« AnteriorContinuar »
body of its own creation, or to individuals of its selection, authority to make by-laws or resolutions as to subjects specified in the enactment with the object of carrying it into effect"; but, nevertheless, by reason of the constitutional connection above referred to, he gave the term "municipal institutions" the wide scope we have mentioned.
As indicated in the above cases in Ontario and Quebec, the municipal institutions in the various pre-Confederation provinces were widely dissimilar (t), ranging from the (for those days) very complete system of Upper Canada to the very incomplete and primitive methods of local government in vogue in New Brunswick. In fact, the maritime provinces can hardly be said to have had any system of municipal government, and the systems of Upper and Lower Canada were by no means identical. Now, admitting, for the sake of the argument, that the term "municipal institutions" is to be construed according to the meaning attached to it in the minds, not of those by whom but of those for whom it was passed, it is not conceivable that this Imperial Act is to receive a construction geographically variable (u). The decisions above noted, therefore, put the Imperial parliament in the peculiar position of having used, as to all the provinces, a phrase which, at the date of Confederation, had a different meaning in the different provinces, intending, without expressly saying so, that the phrase should bear the meaning attached to it in one particular province, without indicating which.
It seems to us that such an interpretation must be put upon this sub-section as will obviate these difficulties. "Municipal institutions" is but another form of expression
(t) See Slavin v. Orillia (Ontario), Sulte v. Three Rivers (Quebec), Keefe v. McLennan (Nova Scotia), and Reg. v. Justices of Kings (New Brunswick).
(u) "The Act placed the constitutions of all the provinces on the same level, and what was true with respect to the legislature of Ontario had equal application to the legislature of New Brunswick."-Per Lord Watson, in Liquidators v. Receiver-General, Times L.R. Vol. VIII., p. 677.
for local self-government by boards or corporate bodies, entrusted with powers of administration and, to some extent, of legislation-but delegated powers merely. Irrespective of detail this was a familiar phase of political organization. The essentials of a municipality would appear to be, first, territorial limitation; and, secondly, the organization therein of the executive and legislative machinery and staff for the administration of local affairs. Under a "unitarian" form of government power all flows from the one source, but under a dual government power over any given subject matter must come from, and the mode of its exercise be regulated by, that legislature which has itself power over the particular subject matter. Given the municipalities "instituted" under provincial legislation, the Dominion parliament as well as the provincial legislatures can confer on such municipalities powers of local self-government, each in relation to matters within its own competence (). The vast majorities of the powers exercisable by municipal bodies throughout Canada are conferred by the provincial legislatures, because nearly all those matters which touch the daily life of a man, and regulate his rights and duties as a citizen of a municipality, are comprehended within some one or other of the various sub-sections of tion 92. Very few, if any, of the cases which have arisen under the B. N. A. Act, touching the powers of municipal bodies, depend upon a wider scope being given to this subsection 8, than we have given it. Sub-sections 2, 7, 9, 10, 13, 14, 15 and 16 of section 92, suffice to sustain the exercise of municipal powers in all cases in which it has been questioned (w); but that a provincial legislature cannot delegate to a municipal or other body created by it, power over any subject matter not, by the B. N. A. Act allotted to such provincial legislature, is a view which seems to be forced
(v) The Canada Temperance Act is an example of power conferred and duties imposed by Dominion legislation.
(w) These cases have all been noted under these various sub-sections.
upon us by the exhaustive character of the division effected by that Act, and the exclusive character of the jurisdiction conferred upon our legislative bodies, Dominion and proprovincial.
Under this sub-section we should, perhaps, note the case of Reg. ex rel. McGuire v. Birkett (x), in which it has lately been held that a provincial legislature has the exclusive right to designate the judicial officer by whom controverted municipal election cases are to be determined. This is a matter clearly relating to municipal organization, and has no relation to the nature of the powers to be exercised by municipal bodies or officers thereof. We note it here rather than under sub-section 14, because of the expression of opinion by the Privy Council in Valin v. Langlois (y) that the trial of election cases does not "quite plainly" come within "the administration of justice in the province."
9. Shop, Saloon, Tavern, Auctioneer, and other Licenses in order to the raising of a Revenue for Provincial, local, or municipal purposes.
The scope of this sub-section is limited by the last clause, in order to the raising, etc. (2), and in Russell v. The Queen (a), it was held that the Canada Temperance Act, is not an infringement on the powers of the provincial legislatures under this sub-section :
"The Act in question is not a fiscal law; it is not a law for raising revenue; on the contrary, the effect of it may be to destroy or diminish revenue; indeed, it was a main objection to the Act, that in the city of Fredericton it did, in point of fact,
(x) 21 O. R. 162.
(y) 5 App. Cas. at p. 119.
(z) See Three Rivers v. Sulte, 5 Leg. News 330, 2 Cart. 280. This does not conflict with the views expressed in earlier cases in Ontario that this sub-section does not exhaust the powers of a provincial legislature in relation to the liquor traffic.
(a) 7 App. Cas. 829.
diminish the sources of municipal revenue. It is evident, therefore, that the matter of the Act is not within the class of subjects No. 9, and consequently that it could not have been passed by the provincial legislature by virtue of any authority conferred upon it by that sub-section."
Referring to what we have said in the notes to subsection 8, it is to be noticed that in Russell v. The Queen the effect of sub-section 8 upon the questions there under consideration is not in any way touched upon (b). The previous legislation of New Brunswick on the subject of tavern licenses was looked at merely as the exercise of power under this sub-section 9; and it was held that the mere fact that Dominion legislation upon any matter within its legislative competence might prejudicially affect the revenue derivable from license fees imposed under this sub-section 9, would in no way invalidate such Dominion legislation (c).
In the notes to sub-section 2 of section 92 reference was made to the case of Attorney-General (Quebec) v. The Queen Insurance Co. (d), in which a license tax (so called) imposed upon insurance companies, payable not upon the taking out of the license, but upon the issue of policies, and to an amount depending upon the amount of premium payable upon a policy, was held not to be a license tax at all, but a stamp duty:
"Now, the first point which strikes their Lordships, and will strike every one as regards this Licensing Act, is that it is a complete novelty. No such Licensing Act has ever been seen before. It purports to be a Licensing Act, but the licensee is not compelled to pay anything for the license, and, what is more singular, is not compelled to take out the license because there is no penalty at all upon the licensee for not taking it up; and, further than that, if the policies are issued with the stamp, they appear to be valid, although no license has been taken out at all. The result,
(b) See Re Local Option Act, 18 O. A. R. 572.
(c) See ante, p. 213, et seq.
(d) 3 App. Cas, 1090.
therefore, is, that a license is granted which there are no means of compelling the licensee to take, and which he pays nothing for if he does take; which is certainly a singular thing to be stated of a license. They say on the face of the statute, "the price of each license shall consist," and so on. But it is not a price to be paid by the licensee. It is a price to be paid by anybody who wants a policy, because, without that, no policy can be obtained. It may be that the company buys the adhesive stamps, and affixes them; or it may be that the assured buys the adhesive stamps and affixes them, or pays an officer of the company the money necessary to purchase them and affix them; but whoever does it complies with the Act.
Another observation which may be made upon the Act is this that, if you leave out the clauses about the license, the effect of the Act remains the same. It is really nothing more nor less than a stamp Act if you leave out these clauses. If you leave out every direction for taking out a license, and everything said about the price of a license, and merely leave the rest of the Act in, the government of the province of Quebec obtains exactly the same amount by virtue of the statute as it does with the license clauses remaining in the statute. The penalty is on the issuing of the policy, receipt or renewal; it is not a penalty for not taking out the license. The result therefore is this, that it is not in substance a license Act at all. It is nothing more or less than a simple stamp Act on policies with provisions referring to a license, because it 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."
In the notes to sub-section 2 (ante, p. 430) will also be found a reference to the cases involving the question whether these license fees are to be considered direct or indirect taxation. See Pigeon v. The Recorder's Court (e), where the effect of the decision in Bank of Toronto v. Lambe (f), seems to have been considered to be, in effect, that all these license fees are direct taxation.
(e) 17 S. C. R. 495.
It is to be
(f) 12 App. Cas. 587.