supreme court of the Dominion. Already in Canada, as in the United States, a large amount of constitutional learning and research is being brought every year to the consideration of the perplexing questions that must unavoidably arise in the interpretation of a written constitution.1 In the following pages I cite some of the more important decisions given by the high tribunals just mentioned, with the view of showing the conclusions they have formed with respect to certain legislative powers of the Dominion parliament and provincial legislatures.

2

Controverted Elections.

In 1874, the Dominion parliament passed an act imposing on the judges of the superior courts of the provinces the duty of trying controverted elections of members of the House of Commons. The question was raised in the courts, whether the act contravenes that particular provision of the 92nd section of the B. N. A. Act which exclusively assigns to the provincial legislatures the power of legislating for the administration of justice in the provinces, including the constitution, maintenance and organization of provincial courts of civil and criminal jurisdiction, and including procedure in civil (not in criminal) matters in those courts. The question came at last before the supreme court of Canada, which unanimously held:

That whether the act established a Dominion court or not, the Dominion parliament had a perfect right to give to the superior courts of the respective provinces, and the judges thereof, the power, and impose upon them the duty, of trying controverted elections of members of the House of Commons, and did not, in utilizing existing judicial officers and established courts to discharge the duties assigned to them by that act, in any particular invade the rights of the local legis

1 See Cartwright's cases under the B. N. A. Act of 1867, 5 vols., already issued from 1882 to 1896.

2 The Dominion Controverted Elections Act, 1874"; 37 Vict., c. 10. (Rev. Stat. of 1886, c. 9).

latures. That the Dominion parliament has the right to interfere with civil rights, when necessary for the purpose of legislating generally and effectually in relation to matters confided to the parliament of Canada. That the exclusive power of legislation given to provincial legislatures by sub-s. 14 of s. 92, B. N. A. Act, over procedure in civil matters, means procedure in civil matters within the powers of the provincial legislatures.1

Application was made to the privy council for leave to appeal from the foregoing judgment of the supreme court. Their lordships, in refusing such leave, expressed these opinions: That there is no doubt about the power of the Dominion parliament to impose new duties upon the existing provincial courts, or to give them new powers as to matters which do not come within the classes of subjects assigned exclusively to the legislatures of the provinces. That the result of the whole argument offered to their lordships had been to leave them under the impression that there was here no substantial question requiring to be determined, and that it would be much more likely to unsettle the minds of her Majesty's subjects in the Dominion, and to disturb in an inconvenient manner the legislative and other proceedings there, if they were to grant the prayer of the petition and so throw a doubt on the validity of the decision of the court of appeal below, than if they were to advise her Majesty to refuse it.2

In a later case it was decided that no appeal from the decision of the supreme court of Canada in a controverted election case will be entertained by the privy council of England. In giving their judgment their lordships stated that there are strong reasons why such matters should be decided

1Can. Sup. C. R., iii. 1 (Valin v. Langlois). This case came before the court on appeal from the judgment of Chief Justice Meredith, of the superior court of Quebec, declaring the act to be within the competency of the Dominion parliament, 5 Q. L. R., No. 1. The Ontario court of common pleas in 1878 unanimously agreed that the act was binding on them. Ont. Com. P. R., vol. xxix., 261. But certain judges of Quebec held adverse opinions. Quebec L. R., vol. v., p. 191.

25 App. Cas. 115; Cart., i. 158.

within a colony, especially it is "most important that no long time should elapse before the constitution of the body is known; and yet if the Crown is to entertain appeals in such cases, the necessary delays attending such appeals would greatly extend the time of uncertainty-which the legislature has striven to limit."1

Fire Insurance.

In 1876, the legislature of Ontario passed an act 2 intituled "An act to secure uniform conditions in policies of fire insurance." This statute was impeached on the ground mainly that the legislature of Ontario had no power to deal with the general law of insurance; that the power to pass such enactments was within the legislative authority of the Dominion parliament, under s. 91, sub-s. 2, B. N. A. Act, “regulation of trade and commerce." The question having come before the supreme court of Canada, it held that the act in question was within the competency of the Ontario legislature, and is applicable to insurance companies, whether foreign or incorporated by the Dominion.3

The question came finally before the privy council on appeal from the supreme court of Canada, and their lordships decided: That construing the words "regulation of trade and commerce by the various aids to their interpretation, they would include political arrangements in regard to trade and requiring the sanction of parliament, regulation of trade in matters of inter-provincial concern, and it may be that they would include general regulation of trade affecting the whole Dominion. Their lordships, however, abstained from any attempt to define

1 Glengarry Case, Kennedy v. Purcell, 7th July, 1888. See Cassells's Practice, 86; Can. Sup. C. R., xiv. 453-515.

239 Vict., c. 24; Ont. Rev. Stat., c. 167.

Can. Sup. C. R., iv. 215. The Citizens and the Queen Ins. Cos. v. Parsons, Western Insurance Co. v. Johnston. This judgment of the supreme court affirmed the judgments of the court of appeal for Ontario (4 App. Rep., Ont., 96, 103), which had affirmed the judgments of the queen's bench; 43 U. C., Q.B., 261, 271.

the limits of the authority of the Dominion parliament in this direction. It is sufficient for the decision of the case under review to say that, in their view, its authority to legislate for the regulation of trade and commerce does not comprehend the power to regulate by legislation the contracts of a particular business or trade, such as the business of fire insurance, in a single province, and therefore that its legislative authority did not in the present case conflict or compete with the power over property and civil rights assigned to the legislature of · Ontario by sub-section 13 of section 92. That the act in question, so far as relates to insurance or property within the province, may bind all fire insurance companies, whether incorporated by imperial, dominion, provincial, colonial or foreign authority. That the act of the Dominion parliament,1 requiring insurance companies to obtain licenses from the minister of finance as a condition to their carrying on business in the Dominion, is a general law applicable to foreign and domestic corporations, and in no way interferes with the authority of the Ontario legislature to legislate in relation to the contracts which corporations may enter into in that province.2

Since the first session of the Dominion parliament many statutes have been passed relating to insurance and insurance companies. The local legislatures have also granted acts of incorporation to companies that do business within the limits of a province. It is now authoritatively decided that the terms of paragraph eleven of section 92 (giving powers to provincial legislatures for provincial objects), are considered sufficiently comprehensive to include insurance companies, whose object is to transact business within provincial limits. If a company desire to carry on operations outside of the province, it will come under the provisions of the general federal law, to which it must conform, and which contains special provisions for

138 Vict., c. 20.

245 L. T. N. S. 721; Cart., i. 265. The Citizens and Queen Insurance Cos. v. Parsons.

such purposes.1 The Dominion parliament may give power to contract for insurance against loss or damage by fire, but the form of the contract, and the rights of the parties thereunder, must depend upon the laws of the country or province in which the business is done.2 Policies of insurance being mere contracts of indemnity against loss by fire, are, like any other personal contracts against parties, governed by local or provincial laws. The provincial legislature has the power to regulate the legal incidents of contracts to be enforced within its courts, and to prescribe the terms upon which corporations, either foreign or domestic, shall be permitted to transact business within the limits of the province-the power being given to local legislatures by the constitution to legislate upon civil rights and property.3

The privy council, in their judgment, confirming that of the Canadian courts, made special reference to the fact that Dominion legislation has distinctly recognized the right of the provincial legislatures to incorporate insurance companies for carrying on business within the province itself.1

In this connection it is necessary to refer to the fact that certain legislation in the province of Quebec affecting insurance companies has been declared beyond the competency of the local legislature. The act in question (39 Vict., chap. 7) imposed a tax upon the policies of such insurance companies as were doing business within the province. The statute enacts: That every assurer carrying on any business of assurance, other than that of marine assurance exclusively, shall be bound to take out a license in each year, and that the price of such license shall consist in the payment to the Crown for the use of the province at the time of the issue of any policy or making or delivery of each premium, receipt, or renewal, of certain percentages on the amount received as premium on

1Fournier, J., Can. Sup. C. R., iv. 277, 278.

2 Harrison, C.J., 43 U. C. Q.B. 261; Doutre, 267.

34 Ont. App. 109.

4 See 40 Vict., c. 42, s. 28; Rev. Stat. of Can., c. 124, s. 3.