may carry on its authorized business or exercise its Prop. 55-7 corporate powers; and whether in this respect a corporation can have any greater or higher rights than a natural person." But, it is submitted, although the Dominion parliament can give a corporation it is creating any powers and functions it likes, outside 'provincial objects' within the meaning of No. II of section 92 of the British North America Act, it can only regulate its exercise of civil rights in respect to the classes of subjects enumerated in section 91. companies Dominion And analogously, as to provincial corporations Provincial being subject to Dominion laws, Patterson, J., and says in Schoolbred v. Clarke, "the body politic law. created by any provincial Act of incorporation becomes, like a natural body, subject to the laws of the land. There are a number of subjects. over which exclusive legislative jurisdiction is given. to the parliament of Canada, as well as others in relation to which the parliament may make laws for the peace, order and good government of Canada, the legislation on which must govern all corporate bodies as well as natural bodies; for example, interest, legal tender, currency, taxation, the criminal law, and bankruptcy and insolvency." 117 S.C. R. at p. 274, 4 Cart. at p. 464, (1890). 2 There is an apposite passage in Story on the Constitution of the United States, (5th ed., Vol. 2, p. 153). He says: "A strange fallacy has crept into the reasoning on this subject," (sc. the power to create corporations). "It has been supposed that a corporation is some great independent thing; and that the power to create it is a great substantive, independent power; whereas, in truth, a corporation is but a legal capacity, quality, or means to an end; and the power to create it is, or may be, an implied and incidental power. A corporation is never the end for which other powers are exercised, but a means by which other objects are accomplished. No contributions are made to charity for the sake of an incorporation; but a corporation is created to administer the charity. No seminary of learning is instituted in order to be incorporated; but the corporate character is conferred to subserve the purposes of education. No city is ever built Prop. 55-7 of old And so with a corporation created by Act of the old Province of Canada, in the Hamilton Powder Co. v. Lambe,1 the Quebec Court of Queen's Bench decided that such a company, though incorporated Companies with the power to manufacture and sell gunpowder, province of was nevertheless subject to be interfered with as to the privileges so conferred upon it and hitherto enjoyed, by provincial legislation after Confederation requiring it to take out a license as a matter of police regulation in connection with its business. Canada. Dominion control of Imperial and foreign And it is upon the principle of Proposition 55, as illustrated and applied in Citizen's Insurance Co. v. Parsons, that in Allen v. Hanson, the Court of Queen's Bench in Quebec, held that the Act 47 Vict., c. 39, D., which enacted that the Dominion Winding-Up Act should apply to incorporated trading Cmpanies companies doing business in Canada, no matter where incorporated,' was intra vires, and confirmed. an order granted upon the petition of the liquidator, under a liquidation previously instituted under the Imperial Act of 1862, in Scotland, and as ancillary to that principal winding up; and this decision was affirmed on appeal to the Supreme Court of Canada. For as Dorion, C.J., delivering the judgment of the majority of the Court, says: “It is evident with the sole object of being incorporated; but it is incorporated as the power of creating a corporation is never used for its own sake; 1M.L.R. 1 Q.B. 460, (1885). 27 App. Cas. 96, 1 Cart. 265, (1881). 313 L.N. 129, 16 Q. L.R. 79, 4 Cart. 470, (1890). 18 S.C.R. 667, 4 Cart. 470, (1890). 13 L.N. at pp. 133-4,16 Q. L. R. at pp. 84-5, 4 Cart. at pp. 493-6. A further extract from this judgment has been made, supra p. 625, n. 2. foreign that the Dominion parliament never intended to Prop. 55-7 regulate, suspend or dissolve, by the Winding-Up Act, any corporation existing under British or foreign authority, but merely to regulate their property and restrain their action in this country, which it undoubtedly had a right to do. The several legislative bodies in Canada can have no concern in what a foreign corporation might do elsewhere; they are only interested in protecting the rights of creditors of such corporation upon their property within this country, and more particularly the rights of their own citizens and of resident creditors. . . Dominion Winding-Up The provisions of the Winding-Up Act of Canada Acts and regulate the proceedings of our Courts to enforce companies. the rights of creditors and of shareholders in the property of such companies. As they only relate to procedure, their operation is confined to property found within the territorial limits of the jurisdiction of the Courts authorized to enforce them. For the same reason, within such limits their operation can neither be regulated nor restrained by any foreign legislation." And so, in the Supreme Court, Ritchie, C.J., says1:"All the Winding-Up Act, as I understand it, seeks to do in the case of foreign corporations is to protect and regulate the property in Canada, and protect the rights of creditors of such corporations upon their property in Canada;" and Strong, J., distinguishes the prior case of Merchants Bank of Halifax v. Gillespie, which, as he says, raised the question of the validity of winding-up proceedings under the Dominion statute as the sole and principal winding up of a company incorporated under the English Act of 1862, and in which the 118 S.C. R. at p. 673, 4 Cart. at p. 477. 218 S.C.R. at p. 674, 4 Cart. at pp. 477-8. 310 S.C.R. 312, (1885). Prop. 55-7 Supreme Court held that an order could not be Dominion made under that statute (45 Vict., c. 23) for the winding up of the Steel Company of Canada, a joint stock company incorporated in England in 1874, under the Imperial Joint Stock Companies' Act, and never incorporated in Canada, but with its chief place of business in Nova Scotia, where it owned and operated extensive iron mines and iron and steel works, constituting almost its whole assets, while it owned no real estate or premises elsewhere than in Canada, but occupied an office in Great Britain. 1 In this latter case Strong, J., held that if the Dominion Act was to be construed as intended to Companies apply to authorize the winding-up order sought, which he held it was not, it would be ultra vires as in conflict with the Colonial Laws Validity Act, Imp. 28-29 Vict., c. 63, s. 2, which enacts that any colonial law repugnant to any Act of Parliament extending to the colony to which such law may relate shall be void to the extent of such repugnancy, for he said the company was "subject to an express statutory provision for its winding up in the appropriate forum of its domicile, namely the Imperial Act of 1862, under which the company was organized and winding up is provided for." But he adds that he did not intend "to impugn the power of the legislature to enact bankruptcy and insolvency statutes applying to foreign corporations, or even to provide for the winding up of such corporations, provided in the case of the latter the statutory provision is express and does not conflict with any Imperial legislation.' He indeed speaks in 1See as to this statute further, supra pp. 209-10. 2 Henry. J., in this case, (10 S.C.R. at p. 334), likewise says: "If the provisions of a Dominion statute, as in this case, contravene an this passage as though he held that the Dominion Prop. 55-7 Act was not intended to apply at all to companies incorporated under the Imperial Joint Stock Companies Act, as does also Ritchie, C.J., in this case; but their subsequent judgments in Allen v. Hanson,1 show very clearly that what they mean is that the Dominion Act was not intended to authorise the making of an original winding-up order against such a corporation; and so in the last named case, Dominion Strong, J., says that he adheres to what he said in Acts and Merchants Bank of Halifax v. Gillespie, "as appli- companies. cable to the principal and original winding up of such a company, to which case my opinion was intended to apply and alone did apply.' 3 To continue the consideration of this line of cases, in Re Clark and the Union Fire Insurance Co. (No. 2), * Boyd, C., held the Dominion Winding-Up Act, 45 Vict., c. 23, intra vires of the Dominion parliament, as in the nature of an insolvency law, and that it applies to all corporate bodies of the nature mentioned in it all over the Dominion, and that the company in question in that case, though incorporated under a provincial charter, was subject to its provisions; English statute regulating an English incorporated company, such provisions would be ultra vires. It is possible that a company chartered in the United States or other foreign country doing business here might be wound up under the Dominion Act, if such could be done without interfering with the terms of the constating articles, but I see serious difficulties in the way, even in such a case.' And see Lindley's Law of Companies, 5th ed., at p. 623. It may be observed that Henry, J., did not sit in Allen v. Hanson. It may also be observed, with special reference to the dissenting judgment of Fournier, J., in Merchants Bank of Halifax v. Gillespie, 10 S. C. R. 312, that in Citizens Insurance Co. v. Parsons, 7 App. Cas. 96, 1 Cart. 265, no such question arose of direct conflict with, or repugnancy to an Impe. rial Act as arose in Merchants Bank of Halifax v. Gillespie. 118 S.C.R. 667, 4 Cart. 470, (1890). 218 S.C. R. at p. 674, 4 Cart. at pp. 477-8. 14 O.R. 618, (1887); affirmed 16 O.A.R. 161; and also in the Supreme Court, sub nom. Schoolbred v. Clarke, 17 S.C.R. 265, 4 Cart 459, (1890). For an extract from the judgment of Patterson, J., in this case, see supra p. 627. Winding-Up foreign |