and or an order-in-council from the Lieutenant-Governor in Council. of each province. Under the division of powers made by the British North America Act the Dominion has power to enact provisions dealing with these matters without the local option provisions. It is a matter which has a provincial aspect which is compelling, so the present legislation indicates a policy that is very sound. The prohibitions of advertising are usually in some variation of the following comprehensive section and they are quite rightly held intra vires the provinces. Stat. Ont. 1919, c. 60, s. 22. "No person whether licensed or unlicensed acting either by himself, his clerk, servant or agent and no person as such clerk, servant or agent shall within Ontario print, publish, or distribute, either publicly or privately any circular or any newspaper containing a price list of intoxicating liquor used for beverage purposes however described, or any announcement however expressed having for its object the solicitation within Ontario of orders for such liquor, and no person within Ontario shall by any other means whatever solicit such orders. Every person who violates this section or any part thereof or allows such violation to be committed or contrived shall be guilty of an offence against the Ontario Temperance Act and shall incur the penalties provided by section 58 of the said Act. But nothing herein contained shall affect a manufacturer within the Province of Ontario provided that he does not print, publish or distribute as aforesaid any circular or newspapers which in the discretion of the board is objectionable." 26 This last sentence and the other provisions of the Act show a remarkable, lack of initiative considering the answer of the Privy Council to question 3 in the case of 1896. The newest problem is that arising under the Acts dealing with Government stores and governmental control.27 Thus section 64(1) of c. 146, R.S.B.C. 1924, provides that "Except in the case of. [Usual list of exceptions] . . every person who keeps, or has in his possession or under his control any liquor which has not been purchased from a vendor at a Government liquor store shall, by writing in the prescribed form, report the same to the board forthwith; and shall pay to the Board for the use of His Majesty in the right of the Province, a tax to be fixed by the Board either by a general order or by a special order in any particular case, at such rates as will, in the opinion of the Board, impose in each case a tax equal to the amount of the profit, which would have accrued to the Government in respect of the liquor so taxed if it had been purchased from a Government liquor store, increased by the addition to that amount of an amount equal to ten percentum thereof" Subsections 2 and 3 deal with the amount of the penalties which are heavy. The Supreme Court of British Columbia upheld this section as coming under number 2 of section 92, i.e., direct taxation within the province. Following the Manitoba Case of 1902 interference with Dominion Revenue is held to be no good reason for unconstitutionality. From a practical point of view this tax is not an easy one to collect, nor is it likely to increase the respect for, nor observance of, law and authority in British Columbia. Another question still untouched is that of total prohibition of the manufacture of liquor within a province by a provincial legislature. This was one of the questions submitted to the Privy Council in the case of 1896, ie., question 3. "Answer to question 3. In the absence of conflicting legislation by the Parliament of Canada, their Lordships are of opinion that the provincial legislatures would have jurisdiction to that effect if it were shewn that the manufacture was carried on under such circumstances and conditions, as to make its prohibition a merely local matter in the province!" There are manufacturers and distillers, etc, in the various provinces who are licensed to manufacture and or export under the Inland Revenue Act,28 which is a Dominion statute. All provincial and federal prohibitory Acts exempt these people from any penalties except as to sales to individuals for beverage purposes. The competency of the Dominion to legislate on these matters, i.e., licensing, probably comes under the power of the Dominion to impose direct and indirect taxation, and possibly in some of their aspects under Trade and Commerce. The Dominion prohibitory powers have by the Toronto Electric Case29 been put under the general power given by section 91, which power can only be invoked in emergencies to override specific provincial powers. The fact that provincial prohibitory legislation may interfere indirectly with the amount of Dominion revenues has never operated against such provincial legislation, i.e., Manitoba case of 1902. Why then should provincial prohibition of manufacture be ultra vires because it cuts off a source of Dominion Revenue? That the rights of the provinces in a contest of this sort would be upheld in the Supreme Court and the Judicial Committee, one can be certain of from the decisions and opinions in the Insurance litigation.30 Undoubtedly there as here two aspects were in conflict, but the practical nature of the legislation was looked at and quite properly the dominant aspect was considered to be the provincial Also the attempts of the Dominion to legislate by subterfuges, such as the criminal law have been unsuccessful.31 The only ground available to the Dominion, that of an existing emergency, is absent now, and it may well be doubted if an emergency ever did exist to justify the Canada Temperance Act A comment should be made on the answer of their Lordships of the Judicial Committee to question 3 noted above. It is characteristically evasive, and leaves an almost insuperable problem, that of conceiving any other aspect of manufacture of significance, except the aspect of “a merely local matter in the province." The question of taxation has never been answered in favour of the Dominion in such cases. The question of importation of liquor for the purposes of export, and the subsequent export of liquor, or the export of liquor already in the province has been dealt with by Dominion legislation already noted. These statutes still exempt persons licensed by the Dominion, and only the Dominion can affect exporters. The Dominion power to legislate for this purpose exists independently as contrasted with its prohibitory powers; this power coming under either Trade and Commerce or the opening clause of section 91. The legal theories involved in these problems now seem to be quite clear, but great confusion has been caused by careless and inept amendment of acts already sufficiently obscure. As usual in such cases the courts are held to blame for the sins of the legislatures, and as usual, most of all, their Lordships of the Judicial Committee of His Majesty's Imperial Privy Council. Halifax. 7 A.C. 829. [1925] A.C. 396. 3 City of Fredericton v. The Queen 3 S.C.R. 505 at p. 571 per Gwynne, J.. "Now, that the intemperate use of spirituous liquors is the fruitful cause of the greater part of the crime which is committed throughout the Dominion-that it is an evil of a national, rather than of a local or provincial character, will not, I apprehend, be denied. The adoption of any measures calculated to remove or deminish this evil... is, therefore, a subject of national rather than of provincial import, as calculated to promote the peace, order, and good government of Canada, is a matter in which the Dominion at large and all its inhabitants are concerned." jurisdiction regarding such portions of the province as to which the Canada Temperance Act is not in operation? (3) Has a provincial legislature jurisdiction to prohibit the manufacture of such liquors within the province? "(4) Has a provincial legislature jurisdiction to prohibit the importation of such liquors into the province? "(5) If a provincial legislature has no jurisdiction to prohibit sales of such liquors, irrespective of quantity, has such legislature jurisdiction to prohibit the sale by retail, according to the definition of a sale by retail either in statutes in force in the province at the time of Confederation, or any other definition thereof? "(6) If a provincial legislature has a limited jurisdiction only as regards the prohibition of sales, has the legislature jurisdiction to prohibit sales subject to the limits provided by the several sub-sections of the 99th section of the Canada Temperance Act, or any of them (Revised Statutes of Canada, 49 Vict. ch 106, sec. 99)? "(7) Has the Ontario Legislature jurisdiction to enact sec. 18 of the Ontario Act, 53 Vict. ch. 56, intituled "An Act to improve the Liquor License Acts," as said section is explained by Ontario Act 54 Vict. ch. 46, intituled. "An Act respecting local option in the matter of liquor selling'?" Answers to questions 1 and 2.Their Lordships think it sufficient to refer to the opinions expressed by them in disposing of the seventh question. Answer to question 3.-In the absence of conflicting legislation by the Parliament of Canada, their Lordships are of opinion that the provincial legislatures would have jurisdiction to that effect if it were shewn that the manufacture was carried on under such circumstances and conditions, as to make its prohibition a merely local matter in the province. Answer to question 4.-Their Lordships answer this question in the negative. It appears to them that the exercise by the provincial legislature of such jurisdiction in the wide and general terms in which it is expressed would probably trench upon the exclusive authority of the Dominion Parliament. (See, however, the correct version given in CANADIAN BAR REVIEW for March, 1923 and quoted below). Answers to questions 5 and 6.— Their Lordships consider it unnecessary to give a categorical reply to either of these questions. Their opinion upon the points which the questions involve has beeen sufficiently explained in their answer to the seventh question." The answer to the seventh question is in the affirmative, but the reasons take up most of the judgment and cannot be given in this short note. Extract from the Order in Council in Hodge v. The Queen as reported in Volume 1 of the CANADIAN BAR REVIEW at p. 231. "4. In answer to the fourth question:-No useful answer can be given to this question in the absence of a precise statement of the facts to which it is intended to apply. There may be some circumstances in which a Provincial Legislature will and others in which it will not have such jurisdiction. "7. In answer to the seventh question:-That the Legislature of Ontario had jurisdiction to enact section 18 of the Act 53 Vict. ch. 56, as explained by sec. 1 of the Act 54 Vict. ch. 46, but that the said enact ments are operative only in so far as they are not in conflict with any statutory provision competently made by the Parliament of Canada and being in force within the province or any district thereof." 9 Attorney-General of Manitoba v. Manitoba License Holders' Association [1902] A.C. 73. 10 Nova Scotia Temperance Act, R. S.N.S. ch. 158, 1923; 1924, ch. 78 am., 1925, ch. 69 am. New Brunswick Intoxicating Liquor Act, 1916, ch. 20; 1917, ch. 22 am.; 1918, ch. 57 am.; 1919, ch. 53 am.; Taxation of Liquor Exporters Act, 1922, ch. 3. Prince Edward Island. An Act to Consolidate the Provisions on Prohibition of Liquors, 1918, ch. 1; 1922, ch. 10 am.; 1923, ch 11 am.; 1924, ch. 12. sec. 8 am.; 1925, ch. 11, sec. 9 am. Quebec. Alcoholic Liquor Act, R. S. Que., ch. 37, 1925. Alcoholic Liquor Possession and Transportation Act, R.S. Que. ch, 38, 1925. Ontario. Ontario Temperance Act, 1916, ch. 50: 1917, ch. 50 am.; 1918. ch. 40 am.: 1919, ch. 60, ch. 61, sec. 2 am.; 1920, ch. 78, ch. 80 am.; 1921, ch. 73 am.; 1922, ch. 50, sec. 9 am., ch. 86 am., ch. 87 aff.; 1924, ch. 65 am., ch 66, sec. 10 rep.; 1925, ch. 67 am. Manitoba. Liquor Control Act. Consolidated Statutes of Manitoba, 1924, ch. 116; 1925, ch. 31-32. Manitoba Temperance Act, Consolidated Statutes of Manitoba 1924, ch. 118. Saskatchewan. Liquor Act, 1925, ch. 53; 1925-6, ch. 57 am. Sale of Liquor Act, R.S.S., 1920, ch. 194; 1920-21, ch. 70; 1921-22, ch. 76 am.; 1922, ch. 45 am. Alberta. Government Control and Sale of Alcoholic Liquors, Stat. Alberta, 1924, ch. 14; 1925, ch. 3 am.; R.S.S. Alberta, 1922. ch. 226; 1923, ch. 5; 1924, ch. 14; 1925, ch. 3. British Columbia. Liquor Control (Government Liquor Act), R.S.B.C. 1924, ch. 146; 1924, ch. 30 am. Canada. Canada Temperance Act R.S.C., 1906, ch. 152; 1908, ch. 71; 1910, ch. 58; 1914, ch. 53; 1916, ch. 14; 1917, ch. 30; 1919 (2 Sess.), ch. 8; 1921, ch. 20; 1922 ch. 11. Inland Revenue Act, R.S., Can., 1906, ch. 51; 1908, ch. 34; 1910, ch. 30; 1911, ch. 13; 1914 (2 Sess.), ch. 6; 1915, ch. 17; 1918, ch 28; 1920, ch. 52; 1921, chs. 26. 34; 1922, ch. 27; 1923, chs. 53, 54. 1926 amendments were unobtainable when this information was collected. 10a Stat. Man. 1924, ch. 118, sec. 119; Ont. Stat., 1916, ch. 50, sec. 139. 11 See also P.E.I. Stat. 1918, ch. 1, sec. 162; R.S.S. 1920, ch. 194, sec. 102. 12 Hudson Bay Co. v. Heffernan, 29 C.C.C. 38 (S.C. Can.).; Security Export Co. v. Hetherington, 1923, 3 D.L. R. 519 (S.C. Can.); Gold Seal Ltd. v. Dominion Express Co. and AttorneyGeneral for Alberta, 62 D.L.R. 62 (S. C. Can.); R. v. Regina Wine and Spirit, Limited; R. v Prairie Drug Co., 65 D.L.R. 258; Canada Drugs Limited v. Attorney-General of Saskatchewan, 67 D.L.R. 3. 13 Dominion. 10 Geo. V. ch. 8, 1919. An Act to Amend the Canada Temperance Act.. Section (1). The Canada Temperance Act, chapter one hundred and fifty-two of the Revised Statutes of Canada, 1906, is amended by adding the following part immediately after section one hundred and fifty-one thereof: Part IV-Importation and Manufacture of Intoxicating Liquor. 31-C.B.R.-VOL. IV. 152. Subject to subsection two of section one hundred and fifty-six, upon the receipt by the Secretary of State of Canada of a duly certified copy of a resolution passed by the Legislative Assembly of any province (or in the case of the Yukon Territory, of the Council of the Yukon Territory) in which there is at the time in force a law prohibiting the sale of intoxicating liquor for beverage purposes, requesting that the votes of the electors in all the electoral districts of the province may be taken for or against the following prohibition, that is to say, "That the importation and the bringing of intoxicating liquors into such province may be forbidden; the Governor in Council may issue a proclamation. Gold Seal Company v. Dominion Express Co. et al, (supra). See particularly opinion of Duff, J. 15 Security Export Co. v. Hetherington (supra). The Liquor Exporters Taxation Act 1922 (N.B.), ch. 3, which professes to impose a tax upon everybody who has in the Province liquor for export and upon everybody in the Province who sells or ships liquor to be delivered at any place outside the Province, is an enactment which the Province has no authority to pass in execution of its power to legislate in relation to the subject of "direct taxation within the Province" under section 92(2) of the B.N.A. Act. Hudson Bay Co. v. Heffernan (supra). The Saskatchewan Act to prevent the keeping of liquor for export to other provinces or to foreign countries is ultra vires as an interference with trade and commerce and not within the jurisdiction of a Provincial Legislature. 16 Stat. Ont., 1920, ch. 80. 17 Section 4 of ch. 80, Stat. Ont., 1920. (1) Every person within the Province of Ontario who, by himself, his servant or agent, (a) Transports or carries liquor within Ontario for sale or consumption within the Province; or (b) Transports or carries liquor from any brewery, distillery, warehouse, storehouse, dock, railway station or other place or premises within Ontario to any other place or premises or to any person in Ontario, for |