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sought to be licensed, as regards the retail trade in liquors; and although these objections may seem to be unreasonable if applied to a person or shop for which a license to sell liquors by wholesale is sought to be obtained, we cannot for that reason hold the object of the legislature to have been to effect prohibition of the trade of dealing in the sale of liquors, under color of an Act establishing municipal regulations affecting that trade. Defects or imperfections in the Act, or provisions therein which may be, or may appear to some to be, unreasonable, will not justify us in pronouncing the true object of the Act to have been prohibition, total or partial, of the trade of dealing in the sale of liquors, under pretence of establishing municipal regulations upon that subject."
Mr. Justice Patterson says:
“The power of the local legislatures to provide for the issuing of licenses for the sale of spirituous liquors, either in large or small quantities, to limit the number of licenses, and to prohibit, under penalties, the sale of such liquors without license, cannot now be treated as an open question. The contention for the present appellants is, that the New Brunswick Liquor License Act, 1887, while professing merely to deal with the subject of licenses, contains provisions which, from their inherent tendency or from the way in which they may be acted on, give the measure the effect of a prohibitory law, either as to the whole province and for all time, or as to particulate localities and particular calendar years. The larger question of the power of the province to prohibit the sale of intoxicating liquors within its own borders, is not presented for discussion, and we have to deal only with questions which concede that total prohibition can be decreed only by the Dominion parliament.
The objections are too fanciful and far-fetched to be seriously discussed without denying to the local legislature the right to prescribe the conditions on which licenses can be obtained. They assume a right in every man to demand a license, ignoring the right of the legislature to limit the number."
A perusal of these passages discloses that, in the opinion of the members of the Supreme Court, the question of the power of a provincial legislature to enact a prohibitory law
for the province is still an open one. In the province of Ontario, the matter has been under the consideration of the Court of Appeal for that province—in Re Local Option Act (t). The case is complicated somewhat by the fact that in that province at the time of Confederation there was in existence a law which distinctly empowered municipal bodies to pass by-laws for the total prohibition of the retail liquor traffic within the municipality. These provisions had never been repealed by provincial legislation, but, in subsequent consolidations of provincial statutes, had been omitted owing to the existence of somewhat similar clauses as to local option in the Canada Temperance Acts of 1864 and 1878. The particular Act which came under the consideration of the court was 53 Vic. c. 56. As explained by 54 Vic. c. 46, s. 1, that enactment purported to be simply a revival of the provisions which had existed in the laws in force in the province prior to Confederation. It appears, however, that these pre-Confederation provisions had been repealed by Dominion legislation (u), so that it became necessary for the court to determine which legislature, Dominion or provincial, had power pass
such an enactment. The case was submitted for the consideration of the court under the provisions of 53 Vic. c. 13 (Ont.)—“An Act for expediting the decision of constitutional and other provincial questions, —and Mr. Justice Osler declined to give any opinion upon the questions submitted. The other members of the court -Hagarty, C.J.O., Burton and Maclennan, JJ.A.—upheld the power of the provincial legislature to pass such“ local option " laws; basing their judgment upon the view that such legislation falls within sub-section 8 of section 92,
municipal institutions in the province.” So far as Ontario is concerned, therefore, it must be taken as settled that a local legislature can empower a municipality to pass a prohibitory by-law, so far, at all events, as relates to the retail trade in intoxicating liquors, it being held that, upon a
(u) See R. S. C. (1886), p. 2255.
(t) 18 O. A. R. 572.
proper construction of the statutes in question, they do not cover the wholesale trade. With regard to the construction placed upon sub-section 8 of section 92, we shall have to refer to this subject again in the notes to that sub-section. It is material, however, to note here that the decision of the Court of Appeal in no way affirms the right of a local legislature to pass a prohibitory law of general application throughout the province. In fact, Mr. Justice Burton, while intimating his own view that such power does exist, expresses the opinion that the matter is concluded against the provinces by the judgment of the Privy Council in Russell v. The Queen (v), affirming the judgment of the Supreme Court of Canada in Fredericton v. The Queen (w), (in which the power to prohibit was distinctly classified as coming under sub-section 2 of section 91), without intimating any dissent from the view upon which that decision was based. To the like effect, in Griffith v. Rioux (r), it was held by Brooks, J., sitting in the Quebec Superior Court, that a provincial legislature cannot repeal those sections of the Dunkin Act which relate to the prohibition of the sale of intoxicatingʻliquors; the matter of prohibition being, in his opinion, covered by the decision of the Supreme Court in Fredericton v. The Queen, as affirmed in Russell v. The Queen.
The decision of the Court of Appeal for Ontario, in Re Local Option Act (y), leaves the matter in this peculiar position; that, by united action on the part of the various municipalities throughout the province, the total prohibition of the retail liquor traffic may possibly be effected, but that a provincial legislature has no power to do directly what it may empower a municipality to do. In Hodge v. The Queen (2), the Judicial Committee of the Privy Council expressed the view that the power of a provincial legislature
(v) 7 App. Cas. 829; see ante, p. 358. (w) 3 S. C. R. 505.
(y) 18 O. A. R. 572. (3) 3 Cart. 348.
(z) 9 App. Cas. 117.
to pass Acts in regulation of the traffic in particular commodities, exists under section 92, sub-section 8—“ municipal institutions”; 15—“ the imposition of punishment by fine, etc.”; and 16—“ matters of a merely local or private nature in the province.” Further than this general statement, the judgment of that tribunal throws very little light upon the subject we are now discussing. It does not indicate clearly whether any one of these sub-sections alone supports the power, or whether the combined force of all is required to uphold such legislation. They speak of license regulations as seeming to be matters of a merely local nature in the province, and to be similar to, though not identical in all respects with, the power that belongs to municipal institutions under previously existing 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, etc., 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 riotous conduct. As such they cannot be said to interfere with the general regulation of trade and commerce which belongs to the Dominion parliament."
No attempt, it will be seen, is made to distinguish between sub-sections 8 and 16, of section 92. There is however the distinct expression of opinion that such matters do not fall within this sub-section of section 91.
The conclusion appears to us unavoidable that if a local legislature has power, under “municipal institutions,” to authorize a municipal body of its own creation to prohibit the traffic in any commodity, the use or abuse of which may tend to the disturbance of the peace of the community, or to prejudicially affect its health or morals, the legislature itself must necessarily have the power to pass a general law prohibiting the traffic in such commodity throughout
all the municipalities of the province. If the conclusion be unsound the premises must go, and then we must fall back upon some class enumerated in section 92, other than “ municipal institutions," as supporting the power to regulate, to the extent of prohibition, the traffic in particular commodities within a province. If regulation, conditionally prohibitive, be not an infringement of the power of the Dominion parliament to regulate trade and commerce, as those words have been construed by the various judgments, above cited, of the Judicial Committee of the Privy Council, it seems difficult to appreciate how the absolute prohibition of traffic in such commodities as above indicated can be such infringement. It cannot be by reason of the extent of interference with “ trade and commerce ” for a "regulation ” of the traffic in one commodity may cause greater interference than a total prohibition of the traffic in several others.
Turning now to the traffic in commodities other than intoxicating liquor, no distinction in principle can be suggested. The fact that the Dominion Inland Revenue and Excise Acts utilize this latter traffic for purposes of taxation cannot make any difference, as is now settled by the principle of the decision of the Privy Council in Bank of Toronto v. Lambe, applied e converso. This case will be referred to more at length hereafter. We proceed now to a short review of the cases dealing with the power of a provincial legislature to legislate in relation to the traffic in other commodities.
In a number of cases, regulations as to the carrying on of certain classes of business in markets, have been held to be no infringement of the power of the Dominion parliament under this sub-section.
In Re Harris and Hamilton (a), the provision in the Municipal Act of Ontario empowering Municipal Councils to pass by-laws “for preventing criers and vendors of small
(a) 44 U. C. Q. B. 641.