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noted, however, that in Bank of Toronto v. Lambe, the Committee speak of “direct taxation and licenses.” The difference of opinion, therefore, which may very reasonably exist upon the point would be sufficient warrant for the insertion, by the framers of the B. N. A. Act, of this subsection" by way of abundant caution."
If the decision in Severn v. Reg. (gì, that a brewer's license cannot be imposed by a province, is still law, it can only be upon the ground that it is “indirect ” taxation and not ejusdem generis with the licenses particularly mentioned in this sub-section. If it is “ direct” taxation, it does not matter whether it is or is not ejusdem generis, for Bank of Toronto v. Lambe would distinctly uphold it.
10. Local Works and Undertakings, other than such as are of the following classes, a. Lines of Steam or other Ships,
Railways, Canals, Telegraphs, and other works and undertakings connecting the Province with any other or others of the Provinces, or extending beyond the limits of the Pro
vince : b. Lines of Steam Ships between the
Province and any British or
Foreign Country: c. Such works as, although wholly
situate within the Province, are before or after their execution declared by the Parliament of Canada to be for the general
advantage of Canada or for the (g) 2 S. C. R. 70; see ante, p. 364.
advantage of two or more of the
11. The Incorporation of Companies with Provincial objects.
The authorities upon these two sub-sections so run into each other that it will simplify matters if we discuss them together. Their connection is obvious, the “provincial objects" for which incorporation is sought under sub-section 11 being, in probably the majority of cases, “local works and undertaķings” falling within sub-section 10. The power lodged by exception (c) in the hands of the Dominion government gives that government the anomalous privilege of defining its own sphere of authority, in reference to these matters, as against the provinces. Much the same power is vested in Congress in reference to “internal improvements,” and this has been the subject of much adverse comment from those who view with alarm the encroachment of the central authority.
With this phase of the question, however, we should not perhaps concern ourselves in this place, for, at any given moment of time, the line of division is a legal one, though subject to be thereafter shifted at the will of the parliament of Canada.
It has been held by the Court of Queen's Bench of Quebec (h) that all works which are wholly within one province, whether the undertaking to which they belong be for a commercial purpose or otherwise, are within the control, and subject to the legislation of the province in which they are situate, unless they are by the parliament of Canada declared to be for the general advantage of Canada, or for the advantage of two or more of the provinces. The Dominion parliament cannot, it was held, without such declaration, authorize a company to establish in two or
(h) Reg. v. Mohr, 7 Q. L. R. 183, 2 Cart. 257.
more provinces, works needing special legislative authority, and which are in their nature local in each province, the jurisdiction in such case to give the needed authority being determined by the location and object of the works, and not by the circumstance that the company is authorized to make them in several provinces.
Applying the law so laid down, the Dominion Act (43 Vic. c. 67), incorporating the Bell Telephone Company, and authorizing the establishment by that company of telephone lines in the several provinces of the Dominion, but which contained no provision as to utilizing their powers for the purpose of connecting two or more provinces, was declared ultra vires. Dorion, C.J., says:
“If the Dominion cannot incorporate separate companies for the purpose of establishing separate lines of telegraph in one, or two, or more of the provinces, unless such lines are to connect two or more provinces, or extend beyond the limits of one province, or are expressly declared to be for the advantage of the Dominion, or of two or more provinces, it is because by : their nature these separate telegraph lines are local works and undertakings, subject to the exclusive control of the provincial legislatures.
“ And if the Dominion cannot authorize separate companies to establish such separate lines of telegraph, whence could it derive its authority to incorporate one company to establishı those several works? It is evident that the nature and charac. ter of such undertakings cannot be altered from being local undertakings to become general by the mere fact that they are to be established by one company instead of several companies. Their character is determined by their location and object, or by an express declaration of the Dominion parliament, and not by the accident that the same company is authorized to make them all."
In view, however, of the judgment of the Judicial Committee of the Privy Council, in the case about to be noted (i), Regina v. Mohr can no longer be considered a binding
(i) Colonial Bldg. Ass. v. Atty.-Genl. of Quebec, 9 App. Cas. 157.
authority even in Quebec—so far, at least, as it declared the entire invalidity of the Act of incorporation. The larger question as to the subjection of such a company to provincial law—just how far the Dominion parliament can go, beyond merely conferring corporate capacity—is not touched upon in the judgment. It should be pointed out, perhaps, that no doubt was expressed by the court as to the power of the Dominion parliament to authorize the incorporation of a company, with power to establish general telephone communication throughout the various provinces of the Dominion, or between any two of them. The judgment proceeded solely upon the ground that the Act in question gave the company no power to establish such a system, or to make such connection between two provinces. The work which was actually being carried on, under this statute, was held to be a local work falling within sub-section 10, and being such, it could only be authorized by a provincial Act. The judgment of the Privy Counci), however, distinctly enunciates that the territorial extensibility of the power, and not the extent to which it is actually exercised, is to decide the question as to which legislature should grant a charter of incorporation.
The power to incorporate companies with powers extending beyond one province, is clearly with the parliament of Canada, and the fact that a company, so incorporated, may not see fit to extend its operations beyond one province, does not affect its status as a duly incorporated company, or render its Act of incorporation (if incorporated by Act of parliament) ultra vires. The difference between a Dominion and a provincial company is in the territorial sphere within which the company's powers may be, not within which they are actually, exercised.
In Clarke v. Union Fire Insurance Co. (,), it was held by the Master in Ordinary (Mr. Hougins, Q.C.), that an in
(j) 10 P. R. (Ont.) 313. The affirmance of this judgment on appeal does not touch the constitutional point; see 6 O. R. 223.
surance company incorporated under a provincial statute can enter into insurance contracts abroad, i.e., insuring property situated out of the province. Sed quære. No doubt it can validly contract in matters collateral to the objects for which it was incorporated, but (apart from the view which might be taken in foreign courts if such contract were sued upon there) it is submitted that, in respect of such insurance contracts, the company must be treated by the courts of these provinces as an unincorporated association of individuals.
In European and N. A. Railway Company v. Thomas (k), a provincial legislature was held by the New Brunswick Supreme Court to be entitled to legislate with respect to a provincial railway running only to the boundaries of the province, such railway being a local work and undertaking within sub-section 10, although, as appeared by the facts of that case, legislation had been procured in the State of Maine incorporating an American company to build a railway in that State to connect with the provincial railway in question.
This sub-section 10 was considered by the Privy Council in Dow v. Black (1), in which a provincial Act authorizing a municipality to grant a bonus to a railway company extending beyond the province, was held to fall within sub-section 2 of section 92, ante, or, if not under that subsection, then under sub-section 16, as to which see post. It was held not to be touched by sub-section 10 at all. A question, however, was raised in that case which the Committee abstained from deciding, namely-does exception (a) apply to a railway extending from one province, not into another, but into a foreign country? The limitation of exception (b) to steamship lines was urged in support of the view that a provincial legislature has power to enact laws as to railways extending from one province into a
(k) i Pug. 42, 2 Cart. 439. (1) L. R. 6 P. C. 272.