Parliament, nor can it alter the number or qualification of senators, nor increase or diminish the number of representatives in the House of Commons except within narrow limits. A province has greater power in these respects than the Dominion.

2. After granting a constitution to a new province the Dominion Parliament cannot alter it 1.

3. No protective duties can be imposed as be imposed as between the provinces 2.

4. Lands and public property belonging to Canada or the provinces cannot be taxed 3.

5. Acts of the Parliament of Great Britain or of the Parliament of Great Britain and Ireland existing in any of the provinces at the time of the Union can only be repealed, abolished, or altered by Imperial legislation *.

6. The seat of the Government can be changed only by Her Majesty 5.

In the British North America Act 1867, little attempt has been made to classify the powers of the Dominion and Provincial Legislatures respectively. The 91st and 92nd sections contain the attempted enumeration of the chief subjects of legislation. The former section relates to the Dominion, and begins with a general clause, 'it shall be lawful for the Queen, by and with the advice and consent of the Senate and House of Commons, to make laws for the peace, order, and good government of Canada, in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the legislatures of the provinces,' and then 'for greater certainty, but not so as to restrict the generality' of the clause just set out, proceeds to enumerate twenty-nine classes of subjects over which the Dominion is to have 'exclusive authority.' The 92nd section, after enumerating fifteen classes of subjects over which the legislature of a province is to have exclusive authority, ends with a general clause giving to a province legislative power over 'generally all matters of a merely local or private nature in the province.' Several of the other sections of the Act, e. g. 41, 65, 93, 94, 95, 101, contain very important provisions regarding legislative powers, and since 1867 three important Imperial Acts" have been passed, increasing the legislative powers of the Dominion.

The various powers may be conveniently classified under 17 heads, viz. (1) Amendment of the Constitution; (2) Extension and Formation of Provinces; (3) Treaties; (4) Public Property; (5) Public Debt and Taxation; (6) State Management and Admin

1 34 Vict. c. 28. s. 2.

4 Ib. 8. 129.

6

34

& 35 Vict. c. 28; 38 & 39 Vict. c. 38; 49 & 50 Vict. c. 35.

3 Ib. 8. 125.

istration; (7) Administration of Justice; (8) Status; (9) Education; (10) Property and Civil Rights; (11) Trade and Commerce; (12) Monopolies; (13) Money and Banking; (14) Agriculture; (15) Immigration; (16) Local Affairs; (17) Alteration of laws existing at the time of the Union.

1. Powers relating to the Constitution.

The Dominion has no control over the office of Governor-General, though his salary is borne by Canada. The Lieutenant-Governors are appointed by the Governor-General on the advice of his ministers, and are removable by him on like advice. The Parliament may provide for the representation of new provinces 2, and of territories not within a province3 in the Senate, and fix the number of senators requisite to form a quorum *.

As regards the House of Commons the Dominion has power to legislate on the distribution of seats, the qualifications and disqualifications of members, the voters at elections, the oaths to be taken by voters, the powers and duties of returning officers, the proceedings at elections, the trial of election petitions, the vacating of seats, and the execution of writs for new elections. It may make provision for the absence of the Speaker, and subject to the conditions laid down by the Act it may adjust the representation after every decennial census.

A province has a general power to amend its constitution, except as regards the office of Lieutenant-Governor 5. The effect of this provision is that a provincial legislature has not only similar powers to those enumerated above as belonging to the Dominion, but it may, in case the legislature consists of two houses, abolish either house. The, powers of the provincial legislature are however limited by several provisions in the Act of Union. For instance, the provisions relating to Appropriation and Tax Bills, the recommendation of money votes, the assent to bills, and the disallowance of Acts, are binding on all the provincial legislatures, and cannot be altered except by the Imperial Parliament. Apart from the abolition of either house, the power of amending the constitution practically gives the provinces the right of determining the number, qualification, and election of members of the legislature.

By the 38 & 39 Vict. c. 38, the Imperial Parliament authorized the Dominion Parliament to define by Act the privileges to be enjoyed by the Senate and House of Commons, and by the members thereof, provided such privileges did not exceed those enjoyed by 34 & 35 Vict. c. 28. 3 Ib. 8. 92 (1).

1 B. N. A. Act, s. 92; The Letellier Case, Todd p. 405. B. N. A. Act 1867, s. 35.

3

49 & 50 Vict. c. 35.

2

6 Ib. s. 90.

the House of Commons in England at the passing of such Act. No reference was expressly made in the Union Act to the privileges of the Provincial Legislatures, and when Ontario in the Session 1868-9 passed an Act conferring on its Legislative Assembly the same privileges as were enjoyed by the Dominion House of Commons, the validity of the Act was doubted. The opinion of the law officers of the Crown in England was then taken, and as they held that the Act was ultra vires, it was disallowed. The view of the English law officers did not meet with general support, and when Quebec in 1870, British Columbia in 1871, and Ontario in 1876 passed similar Acts, they were allowed to come into operation. The provisions of the Quebec Act regarding the summoning of witnesses came before the Courts in Ex parte Dansereau 1, and the appeal side of the Quebec Court of Queen's Bench held that a power of summoning witnesses was necessarily incident to the powers of a legislature, and that a provincial legislature had 'a ‘a right to exercise such powers and privileges as were mere incidents of the powers specifically vested in them, and without which they could not probably exercise the duties devolving upon them.' In Landers v. Woodworth 2, the Supreme Court of Canada held that in the absence of express legislation the Legislative Assembly of Nova Scotia had no power to remove one of its members for contempt unless he was actually obstructing the business of the House. would therefore seem (1) that a provincial legislature has apart from provincial legislation those implied powers and privileges which are absolutely essential for the discharge of its duties; and (2) that any other privileges cannot be enjoyed or exercised in the absence of legislation. The validity of such legislation might be supported on one of two grounds, viz. (1) the power of amending a provincial constitution, a view taken by Sanborn, J. in Ex parte Dansereau; (2) the powers possessed by each province at the time of the Union, inasmuch as the Union Act has not taken away all of such powers.

2. Extension and formation of Provinces.

It

The Dominion Parliament may (1) extend the limits of a province with the consent of the legislature of such province 3; (2) establish new provinces and provide for the constitution and administration of such provinces; and (3) provide for the government of any territory not within the limits of any province. Under this last-mentioned power provision has been made for the government of the North West Territories.

1 19 L. C. Jurist 210; 2 Cart. 165.

3 34 Vict. c. 28.

2 Can. S. C. R. 158; 2 Cart. 220. 4 Ib.

3. Treaties.

No treaty-making power has been conferred on the Dominion, but the Canadian Parliament may exercise all powers necessary for performing the obligations of Canada, or of any province thereof as part of the British Empire, towards foreign countries arising under treaties between the empire and such foreign countries 1.

4. Public Property.

The Public Property' of the Dominion is placed under the Dominion Parliament, whilst a provincial legislature has 'the management and sale of the public lands belonging to the province and of the timber and wood thereon 2. Under the head of provincial property is included the banks and beds of rivers 3.

5. Public Debt and Taxation.

(a) The Public Debt of Canada is under the jurisdiction of the Dominion. The Dominion may borrow on the public credit"," and a province on the 'sole credit of the province.'

(6) Direct Taxation within the province, for the purpose of raising a revenue for provincial purposes, is the exclusive function of a province. The meaning of 'direct' taxation was discussed in A. G. for Quebec v. Queen Insurance Company, and in the more recent case of The Bank of Toronto v. Lambe. In the former case a Quebec Act requiring insurance offices other than marine offices to take out a licence in every year, and pay for such licence by an adhesive stamp affixed to every policy or receipt, was held ultra vires inasmuch as it was in reality a Stamp Act, and therefore imposed an indirect tax. In the latter case a Quebec Act imposing a tax on banks varying in proportion to the paid up capital, and on Insurance Companies based on a sum specified in the Act, was held to be valid on the ground that the Act was designed to impose the tax finally on the Corporations who had to pay it, though it was possible that the Corporations might circuitously recoup themselves out of the pockets of their customers. The tax need not necessarily be for general provincial purposes, and it is immaterial that the persons taxed are not domiciled in the province 10.

One restriction exists on the power of a province to impose direct taxation: it cannot tax the income of Dominion officers residing in the province. To do so would be to lower the salaries

1 B. N. A. Act, s. 132.

B. N. A. Act, 8. 91 (1).

2 Ib. 8. 92 (5).

5 Ib. 8. 91 (4).

16 C. L. J. N. S. 198; L. R. 3 App. Ca. 1090. Dow v. Black, L. R. 6 P. C. 272.

3 R. v. Robertson, 6 C. S. C. 52. Ib. 92 (3). L. R. 12 App. Ca. 575. 10 Bank of Toronto v. Lambe, supra.

of such officers, and by section 91 (8) of the Union Act the Dominion has the sole power of regulating the salaries of its officials 1.

(c) Indirect Taxation. The Provinces are authorized to impose 'shop, saloon, tavern, auctioneer, and other licences, in order to the raising of a revenue for provincial, local, or municipal purposes 2.' All other indirect taxes can be levied by the Dominion alone, subject to the condition that no protective duty be levied as between provinces. The powers of a province to impose the above licences are extended by the powers referred to afterwards to regulate 'municipal institutions,' as the maintenance of order in towns, and the prevention of intemperance imply restrictions on the sale of liquors which may be best affected by licences. The raising of taxes by means of licences is a limitation of the Dominion right of legislating on 'trade and commerce.'

6. State Management and Administration.

Under this head may be classified the following matters:

i. Public Safety. The Dominion has sole jurisdiction in matters relating to (a) the Militia, Military and Naval Service and Defence *, (b) Quarantine.

ii. Public Works and Means of Communication.

To the Dominion is assigned:

(a) The Postal Service 5.

(6) Navigation and Shipping".

Ferries between a province and any British or foreign country, or between two provinces 7.

(d) Lines of Steam or other ships, railways, canals, telegraphs, and other works and undertakings connecting a province with any other province, or extending beyond the limits of a province 3.

(e) Lines of steamships between the province and any British or foreign country 9.

(f) Such works as, although wholly situate within a province, are before or after their execution declared by the Parliament of Canada to be for the advantage of two or more provinces 10.

The Provinces, on the other hand, have legislative jurisdiction over 'local works and undertakings,' not coming within the last three classes 11.

(9) The establishment and maintenance of marine hospitals are assigned to the Dominion; all other kinds of hospitals, as well as