fundamental reason for setting apart. one sort of the world's producers from another. We need make no elaborate distinction between public utilities and other commodities; beating the moral drum in the manner of a distinguished. gentleman to the south. A certain kind of producer has a concentrated clientele. As the clientele grows, the producer becomes stronger-so strong that the consumer's freedom to keep a contract no longer than he likes it, appears to be menaced. The clientele, having a greater voting power than the producer, invents the Commission with the object of restoring the former balance. Whether this object is attained in the long run by those who desire it, and whether, if their freedom be protected, the freedom of the producer is not over-looked, are points that have yet to be considered. In the meantime, we have, on this continent, railway and transport commissions, water commissions, telephone and telegraph commissions, gas and electric lighting commissions, inter-state commerce commissions, and public utilities commissions of all sorts; all of them with the avowed object of interfering in contracts.

It may be interesting to consider one or two constitutional points with regard to such commissions in general, and the more particularly certain questions connected with the latest of them and the nearest to ourselves.

These bodies are hard to define. They are amphibioushalf legislature, half Court. In the first of these qualities how far are they constitutionally sound. Does the fact that they are created by legislatures purge them of every taint of the unconstitutionality usually to be suspected where unique machinery is substituted for the normal and healthy law of the land? Can there be any unconstitutionality with us, particularly in this province when the legislature is acting within the confines of its part of the British North America Act?

In Canada, of course, we are in a somewhat different position from that of the United States, where, by Article 1, of the Constitution, sub-section 10, laws impairing the obligation of contracts are forbidden. Article 5, of the Amendment to the Constitution reads partly thus:

"No person shall be . . deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without justification."

Article 14, Section 1, of the Amendment reads:

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nor shall any State deprive any person of life, liberty or property without due process of law.”

Under such principles, the Courts of the United States will interfere with commissions when their acts amount to such flagrant attacks upon the rights of property, under the guise of regulations, as to compel the Court to say that just compensation is being denied for private property taken for public use. The authorities in this connection were considered in the case of the Mayor and Aldermen of the City of Knoxville v. The Knoxville Water Co., 1909, where Mr. Justice Moodie of the Supreme Court of the United States, after discussing them, gave this warning:

"Regulation of public service corporations which perform their duties under conditions of necessary monopoly will occur with greater and greater frequency as time goes It is a delicate and dangerous function, and ought to be exercised with a keen sense of justice on the part of the regulating body, met by a frank disclosure on the part of the company to be regulated. The Courts ought not to bear the whole burden of saving property from confiscation, though they will not be found wanting where the proof is clear. Legislatures and subordinate bodies to whom the legislative power has been delegated, ought to do their part. Our social system rests largely upon the sanctity of private property, and that State or community which seeks to invade it, will soon discover the error in the disaster which follows. The slight gain to the consumer, which he would obtain from a reduction in the rates charged by public service corporations, is as nothing compared with his share in the ruin which would be brought about by denying to private property its just reward, thus unsettling values and destroying confidence."

The fact, however, that such a warning was given, shews that the seemingly precise terms of the American Constitution are capable of being interpreted very elastically. In 1876 it was said in the case of Munn v. Illinois (94 U.S. 113), that

"One who devotes his property to a use in which the public has an interest . . . in effect grants to the public an interest in that use. and must submit to be controlled by the public for the common good to the extent of the interest he has thus created. He may withdraw his grant by

discontinuing the use, but so long as he maintains the use, he must submit to the control."

A dictum such as this, if one carefully considers it, would cover almost any public interference with private property. This was recognised a few years later, when it was declared in one of the inter-state railroad commission cases (116 U.S. 307, 1886) that

"It is not to be inferred that this power limitation or regulation is itself without limit. The power to regulate is not a power to destroy, and limitation is not the equivalent of confiscation."

But where and by what rule the limit is to be drawn beyond which regulation amounts to a denial of the equal protection of the law, or to a taking of property without due process. it seems impossible to say. This was pointed out in the leading case of Smyth v. Ames, 169 U.S. (1898), 466, at p. 522; and again in Buell v. Chicago, Milwaukee & St. Paul Railway Co. (1907), where the Railroad Commission of Wisconsin said:

"The Supreme Court of the United States has not yet given us the benefit of any definite working rule by which we may determine when a rate is confiscatory, and therefore, unconstitutional, and when it is not. From reading the decisions, we can arrive at any of the following conclusions as to when a rate is or is not unlawful, depending upon the decision to which we pin our faith.

"(1) A rate is unlawful unless it enables a carrier to earn its operating expenses and a fair amount of return on its investment.

"(2) A rate is unlawful if it does not permit the earning of operating expenses and some income on the investment, but not necessarily what would be a fair or reasonable income.

"(3) A rate is not unlawful in some instances at least, if it admits of the carrier earning simply its operating expenses without additional revenue."

This is going a long way; and while the same commission in 1906 seemed to reject the third of the foregoing conclusions, yet it cited with approval the case of Covington & Lexington Turnpike Road Co. v. Sandford (1896), 164 U.S. 578, 596 as follows:

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"It is alleged here that the rates prescribed are unreasonable and unjust to the company and its stockholders. But that involves an inquiry as to what is reasonable and just for the public. . . . The public cannot properly be subjected to unreasonable rates in order simply that stockholders may earn dividends. The Legislature has the authority, in every case where its power has not been restricted by contract, to proceed upon the grounds that the public may not rightfully be required to submit to unreasonable exactions for the use of a public highway, established and maintained under legislative authority. If a corporation cannot maintain such a highway, and earn dividends for stockholders, it is a misfortune for it and one which the constitution does not require to be remedied by imposing unjust burdens upon the public."

This is carrying to amazing lengths the doctrine that no man liveth unto himself. While it may be selfish and even stupid of stockholders to expect to earn dividends rather than to contract to carry and to light the public for charity, to give it free heat, free drink, and soon perhaps, free food; one does not find it hard to agree that if a company is to be forced to continue its undertaking, and yet to abandon the sole purpose of its existence, from the company's point of view, it is, indeed, a misfortune.

With ourselves, the doctrine seems to have been developing of late that the legislature is the sole depository of the Constitution; and that the British North America Act simply parcelled out between certain legislative bodies for all time the entire management of our liberties. We are now becoming quite used to the assertion that Parliament can do anything. It is over half a century since that great constitutional critic, "Punch," wrote:

"Sleep, Mr. Speaker, sleep while you may;

"Sleep, Mr. Speaker, Cobbett will soon

"Move to abolish the sun and the moon."

You will observe that there was even at that time a note of protest at such omnipotence. There appears to be none in these more enlightened days.

The whole history of this subject has been very thoroughly considered in the two recent Ontario cases of Smith v. The City of London, and Beardmore v. The City of Toronto. The first is reported in 20 O. L. R. 133; the second in the same volume, p. 505. These two cases have both been

decided upon the same grounds, and have passed through the Courts of Ontario with an unanimous expression in favour of the doctrine of the supremacy of Parliament. Mr. Justice Riddell, in the first of the two cases, made a full examination of the authorities.

After citing a former Chief Justice of England, Sir John Holt, who, in the year 1700, declared that an Act of Parliament can do no wrong, though it may do several things that look pretty odd, Judge Riddell says:

"Sir Edward Coke, who advanced the proposition in Bonham's case, 8 Co. 118 (a) that the common law will control Acts of Parliament, and sometimes adjudge them to be utterly void,' was properly rebuked by Lord Ellesmere (see note in Thomas & Fraser's edition of Co. Rep. vol. 4, pp. 376, 377)."

He continues:

"There is consequently nothing more than the veriest legal commonplace in the description given of the powers of the legislature in the case of the Florence Mining Co. v. The Cobalt Lake Mining Co. (1908), 18 O. L. R. 275, at p. 279; in short, the legislature, within its jurisdiction, can do everything that is not naturally impossible, and is restrained by no rule, human or divine."

Our Court of Appeal, as everyone knows, affirmed this principle in the recent case of The Travellers Insurance Co. v. The Travellers Life Assurance Co. of Canada.

And yet, it is doubtful whether the point may not be further considered. Owing to its nature, this phase of the Travellers case could not be taken to appeal, and in it, moreover, the issue could not be presented as neatly as is desirable. In that case too, it may be well to remember that the Court divided 3 to 2, and the Chief Justice of the Court declared:

"It is an error to claim that the Parliament of Canada is omnipotent. There is no omnipotent authority in the world.

There is no authority in the country which does not come within the scope of the Courts. The protection afforded by the Courts is the most efficient protection against every form of tyranny."

Such a declaration cannot be brushed aside. You may have Democracy without a Parliament, and tyranny with one and through one. Government, after all, is a compromise between force and tact; a compromise in the mutual