says:-"My proposition is that although trade and Prop. 49 commerce is not restricted to foreign commerce, or commerce between the provinces, as in the United States, it is still something different from mere retail buying and selling; that is, it is restricted to wholesale. dealing and the word trade is a synonymous term. A British merchant would not call a man who kept a dram shop a merchant. . . I do not understand the words 'trade and commerce' mean mere The regula buying and selling. An operation of trade is some- and comthing more than buying and selling again. It means this, buying goods and carrying goods, bringing goods from foreign countries, or bringing goods from the place where they are manufactured. No doubt that is the true import of both these words. They mean buying and selling, but they mean something more."1 And in Poulin v. The Corporation It tion of trade merce. nothing to do with the police. Saying that licensed premises shall Police not be open within prohibited hours is not a 'police regulation.' The regulations. police have nothing to do with it except to see that the law is not broken as in every other case." The Lord Chancellor:-"We have substituted the word 'police' for 'constable,' and if you get the old common law word there is a thread of theory that ran through it which was the preservation of the peace." Lord Davey :-" If you look at the derivation police,' I expect it means the maintenance of municipal order." Lord Watson :-"We are apt to use these expressions which really are not definitive of the thing enacted, but are descriptive of the executive body entrusted with the execution of the statute. becomes a police matter, and we use the words 'police regulation' whenever it is entrusted to the police for enforcement. But that word does not define the nature of the enactment or the object of the legis lature in passing it. Sanitary arrangements and that kind of thing are entirely for the benefit of the community." Lord Herschell :"There is nothing about police in section 92 at all. It was used in Hodge's case. It was thought it pointed to a distinction which helped one. I confess you may call them police regulations; but it does not help one with reference to other cases to call them police regulations": printed report of the argument, at pp. 232-3. On the argument before the Supreme Court, Strong, C.J., had said:-" The superintendence of markets, roads, bridges, keeping order in public places, streets, and so on, is all police power": transcript from shorthand notes of Nelson R. Butcher, at p. 68. See also supra p. 360, n. 2. 1Dom. Sess. Pap., ibid., at pp. 117 and 155. Cf. per Strong, C.J., in Huson v. Township of South Norwich, 24 S. C. R. at p. 150; and cf., also, Story on the Constitution of the United States, 5th ed., Vol. 2, at Prop. 49 of Quebec,1 Tessier, J., also attempted to be more specific in this matter, saying:-" It is manifest that by the words 'traffic et commerce,' especially the English words 'trade and commerce,' it was intended to express legislation over the general interests of The regula commerce which relate to the whole Dominion of Canada, the mode of importing and exporting merchandise, the storing of this merchandise in towns so as to protect the customs, entire prohibition in certain cases for the general protection of the commerce of the Dominion, but not special laws of provin tion of trade and com merce. The prohibi tion of trades. p. 160, n., where he quotes from an argument of Mr. Hamilton these words :-"This,” (sc., prescribing rules for buying and selling), “is a species of regulation of trade, but it is one which falls more aptly within the province of the local jurisdictions than within that of the general government, whose care they must have presumed to have been intended to be devoted to these general political arrangements concerning trade on which its aggregate interests depend, rather than to the details of buying and selling. Accordingly, such only are the regulations to be found in the laws of the United States whose objects are to give encouragement to the enterprise of our merchants, and to advance our navigation and manufactures." See, however, p. 551, n. 3, supra. 17 Q. L. R. at p. 340, 3 Cart. at pp. 239-40, (1881). As to the prohibition of a trade possibly coming in certain cases within the Dominion power under discussion, on the recent argument in The Liquor Prohibition Appeal, 1895, Lord Herschell observed :"It is the regulation of trade generally. One may be said to regulate trade by prohibiting or putting a fetter on a particular trade. If you prohibit all trades, you certainly do not regulate trade; but you may be said to regulate trade by saying certain trades shall be unlawful": printed report of the argument at p. 190; (see supra at p. 398, n. 1). And the Lord Chancellor (Lord Halsbury) also said:-"Trade generally may be regulated by prohibiting a particular trade. Take the case of the prohibition of the exportation of wool with which this country was familiar at one time. That was a regulation of trade, and it was a prohibition of a particular trade." Whereupon Lord Watson observed:-"We regulate the trade of these islands in tobacco by prohibiting its production, except to a very limited extent"; ibid. at p. 226. See, also, ibid., at p. 179. There seems nothing inconsistent here with the fact that in their judgment in this case, [1896] A.C. at p. 363, the Judicial Committee say of the Canada Temperance Act, 1886 :-"Their lordships are unable to regard the prohibitive enactments of the Canadian statute of 1886 as regulations of trade and commerce. They see no reason to modify the opinion which was recently expressed on their behalf, by Lord Davey, in The Municipal Corporation of the City of Toronto v. Virgo, [1896] A.C. at p. 93, in these terms: Their lordships think there is marked distinction to be drawn between the prohibition or preven tion of trade cial legislatures which do nothing more than regulate Prop. 49 the mode of selling and trading in certain matters. of a merely local nature in the province." But it can scarcely be said that anything more definite has really been arrived at than is stated by Mr. Edward Blake in the course of the recent argument in The Liquor Prohibition Appeal, 18951, namely, that The regula those regulations of trade are in the Dominion, and and comwholly in the Dominion, under both its powers, the general and the special," which march wider, which cut deeper, which are of more general application, which go beyond minute regulations affecting a particular trade, which go beyond simple 'police matters,' dealing with the varying circumstances and conditions of small and differently circumstanced localities."3 tion of a trade and the regulation or governance of it, and indeed a power to regulate and govern seems to imply the continued existence of that which is to be regulated or governed.' This clearly is not saying that as part of a legislative scheme for the regulation of trade, the prohibition of a particular trade might not be incidentally involved. See also in the Virgo case in the Court below, 20 O.A.R. at pp. 438-9, 441, (1893). But as pointed out supra p. 402, n. 1, the Board in this judgment clearly overrule those cases there cited where the provincial power to prohibit the liquor trade was denied as being an infringement upon the exclusive power of the Dominion parliament to regulate trade and commerce. And as to powers of prohibition, see supra pp. 339 401. 66 1 Printed report of this argument at p. 225; (see supra p. 398, n. 1). 2See supra p. 556, n. 2. merce. 3In accordance with the above the following provincial Acts have Provincial been held to be no infringements of the Dominion power for the Acts affectregulation of trade and commerce" :-Act making police or muni- ing trade. cipal regulations of a merely local character for the good government of taverns, etc., licensed for the sale of liquors by retail : Hodge v. The Queen, 9 App. Cas.117, 3 Cart. 144, (1883); Act imposing a license duty on the vendors of provisions from any stall, place, or shop in any market place: La Cite de Montreal v. Riendeau, 31 L.C.J. 129, (1887); Act forbidding the carrying of any load of more than 2,000 lbs. in any wagon on any highway in Victoria district, unless the tires were at least four inches wide: Queen v. Howe, 2 B.C. (Hunter) 36, (1890); Act regulating selling from private stalls outside the public markets: Pidgeon v. The Recorders Court, 17 S.C.R. 495, 4 Cart. 442, (1890); Liquor License Regulation Act, closing saloons on Sunday: Sauer v. Prop. 49 Returning to the leading Proposition the de Provincial Acts affect ing trade. Walker, 2 B.C. (Hunter) 93, (1892); Act authorizing municipalities cision of the Supreme Court in the Queen v. Robert- Prop. 49 Commerce. Scotia Act, 48 Vict., c. 23, respecting 'the regulation and inspection of provisions, lumber, fuel, and other merchandise,' that some of its provisions amounted to legislation respecting trade and commerce: Hodgins' Provincial Legislation, 2nd ed. at p. 532. On the strength of its power Incorporaover the regulation of trade and commerce, the Dominion has objected tion of -it may perhaps be thought unjustifiably--to the incorporation under Chambers of provincial Acts of Chambers of Commerce and Boards of Trade: Hodgins' Provincial Legislation, 2nd ed. at pp. 1158-9, and has itself incorporated such Boards of Trade; cf. R.S. C., c. 130, being a general Act for the incorporation of such bodies throughout the Dominion, and Bourinot's Parliamentary Procedure and Practice, 2nd ed. at p. 669. Sir J. Thompson as Minister of Justice, in his report of March 21st, 1891, in reference to No. 12 of the British Columbia Acts of 1890, being an Act to amend the Game Protection Act, which forbade the exportation out of the province of any animals or birds mentioned in the Game Protection Act in their raw state, inclines to the opinion that "the legislation operates directly as a restriction on trade and commerce, and the Dominion parliament alone, under its general powers of legislation and under its particular powers in connection with the regulation of trade and commerce, may declare what goods may or may not be exported from Canada": Hodgins' Provincial Legislation, 2nd ed. at Game prop. 1121. And in the report of the same date he raises similar objec- tection Acts. tions to a Manitoba Act, (c. 32 of 1890), being an Act for the protection of game and fur-bearing animals, which contained similar provisions: Hodgins, ib. at p. 929. But cf. Regina v. Boscowitz, 4 B.C. 132, (1895), where such an Act was held intra vires of the province, the Dominion power over trade and commerce not preventing "the legislature prohibiting export as incidental to and as carrying out the general scheme of game protection in the province." And so per Killam, J., in Queen v. Robertson, 3 M.L. R. at p. 620, (1886). It may be observed also in this connection that in their recent judgment in The Liquor Prohibition Appeal, 1895, [1896] A. C. at p. 368, the Privy Council referring to the provisions of the Canada Temperance Act, 1886, whereby manufacturers of liquor and wholesale merchants may sell for delivery anywhere beyond the district in which they carry on business, say :—“If the adjoining district happens to be in a different province, it appears to their lordships to be doubtful whether, even in the absence of Dominion legislation, a restriction of that kind could be enacted by a provincial legislature." Cf., also, supra at p. 322, et seq., as to extra-territorial legislation. And as to the distinction between regulation and taxation, see Weiler v. Distinction Richards, 26 C.L.J. N.S. 338, (1890), where it is pointed out that between although these often go together they are essentially different. See regulation also Bank of Toronto v. Lambe, 12 App. Cas. at p. 586, 4 Cart. at p. 21, where the Privy Council say with reference to the Dominion power to regulate trade and commerce :-"If they were to hold that this power of regulation prohibited any provincial taxation on the persons or things regulated, so far from restricting the expressions, as was found necessary in Parson's case, they would be straining them to their widest conceivable extent. And on the same point on the recent argument on The Liquor Prohibition Appeal, 1895, where this case of Bank of Toronto v. Lambe is referred to, Lord Watson says:-"Do you regulate a man when you tax him?" And Lord Herschell thereupon says:-" May it not be necessary to regard it from this point of view to find what is within regulation of trade and commerce, what is the object and scope of the legislation? Is it some public object which and taxation. |