Miss Supernaugh, both of the township of Bentinck, in the county of Grey, without being registered pursuant to R.S.O. 1897, ch. 176, Charles Rose being the informant; and the defendant was adjudged for his offence to forfeit and pay the sum of $25, to be paid and applied according to law, and also to pay $16.45 for costs; and if the several sums were not paid on or before the 25th September, 1907, the defendant was adjudged to be imprisoned in the common gaol at Owen Sound, and there to be kept for ten days, unless these sums and costs should be sooner paid.

The police magistrate stated a case for the consideration of the Court of Appeal.

The case as stated set forth the conviction, and proceeded as follows:

"It was admitted before me, on the part of the informant, that the defendant, George W. Hill, was an unenfranchised treaty Indian, residing on the Brant and Haldimand reserve, and drawing interest moneys, besides having no real or personal property subject to taxation under the provisions of the Indian Act, and that the informant was a white man.

"It was, on the other hand, admitted by the defendant that the fact of practising medicine as charged in the information was true.

"The question reserved then by me for the consideration of the Court is, whether I was right, under the circumstances, in convicting the defendant.

"The information, conviction, and admissions in writing made at the hearing to form part of this case."

In a prefatory statement appearing in what was called the "appeal book," containing the stated case, etc., it was said that the case was stated under R.S.O. 1897, ch. 91, sec. 4, and that it "raised for the consideration of the Court the constitutional validity of R.S.O. 1897, ch. 176, sec. 49."

The statute first referred to, ch. 91, is "An Act respecting Appeals to the Court of Appeal on Prosecutions to enforce Penalties and punish Offences under Provincial Acts."

Section 4 of the statute provides for the determination upon demurrer and appeal of an objection to a prosecution on the ground of the constitutional invalidity of the statute of the Province upon which the prosecution is based.

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Section 5 of the statute is as follows: "(1) After the determination by a justice of any information or complaint which he has power to determine in a summary way, under the authority of a statute of this Province, either party to the proceeding, if dissatisfied with the determination as being erroneous in point of law, as regards the constitutional validity of the statute, may apply in writing, within ten days after the same, to the said justice, to state and sign a case setting forth the facts and the grounds of his determination, for the judgment thereon of the Court of Appeal.

"(2) Such party, hereinafter called 'the appellant,' shall, within three days after receiving such case, transmit the same to the Court of Appeal, first giving notice, in writing, of such appeal, with a copy of the case so stated and signed, to the other party to the proceeding in which the determination was given, hereinafter called 'the respondent.'"

Section 49 of the Ontario Medical Act, R.S.O. 1897, ch. 176, provides: "It shall not be lawful for any person not registered to practice medicine, surgery or midwifery for hire, gain, or hope of reward; and if any person not registered pursuant to this Act, for hire, gain or hope of reward, practices or professes to practise medicine, surgery, or midwifery, or advertises to give advice in medicine, surgery, or midwifery, he shall upon a summary conviction thereof before any justice of the peace, for every such offence, pay a penalty not exceeding $100 nor less than $25."

The case was heard by Moss, C.J.O., OSLER, GARROW, MACLAREN, and MEREDITH, JJ.A., on the 25th November, 1907.

J. B. Mackenzie, for the defendant, contended that sec. 49 was ultra vires of the Ontario Legislature if it was to be regarded as applying to an Indian in the position of the defendant; that such an Indian is not a "person" within the meaning of that section; that he could not be registered under the Act. He referred to Regina v. Wason (1890), 17 A.R. 221; Attorney-General for Ontario v. Hamilton Street R.W. Co., [1903] A.C. 524; Re Metcalfe (1889), 17 O.R. 357; Regina v. College of Physicians and Surgeons of Ontario (1879), 44 U.C.R. 564; Tiorohiata v. Toriwaieri (1891), Montreal L.R. 7 S.C. 304; Attorney-General for the Dominion of Canada v. Attorneys-General for the Provinces of Ontario, Quebec, and Nova

Scotia, [1898] A.C. 715; McKinnon v. Van Every (1870), 5 P.R. 284; Bryce v. Salt (1885), 11 P. R. 112.

J. W. Curry, K.C., for the informant. There is nothing in the Indian Act, R.S.C. 1906, ch. 81, dealing with this matter. By sec. 111 a doctor of medicine may be enfranchised. The Dominion Parliament has not legislated upon the subject. Under sec. 92 (15) of the British North America Act, this is within the jurisdiction of the Province: Russell v. The Queen (1882), 7 App. Cas. 829. There is no reason why an Indian should not be registered under the Medical Act, and defendant, not being registered, cannot practise. "Person" is not limited in the Provincial Act, and surely includes an Indian.

Mackenzie, in reply.

December 23. OSLER, J.A.:-The case purports to be stated under R.S.O. 1897, ch. 91, sec. 4. Section 5 is the section which should have been referred to. It purports to raise for the consideration of the Court the question of the constitutional validity of the Ontario Medical Act, R.S.O. 1897, ch. 176. It states that the defendant was convicted for having, at the town of Hanover, in the county of Grey, practised medicine for hire, etc., without being registered pursuant to the provisions of that Act, one Charles Rose being the informant, and that it was admitted by the informant that the accused was "an unenfranchised treaty Indian, residing on the Brant and Haldimand reserve, and drawing interest moneys, besides having no real or personal property subject to taxation under the provisions of the Indian Act, and that the informant was a white man."

The contention was that the Ontario Medical Act was unconstitutional and ultra vires the provincial Legislature, because Indians of the class or having the status of the defendant are wards of the Dominion, and subject in all relations of life only to federal legislation, under sec. 91 (24) of the British North America Act.

I am not satisfied that the question argued before us was one proper to be raised by means of a special case stated under R.S.O. 1897, ch. 91, sec. 5. No one doubts the constitutional validity of the Ontario Medical Act. It does not in terms profess to be applicable to Indians. The question is whether it can be interpre

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ted as being applicable to them (Monkhouse v. Grand Trunk R.W. Co. (1883), 8 A.R. 637); and that would be more properly raised by appeal in the ordinary way from a conviction based on the assumption or holding that it was so applicable, or by a motion to quash the conviction, or by an appeal under sec. 3 of ch. 91, founded upon a certificate of the Attorney-General that the decision of the magistrate involved a question on the construction of the British North America Act.

I am, however, of opinion that the question submitted by the magistrate should be answered in the affirmative, and that the defendant was rightly convicted.

The Indian Act does not profess to deal with all the rights and obligations of an Indian. Nothing forbids him to acquire real and personal property outside of a reserve or special reserve, or to dispose of it, inter vivos at all events, as freely as persons who are not Indians.

Section 111 assumes that an Indian may become a member of any of the learned professions, and I find nothing in the Act to indicate that, except where provisions are made which expressly or by implication declare his obligations and the consequences which attach to their breach or otherwise specially deal with him, the conduct and duty of an Indian in his relations with the public outside the reserve are not subject to the control of the provincial laws in the same manner as those of ordinary citizens. Parliament may, I suppose, remove him from their scope, but, to the extent to which it has not done so, he must in his dealings outside the reserve govern himself by the general law which applies there. He is no more free to infringe an Act of the Legislature than to disregard a municipal by-law, the general protection of both of which he enjoys when he does not limit the operations of his life to his reserve, but, though unenfranchised, seeks a wider sphere. If he may become a doctor of medicine, and take advantage of the Medical Act by registering under it, it certainly ought to follow that he cannot become a free lance and practise wherever he pleases without regard to its provisions.

MACLAREN, J. A.:-The defendant was convicted of practising medicine for gain in this Province in violation of R.S.O. 1897, ch. 176, sec. 49, without being registered. Appeal is taken on the

ground that, being an unenfranchised Indian living on a reserve, the Act does not apply to him; that the word "person" in the section in question does not include an Indian, and the Legislature must be taken to have so intended it; and, if it did intend to include Indians, it would be ultra vires.

This claim is made on the broad ground that because sec. 91 of the British North America Act gives to the Dominion Parliament exclusive legislative authority over "Indians and lands reserved for the Indians," no provincial legislation can affect Indians or Indian lands. This is a somewhat startling discovery to make forty years after the passing of the Act, while the parties affected, the legal profession, and the Courts have been, during all these years, assuming the contrary to be the fact.

If the claim be well founded, not only will Indians be relieved from all prohibitions and restrictions imposed upon the people of this Dominion by the legislation of the respective Provinces, but they will not be able to claim any of the benefits or advantages conferred by such legislation, and will be relegated, save as to the few matters legislated upon by the Dominion, and any remnants of old legislation, to the condition and rights of their ancestors when this country was first discovered. They would also be shut out even from a large part of the old provincial legislation before Confederation, for it is well known that the Imperial Government retained in its own hands all matters relating to Indians and Indian lands long after it had transferred other local matters to the provincial authorities.

Let us see where such an interpretation of the British North America Act would land us. By sub-sec. 7 of sec. 91 the Dominion is given exclusive authority to legislate respecting the "Militia.” It would be somewhat startling to hear it gravely argued that no legislation of the Province can apply to or affect militiamen. By sub-sec. 25 the subject of "Aliens" is assigned exclusively to the Dominion. According to the argument on this appeal, no provincial legislation applies to an alien. A militiaman, or an alien, or a member of any of the other classes mentioned in sec. 91, may violate any provincial law without incurring any penalty, and cannot avail himself of any benefit or advantage conferred by provincial legislation. So with regard to banks, bills of exchange, and other matters assigned exclusively to the Dominion.

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