The power to tax

Prop. 27-8 So, again, as Strong, J., says in Severn v. The Queen1:-"The general legislature can undoubtedly tax auctioneers, and by express words the local auctioneers. legislatures have authority to do the same." In this sense there is concurrent jurisdiction to tax auctioneers. But the power to tax auctioneers by the exaction of a license "in order to the raising of a revenue for provincial, local, or municipal purposes" is, by No. 9 of section 92, in the local legislatures exclusively.

Judge
Travis on

of the

2

And Judge Travis, in his constitutional treatise this aspect already referred to, puts this matter in a way Constitution worth noticing, thus: "The local legislatures have the right and power, in the first instance, (i.e., before Parliament has effectually legislated so as to affect the particular subject-matter in section 92), to legislate on all subjects-matter enumerated in the 92nd section, within these subjects-matter,-not farther on them within the subjects-matter enumerated in section 91. For example, the local legislatures can legislate on the solemnization of marriage, but no farther than that within the subject of marriage; on licenses, etc., under the 9th sub-section, but no farther than that, on that subject, within the subject of regulation of trade and commerce";" but he seems to grow care

at p. 564; and the argument before the Supreme Court of Canada upon the Dominion Liquor License Acts, 1883-4: Dom. Sess. Pap., 1885, No. 85, at p. 98. See, too, per Dorion, C.J., in Dobie v. The Temporalities Board, 3 L. N. at p. 254, I Cart. at p. 389, (1880).

12 S.C. R. at p. 111, I Cart. at p. 455, (1878).

2See supra pp. 311, et seq.

3 At p. 179.

4See supra p. 308, n. 1. And Proposition 37 and the notes thereto.

5 As to the proper interpretation of the words "regulation of trade and commerce," however, see the notes to Proposition 49.

less, when he adds: "On the subject of property Prop. 27-8 and civil rights, but no farther than that to make it a legislation on trade and commerce,-on bankruptcy and insolvency,—or on any of the other subjects in section 91," for it would seem impossible to name a more comprehensive subject than property and civil rights, so that the correct mode of statement here would seem to be that Parliament may legislate on trade and commerce, bankruptcy and insolvency, etc., but not further than this on property and civil rights in the province.1

66

Sedgewick,

And lastly, in this connection, the words of Sedge- And so per wick, J., in In re Prohibitory Liquor Laws,2 may be J. cited :—" When a general subject is assigned to one legislature, whether federal or provincial, and a particular subject, forming part or carved out of that general subject, is assigned to the other legislature, the exclusive right of legislation, in respect to the particular subject, is with the latter legislature. For example, Parliament has marriage, but the legislatures have the solemnization of marriage. On that subject they are paramount and supreme." But, he admits, that the decision of the Privy Council in Russell v. The Queen forbids the view "that the central Parliament could not, by virtue of any of its powers, destroy a special power given to the local legislatures for a special and particular purpose," and, therefore, as already explained, it is only in a very modified sense that the powers of the

3

1See supra p. 308, n. I.

224 S. C. R. at p. 230, (1895).

3S.C. at pp. 240-1; see, also, S. C. at pp. 248-9.

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

Prop. 27-8 local legislatures, at any rate, can be said to be exclusive.1

The result of It would seem, then, that the most that can be said authorities. with accuracy is that the powers of the Dominion

the

parliament and of the local legislatures to deal directly and in their entirety, and as matter of separate and detached legislation, (as distinguished from legislative provisions merely ancillary to the main subject of legislation), with the various classes of subjects mentioned in sections 91 and 92, are in each case special and exclusive.

1As to whether provincial legislatures can intrude at all upon the Dominion area of legislative power, quære. See the notes to Proposition 37.

PROPOSITIONS 29, 30, AND 31.

29. There is no power given by the Confederation Act to the Dominion Parliament to amend or repeal an Act passed by a Provincial Legislature within the limits of its authority, nor to the Provincial Legislatures to amend or repeal a valid Dominion Act.

30. The powers conferred by section 129 of the British North America Act upon the Provincial Legislatures of Ontario and Quebec to repeal and alter the statutes of the old Parliament of the Province of Canada are made precisely co-extensive with the powers of direct legislation with which these bodies are invested by the other clauses of that Act; and the power of the Provincial Legislature to destroy a law of the old Province of Canada is measured by its capacity to reconstruct what it has destroyed.

31. In no case can an Act of the old Province of Canada, applicable to the two Provinces of Ontario and Quebec, be validly repealed by one of them, unless

Prop. 29-31

Prop. 29.

Prop. 30.

the nature of the Act is such that in the result it still remains in full vigour in the other.

The first clause of Proposition 29 is taken from the words of Dorion, C.J., in Dobie v. Temporalities Board, and with the rest of the Proposition may perhaps be deemed almost too obvious to need enunciation. But it is important to remember that though the Dominion parliament has no power directly and totidem verbis to amend or repeal an Act passed by a provincial legislature within the limits of its authority, there are many cases where its legislation may have the effect of suspending the operation of valid provincial Acts, and of overriding them, as will appear from the notes to Propositions 27, 37, 46, and 62. And, on the other hand, it will be seen from Propositions 55 and 61, and the notes thereto, that provincial legislatures may limit the range which otherwise would be open to the Dominion parliament, or even render nugatory powers conferred by the latter.

As to Proposition 30, it is in the words of the Privy Council in Dobie v. The Temporalities Board. The question there was as to the power the Quebec The Privy legislature had of altering and amending the Act of the province of Canada, 22 Vict., c. 66, incor

Council.

1 Doutre's Constitution of Canada at p. 261, 1 Cart. at p. 389, (1880). 27 App. Cas. at p. 147, I Cart. at p. 365, (1882). As to the exception made in section 129 of the British North America Act with respect to Imperial Acts, the author of an article on the Constitution of Canada in II C. L.T., at pp. 123-4, points out that it cannot be meant to indicate that no Imperial Acts whatever can be repealed, abolished, or altered in their operation within the Dominion, by either the Dominion parliament or the local legislatures,--as, for example, the Statute of Frauds. See as to this supra pp. 230-1. It must, therefore, refer only to those Imperial Acts which are intended to apply throughout the Empire, such as the Copyright laws, as to which see supra pp. 213-16 and 225-9.