In the opinion of the privy council, this provision contains a distinct declaration by the dominion parlia ment that each of the provinces had exclusive legislative control over the insurance companies incorporated by it; and therefore is an acknowledgment that such control was not deemed to be an infringement of the power of the dominion parliament as to "the regulation of trade and commerce." The privy council add that "the declarations of the dominion parliament are not, of course, conclusive upon the construction of the British North America Act; but when the proper construction of the language used in that act to dofine the distribution of legislative powers is doubtful, the interpretation put upon it by the dominion parliament in its actual legislation may properly be considered."

In this connection it is necessary to refer to the fact that certain legislation in the province of Quebec affecting insurance companies has been declared beyond the competency of the local legislature. The act in question (39 Vict., chap. 7) imposed a tax upon the policies of such insurance companies as were doing business within the province. The statute enacts: That every assurer carrying on any business of assurance, other than that of marine assurance exclusively, shall be bound to take out a license in each year, and that the price of such license shali consist in the payment to the Crown for the use of the province at the time of the issue of any policy, or making or delivery of each premium, receipt, or renewal, of certain percentages on the amount received as premium on renewal of assurance, such pay. ments to be made by means of adhesive stamps to be affixed on the policy of assurance, receipts or renewals.

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For each contravention of the act a penalty of fifty dollars is imposed.

The question of the constitutionality of the act came before the judicial committee of the privy council, who decided: That the act was not authorized by sub-sections two, and nine of section ninety-two of the B. N. A. Act with respect to direct taxation and licenses for raising a revenue for provincial, local or municipal purposes. 'That a license act by which a licensee is compelled neither to take out nor pay for a license, but which merely provides that the price of a license shall consist of an adhesive stamp, to be paid in respect of each transaction, not by the licensee, but by the person who deals with him, is virtually a stamp act, and not a license act.' That the imposition of a stamp duty on policies, renewals and receipts, with provisions for avoiding the policy, renewal or receipt in a court of law, if the stamp is not affixed, is not warranted by the terms of sub-section two of section ninety-two, which authorizes the imposition of direct taxation within a province in order to raise a revenue for provincial purposes.1

In pursuance of authority given by the imperial act (16 Vict., c. 21,) the province of Canada passed an act (18 Vict., c. 82,) in consequence of which, in 1855, an arrangement was made with the government for the erection of a temporalities fund of the Presbyterian

13 App. Cas. 1090; Cartwright, 117. On appeal from a judgment of the court of queen's bench of Quebec, affirming a judgment of the superior court of Lower Canada that the act is ultra vires. 16 L. C. J., 198; 21 Ib. 77; 22 lb. 307. See infra, p. 155 for a later decision upon a Quebec Statute imposing taxes on commercial corporations.

Church of Canada in connection with the Church of Scotland;1 and an act of incorporation for the management thereof was obtained (22 Vict., c. 66) of the province of Canada. In 1874 it was decided to unite the said church with three other churches. Subsequently in the provinces of Ontario and Quebec, the legislatures passed two acts (38 Vict., c. 75, Ont. Stat. and 38 Vict., c. 62, Quebec Stat.), to give effect to this union. At the same time the Quebec legislature passed an act (38 Vict., c. 64), to amend the act of the late province of Canada (22 Vict., c. 66), with a view to the union of the four churches, and to provide for the administration of the temporalities' fund. The union was subsequently carried out in accordance with the views of the large majority of the church in question: but a small minority protested against the union, and tested the validity of the Quebec Act, 38 Vict., c. 64. The matter was finally carried up to the privy council, which decided: That the Act (22 Vict., c. 66) of the province of Canada, which created a corporation having its corporate existence and rights in the provinces of Ontario and Quebec, afterwards created by the B. N. A. Act, could not, after the coming into force of that act, be repealed or modified by the legislature of either of these provinces, or by the conjoint operation of both provincial legislatures, but only by the parliament of the dominion. That the Quebec Act of 1875 (48 Vict., c. 64), which assumed to repeal and amend the act of the late province of Canada,

1 This church was entitled to share in the proceeds of the clergy reserves funds by virtue of certain imperial statutes. See supra, p. 41.

was invalid, inasmuch as its professed object and the effect of its provisions was to destroy, in the first place, a corporation which had been created by the legislature of Canada before the union of 1867, and to substitute a new corporation; and, in the second place, to alter materially the class of persons interested in the corporate funds, and not merely to impose conditions upon the transaction of business by the corporation within the province.1

The result of this judgment was the passage of an act by the parliament of Canada in 1882, to amend the act of the late province of Canada (22 Vict., c. 66), with respect to the "management of the temporalities' fund of the Presbyterian Church of Canada, in connection with the Church of Scotland," and the acts amending the same."

In 1874, the legislature of Ontario passed an act intituled, "an act to amend and consolidate the law for the sale of fermented or spirituous liquors."3 The provisions of this act required that no person should "sell by wholesale or retail any spirituous, fermented, or other manufactured liquors within the province of Ontario, without having first obtained a license under this act, authorising him to do so." The question was brought before the courts whether the legislature of Ontario had

17 App. Cas. 136: Cartwright, 351; Dobie v. the Temporalities Board. Appeal on special leave from a judgment of the court of queen's bench (3 L. N., 244), affirming a judgment of the superior court of the district of Montreal (3 L. N., 244); Doutre, 247-265.

245 Vict., c. 124. Also, cc. 123 and 125.

3 37 Vict., c. 32; Ont. Rev. Stat. (1877), c. 181, ss. 39, 40, 41.

the power to pass the statute, under which certain penalties were to be recovered, or to require brewers to take out any license whatever for selling fermented or malt liquors by wholesale. The matter came finally, on appeal, before the supreme court of Canada, which decided substantially as follows:

That it is not within the competency of a provincial legislature to require brewers to take out a license for the sale of fermented or malt liquors by wholesale; that the power to tax and regulate the trade of a brewer, being a matter of excise, the raising of money by "taxation," as well as for the restraint and "regulation of trade and commerce," is comprised within the class of subjects reserved by the ninety-first section of the British North America Act, to the exclusive legislative authority of the parliament of the dominion; and that such a license, imposed by a provincial statute, is a restraint and regulation of trade, and not an exercise of municipal or police power. That, under the 92nd section of the imperial Act, local legislatures are empowered to deal exclusively with such licenses only as are of a local or municipal description. That the taxing power of a provincial legislature is confined to direct taxation,1 in order to raise a provincial revenue; and to the grant of licenses to shops, saloons, taverns, auctioneers, and "other licenses," for purely municipal and local objects, for the purpose likewise of raising a revenue for provincial, local, or municipal objects. That at the same time

1 So affirmed by the judicial committee of the privy council, Attorney-General of Quebec vs. The Queen Insurance Co., Law Rep., 3 App., Cas. 1090.