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English common law have there been established and acted upon, and to throw the least doubt upon the validity of powers conveyed by these words would be of widely mischievous consequence."

(vii) " Laves in relation to."-See chapter IX., ante, p. 194, note (c), where reference is made to the wording of the Constitution of the United States in those sections of it which confer legislative power upon Congress. As is there pointed out, the words of our statute are, if comparison be in oriler, wider than the words of the American “ Constitution," and the various American authorities supporting the doctrine of “implied powers” may, therefore, appear applicable, a fortiori, to the powers of Canadian legislatures.

In Bennett v. Pharmaceutical Association of Quebec (2), Dorion, C.J., lays it down :

“We consider, as a proper rule of interpretation in all these cases, that when a power is given, either to the Dominion or to the provincial legislatures, to legislate on certain subjects coming clearly within the class of subjects whic! either legislature bas a right to deal with, such power includes all the incidental subjects of legislation which are necessary to carry on the object which the B. N. A. Act declared should be carried on by that legislature."

The application, however, of this doctrine brings us face to face with the question as to the existence of “concurrent powers" and, in every case, calls for a careful consideration of those rules of interpretation (laid down by the Judicial Committee of the Privy Council in Russell v. Reg. («) and Bank of Toronto v. Lambe (6)), which we have already discussed in chapter X.---see onte, pp. 212, 213, et seq. In truth, as a distinct, independent rule of interpretation, this doctrine of “implied powers ” is scarcely applicable to a federal system such as ours. It is really nothing more than a

(z) 1 Dor, 336; 2 Cart. 250. Se also note: to on 91, sub-section 2, and sec:ion 92, sub-section 16. (*) 7 Apf. ('as 82).

(0) 12 App. Cas. 575.

short form of expression embodying the doctrine of the supremacy of the legislature (@) in relation to those matters which, upon a reasonable and proper interpretation, can fairly be said to fall within one of the classes of subjects committed to such legislature; brut, as will be at once perceivel, this still leaves the question open for the application of those other rules—rules of interpretation proper-applicable for the reconciliation of apparently conflicting subsections of sections 91 and 92. Legislative jurisiliction. must first be conceded before the doctrine of “implied powers” can apply. A reference to the various cases, in which this doctrine has been applied in terms will, we think, disclose that as a preliminary to its application, jurisdiction over the subject matter in dispute was determined. It is noteworthy that the Judicial Committee of the Privy Council have never used the phrase “ implied powers,” preferring the other form-plenary powers." Cushing v. Dupuy (cd) in reference to the scope of “ bankruptcy and insolvency ” legislation, is frequently referred to as illustrative of the application of this doctrine of “ implied powers," but a perusal of the judgment of the Committee in that case discloses that no such doctrine is referred to, the point decided being that procedure is an essential part of insolvency legislation-a decision as to the scope of certain words in the B. N. A. Act, not as to the nature of the legislative power of the Dominion parliament.

(viii) “Not coming within."-See note (ii) to this section.

(ix) For greuter certainty.—See the passage, from the judgment in Citizens v. Parsons, quoted ante, p. 207, et seq., with which may be compared the language of the judges of the Supreme Court of Canada in the same case (C) anil in City of Fredericton v. Reg. (f).

(c) See ante, p. 177, et seq., 194, et seq. (d) 5 App. Cas. 409.

(e) 4 S. C. R. 215.
(f) 3 S. C. II. 505.

(x) Exclusive.—It is now settled beyond controversy that this word refers to the extent to which the legislative power of the Dominion parliament may be exercised to the exclusion of legislation by the provincial assemblies, and was in no way intended as a limitation

upon

the

supreme legislative authority of the Imperial parliament. We have already referred to this question in chapter IV.—see ante, p. 67—and need here merely add a reference to some other Canadian cases in which the legislative supremacy of the Imperial parliament has—in view of this phrase in the B. N. A. Act—been questioned.

In the case of “ The Farewell ” (see notes to sub-section 10 of section 91, post), Mr. Justice Stuart, of the Quebec Vice-Admiralty Court, distinctly recognizes the continued supremacy of the Imperial parliament. He held that upon the proper construction of the Colonial Laws Validity Act, 1865, effect should be given to an Act of the parliament of of Canada, even though in part repugnant to an Imperial statute, so far as its provisions do not contlict with those of such Imperial enactment (9).

See also the case of Holmes v. Temple (he), referred to more fully in the notes to section 91, sub-section 7, post, and we may also note upon this question as to the continued supremacy of the Imperial parliament, since the B. V. A. Act, the language of Ritchie, C.J., in delivering the judyment of the majority of the New Brunswick Supreme Court, in ex parte Renaud (i), a case which will be found more fully discussed in the notes to section 93, post.

(xi) The classes of subjects next hereinafter enumeruteil.—In chapter X.---see mte, p. 211—will be found quoted the language of the Judicial Committee of the Privy Council in L'Union St. Jacques v. Bélisle (ii), in which that tribunal lays down that, in this section 91, “there is no in

(9) 2 Cart. 378; 7 Q. L. R. 380. (h) 2 Cart, 396; 8 Q. L. R. 351.

(i) 2 Cart, 445; 1 Pug. 273.
(ii) L. R. 6 P. C. 31.

dication in any instance of anything being contemplated except what may be properly described as general legislation." We there ventured to say that just how far this rule can be or should be applied in determining the scope of each and every one of the various sub-sections of this section 91, is matter of doubt. Before venturing anything further upon this question, we shall refer to certain other cases in which the general scope of the various sub-sections of section 91 has been discussed.

In Regina v. Mohr (j), the late Chief Justice Dorion intimated that, in his opinion, section 91 deals with subjects which from their nature affect the interests of the whole Dominion, and that all matters of a local nature, affecting but one of the provinces, or a portion of a province, are within the control of the legislature of the province affected thereby, unless excepted from this general rule by a special enactment, such for instance as sub-section 29 of section 91, and the exceptions particularly mentioned in section 92, sub-section 10.

In Angers v. City of Montreal (k), Mr. Justice Johnson refers to the words “ of Canarla” as indicating the intention of the Imperial parliament, that legislation by the Dominion parliament should be legislation for the general purposes of the Dominion. Reference may also be had to the cases collected in the notes to section 91, sub-sections 10 and 12. See particularly Central Vermont Railway Co. v. St. John's, and The Queen v. Robertson. In the notes to section 91, sub-section 2, will be found quotations from Citizens v. Parsons, anBank of Toronto v. Lambe, in which the Judicial Committee of the Privy Council have intimated their view, that “the regulation of trade and commerce,” has reference only to general legislation

political arrangements in regard to trade, requiring the sanction of parliament; regulations of trade in matters of

(j) 2 Cart. 257; 7 Q. L. R. 183.
(k) 2 Cart. 335; 24 L. C. Jur. 259.

interprovinc'al concern, and it may be that they would include general regulations of trade, affecting the whole Dominion. In Citizens v. Parsons, the Committee referred to the collocation of sub-section 2 with “subjects of national and general concern,” but there is nothing to indicate whether this was intended as a reference to all the sub-sections of section 91 or merely to those immediately preceding and following sub-section 2. In a recent case before the Supreme Court of Canada, involving the consideration of sub-section 19, of section 91, " interest,” Mr. Justice Patterson refers to its collocation with sub-sections numbered from 14 to 21, both inclusive, “all of which relate to the regulation of the general commercial and financial system of the country.”

Taking the language of the Judicial Committee of the Privy Council in L'Union St. Jacques v. Bélisle (l) literally it would entirely preclude the Dominion parliament from what is known as “private bills” legislation ; but against such a construction, the later case of Colonial Building Association v. Attorney-General of Quebec (m), in which an Act of the Dominion parliament incorporating the appellant company was upheld, must not be over-looked. The power of the Dominion parliament to pass Acts for the incorporation of companies with objects other than provincial was in Citizens v. Parsons put expressly upon the general words of the opening clause of this section 91, and it may be contended, therefore, that the private bills legislation of the Dominion parliament must be limited to this residuary clause, as it has been termed, of section 91. In this connection, however, we must not overlook the concluding clause of section 91, which expressly provides that any matter coming within any of the sub-sections of section 91, is not to be deemed to come within section 92, sub-section 16, " matters of a merely local or private nature in the province ”; a provision which would seem to indicate that in

(1) L. R. 6 P. C. 31.

(m) 9 App. Cas. 157.

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