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REPORT Of a Committee of the Honourable the Privy Council of Canada, respecting the Acts of the Province… British Columbia. Legislative Assembly 1880

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 43 Vic. Correspondence—Acts of 1878. 351
REPORT
Of a Committee of the Honourable the Privy Council of Canada, respecting the
Acts of the Province of British Columbia, passed during the second Session of
1878.
By Command.
GEO. A. WALKEM,
Attorney- General.
Attorney-General's Office,
2Qlh April, 1880.
Copy of a Report of a  Committee of the Honourable the Privy  Council approved by His
Excellency the Governor-General in Council, 28th October, 1879.
On a report hereunto annexed, dated 15th August, 1879, from the Honourable the
Minister of Justice upon certain Acts passed by the Legislature of the Province of
British Columbia in the year 1878 (42 Victoria), and assented to in the month of
September in that year:—
The Committee concur in the said report, and accordingly recommend that the Act,
chapter 25, intituled " An Act relating to the Crown Lands in British Columbia," and
the Act, chapter 35, intituled "An Act to provide for tho better collection of Provincial
Taxes from Chinese," be disallowed. That the other Acts reported on be left to their
operation, and that the attention of the Government of British Columbia be called to
the remarks and to the case submitted in said report.
Certified.
(Signed)       J. O. Cote,
Assistant Clerk.
Department of Justice,
Ottawa, 15th August, 1879.
I have the honour to report upon certain Acts passed by the Legislature of the
Province of British Columbia in the year 1878 (42 Vic.), and assented to in the month of
September of that year.
Chapter 19.—"An Act to amend the Constitution Act, 1871, by creating a new
Electoraj, District and providing for a redistribution of seats in the Districts of Nanaimo,
Cowichan, and Kootenay."
This Act should be left to its operation.
Chapter 20.—" An Act to make further provision for the Administration of Justice."
This Act has already been by Order in Council left to its operation.
Chapter 21.—" An Act to enable the Lieutenant-Governor in Council to establish
a Tariff of Costs in the Supreme and County Courts."
This Act is doubtless within the legislative powers of the Provincial Legislature,
and as it does not interfere with Imperial or Dominion interests the power of disallowance should not be exercised with respect to it. The wisdom and expediency of its
provisions are, however, open to serious question.
Chapter 22.—" An Act to amend the Qualification and Registration of Voters' Act,
1876."
This Act is within the legislative authority of the Provincial Legislature and should
be left to its operation. The very stringent provisions of the fourth section, against
certain persons directly or indirectly influencing voters at Provincial elections will, I
fear, prove to be very difficult to enforce. 852 Correspondence—Acts of 1878. 1880
Chapter 23.—" An Act relating to the Protection of Game."
Chapter 24.—" An Act to amend the Highways Nuisance Removal Act, 1878."
These two Acts should be left to their operation.
Chapter 25.—" An Act relating to the Crown Lands in British Columbia."
The first section casts upon persons who had purchased Crown Lands before the
Act was passed, and upon persons who held leases or ferry charters, a liability never
contemplated by them when the purchase or leases were made.
The section declares that from and after the passing of the Act all moneys due in
respect of such purchases,, leases, or charters shall bear interest at twenty-four per cent,
per annum until paid.
The second section empowers the Chief Commissioner of Lands and Works, without
further notice to the purchasers of Crown lands than a mere notice in the British
Columbia Gazette, to cancel " all or any records or agreements concerning such land,
" and in such case the right of such person therein or thereto, and all money paid by
" him thereon, shall be absolutely forfeited, and he shall have no further right at law
" or in equity to the land so partially paid for."
If the whole subject matter of this Act were within the exclusive legislative control
of the British Columbia Legislature, I would feel some difficulty in recommending that
the Act be disallowed merely because its provisions did not accord with my views of
justice.
I recognize fully the importance of allowing the local Legislature to be the judges
of the wisdom and expediency of any Act falling within their exclusive legislative
authority.
This Act, however, seems to me to attempt to deal with a subject assigned by the
British North America Act exclusively to the Parliament of Canada—viz., the subject
of interest. The case of Ross vs. Torrance, the City of Montreal claimant, reported in
volume 2 of the Montreal Legal News, page 186, decides that a Statute of the Quebec
Legislature (41 Vic, cap. 27), which assumes to authorize the Corporation of Montreal
by By-law to enact an increase, addition, or penalty of ten per cent, on all arrears of
assessments, not paid within a certain day, is unconstitutional and void, as being beyond
the powers of a Provincial Legislature.
The Court held that the attempt to authorize the exaction of an " increase, addition,
or penalty" was an interference with the subject of interest.
The ease referred to is a clear authority against the constitutionality of the Act
now under consideration, and in view of the fact that the Government of the Province
are not in the same position as a private individual would be under similar circumstances, and that the purchaser of Crown lands or the holder of a lease or ferry charter
could not readily test the validity of tho Act in tho Courts as he could do were his
opponent a subject whom he could bring into Court in an ordinary action. In view,
also, of the nature of the Act itself, I have less hesitation in recommending its disallowance. I recommend, therefore, that the said Act (being Chapter 25 of the Statutes
of British Columbia, passed in the 42nd year of Her Majesty's reign, A.D. 1878, and
intituled "An Act relating to the Crown Lands of British Columbia,") be disallowed.
Chapter 26.—" An Act relating to certain Ordinances and Acts."
Chapter 27.—"An Act to amend the law respecting Retail Liquor Licencae."
Chapter 28.—" An Act relating to the British Columbia Loan Acts, 1874 and 1876,"
Chapter 29.—" An Act to amend the Mineral Act, 1878."
Chapter 30.—" An Act to provide for employing prisoners without the walls of
Common Gaols."
Chapter 31.—" An Act to amend the law relating to the Legal Professions."
Chapter 32.—"An Act to amend the School Tax Act, 1876."
Chapter 33.—" An Act for granting certain sums of money required for defraying
the expenses of Civil Government for the half year ending 31st December, 1878, and for
other purposes."
Chapter 34.—" An Act for granting certain further sums of money required for
defraying the expenses of Civil Government for the half-year ending 31st December,
1878, and for other purposes."
The above Acts should be left to their operation.
Chapter 35.—" An Act to provide for the better collection of Provincial taxes from
Chinese." 48 Vic. Correspondence—Acts of 18T8. 853
This Act has been held by the Supreme Court of British Columbia to be unconstitutional and void. The judgment has not been appealed from, and must be taken to be
the law. As it is clearly the duty of this Government not to allow an Act of this nature
—which has been declared by the Court to be ultra vires—to remain on the Statute
Book, I think it should be formally disallowed. I recommend, therefore, that the Act
of the Province of British Columbia passed in the 42nd year of Her Majesty's reign
(A.D. 1878), Chapter 35, and intituled " An Act for the better collection of Provincial
Taxes from Chinese," be disallowed.
Chapter 36.—" An Act to amend the Assessment Act, 1876."
This Act contains many detail provisions which, no doubt, will be found
useful in connection with the collection of taxes. Some of its provisions are very
stringent and may work hardships, but so long as they are within the legislative
authority of the Province their nature is not such as to call for an exercise of the power
of disallowance.
There are, however, certain provisions of the Act which call for remark as being
ultra vires of the Provincial Legislature.
The 10th section enacts that when taxes are delinquent (i.e., unpaid for a certain
specified time) twenty-five per cent, thereof shall be charged thereon and added
thereto, and shall form part of such delinquent tax, and interest shall at once attach
thereon after the rate of eighteen per cent, per annum. Provisions then follow for the
collection of the amount by sale of the land, etc., etc.
According to the decision in the case of Ross vs. Torrance, above referred to, the
attempt to add the 25 per cent, and the 18 per cent, interest to the unpaid taxes is void.
Were the Statute now under consideration of a nature similar to the "Act relating to
the Crown Lands in British Columbia," which has been recommended to be disallowed,
I would feel called upon to make the same recommendation with respect to it. The
objection to this Act, however, from a constitutional point of view, relates to the
provisions which affect the amount merely of the tax ; the other provisions, though in
some respects stringent, are within the powers of the Provincial Legislature, and it must
be presumed that they have been found necessary in the public interests, and they are
not of such a nature as to call for interference therewith by the Dominion Government.
Any person desiring to test the legality of the claim for the 25 per cent, addition
and 18 per cent, interest, will have a convenient way of doing so by proceeding against
the Collector to restrain a seizure or sale, or by testing the validity of the sale with the
purchaser.
In this respect the Act differs materially from the one which has been recommended
for disallowance.
Under all the circumstances, I think the better course will be to leave the Act to
its operation, at the same time calling the attention of the British Columbia Government
to the above remarks, and to the case of Ross vs. Torrance, above referred to, in order
that they may consider the advisability, in the public interests, of amending the Act
next session in such a manner as will remove the constitutional objections thereto, and
at the same time prevent the litigation and feeling of insecurity with respect to tax titles
which will undoubtedly arise if the Act be attempted to be enforced in its present
shape. *I recommend, therefore, that this course be followed.
Chapter 37.—"An Act to amend the Cariboo Waggon Road Tolls Act,1876."
This Act will be reported on at future time.
Chapter 38.—"An Act to amend an Act to afford owners and occupiers of land a
summary remedy in certain cases of trespass.
This Act is unobjectionable, and should be left to its operation.
^Signed) Z. A. Lash, D.M.J.
I concur,
(Signed)   Jas. McDonald, M.J.

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