tric lighting company,16 and the Manitoba Shops Regulation Act.17 Inasmuch as the regulation of insolvency is, by the British North America Act, granted to the Dominion Parliament, certain sections of local insolvent acts have been declared void.18 A provincial act which authorized police magistrates to try and convict persons charged with forgery 19 and a statute imposing stamps upon law proceedings 20 were declared ultra vires as interfering with the Dominion power over criminal matters. Because of the Dominion and Imperial authority to control foreign affairs a provision which purported to prohibit the admission of Japanese as provincial voters 21 and an act intended to prohibit the employment of Chinamen in coal mines were invalidated.

22

In accordance with the American theory of the separation of powers and in an opinion approving this theory and citing cases from American courts it was held that the appointment of the days on which the court should sit is a matter of procedure and of purely judicial cognizance, and is not within the power of the local legislature.23 A subject on which many controversies have arisen and on which there has been much litigation is the matter of liquor legislation. Just as in the United States, it was originally thought that a kind of concurrent jurisdiction might be exercised on this subject. The courts have denied, however, to the local legislature the power to pass a law prohibiting the manufacture or sale of spirituous liquors.24

One of the most prolonged and most interesting controversies is that with reference to the power of the provincial legislature to tax the salaries of Dominion officials. In a very important decision the

16 Ottawa Electric Co. v. Hull Electric Co., 10 Queb. Sup. Ct. Rep. 34 (1899); cf. also 17 Queb. Sup. Ct. Rep. 420 (1908).

17 Stark v. Schuster, 14 Man. Rep. 672 (1904).

18 McLeod v. Wright, 17 New Bruns. Rep. 68 (1877); In re Assignments and Preferences Act, 20 Ont. App. Rep. 489 (1893).

19 Regina v. Toland, 22 Ont. Rep. 505 (1892).

20 Dulmage v. Douglas, 4 Man. Rep. 495 (1887).

21 Re Provincial Elections Act, 8 Brit. Col. 76 (1901).

22 Re Coal Mines Regulation Act, 10 Brit. Col. 408 (1904).

23 The Thrasher Case, 1 Brit. Col. 153 (1882).

24 Regina v. Justices of Kings, 15 New Bruns. Rep. 535 (1875); cf. also In re Local Option Act, 18 Ont. App. Rep. 572 (1891) and In re The Liquor Act, 13 Man. Rep. 239 (1901), wherein local legislatures were prohibited from permitting municipalities to pass by-laws in the nature of prohibition acts.

Supreme Court of Ontario, following the decision of Marshall in the case of McCulloch v. Maryland, approved the American doctrine of implied prohibitions and held that the local legislature could not levy such a tax because such taxation might interfere with the powers given to the federal authorities by the British North America Act.25 This decision was followed and approved in the provinces of New Brunswick 26 and British Columbia.27 On an appeal to the Privy Council of a similar decision from Australia,28 the Council reversed the Australian Court and announced the decision that the doctrine of implied prohibitions as accepted and followed in the United States could not be held to apply to the public law of the self-governing colonies.29 When the same issue was presented to the Supreme Court of Canada the justices followed the judgment and reasoning of the Privy Council and reversed the Leprohon and other provincial decisions.30 Thus for Canada the doctrine of implied prohibitions has been definitely rejected at least so far as the federal government is concerned.31

Dominion acts may likewise be held ultra vires by provincial courts. Though seldom called upon to perform this function, there are sufficient instances to show that the lower courts do not decline when occasion arises to assert the right to refuse the enforcement of Dominion acts. In Queen v. The Mayor of Fredericton 32 and Regina v. Bittle,33 sections of the Canada Temperance Act of 1878 were held invalid. A section of an act providing for the return of certain immigrants to the country whence they came was held void by the Ontario Court of Appeals 34 and provisions of an act of the Dominion for the reception in evidence of certified copies of documents and records in the Dominion land office were invalidated by

25 Leprohon v. Ottawa, 2 Ont. App. Rep. 522 (1877).

26 Ex parte Owen, 20 New Bruns. Rep. 487 (1881) and Ex parte Burke, 34 New Bruns. Rep. 200 (1896).

27 Regina v. Bowell, 4 Brit. Col. 498 (1896).

28 Deakin v. Webb, 1 Com. L. Rep. 585 (1904).

29 Webb v. Outrim, [1907] A. C. 81.

30 Abbott v. City of St. John, 40 Sup. Ct. Rep. 597 (1908).

31 Cf. Deakin v. Webb, 1 Com. L. Rep. 585 (1904) and Commissioners of Taxation v. Baxter, 4 Com. L. Rep. 1087 (1907) for a discussion of the application of the doctrine of implied prohibitions in Australia. These and other Australian cases will be discussed in a subsequent article on judicial review of legislation in Australia.

the Manitoba Supreme Court.35 Similarly a provincial court denied the authority of the Governor in Council to establish a ferry on the St. John River.36

2. Control by Dominion Courts; (a) Over Provincial Acts. The Supreme Court of Canada has defended the right of the federal government in its control over commerce by prohibiting the legislature of a province from granting exclusive rights of fishing as to the open sea within a marine league of the coast.37 On similar grounds the provincial legislature was denied power to enact legislation authorizing the construction and operation of railways in such a manner as to interfere with the physical structure or with the operation of railways subject to the jurisdiction of the Parliament of Canada.38 The authority to prohibit the sale of intoxicating liquors is also withheld from the provincial legislatures.39 An attempt on the part of the Ontario legislature to prevent appeal to the Supreme Court of the Dominion in cases where the amount in controversy is under $1000 was declared ultra vires.40 At other times the provincial legislatures were not allowed to permit the operation of lotteries 41 or to prohibit the performance of work on Sunday.42

(b) Over Dominion Acts. There are but few cases in which Dominion acts are held invalid. Among the statutes nullified by the Supreme Court are certain provisions in so far as they attempt to confer exclusive rights of fishing in provincial waters; 43 sections of the insurance act in so far as they purport to affect companies incorporated by one of the provinces and carrying on business exclusively in such province; 4 and the provisions of the section of an act assuming to authorize references by the Governor-General

35 McKilligan v. Machar, 3 Man. Rep. 418 (1886).

36 Ex parte Dufour, 32 New Bruns. Rep. 357 (1893).

37 Attorney-General of Brit. Col. v. Attorney-General of Canada, 15 Dom. L. Rep. 308 (1913).

38 In re Legislation Respecting Railways, 48 Sup. Ct. Rep. 9 (1913).

39 Severn v. The Queen, 2 Sup. Ct. Rep. 70 (1877). Cf. also In re Prohibitory Liquor Laws, 24 Sup. Ct. Rep. 170 (1894).

40 Clarkson v. Ryan, 17 Sup. Ct. Rep. 251 (1890).

L'Assn. St. Jean Baptiste de Montreal v. Brault, 30 Sup. Ct. Rep. 598 (1900).

42 In re Legislation Respecting Labor on Sunday, 35 Sup. Ct. Rep. 581 (1905). 43 In re Provincial Fisheries, 26 Sup. Ct. Rep. 444 (1895).

In re Insurance Act, 15 Dom. L. Rep. 251 (1913).

in council to the judges of the Supreme Court for their opinions in respect to matters within provincial legislative jurisdiction.“

It is not only the power to say what shall not be law but also the authority to declare that legislative acts are within the competence of one or other jurisdiction which gives the courts their power over the legislative department. The many cases in which legislative power of one branch or other is approved are passed over and those are simply recorded in which through the judgment of a court the act or a portion thereof is rendered void and of no effect. Only a few of the acts thus invalidated can be given in the brief compass of a short article. Nor is it possible to follow the separate decisions here cited through their course in the higher courts in which some have been reversed, some modified in their effect and others approved substantially as decided in the lower jurisdiction. No attempt is made herein to present the nature and status of constitutional law in Canada; it is rather the purpose to show by concrete instances wherein the courts change or check the legislative will. The final jurisdiction in which the acts of Canadian legislatures may be invalidated is the Judicial Committee of the Privy Council.46

3. Control by Judgments of the Privy Council. The Privy Council is the tribunal to which questions of competence may ultimately be appealed. Cases may be carried directly from the province to the Judicial Committee or may be taken in rare cases from the decision of the highest court of Canada to the Privy Council. No matter how cases reach this court it is generally conceded that the authoritative exposition of the British North America Act rests with this Imperial tribunal.

45 In re References, 43 Sup. Ct. Rep. 536 (1910).

46 "A cause appealed to Ottawa cannot be appealed subsequently to London without the consent of the Privy Council, and this consent is given so seldom as to be practically negligible." Harley, 12 MICH. L. REV. 343; cf. “Our Court of Final Appeals," 48 CAN. L. J., in which it is observed: “As a matter of fact our Supreme Court is often skipped in the course of appeal. Decisions such as that rendered by the Judicial Committee of the Privy Council as to the implementing of the bond guarantee provision of the Dominion Government's agreement with the Grand Trunk Pacific Railway Company; such as that given the other day against the municipal corporation of Winnipeg and in favour of the Winnipeg Electric Railway Company; and such as that in favour of the Toronto Railway Company in the matter of rights upon our streets, have a strong influence to make our Legislatures study, as carefully as the British Parliament does so to draft their measures as to put the intention beyond controversy." (Pp. 205, 206.)

By this court the Quebec Act, which imposed a duty of ten cents upon every exhibit filed in court in any action pending therein, was held ultra vires.47 The Ontario Act of 1892, in so far as it aimed to control the manner of fishing, was held ultra vires on the ground that fishing regulations and restrictions are within the exclusive competence of the Dominion.48 Likewise the British Columbia Coal Mines Regulation Act, which prohibits Chinamen of full age from employment in underground coal workings, was in that respect declared ultra vires; 49 the provision of the British Columbia Cattle Protection Act, requiring that a Dominion railway company, unless they erect proper fences on their railway, shall be responsible for cattle injured or killed thereon, was also invalidated; 50 an act of Ontario to prevent the profanation of the Lord's Day was held void because an infraction of the act was made an offence against the criminal law, which was held to have been reserved for the exclusive authority of the Dominion Parliament; and it was considered ultra vires for the legislature of Ontario to tax property not within the Province.51

Not only does the Committee check the legislative vagaries of the provinces, but it also sits in judgment upon the interpretation placed upon the British North America Act by the Supreme Court of Canada. That the Committee is disposed to exercise a will of its own is shown in the reversal of the highest court of the Dominion relative to the right of the executive to require answers from the justices on questions both of law and fact. Despite provincial and Dominion decisions to the contrary the Council held it not ultra vires for the executive government of the Dominion to request answers from the Supreme Court.52

4. Fundamental Principles Laid Down by Privy Council. By far the most important function of the Privy Council as a court of final review lies in the formulation of general principles of interpretation for the Canadian government rather than in the reversal

47 Attorney-General for Quebec v. Reed, 10 App. Cas. 141 (1884).

48 Attorney-General for Dom. of Can. v. Attorney-General for Provinces of O., Q., and N. S., [1898] A. C. 700.

49 Union Colliery Co. v. Bryden, [1899] A. C. 580.

50 Madden v. Nelson & Fort Sheppard Ry., [1899] A. C. 626.

51 Woodruff v. Attorney-General for Ontario, [1908] A. C. 508.

52 Attorney-General for Ontario v. Attorney-General for Dom. of Can., [1912] A. C. 571; cf. LEFROY, CANADA'S FEDERAL SYSTEM, 672.