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 meinbers 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.

to the superior courts of the respective provinces, and the judges thereof, the power, and impose upon them the duty, of trying controverted elections of members of the House of Commons, and did not, in utilizing existing judicial officers and established courts to discharge the duties assigned to them by that act, in any particular invade the rights of the local legislatures. That upon the abandonment by the House of Commons of the jurisdiction exercised over controverted elections, without express legislation thereon, the power of dealing therewith would fall, ipso facto, within the jurisdiction of the superior courts of the provinces by virtue of the inherent original jurisdiction of such courts over civil rights. That the dominion parliament has the right to interfere with civil rights, when necessary for the purpose of legislating generally and effectually in relation to matters confided to the parliament of Canada. That the exclusive power of legislation given to provincial legislatures by sub-s. 14 of s. 92 B. N. A. Act over procedure in civil matters, means procedure in civil matters within the powers of the provincial legislatures.1

Application was made to the privy council for leave to appeal from the foregoing judgment of the supreme court. Their lordships, in refusing such leave, expressed these opinions:

1 Can. Sup. Court R., vol. iii. Valin vs. Langlois. This case came before the court on appeal from the judgment of Chief Justice Meredith, of the superior court of Quebec, declaring the act to be within the competency of the dominion parliament, 5 Q. L. R., No. 1. The Ontario court of common pleas in 1878 unanimously agreed that the act was binding on them. Ont. Com. P. R. vol. xxix., p. 261. But certain judges of Quebec held adverse opinions. Quebec L. R., vol. v., p. 191.

That there is no doubt about the power of the dominion parliament to impose new duties upon the existing provincial courts, or to give them new powers as to matters which do not come within the classes of subjects assigned exclusively to the legislatures of the provinces. That the result of the whole argument offered to their lordships had been to leave them under the impression that there was here no substantial question requiring to be determined, and that it would be much more likely to unsettle the minds of her Majesty's subjects in the dominion, and to disturb in an inconvenient manner the legislative and other proceedings there, if they were to grant the prayer of the petition and so throw a doubt on the validity of the decision of the court of appeal below, than if they were to advise her Majesty to refuse it.1

In 1876, the legislature of Ontario passed an act2 intituled "An act to secure uniform conditions in policies of fire insurance." This statute was impeached on the ground mainly that the legislature of Ontario had no power to deal with the general law of insurance; that the power to pass such enactments was within the legislative authority of the dominion parliament, under s. 91, sub-s. 2, B. N. A. Act, "regulation of trade and commerce." The question having come before the supreme court of Canada, it held that the act in question was within the competency of the Ontario legislature and is applicable to insurance companies, whether foreign or incorporated by the dominion.

▲ 5 App. Cas., 115.

2 39 Vict., c. 24; Ont. Rev. Stat., [1877] c. 162.

3 Can. Sup. Court R., vol. iv., 215-349. The Citizens and the Queen Ins. Co's. v. Parsons; Western Insurance Co. v. Johnston. The judgment of the supreme court affirmed the judgments of

2.

The question came finally before the privy council on appeal from the supreme court of Canada, and their lordships decided:

That construing the words "regulation of trade and commerce" by the various aids to their interpretation, they would include political arrangements in regard to trade and requiring the sanction of parliament, regulation of trade in matters of inter-provincial concern, and it may be that they would include general regulation of trade affecting the whole dominion. Their lordships, however, abstained from any attempt to define the limits of the authority of the dominion parliament in this direction. It was sufficient for the decision of the case under review to say that, in their view, its authority to legislate for the regulation of trade and commerce does not comprehend the power to regulate by legislation the contracts of a particular business or trade, such as the business of fire insurance, in a single province, and therefore that its legislative authority did not in the present case conflict or compete with the power over property and civil rights assigned to the legislature of Ontario by sub-s. 13 of s. 92. That the act in question, so far as relates to insurance or property within the province, may bind all fire insurance companies, whether incorporated by imperial, dominion, provincial, colonial, or foreign authority. That the act of the dominion parliament,' requiring insurance companies to obtain licenses from the minister of finance as a condition to their car

the court of appeal for Ontario (4 App. Rep., Ont., 96, 103), which had affirmed the judgments of the queen's bench; 43 U. C., Q. B. 261, 271.

1 38 Vict., c. 20.