THE POWERS OF COLONIAL LEGISLATURES.

[Contributed by PROFESSOR W. HARRISON MOORE, C.M.G.]

In the recent case of the Initiative and Referendum Act (1919), A.C. 935, 945, the Judicial Committee of the Privy Council, speaking through Lord Haldane, says:

S. 92 of the (British North America) Act, 1867, entrusts the legislative power in a Province to its Legislature, and to that Legislature only. No doubt a body with a power of legislation on the subjects entrusted to it so ample as that enjoyed by a Provincial Legislature in Canada could, while preserving its own capacity intact, seek the assistance of subordinate agencies, as had been done when, in Hodge v. The Queen, 9 A.C. 117, the Legislature of Ontario was held entitled to entrust to a Board of Commissioners authority to enact regulations relating to taverns; but it does not follow that it can create and endow with its own capacity a new legislative power not created by the Act to which it owes its own existence. Their Lordships do no more than draw attention to the gravity of the constitutional questions which thus arise.

It should be observed that the Privy Council held, many years ago, that the Provincial Legislatures of Canada had the benefit of s. 5 of the Colonial Laws Validity Act, 1865, so that the question raised by their Lordships would seem in their view not to be unequivocally answered by the provisions of that section.

The nature and extent of the power of colonial legislatures has been considered in the Privy Council on several occasions in relation to the delegation of powers. It is now one of the commonplaces of constitutional law that these Legislatures are not to be deemed the delegates of the Imperial Parliament whose Act creates them and defines their powers. When they legislate, the case is not one of the Imperial Parliament making laws through them,

1 Fielding v. Thomas, (1896) A.C. 600.

1 R. v. Burah, (1878) 3 A.C. 889; Hodge v. The Queen, (1883) 9 A.C. 117; Powe v. Apollo Candle Co., (1885) 10 A.C. 282.

though there are expressions in the Privy Council judgment in Webb v. Outtrim which suggest it.

1

Every Act of the Victorian Council and Assembly requires the assent of the Crown, but when it is assented to it becomes an Act of Parliament as much as any Imperial Act, though the elements by which it is authorised are different (p. 88).

The principles of agency throw no light even by analogy on the nature and powers of these Legislatures, not being delegates of the Crown or of the Imperial Parliament or of the people. The rule which forbids the agent to delegate his powers does not apply to them. It does not follow, however, that because they are not agents their powers are unlimited. Like every other person or

body whose power is derived from statute, their powers are limited by the grant; and it may be that some limit on the power of delegation is inherent in the terms of the grant.

The power to make laws, extensive as it is, was vested in a designated authority and in no other. Whatever claims obedience as law must establish its claim to that character as being made or imposed by that prescribed authority itself. All the Privy Council decisions referred to are at pains to show that the particular delegation in question was by an Act wherein the Legislature itself had exercised its own discretion over the subject-matter dealt with. Thus in R. v. Burah,' an Act of the Governor-General in Council removed a particular district from the jurisdiction of certain existing courts and offices, and placed it under new courts and offices to be appointed by the Lieutenant-Governor of Bengal; and authorised the Lieutenant-Governor to apply to such district or any part of it any of the laws in force in other territories subject to his government; and the Act was to come into operation on such day as the Lieutenant-Governor should direct. The effect of what was done was that "the proper Legislature had exercised its judgment as to place, person, laws, powers; and the result of that judgment had been to legislate conditionally as to all these things. The conditions having been fulfilled, the legislation is now absolute." At the same time, their Lordships agreed " that the Governor-General in Council could not by any form of enactment create in India and arm with general legislative authority a new legislative power not created or authorised by the Council's Act" (i.e. the Indian Councils Act of the Imperial Parliament, 24 & 25 Vict. c. 67).

1 1907 A.C. 81.

2 3 A.C. 889, 905.

In Hodge v. The Queen' the Privy Council speaks of the action of the Ontario Legislature in committing to Commissioners authority to make regulations for the conduct of licensed premises as a step having for its object the carrying of the enactment into operation and effect, such an authority being ancillary to legislation, a power without which an attempt to provide for varying details and machinery to carry them out might become oppressive, or absolutely fail (p. 132). And, as to the argument that by its action the Legislature effaces itself, the Board said: "It retains its powers intact, and can, whenever it pleases, destroy the agency it has created and set up another, or take the matter directly into its own hands."

2

In Powell v. Apollo Candle Co., it had been decided in the Supreme Court of New South Wales that a provision in the Customs Act authorising the Governor in Council to direct a proportionate duty to be levied on any article which in the opinion of the collector or commissioners of customs contained properties which made it a substitute for a dutiable article, was void as an imposition of taxation by the Governor in Council, the Constitution having conferred the taxing power on the Legislature alone. The Privy Council held that in such a case the duty was levied under the authority of the Act-" the Legislature has not parted with its perfect control over the Governor, and has the power of course at any moment of withdrawing or altering the power which they have entrusted to him" (p. 291).

The Control of the Delegating Legislature.-One limitation upon the disposing power of a Legislature appears clearly from these decisions: the legislative power of delegation imports the retention of complete control by the delegating Legislature. In general this condition would be satisfied by the fact that the Legislature can repeal its own Act, and that therefore the retention of control is inherent; any authority it set up must be subordinate to it. But the matter is not quite so simple. If the King, the Legislative Council and Legislative Assembly, in whom the Legislative power is vested, should purport to confer a general concurrent legislative power on some one or two parts of the Legislature, or on some other authority, there would be an act which, if valid, was an abdication of control: the Legislature would be as much subject to control by its creature as capable of controlling it. Nor, again, would the inherent power of repeal cover the case in which 1 9 A.C. 117.

210 A.C. 282.

a Legislature purported to abolish itself and confer its power on another person or body in substitution for itself.1

In regard to such cases, it may be said with confidence that such an abdication by a colonial Legislature could not be justified under its legislative power, plenary though it is. The Imperial Parliament having designated the body which shall be competent to exercise legislative power in subordination to no other authority than the Imperial Parliament itself, the establishment of some other authority of equal status either along with or in supersession of the designated body is inconsistent with the grant itself, and is an alteration of the constitution and the powers established by the Imperial Parliament. Only when a further power-the power to alter the constitutions and powers of the legislative body-has been conferred could acts of the kind now under consideration be justified. Such powers have been conferred in many colonial constitutions, and are in the case of representative Legislatures conferred generally by the Colonial Laws Validity Act, 1865, s. 5.

Is the retention of control by the Legislature the sole condition which governs delegation? Would it be lawful to commit to, say, a Royal Commission full power to make laws for the peace, order, and good government of the colony in all cases whatsoever, subject to the limitation that any law made by such Commission inconsistent with any Act passed by the Legislature shall be invalid, and that the Commission may make no law which relates to the constitution or powers of the Legislature itself? To take a specific case. In 1871 the Law Officers of the Crown were called on to advise upon a suggestion that the Legislature of the Cape of Good Hope might establish within a colony a number of subordinate provincial Legislatures. The Secretary of State, in a despatch to the Governor, announced that the Law Officers advised that the Cape Legislature had no power, without the assistance of the Imperial Legislature, to divide the colony into provinces and to invest the provincial authorities with legislative and administrative powers subordinate to a supreme colonial Parliament.

To exercise such a power would be using the constitution created by the Letters Patent to destroy itself; the Letters Patent give the Legis

1 Cf. Dicey, The Law of the Constitution, 8th ed., p. 66 note.

The power of colonial Legislatures to delegate to or vest powers in other authorities is referred to by various writers, notably in A. I. Clark's Australian Constitutional Law, pp. 41 seq.; Berriedale Keith's Responsible Government in the Dominions, pp. 355 seq., 365 seq.; Clement's Canadian Constitution (1916), p. 35 and Lefroy's Canada's Federal System, pp. 69–75.

1

lature power to make laws, but it was not intended to invest it with power to make laws of every kind, but only such laws as are not inconsistent with the form of government constituted by the Letters Patent themselves. Nor has the legislature power to delegate to others the function of legislation entrusted to itself. It follows that the colonial Legislature has no power to divide the colony into provinces, if by that division anything more is intended than a subdivision for administrative purposes, which will leave untouched the constitution created by Letters Patent.1

The actual decisions of the Privy Council that have been referred to certainly do not establish, as of authority, so broad a claim, and the dictum cited from R. v. Burah denies it. In R. v. Burah and Powell v. Apollo Candle Co. the Legislature had set up a complete legislative scheme, to be brought into operation when the Executive should determine, and in the latter case had specified the grounds on which the executive determination was to be based. In Hodge v. The Queen, the matter is less clearly one of "conditional legislation"; but the power conferred is one which is to be exercised not for the whole Province, but for particular districts with varying needs and desires, which the Legislature provides for by remission of the matters to local determination. In all the cases there had been some exercise of judgment and discretion by the Legislature itself on the subject-matter dealt with, so that it was possible to regard the rule set by the delegate authority as one imposed by the Legislature itself. Powers to establish rules and regulations incidental to actual legislation, to carry out such legislation, to supplement and complete it, to fix time and place at which it shall come into operation, are all included in the power to make laws.

The subject of delegation by the Legislature has received much attention in the United States (see, for example, Cooley's Constitutional Limitations, p. 163 (7th ed.), and Willoughby's Constitutional Law).

The leading case on the subject in the United States is Field v. Clark, 142, U.S., where at p. 694 the following passage is cited with approval from the opinion of the Pennsylvania Court in Moers v. City of Reading:

The Legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depend.

1 Cd. 508, p. 13 (1872). See Keith, Responsible Government, vol. i., p. 367.