1901. The most the company claimed was midway to Fort AlArgument. bany. The Treaty of Ryswick was in 1697. A renewal

of the charter as extended under 2 Wm. & M. should have been obtained then. This Treaty accounts for its not having been done. The company had no corporate power after 1697: Report of 1857, App. 8; Sessional Papers of Ontario, 1869, vol. 14, part 7 of 1882, page 6. Unless some reservation was made on the surrender by the company of its rights the corporate power of the company could have been contested, and it was to establish this that the deed was drawn with the reservation "in its corporate capacity." Nothing was said about a monopoly or exclusive right to trade. A saving clause grants no right: Hardcastle, 134, 511; Arnold v. Mayor of Gravesend, 2 K. & J. 574; Endlich, 349; Maxwell, 409, 411; Reed v. Ingham, 3 E. & B. 899. Manitoba is not within the area covered by the charter: 14 Geo. III, c. 83: The Boundary Case. The company has, since the surrender, submitted to various laws which hindered their business, such as customs, inland revenue, inspection of goods, insurance, etc., and in the Northwest Territories and in the Province of Ontario where a business license is required the company has taken out such licenses; and under The Manitoba Act, 33 Vic., c. 3, s. 27, there is a provision against the increase of customs for three years; and under the Laws of Assiniboia there were provisions against the sale of liquor to Indians, as well as license laws. This shows the construction put upon the Act by the company: Endlich, 357; United States Cable Company v. AngloAmerican Telegraph Company, 2 A. C. 394; River Wear Commissioner v. Adamson, 2 A. C. 743. If the claim of the company is good it is good against Dominion legislation, and The Canada Temperance Act itself would be void as against the company, and yet the company to-day takes out permits from the Dominion Government to take liquor into the Yukon and into the unorganized territor

The

1901.

ies. The B. N. A. Act is not to be narrowly construed: Lefroy, 34-39. As to the powers of the Dominion Parli- Argument. ament: Lefroy, 17, 40, 49, 246, 253, 279. The Dominion Parliament cannot legislate for a company to act only in one Province: Colonial Building Association v. Attorney-General of Quebec, 9 A. C. 157. Russell v. The Queen is not applicable to a Province. In determining the validity of the Act the motive and object of the Legislature in passing it are of no importance. It is a question of power: City of Fredericton v. The Queen, 3 S.C.R. 532; Keefe v. McLennan, 5 Russ. & Ches. 5; 2 Cartw. 400, shows the incidental effect on importation does not invalidate an Act. Act in question is good although private rights are affected: The Queen v. Robertson, 6 S.C.R. at p. 74; L'Union St. Jacques de Montreal v. Bélisle, L. R. 6 P. C. 31; re Goodhue, 19 Gr. 366. Every presumption should be made in support of the validity of the Act: Reg. v. Wason, 17 A. R. 223; Atty.-Gen of Ontario v. Atty.-Gen. for the Dominion, [1894] A.C. 190, 192; Valin v. Langlois, 5 A.C. 115; McLeod v. Atty.-Gen. for New South Wales. [1891] A.C. 455; Colquhoun v. Heddon, 25 Q.B.D. 135; Severn v. The Queen, 2 S.C.R. 103; L'Union St. Jacques de Montreal v. Bélisle, L.R. 6 P.C. 36. Part of an Act may be ultra vires and the rest intra vires if parts capable of separation: Stephens v. McArthur, 6 M.R. 508; McKilligan v. Machar, 3 M.R. 418; Re Canadian Pacific Railway Co., 7 M.R. 389; Morden v. South Dufferin, 6 M.R. 515. See also reports of Judicial Committee on Dominion License Act, 1883-4. The preamble shows that the prohibitions of the Act are limited to Provincial transactions. This is more clearly shown by section 119, which is largely taken from the wording of the judgment in Atty.-Gen. for Ontario v. Atty.-Gen. for the Dominion, [1896] A.C. 370. That case was final as far as it went. It established principles and among them that (p. 360)

1901. the Dominion Parliament has no authority to encroach on Argument. any class of subjects exclusively assigned to the Provin

cial Legislatures, except, perhaps, as ancillary to legislating on subjects in section 91, B.N.A. Act, and then only to the extent to which it is essential. The authority of the Provincial Legislature for suppression of the liquor traffic is to be found in sub-sections 13 and 16 of section 92 B. N. A. Act. A law restricting the consumption of liquor within the Province and which does not interfere with interprovincial or international transactions concerns Property and Civil Rights within the Province and, as such, the Provincial Legislature has alone the right to deal with the subject. The Parliament of Canada cannot imperatively enact a prohibitory law confined to a Province. Although the Dominion Parliament has enacted The Canada Temperance Act, the Provincial Legislature is not debarred from exercising its power under section 92 to suppress the drink traffic as a local evil. The Provincial Legislature has the power to do this. If the provisions of section 18, Ontario Local Option Act, had been imperative it would not have taken away the power of any district to enact The Canada Temperance Act. The only limitation to the power of a Provincial Legislature to enact said section 18 is that it becomes inoperative in any district where the Canada Temperance Act is in force. While the Privy Council interpreted said section 18 as applying only to retail transactions, the whole question of prohibition was considered apart from retail transactions, and the language of the judgment is clear that the opinions expressed in it are to be binding though the answers to academic questions are not. The Privy Council expressly held that said section 18 was within the competence of the Legislature. It is also clear that the judg ment in referring to retail sales means local or Provincial transactions as distinct from interprovincial or international ones.

Section 119 is unnecessary as the Act really

.

doubt any

1901.

means what section 119 says; but, if there is about the Act applying only to Provincial transactions, Argument. section 119 is effective. As to interpretation of words "carriers or other persons": see Beal's Cardinal Rules, § 146; Reg. v. Payne, L.R. 1 C.C. 27; Shillito v. Thompson, 1 Q.B.D. 12; Fenwick v. Schmalz, L.R. 3 C.P. 313; Maxwell on Statutes, 478-480; Severn v. The Queen, 2 S. C.R. 107. The Act should be construed according to its main principles and questions of doubtful literal construction will give way. Compare section 54 which implies that a person, other than a carrier, may carry. The concluding parts of sections 51 and 52 are substantially copied from the judgment of the Privy Council, p. 364. If necessary, section 119 can be used to explain and, if the prohibitions go beyond it, it is an exception. Section 52 allows possession for export sale. It may be instructive to consider the cases before Russell v. The Queen, and reference is made to Keefe v. McLennan, 2 Russ. & Ches. 5, 2 Cartw. 400; Sulte v. Three Rivers, 11 S.C.R. 32; 2 Cartw. 280; Reg. v. Taylor, 36 U.C.R. 183; Slavin V. Orillia, 36 U. C. R. 159. These cases seem to place legislation on prohibition under the head of local and private matters. The Local Option Case, 18 A.R. 577, places it under Municipal Institutions: Severn v. The Queen, 2 S.C.R. 70; Molson v. Lambe, 15 S.C.R. 259; Reg. v. Halliday, 21 A.R. 44: See arguments on the McCarthy Act; the Dominion Liquor License Act, 1883-4; Wheeler on Confederation Laws of Canada, 145, 6, 15258. This Act dealt with the wholesale trade, but still was held wholly ultra vires. The arguments are given in full in the Sessional Papers of 1885, vol. 18, No. 12, p. 133. There is no logical distinction for the purposes of jurisdiction between wholesale and retail transactions, and neither the Legislature nor Parliament can give itself jurisdiction by defining what is wholesale and retail: Queen v. Macdougall, 22 N.S.R. 462. As to sales here

1901. by outsiders, sections 48 and 49 are almost the same as Argument. The Liquor License Act, R.S.M., c. 90, ss. 147-8. The

quality of the transaction, which is to determine whether it comes within the prohibitory clauses and within the jurisdiction of the Provincial Legislature, is whether the transaction is a purely Provincial one. One can imagine an agent coming from some other Province and taking orders here in such a manner that it would be an interprovincial transaction. Much would depend on where the property vested and where it was to be delivered: Stallard v. Marks, 3 Q. B. D. 412; 11 A. & E. Ency. of Law, 244 (1st ed.); Poole v. Victoria, 2 B.C.R. 271. The Provincial Legislature has jurisdiction where the whole transaction is here. That there is no logical distinction between wholesale and retail for purposes of jurisdiction: See Queen v. Macdougall, 22 N.S.R. 462; Wheeler, 144, 155: Lefroy on Legislative Powers in Canada, 730, n; Re Prohibitory Liquor Laws, 24 S.C.R. 251; Carruthers v. Louise, 10 M.R. 536. If retail trade means sale to consumers and wholesale means sale to retail dealers and the Province can prohibit the retail trade in the Province it leaves the wholesaler without a retailer in the Province to sell to. There can then be no distinction between a sale in the Province for trade therein and one for consumption for the purpose of determining jurisdiction. Section 92 of the B. N. A. Act, s-s. 2, gives jurisdiction over the liquor traffic, wholesale and retail, for the purpose of taxation. Sub-section 8 gives power under Municipal Institutions to control and regulate both wholesale and retail trade in the Province. Sub-section 9 gives power to license wholesale and retail trade in the Province. The Privy Council held that Provincial Legislatures have jurisdiction to prohibit transactions in liquor under sub-section 13 or sub-section 16. Why do they not in the same manner apply to both wholesale and retail so long as the transaction is Provincial? There can be no