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as provided in the sections referred to in regard to Prop. 18 other subjects." And at a later page in the same case, he cites from Story on the Constitution of the United States, (section 417), the words :-"Nor should it ever be lost sight of, that the government of the United States is one of limited and enumerated powers; and that a departure from the true import and sense of its powers is, pro tanto, the establishment of a new constitution."

stitutional

upheld.

Moreover, as pointed out by O'Connor, J., in Nor unconGibson v. Macdonald2:-" It is the privilege of every Acts man to insist that his rights and interest shall be regulated by laws of undoubted validity. The sooner, then, a statute, which is seriously believed by many, and especially by a considerable portion of the legal profession, to be unconstitutional, is authoritatively pronounced upon the better. The public interest requires that proceedings under such a statute should be stayed, if it be void; or, if possessed of the authority it purports to have, it is necessary, or at least advisable, that doubts respecting it should be set at rest by a declaration of the proper tribunal, clothed with the necessary authority."3

One or two judges, it should be mentioned, have seemed to hold the view that provincial Courts should especially lean in favour of the validity of Acts

13 S.C.R. at p. 550, 2 Cart. at p. 46.

27 O.A.R. at p. 416, 3 Cart. at p. 325, (1885).

66

In his report as Minister of Justice, on the Ontario Acts of 1889, Sir J. Thompson said of 52 Vict., c. 15, s. 4:- 'If the provincial Act creating an offence and a penalty therefor is void, any enactment like this to give effect to it, if the objection to it is not taken at a certain stage, would be ineffectual. This provision is also open to the objection that is an attempt to limit the power of the Courts to adjudicate upon the constitutionality of provincial legislation." See supra p. 174, n. I.

Prop. 18 of their own province, as, e.g., per Taylor, C.J., in Stephens v. McArthur,1 per Burton, J.A., in Edgar v. Central Bank; but no such view as this can be said to be expressed in the cases generally.

An argument

presumption

provincial

3

Indeed, in the case of provincial Acts, it might against the well have been thought that the presumption rather in favour of was against than in favour of their validity, in Acts. accordance with the reasoning suggested by Mr. G. Cornewall Lewis in his essay on the Government of Dependencies, who draws a distinction between. a general power of subordinate legislation and a special power of subordinate legislation, using the word "subordinate" as meaning conferred by a supreme legislature, and says:-"Where a general power of subordinate legislation has been delegated, the subordinate legislature can make a law upon any subject, provided that the law which it makes. be not inconsistent with a law established by the supreme legislature in relation to the same subject, and provided that the subordinate legislature be not prohibited by a law of the supreme legislature from legislating on such subject But where a special power of subordinate legislation has been delegated, the subordinate legislature can only make a law covering the subject or subjects upon which it Difference is either expressly, or by necessary implication, emgeneral and powered to legislate A subordinate government possesses a power of legislating upon every legislation. subject which is not tacitly or expressly excepted from its powers. A special subordinate legislator possesses no legislative power which has not been expressly or by clear implication conferred upon

Sir G. C.
Lewis.

between a

a special

power of subordinate

16 M.R. at p. 501.

215 O.A. R. at p. 202, 4 Cart. at p. 541.

3 Ed. 1891, by C. P. Lucas, at pp. 76-7.

him. Consequently, in the latter case the presump- Prop. 18 tion of law is against, in the former case it is in favour of, the existence of any legislative power."

However, in view of the authorities upon which Proposition 17 rests, it may not be proper to speak of the provincial legislatures as possessing only a special power of subordinate legislation, and thus, it may be, is justified a presumption in favour of the validity even of provincial Acts, though the legislatures are possessed only of specially enumerated powers1; but the point indicated by Sir G. C. Lewis does not seem to have been raised in any case where such a presumption has been relied on.

1See Proposition 66 and the notes thereto.

City of
Fredericton

V. The
Queen.

Per

PROPOSITION 19.

19. If it be once determined that the Dominion Parliament or a Provincial Legislature has passed an Act upon any subject which is within its jurisdiction to legislate upon, its jurisdiction as to the terms of such legislation is as absolute as was that of the Parliament of Old Canada, or as is that of the Imperial Parliament in the United Kingdom, over a like subject.

This Proposition is suggested by the words of Gwynne, J., in City of Fredericton v. The Queen,1 where the question before the Court was the validity of the Canada Temperance Act, 1878, and the learned Judge explains his meaning as follows: -"What, therefore, may be the opinion of textGwynne, J. writers, or what may be the decision of the United States Courts, as to the powers of the central government and Congress, or of the legislatures of the several States, upon the like subject is unimportant; for, as the Dominion government and parliament are founded upon the model of, and modelled on made similar in principle to, those of the United Kingdom of Great Britain and Ireland,3 it follows that, once it is established that the subject-matter of the Temperance Act of 1878 is a matter within

Canadian parliament

that of

England.

13 S.C.R. at p. 573, 2 Cart. at p. 63, (1880).

2Cf. supra pp. 185-7.

3 See Proposition 17, and the notes thereto.

cannot over

enactments.

the jurisdiction of the Dominion parliament to Prop. 19 legislate upon, the provisions of that Act are as The Courts valid and binding and beyond the jurisdiction of ride its this Court to deal with, otherwise than by construing it, as the Temperance Act of 1864, from which the Act of 1878 was taken, was valid and binding, and beyond the jurisdiction of the Courts of Old Their Canada to deal with, otherwise than by construing, only to and as a similar Act in Great Britain, if passed by them. the British parliament, would be valid and binding upon the Courts there."

2

function is

construe

with Acts

provincial

And so in Lynch v. The Canada North-West Land Company,1 Ritchie, C.J., says:—“As I said in City of Fredericton v. The Queen, approved by the Privy Council in Russell v. The Queen,3 in · reference to the Dominion parliament, so with So, also, reference to the local legislatures:-'The general, of the absolute, uncontrolled authority to legislate in its legislatures. discretion on all matters over which it has power to deal, subject only to such restrictions, if any, as are contained in the British North America Act, and subject, of course, to the sovereign authority of the British parliament.' "4

In like manner, Badgley, J., in L'Union St. Jacques v. Belisle, observes:-"It is manifest that the provincial Act in question here, like all other legislative Acts which come before the constituted judiciary, are only subjects of interpretation, and only as such can be examined and treated by Courts of justice, which are stopped at interpretation, because anything beyond that as to legislative Acts

119 S.C.R. at p. 212, (1891).

23 S.C. R. at pp. 529-30, 2 Cart. at p. 30, (1880).

37 App. Cas. 829, 2 Cart. 12, (1882).

The sentence is left uncompleted. Some such words as "is given to it," or "is possessed by it," are required to complete it.

520 L. C.J. at pp. 34-5, 1 Cart. at pp. 78-9, (1872).

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