oppressive and unreasonable and though it

follows the statute

The true principle

every intendment will be taken against it. upon which it should be construed is stated by Lord Russell in Kruse v. Johnson, [1898], 2 Q.B. 91, that the by-law should not be upheld if it is manifestly partial and unequal in its operation between different classes or unjust or made in bad faith involving an unjustifiable interference with the liberty of those subject to it. The Shops Regulation Act is ultra vires the Province of Manitoba in so far as it purports to regulate the hours of closing shops which is really a regulation of Trade and Commerce. The words Regulation of Trade and Commerce in the British North America Act have never been specifically defined. If the Court determines as a fact that the Shops Regulation Act purports in any way to regulate Trade and Commerce the statute must be declared ultra vires, section 91 of the B.N.A. Act clearly providing that any matter coming within any of the classes of the subjects enumerated in that section shall not be deemed to come within the class of matters of a local or private nature comprised in the enumeration of classes of subjects assigned exclusively to the Legislatures of the Provinces. This is not a case of over-lapping of the Legislative powers of the Provinces and the Dominion and as, clearly, the Dominion would have power to pass such legislation, the power of the Province must be excluded. The B.N.A. Act exhausts the whole range of legislative power: Bank of Toronto v. Lambe, 12 A.C. 587. The Shops Regulation Act cannot be justified on the ground that it is intended to prevent a nuisance or is for the maintenance of order, or for the public health, which are the only restrictions on trade which the Province would have power to make: Virgo v. City of Toronto, [1896] A.C. 93. The Shops Regulation Act does not secure any public benefit: see judgment of King, J., in Virgo v. City of Toronto, 22 S.C.R. 462. The true character and nature of the legislation in the particular instance under discussion must always be determined in order to ascertain the class of subjects to which it belongs: Russell v. The Queen, 7 A.C. 840. The judgments

in the Liquor Case, [1902] A.C. 73, are distinguishable upon the principle that the power to control and regulate the liquor traffic is, like police powers, a matter of general welfare, and on no other ground can the apparently conflicting decisions of the Judical Committee be reconciled. In Bryden v. Union Colliery Co., [1899] A.C. 580, it was held that the Provinces could not legislate indirectly so as prejudice the rights of the Dominion with respect to aliens and, when considering this judgment in Cunningham and Atty-General of British Columbia v. Tommy Homma [1903] A.C. 151, the Privy Council expressly stated that the Court was not bound by the Bryden case, each particular case being dealt with upon its own merits. It will follow, if the Shops Regulation Act is ultra vires, that the magistrate acted without jurisdiction, and certiorari will lie: Rex v. St. Pierre, 5 Can. Cr. Cas. 365, 4 O.L.R. 76.

Isaac Campbell, K.C., and A. J. Andrews for the magistrate and prosecutor. As to the first objection, the applicability of the Shops Regulation Act to the City of Winnipeg: This is based on the language of section 15 of the Shops Regulation Act and section 2 (a) of the Municipal Act. By-law No. 1,853 was passed on the 9th July, 1900. The statute then in force was the old Shops Regulation Act, R.S.M. 1892, c. 140. By section 16 of that Act it was incorporated in the Municipal Act. On 9th July, 1900, the then Shops Regulation Act applied to the City of Winnipeg and the City had power to pass the by-law, and it admittedly remained in force until the City Charter came into force in 1902. If not for sub-section (a) of section 2, the by-law would be good. The Winnipeg City Charter was passed in 1902, c. 77. That did not create a new Municipality, it continued a body with its existing municipal machinery. Several statutes have been passed which referred to the City's powers, e. g., bicycle paths, lighting companies, public parks board. In order to save all these Acts a general reference, section 931 of the City Charter, was inserted in the Act. Section 6 of the Charter protects all contracts and anything already done and

executed. The rights and powers of the City (i.e. as to the future) are preserved by section 931. By "Powers" is meant Civic Legislature or by-law powers. By section 5 of the Charter the powers of the City shall be exercised by the Council. By section 472 the powers of the Council are to be exercised by by-law. In July, 1900, the by-law in question was authorized and it continued until the R.S.M. 1902, came into force. The new Shops Regulation Act, R.S.M. 1902, c. 156, may not apply, but the old one does and section 527 of The Municipal Act, R. S.M. 1902, c. 116, preserves all powers given by the old statute and by sec. 931 of the Winnipeg Charter. The by-law was good because it was passed in pursuance of a then existing statute, and it continued so by virtue of section 931 of the charter and section 527 of the Municipal Act, R.S.M. 1902. The applicant depends on a statute which he says takes away a once existing power. That is to be construed against him, in case of doubt. The body of rights granted by the Legislature is to remain unless repealed. If the new Shops Regulation Act does not apply, the old one does. Even without the saving clauses the Interpretation Act as to revision and consolidation of statutes would prevent and implied repeal. As to the second ground, that the by-law was unreasonable and oppressive, section 3 of the Shops Regulation Act, R.S.M. 1902, c. 140, gives power to any municipal council to deal with "all or any class or classes of shops." The by-law exhausted the powers given, everything being put in. The very language of the statute was followed. It was an enabling statute. The City has done nothing except what the statute explicitly authorized. If a municipality follows a legislative enactment no question of "reasonableness" can arise. A by-law is not "oppressive" if enacted expressly in conformity with the statute: Re Boylan and Toronto, 15 O.R. 13; Chesapeake v. Mayville, 69 S.W. Rep. 728; Re Taylor and Winnipeg, 11 M.R. 426; 12 M.R. 18; Kelly v. Winnipeg, 12 M. R. 87; Re Cloutier, 11 M.R. 220. As to the third objection, the constitutional question. The sections of the statute must

be read together: Citizens v. Parsons, 7 A.C. 96. To arrive at the meaning of a statute othen parts of same and Imperial Statutes may be looked at. Clement's Canadian Constitution, 210, 217. Any law affecting dealings between parties may in some way affect Trade and Commerce: Reg. v. Taylor, 36 U.C. R. 206. The Dominion Parliament could not pass an Act like the Shops Regulation Act. The Canada Temperance Act was not a regulation of Trade and Commerce. In the case of Atty.Gen. for Ontario v. Atty.-Gen. for the Dominion, [1896] A.C. 348, it was held a Province had the power to authorize a municipality to interfere with the sale of liquor and therefore incidentally with Trade and Commerce, but that did not infringe upon Federal authority. The object or kernel of the Act must be looked at. The Shops Regulation Act in question operates within Manitoba only and is purely local. In the case of Virgo v. Toronto, 20 A.R. 435; 22 S.C.R. 447; [1896] A.C. 88, the by-law was not authorized by statute, and the decision went on that ground. The Virgo case is in favor of the respondents. The whole question was, has the authorizing power of the statute been followed?

WINNIPEG: March 5, 1904.

DUBUC, C. J.:-The defendant move to have the conviction in this case quashed on the following grounds: (1) that the Shops Regulation Act does not apply to the City of Winnipeg, (2) that the by-law, No. 1,853, under which the conviction was made is unreasonable, uncertain and oppressive, (3) that the Shops Regulation Act is ultra vires of the Provincial Legislature.

On the first ground it is contended that, by section 15 of the Shops Regulation Act, R.S.M. 1902, c. 156, and section 2, subsection (a), of the Municipal Act, R.S.M. 1902, c. 116, the City of Winnipeg is excluded from the operation of the Shops Regulation Act. Section 15 of that Act says that "any by-law passed by a Municipal Council under the authority of this Act shall,

for all purposes whatsoever, be deemed and taken to have been passed under and by authority of the Municipal Act and as if the preceding sections of this Act had formed part of "The Municipal Act' and the preceding sections of this Act and the 'Municipal Act' shall be read and construed together as if forming one Act." Section 2, sub-section (a), of the Municipal Act declares that "the expression 'Municipality' in addition to the meaning given to the term hereinafter, means any locality, the inhabitants of which are already incorporated and are so continued, or which became incorporated under the authority of this Act or of some other Act of the legislature, but does not include the City of Winnipeg."

If these two statutes had been in force when the by-law was passed, it might be questioned whether the Winnipeg City Council would have been authorized to pass the same. The purport of section 15 of the Shops Regulation Act was in force as section 16 of c. 140, R.S.M. of 1891; but sub-section (a) of section 2 of the former Municipal Act had not the words of exclusion of the City of Winnipeg found in the R.S.M. 1902. The by-law No. 1,853 was passed by the City Council on the 9th July, 1900, under the Shops Regulation Act then in force, R.S.M. of 1891, c. 140, and under the Municipal Act in the R.S.M. 1891, c. 100, and its amendments.

It is clear that, under the former statutes, the City of Winnipeg was authorized and empowered to pass a by-law for the closing of shops during certain hours on certain days.

The next question to be considered is whether the new statutes had the effect of entirely superseding the former Acts and what was done under them and of rendering the by-law invalid or nugatory. Section 931 of the Winnipeg charter, c. 77 of the statutes of 1902, which repeals all provisions of any existing statute of Manitoba which are inconsistent with the provisions of that Act, says that "all rights, powers and privileges now held and enjoyed by the City, and not specifically abrogated or taken away or amended by this Act, shall be and