under our federal system, the exercise by the courts of this function, excites no remark, and the cases on this branch of Canadian jurisprudence now fill many volumes. Under the legal system of the British Empire, the "last word" upon these questions rests with the Judicial Committee of the Privy Council, and so far as that tribunal has spoken, and so far as the principles enunciated in its judgments extend, its decisions are binding upon our courts. In a number of cases they have determined the position of the line of division in regard to the subject matters immediately involved in those cases, and they have likewise enunciated certain principles which must hereafter guide us in determining the line of division as to many subject matters with which they have not directly dealt. Our first duty therefore is to examine their judgments. Next in order of authority will come the judgments of the Supreme Court of Canada; then, for each province, the provincial Court of final resort in the province, and so on through the whole range of the judiciary.

Apart from certain sections which confer legislative powers in reference to the conduct of business in the different legislatures (k), and in reference to elections (1), the distribution of legislative power is provided for, in sections 91-95 of the B. N. A. Act. We deal in this place with 91 and 92 only, and have, for convenience of

sections

reference and comparison, placed them side by side.

(k) See secs. 18, 35, 47, 78, 87, etc.; (Imp.), and particularly notes to sec. 35.

see also 28 & 29 Vic. c. 63, s. 5

(1) See notes to secs. 40, 41, 51, 80, 83, and 84, post.

POWERS OF THE PARLIAMENT.

91. 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 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; that is to say :

1. The public debt and property.

2. The regulation of trade and commerce.

3. The raising of money by any mode or system of taxation.

4. The borrowing of money on the public credit.

5. Postal service.

6. The census and statistics.

7. Militia, military and naval service, and defence.

8. The fixing of and providing for the salaries and allowances of civil and other officers of the Government of Canada.

9. Beacons, buoys, lighthouses, and Sable Island.

10. Navigation and shipping.

11. Quarantine and the establishment and maintenance of Marine Hos

pitals.

12. Sea Coast and inland fisheries.

13. Ferries between a Province and any British or Foreign Country, or

between two Provinces.

14. Currency and coinage.

15. Banking, incorporation of banks, and the issue of paper money. 16. Savings Banks.

17. Weights and measures.

18. Bills of exchange and promissory notes.

19. Interest.

20. Legal tender.

21. Bankruptcy and Insolvency.

22. Patents of invention and discovery.

23. Copyrights.

24. Indians and lands reserved for the Indians.

25. Naturalization and aliens.

26. Marriage and Divorce.

27. The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the procedure in criminal matters.

28. The establishment, maintenance, and management of penitentiaries. 29. Such Classes of subjects as are expressly excepted in the enumeration of the classes of subjects by this Act assigned exclusively to the Legislatures of the Provinces.

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.

EXCLUSIVE POWERS OF PROVINCIAL LEGISLATURES.

92. 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 :

1. The amendment from time to time, notwithstanding anything in this Act, of the Constitution of the Province, except as regards the office of Lieutenant-Governor.

2. Direct taxation within the Province in order to the raising of a revenue for Provincial purposes.

3. The borrowing of money on the sole credit of the Province.

4. The establishment and tenure of Provincial offices, and the appointment and payment of Provincial officers.

5. The management and sale of the public lands belonging to the Province

and the timber and wood thereon.

6. The establishment, maintenance and management of Public and Reformatory Prisons in and for the Province.

7. The establishment, maintenance, and management of Hospitals, Asylums, Charities, and Eleemosynary Institutions in and for the Province, other than Marine Hospitals.

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. 10. Local works and undertakings other than such as are of the following classes,

a. Lines of steam or other ships, railways, canals, telegraphs, and other works and undertakings connecting the Province with any other or others of the Provinces, or extending beyond the limits of the Province;

b. Lines of steamships between the Province and any British or foreign country;

c. Such works as, although wholly situate within the Province, are before or after their execution declared by the Parliament of Canada to be for the general advantage of Canada, or for the advantage of two or more of the Provinces.

11. The incorporation of Companies with Provincial objects. 12. The solemnization of marriage in the Province.

13. Property and civil rights in the Province.

14. including the constitu

tion, maintenance and organization of Provincial Courts, both of civil and of criminal jurisdiction, and including procedure in civil matters in those Courts.

15. 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.

16. Generally all matters of a merely local or private nature in the

Province.

A perusal, the most cursory, of the classes enumerated in the various sub-sections (m) of these two sections, reveals that if, in every case, the full natural meaning is to be given to the words employed, the classes must inevitably overlap. But the Act is clear that the jurisdiction in each case is exclusive (n), and, therefore, in the case of one of the sections, or of the other, or of both, that full natural meaning cannot be given. If either one of the sections is to be so read as to give to the language used in every one of its sub-sections its full natural meaning, the other section must necessarily be read as a subordinate section, and the meaning of its various sub-sections so limited as to exclude those subject matters monopolized by the various sub-sections of the favored section. If neither section is to be set up as a favorite, by what rule or rules are we to be guided in reconciling them? For, reconcile them we must, if the jurisdiction in each case is exclusive. The first method was favored by the earlier decisions of our Supreme Court. Section 91 was set up as the predominant section, and this formula was suggested, and practically adopted by the majority of the court, as an unerring guide to the determination of the line of division as to any given subject matter:

All subjects of whatever nature not exclusively assigned to the local legislatures, are placed under the supreme control of the Dominion parliament; 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 same time does not involve any interference with any of the subjects enumerated in section 91" (0).

(m) Strictly speaking, they are not sub-sections, but it is convenient to speak of them as such.

(n) See ante, p. 67, for a suggested interpretation of this word. In addition to the authorities there referred to, see Todd, "Parl. Gov. Brit. Col." p. 189, et seq.

(0) Per Gwynne, J., in City of Frederickton v. Reg. 3 S. C. R. at p. 568; and see Citizens v. Parsons, 4 S. C. R. at p. 330.

class

Had this rigid formula been finally adopted, the position of a province would have been that of a very minor municipality, and the union of the provinces legislative rather than federal. Its adoption by the Supreme Court was largely owing to a misconstruction of the closing words of section 91. "The class of matters of a local or private nature" was held to refer to and embrace the whole of the sub-sections of section 92, although the singular number is used in immediate contradistinction to the plural—“ the comprised in the enumeration of the classes" -and although this grammatical reference to sub-section 16 only of section 92, had been clearly recognized in an earlier judgment of the Judicial Committee of the Privy Council). The labors of the courts would certainly have been materially lightened, had that Committee accepted this formula. While, in a sense, it reconciled sections 91 and 92, it did away with any necessity for an attempt to reconcile their respective sub-sections. Fortunately for the provinces, the Committee has decisively rejected this formula, while at the same time (as we shall see) adopting it up to a certain point as a method of inquiry. The view of the Committee is set out in a case (9) which must now be considered classic on this vital question, in the following

language:

The scheme of this legislation, as expressed in the first branch of section 91, is to give to the Dominion parliament, anthority to make laws for the good government of Canada in all

matters

not coming within the classes of subjects assigned

exclusively to the provincial legislature. If the 91st 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

(p) L'Union St. Jacques v. Belisle, L. R. 6 P. C. at p. 35. See the reporter's way of putting it at p. 33; and see notes to the final clause of

sec. 91, post.

(4) Citizens v. Parsons, 7 App. Cas. 96, at p. 107, et seq.