forcing the owner practically to become a toll-keeper against his will, if he wished to get any compensation for being thus deprived of his rights. That the power of the local legislatures to take away the rights of one man and vest them in another, as is done in the act, is exceedingly doubtful; that, assuming such a right does in strictness exist, it devolves upon the dominion government to see that such power is not exercised in flagrant violation of private rights and natural justice, especially when, as in this case, in addition to interfering with private rights in the way alluded to, the act over-rides a decision of a court of competent jurisdiction by declaring retrospectively that the law always was, and is, different from that laid down by the court." To this decision strong objection was taken by the government of Ontario, in an elaborate state-paper, in which it is emphatically urged that the governor-general in council should not assume to review any of the provisions of an act passed by the provincial legislature on a subject within its competency under the British North America act. The legislature of Ontaria subsequently re-enacted the act of 1881, which was again disallowed by the government of the dominion.

The act of the Manitoba legislature, incorporating the Winnipeg South-Eastern Railway Company, was disallowed because it conflicted with "the settled policy of the dominion, as evidenced by a clause in the contract with the Canadian Pacific Railway," which was ratified by parliament in the session of 1880-81; which clause is to the effect that "for twenty years from the date hereof

1 Can. Sess. P., 1882, No. 149a. Hans., pp. 876-926.

no line of railway shall be authorized by the dominion parliament to be constructed south of the Canadian Pacific Railway, from any point at or near the Canadian Pacific Railway, except such line as shall run south-west or to the westward of south-west, nor to within fifteen miles of latitude 49." The government of Manitoba contended at the time that the act was "" strictly within the jurisdiction of the legislature of the province." 1

These cases show the large power assumed by the dominion government under the law giving them the right of disallowing provincial enactments. The best

1 Can. Sess. P., 1882, No. 166. The government of Canada has also disallowed the acts of Manitoba to incorporate the Manitoba Tramway Co., to incorporate the Emerson and North-Western RR. Co., and to encourage the building of railways in Manitoba, on the ground also, that they were "in conflict with the settled policy of the dominion government in regard to the direction and limits of railway construction in the territories of the dominion." To this policy the government of the dominion has strictly adhered for years. In 1886 they disallowed the charters granted to the Manitoba Central Railway Company, and to the Rock Lake, Souris Valley & Brandon R.R. Company, and in 1887 those to the Winnipeg and Southern Railway Company and the Red River Valley R. R., in addition to the Emerson & N. W. R.R. Co. and the Manitoba Central R.R., previously disallowed. Can. Sess. P., 1886, No. 81. Can. Gazette, 1887. In 1883 the acts passed by the legislature of British Columbia "to incorporate the Fraser River Railway Company," and "to incorporate the New Westminster Southern Railway Company," were disallowed for the same reasons. Can. Sess. P., 1886, No. 29. Much irritation has been felt in Manitoba on account of this policy, and at this time of writing negotiations are in progress between the dominion and the provincial government on the subject, and it is understood a solution of the difficulty has been reached and the monopoly practically removed.

authorities concur in the wisdom of interfering with provincial legislation only in cases where there is a clear invasion of dominion jurisdiction, or where the vital interests of Canada as a whole imperatively call for such interference. The powers and responsibilities of the general government in this matter have been well set forth by a judicial authority: "There is no doubt of the prerogative right of the Crown to veto any provincial act, and to apply it even to a law over which the provincial legislature has complete jurisdiction. But it is precisely on account of its extraordinary and exceptional character that the exercise of this prerogative will always be a delicate matter. It will always be very dif ficult for the federal government to substitute its opinion instead of that of the legislative assemblies, in regard to matters within their jurisdiction, without exposing itself to be reproached with threatening the independence of the provinces." The injurious consequences that may result in case a province re-enacts a law, are manifest: "probably grave complications would follow." And in any case, "under our system of government, the disallowing of statutes passed by a local legislature after due deliberation, asserting a right to exercise powers which they claim to possess under the British North America Act, will always be considered a harsh exercise of authority, unless in cases of great and manifest necessity, or where the act is so clearly beyond the powers of the local legislature that the propriety of interfering would at once be recognized."1

1 Can. Sup. Court R., vol. 2, Richards C. J., p. 96; Fournier J., p. 131.

CHAPTER XI.

DISTRIBUTION OF LEGISLATIVE POWERS.

In the distribution of the legislative powers entrusted to the general parliament and the local legislatures respectively, the constitution makes such an enumeration as seems well adapted to secure the unity and stability of the dominion and at the same time give every necessary freedom to the several provinces in the management of their local and municipal affairs. In arranging this part of the constitution, its framers had before them the experience of eighty years' working of the federal system of the United States, and were able to judge in what essential and fundamental respects that system appeared to be defective. The doctrine of state sovereignty had been pressed to extreme lengths in the United States, and had formed one of the most powerful arguments of the advocates of secession. This doctrine

1 Sir J. A. Macdonald, Conf. Deb., 1865, p. 32: "I am strongly of opinion that we have in a great measure avoided in this system which we propose for the adoption of the people of Canada, the defects which time and events have shown to exist in the American constitution," &c.

had its origin in the fact that all powers, not expressly conferred upon the general government, are reserved in the constitution to the states. Now, in the federal constitution of Canada the very reverse principle obtains, with the avowed object of strengthening the basis of the confederation, and preventing conflict as far as practicable between the provinces that compose the union.' This constitution emanates from the sovereign authority of the imperial parliament, which has acted in accordance with the wishes of the people of the several provinces, as expressed through the constitutional medium of their respective legislatures. This imperial charter, the emanation of the combined wisdom of the imperial parliament and the subordinate legislatures of the several provinces affected, confers upon the general government the exclusive legislative authority over all matters respecting the public debt, regulation of trade and commerce, postal service, navigation and shipping, Indians, census and statistics, and all other matters of national import and significance. On the other hand the local

1 The 10th art. of the Am. Cons. reads: "The powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." This art. did not appear in the first constitution of 1787, but was agreed to with other amendments by the first congress in 1789, and subsequently ratified by the States. See Smith's Cons., Manual and Digest, 4th ed., published by order of Congress, 1877.

2 Sir J. A. Macdonald, Conf. Deb., 1865, p. 33: "We have thus avoided that great source of weakness which has been the cause of the disruption of the United States. We have avoided all conflict of jurisdiction and authority," etc.

3 B. N. A. Act, 1867, s. 91. See appendix to this work.