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Les diagrammes suivants illustrent la mdthode. 1 2 3 1 ^ m !"■' The License Question t t -■\? .* ,./' "■I \\ THE LICENSE QUESTION. ■O- As considerable misconception prevails as to the powers and duties of officials of the Local Government in granting or refusing licenses to sell icitoxicating liquors, either wholesale or retail, in mvmicipalities where a prohibitory by-law is in force, it is desirable that the law on the subject should be claarly known. And as the question has repeatedly come before the Courts, and may be regarded as definitely settled, it is not difficult to arrive at the true position. In the province of Quebec, there are, so to speak, three sets of laws, directly bearing on the liquor traiiic, independently of the Dunkin Act. Eirst, there is the general license law of the province, under which the traffic is regulated and con- trolled, and which renders it incumbent on all traders, whether wholesale of retaiJ, to obtain in a given way and for a given price, varying according to locality, per- mission to carry on their business for a limited time. Secondly, we have in those parts of the Province regulated by the Municipal Code, the provisions of that code which in general terms authorize municipalities to prohibit altogether the sale of intoxicating lic^uors within their boundaries by retail, or to speak more accurately, in (juantities less than two gallons or a dozen bottles. And lastly, we have the Uominiou Statute — " The Canada Temperance Act " — by observing the provisions of which, cities and eountie,«, if a majority of the electors think proper, inoy absolutely prohibit all tratlic in intoxicating liquors, within their limits, ^vhilc the act is in force. There are thus one Doniiniou and two Provincial Statutes bearing on this important subject. Wliile all agree that the promotion of temperance is desh'ablo and that tl.e regulation of tlie liquor trade shouhl be strictly contiolled by law, there are many — and their views are entitled to great respect— -who hold that, in face of the admitted evils and miseries wliich accompany it, it should be prohibited alto- gether, throughout each Province and throughout the l^ominion, if possible, and that at all events municipalities shonld l^e empowered to follow out their own views in the matter. And they ask : Why does not the Local Government of this Pro- vince solve the difhculty in the latter case, by simply withholding all licenses, whether foi wholesale or retail trade, in those municipalities which have pronounced in favor of prohibition ? T :Mi Now, without entering into the disputed question whether prohibition in itself is right or wrong, expedient or inexpedient, desirable or undesirable, the answer of the Government of Quebec to this question is n plain one ; and their defence of the course they have pursued and are pursuing — if defence is required — is, it is submitted, conclusive. And the reply is this : Under the law of the Pro- vince of Quebec, as it now stands, assuming that law to bo constitutional, munici- palities have no power to prevent wholesale traffic, nor have the local authorities power to refuse wholesale licenses to those who properly apply for them. To do so would be in the apprehension of the Government to violate the law ; and so their course has been and will continue to be to instruct the Eevenue Collector, in nil cases where a municipal by-law is in force, prohibiting retail trade, to refuse to issue retail licenses, until compelled to do so by the authoritative order of a court of last resort. In other words they propose to assume and stand by the constitu- tionality of articles 56 1 to 567 of the Municipal Code, till they are definitely pro- nounced invalid, a contingency much to be regretted should it occur. But further than this they cannot go. To instruct their officers to refuse to issue wholesale licenses, in the absence of an enabling statute, and indeed in the face of existing statutes, would be fraught Avith mischief, as ir effect substituting the will of the Exe cutive for the law of the land. In Ex parte Edson, 7, L. N. page 68, Judge Brooks held, " That a municipal corporation had no power under Article 561 of the Municipal Code to prohibit the sale of intoxicating liquors within the limits of the municipality ", and that a Local Legislature cannot prohibit the sale of liquors, but may only legislate exclusively upon this subject for the purpose of raising a revenue for provincial, local or municipal purposes. Again in case No. 114, Tiiree Eivers, Dussureauvs. Lasalle, License Inspector, Judge Bourgeois condemned the license inspector, Lasalle, to grant the Plaintiff a license, on his tendering, with his certificate, the amount due for Provincial revenue purposes, notwithstanding the existence of a prohibitory by-law. But it may be said, if the law as it now stands is insufficient to enable municipalities to prohibit the sale of liquor in all shapes within their limits,^ why is not the law amended, and why has no measure with that end in view* been introduced into and passed by the Legislature ? Here again the answe: of the Governement is plain. Granting, as they are disposed to do, that sucl^ a measure would be desirable, it is under our constitution, as interpreted by the highest authorities^ one beyond the powers of a Provincial Legislature. To pass such an act in opposition to the repeated decisions of our courts — to pass it for the purpose of its disallowance by the Governor General, or to have it declared null by the first Couit before which it came, would be an unmixed evil. If local prohibition in a wider sense than that granted by the Canada Temperance Act is 8 desirable, the boon must be sought from the Parliament of Canada ; and no advantage can be obtained by the Legislature assuming responsibilities which it is not called upon to assume or exorcising functions which it does not possess. It must be borne in mind that with us the Government of the Province is one of enumerated powers, which are specified in the B. K A. Act, and in this respect differs from the constitution of the Dominion Parliament, which ia authorized " to make laws for the peace, order, and good government of Canada in relation to all matters not coining within the classes of subjects by this Act assigned exclusively to the Legislatures of the Provinces ; " and that " any matter coming within any of the classes of subjects enumerated in this section shall not oe 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. " Therefore " the regulation of trade and commerce, " being one of the classes of subjects enume- rated in section 91, is not to be deemed to come within any of the classes of a local or private natuic assigned to the Legislatures of the Provinces. In a word there are two powers which may be exercised by the Provincial Legislatures : the one legitimate, to regulate ; the other unconstitutional, to prohibit. As the truth of this proposition is obviously most important, it is advisable to state at some length the decisions on which the Government rely. The question first arose in New Brunswick in 1875. The Legislature of that Province, by an Act subsequent to Confederation, declared that " no license for the sale of spirituous liquors should be granted or issued within any parish or municipality in the Province, when a majority of the rate-payers resident in such parish or municipality should petition the sessions or Municipal Council against issuing any license within such parish or municipality. " The Supremo Court of New Brunswick, then presided over by Chief Justice Eitchie, now Chief Justice of the Supreme Court of Canada, unanimously held the act ultra vires, being clearly of opinion that in passing it the Legislature "assumed to exercise a legislative power which belonged exclusively to the Parliament of Canada. " In 1878 the Federal Statute known as the Canada Temperance Act and above referred to became law, and soon after was declared in force in the city of Fredericton, The question of the competence of Parliament to pass an act virtually establishing local option throughout the Dominion was raised at once in the New Brunswick Courts and ultimately in appeal before the Supreme Court of Canada, in the well known case of the City of Fredericton V3 The Queen, in which the constitutionality of the Act was upheld. A few extracts from the opinions of the judge may be given. 3 Can. S. C. K. 505. I: lUtcliie, C. J, : " Wlion I had tlic lionor to bo Chief Justice of New Ilrunswick, the question of the ri-,'lit of tho Local I^>j,'i3lnturos to pass laws prohibiting tho sale or traffic in intoxicating liquor: came S([uarely before the Supreme Court of that rrovinrc ; and thiit Court in the case of IJegina v. The Justices of Kings County unairiniously held that und(!r tho ]J. N. A. Act the I/3cal Legislature had no power of authority to prohibit the sale of intoxicating li(inorfl, and declared the Act with that intent uUr(0 virea and therefore uncon- stitutional. I have carefully reconsidered the judgment theTC pronounced and I have not had the least doubt raised in my mind as to the .soundness of tho conclusion at which the Court arrived on that occasion. I then thought tho Local Legislature had not tlie power to prohibit ; I thinlc the same now. I then thought the power belonged to the Dominion Parliament ; 1 tliink so still. " To my mind it seems very clear that the general jurisdiction which is thus conferred emphatically negatives tho idea that there is not within tho Dominion legislative power or authority to deal with the (juestion of prohibition in respect to the safe or tmffic in intoxicating liquors or any other articles of trade or conuujrcc. Apart from the general legislative power which, I think, belongs to the Dominion Parliament, I do not entertain tiie slightest doubt that the power to prohibit is within tho jiower to regulate. It would be strange, indeed, that, having the sole legislative power over trade and commerce, tho Dominion Parliament could not prohibit the importation or exportation of any article of trade or commerce ; or, having that power, could not prohibit the sale and traffic, if they deemed sucli prohibition conducive to the peace, order, and good government of Canada. Fournier J,~"After having carefully considered the important questions which arise on this appeal, and having the opportunity of taking communication of tho able and elaborate judgment of the Chief Justice, I need only say that I entirely concur in the view taken by him as to the constitutionality of tho Canada Temperance Act." Taschereau, J.~" It Is clear that the Canada Temperance Act, 1878, could not be enacted by the Provincial Legislatures, for the simple reason' that they have only the powers given to them by the B, N. A. Act, and that the said B. N. A. Act does not give them the power to effect such legislation " It seems to me the admission that the Local Legislature could not pass such an Act implies the admission that the Dominion Parliament can do so. Once the power of legislation over a certain matter is found not to vest in the Provincial Legislature the (question is solved, and that power necessarily fails Under the control of the Dominion Parliament, subj''-" ""- "o' .e^.tt,.e..^^^^^^ tr./'""^ l*"™ ''™'''°°' " " abundantly clear that Iho r.nwer of prohibitin. tt,, it and Witt t alonratd hft „ ^ ^"' "'"'"« '"™ """ ""' °''J'"=' «»'» with Legislat, e «" IdTvoid If H "™'"'! '° ""' ''"^"™ P""^^ ^^ " l'™--™' 4o.i.i.it. riitii o'n'itxt: .":r t-trrr" =r[o::rti:;^^^^^^^^^^^^^^ to the Federal Parliament, which alone i, entitled'^l^r orit;?"'™ ean„o7tf co'jfeSd h'; Tt "■ Tf" """"' '' ""' P^^"^" -" «"'«"™ HodK & Tl„? n ^, I'S'g'slature, it may, however, as ^vas determined in ori::.:t?er;h':t:rroi\7S^^^^^^^^ of inns, taverns and othe places where IkmorTs sold V ^ government enMed also to exact suchLs on t': ilt^l^e:!, mT/^irm^drSit: «is«n. law is defective orrSe ofaireX^^^^^^^ ^h"h ruX u'n °t^,' "r ^"««^'"°" '-^'"« '» --dy » -y meas::Tre:n carry out and enforce the regulations now in operation. 'VlMliMHMIi id disorderly the goncnil liamont, nud icli (loos not notably by )erior Court 18. , " that the tion of tho of Queen's rsed in tho libiting [ha >f Canada ; ; rests with Provincial ictory, tho an be no eforo who ' attention ject. therefore 'mined in character vernrnent )ose3 it is xpedient. igislature hem, the prepared an evil trictly to ^ i<1 m i