1901.

In re THE LIQUOR ACT.

Before KILLAM, C.J., BAIN and RICHARDS, JJ.

The Liquor Act, 63 & 64 Vic., c. 22 (M.)

Prohibitory Liquor Legislation Powers of Provincial Legislatures-Ultra ViresBritish North America Act, ss. 91 and 92.

Reference under chapter 28 of the Revised Statutes of Manitoba by order of the Lieutenant-Governor-in-Council for the opinion of the Full Court on the constitutionality of The Liquor Act, chapter 22 of 63 and 64 Victoria (M.)

Held, that the Act as a whole was beyond the powers of a Provincial Legislature, as not falling within any of the classes of subjects assigned to Provincial Legislatures by section 92 of the B. N. A. Act, 1867.

Such legislation cannot fall within the class Property and Civil Rights," property and civil rights being affected only incidentally to the main purpose of the statute.

It cannot fall within the class "Matters of a merely local or private nature within the Province," because of its directly extending to and affecting interests much wider than those of a merely local or private nature.

PER KILLAM, C. J.-The evils at which the Act is directed are intemperance and its results. The remedy is to suppress traffic in certain liquors within the Province except for certain purposes and thereby to restrict consumption. The evils desired to be cured and the general nature of the remedies are the same as in The Canada Temperance Act, and upon the authority of Russell v. The Queen, (1882) 7 A. C. 829, such legislation does not fall within the class "Property and Civil Rights."

PER KILLAM, C. J.-Such legislation by a Provincial Legislature, if permissible at all, must be so as coming within the class, "Matters of a merely local or private nature in the Province." The subject matter of this legislation may, to some extent, come within the powers of the Dominion Parliament or of the Local Legislatures. Whether a particular enactment on the subject so comes depends on the character of the legislation. This Act, as a whole, is not within the legislative powers of the Province, because it is not confined to dealing with the subject in its local application.

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Statement.

Attorney-General for Ontario v. Attorney-General for the Domin-
ion, [1896] A. C. 348, commented on and distinguished.
ARGUED December 5th, 6th, 7th, 8th, 10th, 11th, 12th, 1900.
DECIDED: February 23rd, 1901.

SPECIAL case stated for the opinion of the Court of Queen's Bench under An Act for expediting the decision of Constitutional and other Provincial questions, R.S.M., c. 28, (1891) as to the validity and constitutionality of The Liquor Act, 63 & 64 Vic., c. 22.

The following is a copy of the Order of the LieutenantGovernor-in-Council under which the submission of the case was made:

Whereas the Legislative Assembly of Manitoba recently passed an Act intituled The Liquor Act and being Chapter 22 of 63 and 64 Victoria, which Act was assented to on the fifth of July, 1900.

And whereas doubts have arisen as to the power of the Legislature to enact certain of the provisions thereof and objection has been taken by certain of Her Majesty's subjects resident in Manitoba who claim that such provisions are beyond the power of the said Legislature;

And whereas it is represented that if the said Act comes into operation and afterwards is declared unconstitutional injury will be caused to certain classes of business and that the property and rights of certain persons within the Province will be injuriously affected:

And whereas it is claimed that the said Act prejudices or affects the rights or properties of the Governor and Company of Adventurers of England trading into Hudson's Bay (commonly known as The Hudson's Bay Company) contrary to the terms and conditions of the Deed of Surrender and of the Order-in-Council accepting the same, copies of which are hereinafter referred to, and of the legislation respecting the same, and is therefore not binding on the said Company;

And whereas it is expedient to avoid a multiplicity of suits and appeals involving the said questions by referring the questions to the Court of Queen's Bench for Manitoba. for hearing and consid eration under the provisions of Chapter 28 of the Revised Statutes of Manitoba.

On the recommendation of the Honourable the Minister, Committee advise that the following questions be referred to the Court

of Queen's Bench for hearing and consideration under Chapter 28 of the Revised Statutes of Manitoba and that, for the purpose of such hearing and consideration, the Court may, in addition to such other facts and matters as the Court may see fit to take into consideration, accept as true and correct the statements set out in the schedule hereto, and may refer to and accept as correct the Order of Her Majesty-in-Council at the Court at Windsor on the 23rd day of June, 1870, and the schedules thereto, copies of which are to be found on pages lxiii to lxxxiii, both inclusive, purporting to be printed by Brown Chamberlain, Law Printer for Canada of Her Majesty, and bound up in the copy of Statutes of Her Majesty for the Dominion of Canada passed in the 35th year of Her Majesty's reign; the copy of the Deed of Surrender and the Minutes and Reports as contained in the schedules to said Order-in-Council and found so bound up with the said Statutes; the copy of the Report from the Select Committee of the House of Commons of Great Britain on the Hudson's Bay Company, dated the 31st July, 1857, printed on pages III and IV of said printed report, together with Charter of the Hudson's Bay Company in the Appendix thereto, ordered by the said House of Commons to be printed as printed, and such other statements, facts and documents relating to the Hudson's Bay Company as may be submitted to the Court by order of the Lieutenant-Governor-in-Council, and all Statutes which may bear upon the

subject.

1. Had the Legislative Assembly of Manitoba jurisdiction to enact The Liquor Act and, if not, in what particular or respect has it exceeded its power?

2. Had the Legislative Assembly of Manitoba jurisdiction to enact the provisions of the 47th, 48th, 49th, 50th, 51st, 52nd, 53rd, 54th, 55th and 56th sections of The Liquor Act or any and, if so, which of such provisions without the explanatory provisions of Section 119 of the Act?

3. Had the Legislative Assembly of Manitoba jurisdiction to enact the provisions of the 47th, 48th, 49th, 50th, 51st, 52nd, 53rd, 54th, 55th, and 56th sections of The Liquor Act or any of them, as interpreted by the explanatory provisions of section 119 of this Act, and if so, which?

4. Had the Legislative Assembly of Manitoba jurisdiction to make regulations, limitations or restrictions on the sale or keeping of liquor by brewers, distillers or other persons in Manitoba duly licensed by the Government of Canada for the manufacture in Manitoba of spirituous, fermented or other liquors, as provided by sections 47, 51 and 54 of, and elsewhere in, said Act?

5. Has the Legislative Assembly of Manitoba jurisdiction to prohibit or restrict the giving away in Manitoba as a free gift by the

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owner thereof of liquor which has been lawfully imported into Manitoba or otherwise lawfully acquired by such owner?

6. If the Legislative Assembly of Manitoba has no authority to prohibit the importation of liquor into the Province, has it authority to declare it illegal for an importer to employ a bona fide agent residing in the Province to make the importation on his behalf, or to prohibit importation through such agent?

7. Has the Legislative Assembly of Manitoba jurisdiction to prohibit an agent in Manitoba of a person residing in Manitoba retaining in such agent's possession in Manitoba, on behalf of such resident, liquor imported into this Province through such agent on behalf of such resident, such liquors being the property of the importer and not of the agent so that such resident may take delivery of portions thereof from time to time as such resident may desire?

8. Has the Legislative Assembly of Manitoba jurisdiction to provide that no sale of liquor for export from the Province shall be made within the Province unless such liquor shall be delivered by the vendor at some point outside the Province?

9. If not, has the Legislative Assembly of Manitoba jurisdiction to compel a person purchasing liquor in Manitoba to convey the liquor purchased to a place outside the Province without opening or breaking or allowing to be opened or broken the package or parcel containing the same as received from the exporter?

10. Do the provisions of The Liquor Act interfere with or infringe on the rights of the Hudson's Bay Company as assured to that Company by the conditions contained in the Deed of Surrender to Her Majesty and the various Orders-in-Council and Statutes passed in respect thereof and, if so, to what extent?

11. Is the Hudson's Bay Company subject to the provisions of the said Act, and bound to observe the same? If not altogether, then to what extent?

Approved and ordered.

(Signed) D. H. MCMILLAN,

Lieutenant-Governor.

November 20th, 1900.

SCHEDULE.

To Order-in-Council passed by the Lieutenant-Governor of Manitoba in Council on the Twentieth day of November, A.D. 1900.

1. For the purpose of considering the questions referred by the aforesaid Order-in-Council the following facts may be taken into consideration:-

(a) That at the time of the passing of The Liquor Act there were and are now in Manitoba brewers and maltsters duly licensed

under the Inland Revenue Act of Canada and amendments by the Government of the Dominion of Canada to carry on the trade or business of brewers and maltsters in Manitoba, and who then were and are now engaged under their said respective licenses in manufacturing malt liquors and malt both for sale within and export from Manitoba and selling within and exporting from Manitoba malt liquors and malt.

(b) That at the time of the passing of The Liquor Act there were, and now are in Manitoba, a number of wholesale liquor dealers engaged in buying and selling liquors by wholesale within the Province, and in importing liquor by wholesale into the Province form other Provinces and countries, and in exporting from such Province liquor so bought and imported.

(c) That at the time of passing the said Act many transactions took place and still take place in purchasing and selling liquor between residents of Manitoba and residents of other Provinces and countries, both by way of import into Manitoba and export therefrom, and the Government of Canada derives revenue both from the importation of liquor into Canada and the manufacture of liquor therein.

(d) That, prior to the said surrender of Rupert's Land by the Hudson's Bay Company to Her Majesty, the Hudson's Bay Company, as part of its trade, imported into and bought and sold spirituous liquors in that part of what was Rupert's Land, which now constitutes the Province of Manitoba, and exported liquors from said part of Rupert's Land to other parts of Rupert's Land and other parts of British North America, and since the said surrender the said Company has continuously, as part of its trade, imported into and exported from and bought and sold spirituous liquors in Manitoba.

(e) That prior to and at the time of the said surrender the portion of Rupert's Land now comprising Manitoba was sparsely

settled.

(f) That The Canada Temperance Act is not adopted or in force in any part of Manitoba.

The following is a copy of a further order of the Lieutenant-Governor-in-Council in relation to the case:

Whereas by a certain Order of the Lieutenant-Governor-in-Council, passed November 20th, 1900, and numbered 7083, relating to The Liquor Act, it was provided that the Court might refer to and accept as correct such other statements, facts and documents relating to the Hudson's Bay Company, as might be submitted to the Court by order of the Lieutenant-Governor-in-Council.

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Statement.