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RETURN To an Order of the House for a Return of a copy of the judgment recently delivered by the Full… British Columbia. Legislative Assembly 1901

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 1 Ed. 7 Judgments—Naturalisation of Japanese. 611
To an Order of the House for a Return of a copy of the judgment recently delivered
by the Full Court of the Province with respect to the right of a naturalised
Japanese applicant to be placed upon the voters' list, and also of the judgment of
His Lordship Chief Justice McColl in the same matter.
Attorney-General's Office,
1st May, 1901.
In the Full Court (Vancouver).
In re Tomey Homma, \
and [-Judgment.
In re the "Provincial Elections Act."J
Walkem, J. : The facts which have given rise to this appeal are that Tomey Homma, a
naturalised Japanese, applied to the Collector of Voters for the Electoral District of Vancouver
City, to have his name entered on the Register of Voters. The Collector refused to make the
entry, as he considered that he was prohibited from doing so by section 8 of the " Provincial
Elections Act" (hereafter referred to as the " Franchise Act"), which is as follows :—
" No Chinaman, Japanese, or Indian shall have his name placed on the Register of
Voters for any Electoral District, or be entitled to vote at any election. Any Collector of
Voters who shall insert the name of any Chinaman, Japanese, or Indian on any such Register
shall, upon summary conviction thereof before any Justice of the Peace, be liable to.a penalty
not exceeding fifty dollars."
According to section 3—
" The expression ' Japanese' is to ' mean any native of the Japanese Empire or its
dependencies not born of British parents, and * include any person of the Japanese race,
naturalised or not.'"    (Rev. Stats., 1897, c. 67.)
Tomey Homma appealed to the County Court, with the result that the learned Chief
Justice ordered his name to be placed on the Register on the ground that the above enactment, in so far as it purports to affect naturalised Japanese, was ultra vires of the Provincial
Legislature.    From this order the Collector now appeals.
The question thus raised is, undoubtedly, one of great constitutional importance ; and
whether the Legislature had the power to pass the enactment or not depends upon the meaning of sections 91 and 92 of the B. N. A. Act, as they are the respective sources of the
separate legislative powers possessed by the Dominion and the Provinces.
In apportioning those powers, section 91 has given the Dominion Parliament exclusive
control of the several subjects enumerated in it, as well as of all others that are not specifically
assigned to the- Provincial Legislatures by section 92, and concludes with the following
paragraph :—
"And any matter coming within any of the classes of subjects enumerated in this section
shall not be deemed to come within the class of matters of a local or private nature comprised
in the enumeration of the classes of subjects by this Act assigned exclusively to the Legislatures of the Provinces."
This paragraph, when read in conjunction with the first part of section 91, is referred to
in the judgment of Sir Montague Smith in the case of the Citizens and Queen Insurance Cos.
v. Parsons, (1881-2)  7 Ap. Cas., at  p.   108,  as an  "endeavour  to give pre-eminence to the 612 Judgments—Naturalisation op Japanese. 1901
Dominion Parliament in cases of a conflict of powers " ; but, as he has further observed, the
Imperial " Legislature could not have intended that the powers assigned to the Provincial
Legislatures should be absorbed in those given to the Dominion Parliament" ; and, hence, it
is for the Courts to decide as best they can—not upon any general principle, but on the facts
of each case in which a conflict occurs—where the dividing line as to jurisdiction should be
drawn. Again, it must be borne in mind that the above paragraph has been held to apply to
all the subjects enumerated in section 92, and not merely, as has been contended by counsel
for the appellant, to the local matters mentioned in clause 16 of that section. A. G. Ont. v.
A. G. Dom., A. C. (1896) pp. 359, 360.
Following the practice of the Privy Council in cases like the present case, one must
ascertain, first, whether the subject-matter of the impeached enactment falls within any of the
legislative powers of the Province enumerated in section 92, and, if it does, whether there is
anything in section 91 which has the effect of virtually withdrawing it from the purview of
section 92, or, in other words, of cutting down the full meaning of that section, and thereby
invalidating the enactment.
The case on behalf of the appellant is, in effect, that as the enactment relates to the
electoral franchise, and, hence, to the Constitution of the Province,'it is intra vires by virtue
of sub-section (1) of section 92, which places "the amendment of the Constitution     * *
save as to the office of Lieutenant-Governor," under the exclusive control of the local Legislature ; and, furthermore, that as the subject of " Naturalisation and Aliens " is a matter that,
in this instance, is incidental to the franchise, it has been necessarily dealt with in the enactment, but only in that limited sense. On the other hand, it is said that, as sub-section (25)
of section 91 places the subject of "Naturalisation and Aliens" under, the exclusive authority
of the Parliament of Canada, the enactment is invalid, as it trenches on that authority.
Much may be said in favour of its validity ; for instance, that the real or primary object
of the Legislature in passing the Statute of which it forms part was not to deal with
" Naturalisation and Aliens" as a substantive question, but to establish such a system of
franchise as would best subserve the interests of the Province—a matter that is, obviously,
one of a purely local nature. By section 15 of the "Naturalisation Act" of Canada (R. S.,
c. 113)—
"An alien to whom a certificate of naturalisation is granted shall, within Canada, be
entitled to all political and other rights, powers, and privileges, and be subject to all obligations to which a natural-bom British subject is entitled or subject within Canada."
The term " political rights " is a very wide expression, and is defined as " being those
rights which belong to a nation, or to a citizen, or an individual member of a nation, as
distinguished from civil rights, namely, local rights of a citizen."—(Ency. Diet.) But whatever the term may mean, it cannot affect the question before us, for all that the section, in
effect, says is that an alien, when naturalised, shall, within the several Provinces of Canada,
have all the ordinary and inherent rights and privileges of a Canadian, or of a natural-born
British subject. Now, no Canadian or natural-born British subject has an inherent right to
the franchise, and, a fortiori, a naturalised alien can have none, for the franchise is not a
matter of right, but is a statutory privilege which can only be acquired by such persons, and
under such conditions, as are mentioned in the " Franchise Act." In other words, the power
of acquiring the privilege is not extended to all classes of Canadians alike, for, after declaring
who shall be entitled to it, the Act proceeds to name a number of classes, including the four
following, from whom it shall be withheld, viz.:—the Judges of the Supreme-and County
Courts, Sheriffs and their deputies, employees of the Provincial Government in receipt of over
$300 per annum, and officers and men of His Majesty's army and navy on full pay—all, or at
least a large majority, of these classes being, it is safe to say, British subjects. No reason is
assigned for their disfranchisement, nor is any needed in view of the well-understood constitutional rule that what a Legislature does is presumed to have been done in the best interests of
the community it represents. It is manifest that these observations equally apply to the
disfranchisement of the naturalised Chinese and Japanese. Moreover, it may be fairly inferred
that they are not disfranchised on account of their being naturalised aliens, because, if that
were so, it is only reasonable to suppose that the enactment would have included all aliens, of
whatever nationality, who have been, or may hereafter be, naturalised in this country. As it
seems to me, the Legislature was obliged to refer to them in the enactment as "naturalised
aliens " for descriptive purposes as, apparently, there was no other means of describing them.
Under the circumstances, I think it must be assumed that the Legislature has considered that 1 Ed. 7 Judgments—Naturalisation of Japanese. 613
these two particular classes of Canadians, for such they are when naturalised, ought not, on
grounds of public policy, to be entrusted with the franchise.
Another point in favour of the enactment is that its validity is to be presumed until the
contrary is clearly shown. Furthermore, it must be so construed as to bring it within the
legislative authority that is questioned—McLeod v. Atty.-Genl. N. S. Wcdes, (1891) A. C, 455.
I have thus endeavoured to state the case of the Province as fully as possible, but merely
with a view of showing that none of the points I have mentioned have been overlooked, for
the Court is bound to disallow this appeal, as the Judicial Committee has held that "the
Legislature of the Dominion is invested with exclusive authority in all matters which directly
concern the rights, privileges, and disabilities " of aliens resident in Canada, whether naturalised or not—Bryden v. Union Colliery Co., (1899) A. C. at p. 587.
There will be no order as to costs.
Victoria, B. G, April 23rd, 1901.
Martin, /.—I concur.
In the Full Court (Vancouver).
In the matter of ")
The "Provincial Elections Act," T   , ,. .,     -^ ,,    ,,    T    ,.     -~.    .
i VJudgmentot the Honourable Mr. Justice Drake.
In the appeal of Tomey Homma.        J
This is an appeal against the judgment of the Chief Justice allowing the name of Tomey
Homma, a naturalised Canadian, to be placed on the list of voters for the Riding of Vancouver City Electoral District.
The appellant in this case is the Collector of Voters for the above district. He relies on
cap. 67, Revised Statutes. Section 7 of that Act says that, " Every male of full age not
being disqualified by this Act, or by any other law in force in this Province, being entitled
within the Province to the privileges of a natural-born British subject shall be entitled to
vote." Section 8 says that "No Chinaman, Japanese or Indian shall have his name placed on
the Register of Voters for any Electoral District, or be entitled to vote at any election."
If these sections stood alone no question could be raised, as all persons entitled to the
privileges of a natural-born British subject are entitled to vote; but in clause 3 of the Act the
expression "Japanese" shall mean any native of the Japanese Empire or its dependencies not
born of British parents, and shall include any person of the Japanese race whether naturalised
or not—this, it is contended, excludes British subjects of Japanese origin, as well as all
persons naturalised by the Dominion Legislature.
It is the latter part of this section which is objected to, and claimed to be ultra vires.
Mr. Wilson, on the part of the appellant, contends that under section 92 of the B. N. A. Act
the Provincial Legislatures have exclusive right to make laws on the various subject-matters
in that section contained, especially on the subject of the constitution of the Provinces; but
that section is governed by the last few lines of section 91, which says any matter coming
within any of the classes of subjects enumerated in section 91 shall not be deemed to come
within the class of matters of a local or private nature comprised in the enumeration of the
classes of subjects assigned exclusively to the Provincial Legislatures by section 92. The
meaning of this is that, where the subjects assigned to the Dominion Parliament in any way
overlap or affect the subjects assigned to the Provincial Legislature, the right of the Dominion
to legislate shall not be affected, and the Provincial rights shall be subject to such Dominion
legislation as far as such legislation extends. Mr. Wilson relies on the right of the Provincial
Legislature to establish, alter or amend the Constitution, sub-section (1) of section 92.
The term "constitution" includes the persons who are entitled to seats in the Legislature;
the mode of election; the formation of electoral districts; the right of voting, and the rules
and regulations relating to the registration of voters; and all other matters of a similar nature;
and the only limitation expressed is that the office of Lieutenant-Governor is excluded from
the Provincial control.    This exclusion, he contends, emphasises the otherwise absolute powers 614 Judgments—Naturalisation of Japanese. 1901
conferred on the Provincial Legislature. Notwithstanding the generality of the language thus
used, if under section 91 there is any matter which the Dominion Parliament has under the
powers conferred on them expressly legislated, and which thereby affects the Provincial constitution, the constitution must be held subject to such legislation.
We find that sub-section (24) of section 91 gives to the Dominion Government the subjects
connected with naturalisation and aliens, and they have legislated on this subject; and by
section 15, an alien duly naturalised shall be entitled to all political and other rights, powers
and privileges, and subject to all obligations to which a natural-born British subject is entitled.
In other words, he is a British subject; and, being a British subject, the Legislature cannot
take away from him the rights which the " Naturalisation Act" has granted him, neither can
they draw a distinction between one British subject and another. They can, and they do, say
that British subjects holding certain offices shall not be placed on the voting list, but such
officials have not had the political rights expressly conferred on them by a paramount authority. In the case of Union Colliery Co. v. Bryden, (1899) A. O, 587, the Privy Council say
that the Dominion Legislature, by section 91, sub-section (25), is invested with exclusive authority in all matters which directly concern the rights, privileges and disabilities of the class of
Chinamen who are resident in the Provinces of Canada, and a fortiori Japanese. They were
also of opinion that the pith of the "Coal Mines Regulation Act " consisted in establishing
a statutory prohibition which affected aliens or naturalised subjects, and therefore trenched on
the exclusive authority of the Parliament of Canada. The subject of naturalisation includes
the power of enacting what shall be the consequences of naturalisation, or, in other words,
what shall be the rights and privileges pertaining to residents in Canada after they have been
Every alien when naturalised becomes ipso facto a Canadian subject of the King. As
regards aliens the Provincial Legislature can refuse them the franchise, as they have no status
to claim political privileges; but when naturalised, section 15 gives to aliens naturalised all
the political and other rights, powers and privileges, and subject to all the obligations to which
a natural-born British subject is entitled or subject within Canada.
" Political rights, powers and privileges " are very general terms, and import the right of
exercising the franchise, and of representing the electors in Parliament—subject, of course,
to fulfilling the statutory requirements as to registration, etc. The Dominion having granted
political rights to naturalised aliens, the Provincial Legislature should not treat the Dominion
Act as nugatory. The question is one of some difficulty. It has been held by the Privy
Council that as regards those subject-matters which are under the sole control of the Province,
the Province has sovereign rights; but, as I have pointed out, this question of political rights
granted to aliens is within the scope of the powers of the Dominion Parliament, and as the
Dominion has granted political rights to naturalised aliens, I think it is beyond the powers of
the Provincial Legislature to say that these persons shall not exercise those rights.
For these reasons I think the appeal should be dismissed.
M. W. Tyrwhitt Drake.
30th November, 1900.
McColl, C. J.—The sole question presented for determination is whether it was within
the power of the Legislature to provide (section 8) that no Japanese is entitled to have his
name placed on the Register of Voters or to vote at any election.
By section 3 the expression " Japanese " is defined to mean any native of the Japanese
Empire or its dependencies not born of British parents, and to include any person of the
Japanese race, naturalised or not.
Mr. Harris, for the appellant, relied on the Union Colliery Company of British Columbia,
Limited, v. Bryden, (1899) A. O, 580.
Mr. Wilson, for the respondent, contended that the enactment is within sub-section (1) of
section 92 of the B. N. A. Act, giving to the Legislature exclusive jurisdiction as regards
" the amendment from time to time, notwithstanding anything in the .Act, of the Constitution
of the Province, except in respect of the office of Lieutenant-Governor." He argued that the
matter was peculiarly one of purely local concern, and clearly could not, from any point of
view, be regarded as falling within the Dominion authority. But, whatever may be thought
of the existing " Naturalisation Act," in so far as it relates to British Columbia, the residence 1 Ed. 7 Judgments—Naturalisation of Japanese. 615
within the Province of large numbers of persons, British subjects in name, but doomed to
perpetual exclusion from any part in the passage of legislation affecting their property and
civil rights, would surely not be to the advantage of Canada, and might even become a source
of national danger.
Apart from decisions binding upon me, I would have considered that the authority of the
Dominion Parliament becpmes exhausted with the naturalisation, and that the person naturalised passes under the jurisdiction of the Provincial Legislature to the same extent as if born a
British subject, and that the only restraint upon the Legislature in matters of this kind is the
liability of any Act to be disallowed. But this view did not prevail with the Judicial Committee in the case mentioned, the effect of which, as I understand it, is that the Provincial
Legislature has no power to pass any legislation whatever which does not, in terms at least,
apply alike to born and naturalised subjects of Her Majesty, however its results may varyingly
affect different classes or persons.    The appeal is allowed with costs.
Appeal allowed with costs.
Printed by Riciiaru Wolfknden, Printer to the King's Most Excellent Majesty.


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