"The second of these exceptions has really no bearing on the present case, because it comprises nothing beyond the revenues which provincial legislatures are empowered to raise by means of direct taxation for provincial purposes in terms of section 92 (2). The first of them, which appears to comprehend the whole sources of revenue reserved to the provinces by section 109, is of material consequence." After quoting this section at length, the judgment proceeds: "In connection with this clause it may be observed that by section 117 it is declared that the provinces shall retain their respective public property not otherwise disposed of in the Act, subject to the right of Canada to assume any lands or public property required for fortifications or for the defence of the country. A different form of expression is used to define the subject matter of the first exception, and the property which is directly appropriated to the provinces; but it hardly admits of doubt that the interests in land, mines, minerals, and royalties, which by section 109 are declared to belong to the provinces, inclule, if they are not identical with, the duties and revenues' first excepted in section 102.

"The enactments of section 109 are, in the opinion of their Lordships, sufficient to give to each province, subject to the administration and control of its own legislatnre, the entire beneficial interest of the Crown in all lands within its boundaries, which at the time of the Union were vested in the Crown, with the exception of such lands as the Dominion acquired right to under section 108, or might assume for the purposes specified in section 117. Its legal effect is to exclude from the duties and revenues' appropriated to the Dominion all the ordinary territorial revenues of the Crown arising within the provinces. That construction of the statute was accepted by this Board in deciding Attorney-General of Ontario v. Mercer, where the controversy related to land granted in fee simple to a subject before 1867, which became escheat to the Crown in 1871. The Lord Chancellor (Earl Selborne) in delivering judgment in that case said: It was not disputed in the argument for the Dominion at the bar, that all territorial revenues arising within each province from lands (in which term must be comprehended all estates in land) which at the time of the Union belonged to the Crown, were reserved to the respective provinces by section 109; and it

was admitted that no distinction could, in that respect, be made between lands then ungranted, and lands which had previously reverted to the Crown by escheat. But it was insisted that a line was drawn at the date of the Union, and that the words were not sufficient to reserve any lands afterwards escheated which at the time of the Union were in private hands, and did not then belong to the Crown.' Their Lordships indicated an opinion to the effect that the escheat would not, in the special circumstances of that case, have passed to the province as 'lands'; but they held that it fell within the class of rights reserved to the province as royalties' by section 109.

66 . . The ceded territory was at the time of the Union land vested in the Crown, subject to 'an interest other than that of the province in the same,' within the meaning of section 109; and must now belong to Ontario in terms of that clause, unless its rights have been taken away by some provision of the Act of 1867 other than those already noticed."

Any controlling effect which might be claimed in respect of "lands reserved for the Indians" by reason of the legislative power of the Dominion in respect thereof is negatived in the passage already quoted (1).

In Attorney-General of Ontario v. Mercer (m) the meaning of the word "royalties" was discussed and without deciding whether it does or does not cover royal rights other than those connected with lands, mines, and minerals, it was held that it does cover all royal rights-jura regalia omnia ad fiscum spectantia-connected with those three subjects, and escheats within a province were adjudged to belong to such province and not to the Dominion.

In the case of The Liquidators of the Maritime Bank v. The Receiver-General of New Brunswick (n) it has just been held that the prerogative right of the Crown to claim priority for debts due the Crown over the claims of private

(1) Ante, p. 525.

(m) 8 App. Cas. 767. See Church v. Blake, 2 Q. L. R. 236. (n) 8 Times L. R. 677.

CAN. CON.-34

creditors, is a prerogative right vested in the LieutenantGovernor of a province so far as relates to debts due the Crown as representing such province-a decision which would appear to show that it was not necessary to rely solely upon the word "royalties" as vesting in the provinces (or in the Lieutenant-Governors as chief executive officers. thereof) the Crown's prerogative rights in connection with lands escheated for want of heirs. See, however, AttorneyGeneral of British Columbia v. Attorney-General of Canada (0), in which the Committee held that a conveyance by the province to the Dominion of "public lands" was, in substance, an assignment merely of its right to appropriate the territorial revenues arising therefrom, and could not without express evidence of intention in that behalf, be construed as a transfer of the precious metals in, upon and under such lands, the revenues derivable therefrom not being incident to the land (as are mines of baser metal), but arising from the prerogative rights of the Crown, which, under the word "royalties," passed to the provinces by force of section 109.

In reference to those sections of this group VIII. which deal with the financial arrangements agreed upon by theprovinces as the basis of the federal Union, we deem it unnecessary to say anything here. "Better terms" have been sought and granted in the case of a number of the provinces (p). The whole policy of provincial "subsidies" has been the subject of much adverse comment, but, in any case, these financial arrangements are hardly matter for discussion in a work of this kind. The same may be said of the "interprovincial free trade," section (121).

(ii) "Public Harbours."-It was held in Holman v. Green (q) by the Supreme Court of Canada that this in

(0) 14 App. Cas. 295. See post, Part IV, Chap. XV.

(p) See a short resumè of them in Houston, "Const. Doc. of Canada," p. 237.

(1) 6 S. C. R. 707.

cludes all harbours, together with the bed and soil thereof, which the public have the right to use, and is not limited to such as at the date of the Union had been artificially constructed or improved at the public expense; and where a grant of the foreshore of a natural harbour used as such by the public was made by a provincial government, the grant was held invalid.

(iii) "Rivers and Lake Improvements."-" Rivers" is a mistake. River improvements are clearly intended. See per Gwynne, J., in Reg. v. Robertson (r). In the Quebec Resolutions it appears as "River and Lake Improvements."

(iv) "Railways, etc."-In Western Counties Ry. Co. v. Windsor & Annapolis Ry. Co. (8) it was held by the Judicial Committee of the Privy Council that the Dominion government acquired provincial railways-i.e., government railways subject to all claims against them, or, in other words, for no larger interest than the province had in them. It was a quære with the Committee whether the parliament of Canada could afterwards legislate in derogation of claims against, or obligations incurred by, the province in respect of such railways.

(v) "Ordnance property."-See Kennedy v. Toronto (t).

(vi) "Lumber Dues in New Brunswick.”—The right to levy these duties was surrendered in 1871, upon certain terms as set out in 36 Vic. c. 41 (Dom.).

(vii) "Exemption of public lands, etc."-See Church v. Fenton (u), and Reg. v. Wellington (v). In AttorneyGeneral of Canada v. Montreal (w) it was held by the Supreme Court of Canada that lands under lease to the Do

(r) 6 S. C. R. at pp. 98-99.

(s) 7 App. Cas. 178.

(t) 12 O. R. 201.

(u) 5 S. C. R. 239; see notes to sec. 91, s-s. 24.

(v) 17 O. A. R. 421; sub nom. Quirt v. Reg. 19 S. C. R. 510.

(w) 13 S. C. R. 352.

minion government for military purposes cannot be taxed for municipal purposes; on the other hand, in AttorneyGeneral of Canada v. Toronto (x) the Dominion government was held liable to pay water rates as being the price charged for a commodity furnished.

As to Legis

lative Councillors of Pro

ing Senators.

IX.-MISCELLANEOUS PROVISIONS.

General.

127. If any person being at the passvinces becoming of this Act a Member of the Legislative Council of Canada, Nova Scotia, or New Brunswick, to whom a place in the Senate is offered, does not within thirty days thereafter, by writing under his hand addressed to the Governor-General of the Province of Canada or to the LieutenantGovernor of Nova Scotia or New Brunswick (as the case may be), accept the same, he shall be deemed to have declined the same; and any person who, being at the passing of this Act a member of the Legislative Council of Nova Scotia or New Brunswick, accepts a place in the Senate shall thereby vacate his seat in such Legislative Council.

Oath of allegiance, &o.

128. Every member of the Senate or House of Commons of Canada shall before taking his seat therein take and subscribe before the Governor-General or some person authorized by him, and every member of a Legislative Council or Legis

(x) 18 O. A. R. 622.