provincial companies, that is to say, there are no objects, except objects to be pursued within the province, which could form the subjects of provincial legislation.

"Provincial objects are objects which are within the legislative jurisdiction of a province to effect, and they have strict regard to the limits or territorial boundaries of the province. They can extend no further, because of the inherent incapacity of a provincial legislature to accomplish any object beyond its territorial jurisdiction, and the necessary limitation of the powers of a provincial company exists quite independently of, or is expressed and emphasized by, the addition of the words "with provincial objects" to section 92, paragraph 11."

This view of the territorial limitation of provincial powers is supported by the judgment of the Privy Council. in the Prohibition Case (1896) A. C. p. 359, in which it is held that all the matters enumerated in sec. 92 of the B. N. A. Act are "correctly described as being from a provincial point of view of a local or private nature."

Against this strict view urged by the Dominion and the plaintiffs it is interesting to place the extreme contention of the provinces as advanced by counsel for Ontario:-(2)

"Provincial objects cover the carrying on of business by the citizens of a province, and in order to carry on business profitably, it is necessary to buy in the cheapest market and to sell throughout the world, if the opportunity be given to do so."

Again: Their object is to carry on business profitably, and they are incorporated within the province, and I say have by comity of the provinces or foreign jurisdictions, the right to trade there."

And again: "I am drawing a distinction between the right and the capacity to do it. I say one province can create a provincial body; as a matter of right, it cannot do any business except in the incorporating province, but once you create that body and you have that entity, there is nothing to prevent that provincial body going into Quebec or any other place, and having a capacity, subject to the laws there, doing any work it pleases, if the work comes within the class of work the charter permits the company to

(2) Mr. Ritchie, K.C., Mr. Wallace Nesbitt, K.C., and Mr. Mulvey, K.C., appeared for Ontario.

do.

They have no right to do it in Quebec. That is the difference between the Dominion and the provincial charter."

"I say a provincial object is the purpose or right of citizens of a province of carrying on business in the most advantageous way. Allowing people to exercise their civil right-that is not a federal object . . The right to legislate with regard to property and civil rights is given to the province."

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Thus the provinces definitely committed themselves to the position that they possess the right to incorporate companies for all commercial purposes except those as to which the power to incorporate is expressly, or by necessary implication conferred by the B. N. A. Act on the Dominion: and that such companies, once created, can go anywhere, and do anything within the terms of their charter. In that view, the right to mine being a "civil right" and a private" matter, the province of Ontario can incorporate a mining company. Such a company would be restricted by its charter, to carrying on the business of mining, but would be otherwise unrestricted, and might operate in British Columbia or in Brazil, subject only to its being recognized by the comity of the sister province or of the foreign power. Having the capacity bestowed by a provincial legislature, sovereign within its own sphere, such companies could exercise outside their own province, such rights within the limits of their charter. as the comity of nations and province was pleased to confer. In this respect, the powers of the Ontario Legislature would, in that case, be the same as those of the Imperial Parliament.

That is, it may be said, a broad, intelligble and selfconsistent proposition. Is it also consistent with the British. North America Act? Or with the principles already established by decisions of the Privy Council?

Mr. Ewart, counsel for the plaintiffs, made a very strong attack on the theory that the jurisdiction given by the B. N. A. Act to deal with a given subject-matter, carries with it the power to incorporate companies whose objects relate to that subject-matter. Besides, shewing by consideration and comparison of the several clauses of sections 91 and 92, that this theory seems to be at variance with the provisions made in particular instances, he pointed out that

we possess a "checker-board constitution." The jurisdiction respectively of the Dominion Parliament and the provincial legislatures, though in words declared to be mutually exclusive, in practice overlap. "Subjects, which in one.

aspect and for one purpose, fall within section 92 of the B. N. A. Act, 1867, may in another aspect and for another purpose, fall within section 91" (3).

(3) Hodge v. The Queen, 9 App. Cas. 117.

This principle is illustrated graphically by the above table setting out the numerous cases in which this overlapping of jurisdiction has been declared to exist as to different subjects of legislation. "In other words," Mr. Ewart argued, you cannot divide all subjects of legislation, and say, these are Dominion and those are provincial." Therefore, you cannot assign the exclusive power to incorporate to the Dominion or to the provinces by determining whether the objects of the proposed company fall within the class of subjects definitely distinguished as Dominion or as provincial. The attempt would result in hopeless confusion.

As against this contention, it may of course be urged that as the general jurisdictions have been held to overlap (and, it may be added, with some resulting confusion), there is no objection in principle to holding that the several jurisdictions to incorporate may also overlap in the same manner, companies whose objects in one aspect fall within the Dominion, and in another, within the provincial sphere of legislation, might conceivably be incorporated by either of these authorities. But consideration of that suggestion will shew, it is submitted, that it is of no value. Beside destroying entirely the exclusive character of the provincial jurisdiction to incorporate "companies with provincial objects" (whatever that may mean), without any express warrant in the Act for doing so, it seems to be flatly in conflict with the reported decisions.

In truth, it seems difficult to reconcile any theory but that of strict territorial limitation with the dicta and decisions of the Privy Council in Citizens Insurance Co. v. Parsons (4), and Colonial Building Association v. AttorneyGeneral of Quebec (5).

The former case gives some colour to the "object-subject theory" but in the following words it seems to dispose of the conclusion the provinces seek to draw from that theory:

"The only subject on this head assigned to the provincial legislatures being the incorporation of companies with provincial objects, it follows that the incorporation of companies for objects other than provincial, falls within the general powers of the Parliament of Canada. But it by no means follows, because the Dominion Parliament has alone the right to create a corporation to carry on business through(5) 9 App. Cas. 157.

(4) 7 App. Cas. 96.

out the Dominion, that it alone has the right to regulate its contracts in each of the provinces."

Thus in clear terms-dicta, it is true,-the Privy Council lays it down that a company created by provincial authority, cannot be authorized thereby to carry on business throughout the Dominion. Can it be that in stating the law in that way, the Privy Council intended to make any distinction between the right and the capacity of such a provincial company? That is, did it mean merely to say that, though the provinces might endow their creatures with inherent capacity to transact business in other provinces if permitted by the other provinces to do so, only the Dominion could endow a company with the right to transact such business without such permission? That cannot be so, for the next sentence of the judgment supposes a Dominion company incorporated for the purpose of holding land in all the provinces, and prevented by provincial laws from doing business in any of them; and it seems clear from the whole passage that no such distinction between capacity and right can have been intended as to provincial as distinguished from Dominion companies. The judgment seems to indicate clearly that only the Dominion can confer the capacity to do business in more than one province. And that view is reiterated in the subsequent case of Colonial Association v. Attorney-General of Quebec, where the dicta cited are adopted and affirmed, and become the considered Judgment of the Privy Council (6).

Much has been said of the "comity of nations" in this connection. But, at all events, in the case of states or provinces independent of one another, it seems clear that no state or province can by comity or otherwise, add to or subtract from the inherent powers of a corporation created by another. Comity can only recognize the powers conferred upon the corporation by the state or province of origin, and permit their exercise within the foreign jurisdiction. For the foreign state or sister province to attempt to vary these powers would be a breach, rather than an exercise, of comity. So that, unless Ontario can confer power upon its corporations to do business in Quebec or in Brazil, neither Quebec nor Brazil can give them capacity so to do. Outside the province of origin the provincial

(6) 9 App. Cas. at p. 164.