which the Constitution was established and the respective positions inter se which the Commonwealth and the States were intended to occupy under it. In other words, a clear recognition of the Federal character of the system established by the Constitution of the Commonwealth is indispensable to a true interpretation of its provisions" Commonwealth Law Review, vol. 1, p. 201. (12) AMERICAN AND CANADIAN CONSTITUTIONS. (NOTES by SIR ROBERT GARRAN). The United States Constitution. Canadian cases as to the distribution of power, when applicable at all to the Australian Constitution, must be applied with the greatest caution. American cases, on the other hand, are often applicable in their entirety; but here, too, there are differences which, though they concern details rather than principles, are so important that they must be carefully borne in mind. The scheme of distribution of powers is as follows: (1) Congress is given legislative power as to specified matters only (Article I., section 8)—including “all laws which shall be necessary and proper for carrying into execution" the powers vested by the Constitution in Congress or the Executive. (2) The powers of the State Legislatures are residuary. They are not given exclusive power as to any specified subjectmatter; but they retain exclusive power wherever the power of Congress cannot reach (Tenth Amendment; cf. Australian Constitution, sections 107-109). (3) Few of the powers of Congress are expressed to be exclusive; and except as to these few, the State Legislatures retain concurrent power, though State laws must always yield when inconsistent with valid Acts of Congress. These principles are substantially identical with those of the Australian Constitution; but their application is modified by the following important differences : (1) The enumerated subject-matters of Federal legislative power are much fewer, e.g., Congress has no power to make laws as to bounties, quarantine, fisheries, banking, insurance, bills of exchange and promissory notes, trade marks, corporations, railway acquisition and construction in the States, or industrial arbitration-except so far as these subjects may be included in some other enumerated power, such as trade and commerce among the States. (2) The power of Congress as to inter-state and foreign commerce has (with some qualifications) been held to be exclusive a construction which in the Australian Constitution is negatived by the express words of section 107. This distinction is extremely important in connection with many of the American decisions as to the commerce power. (3) The American Constitution contains many express prohibitions, directed against either Congress or the State Legislatures, or both, which are not found in the Australian Constitution. E.g. the prohibitions against laws compelling an accused person to criminate himself, or depriving any person of property without "due process of law" (Fifth Amendment); against Federal or State ex post facto" laws, State laws " impairing the obligation of contracts," and Federal direct taxes unless apportioned among the States in proportion to population. Many American decisions which at first sight appear to be applicable in Australia are found on close inspection to turn on one or other of these prohibitions. 66 The Canadian Constitution. The provisions of the Canadian Constitution as to the distribution of power are extremely complex. The leading principles are: (1) That the subject-matters of provincial legislation are specific, those of the Dominion Parliament partly specific and partly residuary. (2) That the powers both of Dominion and Provinces are mutually exclusive. Both these principles, however, require to be stated with very important qualifications. In the first place, the Constitution. attempts to enumerate specifically some of the powers of the Dominion Parliament. We thus have two sets of enumerated powers, mutually exclusive; and yet these two fields are found in practice to overlap. The result has been a series of ingenious attempts, by judicial decision, to reconcile the two, with results which may be shortly stated as follows:-Where there is over-lapping of enumerated powers, the field is concurrent," and where in this concurrent field Dominion and Provincial legislation clash, the Provincial legislation to that extent gives way. Thus the specific powers of the Provinces are in a sense residuary. Dominion laws which are "ancillary" to either the residuary or the specific powers of the Dominion Parliament are valid even though they incidentally encroach on the specific powers of the Provinces. The following is an analysis of the mode of distribution : Dominion Legislative Powers. (1) General (residuary) power given by section 91-to make laws for the peace, etc. of Canada in relation to all matters not enumerated in section 92 as exclusive powers of the Provinces. This power can only be exercised for matters national in character, and not comprised in the enumerated powers of the Provinces : Attorney-General for Ontario v. Attorney-General for Canada, (1896) A.C., p. 348. (2) Matters enumerated in section 91. These are not deemed to come within any of the 16 classes enumerated in section 92: Attorney-General for Ontario v. Attorney-General for Canada, (supra); over-ruling dictum in Citizens Insurance Co. v. Parsons, 7 A.C.; where it was held that this provision only applied to class 16 of section 92. (3) Matters" ancillary" to residuary or enumerated powers. Provincial Legislative Powers. These are matters enumerated in section 92, but exclusive of matters enumerated in section 91. The Dominion has two kinds of legislative power-residuary and specific. The Provinces have one kind of legislative power, which is specific; but is at the same time residuary in the sense that it only covers so much of the enumerated matters in section 92 as are not included in the enumerated matters in section 91. Concurrent Powers. Though there are no subject-matters of express concurrent power (with one exception relating to agriculture) the existence of what is really a concurrent field has been established by judicial decision. Though the enumerated powers of the Dominion and the Provinces are expressed as exclusive, they overlap. 66 Where there is over-lapping of enumerated powers of the Dominion and the Provinces respectively, neither legislation will be ultra vires if the field is clear; if on this concurrent" field the two legislations meet, Dominion legislation prevails: Attorney-General of Ontario v. Attorney-General of Canada, (1894) A.C., 189; Tennant v. Union Bank of Canada, (1894) A.C., 31; Grand Trunk Railway of Canada v. Attorney-General of Canada, (1907) A.C., 65. This prevalence of Dominion legislation appears to extend to legislation (1) covered by enumerated Dominion power; (2) ancillary to enumerated Dominion power; See Lefroy, Legislative Power in Canada, pp. 347, 353, 526. Canadian Cases. These propositions may be illustrated by reference to a few of the leading Canadian cases. Citizens Insurance Co. v. Parsons, and Queen Insurance Co. v. Parsons, 7 A.C., 96.-The Dominion Parliament passed an Act requiring all insurance companies, whether incorporated by foreign, Dominion, or Provincial authority, to obtain a licence, to be granted only upon compliance with prescribed conditions. An Act of the Province of Ontario, dealing with policies of insurance entered into or in force in the Province of Ontario for insuring property in the Province against fire, prescribed certain conditions which were to form part of such contracts. The Provinces have exclusive power to legislate as to "property and civil rights within the Province." The Dominion has exclusive power to legislate as to "the regulation of trade and commerce." It was therefore held that the Ontario Act relates to property and civil rights within the Province and not to the regulation of trade and commerce," that it is therefore not inconsistent with the Dominion Act, and it is valid. 66 It is important to note that the questions for decision were :— (1) Is the subject-matter of the Provincial Act enumerated in section 92? If not, it is invalid; if so, it is valid, unless (2) the subjectmatter is also enumerated in section 91 and so withdrawn from section 92. It was claimed on behalf of the Citizens' Insurance Co. that being incorporated under Dominion law it could not be controlled by Provincial law; but the Court pointed out that the Provincial Act did not assume to interfere with the constitution or status of corporations. The decision is based on the complex provisions of sections 91 and 92, which it is held must be read together and the language of one interpreted and where necessary modified by that of the other, so as to reconcile the respective powers they contain and give effect to all of them. Though the Court held that the Dominion power to regulate trade and commerce did not include the regulation of the contracts of a particular trade in a single Province, it does not therefore follow that the Dominion Parliament might not have the power, by a general law relating to all the Provinces, to regulate such contracts -in which case its legislation would over-ride that of the Provinces. It is stated in Hodge v. The Queen, 9 A.C., at page 130, that the principle illustrated by the case of the Citizens' Insurance Co. and the case of Russell v. The Queen, 7 A.C., 829, “is that subjects which in one aspect and for one purpose fall within section 92 may in another aspect and for another purpose fall within section 91." The Colonial Building Co. v. Attorney-General of Quebec, 9 A.C., 157, at p. 166.-One of the enumerated exclusive legislative powers of the Province is "the incorporation of companies with provincial objects." The incorporation of companies does not fall within any enumerated power of the Dominion Parliament, but under its general or residuary power the Dominion Parliament has power to incorporate companies other than those with provincial objects. The Colonial Building Company was incorporated in Canada. generally by a Dominion Act, but had not yet exercised its powers outside the Province of Quebec. It was held that the fact of the non-exercise of powers did not affect the validity of the incorporating Act nor the status of the corporation thereunder. Inasmuch as the power to incorporate companies is a residuary and not an enumerated power of the Dominion Parliament, it is subject to the enumerated exclusive powers of the Provinces. Attorney-General of Ontario v. Attorney-General of the Dominion, (1896) A.C., 348, at p. 363.—A Dominion Act (the Canada Temperance Act of 1886), applicable to the whole of the Dominion, gave to the electors of every county or city the option of adopting the provisions |