terarder v. Lord Kinnoull; 6 C. & F. 686. Words that are, strictly speaking, unnecessary may be used, ex majore cautela. Duke of Newcastle & Morris, L. R., 14 H. L. 662; Fryer & Morland, L. R., 3 Ch. Div. 685. That is precisely what, I think, was done in this Act. The right to tax the person might have been questioned with much greater force than the right to tax indirectly, if nothing had been said. Besides this, there is a limitation in both sub-sections. Sub-section 2 allows exclusively direct taxation in order to the raising a revenue for provincial purposes, and section 9 authorizes legislation as to certain licenses in order to the raising a revenue for provincial, local or municipal purposes. In the third place it is, at all events, not an express exclusion of the general power to tax, which seems to be an inherent right of government; and in the fourth place, sub-section 16 covers any omission of the sort. To this I may add that if the arguments referred to were good in this case, the local legislatures could not legislate as to shops, saloons or taverns at all, except in regard to licenses, in order to raise revenue. This has never been pretended, and Hodge & The Queen is an authority to show that such a pretention would not be maintained, for what the legislature of Ontario did was, to create license commissioners with power to pass resolutions to close taverns and billiard rooms at certain hours. In Blouin V. The Corporation of Quebec, 7 Q. L. R. 18, Chief Justice Meredith gave a similar decision, as also in the case of Poulin v. The Corporation of Quebec, 7 Q. L. R. 337. The latter case was confirmed on appeal to this court, and also by the Supreme court. One other argument has been put forward, with some plausibility, to show that parliament never intended to give the local legislatures the right to tax indirectly. It was said that certain speakers in Canada, who spoke on the resolutions, had expressed the idea that the local governments were to live on direct taxation and on the federal subsidy. It is very true that in France commentators allow themselves great latitude in referring to the history of the code; but the discussions in the council of state and in the 1885. The N. B. & M. Ins. Co. & Lambe. 1885. tribune were of a very different kind from the discussions The NB. & M. of a popular body like the house of assembly; and I am & Life Ins. Co. & Lambe. not aware that any weight is attached in France to the opinions of individual members of the assembly. Nothing, however, is better established in England than this, that the debates in parliament are not authority as to the interpretation of statutes. The cases are systematically arranged in Mr. Hardcastle's very carefully prepared treatise on the construction and effect of Statutory Law, p. 55. If there be any difference between the French and English law on this point, which I am inclined to doubt, we must, of course, reject the French rule. In referring to the acts of the legislature we express almost an excessive deference. for them; but we compensate ourselves for this lip-loyalty to the words of the statute, by disregarding totally the sayings of the individual legislator. This line of argument necessarily leads us to examine the rules as to the interpretation of statutes, and to a short digression in order to ascertain the fundamental principles upon which the right to tax rests, if it exists at all. The difficulty of these rules appears to me to be a good deal overrated. Their simplicity is so great the bookmakers can hardly find materials to make books about them. A statute, according to our ordinary use of the word, is an act of the legislature. Its dispositions are either clearly enounced or their terms are ambiguous. In the former case they are to be applied according to their terms, the language being taken to have the meaning popularly attached to it. In delivering the judgment of the Privy Council in McConnel & Murphy, L. R., 5 P.C., p. 218, Sir Montague Smith said: "In mercantile contracts, and "indeed in all contracts where the meaning of language "is to be determined by the court, the governing principle "must be to ascertain the intention of the parties, through "the words they have used. This principle is one of uni"versal application." If the terms are ambiguous for any cause, whether it be from a vice of construction of a particular section, or from contradiction in the provisions of the statute, or from incompatibility with the general 1885. The N, B. & M. Ins. Co. & Lambe. meaning of the act, or because literal application would lead to an absurd conclusion as would frustrate the pur- & Life poses of the act, then interpretation begins, and it is sought thereby to arrive at the true intention of the legis lature. It is not a question of adding to or taking away from the act; but deciding what the act really means. There are a few legislative rules as to the mode of dealing with such difficulties; and also certain rules, derived from experience and reasoning, have been laid down as general guides in such matters; but the latter leave much to the discretion of the judges, because their delimitation is scarcely more extensive than each particular case. I think, however, it may be said, generally speaking, that in the interpretation of a statute indicia similar to those which guide us as to the intention of parties, in the absence of express declarations as to their intention, are applicable. Lord Blackburn has explained, with his usual breadth and precision, how the courts of law act in construing instruments in writing. He says: "a statute is an instrument "in writing. In all cases the object is to see what is the "intention expressed by the words used. But, from the "imperfection of language, it is impossible to know what "that intention is without inquiring further; and seeing "what the circumstances were with reference to which "the words were used, and what was the object appear"ing from those circumstances which the person using "them had in view." River Wear v. Adamson, L. R., 2 App. Cas. 763. Another very great authority, Mr. Justice. Hannen, has said: "I agree with Mr. Thesiger that an appeal can only be given by the clearly expressed inten"tion of the legislature. This must be ascertained by an "examination of the enactment which is the subject of enquiry. It is not necessary that there should be any "particular form of words, but it is essential that an "intention to give an appeal should clearly appear." ** "The authorities that have been cited have not much "bearing upon this question, because in all cases the "intention of the legislature must depend to a great extent upon the particular object of the statute that has to be 66 66 1885. "construed. I have come to the conclusion that the legis The N. B. & M. "lature intended to give an appeal in a case like the preL. R., Q. B. vol. 5, p. 93. The Queen v. Justices of Fire & Life Ins. Co. & Lambe. "sent." Taking these authorities as expressing the general rules for the interpretation of statutes, and which seem to be identical with those which obtain in France (see H. M. Procureur & Bruneau, L. R., 1 P. C. 191), it can scarcely be questioned that the preamble of an act is greatly to be considered in determining the intention of the legislature where there is any doubt as to the meaning of its terms. See also Menoch. de præsump. L. vi., Præs. 2, Nos. 2, 3, 4; and Comyns in his Dig. Vbo. Parliament, says:—“The preamble is a good means for collecting the intent." Now, if we come to the preamble of the B. N. A. Act, 1867, we find the objects of the statute generally declared. The third paragraph is in these words :-" And whereas on the establishment of the Union by authority of parliament, it is expedient not only that the constitution of the legislative authority in the Dominion be provided for, but also that the nature of the executive government therein be declared." The Act then goes on to prescribe of what the executive of the central government shall consist, after that of what the legislature, called parliament, shall consist. It then follows the same form of legislation for the local constitutions. It would seem then beyond question that this Act attributes plenary governmental powers with regard to certain matters to both the federal and local bodies, and so far as I know this has never been doubted. We have therefore one point settled. The local organizations are governments. They enjoy regalian powers, and all the incidents of such powers; and these powers have not been limited by the charter, which, although it has specially passed on the taxing power, has been silent as to the powers of indirect taxation. To the last part of this argument, that is to say, that the right to tax generally has not been expressly taken away, it has been said that by sub-section 3, section 91, "The exclusive author 1885. Fire & Life & Lambe. ity of the parliament of Canada extends to the raising of money by any mode or system of taxation," and it is further The N. B. & M. provided that "any matter coming within any of the "classes of subjects enumerated in this section (i. e., sec"tion 91, of which taxation is one) shall not be deemed "to come within the class of matters of a local or private nature comprised in the enumeration of classes of sub"jects by this Act assigned exclusively to the legislatures "of the provinces," and that this is an express and not an implied taking away of the general right to tax. This is a formidable position. To the federal parliament exclusive authority is attributed, and the exclusiveness so given. overrides even the declaration attributing exclusive power to the local legislatures. That is, the exclusive power of the former is absolute, that of the latter is subject to the condition that it shall not clash with the former. It is not easy to conceive words more clear than those of the B. N. A. Act to express this idea, nevertheless it has been universally admitted that this interpretation cannot be put upon the statute. In the case of L'Union St. Jacques v. Belisle, L. R., 6 P. C. 31, decided in 1874, Lord Selborne explained the necessity of reconciling the two enumerations. In 1877, in the case of Angers v. The Queen Insurance Co., 3 H. of L. and P. C. 1090; 1 Leg. News, 410, I drew attention to this necessity, in these words: "It would be a defensible position to say that the "proviso of section 91 so controlled sub-sections 2 and 9 "of section 92 as to render them inapplicable, although "I do not think this was the intention of the Imperial parliament. But the majority of the court does not adopt "that view. * *The whole that the judgment about "to be rendered affirms is, that the particular mode of "levying a license adopted in the statute before us is "beyond the powers of the local legislature" (1 Cart. wright, 131), and as I have already shown, it is that alone the Privy Council held in confirming the judgment of this court. (Ib.) They therefore impliedly rejected the short way out of the difficulty now suggested, as inadmissible. |