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been appropriated to the Dominion or the province, as the case may be, and is subject to the control of its legislature, the land itself being vested in the Crown.- Per Lord Watson in St. Catherines Milling Co. v. The Queen (1).
The case from which the above extract is quoted is a decision that the “lands reserved for the Indians ” mentioned in sub-section 24 of section 91, become, when disencumbered of the Indian usufructuary interest, “public lands belonging to the province,” or, perhaps we should say, that they are always such, subject to the encumbrance of that Indian interest.
The matter, however, of public assets, revenue producing and otherwise, will be fully considered in the notes to the group of clauses of this Act, which deal more fully therewith-102, et seq.
As to the position of Manitoba and the North-West Territories in reference to the public lands within those areas we shall have to speak in Part IV. of this book.
6. The Establishment, Maintenance (i) and Management of Public and Reformatory Prisons in and for the Province.
7. The Establishment, Maintenance and Management of Hospitals, Asylums, Charities and Eleemosynary Institutions. in and for the Province, other than Marine
Hospitals. (i) “ Maintenance.”-See note to sub-section 2 of section 92, where reference is made to the query-suggested by the Privy Council in Attorney-General of Quebec v. Reed (m)—as to the power of a province to maintain prisons, hospitals, etc., and courts by “indirect taxation.”
(1) 14 App. Cas. 46,
(m) 10 App. Cas. 141,
8. Municipal Institutions in the Province.
It must be admitted that the authorities are in a very unsatisfactory state as to the precise scope of this sub-section, and as to the powers intended to be thereby conferred upon provincial legislatures. The main question is one that goes to the very root, and it has been brought prominently into discussion in connection with that most prolific cause of litigation—the traffic in intoxicating liquor. In one of the earliest cases (n) which arose in Ontario in reference to the
power of a provincial legislature to authorize municipal bodies to restrict the traffic, the late Chief Justice Richards intimated his opinion that the Imperial parliament, in passing the B. N. A. Act, “on the suggestion of, and on conference with the delegates from the various provinces must have intended to empower those provinces to establish municipalities which“ would possess the same powers as those which were then in existence, under the same name, in the province”—i.e., in that part of (old) Canada, formerly known as Upper Canada, and now forming the province of Ontario. To the like' effect, the court of final resort in Quebec held (o), in 1883, that the state of things existing in the provinces at the time of Confederation, and more particularly that which was recognized by law in all or most of the provinces, is a useful guide in the interpretation of the meaning attached by the Imperial parliament to indefinite expressions employed in the B. N. A. Act. At the time of Confederation, the right to prohibit the sale of intoxicating liquors was possessed by municipal authorities under the laws in force respecting municipal institutions in both parts of the province of Canada, and in Nova Scotia ; and the court held that in consequence it should be deemed to be included within the term “municipal institutions” in
(n) Slavin v. Orillia, 36 U. C. Q. B. 159 ; see ante, p. 359. (o) Sulte v. Three Rivers, 5 Leg. News, 330; 2 Cart. 280 ; see ante,
this sub-section. In the opinion of the Court, the provincial legislatures have the power for the purposes of “ municipal institutions” to pass a prohibitory liquor law, applicable to all municipalities within the province. In delivering the judgment of the court Mr. Justice Ramsay thus deals with the question of the meaning to be given to the term “ municipal institutions":
“It may be at once conceded that the power to pass prohibitory liquor laws is not essential to the existence of municipal institutions, and that consequently in a very restricted reading of sub-section 8, it would not justify the local legislature in pass. ing a prohibitory liquor law. But, it may fairly be asked, whether it was the intention of the Imperial parliament in an enumeration of this sort to confine 'municipal institutions' to those matters only which are of the essence of municipal institutions ? If such was the intention of parliament, a wide field for speculation was left open, or it was contemplated to restrict municipal institutions wịthin very narrow limits. It would seem, however, we have not to determine what institutions are essential to municipal existence in the abstract, but the meaning of the term at the time of Confederation."
Reference is made in the judgment to the fact that in New Brunswick, prior to Confederation, no statute conferred any such powers upon municipal corporations, but their existence in “the two great provinces of Confederation and one of the small ones” was, in the opinion of the court, sufficient to include them within the powers intended to be conferred under the expression “municipal institutions” in this sub-section 8.
The Court of Appeal for Ontario has lately had occasion to review the earlier decision of Chief Justice Richards, and, as we have before intimated, it was held (P); that a provincial legislature can empower a municipal body to pass a prohibitory by-law, because, at the date of Confederation, municipalities had that power in Upper
(P) Re Local Option Act, 18 0. A. R. 572; see per Maclennan, J.A., at p. 596.
Canada, now Ontario, thus confirming the opinion expressed in the earlier case.
In both Ontario and Quebec, therefore, this must be taken as law, that whatever powers municipal bodies had been invested with prior to the Union, those powers can now be conferred upon them by a provincial legislaturethat the term “municipal institutions" must be taken to cover all such powers.
In the case to which we have last referred, an admission is made to much the same effect as that made by Mr. Justice Ramsay in the Quebec case—“that there is no inherent connection between the liquor traffic and municipal institutions”; but this is qualified by the statement that there is as to Ontario at least-a constitutional connection, and that, in fact, in all the provinces there was the power to regulate the traffic, in some to even prohibit it, 'within the bounds of the municipality.
It must not be forgotten, however, that the pre-Confederation provinces had all the powers of colonial selfgovernment; their legislatures could make laws in relation to all matters not of Imperial concern, or governed by Imperial legislation; there was then no sub-division of the field between co-ordinate legislative bodies within the colony, and upon the principle of The Queen v. Burah, and subsequent cases (9), these pre-Confederation legislatures could, from time to time, invest municipal bodies with such of their own powers as to them seemed fit.
The late Mr. Justice Dunkin adverts to this in Cooey v. Brome (c) in the following terms :
“ Nor is there wanting a sense of the words municipal institutions in the province ' which would extend them also over ground assigned exclusively to parliament, and notably would limit its trade and commerve powers.
Under legislation not federally limited in that behalf, all sorts of powers are of course
(9) See ante, p. 177, et seq.
more or less delegated to municipal bodies whenever convenience may seem so to require. But for a legislature of strictly limited jurisdiction, nothing is clearer than that it can delegate no powers beyond those it can directly exercise. Our legislature can delegate no power of regulation of trade and commerce, nor over fisheries, nor weights and measures, nor anything else matter of merely parliamentary legislation. Each provincial legislature alone can create municipalities properly so-called ; establish their functionaries, and assign them their proper duties and their powers—but always within the limits of its own. Whether or not it can render them incapable of other duties and powers, to be delegated by parliament, is a question that need not here be considered. Our legislature, as will presently be seen, has been careful to declare them not so. And as to all powers not of provincial competency, so to speak, which they may hold under antecedent delegation of the unlimited legislature of the late province of Canada, these can be resumed or altered by parliament alone. As being exercised by municipalities, they may be styled in a certain sense municipal. But such sense is not that of the Union Act; nor even as mere matter of presumption, prima facie, is it that of provincial legislation under authority of the Union Act." and the same view is very clearly put by Mr. Justice Burton in Re Local Option Act (8):
“It does not suggest itself to my mind as at all conclusive in favor of the power of the Local Legislature to deal with the subject of prohibition under the words municipal institutions' that provisions in reference to that subject were, at the time of the passing of the Confederation Act, to be found in our own municipal Acts, and had been so for many years. It must not be forgotten that the legislature of the old, province of Canada, which passed those Acts, had plenary powers of legislation,
in fact, all the powers which are now distributed between the parliament of the Dominion and the legislatures of the provinces. Having that power, it was clearly competent to the legislature to confide to a municipal council or any other
(s) 18 0. A. R. at p. 585. See also per Spragge, C. iu Leprohon v. Ottawa, 2 0. A. R., 522, ante, p. 350.