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It was held, however, that the legal capacity to acquire and open up such streets (conferred by the Ontario Municipal Act) was subject to the supervention of federal legislation respecting federal works and undertakings such as the Grand Trunk Railway; that the manner and terms of acquiring and making streets across such a railway was a proper subject for such supervening federal legislation; and that the parliament of Canada was within its powers in delegating authority to determine such questions to the Railway Committee.

A municipal corporation is, of course, subject to federal law competently enacted; and the legislative authority of the Dominion parliament to confer powers and impose duties within the sphere of its authority upon such a corporation other than those conferred or imposed by provincial legislation would seem clear; but the judgment of Meredith, J., above noted, denies in very general terms federal authority to confer corporate capacity."

A provincial legislature may determine the mode of trying municipal election cases, name the tribunal, and regulate the procedure.


G. T. R. v. Toronto, ubi supra; Central Vermont Ry. v. St. John, 14 S. C. R. 288; 4 Cart. 326.

On the principal of Valin v. Langlois, Atty.-Gen'l. v. Flint, etc., discussed post, p. 307. The Canada Temperance Act is one example of powers conferred and duties imposed upon municipalities by federal law. See per Sedgewick, J., in the Local Prohibition Case, 24 S. C. R. at p. 247; 5 Cart. at p. 357; per Dunkin, J., in Cooey v. Brome, 21 L. C. Jur. at p. 186; 2 Cart. at p. 388-cited in Lefroy, 521.

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Compare Toronto v. Bell Tel. Co., 3 O. L. R. 465; Re O. P. Co. and Niagara Falls, 6 O. L. R. 11; and other cases cited in notes to s. 92, No. 11, post, p. 280, as to the powers of federal and provincial companies. The question seems to turn upon the distinction, if any, between capacity and powers. Given the corporate entity created by provincial legislation, are not its capacity and powers, like those of the individual, dependent upon both Dominion and provincial legislation, each within its sphere?

Crowe v. McCurdy (1885), 18 N. S. 301; Reg. ex rel. McGuire v. Birkett, 21 O. R. 162; Clarke v. Jacques, Q. R. 9 Q. B. 238. In the view of the P. C. these matters do not quite plainly fall within "the administration of justice in the province" (see Valin v. Langlois, 5 App. Cas. 115; 49 L. J. P. C. 37; 1 Cart. 158; and notes to s. 41, ante, p. 127), and these cases therefore are here noted. See notes to s. 92, Nos. 14 and 15. post.

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9. Shop, saloon, tavern, auctioneer, and other licenses in order to the raising of a revenue for provincial, local, or municipal purposes. (a)

10. Local works and undertakings (b) other than such as are of the following classes,—


(a) Lines of steam or other shops, railways, canals, telegraphs, and other works and

(a) On the authorities as they now stand this item would seem to have been unnecessary. It is a purely fiscal provision, and although it has been held to authorize regulation of the trades and occupations licensed under it, such regulation may well be grounded on No. 16 of section 92, "matters of a merely local or private nature in the province."10 In its purely fiscal aspect, the license fees imposed under it have been held to be direct taxation,' and would therefore be equally valid under No. 2 of section 92; and no question would arise as to whether the occupation licensed was or was not ejusdem generis with those particularly mentioned in this class No. 9.2 As intimated in the latest decision upon this class it is difficult to discover genus sufficiently wide to cover the various species mentioned, which would not practically cover all trades and occupations.

(b) Owing to the fact that works and undertakings of the classes covered by the exceptions are usually carried on by incorporated companies, the cases are complicated by considerations as to the powers possessed by such companies un

For this reason the subject of provincial taxation is dealt with as a whole in the notes to No. 2 of s. 92, "direct taxation within the province, etc.." ante, p. 251.


Hodge's Case, 9 App. Cas. 117; 53 L. J. P. C. 1; 3 Cart. 144. Ib. as explained in the Local Prohibition Case, (1896) A. C. 348; 65 L. J. P. C. 26; 5 Cart. 295.

10 Local Prohibition Case, ubi supra, as explained in the Manitoba Liquor Act Case, (1902) A. C. 73; 71 L. J. P. C. 28.

1 Brewers' License Case, (1897) A. C. 231; 66 L. J. P. C. 34. The item was probably inserted cx majore cautela because of the doubt which might well exist upon this point. See Lefroy, 377 (n. 2).

2 Brewers' License Case, ubi supra.
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der their acts or charters of incorporation, federal or provincial as the case may be, without reference, it may be, to the legislative jurisdiction of the parliament of Canada or of a province over the particular works and undertakings. It is difficult and yet almost essential to a proper grasp of the subject to keep these two phases distinct; and it is proposed. therefore to deal with this class No. 10, as far as possible, apart from any question as to corporate capacities and powers.

Except for the purpose of defining the federal sphereof authority, this class No. 10 would seem to be superfluous. In the cases in which particular works and undertakings have been held to be local, provincial legislation in reference to them has been based indifferently upon this class No. 10 or upon No. 16 of section 92, matters of a merely local or private nature in the province."

As indicated by Street, J., in Toronto v. Bell Tel. Co. (1902), 3 O. L. R. 465 (see post, p. 274) the difficulties thus arising may be removed in the case of Dominion companies by the exercise by the Dominion parliament of the power conferred by exception (c), thus bringing the works and undertakings within the exclusive legislative jurisdiction of the federal parliament.

E.g., Re Lake Winnipeg Transportation Co., 7 Man, L. R. 255; Union Colliery Co. v. Bryden, (1899) A. C. 580; 68 L. J. P. C. 118; Hull Elec. v. Ottawa Elec., (1902) A. C. 237; 71 L. J. P. C. 58.

Local works and undertakings may, of course, become federal as the result of the exercise by the parliament of Canada of the power conferred by exception (c). But, apart from this, what is meant by local works and undertakings? The term cannot, it is submitted, be so construed as to enlarge the provincial sphere of authority beyond the limits defined in the other classes of s. 92: it must, in other words, be interpreted upon the same principle as is applied to "municipal institutions" (see notes to No. 8 of s. 92, ante, p. 262), and "the incorporation of companies (see notes to No. 11 of s. 92, post, p. 280). However, it should be noted, it was held by Mr. Justice Osler in Jones v. Can. Cent. Ry. (46 U. C. Q. B. 250), that provincial legislation in reference to the bonds of a railway company falling within this class No. 10 is operative to govern bonds held out of the province: "I am of opinion that where debts and other obligations arise out of, or are authorized to be contracted under, a local Act which is passed in relation to a matter within the powers of the local legislature, such debts or obligations may be dealt with or affected by subsequent Acts of the same legislature in relation to the same matter, and this notwithstanding that by a fiction of law such debts may be domiciled out of the province." And see Clarkson v. Ont. Bank, 15 0. A. R. at p. 190, 4 Cart. at p. 527; Re Windsor & Ann. Ry.. 4 R. & G. 322; 3 Cart. 399.


Works and undertakings falling within the exceptions are, of course, by virtue of item No. 29 of section 91, within the exclusive jurisdiction of the federal parliament. Dominion legislation in reference to such works and undertakings is of paramount authority so long as it strictly relates to them or is reasonably ancillary to the main object of the legislation. Within these limits it may interfere with and modify or supersede provincial legislation. Provincial legislation strictly relating to such works and undertakings is incompetent; but in the absence of Dominion legislation upon what may be deemed ancillary topics provincial legislation in reference thereto would have operation.10 The question has most frequently arisen in reference to

Dominion Railways.-The following provisions in the Railway Act of Canada have been held intra vires:

The provisions rendering ineligible as a director of a railway company any person holding any office in the company, or being interested in any contract with it:-Held by the courts of Quebec (and affirmed by the Supreme Court. of Canada "for the reasons given in the court appealed from ") that the federal parliament may legislate "on all incidents which may be required to carry out the object it had in view, provided such incidents are essentially and strictly connected with the principal object; and the ca pacity or incapacity of directors is a matter essentially connected with the internal economy of a railway company.1

The section giving to any person injured by the failure of the railway company to observe any of the provisions of the Act a right of action" for the full amount of damages sustained:"-Held, by the Court of Appeal for Ontario that


"Such classes of subjects as are expressly excepted in the enumeration of the classes of subjects by this Act assigned exclusively to the legislatures of the provinces."

The general rule is discussed, ante, p. 186.

See ante, p. 186.

10 See ante, p. 186.

1 Macdonald v. Riordan, (1899) 30 S. C. R. 619; 8 Que. Q. B. 555. This case may perhaps be deemed an authority as to the range of Dominion power in relation to the incorporation of companies rather than to railways.

the provincial" Workmen's Compensation for Injuries Act" which places a limit upon the amount recoverable by an inployee of the company in such cases did not apply.2

Those clauses of the Act which give to the railway committee of the Privy Council power to decide questions as to the crossing of highways by railways and to apportion between the railway company and the municipalities concerned the cost of the necessary structures:-Held by the Court of Appeal for Ontario, affirming the judgment of Rose, J., that such provisions were fairly warranted in railway legislation.3

The clause limiting the time within which an action. may be brought for injury sustained by "reason of the railway:"-Held by the Supreme Court of New Brunswick a provision reasonably incident to railway legislation.* The

'Curran v. G. T. R., (1898) 25 O. A. R. 407.

Re C. P. R. & York, (1898) 25 O. A. R. 65; (1896) 27 O. R. 559. Burton, C.J.O., said:" In all matters affecting its construction, operation, and management, including the expropriation of the lands required, everything in fact necessary to its full and efficient working, the legislation of the Dominion is of paramount authority, even though it interferes with property and civil rights and trenches upon matters assigned to the provincial legislature by s. 92; but he expressed doubt as to the clauses giving power to impose upon parties other than the railway the burden of the cost of the structures, etc., deemed necessary. Osler, J. A., adhered to the views expressed by him in McArthur v. N. & P. Ry. (infra, p. 270), and of the clauses in question said:"As provisions relating to the safety of the public in connection with the management of a great Dominion undertaking they would appear to be eminently germane, if rot absolutely necessary, to legislation on such a subject." See also G. T. R. v. Ham. Rad. Elec. Ry., (1897) 29 O. R. 143, per Street, J.: G. T. R. v. Toronto, (1900) 32 O. R. 120, per Meredith, J. In the former case Street, J., held that an order of the Railway Committee allowing defendant company to cross the G. T. R. at grade was valid though contrary to the provisions of the defendant company's provincial Act of incorporation.

Levesque v. N. B. Ry. Co., (1899) 29 N. B. 588. The defendant company was originally incorporated by a pre Confederation Act (N. B.), which provided for the fencing of the line. After Confederation, the railway was declared to be for the general advantage of Canada with the provision that the Dominion Railway Act should govern it so far as applicable and not inconsistent with the several Acts of the company. The provincial Act was held to govern as to fencing; the Dominion Act as to the time within which action should be brought. King, J., expressed doubt as to the clause allowing the

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