It is unnecessary to study the extra-provincial legislation of all the Provinces; that of Ontario initiated the present condition. The legislation of Manitoba on the subject serves as a type. The first legislation there was passed in 1877, and had for its object the invitation of financial companies to do business in that Province. The provisions were extended to other companies, and subsequently dealing in land was restricted. It was not until 1909 that the right of audience before the Courts was restricted. The Ontario legislation was first passed in the year 1900, 63 Vic., Ch. 24. This legislation has been followed in all the of Provinces. Its competency was first called in question in the questions propounded by the Court in Canadian Pacific Ry. v. Ottawa Fire Insurance Co. (1) The judgment of the Court in this case added very little to the discussion. The subject was again raised in the questions propounded by the Governor General in Council and referred to the Supreme Court of Canada by Order-in-Council dated the 10th of May, 1910. These questions were discussed by the Supreme Court and an appeal was made to the Judicial Committee, but in the meantime the decision of the Committee in the John Deere Plow Company v. Wharton (2), was supposed to have decided the question. The opinions of the Judges of the Supreme Court in the Company Case were before the Judicial Committee of the Privy Council, and their Lordships refused to consider the abstract question which was raised. Their Lordships refused to define a priori the full extent to which Dominion companies may be restrained in the exercise of their powers by the operation of enactments properly framed under the provisions of section 92 of the British North America Act. Their Lordships held that it was not within the powers of the Provincial Legislature to enact in their then form the provisions of the British Columbia Companies Act respecting the licensing of Dominion companies. They, in substance, held that the British Columbia Act was ultra vires in so far as it related to Dominion companies. The subject was next before the Courts in Currie v. Harris Lithographing Co., Limited. The Chief Justice of Ontario, in his judgment, refused to be bound by the decision of the Judicial Committee of the Privy Council. The grounds for not following this decision may be put in this way. The Judicial Committee did not hold that it was beyond the competency of the local Legislature under any circumstances to limit Dominion companies. It was held that the legislation in its then form did not accomplish this purpose. The Chief Justice of Ontario held that the Ontario legislation was not in the same form as that of the Province of British Columbia, and for that (1) 1915, A.C. 330. (2) 1918, 41 O.L.R., 475. reason the decision of the Privy Council was not applicable. It may be said that an analysis of the form of the legislation in both cases was not referred to or dealt with. His Lordship also referred to the general topic of the distribution of legislative authority respecting companies, which it is proposed to consider in greater detail, and also to the question of mortmain. The method of the Appellate Division of the Supreme Court of Ontario would render it necessary to litigate to the Privy Council the provisions of the Extra-Provincial Corporations Act of each of the Provinces. It is a pity that the precise wording of the British Columbia and Ontario Acts was not compared so that it could be seen to what extent they differed. In this way the Ontario legislation escaped the result of the decision in the John Deere Plow Company Case. The subject is now pending before the Judicial Committee of the Privy Council in an appeal from Currie v. Harris Lithographing Company, Limited; Harmer v. Macdonald (1), and Davidson v. Great West Saddlery Co. (2). If after the decision in these cases the Canadian courts still follow the method applied by the Chief Justice of Ontario, it is likely that no further assistance will be given in solving this difficulty. There are two grounds upon which the Provinces contend for the control of companies: first, and perhaps the most important, is the revenue derived; second, and one upon which great stress is laid, is the right of the Province in mortmain. With respect to revenue there can be no question where it is in the form of taxation. With respect to the question of mortmain, the whole subject has been misconstrued and the positions of the Provinces and the Dominion in this respect are not adequately understood. Some of the Provinces, notably Ontario, as indicated in the Chief Justice's judgment in Currie v. Harris Lithographing Co., Limited, maintain their attitude with respect to Dominion companies mainly on their asserted right in mortmain, and the Chief Justice quotes decisions to support this contention. It should be pointed out that there are no decisions which substantiate this claim. There are number of dicta in decisions of the Judicial Committee of the Privy Council which might support this view, but these utterances cannot, by any means, be considered to be decisions of the Committee. The decisions in question are: Citizens Insurance Company v. Parsons (3); The Colonial Building and Inves ment Association v. The Attorney General of Quebec (4); Chaudiere Gold Mining Company v. Desbarats (5); and The John Deere Plow Company v. Wharton (6). In none of these cases was the question of mort (1) 1917, 33 D.L.R., 363. (2) 1917, 35 D.L.R., 526. main up for consideration. It should also be pointed out that the decision in Chaudiere Gold Mining Company v. Desbarats was nullified by a legislation of the Province of Quebec before the decision of the Privy Council was given (1). Provincial, Dominion, United States, Imperial, and other companies are not required to obtain a license in mortmain in the Province of Quebec. In considering the question of mortmain, if weight is to be given to the dicta above referred to it should be investigated whether provincial legislation is in fact within the description of "mortmain legislation." The primary purpose of this legislation is to preserve the rights of the lord of the manor. In the Western Provinces, except British Columbia, the Dominion is the lord of the manor and provincial legislation cannot be deemed to be truly within the description. It is in fact restrictive legislation, and it is open to argue that the general license to hold lands contained in the Dominion companies Act may overrule this restriction. With respect to the other Provinces, it may be fairly said that all, except Ontario and British Columbia, have no mortmain legislation, as such, limiting Dominion Companies. Serious limitations are imposed on the Extra-Provincial Companies legislation by a precise deduction from the decision of the Judicial Committee of the Privy Council in the Insurance Case (2). The second question propounded for consideration in that case is as follows: (2) "Does s. 4 of the Insurance Act, 1910, operate to prohibit an insurance company incorporated by a foreign state from carrying on the business of insurance within Canada, if such company does not hold a license from the Minister under the said Act, and if such carrying on of the business is confined to a single Province?" The decision therein is as follows:-"The second question is, in substance, whether the Dominion Parliament has jurisdiction to require a foreign company to take out a license from the Dominion Minister, even in a case where the company desires to carry on its business only within the limits of a single Province. To this question their Lordships' reply is that in such a case it would be within the power of the Parliament of Canada, by properly framed legislation, to impose such a restriction. It appears to them that such a power is given by the head in s. 91, which refers to the regulation of trade and commerce and to aliens. This question also is therefore answered in the affirmative." (1) 1872, 36 Vic., cap. 25, s.2. No doubt the question under consideration referred to insurance companies only, but the reasons for the decision apply equally to companies of all classes. The power given the Dominion Parliament in this respect is held to be given under the enumerated clauses of section 91 of the British North America Act, and Dominion legislation upon the subject of foreign companies would oust Provincial legislation on the same subject. The right to hold the lands in Canada is conferred on aliens not by Provincial legislation but by Federal. A curious situation is brought about by this conclusion. With properly drawn Dominion licensing legislation, the extra-provincial legislation of the Provinces could be set aside and persons desiring to proceed with company activities without control of the Provinces could incorporate in Delaware and obtain a Dominion license, and hold lands notwithstanding the Provincial mortmain legislation. The modern joint stock company is the great instrument of modern business. If the tendency of the past few years is continued, it may be fairly said that modern business is carried on exclusively by joint stock companies. Any doubt cast upon the effect or operation of company legislation must hamper business. At the present time more than any other during the history of Canada, the greater freedom of business method is necessary. When a lawyer cannot advise his client with respect to the capacity of a proposed company or with respect to the limitations under which it may be placed, business development must be hampered. The difficulties above indicated should be solved. The solution may be assisted by the members of the Canadian Bar Association, and the pressure which the members of the bar throughout Canada may bring to bear upon the Dominion Parliament and the Provincial Legislatures. This will be assisted by a more exhaustive study of the various questions of company law presented to the Courts. The time for quibbling is past. The working out of logical conclusions of theoretical principles which were sufficient for past times will not avail us at present. Company law is for the business community and the advancement of trade. Company law should not be for the sophist or the quibbler. The question of the method of solving these difficulties remains. The Chief Justice of Ontario in his judgment in Currie v. Harris Lithographing Co., Limited (1), after considering the authorities and the interpretation of the Statutes upon the subject, refers to the political considerations which induced him to decide as he did. There can be no doubt that political considerations should be dealt with in disposing of the question. When a Statute is capable of more than one interpretation, it seems on the ground of expediency and also in the best in (1) 1917, 41 O.L.R., 475, at p. 498. terests of the community that, where no principle is infringed, that construction which will most greatly promote trade and commerce should be adhered to. The Chief Justice refers to the subject as follows: "It is, I think, to be regretted that at the outset it was not determined that the authority of the Parliament of Canada to incorporate companies was limited to creating them and endowing them with capacity to exercise such powers as it might be deemed proper that they should possess, but leaving to each Province the power of determining how far, if at all, those powers should be exercised within its limits. "Such a construction would, of course, have left to the Parliament of Canada authority to legislate for the incorporation of companies with other than provincial objects, using the words 'incorporation of companies' in the sense which I have just mentioned, but leaving it to the province to endow the company with such powers as it should deem proper that it should possess." There can be no doubt that for the purpose of determining the status and the scope of a company this method of distributing legislative jurisdiction in the incorporation of companies would have been quite simple. It is doubtful, however, whether it would have been in the best interests of the Dominion at large. Under such a method, while a company might be incorporated by the Dominion, it would have no capacity to do business or carry on its activities without the consent and approval of the Provinces. This would leave the operation of the company in the control not of its creator, the Dominion, but in the control of the Provinces. It is likely to follow therefore that the control would be exercised in the interests of the Provinces, and not in the interests of the Dominion at large. We have copied many things from the United States: many things, in fact, which would have been to our advantage not to have copied. Moreover there are many developments in the past history of that country which are worthy of careful study. We are now in a similar state of commercial development which was found in the United States during the early decades following the Civil War. The development of trusts and combinations which can be traced in the United States forty or fifty years ago are now apparent in Canada. A study of the causes which led to the trusts of the United States and the methods devised to counteract them should be fruitful in Canada at present. In the United States the States have even greater control over the incorporation of companies and the Federal Government less than prevails in Carada. Adopting the suggestion of the Chief Justice would vary the circumstances very little except that the creation of the company carrying on Dominion-wide business would be in the hands of the Federal authorities although there would be no authority whatever |