IMAGE EVALUATION TEST TARGET (MT-3) ^ '^ // A «; 1.0 I.I Iri^ IIIIIM S ^ IIIIIM !!: 1^ 12.0 m 1-25 1.4 1 1.6 /l" ^ — ^ Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 m i\ iV i..iure has not enacted any of these, but has merely authorized ea.h Board in its discretion to make them. "It seems very difficult, in our judgment, to hold that the Confed- . eration Act gxves any such power of delegating authority, first of ^reating a >juad offence, and then of punishing it by fine or imprison- " We think it is a power that must be exercised by the Legisla- ture alone. • ° " In all these questions of ultra vire^ the powers of our Legislature wo consider it our wisest course not to widen the discussion by con' siderations not necessarily involved in the decision of the point in controversy. "We, therefore, enter into no general consideration of the powers of the Legislature to legislate on the subject; but, assuming this nght so to do, we feel constrained to hold that they cannot devolve or delegate thege pwoifl to the diHcretion of a local board of oommiH- Nioners. " We think the defendant has the ripht to say that ho has no' oJFondeii aj^ainst any law of the Province, and that the convictionH cannot be supported." IN THE rOUKT OK APPKAK. The case was taken from the (Queen's Bench on appeal to the Court of Apj)eal for Ontario, under the Ontario Act, 44 Vic, ch. 27, and on the 30th Juno, 1882, that Court reversed the decision of the Queen's Bench, and affirmed the conviction. Two questions only appear to have been discussed in the Court of Appeal, Ist, that the Legislature of Ontario had not authority io enact such regulations as were enacted by the Board of Commissioners, and to create offences and annex penalties for their infraction ; and, 2nd, that if the Legislature had such authority, it could not delegate it to to the Board of Commissioners, or any other authority outside their own legislative body. This second ground was that on which the judgment of the Court of Queen's Bench rested. The judgments delivered in the Court of Appeal by Spragi?e, C.J., and Burton, J. A., are able and elaborate, and were adopted by Pat- terson and Morrison, JJ 's, and their Lordships have derived consid- erable aid from a Odreful consideration of the reasons given in both Courts. GROUNDS OF APPEAL TO THE PRIVY COUNCIL. The appellant now seeks to reverse the decision of the Court of Appeal, both on the two grounds on which the case was discussed in that Court and on others technical, but substantial, and which were urged before this Board with zciil and ability. The main questions arise on an Act of tl)e Legislature cf Ontario, and on what have been called the resolutions ol the License Commissioners. SECTIONS OF THE ONTARIO ACT DIRECTLY IN QUESTION. The Act in question is chapter 181 of the Revised Statutes of On- tario, 1877, and is cited "as the Liquor License Act." Sec. 3 of this Act provides for the appointment of a Board of License Commissioners for each city, county, union of counties, or electoral district as the Lieutenant-Governor may think fit, and sees. 4 and 5 are as follows : — " Sec. 4. License Commissioners may, at any time before the first day in each year, pass a resolution, or resolutions, for regulating and diitermining the matters following, that is to say :— tXyt, " (1) For defining thn conditiona and (jualificationB requisite to obtain tavern licenHoa for tlie retail, within the municipality, of M|iirituouH, fermented, or other maaufacturod liquom, and also shop licenseH for the sale by retail, within the municipality, of such li(|Uor8 in shops or places other than taverns, inns, alehouses, beerhouses, or places of public entertainment. "(2) For limiting the number of avem and shop licenses respoc- tively, and for defining the respective times and localities within which, and the pei-sons to whom, such limited number may be issued within the year from the first day of May on one year till the thir- tieth day of April inclusive of the next year. "(3) For declaring that in cities a number not exceeding ten jxM-sons, and in towns a number not exceeding four persons, qualified to have a tavern license, may be exempted from the iiocessity of having all the tavern accommodatio)» required by law. " (4) For regulating the taverns and shops to be licensed. " (5) For fixing and defining the duties, powers and privileges of the Inspector of Licenses of their district. " Sec. 0. In and by any such resolution of a Board of License Commissioners the said Board may impose penalties for the infraction thereof. Sec. 43 prohibits the sale of intoxicating liquoi-s from or after the hour of seven of the clock on Saturday till six of the clock on Monday morning thereafter. Sec. 51 imposes on any person who sells spirituous liquors withoiit the license by law required, or otherwise violates any other provision of the Act, in respect of which violation no other punishment is pre- scribed, for the first offence a i)enalty of not loss than twenty dollars and not more than fifty dollars, besides costs, and for the second offence imprisonment with hard labour for a period not exceeding three calendar months. Sec. 52. For punishment of offences against sec. 43 (requiring taverns, etc., to be closed from seven o'clock on Saturday night until six o'clock on Monduy morning), a penalty for the first offence of not less than twenty dollars with coats, or fifteen days' imprisonment with hard labour, and with increasing penalties for second, third and fourth offences ; and Sec. 70 provides that where the resolution of the License Commissioners imposes a penalty it may be recovered and enforced before a magistrate in the manner and to the extent that by-laws of municipal corjioratio^s may be enforced under the authority of the Municipal Act 8 License Commissionera were duly appointed under this statute, who, on 25th April, 1881, in pursuance of its provisions, made the resolution or regulation now questioned in relation to licensed taverns or shops in the city of Toronto, which contains (inter alia) the fol- lowing paragraphs, viz.: — " Nor shall any such licensed person, directly or 'indirectly as aforesaid, permit, allow, or suffer any bowling alley, billiard or baga- telle table to be used, ov any games or amusements of the like description to be played in such tavern or shop, or in or upon any premises connected therewith, during the time prohibited by the Liquor License Act or by this resolution, /or the sale of liquor therein. "Any person or persons guilty of any infraction of any of the pr.v visions of this resolution shall, upon conviction thereof before the Police Magistrate of the city of Toronto, forfeit and pay a penalty ot twenty dollars and costs ; and in default of payment thereof forthwith the said Police Magistrate shall issue his warrant to levy the said penalty by distress and sale of the goods and chattels of the offender- and m default of sufficient distress in that behalf, the said Police Magistrate shall by warrant commit the offender to the common gaol of the city of Toronto, with or without hard labour, for the period of fifteen days, unless the said penalty and costs and all costs of distress and commitment, be sooner paid." The appellant was the holder of a retail license for his tavern, and had signed an undertaking as follows : " We, the undersigned holders of licenses for faverns and shops iu the city of Toronto respectively acknowledge that we have severally and respectively received a copy of the resolution of the License • Commissioners of the city of Toronto to regulate taverns and shops passed on the 25th day of April last, hereunto annexed, upon the several dates set opposite to our respective signatures hereunder written, and we severally and respectively promise, undertake and agree to observe and perform the conditions and provisions of such resolution, ''2nd May, Tavern. ^. c. Hodge, (l.s.)" He was also holder of a billiard license for the city of Toronto to keep a billiard saloon with one table for the year 1881, and, under it, had a billiard table in his tavern. He did permit this billiard table to be used as such within the period prohibited by the resolution of the License Commissioners and It was for that infraction of their rules he was prosecuted and convicted. REVIEW OF THE ARGUMENTS. The preceding statement of the facts is sufficient to enahle their Lordships to determine the questions raised on the appeal Mr Kerr, Q.C. and Mr. Jeune, in their full and very able argu- ment for the -appellant, informed their Lordships that the first and ^r,"r/.' i'^"''*'°" '" *^' '^"'' ^"^ ^^^'^'' " The Liquor License Act of 877. m Its fourth and fifth sections, was ultra vires of the Ontano Legislature, and properly said that is was a matter of im- portance as between the Dominion Parliament and the Legislature 01 the Province. . Their Lordships do not think it necessary in the present case to ky down any general rule or rules for the construction of the British North America Act. They are impressed with the justice of an observation by Ha iy. C. J., " that in all these questions of ultra vtres It IS the wisest course not to widen the discussion by considera- ations not necessarily involved in the decision of the point in con- troversy." They do not forget that in a previous decision on this same statute (Parsons v. The Citizens Company) their Lordships recommended that, "in performing the difficult duty of determining, such questions, it will be a wise course for those on whom it il thrown to decide each case which arises as best they can, without entering more largely upon the interpretation of the statute than i*. necessary for the decision of the particular question in hand." RUSSELL V. REGINA. The appellant contended that the Legislature of Ontario bad no. power to pass any Act to regulate the liquor traffic ; that the whole power to pass such an Act was conferred on the Dominion Parha ment and consequently taken from the Provincial Legislatnre. bv sec. 91 of the British North America Act, 1867 ; and that it did nJt come withm any of the classes of subjects assigned exclusively to the Prbvmcial Legislatures by sec. 92. The clause in sec. 91 which the Liquor License Act, 1877, was said to infringe was No 2 "The Regulation of Trade and Commerce," and it was urged that the decision of this Board in Russell v. Regina was conclusive-that the who G subject of the liquor traffic was given to the Dominion Pariia- ment, and consequently taken away from the Provincial Legislature It appears to their Lordships, however, that the decision of thia tribunal in that case has not the effect supposed, and that when properly considered, it should be taken rather as an authority iu support of the judgment of the Court of Appeal. 10 The solo question there was, whether it was competent to the Dominion Parliament, under its general powers to make laws for the- peace, order and good government of the Dominion, to pass the Canada Temperance Act, 1878, which was intended to be applicable to the several Provinces of the Dominion, or to such parts of the Provinces as should locally adopt it. It was not doubted that the Dominion Parliament had such authority under sec. 91, unless the subject fell within some one or more of the classes of subjects which by sec. 92 were assigned exclusively to the Legislatures of the Provinces. It was in that case contended that tl^ subject of th • Temperance Act properly belonged to No. 13 of sec. 92, " Property and Civil Rights in the Province," which it was said belonged exclusively to the Provincial Legislature, and it was on what seems to be a mis- application of some of the reasons of this Board in observing on that contention that the appellant's counsel principally relied. These observations should be interpreted according to the subject matter to which they were intended to apply. Their Lordships, in +hat case, after comparing the Temperance Act with laws relating to the sale of poisons, observed that : — " Laws of this nature designed for the promotion of public order, safety or morals, and which subject those who contravene them to criminal procedure and punishment, belong to the subject of public wrongs rather than to to that of civil rights. They are of a nature which fall within the general authority of Parliament to make laws for the order and good government of Canada." And again : — " What Parliament is dealing with in legislation of this kind is not a matter in relation to property and its rights, but one relating to public order and safety. That is the primary matter dealt with, and though incidentally the free use of things in which men may have property is interfered with, that incidental interference does not alter the character of the law." And their Lordships reasons on that part of the case are thus concluded : " The true nature and character of the legislation in the particular instance under discussion must always be determined, in order to ascertain the class of subject to which it really belongs. In the present case it appears to their Lordships, for the reasons already given, that the matter of the Act in q!ia°,tion does not properly 11 belong to the class of subjects ' Property and Civil Rights ' within the meaning of subsection 13." It appears to their Lordships that Russell v. the Queen, when properly understood, is not an authority in support of the appellant's contention, and their Lordships do not intend to vary or depart from the reasons expressed for their judgment in that case. The principle which that case and the case of the Citizens' Insurance Company illustrates is, that subjects which in one aspect and for one purpose fall withm sec. 92, may, in another aspect and for another purpose, fall within sec. 91. r r . THE ONTARIO LAW. Their Lordships proceed now to consider the subject matter and legislative character of sees. 4 and 5 of " The Liquor License Act of 1877, cap. 181, Revised Statutes of Ontario." That Act is so far confined in its operation to municipalities in the Province of Ontario, and is entirely local in its character and operation. It authorizes the appointment of License Commissioners to act in each municipality, and empowers them to pass, under the name of resolutions, what we' know as by-laws, or rules to define the conditions and qualifications requisite for obtaining tavern or shop licenses for sale bv retail of spirituous liquors within the municipality; for limiting the number of licenses; for declaring that a limited number of persons qualified to have tavern licenses may be exempted from having all the tavern accommodation required by law, and for regulating licensed taverns and shops, for definijig the duties and powers of license inspectors, and to impose penalties for infraction of their resolutions. These seem to be all matters of a merely local nature in the Province, and to be similar to, though not identical in all respects with, the powers then belonging to municipal imstitutions under the previously exist- ing laws passed by the local parliaments. Their Lordships consider that the powers intended to be conferred by the Act in question, when properly understood, are to make regulations in the nature of police or municipal regulations of a merely local character for the good government of taverns, &c., licensed for the sale of liquors by retail, and such as are calculated to preserve, in the municipality, peace and public decency, and repress drunkenness and disorderly and riotious conduct. As such they cannot be said to interfere with the general regulation of trade and commerce which belongs to the Dominion Parliament, and do not conflict with the provisions of the Canada Temperance Act, which does not appear t<» havu as yet been locally adopted. 12 THE ONTARIO ACT WITHIN THE MUNICIPAL AND LOCAL POWERS ASSIGNED TO PROVINCES. The subjects of legislation in the Ontario Act of 1877, sees. 4 and T), seem to come within the heads Nos, 8, 15, and 16 of Sec. 92 of British North America Statute, 1867.* Their Lordships are, therefore, of opinion that, in relation to sees. 4 and 5 of the Act in question, the Legislature of Ontario acted within the powers conferred on it by the Imperial Act of 1867, and that in this respect there is no conflict with the powers of the Dominion Parliament. Assuming that the Local Legislature had power to legislate to the full extent of the resolutions passed by the License Commissioners, and to have enforced the observance of their enactments by penalties and imprisonment with or without hard labour, it was further con- tended that the Imperial Parliament had conferred ro authority on the Local Legislature to delegate those powers to the License Com- missioners or any other persons. In other words, that the power conferred by the Imperial Parliament on the Local Legislature should be exercised in full by that body, and by that body alone. The maxiuii delegatus non protest delegare was relied on. POWERS OF THE PROVINCIAL LEGISLATURES AMPLE AND PLENARY. It appears to their Lordships, however, that the objection thus- raised by the Appellants is founded on an entire misconception of the true character and position of the Provincial Legislatures. They are in no sense delegates of or acting under any mandate from the Imperial Parliament. When the British North America Act enacted that there should be a Legislature for Ontario, and that its Legis- lative Assembly should have exclusive authority to make laws for the Province and for Provincial purposes in relation to the matters enumerated in Sec. 92, it conferred powers not in any sense to he exercised by delegation from or as agents of the Imperial Parliament, but authority as plenary and as ample within the limits prescribed by .1. *T?»T** following are the heada Nos. 8, 15 and 16 referred to as they appear in the B.N. A. Act under section 02 :— Section ,%— In eacih Province the Legislature may exchisively make laws in relation to matters commg within the classes of subjects next hereinafter enumer- ated, tnat IS to say : Sub-head 8.— Municipal institutions in the Province. sub-head 1.5.— The imposition of punishment by fine, penalty or imprisonment for enforcing any law of the Province made in relation to any matter coming within any of the classes of subjects enumerated in this section. bub-head 16.— Generally all matters of a merely local or private nature in the Province. . " "^ 13 Sec. 92 as the Imperial Parliament in the plenitude of its power possessed and could bestow. Within these liniitK of subjects and .area the Local Legislature is supreme, and has the same authority as .the Imperial Parliament, or the Parliament of the Dominion, would ihave had under like circumstances to confide to a municipal institu- »tion or body of its own creation authority to make by-laws or resolu- itions as to subjects specified in the enactment, and with the object of 'CaiTyinj^ the enactment into operation and effect. It is obvious that such an authority is ancillary to legislation, and without it an attempt to provide for varying details aud machinery .to carry them out might become oppressive, or absolutely fail. The very full and very ekborate judgment of the Court of Appeal contains a'bundance of precedents for this legislation entrusting a limited dis- cretionary authority to others, and has many illustrations of its necessity and convenience. It was argued at the bar that a Legis- lature committing important regulations to agents or delegates effaces itself. That is not so. It retains its powers intact, and can, whenever it pleases, destroy the agency it has created and set up another, or itake the matter directly into its own hands. How far it shall seek ithe aid of subordinate agencies, and how long it shall continue them, .are matters for each Legislature, and not for courts of law to decide. Their Lordships do not think it necessary to pursue this subject 'further, save to add that, if by-laws or resolutions are warranted, .power to enforce them seemsi necessary and equally lawful. Their Lordships have now disposed of the real questions in the cause. LICENSED COMMISSIONERS AND HARD LABOUR. Many other objections were raised on the part of the appellants ns to the mode in which the License Commis.sioner8 exercised the authority conferred on them, some of which do not appear to have been raised in the Court below, and others were disposed of in the ■ course of the argument, their Lordships being clearly of opinion that the resolutions were merely in the nature of municipal or police regulations in relation to licensed houses, and interfering with liberty of action to the extent only that was necessary to prevent disorder and the abuses of liquor licenses. But it was contended that the Provincial Legislature had no power to impose imprisonment or hard labour for breach of newly created rules or by-laws, and could confer no authority to do so. The argument was principally directed against hard labour. It is not unworthy of observation that this point, as to the power to impose hard labour, was not raised on the u rule nisi for the certiorari nor is if ir^ \.^ *• j fc„ If .. 1 ' ""''°' "'"•' ""^ 8e.=eral terms, " .he imno ^"h° SZ'27™™™"' '°^™^°-"'" -^ '-." ""- ineir J^oidships that there is imported an authority to add in th powers to Ihe Liceme Com,ras„„„er8, and that therefore the Resoh, e V of T '" T " °°* "'" '°"'"''''^- I" "■« «-' P'»-. Iv „™ „■ wu r" ^""'"' '*°'' "« C°""nis»ioners may imw^e penalfe. Whether the word " [«n.lt, •• u well adapted tTtaXe .".pn^onment may he ,,„estio„ed, but in thia Aet it in ,e „ "d f„ »ec. 2 ,mp„,es „„ „ffe„de« against the provision, of se ♦'/ penalty of twenty dollars or fifteen daya^ imprisonment, and for , ■Calt T' " """"' "' taprUonment with harf 1 bo„ only Penalty here seems to be nsed in its wider sense as equivalent to penalt e» ,s dealt with, the Aet speaks of " penalties in money "Be suppos,ng hat the " penalty " is to be conflned to pecuniary la.tS those pe„alt,es may, by Sec, 70, be «.cvered and e„f„L7i„ he manner, and to the extent, that by-law. of munieip,,! co, neil mav .- L: r.';""""/"' Tf-'J °f '*« Muniei,,.l let. The wo:d recover -« an apt word for pecuniary remedies, and the word " en- ' lorce for remedies against the person. ■ Turning to the Municipal Act, we find that, by Sec. 4.54 muni- 15 cipal council, may pass by-laws for inflicting reasonable tines an.l punishment by imprisonment, with or without hard labour, for the breach of any by-laws in case the fine cannot be recovered. By Seot,onB 400 to 402 it is provided that fines and penalties may be recovered and enforced by summary conviction before a justice of the peace, and that where the prosecution is for an offence against a municipal by-law the justice may award the whole or such part of the penalty or punishment imposed by the by-law as he thinks lit ; and that If there is no distress found out of which a pecuniary penalty can be levied, the justice may commit the offender to prison for the term or some part thei^of, specified in the by-law. If these by-laws are to be enforced at all by fine or imprisonment, it is necessary that they should specify some amount of fine and some term of imprisonment. The Liquor License Act then gives tu the Commissioners either power to impose a penalty against the person directly, or power to impose a money penalty, which, when imposed, may be enforced according to sections 454 and 400-2 of the Municipal Act. In e th ^ case, the Municipal Act must be read to find the manner of enforcing ptr\?^' ' , " '''*'"* *' ''^''^ '' "^^y b« «"*°rced. The most reasonable way of construing statutes so framed is to read into the later one the passages of the former which are referred to. So read- ing these two statutes, the Commissioners have the same power of enforcing the penalties they impose as the Councils have of enforcing Ir tv oTr^^^ P-'^^*- ^»--t the person directly oi only indirect y as the means of enforcing money penalties. iti dfe to^^^^^^ their resolution must, in order to give the magistrate jurisdiction, specify the amonnt of punishment. In either case their resolution now under discussion is altogether within the powers con- ferred upon them. ^ Their Lordships do not think it necessary or useful to advert to hrtrT'-'""''/! ^'""'"'°' '"^^ ^^«' «" *h« -J^«l«' of opinion that the decision of the Court of Appeal of Ontario should be affirmed, ^d this app .al dismissed, with costs, and will so humbly advise He; en-