cer to complain of. — Information. The Attorney-General of the Prov- ince is the officer of the Crown who is considered as present in the Courts of the Province to assert the rights of the Crown, and of those who are under its protection. The Attorney-General of the Prov- 84G INDEX OF PRINCIPAL MATTERS. m l!:ih i'' !■ I PAOB, ince, and not the Attorney-General of ih'> Dominion, is the proper party to file an information where the com- plaint is not of an injury to property vested in the Crown as representing the Grovernraent of the Dominion, but of a violation of the rights of the public of the Provinco, even though such rights are create:, by an Act of the Parliament of the Dominion. The Attorney-General of the Prov- ince is the proper per8(m to file an information in respect of a nuisance caused by interference with a rail- way. Though the power of making crimi- nal laws is vested in the Dominion Parliament, the Attorney-General of the Province is the proper officer to enforce those laws by prosecution in the Queen's Courts of Justice in the Province. — Attorney-General v. Nia- gara Falls International Bridge Co. . 813 INSOLVENCY— B. N. A. Act, s. 91, subs. 21.— Propcrtu and civil riijhta — 32-33 Vict. c. 10, s.'oO, I). Section 50 of the Insolvent Act of 180!), which jn'ovided that claims by and against assignees in insolvency might he disposed of by the Judge of the County Court or by the ( Jounty Court on petition, and not by any suit, attachment, opposition, seizure or other proceeding whatever, was held not to be beyond the power of the Dominion Parliament, because the right to legislate on the subject of bankruptcy and insolvency belongs exclusively to that Parliament, and because, at the passing of the li. N. A. Act there was a system of proceed- ing in insolvency in force in the for- mer Provinces of Upper and Lower Canada very similar to the one estab- lished by the Act of 180'J. — Urombie V, Jackson ...... 685 Sec Legislative Power, 2, 4. INSURANCE CONTRACTS-Kegu- lation of 205 See TuADE AND Commerce. INSURANCE POLICIES-Power to tax 117 See Legislative Power, 1. LEGISLATIVE POWER-Distribu- tion of. 1. Licenses— Stamps— Direct tax- ation. The clauses of the Act 39 Vict. c. 7 (passed by the Legislature of (Que- bec), which impose a tax upon certain policies of assurance and certain re- ceipts or renewals, are not authorized by the B. N. A. Act, 1867, s. 92, sub 88. 2, 9. A License Act by which a licensee is compelled neither to take out nor i)ay for a license, but which merely pro- vides that the price of a license shall consist of an adhesive stamp, to lie paid in respect of each transaction, not by the licensee, but by the ptr.fim who deals with him, is virtually a Stamp Act and not a License Act. The impositical or jiri- Province— Div' H ) II r pose upon a parti- I r to impose. Provincial I-egisla- Linswick (33 Vict. c. ,. Act to authorize ntures on the cn.'dit itrict of the I'arish in the County of ch eiiii)owei'ed tlio nhabitants of that )y local taxation, a to promote the cou- .Iway extending be- f the Province, but jd by statute, was n the legislative ca- jgislature. egislature can, under t, sec. \}2, art. 2, im- ion for a local pur- PAGE. pose upon a particular locality within the Province. The Act in questior was held to relate to " a matter of a merely local or private nature in the Province," which, by the 92nd section of the B. N. A. Act, is assigned to the ex- clusive competency of the Provincial Legislature, and not to relate to a railway or any local work or imder- taking within the excepted subjects mentioned in Art. 10, sub-sec. (a) of the said section. L'Union tit. Jacques de ^Lmtreal V. Dame Julie Belide, L. K. G P. C. 31, approved. — Dow v. Jiluck. . . 95 4. Prerogative of the Grown to admit appeals— li. N. A. Act, 1807, ss. 91, ^i— Canadian Act, 40 Vict, c, 41, s. '1^—" Final." The B. N. A. Act, 1807, s. 91, in assigning to the Dominion Parliament the subjects of bankruptcy and insol- vency, conferred on it legislative power to interfere with property, civil rights aiiil ))r(jcedure within the Provinces, so far as these might be affected by a general law relating to those subjects ; consequently the Dominion enjiotmerit, 40 Vict. c. 41, 8. 28, providing that the judgment of the Court of Appeal in mattei-s of insolvency should be final, i.e., not subject to the api)eal as of right to Her Majesty in C(umcil, allowed by the Lower Canada Civil Procedure Code, Art. 1178, is within the com- petence of the Dominion Parliament, and does not infringe the exclusive powers given to the Provincial Legis- latures by sec. 92 of the Imperial Statute ; nor does it infringe the (Queen's prerogative, for it only limits the right of (iMpeal as given by the Code. The section according to the true construction of the word " final " therein, excludes appeals to Her Ma- jesty, but contains no words which purport to derogate from tlie prero- gative of the tiueen to allow such appe.ils as an act of grace. It, there- fore, does not interfere with the pre- rogative of the Crown; and, ((ui-re, what powers may be jxjssessod l)y the Parliament of Canada so to do. Cuvillier v. Aylwiu (2 Knai>p's P. C. C. 72) reviewed. —Cushinnwhiipuy. 252 5. PAGE. diction over the subjects assigned to it I y the B. N. A. Act. Pov Spragge, C. :— The Dominion Act. .34 Vict. c. .5, s. 40, which au- thorizes the transfer of warehouse re- ceipts to banks by direct endorsement, la within the powers assigned to the Dominion Parliament and is valid.— Smith v. The Merchants Bank . . 828 Copyright 576 See CuPVUiGHT. Maritime Court Property and civil rights— 34 Vict. c. 5, D.— Trade and Com- merce — Banking. The Diion Cuiitrovcrted Elections Act of 187i— Special leave to appeal. The Parliament of the Dominion of Canada has power to impose new duties upon existing Provincial Courts, and to give them powers as to matters coming within the classes of subjects over which the Dominion Parliament has jurisdiction, conse- quently the Dominion Controverted P^lections Act of 1874 (Canadian Stat. 37 Vict. c. 10), which ccmfers upon the Provincial Cotirts jurisdiction with respect to elections to the Do- minion House of Commons, is valid. Special leave refused to appeal from two concurrent judgments of the Courts in Canada, affirming the competency and validity of the said Act of 1874 ; it appearing to the Ju- dicial Committee of the Privy Council that there was no substantial ques tion requiring to be determined, none of their Lordships having any doubt of the soundness of the judgments, though several judges of the first instance had held the Act to be in- valid. Valin v. Langlois , . . 15H Precedence in . . . . 488 See Queen's Counsel. PROVINCIAL LEGISLATtJRE- Act of, Teat of Validity of See Legislatures of Ontario and Quebec. PROVINCIAL LEGISLATURES- Jurisdiction of 1. Fi7'e Marshals — Appeal in trial for felony. By the Statutes of the Quebec Legislature, 31 Vict. c. 32, ami 32 Vict. c. 29, Fire Commissioners or Marshals were appointed, with power to investigate the origin of any fires occurring in the cities of Quebec and Montreal ; to compel the attend- ance of witnesses, and examine them on oath ; and to commit to prison any witnesses refusing to answer without just cause. Held, that these Statutes were within the competency of the Provincial Legislature. On petitionby the Attorney-General of the Province of Quebec, special leave was granted to appeal from a judgment of the Queen's Bench, Quebec, on a case reserved in a trial for felony.— TAc Queen v. Coo«e . 2. Federal Company— Power to 351 57 dissoivc. A Provincial Legislature of Canada has no power to pass an Act trans- ferring to a new company, or other- 54 page. wise, a federal railway, with its ap- purtenances, jiroporty, rights and powers, or to tlissolve a federal com- pany, or to substitute for it a com- pany to bo governed l)y, and subject to, I'rovincial legislation. — Boiwfioin V. L't Gompmjnic da Chcnin de Fer de Montreal, Ottawa et Occidental . , 233 3. 34 Vict. c. 99, O. -Domicile. A testator had devised the residue of his estate in trust for such of his chil- dren as should be living at the decease of his widow, and for the children of any of them who should then be dead. Before the widow's death, and on her application and that of the testator's children (all of whom were living), the Provincial Legislature of Ontario jiassed an Act (34 Vict. c. 99) for dividing the property among tlie tes- tator's children forthwith. Held, that such an Aufc was within the compe- tence of the Provincial Legislature ; but the Court held further (Draper, C. J., and Spragge, C, dissenting), that the testator's grandchildren, not having been expressly named in the Act, and there being no express and explicit enactment specifically refer- ring to and barring their rights, their interests remained unaffected by the Act. — Re Goodhue .... 5C0 4. B. N. A. Act, ss. 65, 137.— \ ' Administration of Justice. An Act of the old Province of Canada authorized the Governor to appoint Police Magistrates ; the Act was temporary. Held, that an Act of the Ontario Legislature, continu- ing the same in force, was valid. — The Queen v. Reno and Anderson . 810 5. Municipid Corporations— Mar- ket Regulations. R. S. 0. c. 174, s. 466, sub-s. 6. The provisicms contained in the Municii)al Act of Ontario, authoriz- ing City Councils to pass by-laws "for preventing criers and vendors of small ware from practis^-.g their call- ing in the market, public streets, and vacant lots adjacent thereto," is not ultra vires of the Ontario Legislature, as being a regulation of trade and commerce. In giving jurisdiction to the Pro- vincial Legislatures in all matters relating to municipal institutions, the intention must have been that these Legislatures should have power to alter and amend all the existing laws with respect to such institutions, and especially to enlarge the scope of a power existing in the Municipal Act at the time of Confederation.— iJarrts v. City of Hamilton .... 756 850 INDEX OF PRINCIPAL MATTERS. PAGE. G. Pmoer to tax income of Dom- inion Officer — AsscHsment laxo, A Provincial Legislature cannot impose a tax upon the official income of an officer of the Dominion (Jovern- ment, or confer such a power upon the municipalities. — Lcprohon, v. City of Ottawa 592 7. Private Act, Effect of— Domi- cile of part II affected. Provincial Lef,'islatnre3 are not re- stricted to legislation respecting pro- perty such as bonds held in the Prov- ince, and where debts or other obliga- tions are authorized to be contracted under a local Act, passed in relation to a matter within the power of the Local Legislature, such debts may be dealt with by subsequent Acts of the same Legislature, notwithstanding that by a fiction of law they may be domi- ciled out of the Province. — Jones v. Canada Central Railway Co 8. Sale of liquor — Prohibitory by-laws — Powers of Municipal Cor- porations — 32 Vict. c. 32, O. Under the exclusive legislative au- thority given to it with regard to "Mu- nicipal Institutions," and to " matters of a merely local or private nature in the Province," a Provincial Legisla- ture can confer on municipal corpora- tions power to pass by-laws wholly prohibiting the sale of spirituous li- quors in shops and places other than nouses of public entertainment, and limiting the nuuiber of tavern licenses; and the conferring such power is not an interference with " the regulation of trade and commerce," assigned exclusively to the Dominion Parlia- ment. — tularin \. Village of Orillia . — Bill of Lading . See Bill of Lading. — Brewers' Licenses See Bhkwkus' Liuknses. — County Court Judge. Sec County Court Judge. — Crime. See Ckiminal Law. — Education . See Medical Practitioner. Powers See Legislatures of Ontario and Quebec. Queen's Counsel. See Queen's Counsel. Separate Schools 777 688 683 414 789 742 761 351 488 816 Sec Separate Schools. PROVINCIAL RAILWAY crossing Dominion Kailway, — Approval re- quired. l'A