that a commentary on a law by the author of that Prop. 3 law should have no weight? " 1 1As to the meaning of the words "other licenses" in No. 9 of Meaning of "other section 92, it would appear from Russell v. The Queen, 7 App. Cas. at licenses" in p. 838, 2 Cart. at p. 21, (1882), that the Privy Council certainly did not No. 9 of deem them to refer only to licenses ejusdem generis, for they speak sect. 92. there obiter of "licenses granted under the authority of sub-section 9 by the provincial legislature for the sale or carrying of arms." In Hamilton The Privy Powder Co. v. Lambe, M.L. R. 1 Q.B. at p. 463, (1885), Cross, J., Council. expresses the view that he was bound by the decision of the Supreme Court of Canada in Severn v. The Queen, 2 S. C. R. 70, 1 Cart. 414, (1878), to hold that "other licenses" must be restricted to those ejusdem generis, and cites Doutre on the Constitution of Canada, p. 230, as showing that the Privy Council have spoken in the same way as to that subsection. But there is a most curious mistake here, for the case referred to by Doutre, namely, Brown v. The Curate, etc., of Montreal, L.R. 6 P.C. 157, was not a case under the British North America Act, and had nothing to do with No.9 of section 92, but was a case where the Privy Council rigidly applied the rule ejusdem generis to a law of the Quebec legislature. And in this case of Hamilton Powder Co. v. Lambe, at p. 467, Ramsay, J., would seem to hold that at all events the license there in question, namely, for the storing of gunpowder, was Licenses to authorized by No. 9 of section 92. But that in Severn v. The Queen, store gun2 S.C.R. 70, 1 Cart. 414, a majority of the judges decided that the powder. rule of ejusdem generis applied to No. 9 there is no doubt: per Gwynne, J., in Molson v. Lambe, 15 S.C.R. at p. 288, 4 Cart. at p. 348, who adds that Severn v. The Queen is not shaken by Russell 7. The Queen, 7 App. Cas. 829, 2 Cart. 12, but "is still a judgment binding upon this Court and all Courts in this Dominion." Severn v. In Severn v. The Queen, Ritchie, C.J., says that the rule of ejusdem The Queen. generis could not apply to "other licenses," for, in fact, the licenses specified were not ejusdem generis, nor could the maxim noscitur e sociis be applied (2 S.C. R. at pp. 100-1, I Cart. at p. 443), and Strong, J., expresses the same view (2 S. C. R. at pp. 106-7, 1 Cart. at p. 450). On the other hand, Richards, C.J., thinks they should be restricted to licenses ejusdem generis (2 S. C. R. at p. 91, seq., I Cart. at p. 435, seq.); and so do Fournier, J. (2 S. C. R. at p. 118, 1 Cart. at p. 462), and Henry, J. (2 S.C.R. at p. 140, i Cart. at p. 485), and apparently Taschereau, J. (2 S. C. R. at p. 114, I Cart. at p. 458). And in the case decided some two years before Severn v. The Reg. v. Taylor. Queen, of Regina v. Taylor, 36 U.C.R. at p. 198, Wilson, J., had held in the same way, namely, that the effect of the words "other licenses" must be determined by the rule noscitur e sociis, adding :-" They seem to have a particular connection with, and affinity to, those licenses which are commonly mentioned and found along with shop, saloon, tavern, and auctioneer licenses, and which are chiefly contained in the municipal Act, such as licenses on billiard tables, victualling houses, ordinaries, houses where fruit, etc., are sold, hawkers and peddlers, transient traders, livery stables, cabs, intelligence offices, and perhaps other licenses in the regulation of markets and in some other cases. And he held, therefore, that the Ontario legislature had no right to impose a license on brewers and distillers, Brewers' for "the business of these persons is not specified plainly in the statute licenses. giving the Ontario legislature the power over them; and it is an established rule that a statute which imposes a tax must be strictly con Prop. 3 The B.N.A. And although the British North America Act must be construed by the same methods of conAct must be struction and exposition as other statutes, it would seem necessary to explain that what is meant construed as other statutes of a similar character. C.J. strued, a fortiori must a claim of right to impose a tax be strictly construed, whether it be by the Crown or by any subordinate power or person whatsoever. And the business of a brewer has always been dealt with as a matter of excise, and of direct government control, and is so still." But on appeal to the full Court, Draper, C.J., with whom Strong, Burton, and Patterson, JJ., express a general concurrence (see at p. 222), thought the argument founded on the applicaPer Draper, tion of the rule was answered "by the consideration of the object, raising a revenue for provincial as well as for local and municipal purposes.'"' He adds:-"I think we should not look out of the Imperial Act for the socii, whose character is to affix a meaning to 'other licenses '; and granting that the four named occupations have got into low company in the Ontario Municipal Act, they are lifted out of it in section 92. But the decision of the case did not turn on this point, and the Per Wilson, Court affirmed Wilson, J., in holding that the Ontario legislature could J. not impose a license and payment of duty therefor upon wholesale sellers of spirituous liquors. Wilson, J., in this case of Regina v. Taylor, 36 U.C. R. at p. 199, seems to advance a somewhat curious view, that because the business of a brewer is, and has always been, carried on under strict government rules and regulations, it could not under any circumstances be included within such general words as "other licenses." For, he says:-"It cannot be said that a business of that nature is one which is covered by, or included within, the general words and other licenses,' especially when these words are in association with licenses of a very inferior and different class, and which relate only to sales by retail, while the brewers' license relates to sales by wholesale." Turning to New Brunswick, we find that in Ex parte Fairbairn, 2 P. & B. (18 N.B.) 4, (1877), the provincial Act, 38 Vict., c. 88, imposing the taking out of a license, to be granted by the Mayor duty on all of Fredericton, on any person, not being a ratepayer, engaging "in any trade, profession, occupation, or calling in the said city," was held intra vires, under No. 9 of section 92 of the British North America Act; and this was approved and followed in Jonas v. Marshall, 4 P. & B. (20 N.B.) 61, (1880), where a similar Act as to St. John, 33 Vict., c. 4, was also held intra vires in the same way, Palmer, J., saying (at p. 63): "I think the 9th sub-section of section 92 gives exclusive powers to the local legislature to legislate in relation to licenses of any kind that they may think desirable for the purpose of raising a revenue for provincial, local, or municipal purposes, and for no other purpose.' When this case came before the Supreme Court of Canada, sub nom., Jonas v. Gilbert, 5 S.C.R. 356, (1881), it went off on another point, and the constitutional question was not entered upon: see Thomas v. Haliburton, et al., 26 N.S. at p. 74. And before leaving the subject we may observe that in the case of Hamilton Powder Co. v. Lambe, M.L.R. 1 Q.B. at p. 463, and also in City of Montreal v. Walker, M.L.R. 1 Q.B. at page 472, the view is taken that even if the local legislatures may not impose a license for revenue purposes in cases outside No. 9 of section 92, they may nevertheless enforce police regula regulation. tions by way of requiring licenses, fixing a moderate and liberal license fee, and not a revenue fee. See further, infra, at pp. 47-9, 54-63, and Appendix A. License trades and callings. Police referred to. is other statutes of a similar character, although Prop. 3 it may be impossible to acquiesce without reserve in the words of Henry, J., in City of Fredericton v. The Queen, that we should construe the British North America Act in the way pointed out Vattel by Vattel (Book II., chapter 17, sections 285, 286), namely, remembering that "a constitution of government does not and cannot from its nature depend in any great degree upon mere verbal criticism or upon. the import of single words," and that "while we may well resort to the meaning of single words to assist our enquiries, we should never forget that it is an instrument of government we are to construe; and, as has been already stated, that must be the of govern truest exposition which best harmonizes with its design, its objects, and its general structure." They are repeated, however, by Spragge, C.J., in Hodge v. The Queen, and again by the same learned judge in Reg. v. Frawley.3 2 The Act an instrument ment. before the Council v. The Queen. And in the argument before the Judicial Committee Argument of the Privy Council in Hodge v. The Queen we Privy find the view of the Act expressed in the passages in Hodge . just cited remarked upon, and Mr. Jeune, of counsel for the appellant, referring especially to the words of Spragge, C.J., in Reg. v. Frawley, observes :— "He says this is a charter of government, and 13 S.C. R. at pp. 550-5, 2 Cart. at pp. 46-49, (1880). 27 O.A. R. at p. 253, 3 Cart. at p. 168, (1882). 37 O.A. R. at p. 265, 2 Cart. at pp. 582-3. In Angers v. The Queen Insurance Co., 22 L.C.J. at p. 311, 1 Cart. at p. 152, (1878), we find Dorion, C.J., saying:—“This Act" (sc., the British North America Act) seems to escape from the ordinary rules of construction applicable to statutes generally. The Confederation Act must be interpreted according to the real or presumed intention of the Imperial parliament, of the legislatures of the several provinces, and this intention must be gathered from the circumstances existing in the several provinces at the time of Confederation." As to which, see Proposition 4 and the notes thereto. Prop. 3 therefore to be construed in a larger way. Vattel. tional 2 No authority is given for that. One Act of Parliament must be construed like another";1 while later on in the same argument Mr. Davey, of counsel for the respondent, citing the words attributed to Vattel in the judgments above cited (but which are really, it would appear, taken from Story on the Constitution, section 455), and alluding especially to the point raised in that case, that "imprisonment" under No. 15 of section 92 did not include "imprisonment with hard labour," says3:-"I agree that is a little vague, but still I think it is a sound principle that you are not to criticize the language of a constitutional A constitu- charter, or of an Act of parliament of this kind, like a criminal indictment, and I should say that it is a perfectly sound distinction to say that although a criminal Act, imposing imprisonment as a punishment for a definite offence, would not authorize the judge to give hard labour, but simple imprisonment, unless so expressed, it does not follow from that that in a constitutional charter, or, if my learned friends object to that expression, an Act of parliament, conferring legislative power on a provincial legislature, you are to construe the word 'imprisonment' with the same strictness." And the Judicial Committee did hold in this case of Hodge v. The Provincial Queen' that "the imposition of punishment by impose hard fine, penalty, or imprisonment," in No. 15 of charter. power to labour. 1 Dom. Sess. Papers, 1884., Vol. 17, No. 30, p. 88. 2See 3 Cart. at p. 169, note. 3 Dom. Sess. Pap., ib., p. 123. 49 App. Cas. at p. 133, 3 Cart. at p. 164, (1883). It had been held otherwise in the Superior Court Quebec, in Poitras v. Corporation of Quebec, 9 R.L. 531, (1879). And see Hodge v. The Queen commented on by "R." in 7 L. N. at p. 49, and by Dr. Francis Wharton, ib., at pp. 169, 177. No. 15, sect. 92, Reg. v. section 92, includes "imprisonment with hard Prop. 3 labour," not, however, elaborating the point, but merely saying :—" Under these very general terms, 'the imposition of punishment by imprisonment for enforcing any law,' it seems to their lordships that there is imported an authority to add to the confinement or restraint in prison that which is B.N.A. Act. generally incident to it, 'hard labour'; in other words, that imprisonment' there means restraint by confinement in a prison, with or without its usual accompaniment, hard labour." The Court of Appeal for Ontario had previously decided the same point in the same way in Regina v. Frawley,1 where, in the passage referred to by Frawley Mr. Jeune, Spragge, C.J., with whom Burton, J.A., concurs, says: "It may be conceded that an Act creating an offence and annexing imprisonment simply, as the penal consequence of committing the offence, would not warrant sentence of imprisonment with hard labour; but the question is a very different one when we find the word in an Imperial charter conferring a constitution." He then cites the passage attributed to Vattel quoted above, and proceeds: "It must be con- Per ceded that the power thus expressly conferred is to be limited to punishment by fine, penalty, or imprisonment. Still, in interpreting the words used, the rule as to construing the Act with strictness, or even with reasonable strictness, does not apply. It does not, in my judgment, apply, because it is The Act an used in conferring power upon a legislature, not of govern in simply annexing to a crime its penal consequences; in which latter case the rule of strictness has always been the rule of construction; while in 17 O.A.R. 246, 2 Cart. 576, (1882). 27 O.A. R. at p. 265, 2 Cart. at p. 582. Spragge, C. instrument ment. |