v.

FOR

Henry, J.

and by their several governments, for public purposes. 1881 It does not, however, follow that the words used in the MERCER provision should be adjudged to include the preroga- ATTORNEY tive right of the sovereign in respect of any title she GENERAL might obtain by the accident of a person dying intes- ONTARIO. tate without heirs. Such an assumption as the latter is quite unnecessary to give operation to the provision; and for the many reasons I have given, I think it does not include what is claimed; nor can I arrive at the conclusion that such was intended. These views are in accordance in many respects with those I expressed in the case of Lenoir v. Ritchie (1). I may add, that in that case they were not alone my views, but those of all my learned brethren who heard and decided it ; and I have heard nothing since tending to change or weaken them. After giving my views, as I have done, in reference to the right in question, I need hardly say that I consider the act of the province of Ontario in relation thereto ultra vires. I must, therefore, in accordance with those views decide that the respondent. has not established the position upon which his right to recover in the suit is based; that the judgment appealed from should be reversed, and that our judgment should be for the appellant, with costs.

TASCHEREAU, J. :

Though I have not failed to give the able argumentation of the learned counsel heard before us on the part of the respondent in this cause the consideration it deserved, I have been unable to alter my views on the question submitted as I expressed them in the Fraser case (2), where the same question was before me in the Superior Court of Kamarouska, and I am still of opinion that under the British North America Act the right to escheats propter

(1) 3 Can. S. C. R. 575.

(2) 1 Q. L. R. 177.

1881

v.

ATTORNEY

FOR ONTARIO.

Taschereau,

J.

defeclum sanguinis belongs exclusively to the federal MERCER power. As this last case is fully reported, I have not written down at full length the reasons upon GENERAL which I have come to a conclusion in the present case. This however would, under the circumstances, have been useless. I concur entirely with what my brother Gwynne says on the construction to be given to the word royalties, and to the word lands in section 109 of the British North America Act, as well as with what he says on the doctrine of reversion relied upon by the respondent. I may remark that this doctrine of reversion and the reasons given in the present case by the Ontario Court of Appeal applicable to real estate, do not support the Quebec Court of Appeal in the Fraser case, where the question as submitted related to personal as well as real estate. To say, as has been said, that as escheats fall within the words "property and civil rights in the province," they belong to the local power, is a petitio principii. It is taking for granted that they do not belong to the Crown, to the federal power; for, if they belong to the federal, they, of course, do not fall under the words " property and civil rights in the province," and they cannot in any shape whatsoever be legislated upon by the local power. Section 117 of the British North America Act, relied upon by some of the judges in the Quebec Court of Appeal, has nothing to do with the question, and was not relied upon by the respondent before this court. As to the word royalties, to be found in section 109 of the British North America Act, which word, according to some of the judges in the Quebec Court of Appeal, in the Fraser case, transfers and reserves escheats to the provincial governments, the respondent has, rightly, in my opinion, been unwilling to base his case upon it in his argument before us. To my mind section 102 of the British North America

1881

MERCER

v.

ATTORNEY

FOR

ONTARIO.

Taschereau,

J.

Act is conclusive. The legislatures of Canada, Nova Scotia and New Brunswick, before and at the union, had power of appropriation over the revenues arising from escheats. Such revenues have not by the British North GENERAL America Act been reserved to the provincial legislatures. Neither can these revenues be said to be raised by the provincial legislatures, in accordance with the special powers conferred upon them by the said British North America Act. Then, they form part of the consolidated revenue fund of the Dominion, according to this section 102. This is so for real as well as for personal property, as I read the Act. The argument of the respondent, based upon the doctrine of reversion, seems to me defective in that it leaves the personal property of a person deceased intestate without heirs to the federal government, whilst it gives his real property to the local government.

Any argument which leaves Mercer's personal estate, which is very large, to the federal government, whilst it gives his real estate to the local government must, as I view it, be wrong, and contrary to a sound interpretation of the British North America Act. The Imperial authority cannot have intended such a division of the revenues from escheats. I may also remark that in the province of Quebec the laws relating to escheats under art. 637 of the Civil Code are not derived from the feudal system, and are anterior to the feudal ages, so that this doctrine of reversion could not apply there. It seems to me that any argument which under the British North America Act does not and cannot apply equally to all the provinces must be contrary to the spirit and intent of the British North America Act. This doctrine of reversion seems to me also defective in that it cannot apply to lands which did not belong to the provinces at the time of the union. Lands which did not form part of the public domain at the union were not given to the

1881

v. ATTORNEY

ONTARIO.

Taschereau,

J.

provinces by section 109 of the Act. Lands of persons MERCER dying intestate without heirs in any one of the provinces before confederation did not re-vest in the proGENERAL Vince, but escheated to the sovereign, and belonged to FOR him. He alone had the title to them. The provinces had been given by the sovereign and possessed at the union power of appropriation over the revenues arising from this right of escheat (the revenues only, not the prerogative right itself, which always remained and remains in the person of the sovereign), and these revenues by section 102 of the Act have been given to the Dominion Government. All duties and revenues over which the provinces had, before confederation, power of appropriation are by said section 102 given to the Dominion Government, save and except only such portions of said duties and revenues which are by the Act reserved to the provinces. Section 126 distinctly enacts that the provinces shall have for the future such portions only of said duties and revenues which are by the Act reserved to them. This is clear. For the Dominion, all duties and revenues, except those expressly reserved to the provinces. For the provinces, none of said duties and revenues but such portions thereof as are express reserved to them. The provinces have consequently to establish that the Act reserved to them the revenues from escheats. The onus probandi is on them. I fail to see that in any part of the Act these revenues have been so reserved to them.

As to the argument, that as section 102 enacts that the duties and revenues therein mentioned shall form part of the consolidated revenue fund of the Dominion, it would be impossible for the Crown to relinquish its rights to revenues from escheats in favor of illegitimate children of the deceased or otherwise, it may be remarked that this argument, if good, would apply equally to the statute ch. 10 C. S. C. sec. 5, in which it was also enacted

that the duties and revenues, including escheats, would 1881 form part of the consolidated revenue of the province MERCER of Canada as constituted before confederation. Yet, v. ATTORNEY under the said Act, it has never been doubted that the GENERAL Crown could relinquish its rights to escheats when it wished so to do.

The question submitted to us by one of the learned counsel for the respondent as to whether the Queen forms part of the local legislatures seems to me to have no practical bearing on this case. That, when anything which, according to the principles of the British Constitution, must be done in her Majesty's name, has to be done by the Lieutenant Governors of the provinces, under the British North America Act, they are authorized to do it in her Majesty's name, and are deemed then to act for her Majesty, has not, that I remember, been denied by the appellant. But they are not her Majesty's direct representatives, as the Governor General is. They have never been considered as such by the Imperial authorities.

"The Lieutenant Governors of the provinces of the Dominion, however important locally their functions may be, are a part of the colonial administrative staff, and are more immediately responsible to the Governor General in Council. They do not hold commissions from the Crown, and neither in power nor privilege resemble those Governors, or even Lieutenant Governors of colonies, to whom, after special consideration of their personal fitness, the Queen, under the great seal and her own hand and signet, delegates portions of her prerogatives and issues her own instructions," says the Earl of Carnarvon in a despatch to Lord Dufferin, dated January 7th, 1875 (1).

That the Lieutenant Governors are considered by the Imperial authorities as officers of the Dominion Govern

(1) Vol. 8, No. 7 Sessional Tapers, 1875.

FOR

ONTARIO.

Taschereau,
J.