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determined in order to ascertain the class of subject to which it really belongs,—or, in other words, what is the primary matter dealt with? (f).
Applying this rule of construction, the Judicial Committee of the Privy Council held (9) that the Canada Temperance Act was not legislation on the subject of licenses or relating to civil rights in a province, but general legislation for the order and good government of the Dominion;that the Act respecting uniform conditions in fire insurance policies, was legislation respecting “property and civil rights in the province,” and not respecting “the regulation of trade and commerce" in the proper sense of the latter sub-section (h);—that the imposition of a stamp duty on policies of insurance was not a license Act, although so called in the impugned statute (i);—that an Act for levying a rate to pay a bonus to an existing railway, was not an Act respecting “local works and undertakings," and therefore was not subject to the exceptions mentioned in the sub-section dealing with those matters (j)—that an Act in regulation of the internal affairs of a particular corporation was not a bankruptcy or insolvency Act (k:).
(d) If, on the due construction of the Act, a legislative power be found to full within either section, it would be quite wrong to deny its existence because by some possibility it may be abusel, or may limit the range which otherwise would be open to the other legislature (1).
(e) Subjects which in one aspect and for one purpose full within section 9.2, may, in another aspect and for another purpose, full within section 91 (m).
() Russell v. Reg., 7 App. Cas. 829; at p. 839.
We deal with these two rules together, because they both suggest the existence of possibly concurrent powers (n ), probably the most perplexing question which arises under these sections of the B. N. A. Act. In order to deal intelligently with this question, we must endeavor to get a clear idea of the meaning of the phrases“ conflict of laws,” and “ concurrent powers.” Any case which comes up for judicial decision involves the application of law to facts. The law applicable may be unquestioned, and the dispute be as to the facts, or, the facts being determined, the dispute may be as to the law applicable thereto. This latter aspect is the one with which we have to deal. As Von Savigny puts it, out of any given state of facts arise “ legal relations,” one or more, capable presumedly of a definite, absolutely correct determination. As to any one of these legal relations there cannot be a conflict of law. Of any number of laws put forward as determining the “ legal relation,” one only is the law which governs. The views of advocates, and even judges, may conflict, but the law, though it may be, from time to time, varied at the will of the law-making body in the state, is, at any given moment of time, a thing certain. It follows that there cannot be two statutes determining, in different ways, any one of the legal relations which is to arise from any given state of facts. If there be two statutes purporting so to do, one of them must be of no legal effect, either because repealed by the other (0), or by some rule of law made subordinate thereto as to the particular legal relation. It follows, too, that, unless "chaos' has come again,” there cannot be in two legislative bodies concurrent powers of legislation in reference to the same legal relation, in the sense, that in the same moment of time the enactment of each is law (p).
(n) Jessel, M.R., had suggested this. in Atty.-Gen. of Quebec v. Queen Ins. Co., 3 App. Cas. at p. 1097.
(o) This is sometimes discussed as a conflict in time; the other as a. conflict in space.
(p) See however per Wilson, J., in Reg, v. Taylor, 36 U. C. Q. B. at
This is recognized in the B. N. A. Act, for in section 95, where powers of legislation are given, over the same subject matter, to both the Dominion and the Provincial legislatures, there is the express provision that the legislation is not to be concurrent; that the enactment of a Provincial legislature is to be law only in the absence of Dominion legislation upon the subject matter. The first of the two rules at the head of this paragraph, would seem to indicate that in the view of the Judicial Committee of the Privy Council, the absence of legislation by one legislature, Dominion or provincial, upon the particular subject matter may increase the range open to the other. This view has to be reconciled with the use of the term “exclusive power,” in reference to each enumeration of classes of subjects; or, if there is no possible mode of reconciliation, the view of the Privy Council must be an unsound obiter. The way of escape seems to be suggested by the second of the rules at the head of this paragraph. The different aspects any given subject may present, have reference to the different 'legal relations' that may arise, or (from a legislative standpoint) be created in connection with that subject. Now, these two sections of the B. X. A. Act, deal with the various enumerated classes of subjects, not as divisions of facts, but as divisions of legal relations. Insolvency, for example, is not a fact at all : civil rights are not facts—both are legal relations arising out of a certain juxtaposition and co-relation of facts. Without unduly enlarging upon this theme it seems to us that a correct appreciation of this principle of division will help to make clear just in what sense legislation by one legislature (Dominion or Provincial) may lessen the range open to the other; in what sense the legislation of one may interfere with the legislation of the other. In the case from which the first of the rules now being discussed is quoted, that rule was applied to uphold the taxation of banks by provincial legislation (under section 92, S-s. 2), notwithstanding that “banking, the incorporation of banks, and the issue of paper money,” is one of the classes of subjects assigned
to the exclusive ken of the Dominion parliament. Should the Dominion parliament repeal all existing laws upon this head, the legal relation-a bank—would be non-existent, could not be created by provincial legislation, and could not be seized upon, therefore, in order to attach to it the further legal relation of liability to pay taxes to the provincial treasury. And on the other hand, an excessive tax upon banks might possibly operate to prevent the corelation of facts arising in any particular instance, upon which Dominion legislation might attach.
No subject matter has been more fruitful in producing cases for decision under the B. N. A. Act, than the liquor traffic (q). The Judicial Committee of the Privy Council has in effect held (r) that the Dominion parliament may create such legal relations out of the facts of the liquor traffic, as to prevent the creation by provincial legislation of other legal relations out of the same facts; or perhaps we should rather say, the Dominion parliament has power to prevent the facts themselves from having any existence capable of legislative recognition by a provincial legislature.
In an earlier case the extent of the power of the Dominion parliament along the line of bankruptcy and insolvency was authoritatively enunciated by the same tribunal (8), and the power of the provincial legislatures along the same line, (now that we have no Dominion law upon this subject) has been frequently discussed. It is submitted that in the absence of legislation by the Dominion parliament, creative of any such legal relation as bankruptcy or insolvency, the provincial legislatures have full power (under section 92, sub-section 13—“property and civil rights in the province ") to create such legal relations out of the facts of commercial life as to ensure, if deemed expedient,
(9) See notes to sec. 91, s.s. 2, and sec. 92, s-s. 8 and 9. (r) Russell v. Reg., 7 App. Cas. 829.
(s) Cushing v. Dupuy, 5 App. Cas. 409, at p. 415; and see L'Union St. Jacques v. Bélisle, L. R. 6 P. C. 31, at p. 36 ; and notes to sec. 91, S-5. 21, post.
the equitable distribution of the estate of a man whose assets do not cover his liabilities, and to ensure also the discharge of the debtor from the balance of such liabilities. In the absence of legislation by the Dominion, no set of facts can constitute a legal relation to be known as bankruptcy or insolvency (t). By creating such a legal relation, to arise from such co-relation of facts as to the Dominion parliament might seem meet, the power of the provincial legislatures would be curtailed. Any attempt to state the essential elements of bankruptcy and insolvency legislation outside of a legislative definition of those terms, leaves one about as much in the dark as does Milton's description of Death.
(f) The presumption, in any given case, is in favor of the validity of an impugned Act.
In the celebrated case (u) involving the validity of the Dominion Controverted Elections Act, 1874, the Judicial Committee of the Privy Council laid down the rule in this language :
“It is not to be presumed that the legislature of the Dominion has exceeded its powers unless upon grounds really of a serious character."
In numerous subsequent cases the principle has been invoked. One of the latest expressions of the rule is that “in cases of doubt every possible presumption and intendment will be made in favor of the constitutionality of the Act" (). It does not apply to an Act, the language of which is unambiguous, and the effect (if the Act be held valid) clearly beyond the competence of the legislature by which the Act was passed. It indicates, rather, a principle of interpretation, and may be put thus: If possible such a meaning will be given to a statute as to uphold its validity,
(t) “ Persons who may become bankrupt or insolvent, according to rules and definitions prescribed by law”-L. R. 6 P. C. at p. 36.
(u) Valin v. Langlois, 5 App. Cas. 115.