ture has the power under "municipal institutions" to pass a prohibitory liquor law, or a liquor law which is prohibitory except under certain conditions. Reference was made to the condition of affairs in the provinces prior to Confederation, and it was held that the powers then possessed by municipal bodies in, at any rate, "two great provinces of Confederation and one of the smaller ones" (Nova Scotia), are the powers which a provincial legislature can now bestow upon such bodies. The affirmance of the decision in this case in the Supreme Court cannot be taken as an affirmance of the ground upon which the decision was based. The judgment of the Supreme Court is avowedly put as following Hodge v. Reg.

We have already quoted, see ante, p. 358, the passage from the judgment of the Judicial Committee of the Privy Council in Russell v. The Queen (g), in which that tribunal intimated that although its judgment upholding the validity of the Canada Temperance Act, 1878, was based upon the residuary clause, as it has been termed, of section 91, they nevertheless did not desire to be understood as dissenting from the position taken by the Supreme Court of Canada in Fredricton v. The Queen (h), in which the Act was upheld as a matter relating to the regulation of trade and commerce. In many quarters this was taken to mean that the Dominion parliament alone has power to legislate in connection with the liquor traffic. This view however was very decisively negatived in the judgment of the Privy Council in Hodge v. The Queen (7), upholding the validity of the Ontario Liquor License Act. While, as we shall have to point out, a good deal of uncertainty exists upon the question upon which one of the various sub-sections of section, 92, the legislative power of a provincial legislature over certain phases of the liquor traffic is to be rested, it is now clearly settled that, so long as provincial legislation stops

(h) 3 S. C. R. 505.

(9) 7 App. Cas. 829.

(i) 9 App. Cas. 117.

short of absolute prohibition, it cannot be taken to infringe upon the regulation of trade and commerce.

Following Hodge v. The Queen, the Supreme Court of Canada has since affirmed the validity of the Liquor License Acts of Quebec and New Brunswick respectively. See Sulte v. Three Rivers (j), and Danaher v. Peters (k).

We should, perhaps, mention here that in Severn v. The Queen (1), the Supreme Court of Canada held that a provincial legislature has no power to pass an Act requiring a brewer to take out a license to sell liquor manufactured by him. The judgment of the court was founded on the view (1) that such legislation was an interference with trade and commerce; and (2) that a brewer's license is not ejusdem generis with the licenses particularly mentioned in section 92, sub-section 9. So far as the first ground is concerned, Hodge v. The Queen (m), must be considered to deprive Severn v. The Queen of its support; and as to the second, the judgment of the Privy Council in Bank of Toronto v. Lambe (n) must be taken as an affirmance of the power of a local legislature to levy such a license fee as being a "direct" tax within the province under sub-section 2 of section 92.

The removal of the first ground of support is recognized by the judgment of the Supreme Court in Molson v. Lambe (0), although that case is complicated somewhat by reason of the question as to the propriety of the issue of a writ of prohibition under the peculiar circumstances of the case. The majority of the court, however, were of opinion that the question of the validity of the Quebec License Act had been settled by the judgments of the Judicial Committee of the Privy Council. Ritchie, C.J., expresses himself thus: In view of the cases determined by the Privy Council since the case of Severn v. The Queen was decided in this court, which

(j) 11 S. C. R. 25.

(k) 17 S. C. R. 44.

(1) 2 S. C. R. 70.

(m) 9 App. Cas 117.
(n) 12 App. Cas. 575.

(0) 16 S. C. R. 253.

appear to me to have established conclusively that the right and power to legislate in relation to the issue of licenses for the sale of intoxicating liquors by wholesale and retail belong to the local legislature, we are bound to hold that the Quebec License Act, 1878, and its amendments are valid and constitutional."

Mr. Justice Gwynne expresses the view that Severn v. The Queen is still an authority binding upon Canadian courts, but rests his dissent from the view of the majority upon the ground that upon a proper construction of the Quebec License Act, it imposed no obligation upon a brewer, manufacturing under Dominion license, to take out a provincial license.

A further distinction will be found noted in the cases between the issue of a license to sell by retail and to sell by wholesale. The point is practically covered by Molson v. Lambe, but, as indicative of the difference of opinion which may still honestly exist as to certain matters in connection with the liquor traffic, we may refer to the case of Queen v McDougall (p), in which the Supreme Court of Nova Scotia had to consider, the question of the validity of the Nova Scotia Liquor License Act. The defendant was convicted of five separate offences, each dealing with a distinct phase of the question. Three out of five judges intimated their opinion that Severn v. The Queen (q), must be taken to be overruled, and that a provincial legislature may not merely regulate the retail traffic in intoxicating liquor, but may also pass laws in relation to wholesale licenses, and licenses for brewing and distilling. Mr. Justice Weatherbe, however, expressed the view that the restriction, requiring a petition from a certain number or proportion of the ratepayers in order to obtain a license, was ultra rires; but, as we shall see, this view cannot now be considered law. The Chief Justice and Mr. Justice Ritchie considered Severn v. The Queen to be still an authority binding upon them, and that therefore the conviction of the defendant as a brewer and

(p) 20 N. S. R. 462.

(q) 2 S. C. R 70.

ture.

distiller must, upon the authority of that case, be quashed; and the other convictions on the ground that the regulation of the wholesale trade is ultra vires of a provincial legislaMr. Justice Ritchie intimated that although there is a difficulty in drawing the line between wholesale and retail, yet as the Act itself defined" wholesale," all restrictions as to the sales of the quantities so defined, are ultra vires. The discussion of the authorities in that case is very voluminous, but in view of the subsequent decision of the Supreme Court of Canada in Danaher v. Peters (r), upholding the Liquor License Act of New Brunswick, it is unnecessary to discuss this case further, beyond noting that Mr. Justice Weatherbe refers to the Dominion License Act of 1883, as being substantially identical as respects its wholesale and retail clauses, with the Nova Scotia Act. Referring to the judgment of the Judicial Committee of the Privy Council, declaring the Dominion Act ultra vires, he treats that decision as conclusive in favor of the validity of a provincial Act.

In the two cases about to be noted, involving the question of the validity of the New Brunswick Liquor License Act, 1887, appeals were lodged by appellants who had been applicants for each of these classes of licenses respectively. Both appeals, however, were dismissed, thus upholding the validity of provincial legislation upon both branches of the traffic.

The question still remains, however, as we have said, as to the power of a local legislature to prohibit absolutely the sale of intoxicating liquors in the province. In the cases to which we have just referred-Danaher v. Peters, and O'Regan v. Peters (s)-it was contended that the New Brunswick Liquor License Act of 1887, could be utilized as a means for effecting prohibition. The Act provides that applications for licenses under the Act must be endorsed by the certificate of one-third of the rate-payers of the district (r) 17 S. C. R. 44. (s) 17 S. C. R. 44.

in which the license is asked; and it was urged, therefore, that a majority of more than two-thirds could in any locality within the province, effect complete prohibition. As being the last deliverance of the Supreme Court upon this question, we venture to quote somewhat fully from the judgments. Mr. Justice Taschereau says:

"As to the constitutionality of the Act there can be no doubt. This is not a statute to prohibit, it is a statute to regulate; to permit under certain conditions. If these conditions are not fulfilled, it may be that the consequences are that the sale of liquor is virtually prohibited; but that consequence cannot render the Act unconstitutional."

Mr. Justice Gwynne says:

"It was contended that, in effect, the Act operates as a total prohibition of the sale of liquor in the City of St. John, and that it was therefore ultra rires and void. The argument

based upon this section"—that is, the section requiring the certificate of one-third of the rate-payers-"was, that it shewed clearly the intention of the legislature to be, that any number of rate payers in a polling sub-division, exceeding two-thirds, should have the power of totally prohibiting the sale of liquor, by refusing to sign the certificates for applicants for licenses. Then it was contended that section 31 authorizes the majority of the ratepayers in a city or incorporated town, to prohibit the sale of liquor by petitioning against the granting of licenses; and for those reasons it was contended that the Act was, in effect, an Act for the total prohibition of the sale of liquor in the City of St. John, and therefore ultra rires, and void; but there is nothing in the language of the Act which would justify us in pronouncing the intention of the legislature to have been to enact a prohibition of the sale of liquors in a municipality, or in any part thereof, under color of passing an Act on the subject of municipal regulations relating to the sale of liquors, which is a subject clearly within the jurisdiction of a local legislature. The objections which alone the Act authorizes to be urged by petition against the granting of a license to a particular person, or for a particular house, enumerated in section 15, seem to be very reasonable grounds of objection as affecting the person and place