Prop. 17 Per not invested with any attributes of Sovereignty. But provincial legislatures having, in the words of the leading Proposition, authority as plenary and as ample within the limits prescribed by section 92 of the British North America Act as the Imperial parliament in the plenitude of its powers possessed and could bestow, and presided over, as they are, by the representative of the Crown, it would seem to be necessarily incorrect to say as Gwynne, J., says in Citizens Insurance Co. v. Parsons that:-"The provinces of the Dominion of Canada, by the wise precaution of the founders of our constitution, are not invested Provinces with any attribute of national sovereignty. The framers of our constitution, having before their eyes national the experience of the United States of America, have taken care that the British North America Act should leave no doubt upon the subject. Within the Dominion the right of exercise of national sovereignty is vested solely in Her Majesty, the supreme sovereign Head of the State, and in the parliament of which Her Majesty is an integral part; these powers are, within this Dominion, the sole administrators and guardians of the comity of nations." In fact, in this very case, the judgment of the Privy Council, as well as of the majority of the Supreme Court, was that provincial legislatures have power to pass Acts controlling and regulating the manner in which a trade or business shall be Sed quare. carried on in the province, legislation which, according to Gwynne, J., himself, "can only be vindicated upon the principles governing what is called the comity of nations, the administration of 1See Proposition 7. 3 24 S.C. R. at pp. 346-7, I Cart. at pp. 348-9, (1880). 37 App. Cas. 96, see esp. at p. 113, 1 Cart. 265, see esp. at p. 278, (1881). which belongs exclusively to supreme national sov- Prop. 17 ereignty.”1 3 And, with deference, it is submitted that in view of the authorities upon which the leading Proposition rests, it is scarcely correct to speak of either the Dominion parliament or the provincial legislatures as not possessing "legal omnipotence over the subject-matters" committed to them, as Hagarty, C.J., does of the latter in Leprohon v. The City of Ottawa. Yet they are, of course, subject to the paramount authority of the Imperial parliament, and to the veto power in the one case of How far provincial the Imperial Executive, and in the other of the legislatures Dominion Executive.* And so in respect to to be provincial legislatures, Ramsay, J., says in North within their British and Mercantile Insurance Company v. Lambe: "It is admitted that the local legislatures are as omnipotent within the scope of their legislative powers as the Dominion parliament is within its powers. It does not, however, follow from this that the federal organization has no supremacy over the local. Such a pretension would. 1Ritchie, C.J., says, S.C., 4 S.C. R. at p. 238, 1 Cart. at pp. 288-9: -"I may affirm with confidence that the British North America Act recognizes in the Dominion constitution and in the provincial constitutions a legislative sovereignty, if that is a proper expression to use, as independent and exclusive in the one as in the other over the matters respectively confided to them." Cf. per Ritchie, C.J., in Mercer v. Attorney-General for Ontario, 5 S.C.R. at p. 643, 3 Cart. at p. 33, (1881); per Dorion, C.J., in Colonial Building and Investment Association v. Attorney-General of Quebec, 27 L. C.J. at p. 301, 3 Cart. at P. 139, (1883). And as to Gwynne, J.'s view of the subordinate position of provincial governments and legislatures, see Mercer v. Attorney-General for Ontario, 5 S.C. R. at p. 711, 3 Cart. at pp. 83-4. Also, supra pp. 105-7, and the notes to Proposition 61. 22 O.A.R. at p. 532, 1 Cart. at p. 603, (1878). 3See Proposition 12. *See Proposition 10 and the notes thereto. 5M.L.R. 1 Q.B. at p. 182, 4 Cart. at p. 74, (1885). can be said omnipotent own sphere. Prop. 17 be utterly untenable, for the federal power alone has the power to nominate one of the branches of the local legislature, it can disallow its Acts, it can turn local works into federal works, and it can create new provinces. The true doctrine seems to me to be this, that the federal power is not generally supreme relatively to the local power. Its supremacy Relation of consists in its power to influence indirectly the action of the local power, or to paralyze it to some extent, not in the power to destroy it."1 the federal power to them. Power to impose unequal taxation. American legislatures cannot. 3 4 It is matter of surprise, also, that in Regina v. Wing Chong, Crease, J., though he cites the passage from the judgment of the Privy Council in Hodge v. The Queen, upon which the leading Proposition is mainly based, nevertheless intimates his view that provincial legislatures cannot impose unequal taxation, quoting with approval a passage from Kent's Commentaries on American Law, where it is said: "The citizens are entitled to require that the legislature itself shall cause all public taxation to be fair and equal in proportion to the value of property, so that no one class of individuals and no one species of property may be unequally or unduly assessed."5 Yet in the subsequent case of Regina v. The Gold Commissioners of Victoria District, the Divisional Court in British Columbia, consisting of four judges, held unanimously that 6 1See Proposition 10 and the notes thereto. 22 B.C. (Irving) at p. 161, (1885). 39 App. Cas. at p. 132, 3 Cart. at p. 162. 48th ed., Vol. 2, p. 388; 12th ed., Vol. 2, p. 331. 5 Also quoted with approval by Gray, J., in Tai Sing v. Maguire, I B.C. (Irving) at pp. 108-9, (1878). In a despatch from Ottawa of April 8th, 1885, the Secretary of State says of some British Columbia Acts relating to Chinese:-"A question may arise as to whether or not the Acts, applying only to a portion and not to the whole of the population of the province, are constitutional: " B.C. Sess. Pap., 1885, at p. 464. 62 B.C. (Irving) 260, (1886). Columbia likewise of tax our provincial the legislatures. section 14 of The Chinese Regulation Act, 1884, Prop. 17 declaring that "No free miner's certificate shall be British issued to any Chinese except upon payment of judges hold $15," was an attempt to impose a differential on the Chinese, and, therefore, ultra vires of provincial legislature. And in support they refer Sed quære. to an instance mentioned in Todd's Parliamentary Government in the British Colonies, where the royal assent was refused to an Act of the Queensland legislature imposing a differential tax on Chinese miners, and say :-" If this Act was wrong Mr. Todd. on the part of Queensland, it would, moreover, be unconstitutional if passed by our local legislature." Chinese But a reference to Mr. Todd's account of the matter Taxation of shows that it was on Imperial grounds, and because immigrants. the Act involved a breach of international comity. that the royal assent was refused." Again, in view of the leading Proposition, it is difficult to understand how an Act of the Dominion parliament or of a provincial legislature can be void and unconstitutional merely because in conflict with an Imperial treaty, unless, of course, such treaty has been confirmed by Imperial statute. Such an Colonial Act would no doubt call for the exercise of the veto conflicting power; but, if within their spheres, these legisla- Imperial tures are as sovereign as the Imperial parliament itself, it may well be asked how can such a conflict render their Act void?s 11st ed. at pp. 154-5. 2See, also, Proposition II and the notes thereto; also Propositions 19, 21, and 61, and the notes thereto. 3That the provisions of an Imperial treaty cannot override those of an Imperial Act is beyond dispute: In re California Fig Syrup Company's Trade Mark, 40 Ch. D. 620, 627-8, (1885); In re Carter Medicine Company's Trade Mark, W.N. 1892, p. 106. And even in the United States, in the recent Chinese exclusion case, Fong Yue Ting v. United States, 149 U.S. 698, the Supreme Court held that the Acts treaties. Prop. 17 Reg. v. Wing Chong. Per However, in Regina v. Wing Chong,1 Crease, J., referring to the treaties between Great Britain and China, says "These obligations are binding here and in other parts of the Dominion under section. 132 of the British North America Act, and no province or the Dominion itself can lawfully pass laws interfering with that right without the previous revision of the treaties of the high contracting parties to them for that purpose. Treaties with foreign Treaties are nations are above all ordinary municipal law, for obvious international reasons, for without such a provision there can be no permanent security, which is the life of all commercial intercourse . . . Such treaties are the especial care of the Dominion." And on this same ground amongst others in the previous British Columbia case of Tai Sing v. Maguire,3 Gray, J., held the provincial Chinese Tax Act, 1878, to be ultra vires, saying:-" Treaties are regarded as Tai Sing the highest and most binding of laws, beyond any merely internal regulation which one of the parties above all mere municipal law. So per Maguire. provisions of an Act of Congress, passed in the exercise of its constitutional authority, must, if clear and explicit, be upheld by the Courts, even in contravention of stipulations in an earlier treaty, although, as pointed out in the previous case of Chae Chan Ping v. United States, 130 U.S. 581, "By the constitution of the United States laws made in pursuance thereof and treaties made under the authority of the United States are both declared to be the supreme law of the land, and no paramount authority is given to one over the other." However, it is there said that "the last expression of the sovereign will must control." As to Canada, no one, of course, will dispute the dictum of Richards, C.J., in Reg. v. Schram, 14 C. P. at p. 322, (1864):—“As long as it is admitted that the Home government, by whom the supreme power of the Empire is exercised, is the proper channel through which all our relations and intercourse with foreign governments are to be carried on, the power to pass laws to bind the whole nation so far as regards those relations (and, as necessarily arising out of them, the peace of the Empire) must rest with the Imperial parliament." 12 B.C. (Irving) at pp. 161-2, (1885). 2 See section 132 of the British North America Act. 31 B.C. (Irving) at p. 109, (1878). See this case referred to in Todd's Parl. Gov. in Brit. Col., 2nd ed., at p. 194. |