to trade requiring the sanction of parliament, regulations of trade in matters of inter-provincial concern, and it may be that they would include general regulations of trade affecting the whole Dominion. Their Lordships abstain on the present occasion from any attempt to define the limits of the authority of the Dominion parliament in this direction. It is enough for the decision of the present case to say that, in their view, its authority to legislate for the regulation of trade and commerce does not comprehend the power to regulate by legislation the contract of a particular business or trade, such as the business of fire insurance, in a single province, and, therefore, that its legislative authority does not in the present case conflict or compete with the power over property and civil rights assigned to the legislature of Ontario by No. 13 of section 92."

In Russell v. The Queen, in the same volume (r), involving the validity of the Canada Temperance Act, 1878, Sir Montague E. Smith, in delivering the judgment of the Judicial Committee of the Privy Council, intimated that their Lordships

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Must not be understood as intimating any dissent from the opinion of the Chief Justice of the Supreme Court of Canada and the other judges who held that the Act as a general regulation of the traffic in intoxicating liquors throughout the Dominion, fell within the class of subjects, the regulation of trade and commerce' enumerated in that section, and was on that ground a valid exercise of the legislative power of the parliament of Canada."

As has been already noted (s), the judgment of the Privy Council proceeds upon the ground that the subject was one not falling within any of the sub-sections of section 92, and was therefore within the power of the Dominion parliament as a matter pertaining to “the peace, order, and good government of Canada," but in Hodge v. The Queen, involving the question of the validity of the Ontario Liquor License Act, 1877, the earlier decision is discussed and again put clearly upon the opening language (r) 7 App. Cas. 829.

(s) Ante, p. 345.

of section 91. The Liquor License Act was held not to be an interference with the general regulation of trade and commerce, which belongs to the Dominion parliament, and it was also held not to conflict with the Canada Temperance Act, which had not been locally adopted.

This is perhaps the proper place to notice the various cases which have arisen in reference to the liquor traffic, for the attacks which have from time to time been made upon provincial legislation in connection with this subject have practically ranged themselves under this sub-section. At this date, however, there is only one matter which is open to argument, the power, namely, of a provincial legislature to pass a prohibitory law for the province.

Owing to the emphatic pronouncement of the Privy Council in Hodge v. The Queen (t), in support of the power of provincial legislatures to regulate the sale of intoxicating liquor, and to their equally emphatic affirmance of the invalidity of the Dominion Liquor License Act, 1883 (u), it will not be necessary to discuss at any length the earlier decisions in the various provinces.

In Ontario, the power of a provincial legislature to empower a municipality to limit the number of tavern licenses, and to entirely prohibit the sale of liquor in places other than houses of public entertainment, was affirmed (1875) by the Court of Queen's Bench in Slavin v. Orillia (), and the decision in this case may be said to embody the law upon this point as judicially recognized in the courts of that province until Hodge v. The Queen became the leading case. Such power was held not to infringe upon the field allotted to the Dominion parliament by the term "the regulation of trade and commerce," but to fall properly within the field covered by "municipal institutions" and "property and civil rights in the province." As

(t) 9 App. Cas. 117.

(u) Cassels, Sup. Ct. Dig. 543. (v) 1 Cart. 688; 36 U. C. Q. B. 159,

to this last point-which sub-section of section 92 supports such legislation ?-we shall have to speak later.

The question came before the Supreme Court of the province of New Brunswick, in 1875, in Reg. v. The Justices of King's (w), and although the decision of the court was against the validity of the statute there impugned (36 Vic. c. 10), it was upon the ground that the Act was prohibitory in its character, allowing, as it did, a majority of the ratepayers in a municipality to entirely prevent the issue of any licenses for the sale of intoxicating liquor within such municipality. Power to make regulations for the good government of saloons, taverns, etc., such as would tend to the preservation of good order in the locality" matters of municipal police, and not of commerce was conceded by Chief Justice Ritchie to provincial legislatures, but "if, outside of this, and beyond the granting of the licenses referred to in order to raise a revenue for the purposes mentioned, the legislature undertakes directly or indirectly to prohibit the manufacture or sale, or limit the use of any article of trade or commerce, whether it be spirituous liquors, flour, or other articles of merchandize, so as actually and absolutely to interfere with the traffic in such articles, and thereby prevent trade and commerce being carried on with respect to them they assume to exercise a legislative power which pertains exclusively to the parliament of Canada.” This represented the law of that province, as recognized at least until Hodge v. Reg. In fact, it is still a question about which opinions conflict, whether a local legislature can empower a majority of the ratepayers of a municipality to absolutely prevent the issue of any licenses to sell intoxicating liquor therein. As we shall see, the judgment of the Supreme Court in Danaher v. Peters (r), does not go the full length of upholding such a provincial enactment.

In Nova Scotia, the question was pronounced upon by the Supreme Court of that province, in 1877, in Keefe v. (w) 2 Cart. 499; 2 Pug. 535. (x) 17 S. C. R. 44.

McLennan (y), and it was broadly held that a provincial legislature "is entitled to legislate with a view to regulate within the province the sale of whatever may injuriously affect the lives, health, morals, or well-being of the community, whether it be intoxicating liquors, poisons, or unwholesome provisions, if such legislation is made bona fide with that object alone, even though to a certain limited extent it should affect trade and commerce."

In Quebec, the question did not come squarely before any appellate court until very shortly before the decision in Hodge v. The Queen (2) was pronounced by the Judicial Committee of the Privy Council. The Canada Temperance Act of 1864 was in force in many of the counties of that province, and the earlier decisions in connection with this. subject dealt, rather, with the question as to the position of that Act after Confederation.

In Hart v. Mississquoi (a), however, Mr. Justice Caron held that a provincial legislature cannot repeal or modify those sections of the Canada Temperance Act, 1864 (the Dunkin Act), which conferred on municipal councils the power to pass by-laws for prohibiting the sale of intoxicating liquors. The ground upon which this decision is put, namely, that such legislation would conflict with the powers of the Dominion government under this sub-section 2, is the debatable ground to-day. See this question also discussed in Re Local Option Act (b), in the Court of Appeal for Ontario. To the same effect is the decision of Mr. Justice Dunkin, in Cooey v. Brome (c), in which, after reviewing municipal legislation prior to 1867, he refers to section 129 of the B. N. A. Act as leaving the law as it then existed, subject to repeal or amendment by that legislature, which if the law were non-existent, would now have authority to enact it. He considered that the Dunkin Act in its

(y) 2 Cart. 400; 2 Russ. & Ches. 5. (b) 18 O. A. R. 572; see post. (z) 9 App. Cas. 117. (c) 2 Cart. 385; 21 L. C. Jur. 182.

(a) 2 Cart. 382; 3 Q. L. R. 170.

general scope and effect was an Act respecting trade and commerce and that, therefore, none of its provisions could be altered by provincial legislation. Noel v. Richmond, (1 Dor. 333; 2 Cart. 246) deals only with the question arising under section 129.

In Blouin v. Quebec (d), it was held by Chief Justice Meredith that the provision of the Quebec statute (38 Vic. c. 74), fixing the hours during which taverns, etc., should be kept open, was within the competence of the provincial legislature; that the provincial legislatures may make reasonable regulations for the preservation of good order in the municipalities under their control, and may for this purpose restrict the sale of spirituous liquors. The Chief Justice holds that provincial legislation, such as above indicated, falls within the provisions of section 92, sub-section 8, "municipal institutions," such laws being in the nature of police regulations.

It was held by Mr. Justice Alleyn, in De St. Aubyn v. Lafrance (e), that while provincial legislatures may make laws regulating the sale of liquors in taverns and public places, in order the better to maintain peace and good order, they cannot directly or indirectly prohibit the manufacture or sale of spirituous liquors, or other articles of commerce or confer authority for that purpose upon municipal councils. Such legislation it was held would be in direct conflict with the powers of the Dominion parliament under this sub-section.

Finally, just prior to the decision in Hodge v. Reg., the general question of the power of a provincial legislature in connection with the liquor traffic came before the Quebec Court of Queen's Bench (appeal side), in Three Rivers v. Sulte (f). It was held broadly that a provincial legisla

(d) 2 Cart. 368; 7 Q. L. R. 18 (1880).

(e) 2 Cart, 392; 8 Q. L. R. 190 (1882).

(f) 5 Legal News, 330; 2 Cart. 280. Affirmed 11 S. C. R. 25. See also Poulin v. Quebec, 9 S. C. R. 185.