4. In case any such provincial law as from time to time seems to the Governor-General in Council requisite for the due execution of the provisions of this section is not made, or in case any decision of the Governor-General in Council on any appeal under this section is not duly executed by the proper provincial authority in that behalf, then and in every such case, and as far only as the circumstances of each case require, the Parliament of Canada may make remedial laws for the due execution of the provisions of this section, and of any decision of the Governor-General in Council under this section. Sec. 94. Notwithstanding anything in this Act, the Parliament of Canada may make provision for the uniformity of all or any of the laws relative to property and civil rights in Ontario, Nova Scotia, and New Brunswick, and of the procedure of all or any of the courts in those three Provinces, and from and after the passing of any Act in that behalf, the power of the Parliament of Canada to make laws in relation to any matter comprised in any such Act shall, notwithstanding anything in this Act, be unrestricted; but any Act of the Parliament of Canada making provision for such uniformity, shall not have effect in any Province unless and until it is adopted and enacted as law by the Legislature thereof.

Sec. 95. In each Province the Legislature may make laws in relation to agriculture in the Province, and to immigration into the Province; and it is hereby declared that the Parliament of Canada may from time to time make laws in relation to agriculture in all or any of the Provinces, and to immigration into all or any of the Provinces; and any law of the Legislature of a Province, relative to agriculture or to immigration shall have effect in and for the Province as long and as far only as it is not repugnant to any Act of the Parliament of Canada.

The intention underlying this distribution of powers was very clearly described by Lord Carnarvon in introducing the Act into the House of Lords: His speech is quoted on p. 119.

As illustrating its effect in practice and the principles which have been followed by the Courts in its interpretation, the following extract from the judgment of the Privy Council in the case of the Citizens' Insurance Co. of Canada vs. Parsons may be found

useful:

"The scheme of this legislation, as expressed in the first branch of Sec. 91, is to give to the Dominion Parliament authority to make laws for the good government of Canada in all matters not coming within the classes of subjects assigned exclusively to the Provincial Legislature. If the 91st section had stopped here, and if the classes of subjects enumerated in Sec. 92 had been altogether distinct and different from those in Sec. 91, no conflict of legislative authority could have arisen. The Provincial Legislatures would have had exclusive power over the sixteen classes of subjects assigned to them, and the Dominion Parliament exclusive power over all matters relating to the good government of Canada. But it must have been foreseen that this sharp and definite distinction had not been, and could not be, attained, and that some of the classes of subjects assigned to the Provincial Legislature unavoidably ran into and were embraced by some of the enumerated classes of subjects in Sec. 91; hence an endeavour appears to have been made to provide for cases of apparent conflict; and it would seem that with this object it was declared in the 2nd branch of the 91st section for greater certainty, but not so as to restrict the generality of the foregoing terms of this section,' that [notwithstanding anything in the Act] the exclusive legislative authority of the Parliament of Canada should extend to all matters coming within the classes of subjects enumerated in that section. With the same object, apparently, the paragraph at the end of Sec. 91 was introduced, though it may be observed that this paragraph applies, in its grammatical construction only to No. 16 of Sec. 92.

* Quoted by Wheeler: "Confed. Law of Canada," p. 47.

"Notwithstanding this endeavour to give pre-eminence to the Dominion Parliament in cases of a conflict of powers, it is obvious that in some cases where this apparent conflict exists, the Legislature could not have intended that the powers exclusively assigned to the Provincial Legislatures should be absorbed in those given to the Dominion Parliament. Take, as one instance, the subject of Marriage and Divorce,' contained in the enumeration of subjects in Sec. 91. It is evident that solemnization of marriage would come within this general description, yet 'solemnization of marriage in the Province' is enumerated among the classes of subjects [Sub-Sec. 12] in Sec. 92, and no one can doubt, notwithstanding the general language of Sec. 91, Sub-Sec. 26, that this subject is still within the exclusive authority of the Legislatures of the Provinces. So the raising of money by any mode or system of taxation' is enumerated among the classes of subjects [SubSec. 3] in Sec. 91; but though the description is sufficiently large and general to include direct taxation within the Province in order to the raising of a revenue for Provincial purposes,' assigned to the Provincial Legislatures by Sec. 92 [Sub-Sec. 2], it obviously could not have been intended that, in this instance also, the general power should over-ride the particular one. With regard to certain classes of subjects generally described in Sec. 91, legislative power may reside, as to some matters falling within the general description of these subjects, in the Legislatures of the Provinces. In these cases it is the duty of the Courts to ascertain in what degree and to what extent authority to deal with matters falling within these classes of subjects exists in each Legislature and to define in the particular case before them the limits of their respective powers. It could not have been the intention that a conflict should exist; and, in order to prevent such a result, the two sections must be read together and the language of one interpreted and, where necessary, modified by that of the other. In this way it may, in most cases, be found possible to arrive at a reasonable and practical construction of the language of the sections, so as to reconcile the respective powers they contain and give effect to them all. In performing this difficult duty it will be a wise course for those on whom it is thrown to decide each case which arises as best they can without entering more largely upon an interpretation of the Statute than is necessary for the particular question in hand.

"The first question to be decided is, whether the Act impeached in the present Appeal falls within any of the classes of subjects enumerated in Sec. 92, and assigned exclusively to the Legislatures of the Provinces; for if it does not, it can be of no validity and no other question would then arise. It is only when an Act of the Provincial Legislature prima-facie falls within one of these classes of subjects that the further questions arise, viz., whether, notwithstanding this is so, the subject of the Act does not also fall within one of the enumerated classes of subjects in Sec. 91, and whether the power of the Provincial Legislature is or is not thereby over-borne."

The whole matter-as far as the Canadian Constitution is concerned-is well summed up by Mr. Lefroy "Legislative Power in Canada" [pp. 310-364], in the following propositions :

j.) "Secs. 91 and 92 of the British North America Act purport to make a distribution of legislative powers between the Parliament of Canada and the Provincial Legislatures [subject to the provisions of the Act itself], Sec. 91 giving a general power of legislation to the Parliament of Canada [within the territorial limits of the Dominion] subject only to the exception of such matters as by Sec. 92 are made the subjects upon which the Provincial Legislatures are exclusively to legislate.

(ii.) "[With the exception of laws in relation to agriculture and immigration*], if the subject-matter of an Act is within the jurisdiction of the Dominion Parliament, it is not [in its entirety] within the jurisdiction of the Provincial Legislatures [whether acting severally or in concert with each other,] though some of the provisions of such

* For this exception vide Sec. 95, B.N.A. Act.

K

Switzerland.

Act, ancillary to the main subject of legislation, may be within such Provincial jurisdiction; and if the subject-matter of an Act is not within the jurisdiction of the Provincial Legislatures [acting either severally or in concert with each other], it is within the jurisdiction of the Dominion Parliament.

(iii.) "With the exception of agriculture and immigration, there is no subject-matter over which there can [speaking strictly, be said to] exist concurrent powers of legislation; and even then [i.e., in relation to agriculture and immigration], should there be conflict, the authority of the Parliament of Canada is supreme, by express provision of Sec. 95 of the British North America Act."

But the language of the last Proposition should be taken as being subject to the following [Lefroy: "Legislative Power in Canada,' PP. 393-415]:—

"Subjects which, in one aspect and for one purpose, fall within the jurisdiction of the Provincial Legislatures may, in another aspect and for another purpose, fall within the jurisdiction of the Dominion

Parliament."

And the two, taken together, are finally stated by Mr. Lefroy [pp. 425-468] thus:

"In assigning to the Dominion Parliament legislative jurisdiction in respect to the general subjects of legislation enumerated in Sec. 91 of the British North America Act, the Imperial Statute, by necessary implication, intended to confer on it legislative power to interfere with [deal with and encroach upon] matters otherwise assigned to the Provincial Legislatures under Sec. 92, so far as a general law relating to those subjects so assigned by it may affect them [as it may also do to the extent of such ancillary provisions as may be required to prevent the scheme of such a law from being defeated]."

Each of these propositions is discussed by Mr. Lefroy with a wealth of reference to leading cases on the Constitution-Law of Canada decided both by the Canadian Courts and the Privy Council. Even when thus baldly stated, however, they perhaps define as clearly as possible the distribution of legislative power in Canada between the Dominion and the Provincial Legislatures: Certainly they provide an instructive comment upon the success of those who formed the Canadian Constitution in their attempt to avoid the pitfalls of the Constitution of the United States in this matter of the respective legislative rights of the Central and Provincial Legislatures.

In Switzerland, "the object of the Confederation is declared to be to insure the independence of the country against foreign nations, to maintain internal tranquility and order, to protect the liberty and rights of the Confederated citizens, and to increase their common prosperity.

"The Cantons are stated to be sovereign so far as their sovereignty is not limited by the Federal Constitution, and, as such, they exercise all rights not delegated to the Federal power The Confederation guarantees their sovereignty within the limits aforesaid, the liberty and rights of the people, the constitutional rights of citizens, as well as the rights and powers which the people have conferred upon the authorities. The Cantons are obliged

to demand from the Confederation a guarantee of their respective Constitutions, which is accorded upon condition that the same do not contain anything contrary to the stipulations of the Federal Constitution, that they ensure the exercise of political rights according to republican forms, and that they are accepted by the people and capable of revision when the absolute majority of the citizens demand it."*

The distribution of legislative power under the Swiss Constitution is as follows:—

I.-Powers held and exercised by the Central Government :

(i.) To declare war, make peace and conclude treaties [though the Cantons can conclude treaties with foreign countries, or make agreements among themselves on matters of local interest, so long as those treaties or agreements contain nothing contrary to the Confederation or to the interests of other Cantons. Over such treaties and agreements the Central Government exercises only the right of supervision]. (ii.) To have complete control of the Army; and manufacture and sell powder.

(iii.) To direct and appropriate all receipts from the postal, telegraphic and telephonic systems.

(iv.) To coin money; issue and repay bank-notes.

(v.) To manufacture and sell spirituous liquors.

(vi.) To control all matters of revenue and levy import and export duties.

(vii.) To legislate on matters involving questions of civil capacity, copyright, bankruptcy and patents [also measures of sanitary police with reference to epidemics of a dangerous nature].

(viii.) To expel from its territory foreigners who compromise the internal or external security of Switzerland.

(ix.) "To create, besides the existing polytechnic school at Zürich, a Federal University and other establishments for superior education, or to subsidize them."† [This right has not yet been exercised.]

AI-Powers of Central Government exercised through the Cantons :(i.) To order, or encourage by subsidies, public works for the benefit of all, or a considerable part of Switzerland; to enforce expropriations; to supervise dykes, forests in mountainous regions, torrents and the re-planting of woods.

(ii.) Laws concerning fishing and shooting.

(iii.) To control agreements made by the Cantons as to railway concessions; and the joining up of Swiss railways with those of neighbouring States.

* Adams: "The Swiss Confederation," p. 29.

† Adams:

The Swiss Confederation," p. 31.

Australia.

III.-Powers held by the Cantons as sovereign States :

(i.) Civil law, except as to the civil capacity of persons; criminal law; administration of civil and criminal justice [though certain matters of justice are left to the exclusive cognizance of the Federal tribunal].

(ii.) Cantonal and local police.

(iii.) Organisation of the Communes.

(iv.) Public works in general.

(v.) Education. To provide elementary instruction, which is obligatory and gratuitous. Organisation of schoolssubject to the Federal power mentioned above.

The following analysis of the distribution of legislative power under the Australian Federal Constitution is taken from the Annotated Constitution of the Australian Commonwealth [pp. 933937]:

The Parliament of each State is a creation of the Constitution of the State. The Constitution of each State is preserved and the Parliamentary institutions of each State are maintained without any structural alteration, but deprived of power to the extent to which their original legislative authority and jurisdiction has been transferred to the Federal Parliament. In the early history of the Commonwealth, the States will not seriously feel the deprivation of legislative power intended by the Constitution, but as Federal Legislation becomes more active and extensive the powers contemplated by the Constitution will gradually be withdrawn from the States Parliaments and absorbed by the Federal Parliament. The powers to be so withdrawn may be divided into two classes- exclusive' and concurrent.' Exclusive powers are those absolutely withdrawn from the State Parliaments and placed solely within the jurisdiction of the Federal Parliament. Concurrent powers are those which may be exercised by the State Parliaments simultaneously with the Federal Parliament, subject to the condition that, if there is any conflict or repugnancy between the Federal Law and the State Law relating to the subject, the Federal Law prevails and the State Law to the extent of its inconsistency is invalid.

"EXCLUSIVE POWERS.-The following are the powers which in course of time will be absolutely withdrawn from the States :

(1) "Power to make laws with respect to the seat of Government [Sec. 52 -i.). This power will become exclusive on the acquisition of the territory within which the seat of Government is situated [Sec. 125].

(2) Power to make laws with respect to places acquired by the Commonwealth for public purposes [Secs. 52-i. and [22].

(3) "Power to make laws with respect to any part of a State surrendered by the State to, and accepted by, the Commonwealth [Sec. 111]; or to territory placed by the Queen under the authority of, and accepted by, the Commonwealth [Sec. 122].

(4) Power to make laws with respect to departments of the Public Service transferred to the Commonwealth [Sec. 52-ii.]. This power will become exclusive immediately upon the transfer of the departments.

(5) "Power to make laws imposing duties of Customs and of Excise [Sec. 90]. This power will become exclusive on the imposition of uniform duties of Customs.

(6) "Power to make laws granting bounties on the production or export of goods [Sec. 90]. According to the literal words of the Constitution this power does not become exclusive until the imposition of uniform duties of Customs.