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PAPERS Relating to the Acts passed by the Legislature of the Province of British Columbia during the… British Columbia. Legislative Assembly 1889

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 52 Vic. Acts op 1888. 493
PAPERS
Relating to the Acts passed by the Legislature of the Province of British Columbia
during the Session of 1888.
By Command.
JNO. ROBSON,
Provincial Secretary.
Provincial Secretary's Office,
July, 1889.
The  Under Secretary of State to the Lieutenant-Governor.
Ottawa, 19th June, 1889.
Sir,—I have the honour to transmit to you, herewith, for the information of your Government, copy of an approved Minute of Council and of the report of the Minister of Justice
thereto annexed, with respect to certain Acts, being chapters 35, 39, 41, 42, 44 and 46 of the
Legislature of the Province of British Columbia passed in the year 1888.
I have, <fec,
(Signed)       G. Powell,
Under Secretary of State.
Certified Copy of a Report of a Committee of the Honourable the Privy Council, approved by
His Excellency the Governor-General in Council on the \Qth June, 1889.
The Committee of the Privy Council have had under consideration a Report, dated 1st
June, 1889, from the Minister of Justice, with respect to certain Acts, being chapters 35, 39,
41, 42, 44 and 46 of the Legislature of the Province of British Columbia, copies of which Acts
were received by the Secretary of State on the 13th June, 1888.
The Committee concur in the report mentioned and herewith annexed, and they advise
that the Secretary of State be authorized to communicate a copy hereof to the Lieutenant-
Governor of British Columbia.
All which is respectfully submitted for Your Excellency's approval.
(Signed)       John J. McGee,
To the Honourable Clerk Privy Council.
The Secretary of State.
Department of Justice,
Ottawa, 1st June, 1889.
To His Excellency the Governor-General in Council:—
The undersigned has the honour to report upon the following Acts of the Legislature of
the Province of British Columbia, passed in the year 1888, copies of which Acts were received
by the Secretary of State on the 13th June, 1888 :—
Chapter 35, "An Act for granting certain sums of money for the Public Service of the
Province of British Columbia."
The undersigned begs to call attention to the provisions in section 1 and SchcrHlp B of
this Act, which was the Supply Bill for 1888, authorizing the payment to Messrs. Kinipple i 494 Acts of 1888.
Morris and William Bennett of a certain sum of money for services in connection with the
Craving Dock at Esquimalt, the same to be chargeable to the Dominion Government, under
Act 47 Vic, intituled "An Act relating to the Island Railway, the Graving Dock, and Railway Lands of the Province." From the information which has been submitted to the undersigned, he has reason to believe that this claim does not form a proper charge against the
Dominion Government, and he thinks it well that the Provincial Government should be
informed that, in leaving this Act to its operation, no recognition is made of the validity of
any such claim or charge against the Government of Canada.
Chapter 39, " An Act to prevent the spreading of Noxious Weeds."
This Act provides that any person who imports or offers for sale any seed in which there
is seed of certain noxious weeds therein mentioned, or who knowingly conveys the same from
one farm to another, either in fanning mills or threshing machines, shall for every such offence
or conviction be liable to a fine of not less than twenty dollars nor more than one hundred
dollars, to be levied and recovered on summary conviction before any two Justices of the Peace
having jurisdiction in that locality.
The undersigned entertains doubts as to whether this Act is within the power of the
Legislature which passed it. It seems to the undersigned that it is more legislation affecting
the criminal law than in respect to any matter mentioned in section 92 of the "British North
America Act." A somewhat similar statute was passed by the Legislature of Ontario in 1888
(51 Vic, cap. 32), having reference to the supply of milk to cheese and butter manufacturers,
which Act, in the month of February last, was declared ultra vires by the Queen's Bench
Division of the High Court of Justice in Ontario. An appeal from this judgment will shortly
be heard by the Court of Appeal. It is likely that within a short time there will be a judicial
decision upon the subject from that Court. In the view of the undersigned, the Ontario Act
and the one under discussion are subject to the same objections, and are likely to stand or fall
together. Under these circumstances, and anticipating an early decision on the subject, the
undersigned does not consider that the power of disallowance should be exercised in respect to
this Act.
Independently of the question of jurisdiction, the provisions of the Act seem to be somewhat objectionable, inasmuch as it appears to authorize a conviction for importing or offering
for sale any grains containing noxious seeds, even though the person accused may not have
known of the presence of such noxious seeds. This interpretation seems applicable to the first
part of the section, as it goes on to provide that any person who knowingly conveys from one
farm to another any such noxious seeds shall be guilty of an offence. This objection is, however, one which is for the consideration of the Legislature of British Columbia, if the Act be
within the authority of that Legislature.
Chapter 41, "Am Act for the relief of the settlers and owners of land upon Matsqui
Prairie."
Objection has been taken to this Act by various persons interested in the properties
affected by the legislation therein referred to. The undersigned does not, however, deem such
objections sufficient to justify Your Excellency's intervention in the matter, as the Act is
clearly within the power of the Legislature, and he recommends that the Act be left to its
operation.
Chapter 42, "An Act relating to the Corporation of the City of New Westminster."
This is an elaborate enactment providing for the government of the City of New Westminster, and for the regulation of its affairs. Section 1 of this Act gives the Corporation of
the City of New Westminster power, amongst other things, to give or accept notes, bills of
exchange, bonds, obligations, or other instruments, and contains the following proviso:—
"Provided, always, that the said Corporation shall not make or give any bond, bill, note,
" debenture, or other undertaking for the payment of a less sum than one hundred dollars
"($100), and any bond, bill, or note, debenture or other undertaking issued in contravention of
" this section shall be void : Provided, always, that nothing herein contained shall be construed
"to authorize the said Corporation to issue notes or bills of exchange payable to bearer, or to
"issue notes to circulate as those of a bank."
This provision would appear to be of doubtful validity, in view of the exclusive powers of
the Parliament of Canada to legislate upon 'the subject of bills of exchange and promissory
notes.
By section 44 of the Act in question, a Court of Revision, for the purpose of revising and
correcting the asm'smi^n. "o*l, i; created      Section 44a provides that there shall br> an appeal 52 Vic. Acts of 1888. 495
from such Court of Revision to the Judge or Acting County Court Judge having jurisdiction
within the city, who has power to fix the amount of assessment and issue execution for the
payment thereof.
Section 102 provides as follows :—" The Judge shall be paid the sum of twenty dollars for
" every day's actual and necessary attendance at such Courts whilst engaged at the revision of
" said lists, together with travelling expenses ; and such payment, and all other charges (not I
"otherwise hereinafter provided for) necessary to be incurred in connection with the holding/
" and proper conduct of the business of the Court, shall be paid by the Treasurer of the City^
"upon the certificate or voucher of the Judge as to the service performed, and in cases other
"than as to his own fees, as to the nature of the necessity for the service performed."
The undersigned deems it, his duty to make the following observations in respect to this
Act:—
In the year 1869 the Legislature of the Province of Ontario, in the Supply Bill of that
year, provided that there should be paid for that year and for every year thereafter, out of the
Consolidated Revenue Fund of Ontario, to the President or Chief Justice of the Court of
Error and Appeal and to each of the Judges of the Courts of Law and Equity in that Province
the sum of one thousand dollars.
On the 14th of July, 1869, the Right Honourable Sir John A. Macdonald, who was then
Minister of Justice, reported to Your Excellency's predecessor upon this Act, and in his report
he stated as follows :—"That the 6th section of chapter 1, being the Supply Bill for 1869, is
"also objectionable, as by the 96th and 100th clauses of the Union Act it is provided that the
" Governor-General shall appoint the Judges of the Superior Courts, and the Parliament of
" Canada shall fix and provide the salaries, allowances and pensions. It would seem that the
"Judges of those Courts cannot properly, and without a breach of its provisions, receive
" emolument of any kind from any but the power which appoints and pays them the legal
" salaries attached to their judicial positions. On these three Acts the undersigned, on the
" 20th February last, made a report to Your Excellency, which you were pleased to transmit
"to the Secretary of State for the Colonies, for the purpose of being referred to the Law
" Officers of the Crown in England, and the Attorney and Solicitor-General have given their
" opinion that it was not competent for the Legislature of Ontario to pass those Acts or either
"of them.
"The undersigned recommends that the attention of the Ontario Government be called to
"the two first-mentioned Acts and the 6th clause of the last Act, suggesting that they should
"be repealed next session, and no action taken meanwhile."
The opinion of the Law Officers of the Crown was to the effect that it was not competent
for the Legislature of Ontario to pass the section in question. The report of the Minister of
Justice having been approved was transmitted to the Government of Ontario, and subsequently
the Legislature of that Province passed an Act intituled "An Act to remunerate certain
members of the Court of Error and Appeal," by the first section of which the sixth section of
the Supply Bill of the previous year was repealed, but substantially repeating this provision in
that Act. Under these circumstances, the Minister of Justice, in a report dated the 19th
January, 1870, recommended that the Supply Bill of the Province of Ontario for 1869 should
be disallowed, and the same was accordingly disallowed, by an Order in Council dated the 20th
January, 1870.
Section 102 of the "New Westminster Act, 1888," is open to the same objection as the
legislation so disallowed, inasmuch as the Judge therein referred to is a County Judge whose
salary is payable by the Government of Canada, under the provision of the " British North
America Act."
Section 142 gives the Council the power from time to time to pass by-laws on various
subjects, a considerable number of which subjects are matters within the exclusive authority of
the Parliament of Canada.    Authority is given to pass by-laws :—
" (6.) For enforcing the due observance of the Lord's Day, commonly called Sunday,
"according to law."
"(9.) For preventing vice, drunkenness, profane swearing, obscene, blasphemous, or
" grossly insulting language, and other immorality and indecency, on any of the streets or in
" any public place within the limits of the city."
"(10.) For suppressing disorderly houses and houses of ill-fame."
"(13.) For restraining and punishing vagrants, mendicants, and persons found drunk or
"disorderly in any street, highway, or public place within the city limits." 496 Acts of 1888. 1889
"(14.) For preventing indecent exposure of the person, or other indecent exhibitions."
" (16.) For preventing cruelty to animals, and for preventing the destruction of birds."
"(23.) For regulating the encumbering, injuring, or fouling by animals, vehicles, vessels,
" or other means, of any public wharf, sewer, shore, river, or water."
" (38.) For preventing the violation of oemeteries, graves, tombs, tombstones, or vaults
"where the dead are interred."
"(70.) For licensing, regulating, and governing auctioneers and other persons selling, or
" putting up for sale, goods, wares, merchandise, effects, or real estate, by public auction."
"(71.) For licensing, regulating, or governing hawkers or petty chapmen, transient
"traders, and other persons carrying on petty trades, who have not become householders or
"permanent residents in the city, or who go from place to place or to other men's houses, or
"otherwise, carrying goods, wares, or merchandise for sale."
"(102.) For imposing penalties for light weight, and for imposing a reasonable fee
"therefor."    (Sic).
" (103.) For regulating the weight of bread and preventing the use of deleterious materials
" in making bread, and for providing for the seizure and forfeiture of bread made contrary to
"the by-law," and
"(106.) For preventing the sale of adulterated milk or other articles of food."
All the matters referred to in the foregoing list are matters which are more or less within
the exclusive authority of the Parliament of Canada. It is possible, however, that, all that is
intended by this legislation is that the Council of the City of New Westminster should be
invested with the power to make by-laws for the enforcement of whatever laws made by competent authority may be in force from time to time relating to these various matters, and in
that view the portion of the Act in question is unobjectionable. The legality of any by-law
framed in pursuance of this authority will depend upon its terms. In so far as it may be a
substantial provision relating to these subjects themselves, in which case it will probably be
invalid ; but in so far as it may contain provisions relating to the enforcement of the laws of
Canada, it may be a proper and useful provision.
The power to make by-laws in respect to the licensing of auctioneers, traders, and wholesale traders is a doubtful one, requiring an authoritative judicial decision for its final determination.
Section 177 authorizes the City Council, subject to the approval of the Lieutenant-
Governor in Council, to appoint from time to time, at such salary as the Council may fix, not
less than six hundred dollars per annum, and pay a Police Magistrate for the City of New
Westminster.
By section 179, the Mayor and Police Magistrate are given jurisdiction to try all offences
committed against the by-laws of the city, and by section 180 the Police Magistrate shall have
and exercise all the same lawful powers and authorities as have hitherto been had and exercised by any Stipendiary Magistrate of the Province of British Columbia, and by section 181
he has all the powers possessed by two or more Justices of the Peace. This jurisdiction is a
much narrower one than is attempted to be given to Police Magistrates by Provincial Legislatures.
Section 188 is as follows :—
" All fines and penalties imposed under this Act, or for enforcing any law of this Province
" made in relation to any matter coming within any other classes enumerated in section 92 of
"the 'British North America Act, 1867,' imposed within the said city, and to which the city
" may be entitled, and all fines and penalties for offences against the by-laws of the city shall
"be paid in to the City Exchequer."
The undersigned has grave doubts as to the authority of a Provincial Legislature to enact
a provision of this character. The question involved, however, is one which is expected soon
to be a matter for judicial decision.
Section 207 of this Act is liable to the same objections as were pointed out in reference to
section 1 of the same Act.
The undersigned begs to observe in reference to the whole Act, that it is doubtless of
great public benefit to the inhabitants of New Westminster, and that its disallowance would
possibly be productive of inconvenience and injury. The provision it makes for increasing the
salary of a County Court Judge may be reviewed by the Legislature, and as a County Court
Judge for New Westminster has not yet been appointed, Your Excellency has power to prevent the operation of that provision without exercising the power of disallowance. 52 Vic. Acts of 1888. 497
The undersigned recommends that the Provincial authorities of British Columbia be asked
to amend the Act in accordance with the views expressed in this report, and that the Act be,
in the meantime, left to its operation.
Chapter 44, "An Act to Incorporate the Crow's Nest and Kootenay Lake Railway
Company."
Section 23 of this Act is objectionable as an infringement of the provisions of the British
North America Act, giving exclusive legislative authority to the Parliament of Canada in
reference to bills of exchange and promissory notes. This objection, however, is not such as
would render necessary the disallowance of this Act by Your Excellency, and the undersigned
recommends that it be left to its operation.
Chapter 46, "An Act to Incorporate the Kootenay Railway and Navigation Company."
The object of this Act is to incorporate a company for the purpose of constructing from
the outlet of the Kootenay Lake to a point on Columbia River at or near the junction of the
Kootenay and Columbia Rivers, and also for the purpose of building, equipping, and maintaining a line of steamers on the Kootenay Lake and Columbia River, and it gives power to
the company to acquire, build, equip, and maintain a line of steamers and other vessels for the
purpose of carrying passengers to and from that point on the Kootenay River where the
southern boundary line of British Columbia intersects the said river, thence down the said
river to Kootenay Lake, and through and throughout said river and its navigable tributaries.
It appears to the undersigned that the objects for which the company is incorporated are
not "local works and undertakings" within the meaning of section 92 of the British North
America Act, but fall within the exceptions "A" and "B" of article 10 of that section. If
this be the correct view, the company is one which can be incorporated only by the Parliament
of Canada.
The constitutionality of the Act, however, is a question more particularly affecting the
corporators themselves, and may be left to the decision of such tribunal as may be called upon
to deal with it, and is not of such public importance as would necessitate its disallowance by
Your Excellency. The undersigned has, therefore, the honour to recommend that it be left to
its operation.
(Signed)       John S. D. Thompson,
Minister of Justice.
The  Under Secretary of State to the Lieutenant-Governor.
Ottawa, 24th June, 1889,
Sir,— His Excellency the Governor-General has had under his consideration in Council a
report from the Honourable the Minister of Justice upon certain Statutes of British Columbia
passed in the year 1888, the titles of which are given in the schedule annexed,  being numbered from 1 to 34, inclusive, and also numbers 36, 37, 38, 40, 43, 45, and 47, respectively.
His Excellency is advised that the said Statutes be left to their operation.
I have, &c,
(Signed)        G.  Powell,
Under Secretary of State.
SCHEDULE.
Chapter.
1. An Act to amend the "Bills of Sale Ordinance, 1870."
2. An Act to extend the provisions of the "Bridges Protection Act, 1864," to the Mainland
of British Columbia.
3. An Act to amend "An Act to provide for the better protection of Cattle Ranges."
4. An Act in relation to Civil Procedure
5. An Act to further amend the "Companies Act, 1878."
6. An Act respecting the changing of the names of Incorporated Companies.
7. An Act to amend the "Assize Court Act, 1885."
8. An Act for increasing the efficiency of County Courts.
9. An Act to constitute County Judges Criminal Courts. 498 Acts of 1888. 1889
Chapter.
10. An Act to amend "An Act respecting Absconding Debtors."
11. An Act to amend the "Trial of Controverted Elections Act, 1871."
12. An Act to enable certain Foreign Mining Companies to carry on business in British
Columbia.
13. An Act to amend the "Game Protection Act, 1887."
14. An Act to adjust the rights of Settlers on the former Townsite of Granville.
15. An Act to amend the "Justices of the Peace and Coroners Oaths Act, 1874."
16. An Act to amend the "Land Act, 1884."
17. An Act to further amend the "Land Registry Ordinance, 1870."
18. An Act to amend the "Licenses Ordinance, 1867,' and amending Acts.
19. An Act for the benefit of Mechanics and Labourers.
20. An Act respecting the " Married Women's Property Acts."
21. An Act to amend the "Coal Mines Regulation Act, 1877."
22. An Act to aid in the further development of Quartz Mines.
23. An Act to amend the "Municipality Amendment Act, 1887."
24. An Act to amend the "Municipality Act, 1881," and amending Acts.
25. An Act relating to Pawnbrokers.
26. An Act to amend the law relating to the sale or use of Poisons.
27. An Act respecting a grant of land, for way and  terminal purposes,  to the Crow's Nest
and Kootenay Lake Railway Company, British Columbia.
28. An Act granting to the Esquimalt and Nanaimo Railway Company certain  lands for
right of way and terminal purposes for Beeeher Bay Branch.
29. An Act to authorize the granting of a  certain  Land  Subsidy for and  in  aid  of  the
Kootenay Railway.
30. An Act to extend the provisions of  " An  Act to  authorize the granting  of a  certain
Subsidy for and in aid of the construction of the Shuswap and Okanagan Railway.
31. An Act respecting Recognizances.
32. An Act to amend the "Public School Act, 1885," and amending Acts.
33. An Act to amend the "Sheriff's Act, 1873," and amending Acts.
34. An Act to amend certain Statutes.
36. An Act to assess, levy, and collect Taxes on Property and Income.
37. An Act to further extend the powers of Trustees.
38. An Act to repeal an Act, Chap  33 of 1887, intituled "An Act for the Preservation of
the Peace within the Municipal Limits of the City of Vancouver."
40. An Act for the protection of Workmen's Wages.
43. An Act to enable the Nicola Mining Company (limited), of London, to hold lands in the
Province of British Columbia, and for other purposes.
45. An Act to enable the Esquimalt and Nanaimo Railway Company to construct a Branch
Line to Beeeher Bay.
47.  An Act to incorporate the Harrison Hot Springs Tramway Company, Limited.
victoria, b. c. :
Printed by Richarh VVolfkndkn, Printer to the Queen's Most Excellent Majesty.

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