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given to the State, not to the Federal power. Here, as said by Mr. Justice Strong, in Severn v. the Queen (2 Can. Supr. Court Reports, page 104): “That the regulation of trade and commerce in the Provinces, domestic and internal, as well as foreign and external, is by the British North America Act conferred upon the Parliament of the Dominion, calls for no demonstration, for the language of the Act is explicit.”
In the United States Constitution, the word “commerce" only is used; ours has the words “trade and commerce.” Some law dictionaries give the word “trade” as meaning “internal commerce,” whilst the word commerce would refer to foreign intercourse. But this appears to be a fanciful distinction, not recognized either in common parlance or in legal language. In either one or the other, the expressions: “the trade with the West Indies, with the United States . . . the foreign trade,” &c., are of every-day use, and, therefore, in the interpretation of the Imperial Act, we could not hold, it seems to me, that the word “trade” has been added to the word “commerce” simply to mean “internal commerce.” Leaving it out of the Act, the internal commerce of the Dominion would remain as it is; under the control of the Federal power. Every word of the Act must have its due force and appropriate meaning, and the Imperial Parliament, which, no doubt, whilst creating a Federal union among its North American possessions, had before its eyes the Constitution of the United States, must have intended by adding this word “trade” to the word “commerce" to give to our Federal authority supreme power, not only, over the commerce, internal as well as external, but also over the trade of the whole Dominion, internal as well as external. To revert to the case of Paul v. Virginia, the obiter dictum of Mr. Justice Field “that issuing a policy of insurance is not a transaction of commerce,” seems nothing but a truism. In the same sense, making a contract of sale is not a transaction of commerce. It is the fact of a person or corporation making a business of selling and buying, or of issuing policies of insurance, which gives to the contract of sale, or the contract of insurance, and to the seller or insurer, a commercial character. It is in accordance with this principle that the Civil Code of Lower Canada, Art. 2,470, says that fire insurances are not by their nature commercial, but that they are so, when made for a premium by persons carrying on the business of insurers.
So it is with the telegraphing business; for example, sending a message by telegraph is not a transaction of commerce, yet, telegraph companies, and the right to regulate them, are held in the United States to be under the Federal power as a part of commerce, and this, though a very large proportion of the telegraphic messages have nothing to do with commerce at all. (Western Union Telegraph Co. v. Atlantic and Pacific States Telegraph Co., 5 Nev. 102; Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U. S. 1.) With us, on the same principle, telegraph business would also be exclusively under Federal control, if the British North America Act did not expressly vest in the Local Legislatures the control over local and provincial lines—so long as the Federal Parliament does not declare them to be for the general advantage of Canada.
Against the decision of Paul v. Virginia, in the United States, a decision in our own Courts can be cited; Attorney General v. The Queen Insurance Co. (21 L. C.J. 77; 22 L. C. J. 307), in which Mr. Justice Torrance in the Superior Court in Montreal, and the five judges of the Court of Appeal, unanimously held, that a license tax on policies of insurance was a regulation of trade and commerce, and, as such, under the British North America Act, ultra vires of the Provincial Legislatures. The case was carried to the Privy Council, and the judgment of the Quebec Courts was confirmed without hearing the respondents. The Privy Council, however, disposed of it without deciding whether the Provincial License Act on insurance policies was a matter falling within the words “regulation of trade and commerce” of the British North America Act. It may, nevertheless, be remarked, that their Lordships in their judgment, after saying that the price of a license to a trader is usually ascertained by the amount of his trade, add, referring to the license imposed by the Quebec Legislature on insurance policies, “this is not a payment depending in that sense on the amount of trade previously done by the trader”—calling insurance business a “trade" and insurance companies “traders.”
Since Confederation, in many instances our Statutes have expressly or impliedly recognized Insurance Companies as trading companies. In the Insolvency Act of 1875 (38 Vic. cap. 16 sec., 1) it is enacted that the Act applies to traders and to trading companies, eaccept Insurance Companies. Now, it is an admitted rule of interpretation that the exception of a particular thing from general words proves that, in the opinion of the law-giver, the thing excepted would be within the general words, had the exception not been made. So that the opinion of the Federal Parliament must have been, when making the said exception in the said Statute, that Insurance Companies are trading Corporations. Moreover, in 32 and 33 Vic, cap. 12, sec. 3; 32 and 33 Vic. cap. 13, sec. 3; and 40 Vic. cap. 43, sec. 3, the Dominion Parliament has enacted that these Statutes should apply to any purposes or objects to which the legislative authority of the Parliament of Canada extends, except insurance. That is saying, clearly, that the legislative authority of the said Parliament extends to insurance. Indeed, the Dominion Parliament has given no uncertain sound on the question. Within the very first year of the Confederation (31 Vic. cap. 93) it exercised the power of legislation on the subject, and it has done so ever since, in no less than twenty-five Statutes passed thereon at various periods, as follows:—
To these may be added the six License Acts on Insurance Companies:–31 Vic, ch. 48; 34 Vic, ch. 9; 37 Vic. ch. 48; 38 Vic. ch. 20; 38 Vic. ch. 21 ; 40 Vic. ch. 42, in which the Dominion Parliament has also exercised the right to legislate on insurance and insurance companies, and to enact regulations on their trade and business, making at least (not including those of the session of 1880) thirty-one Statutes of the Federal Parliament which would fall to the ground as unconstitutional.
The Federal Parliament, in the general Railway Act of 1879, section 9, has enacted, as it had done in 1868 by the repealed Railway Act, that tenants in tail or for life, greves de substitutions, guardians, curators, executors, and all trustees whatsoever, may contract and sell their lands to the company. This is certainly an enactment on property and civil rights, yet it has never been doubted, since the twelve years that it is on the statute book, that it is perfectly constitutional. Indeed, without it, the enactments of the Federal Parliament might be in some instances entirely defeated and set at nought. In the United States the Federal power has in the same manner exercised its jurisdiction over civil rights and contracts. It having been settled, for instance, by judicial construction, that navigation was under Federal control, Congress has enacted laws regulating the form and nature of the contract of hiring the ships' crews. Pomeroy's Constitutional Law, Par. 381. It has altered the obligations imposed by the common law on the contracts made by ship-owners as common carriers, and though the validity of this enactment has never been directly decided upon by the Supreme Court, it has been brought before that tribunal in such a way that their silence was equivalent to a positive and formal judgment in favor of its validity, as demonstrated in Pomeroy's Constitutional Law, Par. 384. This Court has, in various cases, held, that the Federal Parliament on the matters left under its control by section 91 of the British North America Act, must have a free and unfettered exercise of its powers, notwithstanding that, by doing so, some of the powers left under provincial control by section 91 of the Act might be interfered with. And this doctrine has been approved of by the Privy Council as directly as possible in the case of Cushing v. Dupuy, decided a few weeks ago (April 15th, 1880), 3 Leg. N., 171. In that case it was contended by the appellant that the provisions of the Dominion Insolvency Act were ultra vires, because they interfered with property and civil rights, as well as with the procedure in civil matters, all of which are assigned exclusively to the Provincial Legislatures by the British North America Act. But that contention was disapproved of by their lordships in the following terms:–“The answer to these objections is obvious. It would be impossible to advance a step in the construction of a scheme for the administration of insolvent estates without interfering with and modifying some of the ordinary rights of property and other civil rights, nor without providing some mode of special procedure for the vesting, realization and distribution of the estate and the settlement of the liabilities of the insolvent. Procedure must necessarily form an essential part of any law dealing with insolvency. It is, therefore, to be presumed, indeed, it is a necessary implication, that the Imperial Statute, in assigning to the Dominion Parliament the subjects of bankruptcy and insolvency, intended to confer on it legislative power to interfere with property, civil rights and procedure within the Provinces, so far as a general law relating to those subjects might affect them.” And their lordships have held that the Dominion Parliament had, in bankruptcy and insolvency, rightly exercised the power to revoke, alter or amend a certain article of the Quebec Code of Civil Procedure.
A bill to incorporate the Christian Brothers, as a Dominion body, which was referred to the Judges of this Court by the Senate in 1876, was reported by them to be unconstitutional, and witra vires of the Federal Parliament (Journal of the Senate, 1876, pages 155, 206). This bill purported to incorporate a company of teachers for the Dominion, and consequently, as such, infringed on the powers of the Provincial Legislatures, in which is vested, by section 93 of the British North America Act, the exclusive control over Education, and the learned judges, by declaring it unconstitutional, recognized the principle that in a matter constitutionally provincial, the Federal Parliament has not the power to incorporate a company for the Dominion. And it is as clear upon the same principle that the Federal Parliament could not incorporate Insurance companies, nor legislate in any manner whatsoever on their trade and business, if insurance was a matter constitutionally provincial, that is to say, left under provincial control by the British North America Act.
If legislation on insurance is left to the Provincial Legislatures by the British North America Act, the Federal Parliament had not the power to create the Citizens' Insurance Company. If, on the contrary, the power of legislation over insurance is left to the Federal authority, then this power is supreme and exclusive: the Federal authority alone can regulate this trade in all its details, and the Ontario Statute, which purports to do so, is ultra vires and unconstitutional.
It cannot be, according to both the letter and spirit of the British North America Act, that one Government could have the right to incorporate these companies, and another Government the right to regulate them and their trade and business. It cannot be, that the Provincial Legislatures could thus have it in their power to impede, impair, obstruct, and even defeat the enactments of the Federal authority.
The laws promulgated by the Dominion—by the Federal Parliament—under the provisions of the Imperial Act, must have their full sway from the Atlantic to the Pacific, unrestrained by any other legislative body; free from provincial control, without hindrance from provincial legislation. On the application of this rule rests entirely for our country the safe-guards against clashing legislation; against concurrent jurisdiction; against interfering powers; against the repugnancy between the right in one Government to pull down what there is an acknowledged right in another to build up; against the incompatibility of the right in one Government to destroy what it is