Court of Appeal for Ontario was evenly divided upon this point.5

The provision that no provincial railway shall cross a Dominion railway without the approval of the Railway Committee of the Privy Council:-Held to be a provision necessarily incident to railway legislation."

The line of demarcation between Dominion and provincial powers in reference to federal railways is indicated in two recent decisions of the Privy Council. In the later of the two cases it was held that a provincial legislature has no power to order any particular work, in that case fencing, in conncetion with the construction of federal railways, and that it cannot indirectly enforce such construction work by a provision that the company shall be liable in

company to plead the general issue, saying:-"I have not been convinced thus far of the power of the Dominion parliament to legislate as to pleadings in the courts of civil jurisdiction established by provincial laws;" but held it unnecessary to decide the point, leave to amend having been granted. See also Toronto v. Bell Tel. Co., fully noted post, p. 279; and St. Joseph v. Que. Cent. Ry., 11 Q. L. R. 193, as to the abrogation of provincial Acts by the exercise of the power conferred by exception (c).

McArthur v. N. & P. Junc. Ry., (1890) 17 O. A. R. 86;4 Cart. 559. Hagarty, C.J.O. and Osler, J.A., upheld the enactment as being an almost essential part of railway legislation, while Burton and Maclennan, JJ.A., considered it an unnecessary interference with "property and civil rights in the province." The injury complained of was trespass to timber in connection with the construction and operation of the road.

Credit Valley Ry. v. G. W. Ry., (1878) 25 Grant, 507, per Proudfoot, V.C.; C. P. R. v. N. P. & Man. Ry., (1888) 5 Man. L. R. 313, per Killam, J. In the former case it was held that the provincial road would also have to procure the approval of the provincial Minister of Public Works under the provincial Railway Act. In view of the paramount authority of Dominion legislation within its competence (see ante, p. 183) provincial legislation as to these crossings must give way before repugnant Dominion legislation. See also Re Portage Extension of R. R. V. Ry., Cass. Sup. Ct. Dig. 487, noted at some length in Lefroy, pp. 604-5. In Booth v. McIntyre, 31 U. C. C. P. 193, the point was discussed, but not determined, as to the power of the Dominion parliament to authorize a federal railway to expropriate public lands of a province for the purposes of the line without the consent of the Lieut.-Gov. in Council.

T

C. P. R. v. N. D. de Bonsecours, (1889) А. С. 367; 68 L..J. P. C. 54; Madden v. Nelson & F. S. Ry., ib. 626, 148.

damages to any one injuriously affected by its absence. The earlier decision is thus referred to:

"The line seems to have been drawn with sufficient precision in the case of the C. P. R. v. N. D. de Bonsecours, where it was decided that, although any direction of the provincial legislature to create new works on the railway and make a new drain and to alter its construction would be beyond the jurisdiction of the provincial legislature, the railway company were not exempted from the municipal state of the law as it then existed, that all land owners, including the railway company, should clean out their ditches so as to prevent a nuisance."

The line is thus drawn in the earlier case:

"The B. N. A. Act, whilst it gives the legislative control of the appellants' railway qua railway to the parliament of Canada, does not declare that the railway shall cease to be part of the provinces in which it is situated or that it shall in other respects be exempted from the jurisdiction of the provincial legislatures. Accordingly the parliament of Canada has, in the opinion of their Lordships, exclusive right to prescribe regulations for the construction, repair, and alteration of the railway and for its management, and to dictate the constitution and powers of the company; but it is, inter alia, reserved to the provincial parliament to impose direct taxation upon those portions of it which within the province in order to the raising of a revenue for provincial purposes. It was obviously in the contemplation of the Act of 1867 that the "railway legislation," strictly 50 called, applicable to those lines which were placed under

8

are

As to contracts for carriage of freight, etc., see per Taschereau, J., in Parsons' Case (4 S. C. R. at p. 307; 1 Cart. at p.326):— "The contracts to convey passengers and goods on the railways under Dominion control, for instance, the contract made by the sender of a message with a telegraph company, the contract of sale of bank stock, are all and every one of them, when made anywhere within the Dominion, regulated by federal authority. It would be impossible for them to carry on their business if each province could impose upon them and their contracts different conditions and restrictions. A Dominion charter would be absolutely useless to them if the constitution granted to each province the right to regulate their business." While there is confusion here between the powers conferred

its charge should belong to the Dominion parliament. It therefore appears to their Lordships that any attempt by the legislature of Quebec to regulate by enactment, whether described as municipal or not, the structure of a ditch forming part of the appellant company's authorized works would be legislation in excess of its power. If, on the other hand, the enactment had no reference to the structure of the ditch, but provided that in the event of its becoming choked with silt or rubbish so as to cause overflow and injury to other property in the parish it should be thoroughly cleaned out by the appellant company, then the enactment would, in their Lordships' opinion, be a piece of municipal legislation competent to the legislature of Quebec."

In a number of other cases provincial legislation has been held operative in respect to federal railways. For example:

Those parts of the Ontario "Workmen's Compensation for Injuries Act" which do not touch the structural arrangement of a railway are applicable alike to federal and provincial roads.10

A provincial statute providing for sequestration proceedings against railways in certain cases was upheld as applicable to a federal railway by the Quebec Court of Queen's Bench upon the ground that the Act was one relating to procedure to enforce a judicial sale.1

On the other hand, provincial legislation has been held either inapplicable to federal railways or an encroachment upon the Dominion field, in several instances. For example:

The Supreme Court of Canada, following the principle of the recent Privy Council decisions, has held that provincial legislatures have no jurisdiction to make regulations in respect to crossings or the structural condition of the road bed of railways subject to the provisions of the Railway Act of Canada.3

A provincial mechanics' lien Act has been held repugnant to the Dominion Railway Act and therefore inapplicable to a federal railway.

undertakings connecting the province with any other or others of the provinces, or extending beyond the limits of the province; (c)

the structure and arrangement of the railway plant have been held not to apply to federal railways.

And where a railway incorporated under a provincial Act was declared to be for the general advantage of Canada, thus becoming a federal road, a subsequent provincial Act amalgamating the company at its own request with another (provincial) railway company was held ultra vires by the Privy Council. 6

(c) "It appears to me that the connection between the two provinces required by clause (a) is a real and physical one and not a mere paper one created by a charter, the works under which may never extend to the limits of the single province in which they are begun or may never be begun at all. The word 'undertakings' would be satisfied by the actual operation of a line of steamships, leaving the word 'works' to apply to the other objects mentioned or referred to in the section. And it is to be borne in mind that any inconveniences which might otherwise arise under this construction could always be avoided by a declaration in a Dominion charter that the works contemplated by it were for the general benefit of Canada."

A provincial legislature was held by the New Brunswick Supreme Court to be entitled to legislate with respect to a provincial railway running only to the boundaries of the pro

See extract from the judgment of Osler, J.A., in Washington v. G. T. R. (ante, p. 272), in which the authorities are summarized. Bourgoin v. Μ. Ο. & Ο. Ry., 5 App. Cas. 381; 49 L. J. P. С. 68: 1 Cart. 233.

Per Street, J., in Toronto v. Bell Tel. Co. (1902), 3 O. L. R. 465. His Lordship cites Reg. v. Mohr, 7 O. L. R. 183; 2 Cart. 257; Parsons' Case, 7 App. Cas. 96; 51 L. J. P. C. 11; 1 Cart. 265; Colonial Bldg. Assn. v. Atty. Gen. (Que.), 9 App. Cas. 157:53 L. J. P. C. 27:3 Cart. 118; Tennant v. Union Bank, (1894) A. C. 31; 63 L. J. P. C. 25: 5 Cart. 244.