Prop. 29-31 The Tem Board. created by of Act of old old Canada. province of porating a Board for the management of the Temporalities Fund; and their lordships held that the Quebec legislature could not interfere directly, as they sought to do in the Act impeached, with the constitution and privileges of the corporation in question, which Dobie v. had its corporate existence and corporate rights in poralities the province of Ontario, as well as in the province of Quebec. The professed object of the Act, they pointed out, and the effect of its provisions, was,— not to impose conditions on the dealings of the Corporation corporation with its funds within the province Quebec, but to destroy, in the first place, the corporation and create a new one; and, in the second place, to alter materially the class of persons interested in the funds of the corporation. And, after observing that 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, they say1:"If the legislatures of Ontario and Quebec were allowed jointly to abolish the Board of 1858, which is one corpor- Power of ation in and for both provinces, they could only legislatures create in its room two corporations, one of which would exist in and for Ontario, and be a foreigner in Quebec, and the other of which would be foreign to Ontario, but a domestic institution in Quebec. Then the funds of the Ontario corporation could not be legitimately settled upon objects in the province of Quebec, and as little could the funds of the Quebec corporation be devoted to Ontario, whereas the Temporalities Fund falls to be applied either in the province of Quebec or in that of Ontario, and that in such amounts or proportions as the needs of the Presbyterian Church of Canada. 17 App. Cas. at p. 152, I Cart. at p. 371. provincial over same. 29-31 Prop. in connection with the Church of Scotland, and of its ministers and congregations, may from time to time require. The parliament of Canada is, therefore, the only legislature having power to modify or repeal the provisions of the Act of 1858."1 Provincial legislatures cannot re peal where re-enact. 4 So Ramsay, J., in The Corporation of Three Rivers, v. Sulte," says:-"I do not see how a they cannot legislature has power to repeal what it cannot re-enact," adding, however, "of course, it may sometimes indirectly do so, or do what will have a similar effect."3 And in In re Squier, accordingly, it was held by Wilson, C.J., and, in fact, admitted by counsel, that the Ontario legislature had no power, as they had assumed to do by 32 Vict., c. 26, O., to abolish the Court of Impeachment for the trial of charges against County Court judges for inability or misbehaviour in offices, established in Canada by 20 Vict., c. 58.5 Again, when the Ontario legislature assumed to enact by 40 Vict., c. 18, that the sale of intoxicating liquors in localities in which the The Tem- prohibitory clauses of the Temperance Act, 1864, 27-28 Vict., c. 18, of the late province of Canada had been brought into force, should also be a contravention of the Ontario Acts relating to selling perance Act of 1864. 1As McCord, J., concisely expresses it in the Court below, S.C. 3 L. N. at p. 253, 1 Cart. at p. 385. the Board for the management of the Temporalities Fund created by 22 Vict., c. 66, C., being a corporation "created for the two provinces and applicable to them both, it can only be altered by a parliament having power to legislate for these two provinces." 25 L. N. at pp. 333-4, 2 Cart. at p. 286, (1882). 3 See, also, Keefe v. McLennan, 2 R. & C. at p. 10, 2 Cart. at P 407, (1876). 446 U.C.R. 474, I Cart. 789, (1882). 5 See supra p. 128, n. 1. 2 29-31 to amend it, without a license, which prescribed punishments, Prop. and proceedings other than those which had been prescribed by the Temperance Act, 1864, it was held by the Ontario Court of Queen's Bench in Regina v. Prittie,1 and Regina v. Lake, that Power of provincial such legislation was ultra vires, amounting as it legislatures did to direct legislation upon criminal law and criminal procedure, for the punishment of offences against the Temperance Act, 1864. And in like manner, in Hart v. Corporation of the County of Missisquoi, and Cooey v. Municipality of County of Brome, it was held that a provincial legislature cannot repeal or modify those sections of the Temperance Act of 1854 which conferred upon municipal councils the power to pass by-laws for prohibiting the sale of intoxicating liquors, upon Or alter the ground that the federal parliament had alone power to legislate on the subject of regulating and prohibiting the sale of such liquors. In the latter case, Dunkin, J., observes":"As to all powers not of provincial competency, so to speak, which they,” (sc., municipalities), "may hold under antecedent delegation of the unlimited legislature of the late 142 U.C.R. 612, 2 Cart. 606, (1878). 243 U.C.R. 515, 2 Cart. 616, (1878). 33 Q. L. R. 170, 2 Cart. 382, (1876). 5 421 L.C.J. 182, 2 Cart. 385, (1872). Cf., also, Township of Compton v. Simoneau, 14 L.N. 347, (1891). "Of course, so far as power to regulate is concerned, Hodge v. The Queen, 9 App. Cas. 117, 3 Cart. 144, (1883), and Corporation of Three Rivers v. Sulte, 5 L.N. 330, 2 Cart. 280, 11 S.C. R. 25, 4 Cart. 305, (1882-5), show that this ground is now untenable. See, too, Blouin v. Corporation of City of Quebec, 7 Q.L. R. 18, 2 Cart. 368, (1880). As to the power to prohibit, see Huson v. The Township of South Norwich, 24 S.C.R. 145, and In re Prohibitory Liquor Laws, 24 S.C.R. 170, (1895); and supra p. 348, n. I. See, also, Appendix A to this work. 621 L.C.J. at p. 186, 2 Cart. at p. 388, (1877). See the notes to Proposition 45, infra. municipal o vers con ferred by it. Prop. province of Canada; these can be rescinded or altered by Parliament alone."1 29-31 Sect. 129. It is, of course, plain, as Gwynne, J., points out in B.N.A. Act. Sulte v. Corporation of Three Rivers, that section. 129 of the British North America Act only continues prior laws if there be no provision conflicting with them in other portions of that Act. But, on the other hand, Ferguson, J., holds in Regina v. Brierly, that by "all laws in force" the section means all laws that, in fact, existed in the respective countries mentioned, and then considered as valid and in force," whether actually valid or not.1 1In view of section 129 of the British North America Act, to which he does not refer, and of the above authorities, the decision of Johnson, J., in Ross v. Torrance, 2 L.N. 186, 2 Cart. 352, (1879), is unsustainable. A municipal corporation was authorized by an ante-Confederation Act to charge ten per cent. on overdue assessments. The legislature of Quebec passed an Act repealing this enactment and providing anew for a similar charge; and Johnson, J., held in the above case, that the ante-Confederation enactment was effectually repealed, although he at the same time held that the new provision was ultra vires. The same objection would apply to the view said to have been expressed by Caron, J., that if the Temperance Act, 1864, had been repealed by the local legislature, the local legislature nevertheless could not have re-enacted it: see per Ramsay, J., in Corporation of Three Rivers v. Sulte, 5 L. N. at pp. 333-4, 2 Cart. at p. 286, (1882). And on the subject generally of the power of the provincial legislatures to authorize municipalities to charge an additional percentage on overdue assessments, see Lynch v. Canada North-West Land Co., 19 S. C.R. 204, (1891), and infra pp. 388-90. 211 S.C.R. at p. 42, Cart. at p. 322, (1885). Cf. Todd's Parl. Gov. in Brit. Col., 2nd ed., at p. 578. 314 O.R. at p. 544, 4 Cart. at p. 682, (1887). Boyd, C., does not seem to have shared this view: S.C., 14 O. R. at p. 336, 4 Cart. at p. 676. 4Other cases illustrating the operation of section 129 are Willett v. De Grosbois, 17 L.C.J. 293, 2 Cart. 332; Noel v. The Corporation of the County of Richmond, I Dor. Q.A. 333, 2 Cart. 246; Munn 7. McCannell, 2 P.E.I. 148; Reed v. Mousseau, 8 S. C. R. 408. Mr. Clement (Canadian Constitution, at p. 535) observes that the whole body of laws,-common law as well as statutory enactments,-was continued by the section. As to powers existing under ante-Confederation charters, see Sandall v. Wilson, 31 N.B. 43,(1892); and Doutre's Constitution of Canada, at p. 143. The words of Patterson, J. A., in Reg. v. Eli, 13 O.A. R. at p. 528, remind us that an ante-Confederation Act, though not actually repealed, may have become effete by reason of subsequent legislation. As to Proposition 31, it is derived from the words of the Judicial Committee in Dobie v. The Temporalities Board1:-"In every case where an Act applicable to the two provinces of Quebec and Ontario can now be validly repealed by one of them, the result must be to leave the Act in full vigour within the other province." 17 App. Cas. at p. 150, 1 Cart. at p. 369, (1882). See this case further commented on in the notes to Proposition 68, infra. Prop. 29-31 |