Gold Seal Ltd. v. Alberta (Attorney-General)

Gold Seal Ltd. v. Alberta (Attorney-General)
Collection
Supreme Court Judgments
Date
1921-10-18
Report
(1921) 62 SCR 424
Judges
Davies, Louis Henry; Idington, John; Duff, Lyman Poore; Anglin, Francis Alexander; Mignault, Pierre-Basile
On appeal from
Alberta
Subjects
Constitutional law
Decision Content
Supreme Court of Canada
Gold Seal Ltd. v. Alberta (Attorney-General), (1921) 62 S.C.R. 424
Date: 1921-10-18
Gold Seal Limited (Plaintiff) Appellant;
and
Dominion Express Company. Defendant
and
The Attorney-General for The Province Of Alberta. (Intervenant) Respondent
1921: May 10, 11; 1921: October 18.
Present:—Sir Louis Davies C.J. and Idington, Duff, Anglin and Mignault JJ.
ON APPEAL FROM THE APPELLATE DIVISION OF THE SUPREME COURT OF ALBERTA. Constitutional law—"Canada Temperance Act," R.S.C. (1906) c. 152— Validity of Part IV, as added by (C.) 1919, 10 Geo. V., c. 8—Proclamation—Essential provisions—Hours of polling—Curative Act of 1921, 11 & 12 Geo. V., c. 20—Retrospective effect—Civil rights— B.N.A. Act (1867) ss. 91, 91 (2), 92, 121—"Companies Act," R.S.C. (1906) c. 79—"Dominion Elections Act," 10 & 11 Geo. V., c. 46—"The Liquor Act," (Alta.) 1916, 7 Geo. V, c. 4r-"The Liquor Export Act" (Alta.) 1918, 8 Geo. V., c. 8.
Part IV, added to the "Canada Temperance Act" by c. 8, 10 Geo. V, (1919), and prohibiting the importation of intoxicating liquor into those provinces where its sale for beverage purposes is forbidden by provincial law, is intra vires of the Dominion Parliament under its general power "to make laws for the peace, order and good government of Canada."
Per Sir Louis Davies C.J.—The validity of that Act can also be supported upon the power of the Dominion by section 91 (2) B.N.A. Act, to make laws for "the regulation of trade and commerce." Duff J. semble. Per Idington J.—Its validity could also be upheld under the powers given to the Parliament of Canada relative to "the criminal law and the procedure in criminal matters," B.N.A. Act, s. 91, s.s. 27.
Held, also, that the Alberta "Liquor Act," though some of its provisions may be ultra vires, is still a valid prohibitory Act within the meaning of Part IV of the "Canada Temperance Act."
Held, also, that prohibition of import in aid of temperance legislation is not within the purview of section 121 of the B.N.A. Act, as the object of that section is to ensure that "articles of the growth, produce or manufacture of any one of the provinces" shall not be subjected to any customs duty when carried into any other province. Idington J. contra.
Held, also, that the Dominion Parliament can enact laws which may become operative only in certain provinces or which may aid provincial legislation.
Held, also, Duff J. dissenting, that non-compliance with the imperative requirement of sub-section (g) of section 152 of the "Canada Temperance Act," that the proclamation of the Governor in Council for taking the poll should state "the day on which in the event of the vote being in favour of the prohibition, such prohibition will go into force," was fatal to the validity of all subsequent proceedings, including the orders in council bringing prohibition into force.
Per Idington J.—The proclamation was also void on the ground that it extended the hours for taking the poll beyond those expressly provided by the statute, section 101 of the "Dominion Elections Act" not being applicable. Anglin J. semble.
Per Duff J.—Under section 109 of the "Canada Temperance Act" and section 153 of the "Canada Temperance Amending Act," the Governor in Council had absolute discretion as to the date on which prohibition shall come into force and he was not authorized to limit the exercise of that discretion by an irrevocable decision at the time of the issue of the proclamation.
Per Sir Louis Davies C.J. and Anglin J.—The provision in Part IV that the prohibition shall be in force "if more than one-half of the total number of votes cast in all the electoral districts are in favour of such prohibition" is satisfied where more than one-half of the total votes cast in the province are in favour of prohibition, although in certain electoral districts there is a majority against prohibition; "in all the electoral districts" does not in the context mean "in each electoral district."
Before judgment was rendered in this case, the Parliament of Canada passed an Act, in 1921, 11 & 12 Geo. V., c. 20, declaring that "no order of the Governor in Council declaring prohibition in force in any province * * * shall be * * * ineffective, inoperative or insufficient to bring prohibition into force at the time thereby declared by reason of any error, defect or omission in the proclamation * * *. Held, Idington J. dissenting, that this Act was intra vires of the Parliament of Canada and had a retrospective effect. The legislative jurisdiction which authorized the "Canada Temperance Amending Act" of 1919 supports also the interpreting statute of 1921. Its validity cannot be impugned on the ground of interference with civil rights; per Duff J.—as this legislation, though affecting such rights, was not passed "in relation to" these rights.
Per Idington J. (dissenting).—The curative statute of 1921 cannot retrospectively affect the civil rights of the appellant which rested on provincial law, and these rights must be determined according to the law applicable to the province as it existed before such enactment.
Judgment of the Appellate Division ([1921] 16 Alta. L.R. 113,) affirmed, Idington J. dissenting.
APPEAL from the judgment of the Appellate Division of the Supreme Court of Alberta[1] dismissing the appellant's action, on a case stated for the opinion of the court raising the question of the validity of Part IV of the "Canada Temperance Act," ch. 8 of 10 Geo. V., 1919, and of the orders in council declaring it in force in Alberta and certain other provinces.
The essential parts of the stated case are the following:
1. The defendant is a body corporate with head office at the City of Toronto, in the Province of Ontario, having an agent and carrying on business at Calgary, in Alberta, and elsewhere throughout the Dominion of Canada.
2. The plaintiff, Gold Seal Limited, is a body corporate and politic duly incorporated by letters patent of the Government of Canada, under the Companies' Act, being Chapter 79, Revised Statutes of Canada, 1906, and amendments thereto.
3. The said letters patent of the plaintiff, Gold Seal Limited, were granted the 8th day of November, 1916, and contain inter alia the following provisions: (a) To engage in and carry on in Canada or elsewhere the business of wholesale and retail grocers, wholesale and retail druggists, bonded or other warehousemen, general traders, wholesale and retail merchants, brewers, maltsters, distillers, manufacturers, importers, exporters, packers or bottlers, distributors of all kinds of wines, spirits, malt liquors and of aerated, mineral and artificial waters and other drinks, of teas, coffees, baking powders, fruits, spices, drugs, all kinds of tobaccos and accessories of the tobacco business and any and all other articles and things which may be conveniently dealt in by the Company in connection with above businesses.
(b) To do all such other things as are incidental or conducive to the attainment of the above objects. The operation of the Company to be carried on throughout the Dominion of Canada and elsewhere.
* * *
5. The plaintiff has at all times since its incorporation carried on an interprovincial business throughout Canada as importer and exporter and distributor of all kinds of wines, spirits and malt liquors and has carried on the business of warehousemen in connection with its said goods.
* * *
8. On the 1st day of February, 1921, the plaintiff in the ordinary course of its business pursuant to bona fide transactions in liquor with persons in the Province of Alberta, Saskatchewan and Manitoba, respectively, duly tendered to the defendant as such common carrier the following goods:
* * * 10. Each of the said packages was plainly labelled so as to show the actual contents thereof and the name and address of the plaintiff, the consignor thereof, and each of the said packages was addressed to a bona fide person, the actual consignee thereof, at his private dwelling house, to be dealt with in a lawful manner, viz.: as a beverage, all of which was within the knowledge of the defendant at the time of the tender to it of the said package.
12. Each of the packages mentioned in paragraph 8 hereof contained intoxicating liquor as defined by the Canada Temperance Act.
13. The defendant has not only refused to carry the goods of the plaintiff as aforementioned but has notified the plaintiff that hereafter it will not carry any such wines, spirits, malt liquors or other intoxicating liquors from the plaintiff at Vancouver in the province of British Columbia to any person or persons or corporation in the Provinces of Alberta or Saskatchewan or Manitoba and that it will not carry any such wines, spirits, malt liquors or other intoxicating liquors from the plaintiff at Calgary in the Province of Alberta to any person or persons or corporation in the Province of Saskatchewan or Manitoba.
14. In addition to the tenders for carriage of the goods before mentioned on the 1st day of February, 1921, the plaintiff in the ordinary course of its business tendered to the defendant at Vancouver in the Province of British Columbia for delivery to the plaintiff's warehouse at Calgary, Alberta, the following goods:
* * *
16. Each of the packages mentioned in paragraph 14 hereof contained intoxicating liquor as defined by the Canada Temperance Act. 17. The defendant has notified the plaintiff that hereafter it will not cany any intoxicating liquors of any kind whatsoever to the plaintiff's warehouse at Calgary, Alberta, whether tendered for carriage by the plaintiff or any other corporation or person and whether to be used for export from Calgary, Alberta, to places where such liquors may be lawfully received or not.
18. The plaintiff is unable to procure any other means of conveyance for any of the goods herein mentioned.
19. The plaintiff is unable to carry on its business as an importer and exporter of intoxicating liquors by reason of the defendant's refusal to carry its goods.
20. The plaintiff has suffered damage in loss of profits on the said goods tendered to the defendant as aforementioned in the sum of $7,260.00, and will continue to suffer damage so long as the defendant refuses to carry intoxicating liquor for the plaintiff.
21. The defendant has refused and continues to refuse to carry the said or any intoxicating liquors to the plaintiff at Calgary, Alberta, and has refused and continues to refuse to carry said or any intoxicating liquors from the plaintiff at Calgary, Alberta, to any person in the provinces of Manitoba or Saskatchewan and has refused and continues to refuse to carry the said or any intoxicating liquors from the plaintiff at Vancouver in the Province of British Columbia to any person in the Province of Alberta on the sole ground that having regard to the provisions of the Canada Temperance Act being chapter 152 of the Revised Statutes of Canada 1906 as amended, and the Dominion Elections Act, chap. 46 of 10-11 George V., and orders-in-council, proclamations and pro- ceedings in the next paragraph hereof mentioned, the defendant could not lawfully carry the said or any intoxicating liquors into the Provinces of Alberta or Saskatchewan or Manitoba.
The questions of law stated for the opinion of the court are:
1. Having regard to all matters and things mentioned in this case and having regard to the Canada Temperance Act as amended, the Dominion Elections Act, the proclamations and orders-in-council and notices and proceedings referred to in this case, is the defendant prohibited in law from receiving and carrying intoxicating liquors from a point outside the Province of Alberta to the plaintiff's warehouse at Calgary, Alberta, for reshipment in the ordinary course of business to places in Canada outside the Province of Alberta or in foreign countries where the same may be lawfully received?
* * * *
A. A. McGillivray K.C., for the appellant.—Sections 152 et seq., added to the "Canada Temperance Act" in 1919 by 10 Geo. V., c. 8 are ultra vires of the Dominion Parliament. Russell v. The Queen[2]; Hodge v. The Queen[3]; Attorney General for Ontario V. Attorney General for Dominion[4]; City of Montreal v. Montreal Street Railway[5]; Attorney General for Manitoba v. Manitoba Licence Holders' Association[6]; because
(a) they are designed to aid provincial prohibition legislation; (b) The initial step for bringing the prohibitive section (No. 154) into force is a resolution of the provincial legislature;
(c) Such a resolution is ultra vires of a provincial legislature;
(d) The amendments apply only to certain provinces—those in which a local prohibition law is in force. As legislation dependent on the "Peace, order and good government" provision of sec 91 of the British North America Act (Russell v. The Queen[7], Dominion prohibition legislation to be valid must extend to the whole of Canada;
(e) The "liquor evil" is dealt with, not as a matter of Dominion wide importance, but as a matter of local importance in each province affected. Attorney General for Ontario v. Attorney General for Canada[8].
(f) The amendments interfere with free export and import as between provinces of articles which are the produce or manufacture of one of them, contrary to section 121 of the British North America Act;
(g) The amendments interfere with the civil rights of the individual citizen safeguarded by the provincial law to have intoxicating liquor in his private dwelling-house.
(II) that, if valid, upon a proper construction the prohibitive section, No. 154—one of the added sections—does not forbid the importation of intoxicating liquor intended for export;
(III) that sec. 154 has not been brought into force in Alberta, Saskatchewan or Manitoba,
(a) because there was not in force in such province a valid law prohibiting the sale of intoxicating liquors for use as a beverage; or, (b) because the requisite majority for prohibition has not been obtained; or,
(c) because essential steps prescribed for bringing s. 154 into force were not taken.
(d) because the proclamation of the governor in council for taking the poll did not state the day on which prohibition would go into force.
(e) because the proclamation contained different hours of polling than those specified in the statute.
IV. Retrospective operation ought not to be given to the curative statute of 1921 unless Parliament has by clear and unambiguous words made the Act retrospective. Young v. Adams[9]; Midland Railway Co. v. Pye[10]; Taylor v. The Queen[11]; Boulevard Heights Ltd. v. Veilleux[12]; Smithies v. National Association of Operative Plasterers[13]; Harding v. Commissioners of Stamps for Queensland[14]; Ex parte Wilson[15]; The Queen v. The County Council of Norfolk[16].
The curative statute of 1921 can have no effect upon this case, as this court can only give the judgment which the court appealed from should have given, on the law as it stood at the date of delivering judgment. Boulevard Heights v. Veilleux[17]; Lemm v. Mitchell [18]
H. H. Parlee K.C., for the respondent intervenant. The "Canada Temperance Amending Act" of 1919, is intra vires of the Dominion Parliament. Attorney-General for Ontario v. Attorney General for Canada (10); Russell v. The Queen[19]. This statute does not interfere with any matters of a local or private nature.
The proclamation is not invalid, as it is in conformity with section 109 of the "Canada Temperance Act" and section 153 of the "Canada Temperance Amending Act."
The "Liquor Act" of Alberta being, as a fact, an Act in force in that province, the governor in council could issue the necessary proclamation. The Queen v. Burah[20]; Gold Seal Limited v. Dominion Express Company[21].
The objections and grounds of error taken are not open to the appellant as, the vote being favorable to prohibition, the governor in council declared the Amending Act in force and the prior proceedings are not open to attack. Ex parte Tippett[22]; The Queen v. Hicks[23]; Reg. v. Shavelear[24].
The curative Act of 1921 has been made applicable to pending litigation; Boulevard Heights v. Veilleux[25]; Quilter v. Mapleson[26]; and the Supreme Court of Canada is bound to consider the effect of this amending statute.
It was the intention of the Parliament of Canada, when it passed the Act of 1921, to make the same retrospective.
THE CHIEF JUSTICE.—After the argument in this appeal, and after giving much consideration to the several points raised by the counsel for the appellant, I reached the conclusion that his contention must prevail, viz.: that the requirement of subsection (g) of sec. 152 of the "Canada Temperance Amending Act," 1919, (10 Geo. V., c. 8) was imperative and that non-compliance with it rendered all subsequent proceedings invalid. That section provided that
in any proclamation to be issued by the Governor in Council for taking the votes of all the electors in all the electoral districts of the province for or against the prohibition of the importation or the bringing of intoxicating liquors into the province, such proclamation shall set forth * * (g) the day on which, in the event of the vote being in favour of the prohibition, such prohibition will go into force.
No such day was stated in the proclamation in question in this case and, in my opinion, its absence was fatal to the validity of all subsequent proceedings.
This conclusion of mine was concurred in by the majority of the court, but, before judgment was delivered Parliament intervened and passed the Act of 1921, 11 & 12 Geo. V., c. 20, which declared:—
I. No proclamation heretofore or hereafter issued under Part IV of the Canada Temperance Act, as enacted by chapter eight of the Statutes of 1919, second session, shall be deemed to be void, irregular, defective or insufficient for the purpose intended merely because it does not set out the day on which, in the event of the vote being in favour of the prohibition, such prohibition shall go into force, provided it does state that such prohibition shall go into force on such day and date as shall by order in council under section 109 of the Canada Temperance Act be declared.
2. No order of the Governor in Council declaring prohibitions in force in any province, whether heretofore passed or hereafter to be passed, shall be or shall be deemed to have been ineffective, inoperative, or insufficient to bring prohibition into force at the time thereby declared by reason of any error, defect, or omission in the proclamation or other proceedings preliminary to the vote of the electors, or in the taking, polling, counting or in the return of the vote or in any step or proceeding precedent to the said order, unless it appear to the court or judge before whom the prohibition is in question that the result of the vote was thereby materially affected.
This statute made no exception from its application of proceedings in any suit pending at the time of its passage and however unjust this may seem to be, it cannot affect the validity of the Act itself. This Act, in my opinion, is perfectly constitutional, and being so cannot be called into question by us. It cured what I held to be the fatal defect in the proclamation. That being cured, I feel bound to uphold the validity of the proceedings bringing into operation the provisions of the Act of 1919, 10 Geo. V, c. 8, prohibiting the importation into the province of Alberta of intoxicating liquors. It was admittedly not competent for the local legislature to pass such an Act and, in my judgment, the Parliament of Canada, under its general power "to make laws for the peace, order and good government of Canada," and under its enumerated powers in sect. 91 (2) (B.N.A. Act) "for the regulation of trade and commerce" had such power.
On all the other points raised by the appellant in the argument of this case, I have reached the conclusion that the appeal fails and must be dismissed.
Under all the circumstances of this case, however, I think that the appellant company is entitled to be paid its costs throughout.
IDINGTON J. (dissenting).—The appellant is a company incorporated under the "Companies' Act," being chapter 79 of the Revised Statutes of Canada, 1906, for the following purposes amongst others:— (See page 426).
The respondent is a common carrier for hire also incorporated, for the purpose of so carrying from and to all points in Canada through which the Canadian Pacific Railway runs. Each of the said parties hereto had been carrying on its said respective business when the Alberta "Liquor Act" was passed and the amendments thereto were also passed and also when the "Liquor Export Act" of said province and amendments in question herein were passed.
The appellant's head office is in the City of Vancouver in British Columbia and there it has a private warehouse and it also, at the time in question herein, had a branch office and private warehouse in the City of Calgary in the Province of Alberta.
The admitted facts of the stated case so far as necessary to present what has to be acted upon in deciding this appeal, are stated therein as follows:— (See page 426).
The trouble between these parties arises solely out of the question of the validity of certain enactments by the respective legislatures of Alberta and Saskatchewan and Manitoba and supplementing same, the observance or rather non-observance of the provisions of the "Canada Temperance Act," c. 152 of the R.S.C. 1906, as amended, and the failure to observe same in the orders in council, proclamations and proceedings to carry same out; and possibly also the "Dominion Election Act," chapter 46 of 10 & 11 Geo. V.
Shortly and in plain English, if the carrying of said liquor in question so tendered for carriage would have been against the law as claimed by the Government of Alberta it would have been, the respondent must be excused for its refusal, but if the legislative provisions in question, or any of them, were so ultra vires the legislatures of Alberta, Saskatchewan or Manitoba as to be ineffective as excuses, then in whole or in part as the case may turn out the respondent is not excused. The questions raised are somewhat involved and may be made very confusing. It will be observed that the appellant, desirous of testing the various questions of right it sets up, made a series of tenders of shipment of liquor to the respondent and thus got a series of refusals.
The parties agree to submit their disputes to the Alberta court in the shape of a stated case, from which I have adopted above several paragraphs as setting forth essentially what is in dispute; to be illuminated so far as I can see by supplementing thereto the story of relevant law as I understand the decisions of the court above bearing thereon.
Beginning with the latest decision of said court directly bearing upon a very important part of the questions involved, we find that the Province of Manitoba passed in the year 1900 an Act for the suppression of the liquor traffic in that province.
In due course a test case was submitted to the Court of King's Bench for Manitoba by the Attorney General of that province and the Manitoba Licence Holders Association in which the question of its constitutional validity was threshed out. That court held that the legislature had exceeded its powers in enacting "The Liquor Act" as a whole.
On appeal to the Judicial Committee of the Privy Council that court reversed said decision and held that the Legislature had jurisdiction to enact said "Liquor Act." It is reported in Attorney General of Manitoba v. Manitoba Licence Holders' Association[27]. In that Act there was the following clause:— 119. While this Act is intended to prohibit and shall prohibit transactions in liquor which take place wholly within the Province of Manitoba, except under a licence or as otherwise specially provided by this Act, and restrict the consumption of liquor within the limits of the Province of Manitoba, it shall not effect and is not intended to affect bona fide transactions in liquor between a person in the province of Manitoba and a person in another province or in a foreign country, and the provisions of this Act shall be construed accordingly.
This was probably the result of the judgment of the Judicial Committee of the Privy Council in the case of Attorney General of Ontario v. Attorney General for the Dominion[28], where in answer to the following question
(4) has a provincial legislature jurisdiction to prohibit the importation of such liquors into the province? that court answered as follows:—
Their Lordships answer this question in the negative. It appears to them that the exercise by the provincial legislature of such jurisdiction in the wide and general terms in which it is expressed would probably trench upon the exclusive authority of the Dominion Parliament.
These judgments seem to settle much if duly observed in prohibition legislation.
But unfortunately the Legislature of Alberta after passing, in 1916, an Act taken evidently from said Manitoba Act containing same clauses as above quoted relative to importation, saw fit in 1918 to pass another Act in substitution of the former and not only omitted said section but attempted thereby and by numerous amendments to render importation impossible despite the above cited judgment of the Court above. At the same session the legislature enacted by ch. 8 an Act called "The Liquor Export Act," attempting thereby to prohibit the export thereof. I cannot refrain from suggesting that the exportation of all the liquor in or coming into Alberta from that province ought to be held as an aid in promoting the prohibition of the use of said liquor in Alberta which is all that the legislature of that province can be legitimately concerned about.
Passing that practical view of the matter I submit that the constitutional aspect of the subject matter thus brought forward seems but the counterpart of the importation question expressly passed upon by the judgment above quoted from the Ontario Case[29].
In short I agree with the result reached by the Alberta Court in the case of Gold Seal Limited v. The Dominion Express Co.[30], holding that Act ultra vires.
That brings me to the consideration of the possible bearing of what is involved herein of section 121 of the B.N.A. Act, which reads as follows:—
121. All articles of the growth, produce, or manufacture of any one of the Provinces shall, from and after the Union, be admitted free into each of the other Provinces.
This section has not, so far as I know, received anything but a casual consideration by any of the courts having to deal with such questions as are involved herein.
Indeed until the Alberta Acts, to which I have above referred, there was no legislation in which the rights established by said section would seem to have been plainly disregarded.
In the argument before us herein a reference to said section caused the inquiry to be made as to the facts of whether or not any of the said goods tendered for carriage had been of the "growth, produce, or manufacture of any one of the provinces." That fact was admitted and subsequently made to appear in a consent filed by leave of this court so far as appears therein.
Hence the question arises whether or not this section does not render ultra vires any effort by either local legislatures or parliament to override the said provision.
I incline to hold that it does unless in the possible case of an enactment by Parliament in the exercise of its exclusive jurisdiction over criminal law.
Certainly no single province, nor all combined, can override the plain meaning of the language used.
And when we turn to the "Regulation of Trade and Commerce," I think there are many decisions shewing that the powers to be exercised thereby are not applicable to anything that is likely to be involved in the meddling with this provision.
There may be, however, times when the products of a province may be infected with, for example, some contagious disease rendering it absolutely necessary, as matter of public safety, to forbid transportation across the lines bounding a province or a district therein.
It seems to me that the true and only remedy for such a condition of things would be the exercise by Parliament of its powers resting in its jurisdiction over criminal law and procedure in criminal matters.
The section, in my opinion, adds to the difficulties in the way of any provincial legislature seeking to bar the importation of liquor not alone from another country, which the court above expressly decided in the Attorney General for Ontario v. The Attorney-General for the Dominion[31], such legislation could not do, but also from one province where manufactured into another. Again there is, by virtue of the recent decisions of the Judicial Committee of the Privy Council in the Great West Saddlery Company v. The King[32], and other cases heard together therewith, established the doctrine that a legal entity created by virtue of the provisions in the "Dominion Companies Act" above cited, has rights, despite local legislation, such as no individual citizen would think of asserting.
It adds to the strength of appellant's case so far as Alberta and much of Saskatchewan legislation is concerned.
Until recently it had been generally supposed to be quite clear that corporations created by Parliament in virtue of its exclusive jurisdiction, for the due execution of any of the specific purposes, falling within the enumerated classes of subjects defined in section 91, of the B.N.A. Act, as, for example, banks and others, could be assigned such rights over property and civil rights as Parliament chose to confer.
On the other hand it had been as generally assumed that other corporate creations of Parliament rested upon its residuary powers alone and could not, as regards property and civil rights, exceed in capacity the powers of the private citizen when operating in any province, unless so far as the legislature of the province so concerned, in virtue of its exclusive authority over property and civil rights, had otherwise enacted.
Hence at a very early date the decision in the Citizens Insurance Co. v. Parsons[33], maintained the right of a provincial legislature to declare, by virtue of its said exclusive power over property and civil rights, the contractual capacity of any insurance company opera- ting in the province and the effective limitations of its contract and conditions therein, whether the company had been incorporated by the Dominion Parliament or elsewhere.
That I respectfully submit was an exercise by a provincial legislature of a power as great as or greater than to refuse a company, unless licensed, the right to assert its pretensions in the courts of its province.
The item of "Regulation of Trade and Commerce" in the enumeration of the class of exclusive powers assigned Parliament was pressed then and therein as it has been in numerous cases since, without availing the companies anything.
It was again brought forward in the John Deere Plow Co. v. Wharton[34].
The reasoning upon which the court proceeded is now declared, in the recent judgment above referred to, to have rested upon said item No. 2 of the British North America Act, though upon considering it in same cases when before us I doubted that intention, for reasons I set forth in that case[35].
The pith of all that was necessarily involved in the John Deere Plow Case34, was the refusal of the authorities in British Columbia to register the company unless and until it changed its name. I humbly conceived that it was not necessary in order to rectify such a wrong to hold that the item 2 of sec. 91 was the basis of the existence of all Dominion corporations save in specified cases otherwise covered by the enumeration of classes in said section.
Unfortunately the judgment of the court above in said Great West Saddlery Case [36] and other cases makes it clear that there can no longer be any hope of resting the creation of such corporations upon anything save in said item No. 2, relative to "trade and commerce," and that we cannot properly shrink from the very grave consequences of such a departure from the old view that the basis of such incorporation as there in question was the residual power of Parliament and not the item No. 2 relative to the regulation of trade and commerce as now asserted.
It is not our province to reconcile the view taken in the Parson's Case [37] and other cases with the latest exposition and decision pursuant thereto, but to apply the latest decision when no way of escape therefrom seems possible as bearing upon the issues raised herein.
It would therefore seem clear that a Dominion incorporation such as appellant, engaged merely in the import and export business, cannot by virtue of local legislation be debarred from carrying on its business.
Honestly doing such as it professes to have been doing could not necessarily infringe upon the prohibition of the local law against the consumption or selling of intoxicating beverages in the Province of Alberta.
Neither would the carrying by respondent for appellant to another province be necessarily against, or a violation of, the prohibitory legislation thereof, so long or far as such legislation could be held intra vires.
For the several foregoing reasons I am of the opinion that the refusal of the respondent to carry appellant's goods in question cannot be upheld unless by virtue of some enactment of Parliament.
It is contended by respondent that such legislation had been effectively enacted at the time in question. Have each and all of the foregoing difficulties in the way of a provincial legislature, rendering illegal such service as the respondent herein was asked by appellant to perform, been so overcome by Dominion legislation which has become effective and is not ultra vires.
That seems to me the crucial question herein.
10 Geo. V, ch. 8 amending the "Canada Temperance Act," if its several provisions for bringing it into force had been duly observed, in my opinion would have had such effect so far as Alberta was concerned.
The tender made for carriage of such goods from British Columbia into any of the other provinces in question herein, wherein said amendment has not been made effective, or elsewhere permitting of lawful carriage there of course stands good.
The appellant raises many objections to the validity of the proceedings to bring the amendment into effect.
In the first place its counsel points out that the same is only applicable to a
province in which there is at the time in force a law prohibiting the sale of intoxicating liquors for beverage purposes.
Although, for the reasons I have pointed out, the legislation in Alberta on the subject has exceeded I had almost said, all bounds, by enacting provisions that seemed in conflict with the law so declared by the court above in the Ontario Case[38], and in other respects which I need not repeat, yet when all these unwarranted attempts are blotted out there still remains a substantial enactment of what was taken from the Manitoba Act held valid, to constitute what might answer to the descriptive terms I have quoted as the basis for a further Dominion Act such as 10 Geo. V, ch. 8. Another objection taken is that Parliament cannot supplement and aid provincial legislation, I am of the opinion that it can and in doubtful cases of the respective jurisdiction of the provincial legislature and Dominion Parliament it is often advisable that there should be concurrent legislation to overcome such doubt or difficulty.
Again it is contended that Parliament cannot enact a law which may only become operative in a part of Canada.
I am quite unable to understand such a contention in face of the fact that the "Canada Temperance Act," which distinctly provided for counties and other municipalities by the votes of the electors, bringing same into force it should then and there become effective, and such conditional legislation was upheld in the Russell Case[39].
The condition of its becoming operative is by this amendment made dependent upon the vote of the electorate of the province to be affected, instead of being confined to that of the county or other municipality in question, rendering it so.
The conditional character of the legislation is in principle the same. And there is a very good reason for Parliament providing such a course. It requires the support of public opinion in any district affected by such legislation in order to render its enforcement effective, instead of becoming a mockery leading to evil results of a most undesirable kind.
Indeed it may be doubted whether or not the support of a bare majority of those voting can be relied upon as a safe guide in that respect. That, however, is a question with which we are not concerned. All we have to deal with is the existence of the power to enact such a conditional form of legislation. A number of other objections of less import made by counsel for appellant seem to me answered by the same mode of reasoning I have adopted as to one or more of the foregoing objections which I have specifically dealt with out of respect to the arguments presented.
Assuming for argument's sake, as has been suggested, that parts of the Alberta Acts trespass on the field of criminal law, when the Dominion Parliament which is possessed of absolute power over "criminal law and procedure in criminal matters," sees fit to pass an enactment which, with the rest of the "Canada Temperance Act," may well fall within and be attributed to an exercise of that source of its jurisdiction for so enacting though their Lordships in the court above in the Russell Case[40], assigned another as preferable, the room for dispute seems to me ended.
Even if to enforce that enacted within the reserved power of "peace, order and good government" I submit the powers given relative to "criminal law and procedure in criminal matters" may be relied upon as well as the other, if inherently applicable.
There remains a further ground of objection taken by the appellant that the right of export is not touched by the amendment in question and hence the importation for the mere purpose of export is for a commercial purpose within the meaning of the amendment, sec. 154, s.s. 3.
This certainly is a fairly arguable point but I incline to think, having regard to what subsection (c) of section 154 regarding the transportation of liquor through the province and a doubtful import of the word "commercial" when read in connection with the rest of the proviso in which it appears, it was the evident purpose of the amendment, read as a whole, to exclude any other form of export but that provided by through transportation.
The final point made that the statutory provisions made for the amendment coming into force have not been duly followed seems to me fatal to the said proceedings.
The amended Act in question expressly provides that the Governor in Council
may issue a proclamation in which shall be set forth
(a) The day on which the poll for taking the votes of the electors for and against the prohibition will be held;
(b) that such votes will be taken by ballot between the hours of nine o'clock in the forenoon and five o'clock in the afternoon of that day;
(c) the day on which, in the event of the vote being in favour of the prohibition, such prohibition will go into force.
It seems to me idle to try to minimize the effect of these provisions and to try to justify such plain departures therefrom as were taken by extending, in the case of Manitoba and part of Alberta, the hours for taking the poll and also failing in each of the three provi