That a Statute of a State enacting that the Master and Wardens of a port should be entitled to demand and receive, in addition to other fees, the sum of five dollars, whether called on to perform service or not, for every vessel arriving in that port, was a regulation of commerce, and was unconstitutional and void.

In Pensacola Telegraph Co. v. Western Union Telegraph Co. (96 U. S., S. C. 1), Held:

That under the powers conferred upon Congress to "regulate commerce," the Electric Telegraph, as a powerful agency of commerce and inter-communication, comes within the controlling power of Congress as against hostile State legislation, and a Statute of Florida attempting to confer upon a single corporation the exclusive right of transmitting intelligence by telegraph over a certain portion of its territory is inoperative and void as conflicting with these powers.

In Siennott v. Davenport (22 How. 227), and Foster v. Davenport) 22 How. 244), Held:

That towboats and steamboats as instruments of commerce, when federally regulated and licensed, are not subject to State legislation.

In Gibbons v. Ogden (9 Wheaton, U. S., S. C. 1), Held:

That the Acts of the Legislature of the State of New York granting to Robert R. Livingston and Robert Fulton the exclusive navigation of all the waters within the jurisdiction of that State, with boats moved by fire or steam, for a term of years, are repugnant to that clause of the Constitution of the United States which authorizes Congress to regulate commerce, so far as the said Acts prohibit vessels licensed, according to the laws of the United States, for carrying on the coasting trade from navigating the said waters by means of fire or steam.

In Veasie et al v. Moor (14 How. 569), Held:

That a license to prosecute the coasting trade procured from the collector of the Port of Bangor conveys no privilege to use free of tolls, or of any condition whatever, the canals constructed by a State, or the water courses partaking of the character of canals exclusively within the interior of a State, and made practicable for navigation by the funds of the State, or by privileges she may have conferred for the accomplishment of the same end.

3. The raising of Money by any Mode or System of Taxation.

In Dow v. Black, L. R. 6 P. C. 282, their Lordships held :

That the 3rd Article of Sect. 91 is to be reconciled with the 2nd Article of Sect. 92 by treating the former as empowering the Supreme

Legislature to raise revenue by any mode of taxation, whether direct or indirect; and the latter as confining the Provincial Legislature to direct taxation within the provinces for provincial purposes.

5. Postal Service.

The Pensacola Telegraph Company v. Western Union Telegraph Company, 96 U. S., S. C. 1 :

The Act of Congress of July 24, 1866, entitled "An Act to aid in the construction of Telegraph lines and to secure to the Government the use of the same for postal, military and other purposes, so far as it declares that the erection of telegraph lines shall, as against State interference, be free to all who accept its terms and conditions, and that a Telegraph Company of one State shall not, after accepting them, be excluded by another State from prosecuting its business within her jurisdiction, is a legitimate regulation of commercial intercourse among the States, and is appropriate legislation to execute the Powers of Congress over the Postal Service.

8. The fixing of and providing for the Salaries and Allowances of Civil and other Officers of the Government of CANADA. In Leprohon v. City of Ottawa (2 Ont. App. 522), Held, by a unanimous Court, (Present-Spragge, C., Hagarty, C. J., C. P., Burton & Patterson, J. J. A.)

That a Provincial Legislature has no power under sub-sections 2, 8, 13 and 16 of sec. 91 of B. N. A. Act to impose a tax upon the official income of an officer of the Dominion Government.

That the salary of an officer of the Dominion Government fixed by the Parliament of Canada is not subject to reduction by the imposition of a tax made directly or indirectly by or through a Provincial Legislature. (Reversing 40 U. C., Q. B., 478.)

Held, further (adopting the reasoning of the Supreme Court of the United States in McCulloch v. Maryland, 4 Wheaton, 428), that all subjects over which the Sovereign power of the local Provincial Government extends, are objects of taxation, those over which it does not extend are exempt from taxation; and that this power does not extend to those means or instruments employed by the Dominion Government to carry into effect the powers conferred upon that body.

That all Government officers as public servants of the Dominion Government are an essential part of the means and instruments by which the Government of the Dominion is carried on, and as such are not objects of taxation by the Local Government.

Spragge, C., said: The powers of the Dominion Legislature and of the Provincial Legislature are distributed in classes assigned to each. The Provincial Legislature having only the powers specifically conferred; the Dominion Legislature having, besides those specifically conferred, all powers not specifically conferred upon the Local Legisla

ture.

In Evans et al. v. Hudon et al., (22 L. C. J., p. 268:)

Held, that the Legislature of the Province of Quebec has not the power to declare seizable the salaries of employees of the Federal Government and that the exemption of the salaries of public employees from seizure is a matter of public order.

In McCulloch v. The State of Maryland (4 Wheat. 429), held:

That the State Governments have no right to tax any of the Constitutional means employed by the Government of the Union to execute its Constitutional powers.

See sect. 92, ss. 13, as to the powers of the Federal and Provincial Governments in the regulation of the business of Insurance Corporations.

10. Navigation and Shipping.

The exclusive power of making laws relating to the navigation upon the navigable waters throughout the Dominion has been confided to the control of the Parliament of Canada. Cooley observes (Cons. Limit. p. 589) :

That the term "navigable" at Common Law was only applied to those waters where the tide ebbed and flowed, but all streams which were of sufficient capacity for useful navigation, though not called navigable, were public, and subject to the same general rights which the public exercised in highways by land. There has been a very general disposition to consider all streams public, which are useful as channels of commerce, wherever they are found of sufficient capacity to float the products of the mines, the forests, or the tillage of the country to market.

(p. 593). The State has the same power of regulating the speed and general conduct of ships or other vessels navigating its water highways, that it has to regulate the speed and conduct of persons and vehicles upon the ordinary highways, subject always to the restriction that its regulations must not come in conflict with any regulations established by Congress.

In King v. Russell (6 Barn. and Cress. 593), Sir John Bayley said:

The right of the public upon the waters of a port or navigable river is not confined to the purposes of passage; trade and commerce are the chief objects, and the right of passage is chiefly subservient thereto.

Unless there are facilities for loading and unloading, of shipping and landing, much of the public benefit of a port is lost. In the infancy of a port, when it is first applied to the purposes of trade and commerce, unless the water by the shore be deep, the articles must be shipped in shallow water from the shore and landed in shallow water on the shore. As trade advances, the inconvenience and mischief of this mode are superseded by the erection of wharves and quays, and, what is perhaps an improved species of loading wharf, a staith. But, upon what principle can the erection of a wharf or staith be supported? It narrows the right of passage. It occupies a space where boats before had navigated. It turns part of the water way into solid ground; but it advances some of the purposes of a port—its trade and commerce. Is there any other legal principle upon which they can be allowed ?— Make an erection for pleasure, for whim, for caprice, and if it interfere in the least degree with the public right of passage, it is a nuisance. Erect it for the purposes of trade and commerce, and keep it applied to the purposes of trade and commerce, and the interests of commerce give it protection, and it is a justifiable erection and not a nuisance.

In McBean v. Carlisle et al, (19 L. C. J. 276), Held:

That the public are entitled to all the advantages which a river in its natural state can afford for public purposes, and that there is no difference in that respect whether the river is navigable or not, or floatable or not; that it is the necessary consequence of this right of servitude that whoever impedes the natural flow of a river is liable to the damages occasioned thereby, and may be compelled either to remove the obstructions or to provide facilities equal to those the river afforded before the obstructions were made.

Dorion, C.J., in delivering the Judgment of the Court, said:

In the cases of Oliver and Boissonneault (Stuart's Rep., p. 526) and Chapman & Clarke (8 L. C. R., p. 147) the Courts held that millowners could not impede the floating of timber by the erection of booms. Proudhon, Dom. Pub., vol. 3, No. 683, cites an arrêt of 26th February, 1569, which ordered that slides should be made in every dam to facilitate the passage of floating timber.

In Oliva and Boissonneault, Chief Justice Sewell is reported to have said: "In every river which is navigable for boats or large vessels, or in every river which is floatable, that is, capable of floating logs or rafts (Nouveau Denizart, Vo. Flottage,) the public, as in England (Hale de jure Maris, C. 3, p. 309) and in America (3 Kent's Com., p. 344) have an easement or legal servitude, similar to the right of passage in a public highway.

Normand et al v. The St. Lawrence Steam Navigation Co. (4 Q. L. R. 1), Polette, J., jugé que :

Par l'Acte de l'Amérique Britannique du Nord, 1867, le Gouvernement de la Puissance du Canada ayant toute l'autorité législative et exécutive sur la navigation et les batiments, et par consequent, sur les rivières navigables et sur leurs lits, de même que sur leurs bords et rivages, quant à ce qui peut être nécessaire à la navigation, le Gouvernement de la Province de Québec n'a pas le pouvoir d'émettre des Lettres-Patentes octroyant un lot de terre à eau profonde dans une rivière navigable.

Bell v. La Corporation de Québec (2 Q. L. R. 305), Dorion, J.. jugé que : Les pouvoirs donnés à une Corporation de faire un aqueduc et tous les travaux nécessaires pour introduire l'eau dans une localité ne lui donnent pas le droit de faire des constructions nuisibles à la navigation sur une rivière navigable.

Regina v. Peters (2 Pugs. 352), Supreme Court, New Brunswick.

By 3 Vict., c. 70, the Corporation of St. John was authorized to make laws for the regulation of the Branch Pilots of St. John. Under this authority, before 1867, by-laws were made accordingly. In 1869 the city made another by-law relating to Pilots. Held, per Ritchie, C. J. :

That the regulation of Pilotage belonged to the Parliament of Canada under 91st sec. of B. N. A. Act of 1867, and after the passing of that Act the power to make by-laws relating to Pilots ceased.

Fisher & Wetmore, J.J., dissenting, Held: That under the 129th sec. of B. N. A. Act the power of the Corporation to make by-laws under 3 Vict., c. 70, was continued until the Parliament of Canada, legislated on the subject, and that the by-law was therefore valid.

In Ex parte Langan (3 Allen 135), Held, by the Supreme Court of New Brunswick, that the by-laws regulating Pilots and Pilotage, passed since the B. N. A. Act, 1867, by the Corporation of St. John, N.B., are ultra vires of the Provincial or Municipal Governments; the Confederation Act having given the exclusive power of legislation as to Navigation and Shipping to the Dominion Parliament.

Chief Justice Savage in The People v. The Rensselaer and Saratoga Railroad Co. (15 Wend 113), speaking of the State power to erect bridges over navigable waters under the United States Constitution, said:

Such power certainly did exist in the State Legislatures before the delegation of power to the Federal Government by the Federal Constitution. It is not pretended that such a power has been delegated to the general government or is conveyed under the power to regulate commerce and navigation.