sisted between the Central and State Governments, and held that it would be contrary to the character of the Federal Union to permit State legislation of a character that would impair in any way the effective execution of the general powers which had been entrusted to the central authority. In that case it was unnecessary to consider pointedly the power to tax officers of the United States upon their income, but the principles laid down were quite enough, in my opinion, to extend to such a case. In subsequent cases they were held so to extend. In the case of Dobbins v. Commissioners of Erie County (1), to which I was also referred by Mr. Cockburn, the question was raised expressly. There the Supreme Court of Pennsylvania held that a law was constitutional by which the State had assumed to tax an officer of the United States. The question, therefore, was raised directly and pointedly before the Supreme Court. It was held that upon the reasoning of the case in 4 Wheaton, and upon the legitimate extension of its principles, such a law was unconstitutional. I cannot do better than refer to the language which was used by the learned judge who pronounced the unanimous opinion of the Court in that case. After pointing out the inanimate objects, the use of which the Constitution contemplated, and the management of which had been entrusted to the central authority, such as ships of war, which were the means of carrying out the object of the Central Government and could not be taxed by the State, he proceeded, at page 448 : "Is not the officer more so who gives use and efficacy to the whole? Is not compensation the means by which his services are procured and retained? It is true it becomes his when he has earned it. If it can be taxed by a State as compensation, will not Congress have to graduate its amount with reference to its reduction by the tax? Could Congress use an uncontrolled discretion, in fixing the amount of compensation, as it would do without the interference of such a tax? The execution of a national power by way of compensation to officers can in no way be subordinate to the action of the State Legislatures upon the same subject. It would destroy also all uniformity of compensation for the same service, as the taxes by the States would be different." Now, the reasoning employed in that case is precisely applicable to that on which I am giving my opinion. Without expressing dissent from these views, and without, so to speak, overruling the case, I could not come to any other conclusion. Our circumstances, (1) 16 Peters, 435. it appears to me, sufficiently resemble the circumstances that existed in these cases to render the principles entirely applicable. There is but one other case to which I shall refer, The Collector v. Day (1). In that case Mr. Justice Nelson said: "It is conceded in the case of McCulloch v. Maryland, that the power of taxation by the States was not abridged by the grant of a similar power to the Government of the Union; that it was retained by the States, and that the power is to be concurrently exercised by the two Governments; and also that there is no express constitutional prohibition upon the States against taxing the means or instrumentalities of the General Government. But it was held, and we agree properly held, to be prohibited by necessary implication; otherwise the States might impose taxation to an extent that would impair, if not wholly defeat, the operations of the Federal authorities when acting in their appropriate sphere. "These views, we think, abundantly establish the soundness of the decision of the case of Dobbins v. Commissioners of Erie, which determined that the States were prohibited, upon a proper con struction of the Constitution, from taxing the salary or emoluments of an officer of the Government of the United States. And we shall now proceed to shew that upon the same construction of that instrument, and for like reasons, that Government is prohibited from taxing the salary of the judicial officer of a State. "It is a familiar rule of construction of the Constitution of the Union, that the sovereign powers vested in the State Governments by their respective Constitutions remained unaltered and unimpaired, except so far as they were granted to the Government of the United States." In this case the central authority, in the exercise of its appropriate functions, appointed the plaintiff to a position of emolument. In the exercise of its proper powers it assigned to him a certain emolument. This emolument the plaintiff is entitled to receive for the discharge of duties for which the Central Government is bound to provide. I do not find in the B. N. A. Act that there is any express constitutional prohibition against the Local Legislatures taxing such a salary, but I think that upon the principles thus summarized in the case which I have just cited, there is necessarily an implication that such power is not vested in the Local Legislature. I therefore, in accordance with these views which I have just imperfectly expressed, have thought it right to enter a verdict for the plaintiff, and I think he should have a certificate to entitle him to full costs. (1) 11 Wallace, 113, 123. 1877 ނ LEPROHON v. CITY OF OTTAWA. Q.B., Ontario. Moss, J. 1871. February. ONTARIO COURT OF QUEEN'S BENCH. REGINA v. BOARDMAN. [Reported 30 U. C. Q. B., 553.] Tavern and shop licenses-B. N. A. Act, s. 91, sub-s. 27; s. 92, sub-ss. 9, 15, 16—Criminal law. The Legislature of Ontario having passed an Act to regulate tavern and shop licenses : Held, that they had power to enact that any person who, having violated any of the provisions of the Act, should compromise the offence, and any person who should be a party to such compromise should on conviction be imprisoned in the common gaol for three months; and that such enactment was not opposed to sec. 91, sub-s. 27, of the B. N. A. Act, by which criminal law is assigned exclusively to the Dominion Parliament. The prisoner had complained of one George Lindsay for selling ale by retail without having obtained a license authorizing him to do so, and he compromised the matter with Lindsay by receiving $20, and a further sum of $5 for expenses. The chief constable of the city of Toronto made a complaint against Boardman for compromising, settling, and compounding the said offence, with a view of stopping or having the same dismissed for want of prosecution, on which the prisoner was convicted, and sentenced to three months' imprisonment in the common gaol. The prisoner having been brought up by habeas corpus, Mr. Harrison, Q.C., moved for his discharge out of custody, on the ground that the Local Legislature of the Province of Ontario had no power, in passing an Act to regulate tavern and shop licenses-32 Vict. c. 32-to declare, 1871 REGINA v. STATEMENT. under sec. 32, that "Any person who, having violated any of the provisions of this Act, shall compromise, compound, or settle, or shall offer or attempt to compro- BOARDMAN. mise, compound, or settle the offence with any person or persons, with the view of preventing any complaint being made in respect thereof, or if a complaint shall have been made with the view of getting rid of such complaint, or of stopping or having the same dismissed for want of prosecution or otherwise, shall be guilty of an offence under this Act, and, on conviction thereof, shall be imprisoned at hard labour in the common gaol of the county in which the offence was committed for the period of three calendar months." Section 33: "Every person who shall be concerned in or be a party to the compromise, composition, or settlement mentioned in the next preceding section, shall be guilty of an offence under this Act, and, on conviction thereof, shall be imprisoned in the common gaol of the county in which the offence was committed, for the period of three calendar months." Mr. Scott, on behalf of the Attorney-General, shewed cause against the discharge of the defendant, and contended that the other provisions of the 32 Vict. c. 32, being clearly within the authority given to the Ontario Legislature, under the B. N. A. Act, 1867, s. 92, sub-ss. 9 and 16, they had power, by sub-s. 15, for the purpose of enforcing such provisions, to pass the clauses complained of. Mr. Harrison, Q.C., contra, urged that the effect of sec. 32 being to create an offence punishable by hard labour, in other words, a crime, it was an enactment relating to the criminal law, a subject exclusively assigned to the Dominion Parliament, and therefore beyond the power of the Local Legislature. He cited In re Lucas and 1871 REGINA 2'. BOARDMAN. ARGUMENT. McGlashan (1), and the cases there referred to; Butt v. The judgment of the Court (Richards, C. J., and Morrison and Wilson, JJ.,) was delivered by RICHARDS, C. J.:— By the B. N. A. Act, 1867, sec. 91, the Dominion Parliament has power to make laws for the peace, order and good government of Canada, in relation to all matters not coming within the classes of subjects by that Act assigned exclusively to the Legislatures of the Provinces ; and for greater certainty, but not so as to restrict the generality of the terms in the section, it was declared that, notwithstanding anything in that Act, "the exclusive legislative authority of the Parliament of Canada extends to all matters coming within the classes of subjects next hereinafter enumerated," and amongst them, No. 27, "The criminal law, except the constitution of courts of criminal jurisdiction, but including the procedure in criminal matters." Under the head of "Exclusive Powers of Provincial Legislatures," by sec. 92 it is provided, that in each Province the Legislatures may exclusively make laws in relation to matters coming within the classes of subjects next thereinafter enumerated, and amongst other things, No. 9, "Shop, saloon, tavern, auctioneer, and other licenses, in order to the raising of a revenue for Provincial, local, or municipal purposes." And, No. 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." And, 16, "Generally (1) 29 U. C. Q. B. 81. (3) 17 U. C. C. P. 534. |