CHAPTER XIV. RULES OF CONSTRUCTION AND CONSTITUTIONAL PRINCIPLES DEDUCED FROM JUDICIAL DECISIONS. The most important questions which have come before the privy council and the supreme court of Canada, have arisen upon the provisions of the British North America Act, relating to the distribution of legislative powers between the parliament of Canada and the legis latures of the provinces, and in the words of the privy council, "owing to the very general language in which some of these powers are described, the question is one of considerable difficulty." A learned judge of the supreme court observes that "in construing the act, no hard and fast canon or rule of construction can be laid down and adopted, by which all acts passed, as well by the parliament of Canada as by the local legislatures, upon all and every question that may arise, can be effectually tested as to their being or not being intra vires of the legislature passing them." The nearest approach to a rule of general application that has been attempted in the courts of Canada, with a view to reconcile the apparently conflicting legislative powers under the act, is with respect to property and civil rights, over which exclusive legislative authority is given to the local legislatures that, as there are many matters involving property and civil rights expressly reserved to the dominion parliament, the power of the local legislatures must, to a certain extent, be subject to the general and special legislative powers of the dominion. But while the legislative rights of the local legislatures are, in this sense, subordinate to the rights of the dominion parliament, these latter rights must be exercised, so far as may be, consistently with the rights of the local legislatures, and therefore the dominion parliament would only have the right to interfere with property and civil rights in so far as such interference may be necessary for the purpose of legislating generally and effectually in relation to matters confided to the parliament of Canada.1 On this same point the privy council appears to take a similar view: It is therefore to be presumed, indeed, it is a necessary implication, that the imperial statute, in assigning to the dominion parliament the subjects of bankruptcy and insolvency, intended to confer on it legislative power to interfere with property, civil rights, and procedure, within the province, so far as a general law relating to those subjects might affect them." The judicial committee of the privy council have endeavoured to lay down certain principles which should guide those who are called upon to interpret the Union Act. The first step to be taken, with a view to test the 1 Ritchie, C. J., in The Queen v. Robertson, Can. Sup. Court R., vol. vi, pp. 110-11. Also Valin v. Langlois, vol. iii, p. 15; The Citizens Insurance Co. v. Parsons, vol. iv, p. 242. 2 Sir M. E. Smith in Cushing v. Dupuy, 5 App. Ca. 415. validity of an act of a provincial legislature is to consider whether the subject-matter falis within any of the classes of subjects enumerated in section ninety-two, which states the legislative powers of the provincial legislatures. If it does not come within any of such classes, the provincial act is of no validity. If it does, these further questions may arise, viz., whether the subject of the act does not also fall within one of the enumerated classes of subjects in section ninety-one, which states the legislative powers of the dominion parliament, and whether the power of the provincial legislature is, or is not, thereby overborne.1 The same eminent authority has in another judgment 2 expressed the following opinion: "That it must have been foreseen that some of the classes of subjects assigned to the provincial legislatures unavoidably ran into, and were embraced by, some of the enumerated classes of subjects in section ninety-one; 1 Dobie v. The Temporalities Board of the Presbyterian Church in Canada, 7 App. Cas., 136; Cartwright, 367. In Steadman v. Robertson (2 Pug. and Bur., 580) one of the judges of the supreme court of New Brunswick expressed the opinion: "The B. N. A. Act is distributive merely in respect to powers of legislation, exercisable by the dominion parliament and by the local legislatures respectively, and the dominion parliament may not intrench upon property and civil rights which are under the guardianship and subject to the power of the local legislatures, except to the extent that may be required to enable parliament to 'work out' the legislation upon the particular subjects specially delegated to it." * The Citizens & Queen Insurance Co., v. Parsons, Rep. 45, L. T. N. S. 721; Cartwright, 272, 273. hence an endeavour appears to have been made to provide for cases of apparent conflict; and it would seem that with this object it was declared in the second branch of the ninety-first section, 'for greater certainty, but not so as to restrict the generality of the foregoing terms of this section,' that (notwithstanding anything in the act) the exclusive authority of the parliament of Canada should extend to all matters coming within the classes of subjects enumerated in that section. Notwithstanding this endeavour to give preeminence to the dominion parliament in cases of a conflict of powers, it is obvious that in some cases where this apparent conflict exists, the legislature could not have intended that the powers exclusively assigned to the provincial legislature should be absorbed in those given to the dominion parliament. Take as one instance the subject 'marriage and divorce,' contained in the enumeration of subjects in section ninetyone. It is evident that solemnization of marriage would come within this general description; yet 'solemnization of marriage in the province' is enumerated among the classes of subjects in section ninety-two, and no one can doubt, notwithstanding the general language of section ninety-one, that this subject is still within the exclusive authority of the legislatures of the provinces. So 'the raising of money by any mode or system of taxation' is enumerated among the classes of subjects in section ninety-one; but though the description is sufficiently large and general to include 'direct taxation within the province, in order to the raising of a revenue for provincial purposes,' assigned to the provincial legislatures by section ninety-two, it obviously could not have been intended that, in this instance also, the general power should override the particular one. With regard to certain classes of subjects, therefore, generally described in soction ninety-one, legislative power may reside as to some matters, falling within the general description of these subjects, in the legislatures of the provinces. In these cases, it is the duty of the courts, however difficult it may be, to ascertain in what degree, and to what extent, authority to deal with matters falling within these classes of subjects exists in each legislature, and to define, in the particular case before them, the limits of their respective powers. It could not have been the intention that a conflict should exist, and, in order to prevent such a result, the language of the two sections. must be read together, and that of one interpreted and, where necessary, modified by that of the other. In this way it may, in most cases, be found possible to arrive at a reasonable and practical construction of the language of the sections, so as to reconcile the respective powers they contain, and give effect to all of them. In performing this difficult duty, it will be a wise course. for those on whom it is thrown to decide each case which arises as best they can, without entering more largely upon an interpretation of the statute than is necessary for the decision of the particular question in hand." In giving a digest of the most important judicial decisions on questions of legislative jurisdiction, the writer has not so far attempted any comment upon the many points that naturally suggest remarks, but has thought it the wisest course in a work of this character to allow the reader to study out each subject for himself and form his own conclusions in matters of doubt. In reviewing these decisions, however, certain constitutional prin |