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the Canadian Pacific Railway, a public work within Prop. 37 the meaning of sub-section (a) of No. 10 of section 92 of the British North America Act.1

determining

such Domin

A case which illustrates how difficult it may sometimes be to determine whether, in legislating upon subjects entrusted to its jurisdiction by section. 91, the Dominion parliament has or has not unduly encroached upon the sphere of provincial jurisdiction is McArthur v. The Northern Pacific Junction R. W. Difficulty of Company, in which case Street, J., Hagarty, C.J.O., extent of and Osler, J.A., held that section 27 of R.S.C., c. 109, ion powers. whereby all actions for indemnity for any damage or injury sustained by reason of any railway under Dominion control must be commenced within six months, was intra vires of the Dominion parliament, being in accordance with the customary legislation in similar cases both in Canada and England; while Burton, J.A., and Maclennan, J.A., held that it was ultra vires, as being an unnecessary interference with property and civil rights and with procedure in the province, the latter denying that any such clause is

1Further citations supporting the Proposition under discussion are as follows:-Per Allen, C.J., in Robertson v. Steadman, 3 Pugs. at p. 631, (1876); per Palmer, J., in the Queen v. City of Fredericton, 3 P. & B. at p. 150, et seq., (1879), as to criminal law interfering with property and civil rights, and as to these latter terms referring to civil or municipal as distinguished from criminal law; also S. C. at pp. 146-7; per Taschereau, J., in City of Fredericton v. The Queen, 3 S.C.R. at p. 558, 2 Cart. at p. 52, (1880); Beausoleil v. Frigon, I Dor. Q.B.Qu. 70, (1880); per Fournier, J., in Citizens Insurance Co. v. Parsons, 4 S.C. R. at p. 257, I Cart. at p. 303, (1880); per Ritchie, C.J., in the Queen v. Robertson, 6 S.C.R. at pp. 100-1, 2 Cart. at p. 82, (1882); per Gwynne, J., in Attorney-General v. Mercer, 5 S.C.R. at p. 703, 3 Cart. at p. 78, (1881); per Spragge, C., in Hodge v. The Queen, 7 O.A.R. at pp. 252-3, 3 Cart. at pp. 167-8, (1882); per Weatherbe, J., in In re Windsor and Annapolis R. W., 4 R. & G. at p. 321, 3 Cart. at p. 399, (1883); Smith v. Merchants Bank, 28 Gr. 629, 8 O.A.R. 15, i Cart. 828, (1883); Ex parte Wilson, 25 N.B. 209, (1885), as to the regulation of fisheries interfering with civil rights in the province.

215 O.R. 723, 17 O.A.R. 86, 4 Cart. 559, (1888-90).

317 O.A.R. at p. 127, 4 Cart. at p. 576.

of actions against railways.

Prop. 37 to be found in the railway legislation of either England or the United States. In the New Brunswick case, however, of Levesque v. New Brunswick Limitation R.W. Co.1 the Supreme Court of that province also held the same section to be intra vires in prescribing the limitation. King, J., however (at p. 604), expresses a doubt whether that part of it which authorizes the railway company, in an action for damages, to plead the general issue and give the special matter in evidence is also intra vires, but Allen, C.J., (at p. 613), holds both matters alike to be incident to the right of the Dominion parliament to legislate on the subject of railways.

And when it is sought to find some rule regulating the power of the Federal parliament thus incidentally to deal with matters which are under the

jurisdiction of the provinces, it does not appear that The rule of any has been, or, it may be, can be, formulated beyond necessity. this, that such power does not extend any further than is reasonable and necessary to enable it to legislate on the general subjects committed to its jurisdiction by the British North America Act.2 And as Palmer, J., says in In re DeVeber:-"Perhaps the Act can present no more difficult subject for construction than where to draw this line of necessity. Lawyers attempting this must always be met with the difficulty that they are, to some extent, allowing the Dominion parliament to exercise legis

129 N.B. 588, (1889).

2And so per Armstrong v. McCutchin, 2 Pugs. at pp. 383-4, 2 Cart. at p. 497, (1874); per Ritchie, C.J., in Valin v. Langlois, 3 S.C.R. at p. 16, 1 Cart. at p. 172, (1879), and in Citizens Insurance Co. v. Parsons, 4 S.C. R. at pp. 242-3, 1 Cart. at p. 292, (1880); per Fournier, J., S.C., 4 S.C.R. at p. 272, 1 Cart. at p. 303; per Ritchie, C.J., in Queen v. Robertson, 6 S.C. R. at p. 111, 2 Cart. at 82, (1882).

321 N.B. at p. 425, 2 Cart. at p. 556, (1882).

application

lative powers that are, by the express words of the Prop. 37 Act, not only given to another legislative body, but given to it exclusively." And the same learned judge says in like manner in Attorney-General of Canada v. Foster,1 referring to the same point :— "Where that line of necessity is to be drawn in each particular case is the great difficulty that lawyers. have to contend with when expounding our constitu- Difficulty of tion. It must, I think, be determined by a consid- of it. eration of the general scope of the legislation called in question. There must be proper and reasonable limitation of its encroachments upon subjects that are exclusively within the power of the other legislature." And again the same learned judge says in Phair v. Venning3:-"It is obvious that this line of necessity must be drawn somewhere, and where drawn in each particular case must depend upon sound construction with reference to each particular case as it arises."

The line was drawn in the case of McClanaghan v. St. Ann's Mutual Building Society. There the

131 N.B. at p. 164, (1892).

2See this case also referred to supra pp. 281-2. Palmer, J., held, contrary to the opinion of the majority of the Court, that the Act in question in it was ultra vires, for that although Parliament has power to raise money by any mode or system of taxation, they only have the right to interfere with property and civil rights so far as such interference may be necessary for the purpose of effectually exercising that power, and that the Act was not at all necessary to the due and fair exercise of that power. "Suppose," he says, at p. 165," in this case, instead of creating this additional debt upon the former owner of the property that had once been imported into this country, Parliament had confiscated the whole of it, or, further still, if it had declared all such property confiscated, it is obvious, I think, that the exercise of such a power would not be necessary to reasonably and properly exercise the the power conferred upon it of raising a revenue by taxation, for if such a right existed it would be entirely destructive of the civil rights and property of the country." See further as to powers of taxation the notes to Proposition 66, infra.

322 N.B. at p. 371, (1882).

424 L.C.J. 162, 2 Cart. 237, (1880).

Transgres

sion of

reasonable

limits by Dominion Act.

Prop. 37 Quebec Court of Queen's Bench (Appeal side) held the Act 42 Vict., c. 48, D., to be ultra vires. This Act was entitled 'An Act to provide for the liquidation of the affairs of building societies in the Province of Quebec,' and after reciting that "whereas a large number of persons of limited means have invested their earnings in building societies in the Province of Quebec, and on account of the long period of depression such persons are exposed to lose their earnings for want of means to continue the payment of their contributions, and it is expedient to come to their relief by providing a speedy and inexpensive mode of liquidating the affairs of such societies in the said province," enacted that liquidation might be resolved upon at any general meeting, after notice, and made other necessary provisions for the liquidation of such societies, whether insolvent or not. In giving judgment Dorion, C.J., said :"This Act is not in the nature of an insolvent law, for it is intended to apply to all building societies, whether insolvent or not. It is therefore essentially an Act affecting civil rights. . . The case of L'Union St. Jacques de Montreal v. Belisle1 is in point."

2

Whether the last mentioned case be rightly decided or not it would seem that, in applying the rule in question, it will not be proper to press the meaning of the word 'necessary' too far. Thus in Doyle v. Bell, in which the constitutionality of the Dominion Elections Act, 1874, was in question in so far as it gave to an informer the right to recover by a civil action a penalty imposed as a punishment for bribery at an election, and in which it was contended by counsel opposed to the Act that, granting the

1L. R. 6 P.C. 31, 1 Cart. 63.

232 C.P. 632, 11 O.A.R. 326, 3 Cart. 297, (1884).

necessity

pressed too

right of Parliament to make all necessary provisions Prop. 37 to enforce purity of election, they could fully effect such purpose by means of the criminal law, and that, therefore, there was no reason for their conferring the power to sue, Hagarty, C.J.O., says1: --" I think their right to do as they have done here cannot be measured by our view of the necessity of such a proceeding "; while Rose, J., observed: —“I do not understand by the use of the word ' necessary,' as found in various decisions and text-books, that it is meant to lay down the doctrine that to bring Rule of within the powers of the Dominion legislature any must not be provision of an enactment respecting a subject within far. the exclusive jurisdiction of such legislature, and which provision might affect civil rights, it must necessarily appear that without such provision it would be impossible to carry into effect the intentions of the legislature, or that probably no other provision would be adequate. On the contrary, it seems to me that if such provision might, under certain circumstances, be beneficial and assist to more fully enforce such legislation, then it must, at all events, on an appeal to the Courts, be held to be necessary, that is, necessary in certain events. Surely the legislature must be allowed some, and, in my Legislative opinion, a very wide, discretion as to the mode of enforcing its own enactments. It cannot be said that the Courts are to sit in judgment on the exercise of such discretion, and dictate to the legislature whether they shall adopt this or that mode, because in the opinion of the Courts one mode is more convenient or better, or at least as well adapted to effect the purpose of the legislature."3

111 O.A.R. at p. 328, 3 Cart. at p. 300.

211 O.A. R. at p. 335, 3 Cart. at pp. 308-9.

3 And see per Rose, J., in the recent case of Re Canadian Pacific R.W. Co. and County and Township of York, 27 O. R. at p. 567, (1896).

discretion.

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