15

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." 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.

2 45 Vict., c. 124. Also, cc. 123 and 125.

8 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.

this taxing power of the local government must not be exercised so as to encroach upon, or to conflict with, the taxation in aid of dominion revenue, which is authorized to be exclusively imposed by the federal parliament.1

By s. 2 of the Fisheries Act of 1868,2 the minister of marine and fisheries "may, where the exclusive right of fishing does not already exist by law, issue, or authorize to be issued, fishery leases and licenses for fisheries and fishing wheresoever situated, or carried on, etc." In 1874, the minister executed a lease of fishery of a certain portion of a river in New Brunswick, which was some forty or fifty miles above the ebb and flow of the tide, though the stream for the greater part of that particular portion is navigable for canoes, small boats and timber. Certain persons in New Brunswick, however, claimed the exclusive right of fishing in this part of the river, on the ground that they had received conveyances thereof, and prevented the lessee of the dominion government from enjoying the fishery under his lease. The supreme court of Canada was at last called upon to decide whether an exclusive right of fishing existed in the parties who had received the conveyances. In other words, the court was practically asked to decide the question: Can the dominion parliament authorize the minister of marine and fisheries to issue licenses to parties to fish in rivers such as that described, where the provincial government has before or after confederation

1 Can. Sup. Court R., vol. ii., 70-142, Severn vs. The Queen. On appeal from a judgment of the court of queen's bench for Ontario.

231 Vict., c. 60.

granted lands that are bounded on, or that extend across such rivers ? The court decided: That the licenso granted by the minister of marine and fisheries was void, because the act in question only authorizes the granting of leases "where the exclusive right of fishing does not already exist by law," and in this case the exclusive right belonged to the owners of the land through which that portion of the river flows. That the legislation in regard to "inland and sea fisheries contemplated by the B. N. A. Act is not with reference to property and civil rights-that is to say, not as to the ownership of the beds of rivers or of the fisheries, or the rights of individuals therein, but to subjects affecting the fisheries generally, tending to their regulation, protection and preservation, matters of a national and general concern; in other words, all such general laws as enure as well to the benefit of the owners of the fisheries as to the public at large. That the parliament of the dominion may properly exercise a general power for the protection and regulation of the fisheries, and may authorize the granting of licenses, where the property, and therefore the right of fishing thereupon, belong to the dominion, or where such rights do not already exist by law; but it may not interfere with existing exclusive rights of fishing, whether provincial or private. That consequently any lease granted by a dominion minister to fish in freshwater non-tidal rivers, which are not the property of the dominion, or in which the soil is not in the dominion, is illegal; that where the exclusive right to fish has been acquired as incident to a grant of land through which such river flows, the Canadian parliament has no power to grant a right to fish. That the

ungranted lands in a province being in the Crown for the benefit of the people, the exclusive right to fish follows as an incident, and is in the Crown as trustee for the benefit of the people of the province, and therefore a license by the minister of marine and fisheries would be illegal.1

1 Can. Sup. Court R., vol. vi, pp. 52-143. The Queen vs. Robertson. On appeal from the exchequer court (Gwynne J.), which held inter alia that the exclusive right of fishing existed in the persons having the conveyances. The supreme court of New Brunswick had also decided adversely to the exclusive right of the lessee of the dominion government to fish under his lease. 2 Pug. and Bur., 580.