1. Appeal, and Cross-Appeal (consolidated) (No. 23 of 1947) from a judgment of the Supreme Court of Alberta (Appellate Division) (December 17, 1946), on a reference to it by the Lieutenant-Governor in Council of the following question "Is the Alberta Bill of Rights Act, S.A. 1946, c. II, intra vires the legislature of Alberta, either in whole or in part, and if so, in what part or parts, and to what extent"

2. Part I of the impugned Act declared certain existing rights of Alberta citizenship and the right of every citizen to gainful employment or, if such employment was not available, to a social security pension, and to educational, medical and retirement benefits, and Part II provided a method of making effective the provisions of Part I by conferring on the Province control over the creation of credit by chartered banks and other credit institutions over and above their cash reserves.

3. The relevant provisions of the impugned Act appear from the judgment of the judicial Committee.

4. The Supreme Court of Alberta (Harvey C.J.A., Ford, OConnor, Macdonald and Parlee JJ.A.) held that Part II of the Act was ultra vires, and Part I intra, vires, the legislature of Alberta.

5. The cross-appeal was by the Attorney-General for Canada against the decision that Part I of the Act was intra vires.

6. 1947. June 23, 24, 26. Lucien Maynard K.C. (Attorney-General for Alberta) and H.J. Wilson K.C. (Deputy Attorney-General for Alberta) for the Attorney-General for Alberta. The first question is whether the Province has the constitutional authority to establish the rights of citizenship in the manner provided in Part I of the impugned Act. Part II provides the method and not necessarily the only one of making effective the provisions of Part I. That method is the exercise by the Province of the control over the creation of credit by the chartered banks and other credit institutions over and above their cash reserves. The second question, therefore, is whether the Province has the constitutional authority to enact the provisions of Part. II. The respondents claim that the power to expand credit over and above cash reserves is properly a matter exclusively reserved, to the Dominion by virtue of its authority to legislate on matters relating to "banking" and allied matters. The appellant, on the other hand, submits that Part II does not deal with "banking" within the meaning of that word as used in the British North America Act at the time of confederation, and that consequently the control of the issue and creation of credit by the chartered banks over and above their cash reserves is within the legislative competence of the Province. [Reference was made to the Report of the Royal Commission on Canadian Banking, 1933 (the Macmillan Report), pp. 43 and 44.] While it is conceded that banks deal with credit as part of ordinary banking operations, it is contended that the practice which the banks have assumed of expanding credit over and above their cash reserves did not constitute the practice at the time of confederation, is not banking practice within the meaning of that word in the British North America Act, and is not in conflict with any provision of the Dominion Bank Act, and that consequently there is a field reserved to the Provinces under the general heading of property and civil rights," and the Province may legislate in regard to this field even though it affects banking operations. That is the broad submission. The appellant must first bring himself within Section 92 of the Constitution Act, and he must also show that the Act in question does not relate to "banking" and that it does not infringe on any other sub-head of Section 91.

7. "Credit" extends far beyond the legitimate province of banking; jurisdiction in regard to credit is inseparable from jurisdiction over "property and civil rights," and jurisdiction over credit is neither exclusively nor by necessary implication reserved to the Parliament of Canada in the Act of 1867. The financial credit of the Province is the ability and intention of the people to produce goods and services. [The history of banking was dealt with to show the relationship which existed between credit and banking, and reference was made to the practice at the time of confederation, and to Breckenridge, Canadian Banking System, p. 243, and to Curtis on Statistical Contributions to Canadian Economic History -- Statistics of Banking.] The foregoing establish that at the time of confederation banks had not then assumed the practice of expanding credit as they are doing to-day: Goodwin v. Robarts (1875) L.R. 10 Ex. 337, 348, 350-1. It is a function which cannot be recognized as coming within the field of Dominion legislation. Although banking is properly a dealing in credit, it cannot be said that all dealing in credit is banking--that, is the crux of the argument. There must be a dividing line, and it is submitted that the fundamental difference to be recognized by the court is as follows: To the extent that a person (a) issues notes or bills under the statutory authority of Parliament and such issue is based entirely on his credit, that is, the confidence of the public in his ability to redeem these notes on demand in legal tender; and (b) lends the notes so issued as well as any currency under statutory authority to the public on the strength of credit, that is, the confidence he has in the capacity, ability and integrity of the public to repay its loans and (c) issues notes or bills under statutory authority which are universally accepted as a medium of exchange or money; he is a dealer in credit within the meaning of banking as defined in the British North America Act. To the extent that a person (a) advances credit to an individual by supplying him with goods to be paid for in the future; and (b) keeps a record of credit advances in his books of account; and (c) uses his own credit, that is, the confidence placed in him by the public and bankers, to borrow and lend; and (d) keeps a written record of the transactions of the public on the strength of his credit, that is, the confidence or trust the public has in him to keep the records correctly and honestly; and (e) extends credit which is transferable and can be used by means of a cheque, that is, the confidence of the public in the maker of the cheque, and which is not universally accepted and cannot be said to be a medium of exchange, money or currency; does all or any of these filings and does not issue notes intended to circulate as money, he is not dealing in credit within the meaning of the term banking as used in the British North America Act. The term "banking" as used in Section 91, head (15.) of that Act should not be given a more extended meaning than that which it had at the passing of the Act: Rex v. Cotton (1912) 45 S.C.R. 469, 508. It then had a definite and specific meaning, and the Dominion Parliament could not legislate with respect to matters not ordinarily included in the term banking at that time--which did not include expanding credit -- and those matters would otherwise be included under the head "property and civil "rights" and within the jurisdiction of the provincial legislatures. [On the construct ion of statutes reference was made to Craies on Statute Law, 4th ed., pp. 83-4.] To carry out the responsibilities imposed on them by the British North America Act the Provinces must have the constitutional authority to use the credit of the people of the Provinces, otherwise the Provinces are saddled with responsibilities which they cannot discharge; any other interpretation of the Constitution Act would lead to an absurdity. Lastly, the argument as to the restricted meaning of "banking" is supported by reference to an analogous situation in respect of the interpretation of the words "regulation of trade and commerce" it has been held in many cases that those words in Section 91, head (2.) should be given a restricted meaning, because to give them their literal meaning would give the Dominion Parliament wide powers which were not intended by the framers of the Constitution Act: Citizens Insurance Company of Canada v. Parsons (1881) 7 App. Cas. 96; In re The Board of Commerce Act, 1919 [1922] 1 A.C. 191. The Alberta Bill of Rights Act is not banking legislation.

8. H.J. Wilson K.C. followed. The judgment below of the Supreme Court stated that "if has been repeatedly held that while the Dominion in legislating on subject-matters assigned to it may infringe on subject-matters assigned to the Provinces the converse is quite otherwise, and that the right of the Provinces, though stated to be exclusive, is qualified, and that provincial legislation though on a subject-matter assigned to the Provinces cannot be permitted to infringe on subject-matters assigned to the Dominion." It is that converse proposition which is in error; it is submitted that if provincial legislation is in pith and substance on a provincial subject-matter it is valid notwithstanding that it infringes on a Dominion matter. If the impugned. Act relates to "property and civil rights" it may incidentally affect or infringe on a Dominion subject-matter without being invalid provincial legislation. Authorities which bear out that proposition are Canadian Pacific Ry. v. Corporation of the Parish of Notre Dame de Bonsecours [1899] A.C. 367, Attorney-General for Manitoba v. Manitoba Licence Holders Association [1902] A.C. 73 and Lymburn v. Mayland [1932] A.C. 318, 334. The two following cases show the extent to which a Province may affect or infringe on a Dominion matter if the provincial legislation falls within Section 92 : Ladore v. Bennett [1939] A.C. 468, 480, Day v. Victoria (City) (1938) 3 W.W.R. 161, 184. [Reference was also made to Board of Trustees of Lethbridge Irrigation District v. Independent Order of Foresters and Anr. [1940] A.C. 513, 532, Attorney-General for Alberta v. Attorney-General for Canada [1943] A.C. 356, 369 and Attorney-General for Canada v. Attorney-General for Quebec and Ors. Ante pp. 33, 43.] If the impugned Act is banking legislation, or if it is in conflict with valid Dominion legislation, the appellant cannot succeed. It is submitted, however, relying on the principles in the cases cited,, that the Act, relating as it does to the control and regulation of credit and not specifically directed to banking or banks or any of the subjects assigned exclusively to the Dominion, although it may incidentally affect banks and the issue of credit by banks, in pith and substance relates to "property and civil rights" and is within the competence of the provincial legislature.

9.G.H. Steer K.C. and D.W. Mundell, for the Attorney-General for Canada, were only required to deal with the cross-appeal. Part I of the Act is not severable from, but on the contrary is wholly dependent on, Part II. The court cannot presume, nor is there evidence, that the legislature intended to pass Part II of the Act alone. On the contrary, there is such a necessary connexion between Part I and Part II as to furnish cogent evidence that the legislature did not intend to enact one part without the other. Section 28 of the Act also furnishes evidence that the legislature intended that the Act should come into force as a whole or not at all. [Reference was made on the point of severability to Attorney-General for Manitoba v. Attorney-General for Canada [1925] A.C. 561, 568, In re Validity of Manitoba Act [1924] S.C.R. 317, 323, Attorney-General for Canada v. Attorney-General for Ontario [1937] A.C. 355, 367 and Attorney-General for British Columbia v. Attorney-General for Canada [1937] A.C. 377, 389.] The preamble of the impugned Act is intended to be read as explanatory of the whole Act, and it shows, as does Section 28, that the Act was intended to stand as a whole. There is nothing in the Act which would justify the Government of Alberta in paying social security pensions in any other form than this new form of money which is set up--the credit system. One cannot conceive of the legislature passing Part I of the Act unless they had also passed Part II which provides the means of payment,

10. E.J. Chambers K.C. for the Canadian Bankers Association, the second respondents to the main appeal, said that they were not a party to the cross-appeal.

11. Lucien Maynard K.C. Part I of the Act is clearly within the legislative competence of the provincial legislature, relating, as it does, to property and civil rights, and it is severable from Part II. There are two points on severability; first, whether Part I forms an inextricable part of the Act as a whole; it does not; it is not so inextricably interwoven with Part II that it cannot stand by itself as a separate enactment. Secondly, the Board cannot assume that if Part II is invalid the legislature would not have passed Part I in itself. The wisdom of the legislature in passing any enactment should not be passed on so long as the enactment was within the competence of the legislature. The pith and substance of this legislation is to provide the people of the Province with increased social services, [Reference was made to Attorney-General for British Columbia v. Attorney General for Canada [1937] A.C. 377. A.C. 1947 and Toronto Corporation v. York Corporation [1938] A.C. 415.] There was no reply.

12. July 24. The judgment of their Lordships was delivered by Viscount Simon. In this matter consolidated appeals by the Attorney-General for Alberta and the Attorney-General for Canada respectively are brought before the Board from a judgment of the Supreme Court of Alberta (Appellate Division) to which, by the order of the Lieutenant-Governor in Council of Alberta; the question of the validity of "The Alberta Bill of "Rights Act." (Clause 11 of 1946) had been referred. The Supreme Court decided that Part II of the Act was invalid inasmuch as the Alberta legislature had no power to make a law in relation to the subject of "banking," which is part of head 15 of the enumerated classes of subjects which Section 91 of the British North America Act exclusively assigned to the Parliament of Canada. The Supreme Court also held that Part I of the Act was intra vires of the Alberta legislature and did. not pronounce that the Act was invalid as a whole. The reasons for the judgment of the Supreme Court of Alberta were given by Harvey C.J.A., and were concurred in unanimously by the rest of the court which consisted of Ford J.A., OConnor J.A., Macdonald J.A. and Parlee J.A.

13. The Attorney General for Alberta contended before the Board that Part 11 was not legislation relating to "banking" within the meaning of head 15 of Section 91, but was in pith and substance legislation relating to "Property and civil rights in the "Province" (head 13 of Section 92). The Attorney-General for Canada contended that the decision of the Supreme Court of Alberta that Part 11 of the Act was invalid was correct and should be upheld, while in the cross-appeal he urged that the rest of the Act was not severable from Part 11 with the result that the whole Act was invalid. The Canadian Bankers Association, which was the second respondent in the appeal of the Attorney-General for Alberta, appeared before their Lordships to assist in upholding the decision of the Supreme Court as to Part II of the Act.

14. Their Lordships have therefore two questions before them, first, as to the validity of Part II of the Act, and, secondly, if Part II is held to be invalid, whether Part 1 of the Act none the less survives as severable and effective legislation, Their Lordships will deal with these two questions in turn. It is first necessary to set out the relevant parts of the Act, both for the purpose of reaching a conclusion as to the validity of Part II and for the purpose of seeing whether the rest of the Act can stand if Part II goes. The Act begins with a long preamble which is preliminary to the division into two parts. The preamble is composed of seven paragraphs, the first three of which make reference to the purposes for which the two world wars were fought and to the duty which now rests on the Canadian people "to win the peace by so ordering their internal economy that the freedom and security for which they fought may be experienced in reality by all of our citizens," The fourth recital runs as follows: "Whereas the Province of Alberta possesses all the human and material resource necessary to provide for its citizens the material security essential to the enjoyment of personal freedom." The fifth recital is: "Whereas The British North America Act imposes upon the Province the constitutional responsibility of providing its citizens with an opportunity to realize and enjoy their property and civil rights." The sixth and seventh recitals are of considerable importance as indicating the main purposes of the Act and as bearing on the connexion between Part 1 and Part II. They run as follows: "Whereas the discharge of the Provinces responsibility necessitates the recognition of certain basic rights and responsibilities of citizenship and, requires that its citizens have the necessary access to their resources so that they may produce the goods and services they require and provide for their equitable distribution in a manner that will ensure to all an opportunity to obtain social and economic security with personal freedom; and Whereas the control of policy with respect to the issue, use and withdrawal of credit primarily determines the extent to which the citizens of Alberta may develop and enjoy the use of their resources and therefore must be a function of the electorate of the Province to be discharged on their behalf by their democratically elected representatives." Their Lordships would observe, before going further, that the sixth recital asserts the necessity, of two things which are united by the conjunction "and." It will be seen hereafter that the first of these elements is to a large extent the substance of Part I, while the second of them is sought to be dealt with in Part II. The final recital will be found to express the effective purpose of the Bill which, when it is read as a whole, seems plainly to be an application of the economic theory of what is called social credit.

15. The preamble is followed, in Section 2, by a number of definitions, one of which, namely, the definition of "social security pension." is of special importance. Their Lordships would again observe that these definitions precede any division of the Act into parts. The definition referred to is as follows: "2.--(f) Social Security Pension means the payment to individuals, as herein provided, of claims on goods and services within the limitations of the natural resources of the Province and the productive capacity of the people, to ensure an annual income of not less than six hundred dollars a year on the basis of the 1945 price level, for every single citizen of Alberta nineteen years of age and over.



Provided, however, that in the case of married persons, for the purpose of determining the amount of the payment to either spouse, the income of the two spouses shall be considered as if it were their joint income.

16. Then, comes Part I, which consists of twelve sections, the first ten of which are all introduced by the words "it is hereby declared." Sections 3 to 8 appear to be mere declarations of common law rights. The language employed might, perhaps, raise questions as to their precise application -- for example how does Section 7 apply to the case where a mans property is requisitioned or acquired on compensation terms for a public work or railway But it is unnecessary to delay over these sections since nobody can suppose that the purpose of the Alberta legislature in passing this legislation would justify the view that they would intend these sections to stand if the clauses which carried out the main purpose of the Bill had to be regarded as a nullity. There follow in Part I, Sections 9 to 12, which must be set out:



9. It is hereby declared that every citizen of Alberta of not less than nineteen years of age and not more than sixty years of age is entitled as a right of citizenship to



(a) the opportunity to engage in gainful employment;

or

(b) if gainful employment is not available, to a social security pension.

10. It is hereby declared that every citizen of Alberta under nineteen years of age is entitled as a right of citizenship to



(a) the necessities of life adequate to ensure health and physical well-being;

(b) educational benefits;

(c) medical benefits.

11. It is, hereby declared that every citizen of Alberta who has reached the age of sixty years is entitled as a right of citizenship to retire from gainful employment and upon retirement to receive,



(a) a pension of such amount as may from time to time be authorized by an Act of the legislature, provided that such pension shall not be less than the current amount of the social security pension;

(b) medical benefits.

12. It is hereby declared that every citizen of Alberta who becomes physically disabled and unable to engage in gainful employment is entitled to,



(a) a social security pension;

(b) medical benefits.

17. Section 13 provides that in consideration of the foregoing rights of citizenship "it shall be the duty of every citizen of Alberta to discharge faithfully his responsibilities as an elector and citizen" to observe the law, respect the rights of other citizens, and "to exercise his initiative and enterprise "in promoting the spiritual, cultural and material welfare of "the Province." There is nothing in the Act to indicate what is to happen to a citizen who does not do his duty in these respects. Lastly, in Part I, comes Section 14, according to which the Lieutenant-Governor in Council may make orders to define gainful employment, may enter into agreements with any other Province or with the Dominion for the purpose of carrying out the intent and purpose of this Act, and may make rules and regulations governing the determination of any question which may arise under Part I.

18. Part II of the Act, which has the heading "Constitution and Functions of Board of Credit Commissioners," consists of fourteen clauses, of which the first, Section 15, contains definitions. Of these the following must be specially noted:



(a) Alberta Credit Certificates means certificates issued to credit institutions authorizing a corresponding amount of credit deposits and issued in such form and in such denominations as the Board may specify for the purposes of carrying into effect the provisions of this Act.

(d) Credit means the monetary evaluation of the capacity of the people of the Province to produce and distribute goods and services as when and where required. (c) Credit deposits, means deposits of credit which have been made available to persons as claims on goods and services and in respect of which credit institutions have no corresponding reserve of currency.

(f) Credit Institution means any person, corporation or organization whose main business is dealing in credit by keeping accounts of customers credit deposits, transferring credit deposits from the account of any customer to any other person, exchanging credit deposits for currency or making credit deposits a available to customers; but shall not include any person, corporation or organization whose main business is the production or distribution of goods or the rendering of any service to the public which is not concerned mainly or exclusively with dealing in credit deposits; and likewise shall not include the Bank of Canada or credit unions operating pursuant to The Credit Union Act.

19. Their Lordships would observe that the definition of "credit institution" does not in terms, include banks, but, while "credit institution" is a wider term, it is obvious (and is not disputed) that chartered banks are included, i.e., bank created by or under legislation of the Dominion, while the final words of the definition exclude the Bank of Canada.

20. Section 16 provides for the setting up of the Board of Credit Commissioners, and Section 17, Sub-section 1, purports to confer on the Board authority to license all credit institutions in the Province. There is nothing in the Act to suggest that the Board must license chartered banks operating within Alberta, and it follows that the enactment purports to confer on the Board, the right to refuse such a licence. Sub-section 3 of Section 17 authorities, on summary conviction, a penalty of not less than $1,000 and not more than $5,000 for each day the a credit institution which has not obtained a licence carries on its operations, and Sub-section 4 adds the additional consequence that the Board or its agents, with the approval of the Lieutenant-Governor in Council, "may enter the premises of such institution and assume full control and management of its business on behalf of its directors and shareholders." There follows a proviso which, in the view of their Lordships, is a proviso to Sub-section 4 alone. It runs the follows: "Provided, however, that nothing herein contained shall be deemed to empower the board to take over or interfere with any operations which the credit Institution Is Authorized to Perform by virtue of the provisions of The Bank Act nor to impair in any way the deposits any person may have with the credit institution, nor to interfere with any such person in dealing with his deposits in any way he may deem proper.

21. Section 18 requires the Board to establish what is called a capital assets account of Alberta, which is to include "an estimated valuation of the economic resources of the Province" as therein defined, and Section 19 requires the Board to establish a consolidated credit adjustment fund to which the Board shall issue credit deposits "in such amounts as may from time to time be required as a reserve for providing an adequate volume of credit deposits to finance the production and distribution. of goods and services within the Province and for maintaining a balance between the aggregate purchasing power of the people of life Province and the estimated collective prices of goods for sale within the Province and for providing for their equitable distribution, having due regard to all the factors involved." There follows Section 90, according to which, the Board is to transfer to the general revenue account of the Province "such amounts of credit deposits and in such manner as may be required" for the payment of social security pensions and other benefits therein set out. Sub-section 2 of Section 20 must be set out verbatim. Its text is as follows: "For the purpose of effectively controlling and regulating the issue and withdrawal of credit deposits within the Province, the Board, with the approval of the Lieutenant- Governor in Council, shall issue to licensed credit institutions Alberta Credit Certificates in such amounts and on such terms as the Board may deem advisable in order to enable such credit institutions to issue credit deposits to customers over and above the deposits against which a reserve of currency is held, and the amount of Alberta Credit Certificates so issued shall be debited to the Consolidated Credit Adjustment Fund." Their Lordships call attention to the phrase, "licensed credit institutions" in this sub-section, as clearly indicating that the enactment purports to confer on a provincial authority power either to grant or to withhold the issue of credit certificates to any chartered bank and thus to restrain any bank from creating an expansion of credit by loans exceeding its reserve of currency.

22. Section 24 is of special importance, and, indeed, contains the essence of the scheme requiring the deposits of the banks to be backed to the extent; of 100 per cent, by currency or by the proposed credit certificates. The section must be set out in full: 24.--(1.) Every licensed credit institution shall keep and operate the accounts of its customers, and arrange for the transfer of credit deposits from one account to another account in. such manner and by such instruments as the Board may from time to-time direct and the Board and its duly authorized agents shall, at all times have access to the books, records and accounts of such credit institutions, and every member of the Board or its authorized agents having access to such records shall take and be bound by an oath of secrecy properly executed before a person authorized to administer oaths within the Province. (2.) The Board may require every licensed credit institution to hold against all or any credit deposits of customers, not being deposits against which a reserve of currency of an equivalent value is held, Alberta Credit Certificates of an aggregate value not exceeding the aggregate value of such credit deposits. (3.) In the case of any credit institution licensed to operate within the Province, having branches and operating outside the Province, the proportion of its reserves of currency to its total deposits within the Province shall be deemed to be in the same ratio as its total reserves of currency to its total deposits in Canada. (4.) The Board may direct that any balance due by one credit institution to another credit institution on account of any transfers of credit deposits between their respective customers shall be settled by the transfer of Alberta Credit Certificates of a corresponding value."

23. Section 26 provides for severe penalties for breach of the provisions of Part II, including the cancellation of the licence of a credit institution, and, in the case of an individual other than a credit institution, a line not exceeding $1,000 or one years imprisonment, or both. The final section of the Act runs as follows : "28. This Act shall come into force on a day fixed for that purpose by Proclamation of the Lieutenant- Governor in Council, but no such Proclamation shall be made until after the question of the validity of this Act has been referred to the Supreme Court of Alberta pursuant to the provisions of The Constitutional Questions Act, and it is certified upon any such reference that this Act is valid, and if no appeal is for the time being pending, until the time for giving any notice of any such appeal has elapsed."

24. Such being the main contents of the Act, their Lordships proceed first to deal with the question of the validity of Part II. They are not, of course, called on to form, or to express, any opinion as to the economic thesis on which what is called social credit is based. Their duty is to examine the enactment itself, without considering what may be its economic merits or demerits, and to determine, in the first place, whether the Supreme Court of Alberta was rigid in holding that Part II is ultra, vires the legislature of Alberta. It cannot be disputed that the object and effect of Part II are to interfere with and control the business carried on by a chartered bank in the Province by which (subject to any restrictions imposed by Dominion legislation) it makes loans to customers to a total amount which exceeds the liquid assets which the bank holds. The question, therefore, is whether operations of this sort fall within the connotation of "banking" as that word is used in Section or of the British North America Act. Their Lordships entertain no doubt that such operations are covered by the term "banking" in Section 91. The question is not what was the extent and kind of business actually carried on by banks in Canada in 1867, but what is the meaning of the term itself in the Act. To take what may seem a frivolous analogy, if "skating" was one of the matters to which the exclusive legislative authority of the Parliament, of Canada, extended, it would be nothing to the point to prove that only one style of skating was practised in Canada, in 1867 and to argue that the exclusive power to legislate in respect of subsequently developed styles of skating was not expressly conferred on the central legislature. Other illustrations may be drawn from Section 91 as it stands: take, for example, head 5, "Postal Services." In 1867 postal services in Canada were rendered by the help of land vehicles, but nobody could contend that the modern use of aeroplanes for carrying mail is, on that account, not within the phrase. The concept of banking certainly includes the granting of credit by banks; "a banker," as Duff C.J. said in dealing with the Alberta Legislation Reference [1938] S.C.R. 100, 116 "has "been defined as a dealer in credit." Whether the expansion of credit now effected by bankers advances is regarded as wise or unwise, as just or unjust, as economically desirable or economically unjustifiable, does not, in the view of their Lordships, affect the point here at issue at all. If it is fairly included within the conception of "banking" it is a matter exclusively reserved for the legislature of Canada.

25. In the well-known decision of the Privy Council in Tennant v. Union Bank of Canada [1894] A.C. 31, 46, Lord Watson laid it down that the head "banking" was an expression "wide enough to embrace every transaction coming within the legitimate business of a banker." He further said that, notwithstanding that "Property and civil rights" was a topic allocated to provincial legislatures under Section 92, "banking" was one of the matters concerning which the exclusive legislative authority of the Parliament of Canada could not be operated without interfering with and modifying civil rights in the Province. This view of the width of the expression "banking "has been recently confirmed by another decision of this. Board, in Attorney-General for Canada v. Attorney-General for Quebec Ante p. 33. Undoubtedly the business of banking has developed and expanded greatly since Confederation, though it is by no means clear that even before 1867 banks in Canada were not practising to a more limited extent the kind of operation which it is the object of the Alberta Act now under consideration to prevent or restrict. Harvey C.J. points out that as early as 1859 the legislature of the then Province of Canada was enacting (Section 1 of Clause 55 of the Consolidated Statutes of that year): "The business of banking shall, for the purposes of this Act, mean the making and issuing of Bank Notes, the dealing in gold and silver bullion and exchange, discounting of promissory notes, bills and negotiable securities, and such other trade as belongs legitimately to the business of banking." Moreover, Section 85 of that Act provided that "the total liabilities of any Joint Stock Bank shall never exceed three times the amount of its capital"— a provision which sets some limit to bank lending, but not a limit measured by the currency which the bank holds. But in any event, it appears to their Lordships to be impossible to hold that it is beyond the business covered by the word "banking" to make loans which involve an expansioin of credit. Legislation which aims at restricting or controlling this practice must be beyond the powers of a provincial legislature. It is true, of course, that in one aspect provincial legislation on this subject affects property and civil rights, but if, as their Lordships hold to be the case, the "pith and substance" of the legislation is "banking" (the phrase pith and substance" can be traced back to Lord Watsons judgment in Union Colliery Company of British Columbia v. Bryden [1899] A.C. 580); this is the aspect that matters and Part II is beyond the powers of the Alberta legislature to enact.

26. There remains the second question, whether when Part II has been struck out from the Act as invalid what is left should be regarded as surviving, or whether, on the contrary, the operation of cutting out Part II involves the consequence that the whole Act is a dead letter. This sort of question arises not in frequently and is often raised (as in the present instance) by asking whether the legislation is intra vires "either in whole "or in part," but this does not mean that when Part II is declared, invalid what remains of the Act is to be examined hit by bit in order to determine whether the legislature would be acting within its powers if it passed what remains. The real question is whether what remains is so inextricably bound up with the part declared invalid that what remains cannot. independently survive or, as it has sometimes been put, whether on a fair review of the whole matter it can be assumed that the legislature would have enacted what survives without enacting the part that is ultra vires at all. Harvey C.J. dealt with the second question very briefly and answered it by merely saying that Part I is intra vires. Their Lordships, as just explained, think that notwithstanding the form of the question put, the matter cannot be disposed of so summarily.

27. Looking at the Act as a whole, it is clear that its intent and purpose is to establish machinery sufficiently complete in itself to secure that, in accordance with the economic concept of social credit, it will severely restrict chartered banks from continuing to carry on a legitimate part of their present operations. When Part II is cut out, what is left In the first place, there is left the preamble, some of the later paragraphs of which would have little or no application to Part I standing alone. The sixth paragraph, as already pointed out, when reciting that the discharge of the Provinces responsibilities necessitates an achievement of two results, is as to the second suggested result, plainly pointing to Part II. Again, the definition of "social security pension," as meaning the payment to individuals "as herein provided," of claims on goods and services, etc., within the limitations there indicated, is anticipating and pointing to provisions in Part II, such as Section 15(c) and Section 18, Sub-section 1. Their Lordships have already indicated that they cannot suppose that Sections 3 to 8 in Part I are other than preliminaries to what follows, and while it is true that Sections 9 to 12 include a declaration that citizens of Alberta in certain circumstances are entitled to social security pensions, those declarations remain mere aspirations unless Part II operates to provide how this is to be done. The Attorney-General for Alberta ingeniously argued that Part II was only one method of securing these results, and that Part I standing alone left it in the power of the Lieutenant-Governor in Council to make the necessary provisions "by order" in some other undefined and unascertained form; but, in their Lordships opinion, this is not the scheme of the Act, nor do the words in Section 14 empower the Lieutenant-Governor in Council to make new machinery which will take the place of Part II, The whole thing hangs together, and if Part II goes there is nothing left to be added to the statute law of Alberta which would have any effective operation. The view which their Lordships have formed is confirmed by the language of Section 28, which shows that the Act cannot come into force unless "it is certified..."that this Act is valid," etc. Since. Part II is invalid, there cannot be a certificate that "this Act" is valid, and thus by the terms of the Act itself, the Act cannot ever come into force. For these reasons their Lordships do not find it possible to agree with the Supreme Court of Alberta that, when Part II has gone, there is yet some part of the Act which survives.

28. Their Lordships will humbly advise His Majesty that Part II of the Act is ultra vires and that, having regard to the relation between Part II and the rest of the Act, the Act as a whole cannot be regarded as valid.

29. Solicitors for the Attorney-General for Alberta: Blake & Redden.

30. Solicitors for the Attorney-General for Canada: Charles Russell & Co.

31. Solicitors for the Canadian Bankers Association: Lawrence Jones & Co.