2

1

legislatures may exclusively make laws in relation to municipal institutions, management and sale of public lands belonging to the province, incorporation of companies with provincial objects, property and civil rights in the province, and "generally all matters of a merely local or private nature in the province." The provincial legislatures have also exclusive powers of legislation in educational matters, subject only to the right of the dominion parliament to make remedial laws under certain circumstances. The object of this provision is to secure, as far as practicable, by statute, to a religious minority of a province, the same rights, privileges and protection which it may have enjoyed at the time of the union. The local legislatures may, however, legislate as to separate schools, provided that the legislation be not. such as prejudicially affects the rights or privileges theretofore possessed by such schools, and they may pass laws interfering with unimportant matters such as the election of trustees, or the every-day detail of the working of such schools, as settled by statute prior to confederation. The general parliament and local legislatures have also concurrent powers of legislation respecting

3

4

1 B. N. A. Act, s. 92.

2 Sec. 93.

3 See New Brunswick School Law Controversy. Todd, Parl. Gov. in the Colonies, pp. 346-352, Can. Sess. P. 1877, No. 89. A reference to the correspondence on this vexed question clearly shows that both the imperial and dominion authorities concurred in the view that it is not proper for the federal authority to attempt to interfere with the details or accessories of a measure of the local legislature, the principles and objects of which are entirely within its competency.

Board of School Trustees vs. Granger et al., 25 Grant, Ch. 570.

REESE LIBRARY

OF THE

UNIVERSITY

CALL

2

agriculture and immigration, provided the provincial law is not repugnant to any Act of the parliament of Canada. The powers of the provincial governments are distinctly specified in the Act of Union, whereas those of the general government cover the whole ground of legislation not so expressly reserved to the provincial authorities. The dominion government is authorized in express terms "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 this act assigned exclusively to the legislatures of the provinces"; and in addition to this specific provision it is enacted that "any matter coming within any of the classes of subjects enumerated in the section (that is, the 91st respecting the powers of the general parliament) shall not be deemed to come within the class of matters of a local or private nature comprised in the enumeration of the classes of subjects assigned exclusively to the legislatures of the provinces."

3

It must necessarily happen that, from time to time, in the operation of a written constitution like that of Can

1 B. N. A. Act, s. 95.

"The government of the United States is one of enumerated powers, and the governments of the States possess all the general powers of legislation. Here (in Canada) we have the exact opposite. The powers of the provincial governments are enumerated, and the dominion government possesses the general powers of legislation." Ritchie C. J., Can. Sup. Court R., 13th April, 1880, vol. iii., p. 536.

3 See infra, p. 136. Judgment of privy council re "Canada Temperance Act," showing the large powers given to the dominion government by this provision of the B. N. A. Act, 1867.

ada, doubts will arise as to the jurisdiction of the general government and local legislatures over such matters as are not very clearly defined in the sections enumerating the powers of the respective legislative authorities. No grave difficulty should arise in arriving sooner or later, as a rule, at a satisfactory solution by means of the deci- . sions of the judicial committee of the privy council, and of the higher courts of the dominion. An act establishing a supreme court for Canada was passed in the session of 1875, in accordance with the 101st section of the British North America Act, 1867, which provides "for the constitution, maintenance and organization of a general court of appeal for Canada.' This court has an appellate jurisdiction in cases of controverted elections, and may examine and report upon any private bill or petition for the same. The governor in council may refer any matter to this court for an opinion. also have jurisdiction in cases of controversies between the dominion and the provinces, and between the provinces themselves, on condition that the legislature of a province shall pass an act agreeing to such jurisdiction."

" 1

It shall

Many important cases of doubt as to the construction to be placed on the 91st and 92nd sections of the British North America Act, 1867, have already been referred to

1 38 Vict., c. 11. Lord Durham, in his report (p. 123), recommended the establishment of a "Supreme Court of Appeal for all the North American colonies." The provincial courts have equal power to declare any Canadian statute unconstitutional; the supreme court is the court of appeal for all the provinces of the dominion.

2 Ss. 52, 53, 54. The legislature of Ontario in 1877 passed 40 Vict., c. 5, authorizing such references.

the privy council and to the supreme court of the dominion. Already in Canada, as in the United States, a large amount of constitutional learning and research is being brought every year to the consideration of the perplexing questions that must unavoidably arise in the interpretation of a written constitution. It will be probably useful to cite some of the more important decisions given by the high tribunals just mentioned, with the view of showing the conclusions they have formed with respect to the legislative powers of the dominion parlia ment.

CHAPTER XII.

DECISIONS OF THE PRIVY COUNCIL OF ENGLAND AND OF THE SUPREME COURT OF CANADA ON QUESTIONS

OF LEGISLATIVE JURISDICTION.

In 1874, the dominion parliament passed an act imposing on the judges of the superior courts of the provinces the duty of trying controverted elections of members of the House of Commons.1 The question was raised in the courts, whether the act contravenes that particular provision of the 92nd section of the B. N. A. Act, which exclusively assigns to the provincial legislatures the power of legislating for the administration of justice in the provinces, including the constitution, maintenance and organization of provincial courts of civil and criminal jurisdiction, and including procedure in civil (not in criminal) matters in those courts. The question came at last before the supreme court of Canada, which, constituted as a full court of four judges, unanimously held:

That whether the act established a dominion court or not, the dominion parliament had a perfect right to give

1 "The Dominion Controverted Elections Act, 1874 "; 37 Vict.

c. 10.