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validity of this legislation. It is very near the line and while from one point of view it seems to be intra vires the Dominion Parliament I admit the weight of the arguments to the contrary. On the whole I have reached the conclusion that the legislation is intra vires and valid, and my answer to the question is in the affirmative. If intra vires in part it seems to me to be so in all.

I have reached this conclusion because I think the Act is within the enumerated

powers specially conferred upon the Dominion Parliament by the 91st Section of the British, North America Act. Sub-Section 29 of that Section extends the exclusive legislative authority of the Parliament of Canada to "such classes of subjects as are expressly excepted in the enumeration of the classes of subjects by this Act assigned exclusively to the legislatures of the Provinces".


view by what I conceive to be the real purport of.

Quuen vs. Parsons, 7 A. C., 96.
Hodge vs. Quuen, 9 A. C., 130.
Russell vs. Quuen, 7 A. C., 829.

MacArthur vs. Northern, etc., 7 0. A. R., 86.

Clegg vs. G. T. R., 10 O. R. at page 714.

Canada Southern vs. Jackson, 17 O. A. R. 316.

C. P. R. vs. Bonsecour, 1899, A. C., 367.

Union Colliery Co., vs. Bryden, 1899, A. C., 587.

Cunningham vs. Tomey, Homma, etc., 1903, A. C., 151.

Bell Telephone vs. City of Toronto, 20 T. L. R.

Also the recent 10 hour labour case from New York, decided by the U. S. Supreme Court, where the majority held that the law was really a labour law and unconstitutional and not a health law and constitutional as to police provision, This statute

plainly one seeking to disguise purely civil rights legislation under the false garb of railway policy and deprives one party to a contract of its rights under the form of legislating on the subject of “railways" when such contract rights are within, incidental or ancillary to such subject, unless the mere fact of one of the contracting parties being a railway necessarily creates jurisdiction.

I adopt the well known rule in the United states where the courts have been so often called upon to decide between the nicely shaded lines of state and federal authority and where the character of legislation is none the less manifest because of the general terms in which it is expressed.

I would answer that the Act in question was not one the Parliament of Canada could pass.

In the matter of a reference by the Governor General in Council revalidity of an act of the Dominion Parliament entitled “An Act to Amend the Railway Act, 1903.

Davies, J.-I confess to having many doubts upon the proper answer to be given to the question asked as to the

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The subject matter here in question comes within the express exception of sub-section 10 of Section

92 and therefore comes within the 29th enumeration of Section 91 of the B. N. A. Act, and is excluded from Provincial powers by the 10th enumeration of ection 92.

Exclusive legislative authority railways, such here enumerated, being vested in the Dominion Parliament they have as a consequence full and paramount power so to legislate upon the subject matter as fully, properly and effectively carry out the construction, management and operation of these railways. In so legislating it matters not that they infringe upon the powers of legislation with regard to property and civil rights assigned to the Provincial Legislatures. Such in

employes in the course of their employment. The provisions necessarily infringe upon subject matters ordinarily within the jurisdiction of the legislatures. But that does not matter, provided the legislation can be upheld as being reasonably within the exclusive powers conceded to the Dominion Parliament to provide for the effective and proper operation and management of the roads. I do not think the courts should be astute to discover reasons to annul the legislation of Parliament on a subject matter within its exclusive jurisdiction, even if in the exercise of its powers it does trench upon subjects generally within the provincial jurisdiction, or if plausible arguments can be urged that from one aspect such legislation is not necessary to control

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vasion is admittedly necessary to enable the Parliament properly and effectively to legislate. The main and controlling question, is therefore whether the legislation in question can be said to be fairly and reasonably within the plenary and exclusive powers of the Dominion Parliament enabling it effectively to control the construction, management and operation of the classes of railways excepted from Sub-Section 10 of Section 92 and embraced within SubSection 29 of Section 91. I think may be fairly be so held.

The act substantially prohibits any railway under the jurisdiction of Parliament from making any contract directly or indirectly with its employes so as to limit relieve the company from liability for personal injuries to these

effectively the operation of the railway.

The Grand Trunk Railway in its facum

upon this appeal contending against the validity of the Act says:

“The Statute in question is farreaching. It would operate to destroy the effect of any notice, condition or declaration made or issued by the company. Such statute might prove very injurious to the proper maintenance and operation of the railway. It would tend to negligence on the part of the employes, and other results of an injurious character to the public service and the safety of the traveling public would necessarily result from such a far reaching statute."

Now these arguments rather tend to confirm my opinion of the validity of


this legislation. Whether it would work, the sex, ages and wages of those prove injurious or not to the proper who may be employed, the right of maintenance and operation of the rail- employes to combine and form labour ways is for Parliament and not the unions, the degree and extent to which court to decide. By passing the Act of these unions may be permitted to interParliament has decided. That the Act fere with the hours, wages and work of may effect "the proper maintenance the men, the negligence which will and operation of the road” seems by give employes a right of action caused the argument to be admitted, and once by it, the limitations which ought to be that conclusion of fact is reached the put upon that right alike as to the power legal result follows of Parliamentary of the employes to surrender or contract jurisdiction. Any Dominion Legislation himself out of the right, or the power of the that it may reasonably be assumed will railway company by notice or rule or substantially affect the proper mainten- otherwise to limit or entirely abolish it, ance and operation of the railway must, are all subjects well within Dominion in my opinion, be valid, The fact that legislative powers, although they may it may from a railway standpoint be infringe upon the general powers of deemed prejudicial and injurious to local legislature. These special matters railway interests and may not promote

I have mentioned are a few of the many the effective operations and manage- analogous and cognate subjects arising

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ment, by no means settles the question. out of the employment by these great In deciding such a point Parliament railway corporations of many thousands must within all proper and reasonable of men whose duties are to control and limits be supreme.

manage railways forming a perfect net Human agencies are as essential for work across the Dominion, which subthe proper management and operation jects must either wholly or partially of railways as are mechanical agencies, come within the ambit of the Parliament and so far as they relate to these ob- alone capable of calling these corporjects are necessarily subject to the con- ations into being and of effectively trol of Dominion legislation. The for- regulating their operation. mer are of course from their complex We cannot ignore, in determining nature necessarily

difficult to what are and what are not fairly within control and the line up to and within this ambit, the actual existing conwhich the powers of the Dominion dition, in Canada. Here are at least Parliament extend is difficult to de- three great railway corporations, either termine and almost impossible to de- already transcontinental or rapidly befine by any arbitrary rule. But it coming so. Their operations are of a does not seem to me that the hours national character and importance. Their during which employes may or may not employes number many many thousands.


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may be placed upon the company's liability for damages to its workmen when injured or killed in the course of their employment are matters for the several provincial legislatures and not for the Dominion Parliament, then, of course, such legislation may be as various and conflicting as there are legislatures to legislate, and it may well result that such various and conflicting legislation would materially affect the management and operation of the road.

I am, after much reflection, of the opinion that all such legislation must

or killed thereon, was ultra vires of the Provincial Legislature. The Lord Chancellor in delivering the judgment said: “It would have been impossible to maintain the authority of the Dominion Parliament if the Provincial Parliaments were to be permitted to enter into such a field of legislation, which is wholly withdrawn from them and therefore ultra vires"; and he goes on to explain the meaning of the Privy Council's* judgment in the case of the Canadian Pacific Railway Company vs. Corporation of the parish of Notre Dame de

Bonsecours, 1899, A. D., 367, by saying that in that case it was “decided that although any direction of the Provincial Legislature to create new works on the railways and make a new drain, and to alter its construction, would be beyond the jurisdiction of the Provincial Legislature, the railway company were not exempt from the municipal state of the law as it then existed—that all the land-owners, including the railway company, should clean out their ditches so as to prevent a nuisance.

These decisions throw much light upon the view the Judicial Committee take as to the necessity of excluding the Provinces from interfering by legislation in a matter wholly withdrawn from them and inferentially show how broad should be the construction placed upon the powers of the Dominion in a matter exclusively relegated to it to legislate upon.

And for these reasons I answer the question as to the validity of the Act in question in the affirmative.



Reprinted from the May Issue of American Monthly Review of Reviews, by Special Permission.

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Some twelve or fifteen years ago, inspired by public opinion rather than labor leaders and clear-sighted ob- dictated by the logic of the law, has servers of the industrial movement had “driven labor into politics," to use the a good deal to say regarding alleged union formula. There is now a labor radical changes in the nature and aims group in Parliament which is more inof the masses of organized wage-work- fluential than its numerical strength ers. The phrase, “the new unionism,' might lead one to infer, and the tendency was then current and familiar, especially to nominate independent labor candiin Great Britain.

dates is growing more and more proThe changes that have taken place


In the United States, politiin the last ten years in the world of cal action, save in an indirect way, is labor and capital, and in their mutual not in favor in union circles, and the relations,

important and "labor vote" is not regarded by practical graver than those comprehended by the politicians as a formidable factor. phrase, “the new unionism."

The labor movement in America, erficial may think of the French saying then, has remained purely industrial. to the effect that “the more it changes It is neither political nor consciously the more it is the same thing." Strikes, revoluntionary. It has no quarrel with lockouts, boycotting, blacklisting, “pick- the existing order. The head of this or eting,” disorder or charges of disorder that organization may declare himself (we have to reckon with a sensational Socialist (President Moyer of the press which would rather be newsy Western Federation of Miners, for exthan truthful), are still with us, but ample), but the most representative this does not mean that the industrial leaders, as well as the overwhelming conflict presents the same aspect to majority of the members of the unions, thoughtful men that it presented are conservative in their thought upon

social problems. “A fair day's wages Theoretically, it is true, American for a fair day's work" is still the watchtrade-unionism has not materially modi- word of our labor organizations. fied its objections and ideals. In It is in what may be called the “midEngland, a series of judicial decisions, dle principles" that time and tide have



decade ago.

Copyrighted 1905, by The Review of Reviews Co.

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