within the period aforesaid, to wit, on or about the month of December, 1904, aforesaid, allowed to enter into Canada from the United States of America contrary to the prohibition of the said Acts, and that the said James R. Gilhula has remained and still is in Canada.

"These are therefore to command you in His Majesty's name to take into custody the said James R. Gilhula and return him to the United States of America, and for so doing this shall be your sufficient warrant.

"Given under my hand and seal this 23rd day of May, in the year of our Lord 1905, at the city of Ottawa, in the Dominion of Canada aforesaid.

(seal)

"C. Fitzpatrick, "Attorney-General for Canada."

The warrant for Cain's apprehension was similar in terms. J. A. Robinson, St. Thomas, for Gilhula.

J. B. MacKenzie, for Cain.

G. F. Shepley, K.C., for the Attorney-General.

ANG LIN, J.-Numerous grounds were urged in support of the motion, but, in the view which I take of the matter, it becomes unnecessary to deal with any ground other than that upon which I am about to dispose of it.

As amended by 1 Edw. VII. ch. 13, sec. 3, the 6th section of 60 & 61 Vict. ch. 11 (D.) reads as follows:

"The Attorney-General for Canada, in case he shall be satisfied that an immigrant has been allowed to land in Canada contrary to the prohibition of this Act, may cause such immigrant, within the period of one year after landing or entry, to be taken into custody and returned to the country whence he came, at the expense of the owner of the importing vessel, or, if he entered from an adjoining country, at the expense of the person, partnership, or company violating section 1 of this Act."

This statutory provision contains the sole authority for the issue and enforcement of the warrants above set out. Its validity is impugned by the applicants upon the ground, inter alia, that, inasmuch as it purports to authorize the Attorney-General, or his delegate, to deprive persons against whom it is to be enforced of their liberty without the territorial limits of Canada, it transcends the powers of the Dominion Parliament.

By the 91st section of the B. N. A. Act the Parliament of Canada is empowered to make laws for the peace, order, and good government of Canada in relation to all matters not coming within the classes of subjects assigned exclusively to the legislatures of the Provinces: and it is by subsec. 25 given "exclusive legislative authority" in regard to "aliens and naturalization." In many judgments the Privy Council has declared that our Parliament "has and was intended to have powers of legislation as large and of the same nature as the Imperial Parliament itself," the language of the B. N. A. Act being "apt to authorize the utmost discretion of enactment for the attainment of the objects pointed to." Riel v. The Queen, 10 App. Cas. 675; The Queen v. Burah, 3 App. Cas. 889, 904; Bank of Toronto v. Lambe, 12 App. Cas. 588. But that the area within which the powers so conferred may be exercised is restricted to the territorial limits of the colony to whose legislature they are granted, is equally well established. However general the language in which its jurisdiction is conferred, without an explicit bestowal of extra-territorial powers by the sovereign Parliament, no colonial legislature may enact legislation to be actively enforced beyond the boundaries of the colony: Powell v. Apollo Candle Co., 10 App. Cas. at p. 290; Routledge v. Low, L. R. 1 Ch. at p. 47, per Turner, L.J.; L. R. 3 H. L. at p. 116, per Lord Chelmsford; Forsyth's Constitutional Law, pp. 24, 465; Todd's Parliamentary Government in British Colonies, 2nd ed., pp. 159, 177-8; Dicey on The Constitution, 6th ed., p. 99n.

This is but one of the several restrictions necessarily flowing from the inherent condition of a dependency: Regina v. Taylor, 36 U. C. R. at p. 191; Craw v. Ramsey, Vaughan 274, at pp. 292-3. Counsel for the AttorneyGeneral was, therefore, well advised in conceding at bar that if the return of the immigrant to the country whence he came, prescribed by the 6th section of the statute, would necessarily involve his detention or subject him to constraint, by the agent of the Attorney-General, without the territorial limits of Canada, that provision is ultra vires of the Dominion Parliament.

Giving full effect to the argument of the learned counsel. that, if at all possible, the statute should receive a construction consistent with jurisdiction, not desiring "to attribute to the colonial legislature an effort to enlarge their jurisdiction to such an extent as would be inconsistent with the

powers committed to a colony" (McLeod v. Attorney-General for New South Wales, [1891] A. C. 455, 457), I have striven to discover some means for the performance of that which the warrants to the Commissioner require him to do, viz., to take into custody the applicants and return them to the United States of America, whence they came, that would not involve an assumption of extra-territorial jurisdiction. In this I have failed.

Mr. Shepley argued that the requirements of the statute must be deemed satisfied if the "immigrant" to be deported is "put in course of return" to the country from which he came. I cannot so read the words "return to." If the constraining force of the officer acting under the AttorneyGeneral's warrant ceases before the subject of it is within the territorial limits of the foreign country, I cannot understand how he can be said to be returned to that country by virtue of the warrant. If such force continues until the subject is upon foreign territory, its extra-territorial exercise cannot be denied.

In effecting the return of an "immigrant" to the United States it is suggested that the officer charged with that duty may take his subject in custody to the imaginary line forming the boundary, and then, remaining himself on Canadian territory, may push his prisoner across the line and into the United States. But, were it possible for the officer to eject a resisting alien without risk of projecting any part of his own person upon United States soil, in my opinion the application of the propelling force operating upon the person of the alien, while wholly or partly within the foreign territory, is an extra-territorial constraint of such alien by the Canadian officer and as such cannot be authorized by the Dominion Parliament. Again counsel suggests that the officer may select such a point as Windsor for the deportation, and may discharge his duty by placing his alien prisoner upon a ferry-boat crossing the river to Detroit. Here the alien is upon Canadian territory until the middle of the stream is reached. If the custody ceases when the alien is placed on the ferry-boat, it cannot be said that he is returned. to the United States by the officer charged with the execution of the warrant. If the custody continues until the ferryboat reaches mid-stream-apart from the difficulty of determining the precise moment at which the boat crosses the imaginary line beyond which any constraint by Canadian

authority is admittedly unwarranted, and the danger of an involuntary violation of United States territory-it is impossible to say that the deported subject is not under actual constraint imposed by Canadian authority until the boat reaches the Detroit docks. He is upon the ferry-boat not of his own volition, but because Canadian power has placed and kept him there. In theory his imprisonment may cease at the instant his body is carried over the border; in fact he is carried not to the border, but to the city of Detroit in United States territory, by compulsion of Canadian law.

The difficulties of returning "immigrants" to countries. separated from Canada by the high seas without exercising extra-territorial constraint are even greater. The statute extends to all foreign countries which have enacted and retain in force laws or ordinances applying to Canada of a similar character: sec. 9.

"In so far as they possess legislative jurisdiction, the discretion committed to the parliaments, whether of the Dominion or of the provinces, is unfettered. It is the proper function of a court of law to determine what are the limits of the jurisdiction committed to them:" Union Colliery Co. v. Bryden, [1899] A. C. 580, 585. Discharging that function, I have reached the conclusion that the provision of the Dominion statute 60 & 61 Vict. ch. 11, for the return of certain "immigrants" to the country whence they came, is ultra vires.

Neither may that statute be invoked to justify the custody in which the applicants are held within Canada. This custody is merely a means to an end, that end being deportation. The applicants are not in custody for any other purpose. Their apprehension is authorized by the legislature only as something subsidiary to their return to the United States. It follows that, if the return itself cannot be legally effected, the detention for that illegal purpose is unwarranted.

The applicants are, therefore, in my judgment, entitled to an order for their immediate discharge-and that order I accordingly pronounce.

In addition to the authorities cited in the course of the foregoing opinion, I make the following references:-Ray v. MeMackin, 1 Vict. L. R. 274; In re Gleich, 1 New Zealand Sup. Court 39; In re Victoria Steam Navigation Board, 7 Vict. L. R. 248; Lefroy on Legislative Power in Canada, pp. 322 et seq.; In re Bigamy Sections of Criminal Code, 27 S. C. R. 461; Regina v. Brierly, 14 0. R. 525; Regina v. Plowman, 25 O. R. 656.

THE

ONTARIO WEEKLY REPORTER

(TO AND INCLUding June 24TH, 1905.)

Appeal-Motion to Quash-Waiver by Submission to Judg ment Appealed against-No Effective Remedy upon Appeal.

Motion by plaintiff to quash appeal by defendant corporation to a Divisional Court from the judgment of MAGEE, J., ante 1.

E. D. Armour, K.C., for plaintiff.

W. C. Mikel, Belleville, for defendant corporation.

The judgment of the Court (MEREDITH, C.J., BRITTON, J., ANGLIN, J.), was delivered by

ANGLIN, J.-Plaintiff sued to restrain defendant corporation from selling to defendant Caldwell, for a sum less than that offered by plaintiff, lands acquired by the corporation when offered for sale for arrears of taxes. Plaintiff and defendant Caldwell had each, upon tendering for these lands, deposited a sum of money with defendant corporation. By the judgment granting the injunction sought by plaintiff, the trial Judge directed the return of such money to both plaintiff and defendant Caldwell, holding that there was no contract to sell the lands in question to either of them binding upon defendant corporation. With this latter portion of the judgment the defendant corporation have complied. It is further stated that defendant Caldwell has intimated his intention to decline to purchase these lands from his codefendants.

VOL. VI O.W.R. NO. 5-10