1878 v. exclusive. One method of regulating excise is by SEVERN taxation: Story on the Constitution (1). The only head of concurrent jurisdiction is under section 95, and even then Provincial Legislatures must yield to Dominion when they conflict. THE QUEEN. Either the words "other licenses" must be construed to be of the same class as those mentioned in the preceding part of the sub-section: East London Water Works v. Mile End Old Town (2); Reed v. Ingham (3); Williams v. Golding (4); this is also the view taken by Torrance, J., in the case of Angers v. The Queen Insurance Co., decided at Montreal, in April 1877 (5); -or must be held to mean such licenses as were before the passing of the Imperial Act under municipal or local control: Maxwell on Statutes (6). If the term "other licenses" be not thus limited, the Legislature may require anything to be licensed, for instance, may require a license to be taken out by a captain of a vessel, or by a banker, or official assignee. There are a large class of local licenses of minor importance than those enumerated in this sub-section, such as those enumerated in the Municipal Act of 1866. As to the argument put forward on behalf of the Crown, in support of the judgment in this case, that the Act is not ultra vires, because it has reference to a subject-matter over which its powers are as full and complete as those of the Dominion Parliament as a matter of police, Appellant contends that power is a grant from the Dominion Government, a branch of criminal law over which the Dominion has entire control. What is known in the United States as police power (1) Section 971. (2) 17 Q. B. 512. (3) 3 E. & B. 889. (4) L. R. 1 C. P. 69. (5) 21 L. C. Jur. 81. (6) Page 308. 1878 in the States is founded upon the right which exists on the part of the State Legislatures to make laws for the SEVERN good government of the State in all cases in which jurisdiction is not given to the Congress. The jurisdiction to enact Criminal Laws, except for offences committed on the high seas and offences committed against the United States Government, exists on the part of the State Legislatures. The basis of the right to make laws of police is Criminal Law. Cases (1). License The cases decided by the United States Courts as to laws on the nature of police do not apply with equal force to Canada, because the Provincial Legislatures have jurisdiction only in such matters as are expressly mentioned in section 92. This is plain from section 91. The Quebec resolutions numbered 29, 43 and 45 shew that this was what was intended. As to the power of disallowance, that power belongs to only one branch of the Dominion Parliament and can be exercised in different ways. In the United States it is held that the moment Congress exercises its power over a subject-matter the State has no control, provided that Congress was first to exercise it. It is further contended on the part of the respondent, that the power to sell in Ontario must come from the Ontario Government and that under the Act it can be called a shop license. The answer to this will be found in Brown v. State of Maryland (2). It is as much a part of the trade of the brewer to sell as to manufacture. 483; Dwarris on Stats. by Potter, (1) 5 Howard, at pages 590, 591, 592, and 625; Story on the Constitution, 4th edtion, sect. 1954; Cooley on Const. Limitations, 113. (2) 12 Wheaton, pp. 442, 443, 446. v. THE QUEEN. 1878 It would be mockery to say: I will give you the SEVERN right to manufacture, but the Provincial Legislature says THE QUEEN. You must get a shop license before you can sell. See also Kent's Commentaries (1). v. If this sub-section 9 of section 92 gives power to require a license to be taken out by a brewer, the Legislature has power also to require the license to be obtained from the municipality or from the Provincial Government, or from both. This would very much embarrass this branch of trade, and might so fetter it as to destroy it. Mr. Mowat, Q. C., Attorney General for Ontario, (Mr. Crooks, Q.C., with him) for the Respondent : I claim for the Provinces the largest power which they can be given it is the spirit of the B. N. A. Act, and it is the spirit under which Confederation was agreed to. If there there was one point which all parties agreed upon, it was that all local powers should be left to the Provinces and that all powers previously possessed by the Local Legislatures should be continued unless expressly repealed by the B. N. A. Act. The larger powers given to the Dominion were for the purposes of nationality, so that in construing the B N. A. Act, the intention was not to take from Provincial authorities any more than what was necessary. Take, for instance, the Administration of Justice; nothing in the Act says to whom belong the executive powers of the Administration of Justice, yet from the very beginning it was assumed that the local authorities have the same powers as before Confederation. We find that express power was given by ch. 128, 14 and 15 Vict., to the City of Montreal to tax brewers. The same power may surely be trusted to a Provincial Government. Another point of great importance is the provision in the Act (1) 12 Ed. vol. 1, p. 439. 1878 v. THE QUEEN. (sect. 90) by which legislation of the Local Legislatures can be vetoed. The relations of the Provinces here is SEVERN different from that which the States bear to the United, States. There Courts alone have power to declare when the States have usurped the higher powers of Congress, whilst here ample power is given to the Dominion Parliament of protecting itself. This Act has now been in operation for several years. It has been contended that it is only one branch of the Parliament that has the right of disallowing the Provincial Acts. I think it will be admitted by all parties here that the Governor General must take the advice of his council when vetoing local Acts. This power of disallowance should be taken into consideration when the policy of the Act is urged against us. The regulation of the sale of all liquor for consumption in the Province, whether manufactured in the Province or not, is of Provincial concern, and the immunity of the person manufacturing in the Province, as part of the Dominion, under the excise regulation of the Inland Revenue Department, no more makes him free of provincial regulations than the person importing liquor under the Customs regulations of another Department. Section 92 of the B. N. A. Act, 1867, confers upon the Legislature of each Province the jurisdiction of making laws so as to exclude the authority of the Parliament of Canada in relation to matters coming within the classes of subjects enumerated in that section, and where the Legislature possesses jurisdiction the Court has no power to review the exercise of it. Where there is jurisdiction the will of the Legislature is omnipotent according to British theory, and knows no superior law in the sense in which the American Courts are accustomed to adjudicate upon constitutional questions. 1878 v. THE QUEEN. See Blackstone (1); Sedgwick Statutory and ConstituSEVERN tional Law (2); De Tocqueville's Democracy in America, Cap. 6; Broom's Constitutional Law (3); Pomeroy's Constitutional Law (4); Story on the Constitution of the U. S. (5); Cooley's Constitutional Limitations (6); and cases commented on in these authorities. The requirement of the license is neither obnoxious as being an indirect mode of taxation, nor as being repugnant to the jurisdiction of the Dominion in the regulation of trade and commerce. The tax here is direct upon the person, and not upon the commodity, with the view of enhancing the selling price thereof to the extent of the tax imposed. See as to nature of tax, Fawcett's Political Economy (7); Baxter on Taxation (8); Bowen's Political Economy (Mass.) (9). The taxing power is also commensurate with, and essential to, the existence of the Government, and this mode of its exercise is not excluded from Provincial jurisdiction. See Marshall, C. J., in Providence Bank and Billings, (10); Mc Culloch and State of Maryland (11); In re Slavin and The Corporation of Orillia (12); Marshall, C. J., in Gibbons v. Ogden (13); Story on the Constitution of the U. S. (14). Now, amongst the matters in which the Provincial Legislature has this exclusive jurisdiction under class 9 are included "shop, saloon, tavern, auctioneer, and other licenses in order to the raising of revenue for provincial, local, or municipal purposes." (1) Blackstone's Comm. by Kerr, Vol. I, p. 36. (2) Pomeroy's Ed. 1874, and cases in note Pp. 404-5. (3) P. 795. (4) Secs. 142, 143,306 and post. (7) Book 4, ch. 3, p. 477. (10) 4 Peters 541, 561-3. |