HUNTER DISTRICT WATER SUPPLY &C. BOARD v. NEWCASTLE &C. COAL Co. not "compellable to supply water to any person whomsoever " (section 51). In every case of supply to private persons the supply is apparently in point of law a matter of grace or of agreement. The Legislature may well have thought that a public board-in correspondence with and under the control of the executive and in touch with the municipalities within their district-would hardly need the pressure of legal compulsion, and might be trusted to dispense the benefits at their disposal fairly and impartially to all concerned. It is also to be observed that the board is authorised to require every consumer of water to put up a meter, and a by-law has been made providing that "if the meter account exceeds the assessment, calculated at the rate of two shillings per 1,000 gallons," which is the prescribed rate for water supplied by meter, "then such excess shall be "charged in addition to the assessment."

Their Lordships were invited to approach the Act of 1892 as a confused and puzzling mass of legislation. They think it right to say that they have not found any difficulty involved in the question which has been submitted to them on this appeal.

They will, therefore, humbly advise her Majesty that the appeal ought to be dismissed. The appellants will pay the costs of the appeal.

Solicitors-G. M. Light, for appellants; Fooks, Chadwick, Arnold & Chadwick, for respondents.

1895.

Now, when water is supplied by meter or for domestic purposes without meter, no question as to the sixty yards limit can arise. That question only comes in when July 25.

there is no connection with the main. In such cases, which are probably rare, having regard to the provisions of section 68, all the board has to do is to assess the person who has failed to make a connection with the main and to assess him in respect of his property lying within the prescribed limit of sixty yards. If the valuation of that property is "included" in the municipal valuation-that is, if it is to be found there as an assessment available for the purpose of assessment by the board-then the board is to adopt the municipal valuation. If it is not included in the municipal valuation, then the board is authorised to make a valuation of its own (section 95). But in all cases a minimum charge of ten shillings is authorised, though that charge may exceed five per cent. on the valuation, which is the general limit (section 35, sub-section vi.). When, therefore, the valuation is under 107. the precise amount is immaterial even if the premises are occupied. If the premises are vacant the rate according to the by-laws is only fourpence in the pound, and then it is immaterial what the precise amount of the valuation is if it be under 301.

Nov. 16.

[Reported by J. Eyre Thompson, Esq., Barrister-at-Law.

Canada-Ontario Municipal Act, 1887, 8. 495-Powers to "regulate and govern Trades Corporation By-law Ultra vires.

A municipal power of regulation or of making by-laws for good government without express words of prohibition does not authorise the making it unlawful to carry on a lawful trade in a lawful manner; and thus a statutory power to "regulate and govern a trade" does not enable a municipality to prohibit that trade in certain defined areas.

This was an appeal by special leave from a judgment of the Supreme Court of Canada, which quashed a section of by-law 2,934 of the City of Toronto. The judgment of the Supreme Court was in reversal of that of the Court of Appeal for Ontario, composed of four JudgesHaggarty, C.J., Burton, J.A., Osler, J.A., and Maclennan, J.A.-who unanimously affirmed the judgment of Galt, C.J., who had dismissed an application to quash the

"For licensing, regulating, and governing hawkers or petty chapmen, and other persons carrying on petty trades, or who go from place to place or to other men's houses, on foot or with any animal, bearing or drawing any goods, wares, or merchandise for sale, or in or with any boat, vessel, or other craft, or otherwise carrying goods, wares, or merchandise for sale, and for fixing the sum to be paid for a licence for exercising such calling within the county, city, or town, and the time the licence shall be in force :

MUNICIPAL CORPORATION OF TORONTO and VIRGO. chandise for sale, or in or with any boat, vessel, or other craft, or otherwise carry goods, wares, or merchandise for sale; except that no such licence shall be required for hawking, peddling, or selling from any vehicle or other conveyance goods, wares, or merchandise to any retail dealer, or for hawking or peddling goods, wares, or merchandise, the growth, produce, or manufacture of this province, not being liquors within the meaning of the law relating to taverns or tavern licences, if the same are being hawked or peddled by the manufacturer or producer of such goods, wares, or merchandise, or by his bona fide servants or employees, having written authority in that behalf, and such servant or employee shall produce and exhibit his written authority when required so to do by any municipal or peace officer: nor from any pedlar of fish, farm and garden produce, fruit and coal, oil, or other small articles that can be carried in the hand or in a small basket, nor from any tinker, cooper, glazier, harness-mender, or any person usually trading or mending kettles, tubs, household goods or umbrellas, or going about and carrying with him proper materials for such mending."

Section 2a is the only part of the bylaw now complained of. It is in the following words:

"No person named and specified in sub-section 2 of this section (whether a licensee or not) shall, after the first day of July, 1892, prosecute his calling or trade in any of the following streets and portions of streets in the City of Toronto."

Then follows an enumeration of eight streets in the City of Toronto. It is stated in the evidence that these streets comprise the busiest and most important thoroughfares of the city.

The statutory power under which the corporation claim to make this by-law is contained in the Municipal Act of Ontario (c. 184 of the Revised Statutes of Ontario of 1887), s. 495, which, so far as is material, is in the following words:

"The council of any county, city, and town separated from the county for municipal purposes, may pass by-laws for the following purposes.

"In case of counties for providing at the discretion of the council, either the treasurer or clerk of the county, or the clerk of any municipality within the county, with licences, in this and the previous sub-section mentioned, for sale to parties applying for the same under such regulations as may be prescribed in such by-laws:

"Provided always that no such licence shall be required for hawking, peddling, or selling from any vehicle or other conveyance any goods, wares, or merchandise to any retail dealer, or for hawking or peddling any goods, wares, or merchandise, the growth, produce, or manufacture of this province, not being liquors within the meaning of the law relating to taverns or tavern licences, if the same are being hawked or peddled by the manufacturer or producer of such goods, wares, or merchandise, or by his bona fide servants or employees, having written authority in that behalf; and such servant or employee shall produce and exhibit his written authority when required so to do by any municipal or peace officer:

"(a) The word 'hawkers' in this subsection shall include all persons who, being agents for persons not resident within the county, sell or offer for sale tea, dry goods, or jewellery, or carry and expose samples or patterns of any of such goods to be afterwards delivered within the county to any person not being a wholesale or retail dealer in such goods, wares, or merchandise."

Reference was also made to section 503 of the same Act, which occurs under the rubric" Markets." This section empowers the council of every city, town, and incor

shews that when the Legislature intended to give power to prevent or prohibit, it did so by express words.

MUNICIPAL CORPORATION OF TORONTO and VIRGO. porated village, subject to the restrictions and exceptions contained in the last preceding six sections, to pass by-laws for: 1. Establishing markets. 2. Regulating markets. 3. "Preventing or regulating the sale by retail in the public streets, or vacant lots adjacent thereto, of any meat, vegetables, grain, hay, fruit, beverages, smallware, and other articles offered for sale."

Their Lordships are not required to construe this section, or to say whether the words "adjacent thereto" do not refer to both public streets and vacant lots, and mean adjacent to a market. Having regard to the previous sections under the same rubric, they think the clause is one for the protection of the market only, and of limited application.

In the opinion of their Lordships, it cannot be relied on in justification of the section now in question-and, indeed, the point was not pressed by the learned counsel for the appellants.

It appears to their Lordships that the real question is whether under a power to pass by-laws "for regulating and governing" hawkers &c., the council may prohibit hawkers from plying their trade at all in a substantial and important portion of the city, no question of any apprehended nuisance being raised. It was contended that the by-law was ultra vires, and also in restraint of trade and unreasonable. The two questions run very much into each other, and in the view which their Lordships take it is not necessary to consider the second question separately.

No doubt the regulation and governance of a trade may involve the imposition of restrictions on its exercise both as to time and, to a certain extent, as to place, where such restrictions are, in the opinion of the public authority, necessary to prevent a nuisance, or for the maintenance of order. But their Lordships think there is marked distinction to be drawn between the prohibition or prevention of a trade and the regulation or governance of it; and, indeed, a power to regulate and govern seems to imply the continued existence of that which is to be regulated or governed. An examination of other sections of the Act confirms their Lordships' view, for it

Their Lordships refer (amongst others) to section 489, sub-sections 25, 26, 28, 29, 44, 46, 51, and section 496, sub-sections 3, 13, 14, and 15. The language of these sub-sections-" preventing or regulating," "preventing or regulating and licensing "-tends to shew that the framers of the Act did not intend to include a power to prevent or prohibit in a power to regulate or govern. Several cases in the English and Canadian Reports were referred to in illustration of the respondents' argument. None of these cases are direct authorities, because the statutes from which authority was derived to make the by-laws there in question were framed in terms different from the statute now under consideration. But through all these cases the general principle may be traced, that a municipal power of regulation or of making by-laws for good government, without express words of prohibition, does not authorise the making it unlawful to carry on a lawful trade in a lawful manner.

It is argued that the by-law impugned does not amount to prohibition, because hawkers and chapmen may still carry on their business in certain streets of the city. Their Lordships cannot accede to this argument. The question is one of substance, and should be regarded from the point of view as well of the public as of the hawkers. The effect of the by-law is practically to deprive the residents of what is admittedly the most important part of the city of buying their goods of, or of trading with, the class of traders in question. And this observation receives additional force from the very wide definition given to "hawkers" in the Act. At the same time, the "hawkers" &c. are excluded from exercising their trade in that part of the city. There was no evidence, and it is scarcely conceivable that the trade cannot be carried on without occasioning a nuisance. The appellants, in their printed Case, wisely disclaim any intention on the part of the council to discriminate against hawkers and pedlars in favour of permanent shopkeepers. No

MUNICIPAL CORPORATION OF TORONTO and VIRGO. other explanation of the object of the bylaws is offered. The question, therefore, is reduced to a bare question of power.

Their Lordships, on the whole, have come to the conclusion that it was not the intention of the Act to give this power to the corporation. They therefore agree with the majority of the Judges of the Supreme Court, and will humbly advise her Majesty that this appeal be dismissed with costs.