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ware from practising their calling in the market, public streets and vacant lots adjacent thereto" was upheld as intra vires by Mr. Justice Armour-now Chief Justice of the Q. B. D.; and this decision represents the law as it has ever since been recognized in that province.
In Angers v. Montreal (b) and Mallette v. Montreal (c), an Act of the Quebec legislature, authorizing the imposition of a license fee on butchers exercising their calling in places other than the public markets of a municipality, was held valid; and in Ex parte Pillow (d) it was held that a provincial legislature may authorize municipal bodies to pass by-laws in restraint of nuisances hurtful to public health. The attack in this last case it should perhaps be remarked was upon the ground that such legislation conflicts with the power of the Dominion parliament over "criminal law" rather than with the power to regulate trade and commerce, but the general principle of the case is the same as that involved in the others.
The question has lately come before the Supreme Court of Canada in Pigeon v. Recorder's Court (e), and the opinion of the court is contained in a sentence taken from the judgment of Mr. Justice Taschereau: "As to the constitutionality of the sections . . there is no room for controversy."
In Bennett v. Pharmaceutical Association (ƒ), it was held by the Court of Queen's Bench of Quebec, that the Quebec Pharmacy Act of 1875, requiring certain qualifications on the part of persons engaged in the business of selling drugs and medicines, was valid. Treating of this question, Chief Justice Dorion says:
In the present case there is no prohibition to sell drugs or medicines in any part of the province of Quebec; the provision is merely that drugs and medicines shall only be sold by persons having the qualifications provided for by the Act.
(b) 24 L. C. Jur. 259; 2 Cart. 335.
(c) 24 L. C. Jur. 263; 2 Cart 340.
(d) 27 L. C. Jur. 216;
(e) 17 S. C. R. 495.
(f) 1 Dor. 336; 2 Cart. 250.
"It is true that incidentally this may be considered as interfering in some degree with the sale of drugs and medicines in the province of Quebec, since it limits the number of persons who can do that business."
In Beard v. Steele (g), the provisions of the Mercantile Amendment Act, as to the rights and liabilities of consignees and indorsees of bills-of-lading, were held to be provisions as to property and civil rights in the province, and therefore within the power of a provincial legislature. They were held not to be regulations of commerce within the meaning of this sub-section 2. In Regina v. Taylor (h), Mr. Justice Wilson-afterwards Chief Justice Sir Adam Wilson gives more at length the considerations which had induced the court to uphold these provisions on the ground mentioned:
"It did not seem to me, at the time, to be a regulation of trade, and it does not seem to me to be so now. It does however affect trade and commerce. But what enactment will not, in some way or other, affect it? If an Act were passed requiring every person who instituted a suit to give security for costs, or still further limiting the time within which to bring an action, or enacting that no execution should be issued on a judgment until a demand was first made of the sum recovered on the person liable to pay it, or giving to the holder of a bill of exchange, or promissory note, a lien for the amount due upon it on the goods of the acceptor or maker, all these provisions, and many other cases which might be put, would very much affect trade and commerce, but could they be said to be a regulation of it? I certainly think they could not. They would do so only incidentally; but not more so in principle than by shutting up a trader in gaol for debt or for contempt of court, or by closing all shops at eight o'clock at night, or by the exercise of mere police powers, or by giving a public holiday. All these are lawful objects, and if they can be properly adopted they do not become unlawful, because they cannot be wholly separated from every other matter, and because they are attended with inevitable consequences. I think the provincial legislature have the power (g) 34 U. C. Q. B. 43.
(h) 36 U. C. Q. B. 212.
to annex the right of contract to the right of property in the goods mentioned in a bill of lading although it does affect trade and commerce."
It should be noted, perhaps, that in the same judgment the view is expressed that the Dominion parliament would have power to pass a similar law, if it did so "as a necessary and convenient matter to be dealt with in the regulation of trade and commerce." This question of concurrent power, however, has been already touched upon (i) and we need not discuss this point of the case further here.
The principles enunciated in the above cases-e.g., Ex parte Pillow, Bennett v. Pharmaceutical Association, and Beard v. Steele-support the validity of provincial Acts such as the Employers Liability Acts and Factory Acts, which, no doubt, in a sense affect trade and commerce, but which in their intended scope relate to the civil rights of employers and employees (j)—to matters of a merely local or private nature in the province-and cannot be deemed regulations of general trade and commerce within the meaning of this sub-section as defined in the deliverances of the Privy Council.
The latest authoritative deliverance as to the meaning to be attached to this sub-section, is to be found in Bank of Toronto v. Lambe (), in which it was urged that the power of the Dominion parliament to regulate trade and commerce operates to prevent a provincial legislature from levying taxes upon a bank. The Judicial Committee of the Privy Council negatived this contention in the following language: The words regulation of trade and commerce are indeed very wide, and in Severn's Case (1), it was the view of the Supreme Court that they operated to invalidate the license duty which was there in question. But, since that case was decided, the
(i) Chapter X. ante, p. 214, et seq.
(j) See Monkhouse v. G. T. R., 8 O. A. R. 637, and Can. Southern Ry. v. Jackson, 17 S. C. R. 316, both noted under sub-section 10 of section 92, post.
(k) 12 App. Cas. 575.
(1) Severn v. Reg., 2 S. C. R. 70.
question has been more completely sifted before the Committee, in Parson's Case (m) and it was found absolutely necessary that the literal meaning of the words should be restricted in order to afford scope for powers which are given exclusively to the provincial legislatures. It was there thrown out that the power of regulation given to the parliament meant some general or interprovincial regulations. No further attempt to define the subject need now be made, because their Lordships are clear that if they were to hold that this power of regulation prohibited any provincial taxation on the persons or things regulated, so far from restricting the expressions, as was found necessary in Parson's Case, they would be straining them to their widest conceivable extent."
3. The raising of money by any mode
or system of taxation.
4. The borrowing of money on the public credit.
Compare with this sub-section 3, sub-section 2 of section 92 which assigns to provincial legislatures the exclusive power to make laws relating to "direct taxation within the province." In Bank of Toronto v. Lambe (n), it is said by the Judicial Committee of the Privy Council, commenting upon this provincial power, that the above sub-section 3 certainly is in literal conflict with it. It is impossible to give exclusively to the Dominion the whole subject of raising money by any mode of taxation, and at the same time. to give to the provincial legislature exclusively or at all, the power of direct taxation for provincial or any other purpose. This very conflict between the two sections was noticed by way of illustration in the case of Parsons. Their Lordships there said, 'So, the raising of money by any mode or system of taxation is enumerated among the classes of subjects in section 91; but though the description is sufficiently large and general to include direct taxation within the province in order to the raising of a
(m) Citizens v. Parsons, 7 App. Cas. 96.
(n) 12 App. Cas. 575.
revenue for provincial purposes, assigned to the provincial legislatures by section 92, it obviously could not have been intended that, in this instance also, the general power should override the particular power.' Their Lordships adhere to that view, and hold that as regards direct taxation within the province to raise revenue for provincial purposes, that subject falls wholly within the jurisdiction of the provincial legislatures."
Mutatis mutandis, the views expressed in the above extract apply to a comparison of the above sub-section 4 with sub-section 3 of section 92 "the borrowing of money on the sole credit of the province."
Conceding the entire correctness of the view of the Judicial Committee, this further view deserves consideration, namely, that these apparently over-lapping powers do not in fact conflict at all-that the power of either of either government in this connection is limited to raising money for purposes connected with its sphere of authority; the choice. of method allowed to the Dominion government being of the widest possible character; that of the provincial governments being limited to direct taxation within the province, because, as it is put in this very case, the power of indirect taxation would be felt all over the Dominion. Perhaps this should not be advanced as a further view; it probably represents what was in the mind of the Committee in using the expression "obviously."
Under these sub-sections have been passed our various Acts relating to Customs and Excise duties-see R. S. C. c. 32, 33 and 34;-and Acts in relation to Finance-see R. S. C. c. 28 and 29. Note also chapter II., ante, p. 35, et seq., for an account of the practical surrender to colonial legislatures of full control over their own revenues and tariffs.
See also the cases collected under section 92, sub-section 2, post.
5. Postal service.