Imágenes de páginas
PDF
EPUB

British North America Act, and say :-" The objects Prop. 36 and scope of the legislation are still general, namely, to promote temperance by means of a uniform law throughout the Dominion."

Queen

Co.

And the previous decision of the Board in Attorney-General of Quebec v. The Queen Insurance Angers v. Company1 also affords an excellent example of the Insurance principle under discussion. There it appeared that the provincial Act of Quebec, 39 Vict., c. 7, purported to be on the face of it an exercise of the powers conferred by No. 9 of section 92, as to "shop, saloon, tavern, auctioneer, and other licenses," and to impose a license on persons carrying on the business of assurance in the province, but as a matter of fact did not compel the supposed licensee to take out or pay for a license, but merely provided that "the price of such license" should consist of an adhesive stamp to be paid in respect to each transaction, not Stamp Act by the licensee, but by the person who dealt with of License him. Their lordships held that the Act was virtually a Stamp Act, and not a License Act, and they further held that it was not direct taxation, and was ultra vires. They says:-"The result is this, that it is not in substance a License Act at all; it is nothing more nor less than a simple Stamp Act on the policies, with provisions referring to a license, because, it

2

13 App. Cas. 1090, I Cart. 117, (1878), also cited as Angers v. The Queen Insurance Company.

2On this point Crawford v. Duffield, 5 M. R. 121, (1888), may be referred to, where the Manitoba Act, 49 Vict., c. 51, was held intra vires, which enacted that:-"All duties and fees of office payable in law stamps on any search, filing, pleading. in virtue of any

[ocr errors]

statute, rule, or order, now or hereafter in force, are hereby declared to be a direct tax and duty imposed upon the party directed to pay or paying the same, in order to the raising of a revenue for provincial purposes, and shall not be in any way taxable or recoverable as costs by the said party from any other party or person whatsoever." And as to direct taxation generally, see, further, the notes to Proposition 66.

33 App. Cas. at p. 1099, I Cart. at p. 128.

under guise

Act.

Prop. 36 must be presumed, the framers of the statute thought it was necessary, in order to cover the kind of tax in question with legal sanction, that it should be made in the shape of the price paid for a license."

Must discover

and main

of Acts;

And in the argument on The Liquor Prohibition Appeal, 1895,1 Lord Watson says:-"We are always inclined to stand on what is the main substance of the Act in determining under which of these provisions it really falls. That must be determined secundum subjectam materiam, according to the purpose of the statute, as that can be collected from its leading enactments. When a legislature proceeds real object to enact that not less than a certain quantity of substance liquor shall ever be sold retail, what is the object of it? Is it for the physical benefit of the population that they are legislating? Is it because small quantities should not in their opinion be sold to any one who wants a drink? Or is it because they want to regulate the trade?" Again, later on, he says:"There may be a great many objects, one behind the other. The first object may be to prohibit the sale of liquor, and prohibition the only object accomplished by the Act. The second object probably is to diminish drunkenness; the third object to improve morality, and good behaviour of the citizens; the fourth object to diminish crime, and so on. These are all objects. Which is the object of the Act? I should be inclined to take the view that that which it accomplished, and that which is its main object to accomplish, is the object of the statute; the others are mere motives to induce the legislature to take means for the attainment of it."

2

1At p. 184; see p. 398, n. 1, supra. This case is now reported in [1896] A.C. 348.

2 At pp. 317-8.

As Graham, E.J., says, in Queen v. Ronan,1 of the Prop. 36 Act there in question :-" The Act may be in effect a Temperance Act, but it is something else."

And so in Clarkson v. The Ontario Bank3 Hagarty, C.J.O., says that what we have to look at in an Act "is its general scope and effect . . . The main purpose of the enactment must be looked to." And Osler, J.A., says that we must have regard to "the scope, object, and effect" of the provisions of the Act.5

character

of the

And to refer again to two cases already incidentally The true noticed in the notes to the last Proposition," Regina and nature v. Wason, and Regina v. Stone, Osler, J.A., legislation. observes in the former," that the proposition that it is by determining the true character and nature of the legislation in the particular instance that the class of subjects to which it really belongs is to be ascertained "merely states the difficulty which presents itself at the threshold of every case in which

123 N.S. at p. 450, (1891).

66

2Wilson, C.J., says in Regina v. Taylor, 36 U.C.R. at p. 206, (1875): If objects of legislation are lawful objects, and if they can be properly adopted, they do not become unlawful because they cannot be wholly separated from every other matter, or because they are attended with their inevitable consequences."

315 O.A. R. at pp. 174-6, 181, 4 Cart. at pp. 508-11, 516. See as to the constitutionality of the Act there in question, Attorney-General of Ontario v. Attorney-General of Canada, [1894] A.C. 189.

4S.C. 15 O.A.R. at p. 193, 4 Cart. at p. 530.

5As Ramsay, J., observes in Hamilton Powder Company v. Lambe, M.L.R. 1 Q.B. at p. 466, (1885):-"It cannot be pretended that a government with the general powers which the local legislatures have must on every occasion express its authority in so many words."

See supra at pp. 413-4.

717 O.A.R. 221, 4 Cart. 578, (1890).

823 O.A. R. 46, (1892).

917 O.A. R. at p. 239, 4 Cart. at p. 597.

An apparent criminal

Act may be

really only

regulation

of a trade.

Prop. 36 the question arises"; and applying the test to the Ontario Act then in question, being 'An Act to provide against frauds in the supplying of milk to cheese and butter manufactories,' he says1:-"What, then, is the real character and scope of the Act? Does it operate to enlarge the borders of the criminal law, as that expression is used in section 91, sub-section 27, of the British North America Act; or is it concerned primarily with property and civil rights, providing for its enforcement by fine and imprisonment, as may lawfully be done where the principal matter is within the class of subjects comprised in section 92?" And he and all the judges of the Ontario Court of Appeal decided in favour of the latter alternative, and held the Act to be intra vires of the provincial legislature. And so, on the other hand, in Regina v. Stone, the Ontario Common Pleas Divisional Court held the corresponding Dominion Act, 52 Vict., c. 43, to be likewise intra vires, Rose, J., observing (at p. 49) :—“ As has been pointed out in Regina v. Wason, the Act of the legislature differs in form from the Act of Parliament in that under the former the offence consists in doing certain things without notifying in writing the owner or manager of the cheese or butter manufactory. The Act in question forbids all persons doing the acts therein stated, and is in form similar to other Acts found upon the pages of the revised statutes of Canada creating crimes." And he cites as apposite the words of Maclennan, J.A., in Regina v. Wason,3 as to the Dominion Act, that "it is universal in its scope and application, and prohibits the forbidden

Reg. v. Stone and Reg. v. Wason.

:

66

117 O.A. R. at pp. 239-40, 4 Cart. at p. 598.

223 O. R. 46, (1892).

317 O.A. R. at p. 248, 4 Cart. at pp. 607-8.

acts by all persons whomsoever under all circum- Prop. 36 stances, and in all places throughout the Dominion, while the provincial Act is confined to the dealings between these two particular kinds of manufacturers and their customers. The one has all the features of a public criminal law passed in the interest of the general public; the other is merely the regulation of the mode of carrying on a particular trade or business within the province, so as to secure fair and honest dealing between the parties concerned."1

used in Acts

misleading.

Lynch v. The Canada North-West Land Company also well illustrates the leading Proposition. There the Supreme Court of Canada, over-ruling Expressions the Manitoba Courts, held (Gwynne, J., dissenting) may be that a provincial Act imposing an obligation to pay an additional 10 per cent. on the original amount of municipal taxes, if not paid by a certain date, was only an additional rate or tax imposed as a penalty for non-payment, which the local legislature, under its authority to legislate with respect to municipal institutions, had power to impose, and was not "interest" within the meaning of No. 19 of section 91 of the British North America Act, although in "Interest' the same Act the legislature more than once called sect. 91, the addition to the taxes" interest." At pp. 210-13, Ritchie, C.J., says: "I care not by what name this 10 per cent. may be called; it was to all intents and purposes, in the case before us, an additional tax. . . Had it been specifically named as interest I am of opinion that it was an incident to the right of taxation vested in the municipal authority, and, though more than the rate allowed by the Dominion statute in matters of contract, in no way in

[ocr errors]

1See supra p. 414.

219 S.C.R. 204, (1891).

in No. 19 of

B.N.A. Act.

« AnteriorContinuar »