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was of opinion that a suppliant might amend his petition at the trial, but no reasons were given in support of this view. It would be well if this recent decision of the English Court of Appeal could be regarded as settling the question.
THE situation of affairs in Prince Edward Island in respect of liquor prohibition is a peculiar one. It savours of a collision between the courts and the legislature. By sec. 52 of The Prohibition Act (P.E. I., 1917, c. 1), it was enacted, inter alia, as follows:-
“52. No person shall keep or have in his possession any liquor unless such liquor has been purchased from a vendor in accordance with the provisions of this Act. Any liquor in possession of any partnership or company shall be deemed to be in the possession of each member or shareholder thereof. All liquor purchased from a vendor shall, until actually used, be kept in the bottle or container on which the label has been attached by the vendor in accordance with the provisions of sec. 49. Any person having in his possession any liquor which is not in a bottle or container on which such label is attached shall be presumed to have such liquor in his possession in violation of the provisions of this section. This section shall not apply to wine for sacramental purposes in the possession of a clergyman or church goods' agent, provided such wine has been obtained by such clergyman or church goods' agent, in the manner provided by sec. 44; nor shall this section apply to liquor in the possession of a vendor licensed under this Act; nor to alcohol in the possession of a druggist in a package under seal or on which a permit has been affixed in accordance with the provisions of sec. 187."
The Act also contained the following general provisions applicable to its construction:
“162. While this Act is intended to prohibit and shall prohibit transactions in liquor, which take place wholly within the Province of Prince Edward Island, except as otherwise specially provided by this Act, and to restrict the consumption of liquor within the limits of the Province of Prince Edward Island, it shall not affect and is not intended to affect any bonâ fide transactions in liquor, which may be beyond the powers of the Legislature of this Province to prohibit or restrict, between a person in the Province of Prince Edward Island and a person in another province or in a foreign country, and the provisions of this Act shall be construed accordingly.
“163. If, for any reason, any section, paragraph, provision, clause or part of this Act shall be held unconstitutional or invalid, that fact shall not affect or destroy any other section, paragraph, provision, clause or part of the Act that is not of itself invalid, but the remaining portions shall be in force without regard to that so invalidated."
Under the provisions of this statute the defendant in the case of Rer v. Flood, 70 D. L. R. 310, sub nom. Re Flood, was convicted before the Stipendiary Magistrate of the City of Charlottetown, of having in his possession intoxicating liquor which had not been purchased from a "vendor" in accordance with the requirements of the statute. An application was made on behalf of the defendant to the Supreme Court of Prince Edward Island for a writ of certiorari to quash this conviction, and an order nisi therefor was granted. On the hearing before the full Court it was held that sec. 52 of the Act was ultra vires of the Provincial Legislature as it interfered with the trade and commerce of Canada. After the decision was rendered in the case of Rex v. Flood, the legislature of the Province by an Act, passed on the 3rd May, 1922, intituled The Prohibition Amendment Act, 1922, attempted to meet the situation created by the decision by providing as follows:
"3. (1) Nothing in The Prohibition Act or in this Act shall prevent any person from having liquor for export sale in his liquor warehouse, provided such liquor warehouse and the business carried on therein complies with the requirements of this section, or from selling from such liquor warehouse to persons in other provinces or in foreign countries or to a wholesale vendor under this Act; but no warehouse shall be deemed to be a liquor warehouse within the meaning of this section if the person having liquor therein has failed to comply with the provisions of this section.
Subsequent to the passing of this amending Act a conviction was had against the defendant in the case of Rex v. McKenna for having in his possession intoxicating liquor which had not been purchased from a vendor in accordance with the provisions of The Prohibition Act. An application for a writ of certiorari to quash the latter conviction was also made to the Supreme Court of Prince Edward Island, on the ground that sec. 52 of the Act last mentioned was ultra vires, notwithstanding the amendment of 1922, and the judgment of the Court on the hearing sustained this contention. This is the situation which savours of a collision between the judicial and the legislative branches of government in the Province.
It so happens that the learned Chief Justice delivered the judgment of the Court in both cases above referred to.
In the case of Rex v. Flood the Court held that there was an essential difference between the Prince Edward Island legislation and that of Manitoba, inasmuch as the Manitoba Act "expressly provided for the Export Trade, keeping an open but guarded channel through which it was to flow, while the legislation of this province with which we have to deal attempts to extinguish the Export Trade." With due submission let us say that it is hard to read an intention into the Prince Edward Island Statute "to extinguish the Export Trade” in liquor when sec. 162, above quoted, declares that “it is not intended to affect any bona fide transactions in liquor, which may be beyond the powers of the Legislature of this Province to prohibit or restrict, between a person in the Province of Prince Edward Island and a person in another province or in a foreign country, and the provisions of this Act shall be construed accordingly.” If this language does not except “the Export Trade” from the general operation of the Act, then the English speech is a medium for concealing rather than disclosing the intention of legislatures. The construction of Canadian statutes in relation to constitutional limitations is not an enterprise before which the intellect should stand aghast or one's reason totter on its throne. To quote the late Judge Clement: “ The problem as to any Canadian Act, federal or provincial, is simply this: Is the Act repugnant to the British North America Act? Does the impugned Act overstep the limits prescribed by this Imperial charter for federal or provincial legislation as the case may be?” (“Constitution of Canada,” 3rd ed., p. 373.)
The learned Chief Justice in his reasons in the Flood Case contented himself with the statement above quoted of the difference between the legislation of Manitoba and that of Prince Edward Island, and did not attempt to elaborate the constitutional implications of such difference. But in the subsequent case of Rex v. McKenna, he attempts to formulate reasons to support the decision he had already rendered in the Flood Case, by a reference to the language of Lord Sumner in the case of Rex v. Nat Bell Liquors Ltd. (1922), 2 A. C. 128. This was a decision upon the Alberta Act, which had originally contained sec. 72, similar to sec. 162 of the Island Act, but which had been repealed previous to the decision in the Nat Bell Liquors Case. The legislature of Alberta had, however, in the year 1918 passed another statute, The Liquor Export Act, which, under conditions, legalized the export of liquor and authorized liquor to be kept in the Province of Alberta for the purpose of export trade.
In his judgment in the McKenna case, Mathieson, C.J., quotes from Lord Sumner as follows:
“The presence or absence by an express disclaimer of any such interference” (that is with interprovincial or with foreign trade) “may greatly assist, where the language of the Provincial Legislature does not in itself determine the question and define its effect. If, however, it is otherwise clear that there is such an interference, or that there is none, and the language actually used sufficiently decides that question, there is no such sovereign efficacy in such a clause as sec. 72 as to make its presence or absence in an enactment crucial.”
We rather think that Lord Sumner's words strengthen the argument in favor of the validity of the Island Act, instead of furnishing a ground for declaring it invalid in whole or in part. It must be remembered that Lord Sumner was dealing with an Act which had not a saving clause such as sec. 162 of the Prince Edward Island statute.
It seems to have been argued that, without this saving clause, the Act, or parts of it, would be invalid, and Lord Sumner seems to have desired to uphold the validity of the Alberta Act if possible. As evidence of his desire to uphold the Act, he read into the Alberta Liquor Act the words, or by the Liquor Export Act," after the words “this Act” in sec. 23 of the Alberta Act, but he specifically said that it was only in the peculiar circumstances that he did so, and that while the alternative presented to him was the one to be adopted, the Board "would be loath to apply this precedent in any other than an exactly similar case.”
We take it that if sec. 72 of the Alberta Act had not been repealed, the Privy Council would have considered themselves bound by the judgment in AttorneyGeneral of Manitoba v. Manitoba License Holders Association,  A. C. 73, and that it was only because they were deprived of that simple ground of decision that Lord Sumner gave utterance to the remarks above quoted. However, Mathieson, C.J.,