the opinion of the Imperial parliament, matters for legislative action would come before the Dominion parliament, which upon their face, so to speak, might appear to be of a merely local or private nature in one province. Again, too, we must notice the exceptions to section 92, sub-section 10. The works and undertakings there referred to, which, by force of the exception read in connection with section 91, sub-section 29, are without doubt within the legislative competence of the Dominion parliament, are matters in respect of which it is difficult to imagine any general legislation capable of application to all alike. They are subjects which naturally call for what is known as private bills legislation.

With reference to the incorporation of companies, and Acts respecting works and undertakings within the legislative ken of the Dominion parliament, the question has arisen how far the Dominion parliament can confer upon such corporations immunity from provincial law. See particularly the cases collected in the notes to sub-section 13 of section 92, post. In Citizens v. Parsons (n), the Committee distinctly held that an insurance company, incorporated under Dominion legislation, is subject, as to the contracts of insurance entered into by it, to the laws of the province in relation to such contracts generally, as being a matter of property and civil rights in the province. By way of illustration obiter, the question of the applicability of the statutes of Mortmain to such a company was touched upon, and the view expressed that a company incorporated under Dominion legislation would be subject to the law of the province in this regard. In Colonial Building Association v. Attorney-General of Quebec (0), this view was again distinctly enunciated. Carrying these decisions to their logical conclusion, it would appear that the Dominion parliament cannot confer, upon any body incorporated by it, any power in relation to matters falling within the legislative com

(n) 7 App. Cas. 96.

CAN. CON.-23

(0) 9 App. Cas. 157.

petence of a provincial legislature-cannot confer, in other words, any power which it could not itself directly exercise. There is nothing in any of the other judgments of that tribunal to throw doubt upon this as being a correct enunciation of the law in regard to this very perplexing matter. A precisely similar question arises in connection with the subject of "municipal institutions" and will be found discussed in the notes to sub-section 8 of section 92.

The subject of special legislation has been lately brought again to the front by the judgment of the Supreme Court of Canada in a case (p) which arose out of the winding up of the defunct Bank of Upper Canada. Prior to Confederation the bank had become insolvent and had assigned all its property and assets to trustees. By 31 Vic. c. 17, the Dominion parliament incorporated the trustees and gave them authority to carry on the business of the bank so far as was necessary for winding up the same. By 33 Vic. c. 40, all the property of the bank vested in the trustees was transferred to the Dominion government, who became thereby seised of all the powers of the trustees. In the Court of Appeal for Ontario, the court was equally divided as to the validity of this Dominion legislation. Hagarty, C.J.O., and Osler, J.A., upheld the Acts as being within the legislative power of the Dominion parliament over "banking, the incorporation of banks," and also over "bankruptcy and insolvency"; while Burton and Maclennan, JJ.A., held that the Acts were in relation to "property and civil rights in the province," and could only have been validly passed by a provincial legislature. In the Supreme Court the judgment was unanimous, upholding the validity of the impugned Acts. Ritchie, C.J., held that the legislative authority of parliament over banking and the incorporation of banks, and over bankruptcy and insolvency, empowered it to pass

(p) Quirt v. Reg., 19 S. C. R. 510, affirming 17 O. A. R. 421 (Reg. v. Wellington).

such Acts, while of the other members of the court, Strong and Patterson, JJ., founded their judgment upon the latter power only, the three other judges not intimating the ground of their concurrence.

This legislation was undoubtedly private bills legislation, and the judgment of the Supreme Court must be taken as conclusive upon all Canadian courts, that the power of the Dominion parliament under the various sub-sections of section 91 does extend to private bills legislation so long as the subject matter legislated upon can be fairly said to fall within any of those sub-sections. There is one of the subsections of this section 91 which upon its face would seem to indicate that it was intended to confer power to pass private and special Acts, namely, sub-section 7, referring to "Sable Island." No argument, however, can be founded upon this sub-section, as it must evidently be read in connection with sub-section 10, and, in fact, the only legislation in reference to it is in connection with light-houses and other safeguards to navigation. See R. S. C. (1886), c. 70.

It is hardly necessary to say that in considering this question those other rules of interpretation which have been laid down as applicable for the reconciliation of apparently conflicting powers, must not be lost sight of; but the question now being discussed has reference, rather, to the possibility of laying down a general rule of construction applicable to section 91 and its various sub-sections, irrespective, in a sense, of section 92 and its sub-sections. We shall have occasion to again touch upon certain aspects of this question, but we may say that we make no pretence to an exhaustive treatment of it, and any views we may venture upon moot points are advanced with much mistrust.

1. The Public Debt and Property.

This has reference, of course, to the public debt of the Dominion, as a unit, assumed upon Confederation or since incurred, and to the public property held by the Dominion Government in trust for Canada as a whole.

In section 102, post, and the following sections, will be found the provisions of this Act as to the division of assets, and the distribution of revenue producing powers between the Dominion and the provinces, and any extended reference to this question will be more in order when we come to consider those provisions of the Act. We may say, however, in reference to the legislative power of the Dominion and the provinces over their respective property, and in connection with their revenue producing powers, that the absence of any provision in the various sub-sections of section 92, similar to the provision made by this sub-section 1 of section 91, does not in any way afford an argument against the full legislative authority of a provincial legislature in reference to provincial assets. The B. N. A. Act simply affects a division of the beneficial interest in the various provincial assets as they existed at the time of Confederation, but, in reference to the revenue therefrom, cannot be deemed to weaken in any way the effect of the Imperial Act, 17 & 18 Vic. c. 118, and the other Imperial Acts, giving Canadian legislatures full power of appropriation over all revenues from whatever source within the colony arising. See notes to section 126.

2. The regulation of Trade and Com

merce.

In the leading case of Citizens v. Parsons, the meaning proper to be attributed to the language of this sub-section was discussed. In that case, the Act impugned was the Ontario Act providing for uniform conditions in fire insurance contracts. Without deciding whether or not fire insurance is a trade, the Judicial Committee of the Privy Council decided that this sub-section does not extend to the regulation of the contracts of a particular business or trade in a single province. What, in the view of their Lordships, may properly be held to come within this subsection will be best shown by the following extract from the judgment in that case (q):

(9) 7 App. Cas. 96.

"The words 'regulation of trade and commerce' in their unlimited sense are sufficiently wide, if uncontrolled by the context and other parts of the Act, to include every regulation of trade, ranging from political arrangements in regard to trade with foreign governments, requiring the sanction of parliament, down to minute rules for regulating particular trades. But a consideration of the Act shows that the words are not used in this unlimited sense. In the first place the collocation of No. 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 legislature, 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 susceptible, the specific mention of several of the other classes of subjects enumerated in section 91, would have been unnecessary; as, 15, banking; 17, weights and measures; 18, bills of exchange and promissory notes; 19, interest, and even 21, bankruptcy and insolvency.

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Regulation of trade and commerce' may have been used in some such sense as the words regulations of trade,' in the Act of Union between England and Scotland (6 Ann., c. 11), and as these words have been used in Acts of State relating to trade and commerce. Article V. of the Act of Union enacted, that all the subjects of the United Kingdom should have full freedom and intercourse of trade and navigation' to and from all places in the United Kingdom and the colonies; and Article VI. enacted, that all parts of the United Kingdom, from and after the Union, should be under the same prohibitions, restrictions, and regulations of trade.' Parliament has at various times since the Union passed laws affecting and regulating specific trades in one part of the United Kingdom only, without it being supposed that it thereby 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 interpretation above suggested, they would include political arrangements in regard