the Province, shall be liable for the first contravention, to a fine of not less than thirty dollars nor more than one hundred dollars in the discretion of the court, and, in default of payment of the said fine, to imprisonment in the common gaol for a period of three months; if convicted thereof a second time, such person shall be liable to a fine of not less than one hundred dollars nor more than one hundred and fifty dollars, and, in default of payment, to imprisonment for a period of three months; and for the third and every subsequent offence the offender shall be condemned to an imprisonment of not less than three nor more than six months, without the option of a fine. 100. No person carrying on any business whatsoever, and not licensed for the sale of intoxicating liquors, shall keep in his place of business or in the dependencies thereof, any quantity whatsoever of intoxicating liquors, under a penalty of the confiscation of said liquors, in addition to the penalties enacted by article 84. The finding of such liquors upon such premises shall be a presumption that such liquors are there kept for the purpose of sale; and the revenue police constables or any officers employed by the Government are authorized to seize such intoxicating liquors without having a warrant. MONTREAL: September 22, 1904. J. A. Drouin, K.C., for the petitioner. No one for the accused. CURRAN, J., held that a fine as prescribed by the above articles of the License Law is obligatory upon a plea of guilty, and that the magistrate had no power to suspend sentence. The formal judgment of the court issued as follows: "Considering that the judgment rendered in this cause, for costs only is ultra vires and that the magistrate should have pronounced judgment imposing the fine prescribed in the Quebec License Law on plea of guilty : : "Doth maintain said writ of certiorari and quash the said judgment suspending sentence on payment of costs; without costs inasmuch as the parties have not appeared to contest the present application." [COURT OF KING'S BENCH, MANITOBA.] BEFORE DUBUC, C.J., AND RICHARDS, AND PERDUE, JJ. THE KING v. SCHUSTER. Shop regulation-Municipal law-Early closing by-law-By-law in express terms of statute-Reasonableness not a question for the court-Con stitutional law-Power to regulate hours for the keeping open of retail stores-Shop Regulations Act, R.S.M. 1902, c. 156. 1. A municipal by-law is not invalid upon the ground of its being unreasonable or oppressive or in restraint of trade, if passed in the express terms of a statute under which the legislature delegated to municipal councils the power to pass by-laws in respect to the subject matter. 2. The question of reasonableness is in such cases solely for the legislature if the subject matter is within its legislative power. 3. The Shop Regulation Act of Manitoba, which purports to authorize municipalities to limit the hours during which shops shall be kept open for the sale of goods by retail is ultra vires of the provincial legislature as a matter of a merely local nature under the British North America Act. ARGUED: December 18, 1903. APPLICATION to quash a conviction under the Early Closing by-law of the City of Winnipeg. In Michaelmas Term, 1903, a rule nisi was obtained for a writ of certiorari directed to the Police Magistrate for the City of Winnipeg to bring before this Court a conviction of one A. Schuster and also all other proceedings connected therewith. This rule was afterwards made absolute and a writ of certiorari was issued to which the Police Magistrate duly made his return sending before the Court the conviction, information, summons, depositions and other matters relating thereto. The applicant, A. Schuster, then obtained a rule nisi calling upon the Police Magistrate and upon Philip Stark the prosecutor, to show cause why the conviction should not be quashed upon various grounds of objection taken in the rule nisi. The argument of the rule nisi took place in the same Term. The applicant, A. Schuster, was a shop-keeper in the City of Winnipeg, and the conviction against him complained of was that, on 5th October, 1903, he "did unlawfully omit to close and keep closed his shop between the hour of six o'clock in the afternoon of said day and five o'clock in the morning of the day following, contrary to the provisions of By-law number 1,853 of the City of Winnipeg." This by-law was passed on 9th July, 1900, in pursuance of the powers given by the Shops Regulation Act and provides as follows: "1. From and after the 19th day of July, A.D. 1900, all classes of shops within the City of Winnipeg, where or wherein goods are exposed or offered for sale by retail (but not where the only trade or business carried on is that of a tobacconist, news-agent, hotel, inn, tavern, victualling house or refreshment house) shall be and each of them shall be and remain closed on each and every day of the week between six of the clock in the afternoon of each day and five o'clock of the forenoon of the next following day, with the following exceptions:-On Saturday and during the last three weeks in December and also the days immediately preceding the following days, namely: New Year's Day, Good Friday, the twenty-fourth day of May and Dominion Day; and all classes of shops in the City, as aforesaid, shall be and remain closed from ten of the clock in the afternoon of the days hereinbefore mentioned as excepted, namely, Saturdays, the week days in the last three weeks in December, and the days immediately preceding the following days, - New Year's day, Good Friday, the twenty-fourth day of May and Dominion Day, until five of the clock in the forenoon of the following day." The by-law also, amongst other matters, provided for the imposition of a fine, not exceeding $50 with costs of prosecution, for any infraction of its provisions and, in default of payment or of sufficient distress, imprisonment might be imposed for a period not exceeding twenty-one days. The applicant was convicted under this by-law and a fine of $2 was imposed together with $2.85, the prosecutor's costs and, in default of payment or of sufficient distress, imprisonment for ten days was adjudged. Seven grounds of objection were taken in the rule nisi, but upon the argument these grounds were re-stated and combined under three heads which were given as follows: 1. The Shops Regulation Act, chapter 156 of the Revised Statutes of the Manitoba, 1902, does not apply to the City of Winnipeg by reason of its being incorporated in the Municipal Act, R.S.M. 1902, c. 116, which Act is expressly excluded from operation in Winnipeg. 2. If the Shops Regulation Act applies to the City of Winnipeg, then the by-law is illegal and invalid on the ground that it discriminates between certain classes in the community and the burden does not fall equally on all citizens and is unfair, partial, arbitrary and oppressive. 3. That in any event the Shops Regulation Act is ultra vires of the Province of Manitoba as an infringement of the right of the Dominion to control Trade and Commerce. The by-law and Shops Regulation Act can not be justified on the ground that they deal with Property and Civil rights, and the Act was not passed as part of the Police and sanitary regulations of the Province. WINNIPEG, December, 18, 1903. R. A. Bonnar and Geo. A. Stewart Potts for the applicant. The Shops Regulation Act, R.S.M. 1902, c. 156, does not apply to the City of Winnipeg by reason of its being incorporated by reference with the Municipal Act which by section 2, subsection (a), is expressly excluded from application of the City of Winnipeg. The effect of incorporating one Act with another is to make them parts of the same code, and, where an Act is to be construed as one with a prior Act, prima facie, the latter Act is not of wider application than the earlier: Cox v. Andrews (1883), 12 Q.B.D. 126; Reg. v. Eaton, (1881), 8 Q. B.D. 158; and effect must be given to the particular enactment in the Municipal Act that it does not apply to the City of Winnipeg as against the general terms of the Shops Regulation Act upon the principle that where a Statute contains a particular enactment and general enactment, the particular enactment must be operative: Pretty v. Solly (1859), 26 Beav. 610. The saving clauses of the Winnipeg City charter and the Municipal Act do not enlarge the scope of the Municipal Act, the rule that the proviso controls the purview being reversed when the proviso is really a saving clause: Hardcastle, 227. Any doubt or ambiguity as to the grant of corporate powers is resolved against the Corporation and in favor of the public, especially so when the asserted grant is in derogation of common law rights: Dillon on Corporations, sec. 91. No powers are presumed unless expressly granted: Dillon sec. 89, except such powers as may be necessary and incidental to the corporation for the general welfare of the community: Dillon, sec. 315. And, in order to vary the common law or statutable right, the by-law purporting to vary must be clear and unequivocal: Crome v. Steiper, 46 U.C.R. 87. The by law is prima facie 25-c.c.c.-VIII. |