Counsel, and to grant patents of precedence in provincial

courts.

The other question which has brought the exercise of the royal prerogative into prominence is the jurisdiction to grant pardons for crime, which was considered fully in the Supreme Court in the case of Attorney-General for Canada v. AttorneyGeneral for Ontario (23 S.C.R., 458; 5 C. 517). It was there held that 51 Vict. c. 5 (Ont.), which provides that in matters within the jurisdiction of the Legislature all powers, authorities, and functions which, in respect of like matters, were vested in or exercisable by the Governors of the preconfederation provinces should, "so far as this Legislature has power thus to enact," be vested in, and exercisable by the Lieutenant-Governor of the Province, is intra vires. The decision, however, is based upon the saving clause, “so far as this Legislature has power to enact," and proceeds upon the ground that no act can be unconstitutional which expressly limits itself to its lawful powers. The judges expressly refused to decide upon the right of the Legislature of Ontario to confer on the Lieutenant-Governor the prerogative of pardoning offenders against even provincial laws, though, by their opinions, it would appear as if they thought such power existed.

It thus seems to be lawful for a provincial legislature to pass an act prima facie ultra vires as infringing upon the legislative jurisdiction of Parliament provided they express themselves as legislating only "in so far as they have power to enact." Their powers of legislation are by this decision extended practically indefinitely, provided only the saving clause be inserted.

Liquor Traffic-The first case of importance after confederation is the case of Reg. v. Justices of King's (2 Pugsley, 539; 2 C. 499), where the provincial legislature of New Brunswick was held to have no power to authorize municipal by-laws totally prohibiting the sale of liquor. The grant of

jurisdiction to the Provinces over licences, contained in section 92, was first held to refer to retail licences only, leaving the granting of wholesale licences to the Dominion as a matter of "trade and commerce:" Severn v. Reg. (2 S.C.R. 70; 1 C.414). In Frederickton v. Reg. (3 S.C.R. 505; 2 C. 27), the Supreme Court held sustaining the validity of the Canada Temperance Act, 1878, the "Scott Act," that the power to prohibit the sale of liquor was lodged exclusively in the Dominion under its jurisdiction over "trade and commerce." This same statute was also confirmed by the Privy Council in Russell v. Reg. (7 A.C. 829; 2 C. 12), which was virtually an appeal from Frederickton v. Reg., the authority of Parliament being based either upon its jurisdiction over the "peace, order, and good government of Canada," or over "trade and commerce." Their lordships, however, while not dissenting from the former case, express no opinion as to whether the jurisdiction is or is not exclusive. This was followed in the next year by Hodge v. Reg. (9 A.C. 117; 3 C. 144), which declared the Ontario Liquor Licence Act of 1877 compatible with the Scott Act, and equally valid. The next step was to declare the Dominion Liquor Licence Acts of 1883 and 1884 ultra vires; re Liquor Licence Act (4 C. 342). The grounds of the decision in Severn v. Reg., which invalidated provincial wholesale licences, were next overturned both in the Supreme Court and the Privy Council. The judgment in that case was founded on two considerations: (1) that such legislation was an interference with trade and commerce; (2) that a brewer's licence is not ejusdem generis with the licences particularly mentioned in section 92 (9). So far as the first ground is concerned, Hodge v. Reg. must be considered to deprive Severn v. Reg. of its support. In the Supreme Court also the case of Molson v. Lambe (16 S.C.R. 253) overrules Severn v. Reg. on this ground. Ritchie, C.J., there says, "In view of the cases determined by the Privy Council since the case of Severn v. Reg. was decided in this

Court, which appear to me to have established conclusively that the right and power to legislate in relation to the issue of licences for the sale of intoxicating liquors by wholesale and retail belong to the local legislatures, we are bound to hold the Quebec Licence Act, 1878. . . valid and constitutional." As to the second ground for the decision in Severn v. Reg., the judgment of the Privy Council in Bank of Toronto v. Lambe (12 A.C. 575) must be taken as an affirmation of the power of a local legislature to levy such a licence fee. as being a "direct tax" within section 92 (2). The next decision of importance is that of the Court of Appeal in In re Local Option Act (18 A.R. 572). It was held confirming the Ontario Local Option Act, 53 Vict. c. 56, section 18, that the Provincial Legislatures may empower a municipality to pass prohibitory by-laws at least as to retail trade (the wholesale trade not being taken into consideration). This case does not decide that a provincial legislature could pass a general prohibitory law; the Court treating this question as having been decided against the provinces in Russell v. Reg. Of course the result is that the provinces can do indirectly what they cannot do directly. The next case is also a decision of the Court of Appeal, Reg. v. Halliday (21 A.R. 42), where it was decided that even brewers who had taken out Dominion licences to manufacture and sell at wholesale were obliged to take out licences under the Ontario Liquor Licence Act, R.S.O., 1887 (c. 194). The last case on this point is Attorney-General for Ontario v. Attorney-General for Canada and the Distillers' Association [1896] (A.C. 348; 5 C. 295), which may be considered as virtually an appeal In re Local Option Act, and also affirms the validity of that Act, subject, however, to its becoming inoperative in any locality which adopts the provisions of the Canada Temperance Act of 1886.

Bankruptcy and Insolvency.-It was held in the case of L'Union St. Jacques v. Belisle (L.R. 6 P.C. 31; 1 C. 63) that a

provincial Act providing for the arrangement of the affairs of a company, and forcing commutation upon certain annuitants, was intra vires, as being merely a matter of local or private concern in the Province. The next case, Quirt v. Reg. (19 S.E.R. 510; 5 c. 456), leans the other way, however. It was there held that the Dominion Parliament, in its jurisdiction. over "banks and banking," or "bankruptcy and insolvency," had jurisdiction to incorporate the trustees of a bank which had become insolvent before confederation and assigned its property to trustees. The case of L'Union St. Jacques v. Belisle is distinguished by Judge Strong, at p. 517, on the ground that the earlier case was expressly not a bankruptcy act, "but was rather an enactment designed for the purpose of avoiding such a result." The question was left by these decisions pretty much within the jurisdiction of Parliament, but their complete control of it is shaken very considerably by the decision of the Privy Council in Attorney-General of Canada v. Attorney-General of Ontario [1894] (A.C. 189; 5 C. 266), where the Ontario Assignments and Preferences Act was held intra vires. This case, however, contains a most important qualification, viz. that the powers conferred by the provincial Assignments Act arc exercisable only until an insolvency law of general application is passed by Parliament, which is perhaps the only break in the steady stream of decisions which have of late years undermined the apparently stable fabric of the National Government. Even this chance of escape from provincial aggression has now, however, been taken from the Dominion Government in the Fisheries Appeal which came subsequently before the same court, where it was held in effect that if jurisdiction is conferred upon either Parliament or the local legislatures by the terms of the B.N.A. Act, such jurisdiction is exclusive and not dependent upon the action of the other legislative body. In delivering the judgment of the committee in that case, Lord Herschell says, speaking of the right of a province to

"regulate" fisheries, "It has been suggested, and this view has been adopted by some of the judges of the Supreme Court, that although any Dominion legislation dealing with the subject would override provincial legislation, the latter is nevertheless valid unless and until the Dominion Parliament so legislates. Their lordships think that such a view does not give their due effect to the terms of section 91, and in particular to the word 'exclusively.' It would authorize, for example, the enactment of a bankruptcy law or a copyright law in any of the Provinces unless and until the Dominion Parliament passed enactments dealing with these subjects. Their lordships do not think this is consistent with the language and manifest intention of the British North America Act. It is true that this Board held in the case of AttorneyGeneral of Canada v. Attorney-General of Ontario [1894] (A.C. 189), that a law passed by a provincial legislature which affected the assignments and property of insolvent persons was valid as falling within the heading 'Property and Civil. Rights,' although it was of such a nature that it would be a suitable auxiliary provision to a bankruptcy law. But the ground of this decision was that the law in question did not fall within the class 'Bankruptcy and Insolvency' in the sense in which those words were used in section 91."

Education. By the Dominion Statute known as the Manitoba Act (33 Vict. c. 3, sec. 22), it was provided that the provincial legislature of Manitoba should exclusively make laws in relation to education, but so as not to "prejudicially affect any right or privilege with respect to denominational schools which any class of persons had by law or practice in the province at the Union," and an appeal was also given to the Governor-General in Council, "from any Act or decision of the Legislature of the Province, or of any provincial authority, affecting any right or privilege of the Protestant or Roman Catholic minority of the Queen's subjects in relation to education (acquired since the Union)." It seemed