| Dow v. Black | |
|---|---|
| Court | Judicial Committee of the Privy Council |
| Date decided | James Dow and others v. William T. Black and others |
| Citation(s) | (1875), L.R. 6 P.C. 272, [1875] UKPC 17 (P.C.) |
| Judges sitting | Sir James W. Colville Lord Justice James Lord Justice Mellish Sir Montague E. Smith |
| Decision by | Sir James W. Colvile |
| Appealed from | The Queen v. Dow (1873), 14 N.B.R. 300 (N.B. S.C.) |
| Keywords | |
| Constitutional law; division of powers; inter-jurisdictional railways; direct taxation; matters of a local and private nature | |
| The Queen v. Dow | |
|---|---|
| Court | Supreme Court of New Brunswick |
| Full case name | The Queen v. Dow and others |
| Date decided | 22 February 1873 |
| Citation(s) | (1873), 14 N.B.R. 300 (N.B. S.C.) |
| Judges sitting | Ritchie C.J. Allen J. Weldon J. Fisher J. |
| Decision by | Allen J., Ritchie C.J. and Weldon J. concurring Fisher J. (dissenting) |
| Case history | |
| Appealed to | Judicial Committee of the Privy Council |
| Subsequent action(s) | Appeal allowed |
| Keywords | |
| Constitutional law; division of powers; inter-jurisdictional railways; direct taxation; matters of a local and private nature | |
Dow v. Black [1] was a court case dealing with the constitutional law of Canada. It was decided by the Judicial Committee of the Privy Council, at that time the court of last resort for Canada within the British Empire, on appeal from the Supreme Court of New Brunswick. It was one of the first cases from the Judicial Committee examining in detail the division of powers between the federal Parliament and the provincial Legislatures, set out in s. 91 and s. 92 of the Constitution Act, 1867 [2] (formerly known as the British North America Act, 1867).
The case considered the constitutionality of a provincial statute which authorised the inhabitants of the parish of St. Stephen, New Brunswick to issue a debenture as an inducement to a railway company to build a railway connecting St. Stephen to the town of Houlton, Maine, in the United States. The Supreme Court of New Brunswick held that the statute was unconstitutional, since it intruded on the exclusive federal jurisdiction over inter-jurisdictional railways. The Judicial Committee allowed an appeal from the Supreme Court of New Brunswick and held that the legislation was within provincial jurisdiction as a matter of local taxation, coming under sections 92(2) and 92(16) of the Constitution Act, 1867. The statute did not intrude on federal jurisdiction over inter-jurisdictional railways, under s. 91(29) and 92(10) of the Constitution Act, 1867.
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St. Stephen is a town in the county of Charlotte, in the Canadian Province of New Brunswick, close to the boundary with the State of Maine in the United States. Houlton is a town in Maine, some distance north and west of St. Stephen. The international border at this point follows the St. Croix River.
In June 1867, a few weeks before the Constitution Act, 1867 came into effect, the Legislature of New Brunswick passed an Act incorporating the Houlton Branch Railway Company.[3]
In 1870, the town of Houlton offered a bonus of $30,000 to any company which would build a railway connecting Houlton and St. Stephen, along the St. Croix valley. The Houlton Branch Railway Company was prepared to build the railway, on condition that the town of St. Stephen also pay a bonus, of $15,000. The Legislature of New Brunswick then passed an Act authorising the county of Charlotte to issue debentures to raise the $15,000, to be paid by muncipal assessments on the real and personal property of the inhabitants of St. Stephen.[4]
After the Act was passed, there was a meeting of the ratepayers of St. Stephen, as required by the statute. The requisite majority in favour of the Act was obtained and the debentures issued. The general sessions of the County of Charlotte then issued the necessary assessment on St. Stephen to pay the interest on the debentures. Some residents of St. Stephen challenged the assessment in the courts.[5]
The challenge was brought by way of an application for certiorari in the Supreme Court of New Brunswick to quash the warrant of assessment, on the grounds that the provincial Act related to a railway extending beyond the limits of the Province and was therefore not within the constitutional authority of the Legislature of New Brunswick. In Trinity term 1872, the Supreme Court granted an interim rule nisi to quash the warrant of assessment. In the fall of 1872, the Supreme Court heard argument and reserved judgment on whether to confirm that initial decision. On 22 February 1873, in a 3-1 decision the Court held that the Act was unconstitutional and granted a rule absolute to quash the warrant of assessment.[6]
Mr. Justice Allen delivered the majority decision of the Court. He held that there was no doubt that the railway extended beyond the province of New Brunswick, and therefore fell under exclusive federal jurisdiction under the combined effect of s. 92(10)(a) and s. 91(29) of the Constitution Act, 1867. Since the purpose of the provincial statute was to provide for the construction and completion of a railway extending beyond the limits of the province, it fell within federal jurisdiction. The funds were necessary to the completion of the railway. If the act were within provincial jurisdiction, the Province would have the power to secure the existence or completion of such undertakings.[7]
Mr. Justice Fisher dissented. He distinguished between the pre-Confederation New Brunswick statute which incorporated the railway company and the subsequent statute authorising the town of St. Stephen to contribute to the financing of the railway. The pre-Confederation statute remained in force by virtue of s. 129 of the Constitution Act, 1867. That statute was the authority for the construction of the railway. The subsequent statute simply provided a way for the inhabitants of St. Stephen to contribute to the construction of that portion of the railway which was within New Brunswick. In his opinion, that financial arrangement was a purely local matter and therefore would be within provincial jurisdiction. He would have ruled the statute was constitutional.[8]
The municipal authorities then appealed to the Judicial Committee of the Privy Council, at that time the court of last resort for Canada within the British Empire. (The Supreme Court of Canada had not yet been created.) On 5 March 1875, the Judicial Committee allowed the appeal, ruling that the New Brunswick Act was within provincial authority.
Sir James W. Colvile wrote the decision for the Committee. He held that the provincial Act did not relate to inter-provincial railways, a subject matter reserved to the federal Parliament by s. 91(29) and 92(10) of the Constitution Act, 1867. It was true that the railway company itself had been incorporated by an Act of the New Brunswick Legislature, shortly before the Constitution Act, 1867 came into force.[9] However, the Act in issue in the appeal did not relate to the construction of the railway, nor did it any way affect the corporate structure of the railway company. It simply enabled the majority of the inhabitants of the parish of St. Stephen to raise a subsidy for the railway by local taxation.[10]
The Committee also rejected a second argument, namely that the taxation powers of the province were restricted to general powers to tax throughout the province and could not be used to authorise taxes for a local municipal purpose. The Province's taxation powers under s. 92(2) of the Constitution Act, 1867 are not so limited. Alternatively, even if the tax did not fall within s. 92(2), it would clearly be a law of a local or private nature within the meaning of s. 92(16) of the Constitution Act, 1867, and therefore within provincial authority on that basis.[11]
The federal Department of Justice included this decision in the three volume collection of constitutional decisions of the Judicial Committee which the Department published when appeals to the Judicial Committee were abolished.[12]
Constitution Act, 1867, 30 & 31 Victoria, c. 3. (U.K.), R.S.C. 1985, App. II, No. 5.
Dow v. Black (1875), L.R. 6 P.C. 272, UKPC 17] (P.C.)