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CHAPTER XV.

THE STATES.

We have now dealt with the most prominent features of the Central Government in a Union of States. In this chapter, we shall attempt to indicate the provisions made by such Unions for the local or State Governments.

The subject is one which has a very wide scope, and no attempt has been made to compile an exhaustive account of all the rules for local government laid down by any given Union Constitution. All that has been done is to take certain specific points of importance and to summarise as shortly as possible the provisions of the American, Canadian, Swiss and Australian Constitutions, in so far as they deal with those points, indicating their practical results where it seemed necessary to do so. The legislative and taxing powers of the local Governments have been dealt with incidentally in the chapters on "Distribution of Legislative Power" and "Revenue"; and it has not been thought necessary to go into those powers in more detail in this chapter. Nor has it been possible to deal with State Judicatures in the space available.

I. CONSTITUTION.

The relation of the Union Constitution to that of the States Canada. is one of the points in which the Canadian Constitution differs from the ordinary type of Union Act. This is due to the fact that, with the taking effect of the British North America Act, the two Provinces of United Canada became separated from each other. Thus, whereas the Act-as far as Nova Scotia and New Brunswick Nova Scotia and New Brunswick. were concerned-merely provided [Sec. 88] that their respective Constitutions should, subject to the provisions of the Act, continue as they existed at the Union until altered under the authority of the Act; a new Constitution was provided by the Act itself for the Legislatures of Ontario and Quebec, based on the Act passed by the Legislature of United Canada to which reference has been made in the chapter on "the Creation of the Canadian Dominion." Under this Constitution, Ontario was given a Legislature to consist of a Lieutenant-Governor and a single House of eighty-two members, to be called the Legislative Assembly of Ontario [Secs. 69, 70]. In Quebec the Legislature was to consist of the LieutenantGovernor and two Houses-a Legislative Council of twenty-four members nominated by the Lieutenant-Governor, and a Legislative Assembly of sixty-five members "to be elected to represent the sixty-five electoral divisions or districts of Lower Canada [Quebec] in this Act referred to, subject to alteration thereof by the Legislature of Quebec: Provided that it shall not be lawful to present

to the Lieutenant-Governor of Quebec for assent any Bill for altering the limits of any of the electoral divisions or districts, and the assent shall not be given to such Bill unless an address has been presented by the Legislative Assembly to the Lieutenant-Governor stating that it has been so passed." [Secs. 71, 72, 80.] Definite provision was also made for filling up vacancies in the Legislative Council; for determining questions as to the qualification of members of the Legislative Council; for the appointment and removal of its Speaker by the Lieutenant-Governor; and for a quorum of its members and the decision of matters brought before it by a majority of votes, the Speaker having both an ordinary and a casting vote. [Secs. 73-79.]

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The Act then went on to deal with matters common to the Legislatures of both Ontario and Quebec. Provision was made for calling them together not later than six months after the Union and thereafter from time to time, not less than once in every year : Persons [other than Ministers holding an office of profit under the Province were disqualified for membership of its Legislature : Laws in force in the two Provinces at the date of the Union relative to . . . . . the qualifications and disqualifications of persons to be elected or sit as members of the Assembly. . . . .. the qualifications or disqualifications of voters, the oaths to be taken by voters, the Returning Officers, their powers and duties, the proceedings at elections, the periods during which such elections may be continued, and the trial of controverted elections and the proceedings incident thereto, the vacating of the seats of members," etc., were made applicable to elections of members to the Legislative Assemblies of the two Provinces: The duration of the Legislative Assemblies was to be four years, subject to prior dissolution by the Lieutenant-Governor : And those provisions of the Act which had been laid down for the House of Commons of Canada as to the election, duties and absence of the Speaker; the quorum; and the modes of voting; were made applicable also-as if re-enacted -to the Legislative Assemblies of Ontario and Quebec respectively. [Secs. 81-87.]

Such were the provisions of the British North America Act as to the constitution of the Legislatures of Ontario and Quebec. The Act also made certain general provisions for the constitution of the Legislatures of all the four Provinces which were original members of the Union. Thus Sec. 90 enacted that :

"The following provisions of this Act respecting the Parliament of Canada -namely, the provisions relating to Appropriation and Tax Bills, the recommendation of Money Votes, the assent to Bills, the disallowance of Acts, and the signification of pleasure on Bills reserved-shall extend and apply to the Legislatures of the several Provinces as if those provisions were here re-enacted and made applicable in terms to the respective Provinces and the Legislatures thereof, with the substitution of the Lieutenant-Governor of the Province for the Governor-General, of the Governor-General for the Queen and for a Secretary of State, of one year for two years, and of the Province for Canada."

[Comment upon the effect of this section has been made in the chapter on "The Governor-General."]

And Sub-sec. I of Sec. 92 gives the Provinces exclusive power as Amendment to:

"the amendment from time to time, notwithstanding anything in this Act, of the Constitution of the Province, except as regards the LieutenantGovernor."

This power has been exercised by many of the Provinces of Canada-
as far as the alteration of the composition of their Legislatures is
concerned. Thus :-

(1) Ontario has retained its single Chamber, but has increased
the number of members from 82 to 98.
(2) Quebec has retained its two Chambers. The Legislative
Council has still 24 members. The number of members of

the Legislative Assembly has been raised from 65 to 74.
(3) Nova Scotia has also retained its two Chambers. The Legis-
lative Council consists of 21 members nominated by the
Lieutenant-Governor for life. The House of Assembly has
38 members elected for a term of five years.

(4) New Brunswick abolished its Legislative Council in 1891. Its Legislature now consists of a Legislative Assembly of 46 members.

(5) Manitoba was admitted to the Dominion in 1870 as a Province with a Legislature of two Chambers. The Legislative Council was abolished in 1876. The Provincial Legislature now consists of a Legislative Assembly of 41 members elected on manhood suffrage for four years.

(6) British Columbia entered the Dominion in 1871. It has a Legislature of a single Chamber, called the Legislative Assembly, which consists of 42 members elected on manhood suffrage for four years.

(7) Prince Edward Island joined the Union in 1873. It has only a Legislative Assembly of 30 members.

(8) Saskatchewan became a Province of the Dominion in 1905. It has a Legislative Assembly of 25 members.

(9) Alberta also became a Province in 1905, and has also a Legislative Assembly of 25 members.

of Provincial Constitutions.

The following table shows the present representation of each of the Representation Canadian Provinces in the Dominion Legislature :

Province.

No. of Members
in

House of Commons.

of Canadian
Provinces in
Dominion
Legislature.

No. of Members
in
Senate.

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The Yukon Territory has also I member in the Dominion House of Commons.

*From Colonial Office List, 1908.

Australia.

In Australia the Commonwealth Act specially provides for the retention of the Constitutions of the several States. Thus Sec. 106 says that :

"The Constitution of each State of the Commonwealth shall, subject to
this Constitution, continue as at the establishment of the Commonwealth, or
as at the admission or establishment of the State, as the case may be, until
altered in accordance with the Constitution of the State."

The establishment of the Commonwealth has had some effect
upon the form of the Legislatures of the several States. Thus :-
(i.) New South Wales reduced the number of members of its
Legislative Assembly in 1904 from 125 to 90. The Legis-
lative Council still has 61 members [unpaid].

(ii.) Victoria in 1903 reduced the number of members in both
Houses. The Legislative Council now consists of 34, and
the Assembly of 65 members.

(iii.) Queensland has made no alteration. Her Upper House has
44, and her Lower House 72 members.

(iv.) South Australia reduced the membership of her Legislative
Council in 1901 from 52 to 18; and that of her House of
Assembly from 54 to 42.

(v.) Tasmania has made no alteration. The Legislative Council
has 18 members, and the Assembly 35.

(vi.) Western Australia has also made no alteration since the
establishment of Federation. Her Legislative Council con-
sists of 30, and her Legislative Assembly of 50 members.

Representation of States in Commonwealth Legislature.*
[As in September, 1907.]

State.

No. of Members in
Senate.

No. of Members in
House of Representatives.

1

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United States.

The Constitution of the United States makes no provision as to the Constitutions of the several States of the Union; though Article IV., Sec. 4, enacts that :

"The United States shall guarantee to every State in the Union a republican form of government, and shall protect each of them against invasion; and, on application of the Legislature, or of the Executive [when the Legislature can not be convened] against domestic violence."

Extracted from Colonial Office List, 1908.

In view of the facts that the constitutional limitations on the powers of the States are dealt with in the chapters on "Distribution of Legislative Power" and "Revenue "; and that the Constitutions of the several States are otherwise not affected by the Union Act, it appears to be unnecessary to discuss the form of the State Legislatures in the United States.

Article 6 of the Swiss Constitution provides that :

"The Cantons are required to demand of the Union its guaranty for their Constitutions.

"The Union shall accord this guaranty provided

"(2) That they contain nothing contrary to the provisions of the Federal Constitution;

(b) That they provide for the exercise of political rights according to Republican [either representative or democratic] forms;

"(c) That they have been accepted by the people and can be revised whenever an absolute majority of the citizens demands it."

A recent writer* on the Swiss Federal Constitution says that "the Constitutions are, in fact, amended with great frequency, especially in German Switzerland. In the four years from 1891 to 1895, for example, no less than twenty-three revisions took place, of which four were total revisions-that is, cases where a new Constitution was substituted for the old one. Such a continual revision naturally involves the copying of one Canton by another, and hence the process might be expected to result in making the Constitutions all alike, so that a single type would prevail over the whole country. To some extent that is the case; but a number of the older Cantons have preserved their traditions and still retain their ancient forms of government."

As to the form of the Cantonal Legislatures in Switzerland, Mr. Lowell goes on to draw a contrast between those Cantons in which the Landsgemeinde or mass-meeting of all the citizens has survived, and those which have adopted a more modern form of government. In the former the taxes, loans and more important expenditures are voted, and both ordinary laws and amendments of the Constitution passed by what is literally a meeting of all the citizens. The meeting is assisted by an executive council which prepares beforehand the business to be performed In the latter "all their governments are constructed upon one general type. Each of them has a single Legislative Chamber, usually known as the Great Council, which is elected by universal suffrage, and in all but a couple of Cantons is chosen for either three of four years. passes the laws, votes the taxes and appropriations, supervises the administration and appoints a number of the more important officials." Mr. Lowell also draws attention to three methods of limiting the power of the Great Councils of the Cantons. The first --which exists in seven of the German Cantons-is a provision by which a certain number of citizens "can require a popular vote

It

* Mr. A. L. Lowell: "Governments and Parties in Continental Europe," Vol. II., p. 221.

Switzerland.

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