the legislative council.1 The provisions in the act relating to the speaker, quorum, mode of voting, appropriation and tax bills, money votes, assent to bills, disallowance of acts and signification of pleasure on reserved bills-that is to say, the provisions affecting the parliament of Canada, extend to the legislatures of the several provinces. In accordance with these provisions any bill passed by a legislature of a province may now be disallowed by the dominion government within one year after its passage.2 The lieutenant-governor may also reserve any bill for the "signification of the pleasure of his Excellency the Governor-General," and it cannot go into operation unless official intimation is received, within one year of its having been approved.3

1 See supra p. 102, (British Columbia); p. 101, (Manitoba); also p. 96, n. as to duration of Quebec legislature extended to five years.

2 Ss. 87, 90. Also Manitoba Act, 33 Vict. c. 3, ss. 2, 21; British Columbia, 1872, p. lxxxviii, s. 10; P. E. Island, p. xxii.

See chapter respecting bills in Bourinot's Parl. Practice and Procedure.

CHAPTER X.

DISALLOWANCE OF PROVINCIAL ACTS.

The same powers of disallowance that belonged to the imperial government previously to 1867, with respect to acts passed by colonial legislatures, have been conferred by the British North America Act on the government of the dominion. It is now admitted beyond dispute that the power of confirming or disallowing provincial acts has been vested by law absolutely and exclusively in the governor-general in council. In the first years of the confederation it became, therefore, necessary to settle the course to be pursued in consequence of the large responsibilities devolved on the general

1 Can. Sess. P., 1877, No. 89, pp. 407, 432-34. In the Commons' papers will be found the arguments advanced by Mr. Blake, when minister of justice, to show that the Canadian ministry must be directly and exclusively responsible to the dominion parliament for the action taken by the governor in any and every such case, and that a governor who thinks it necessary that a provincial act should be disallowed, must find ministers who will take the responsibility of advising its disallowance. Ib. (1876) No. 116, pp. 79, 83. Ib. (1877) No. 89, pp. 449-458.

government. As it was considered of importance "that the course of local legislation should be interfered with as little as possible, and the power of disallowance exercised with great caution, and only in cases where the law and general interests of the dominion imperatively demanded it," the minister of justice in 1868 laid down certain principles of procedure, which have been generally followed up to the present time. On the receipt of the acts passed in any province, they are immediately referred to the minister of justice. He thereupon reports those acts which he considers free from objection of any kind, and if his report is approved by the governor in council, such approval is forthwith communicated to the provincial government. He also makes separate reports on those acts which he may consider :

1. As being altogether illegal or unconstitutional. 2. As illegal or unconstitutional in part.

3. As, in cases of concurrent jurisdiction, clashing with the legislation of the general parliament.

4. As affecting the interests of the dominion generally. It has also been the practice, in the case of measures only partially defective, not to disallow the act in the first instance; but, if the general interests permit such a course, to give the local government an opportunity of considering the objections to such legislation and of remedying the defects therein.1

Perhaps no power conferred upon the general government is regarded with greater jealousy and restlessness than this power of disallowing provincial enactments. So far, this power has been exercised in relatively few cases

1 Report of Sir J. A. Macdonald, Can. Sess. P., 1870, No. 35, pp. 6-7.

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out of the large number of acts passed since confederation by the legislatures of the provinces. Nearly 8,000 acts have been passed from 1867 to 1887, inclusive, but not more than 45 altogether have been disallowed. This fact goes to show that the power has been exercised, on the whole, with caution and deliberation. A review, however, of the very voluminous papers relating to this question proves that, whilst but few acts have been disallowed, the legislation has been considered partially objectionable in many cases by the law officers of the dominion; but, in such cases generally, every opportunity has been given to the local governments to remove the objections pointed out by the minister of justice.1

Considerable discussion has arisen, however, in and out of parliament with respect to certain cases of disallowance. The first of these cases was in connection with "An Act for protecting the public interests in rivers and streams" (Ontario Stat., 1881). It appears that one McLaren, a lumberman, constructed certain works on non-floatable streams, of which he claimed to be seized in fee-simple, for the purpose of carrying his logs to their destination. One Caldwell, carrying on the same business higher up than the former, claimed the right to use these streams under the first section of chapter 115, R. S. O., as follows: "All persons may, during the spring, summer and autumn freshets, float saw-logs, and other lumber, rafts and craft down all streams." McLaren obtained an injunction from the court of chancery, restraining Caldwell from making

1 Can. Sess. P., 1882, No. 141, pp. 2-29; Ib. 1886, No. 81.

use of the improvements in question, on the ground that the words "all streams" only referred to those floatable in a state of nature, and that the streams in question were not navigable for saw-logs or other lumber without artificial improvements. Subsequently, in 1881, the legislature of Ontario passed an act re-enacting the section cited above, and at the same time declaring that its provisions shall extend to all streams and all constructions and improvements thereon; and that all persons might make use of such improvements on paying a reasonable toll (to be fixed by the lieutenant-governor in council) to the person who has made these improvements on the streams. An appeal was made to the governor-general in council to disallow the act on the ground that it was unconstitutional, inasmuch as it deprived the petitioner of extensive and important private rights without providing adequate compensation, and as it embodied ex post facto legislation, contrary to all sound principles that should govern in such cases. The minister of justice advised, and the privy council concurred in the advice, that the act be disallowed for these reasons principally: "That the act seems to take away the use of the owner's property and give it to another,

1 The supreme court of Canada, in November, 1882, affirmed the decree of the court of chancery, and reversed the decision of the court of appeal of Ontario to the effect that the R. S. O., c. 115, s. 1, re-enacting C. S. U. C., c. 48, s. 15, made all streams, whether artificially or naturally floatable, public waterways. Can. Law Times, 1882, pp. 90-91. Ib., 1883, p. 346. In 1884 the privy council decided that the judgment of the supreme court should be reversed and that of the court of appeal restored. Leg. News, pp. 195, 203.