1885.

Hamilton

&

Lambe.

interpretation of the meaning of an act previously passed by themselves, so as to hold the act good as a police regu- Powder Co. lation which they have declared an act for raising reve nue. While we hold, as in the case of Severn v. The Queen, that they had no right to raise revenue by this means, I am disposed to consider it a mere mistake or oversight of the Legislature to have included in the class of revenue licenses the one in question, should it be held to be one not ejusdem generis with those specially enumerated. And inasmuch as it is our business rather to give effect to an act when it is possible to do so, than to consider it as having no effect, I hold that a license to meet the present case would still be valid as a police regulation, although it might be held void as to its provision for raising revenue, and that if it were so, it was in the power of the Powder Company to have demanded a license on the payment of a moderate fee, and in the power of the Legislature to have required the taking of such license and the payment for the same of a moderate fee, and that the objection made to the validity of the license is not a sufficient bar to the prosecution for the penalty.

If it

One further observation I would like to make. were in the power of the Provincial Legislature to raise revenue by the issue of licenses for other purposes than those enumerated in the sec. 9, and such as were ejusdem generis, their power of taxation would be practically unlimited, inasmuch as what they could not do otherwise they could in most cases effect by means of a license.

As to the objection made by the company that they had rights acquired to them by their charter which could not be interfered with by subsequent legislation, this is obviously an unsound argument. Their incorporation gave them individuality, with power to manufacture and sell gunpowder in the same manner as any natural person could do, but it did not exempt them any more than a natural person from their share of the burdens of the state, such as might from time to time be legally imposed on them as on all persons subject to taxation.

VOL. I, Q. B.

30

1885.

Hamilton Powder Co. & Lambe.

RAMSAY, J.

I concur fully in the judgment to reject this appeal; but I differ from the reason relied on for maintaining the action in the court below, and from the reason on which the judgment is confirmed by this court. The interpretation of our constitutional act presents great difficulties; but it is too important for the people of this country to justify us in deciding the questions that arise lightly. Nay, more, there should be a continuity of principle in our decisions, and we should endeavor not to evade the determination of the real question either by making distinctions where there is no difference, or in deciding on some other question than that in issue, in order to escape from the logical consequences of the statutory provisions.

The court below, and this court, maintain the action because it is for a penalty for not taking out a license to keep a powder magazine. It is said the license to keep a powder magazine is a police regulation, and it is therefore competent for the court to say that the law is not ultra vires. On the other hand, I think it is a license for the purpose of raising revenue by the nature of the act, and not a police regulation at all. It cannot be pretended that a government with general powers, which the local legislatures have, must on every occasion express its authority in so many words. Such a conclusion would be against all analogy. For instance, the warrant of this court is expressed in a few lines, although we are a statutory court, because we are a court of general jurisdiction. The exercise of our authority is a public fact which cannot be ignored; but a justice of the peace, who acts occasionally and without the surroundings of a court of record, is obliged at every step to declare his jurisdiction. So then it follows that the powers of the local legislatures are gathered from the subject matter and not from the declaration of their powers.

By section 60, 41 Vict., c. 3 (Q.), it is enacted that "every person keeping a magazine for the storage of powder, or "who sells and holds for sale any quantity of powder, "must obtain from the license inspector a license to that

"effect." Section 63 establishes the tariff of duties payable under the statute. By section 170 a penalty is imposed for keeping a powder magazine without such license, and by section 171 it is enacted that "every building used "for the storage or keeping of any quantity of powder exceeding in weight twenty-five pounds is held to be a "powder magazine within the meaning of the law."

The action is to recover the penalty for keeping a magazine without such license. The company appellant contends (1) that it is a manufactory of powder and not a magazine, and therefore that it is not within the meaning of the act. This objection seems to me to be answered by section 171. (2) That the statute is ultra vires as being an interference with trade. To this objection it is answered that it is a police regulation. I cannot concur in that view. A license act might be so framed as to make it a police regulation; but this one is not. If defensible, it is as being a license under section 92, sub-section 9, B. N. A. Act, 1867. This, I think, it is. I am still of the opinion I was in 1878 when the case of the Attorney-General & Queen Insurance Co. was before this court. That case was appealed to the Privy Council and confirmed, but not on the ground taken here. It was there said that the act under which that suit arose was not a license act but a stamp act. Their Lordships said: "that 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," etc.() The case before us arises exactly on the penalty for not taking out a license, by which license a local revenue was to be raised. It is said that this question does not come up, for the action is not to recover the revenue, but only the penalty. I cannot understand this distinction. The Powder Company could not get the license without paying the contribution to the revenue; and the majority of the court condemns the company for not doing that which the company could

(1) See 1 Leg. News, pp. 410-413; 1 Cartwright, p. 127.

1885.

Hamilton

Powder Co

& Lambe.

not do without submitting to an exaction which the court intimates is illegal, or, at all events, which it will not declare to be legal. This appears to me to be an unfair position. I say so with all respect to the majority of the court, and by unfair I merely mean to say that it is not logically permissible so to deal with the matter. On the reasons I have endeavored to explain, I am to confirm.

DORION, C. J. :—

This is not an action to be paid a license fee, but a suit for a penalty for not taking out a license. The majority of the Court are of opinion that the question whether the local Legislature has a right to impose a license fee of $50 does not come up here. The Court holds that the Legislature has a right to impose a penalty for storing gunpowder in a quantity exceeding 25 lbs., and that is as far as the present decision goes. The other question, as to the license fee, is a difficult one, and it might have come up if a license had been refused, but there was no offer by the appellants here for a license.

Judgment confirmed.

Laflamme, Huntington, Laflamme & Richard, attorneys for appellant.

N. H. Bourgoin, attorney for respondent.

(J. K.)

November 27, 1885.

Coram DORION, C.J., MONK, CROSS, BABY, JJ.

Municipal Corporation-Power to license and regulate-License fee-Reception of thing not due-C. C. 1047.

HELD:-1. That a power granted to a municipal corporation to license and regulate a particular business does not authorize the exaction of a revenue duty, but only of a moderate fee sufficient to cover the cost of issuing the licenses, and of inspecting and regulating the same. So, where the City of Montreal was empowered to license and regulate junk stores, it was held that the exaction of a license fee of $50 per annum was illegal.

2. That where such fee had been paid to the city during three years in succession before contesting the validity of the exaction, the same might be recovered by the person who had paid the fee.

The judgment appealed from was rendered by the Superior Court, Montreal (MATHIEU, J.), April 9, 1884, maintaining an action for taxes illegally exacted. The City of Montreal, under the power granted by the charter to license and regulate junk stores, imposed a license fee of $50 per annum on junk stores. The respondent, after paying the fee during three years, refused to pay any longer, and being convicted by the Recorder, brought the case by certiorari before the Superior Court, and judgment was rendered by TORRANCE, J., June 22, 1882, quashing the conviction. (') He then sued the city to recover $150 paid during the previous years.

The Superior Court held that the city had no right to

(1) See 5 Leg. News, p. 201, where this decision is reported at length.