It has been likewise very strongly urged that the Dominion Parliament cannot have the right to prohibit the sale of intoxicating liquors as a beverage, because to do so would interfere with the right of the Local Legislatures to grant licenses and to deal with property and civil rights and matters of a purely local character, and, so with the right of the Local Legislatures to raise a revenue by means of shop and tavern licenses. I fail to appreciate the force of this objection. If substantial, it would prohibit to a great extent the Dominion Parliament from legislating in respect to that large branch of trade and commerce carried on in intoxicating beverages, and so take away the full right to regulate alike foreign and internal commerce. If they cannot prohibit the internal traffic because it prevents the Local Legislatures from raising a revenue by licensing shops and taverns, the same result would be produced if the Dominion Parliament prohibited its importation or manufacture. For by the same process of reason it must follow that they could not prohibit its importation or manufacture, or in any way regulate the traffic, whereby the sale or traffic should be injuriously affected and so the value of licenses be depreciated or destroyed. In my opinion, if the Dominion Parliament, in the exercise of and within its legitimate and undoubted right to regulate trade and commerce, adopt such regulations as in their practical operation conflict or interfere with the beneficial operation of Local Legislation, then the law of the Local Legislature must yield to the Dominion law, because matters coming within the subjects enumerated as confided to Parliament are not to be deemed to come within the matters of a local nature comprised in the enumeration of subjects assigned to the Local Legislatures; in other words, the right to regulate trade and commerce is not to be overridden by any Local Legislation in reference to any subject over which power is given to the Local Legislature. A case, precisely analogous in principle to this, is to be found in the Reports of the United States Supreme Court, License Tax Cases, 5 Wall. 462, where the State Legislature had the control of the internal commerce, and the Federal Government the right to raise a revenue by licenses, while, here the Dominion Government have the control of the internal trade and commerce, and the Local Legislatures the right of raising a revenue by granting licenses. It was not doubted that where Congress possessed constitutional power to regulate trade and commerce, it might regulate it by means of licenses, and in case of such a regulation a license would give authority to the licensee to do whatever its terms authorized, but that very different considerations applied to the internal commerce or domestic trade of the States, over which Congress had no power to regu late, nor any direct control, but the power belonged exclusively to the States. There the power to authorize a business within the State was held plainly repugnant to the exclusive power of the State over the same subject. So here, over trade and commerce the Local Legislature have no power of regulation nor any direct control, and therefore the power of the Local Legislature to authorize a business is equally repugnant to the power of the Dominion Parliament over the same subject; and therefore, while Congress had the power to tax, it was held to reach only existing subjects, and could not authorize a trade or business within a State, in order to tax it; that if the licenses were to be regarded as giving authority to carry on the branches of business which they license, it would be difficult, if not impossible, to reconcile the granting of them with the constitution. But it was held that it was not necessary to regard the laws as giving such authority, that, so far as they related to trade within State limits, they gave none and could give none. If this same principle is applied here, the right of the Local Legislatures to tax by means of licenses gave the licensees no authority to exercise trade or carry on business prohibited by the Dominion Parliament which has the control of trade and commerce. I think it equally clear that the Local Legislatures have not the power to prohibit; the Dominion Parliament having not only the general powers of legislation, but also the sole power of regulating as well internal as external trade and commerce, and of imposing duties of customs and excise; and having by law authorized the importation and manufacture of alcoholic liquors, and exacted such duties thereon, and so far legalized the trade and traffic therein, to allow the Local Legislatures-under pretence of police regulation, on general grounds of public policy and utility-by prohibitory laws to annihilate such trade and traffic, and practically deprive the Dominion Parliament of a branch of trade and commerce from which so large a part of the public revenue was at the time of confederation raised in all the Provinces-and has since been in the Dominion-never could have been contemplated by the framers of the B. N. A. Act. It is, in my opinion, in direct conflict with the powers of Parliament, as well over trade and commerce, as with their right to raise a revenue by duties of import and excise. When I had the honor to be Chief Justice of New Brunswick, the question of the right of the Local Legislatures to pass laws prohibiting the sale or traffic in intoxicating liquors came squarely before the Supreme Court of that Province, and that Court, in the case of Regina v. Subjects of exclusive provin Justices of King's County, 2 Pugs. 535, unanimously held that under the B. N. A. Act, the Local Legislature had no power or authority to prohibit the sale of intoxicating liquors, and declared the Act passed with that intent ultra vires, and therefore unconstitutional. I have carefully reconsidered the judgment then pronounced, and I have not had the least doubt raised in my mind as to the soundness of the conclusion at which the Court arrived on that occasion. I then thought the Local Legislature had not the power to prohibit. I think the same now. I then thought the power belonged to the Dominion Parliament, I think so still, and therefore am constrained to allow this appeal. Exclusive Powers of Provincial Legislatures. 92. In each Province the Legislature may exclusively cial legislation. make Laws in relation to Matters coming within the Classes of Subjects next herein-after enumerated; that is to say, 1. The Amendment from time to time, notwithstanding anything in this Act, of the Constitution of the Province, except as regards the Office of Lieutenant Governor. 2. Direct Taxation within the Province in order to the raising of a Revenue for Provincial purposes. 3. The Borrowing of Money on the sole credit of the Province. 4. The Establishment and Tenure of Provincial Offices and the Appointment and Payment of Provincial Officers. 5. The Management and Sale of the Public Lands belonging to the Province, and of the Timber and Wood thereon. 6. The Establishment, Maintenance, and Management of Public and Reformatory Prisons in and for the Province. 7. The Establishment, Maintenance, and Management of Hospitals, Asylums, Charities, and Eleemosynary Institutions in and for the Province, other than Marine Hospitals. 8. Municipal Institutions in the Province. 9. Shop, Saloon, Tavern, Auctioneer, and other Licenses in order to the raising of a Revenue for Provincial, Local, or Municipal purposes. 10. Local Works and Undertakings other than such as are of the following Classes: a. Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the limits of the Province: b. Lines of Steam Ships between the Province and any British or Foreign Country: c. Such Works as, although wholly situate within the Province, are before or after their Execution declared by the Parliament of CANADA to be for the general Advantage of CANADA, or for the Advantage of Two or more of the Provinces. 11. The Incorporation of Companies with Provincial Objects. 12. The Solemnization of Marriage in the Province. 14. The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal jurisdiction, and including Procedure in Civil Matters in those Courts. 15. The Imposition of Punishment by Fine, Penalty, or Imprisonment for enforcing any Law of the Province made in relation to any Matter coming within any of the Classes of Subjects enumerated in this Section. 16. Generally all Matters of a merely Local or Private Nature in the Province. § 1. The Amendment, &c., of the Constitution, &c. The Legislatures of the Provinces of Manitoba and British Columbia now consist of only one House, the Upper House having been abolished in each Province under the powers conferred by this section. § 2. Direct taxation within the Province in order to, &c. Angers, pro Regina and The Queen Insurance Co., Held, by Superior Court, Montreal, Torrance, J., affirmed by Queen's Bench, Montreal, and confirmed by the Jud. Com. of the Privy Council (21 L. C. J. 77; 22 L. C. J. 307; 16 C. L. J. 198; 3 L. R. App. Cases 1090): That 39 Vic. c. 7, Quebec, entitled "An Act to compel assurers to take out a License," obliging every assurer in the Province, other than a marine assurer exclusively, to take out a license every year, the price of such license to consist in the payment of three per cent. as to assurance against fire, and of one per cent. as to other assurances, for each hundred dollars or fraction thereof on all premiums or renewals of premiums received, was ultra vires, as being an indirect mode of taxation and an attempt to regulate trade. In the Q. B.,-Sir A. A. Dorion, C. J., said: I concur in the judgment on the following grounds: The Local Legislature has the right to impose direct taxes and to grant licenses as a means of raising revenue for Provincial and municipal purposes. Now the charge imposed is clearly an indirect tax. It is not imposed on the Insurance Co. itself, but upon the business which it is doing —that is, the insurer is obliged to place a stamp on every policy issued, according to the amount of such policy. It is as much an indirect tax as the taxes of excise or of customs. They are not intended to be paid by the insurer, but to be paid by the insured, whoever they may be. This case must be brought under the provisions allowing the Local Legislatures to grant licenses. I am not prepared to state that the Local Legislatures have not the right to grant licenses to insurance companies, to banks, &c. ; but if the Legislatures have that right they must do it in such form as not to violate one of the restrictions of the Confederation Act, which does not authorize them to impose indirect taxes. The Local Legislatures are authorized to grant licenses and to raise revenue on such licenses as were usually granted. Now, there was not, at the time the Confederation Act was passed, a single license granted on which the payment or fee was laid on the amount of business done. All licenses granted were for a fixed sum. This view was carried so far that in the Act to regulate the business of auctioneers, each auctioneer had to pay a fixed sum, which represented the price of the license, and another sum of 1 per cent, on the price of the goods sold, this last sum to be added to the price of the goods sold. The duty imposed by the Local Legislature is not therefore a license fee, such as was known in this country at the time of the Confederation Act. I therefore find that although in form a license appears to have been granted, in substance, it is an indirect tax which has been imposed. |