powers exclusive. and effectually on those subjects, and they did not Prop. 61 reserve out of such grant to themselves power to legislate on any specified subjects exclusively; and, therefore, there is nothing to prevent the operation of such grant so as to include all that may be fairly necessary to enable the Federal legislature to legislate fully and effectually with reference to all the subjects so granted, and to that extent to operate as a prohibition of any legislation by the grantors Provincial that would operate to affect such subject; while specific and with us the powers to both are given by one instrument, and all of them are made exclusive, and in construing such instrument there does not appear to be any more reason for restricting provincial legislatures from legislating on such subjects exclusively assigned to them, than the Dominion parliament from legislating on subjects exclusively put under its control. This construction not only prevents the a fortiori deduction" from the principle of the American cases, but makes the principle of them so far as they affect the questions of conflict. of powers between the Federal and State legislatures, 1It must not be supposed from this that the Dominion parliament has not also power fully and effectually to legislate with reference to the enumerated subjects assigned to it. See Proposition 37 and the notes thereto. But by reason of having certain specified subjects of legislation exclusively assigned to them, provincial legislatures in Canada cannot be so restricted in their action as State legislatures are under the American Constitution. Some judges had expressed the view that the principle of the American decisions placing a limitation upon the powers of State legis latures where their action came into conflict with the powers of Congress, was actually more applicable to our Constitution than to that of the United States, because with us, as shown in Proposition 26, (see supra p. 341, et seq.), the reserve of legislative power is with the Dominion parliament: e. g., per Spragge, C., in Leprohon v. City of Ottawa, 2 O.A. R. at p. 529, i Cart. at p. 600; per Hagarty, C. J. O., S.C., 2 O.A. R. at pp. 532-3, 1 Cart. at p. 604; per Harrison, C. J., S.C.. 40 U.C. R. at p. 499, 1 Cart. at p. 654. See, also, per Duff, J., in Ex parte Owen, 4 P. & B. (20 N. B.) at pp. 493-4. Prop. 61 entirely inapplicable to the construction of our Constitution."1 and that of States 3 Thus the position seems to be this. Although when provincial legislation and Dominion legislation directly conflict with each other, the latter must prevail, and although by virtue of the non obstante clause of section 91 of the British North Our system America Act, and the concluding clause of that United section, the construction of the enumerated powers Contrasted. conferred upon the Dominion parliament may be said to over-ride the construction of section 92,* yet the provinces, under our Constitution, have not, as the several States of the Union have, a general power of legislation subject only to certain specified powers which they themselves have conferred upon the Federal body," but they, as well as the Dominion, have received from one and the same Powers of not, as a 1Cf. also per Palmer, J., in Queddy River Driving Boom Co. v. Davidson, 3 Cart. at p. 264, (1883), where the judgment is taken from the appeal book used in the Supreme Court. 2See Proposition 44 and 46 and the notes thereto. See supra pp. 427-33. *See Proposition 59 and the notes thereto. "See supra pp. 498-9, n. 3. 6 The powers of Congress are not expressed to be exclusive, and "unless from the nature of the power, or from the obvious results of its operations, a repugnance must exist, so as to lead to a necessary conclusion that the power was intended to be exclusive, the true rule of interpretation is that the power is merely concurrent "with that of the States Story on the Constitution of the United States, 5th ed., p. 335; per Henry, J., in City of Fredericton v. The Queen, 3 S.C.R. at pp. 546-7, 2 Cart. at pp. 43-4, (1880); per Duff, J., in Ex parte Owen, 4 P. & B. (20 N.B.) at p. 494, (1881); per Palmer, J., in Queddy River Driving Boom Co. v. Davidson, supra. See, also, supra p. 527, n. 5. And as to how far there can be said to be concurrent powers of legislation in the Dominion parliament and the provincial legislatures, and how far provincial powers are contingent upon the exercise or non-exercise of Dominion powers, see Propositions 28 and 62 and the notes thereto. See, also, Proposition 55 and the notes thereto. source, namely the Imperial parliament,1 certain Prop. 61 express powers of legislation upon specified subjects, which are theirs exclusively, and therefore their power to legislate upon these specified subjects cannot be denied, as in the case of the States, merely because in doing so they may interfere with or restrict the range of Federal legislation. 1See supra pp. 6-9. But 2 See this point emphasized per Dorion, C. J., in Ex parte Dansereau, 19 L.C.J. at pp. 231-2, 2 Cart. at p. 190, (1875); per Fournier, J., in Severn v. The Queen, 2 S.C.R. at pp. 124-6, 1 Cart. at pp. 468-70, (1877); per Ritchie, C. J., in Citizen's Insurance Co. v. Parsons, 4 S.C.R. at p. 238, 1 Cart. at pp. 288-9, (1879); per Burton, J.A., S.C., 4 O.A. R. at pp. 100-1; per Henry, J., in City of Fredericton v. The Queen, 3 S.C.R. at pp. 546-7, 2 Cart. at p. 43, (1880). See, however, supra pp. 427-33. invalid *So in Town of Windsor v. The Commercial Bank of Windsor, Provincial 3 R. & G. 420, 427, 3 Cart. 377, 385, (1882), Weatherbe, J., held tax on bank intra vires a provincial Act imposing a tax on the Dominion notes held reserve. by a bank as a portion of its cash reserve, under the Dominion Act relating to banks and banking. And see per Torrance, J., in Angers v. Queen Insurance Co., 21 L.C.J. at p. 81, 1 Cart. at pp. 155-6; and Heneker v. Bank of Montreal, R. J. Q. 7 S.C. at p. 262, (1895). And contrast the view of Rainville, J., on this point in Lambe v. Canadian Bank of Commerce, 13 R. L. at p. 166, (1883). And it follows from what has been stated that it is not well to speak in general language, as many judges have done, of provincial legislation being ultra vires when it deals or interferes or meddles or comes in conflict with, or obstructs Dominion legislation: see, .g., per Ritchie, C.J., in Armstrong v. McCutchin, 2 Pugs. at p. 384, 2 Cart. at p. Provincial 497, (1874); per Fournier, J., in Severn v. The Queen, 2 S.C.R. at Acts not pp. 125-6, 133, 1 Cart. at pp. 470, 478, (1877); per Henry, J., S.C., merely 2 S.C. R. at pp. 136-9, I Cart. at pp. 480-4; per Taschereau, J., in because Citizen's Insurance Co. v. Parsons, 4 S. C. R. at p. 312, 1 Cart. at p. interfering 331, (1879); per Gray, J., in Tai Sing v. Maguire, I B.C. at p. 106, with (1882). And where in Citizen's Insurance Co. v. Parsons, 7 App. Cas. legislation. at p. 109, I Cart. at p. 273, (1881), the Privy Council say with reference to the respective powers of the Dominion parliament and provincial legislatures, that "it could not have been the intention that a conflict should exist," the context shows that what they mean is that the intention of the Act clearly was to give power over certain specific departments of legislation to the Parliament, and over others to the provincial legislatures, and not in any case (except, of course, agriculture and immigration), to give concurrent and conflicting powers to both at once. See supra pp. 487-90, and Propositions 27 and 28 and the notes thereto. And cf. Bank of Toronto v. Lambe, 12 App. Cas. at p. 586, 4 Cart. at p. 21; in which case, in the Court below, Jetté, J., says:-"Is it not necessary to grant to the provincial legislatures the recognition in the sphere which is given to them of their full liberty of action, with the elasticity necessary to the working of all political institutions?": M.L.R. i S.C. at p. 46, 4 Cart. at p. 102. Dominion Prop. 61 on the other hand, the Dominion government possess what the United States government has not, a veto power over all provincial legislation.1 does not the the In their recent judgment in The Liquidators of the Maritime Bank of Canada v. The ReceiverGeneral of New Brunswick, the Privy Council say: "The object of the British North America. Act was neither to weld the provinces into one, nor to subordinate provincial governments to a central authority, but to create a federal governBN.A. Act ment in which they should all be represented, subordinate entrusted with the exclusive administration of provinces to affairs in which they had a common interest, each Dominion. province retaining its independence and autonomy.3 . . In so far as regards those matters which by section 92 are specially reserved for provincial legislation, the legislation of each province continues to be free from the control of the Dominion, and as supreme as it was before the passing of the Act... It is clear, therefore, that the provincial legislature of New Brunswick does not occupy the subordinate position which was ascribed to it in the argument of the appellants. It derives no authority from the government of Canada, and its status is in no way analogous to that of a municipal institution, which has an authority for the purpose of local administration.1 It possesses powers not of administration 1See Proposition 10 and the notes thereto. [1892] A.C. at pp. 441-3. See this case referred to, also, supra pp. 92-5. 3 See Proposition 64 and the notes thereto. *See Proposition 17 and the notes thereto. In Ex parte Dansereau, 19 L.C.J. at p. 236, 2 Cart. at pp. 198-9, (1875), Sanborn, J., says:-"The remark is as common as it is erroneous, that the legislatures of the provinces are mere large municipal corporations. It is true that every government is a corporation, but every municipal corporation is not a government. Consider the powers given exclusively merely but of legislation in the strictest sense of Prop. 61 that word; and within the limits assigned by section 92, of the Act of 1867, these powers are exclusive and supreme."1 2 3 City of And returning to the judgment of the Privy Leprohon v. Council in Bank of Toronto . Lambe, it is Ottawa. difficult to see how the decision of the Ontario Courts in Leprohon v. The City of Ottawa, can be maintained in view of it. There the Ontario Court of Appeal unanimously held, over-ruling the judgment of the majority of the Court of Queen's Bench, and confirming the judgment of Moss, J., at the trial, that a provincial legislature cannot impose a tax upon the official income of an officer of the corpora Cf. tions. to provincial legislatures No such powers were ever conferred Provinces upon mere municipalities in their ordinary sense. They are subjects not mere which in all nations are entrusted to the highest legislative power. municipal Legislatures make laws, municipal corporations make by-laws." per Dorion, C. J., S.C., 19 L.C.J. at pp. 231-2, 2 Cart. at p. 190. Ramsay, J., however, points out, (S.C., 19 L.C.J. at pp. 224-5, 2 Cart. at p. 177), that though within the scope of their own functions, provincial legislatures are not subordinate, except in respect to the veto power of the Dominion government, there are many good grounds for saying that they are of inferior dignity and rank to Parliament. Cf. per Ramsay, J., in Bank of Toronto v. Lambe, M. L. R. 1 Q.B. at p. 182, 4 Cart. at p. 74. And see supra pp. 318, n. 2, 432-3. There are some remarkable words of Mr. Cardwell, late Secretary of State for the Colonies, spoken in the debate on the second reading of the British North America Act in the House of Commons, which seem worth quoting in this connection. He said: "The provinces will, I hope, Mr. gradually approach more nearly to the character of municipal institu- Cardwell. tions than the Bill at present contemplates. It is well that these wise men have left it to a future time, when experience will enable them to determine how far these legislative bodies may continue to retain their inherent powers, and how far they can be reduced to the level of municipal institutions :" Hans. 3 Ser., Vol. 185, pp. 178.9. 1Speaking of Federal government in its perfect form, as distinguished from a mere Confederacy or system of confederate States, Mr. Freeman says:-"The State administration within its own range will be carried on as freely as if there were no such thing as an Union; the Federal administration, within its own range, will be carried on as freely as if there were no such thing as a separate State : Federal Government, P. 9. 212 App. Cas. 575, 4 Cart. 7, (1887). $40 U.C.R. 478, 2 O.A.R. 522, (1877-8). |