in their jurisdictions, have as full and ample power, I think, as the Imperial Parliament has, and I need not extend the argument along these lines any further than to refer to the cases lately decided in the Ontario Courts, namely: Smith v. City of London, 20 O. L. R. 133, and Beardmore v. City of Toronto, 20 0. L. R. 165; 21 O. L. R. 505.

Local Legislatures have power to tax income. Judges are officers as defined by the Act; and until the direct question as to Judges' salaries as distinguished from other officers come up in a higher Court, I feel that I am bound by the decisions I have cited."

In conclusion, it is submitted that, in view of the existing state of the law in Canada on this question, and for other reasons herein set forth, we should wait for a settlement of the law by a decision of the Privy Council, and, in the meantime, your Honour should be guided by and follow the case of Webb v. Outrim, as decided by the Privy Council, and followed in the cases of Abbott v. City of St. John, as decided by the Supreme Court, and Dugas v. Macfarlane, and give judgment for the defendant with costs.

William Johnston, solicitor for defendant.

INTERNATIONAL JOINT COMMISSION.

IN RE APPLICATION FOR APPROVAL OF THE KETTLE FALLS DAM.

Dissenting opinions of H. A. Powell and C. A. Magrath, Commissioners.

Mr. Powell: The application in this case was for the approval by the International Joint Commission of a contemplated dam at Kettle Falls. The falls are situated on the Kettle River at its entrance into Rainy Lake. Kettle River is a boundary water between the province of Ontario and the State of Minnesota.

The application was made, with the assent of the United States, by the Rainy River Improvement Company. The dam across the river has been authorized by the United States, and the necessary approval by the department of the United States Government charged with the duty of looking after obstructions in navigable waters has been secured. A dam across the river has also, it is claimed been authorized by the Parliament of Canada, but on conditions that have not yet been fulfilled. The charters were granted to different companies which, however, are acting in unison. The application came up for consideration at a session of the Commission held at Ottawa in the month of October last, when the Commission of its own motion raised two objections to considering it:

1. The Commission has no jurisdiction in the matter, as the dam, the approval of which is sought, commences at the United States shore, and extends across the river to the opposite bank.

2. The United States Congress and the Parliament of Canada, have passed concurrent legislation authorizing the erection of the dam, and consequently there is no dispute to adjust.

A third objection was urged before the Commission to the consideration of the application at the present time, viz.: both the United States and the Canadian Governments have referred to the Commission for investigation and report the question of the level and use of the Lake of the Woods and its tributary waters; and the question of a dam at Kettle Falls is involved in this larger question.

The first objection is based on Article III, and the first paragraph of Article VIII, of the Treaty which read as follows:

ARTICLE III.

"It is agreed that, in addition to the uses, obstructions and diversions heretofore permitted or hereafter provided for by special agreement between the parties hereto, no further or other uses or obstructions or diversions, whether temporary or permanent, of boundary waters on either side of the line, affecting the natural level or flow of boundary waters on the other side of the line, shall be made except by authority of the United States or the Dominion of Canada within their respective jurisdictions and with the approval, as hereinafter provided, of a joint commission, to be known as the International Joint Commission.

"The foregoing provisions are not intended to limit or interfere with the existing rights of the Government of the United States on the one side and the Government of the Dominion of Canada on the other, to undertake and carry on governmental works in boundary waters for the deepening of channels, the construction of breakwaters, the improvement of harbours, and other governmental works for the benefit of commerce and navigation, provided that such works are wholly on its own side of the line, and do not materially affect the level or flow of the boundary waters on the other, nor are such provisions intended to interfere with the ordinary use of such waters for domestic and sanitary purposes.

ARTICLE VIII.

"This International Joint Commission shall have jurisdiction over and shall pass upon all cases involving the use or obstruction or diversion of the waters with respect to which under Articles III. and IV. of this Treaty the approval of this Commission is required, and in passing upon such cases the Commission shall be governed by the following rules or principles which are adopted by the high contracting parties for this purpose."

The first two objections were set down for argument before the Commission at Washington in November, 1912, when they were ably argued by the different counsel engaged.

I will discuss these objections in the order above stated.

The arguments against the jurisdiction of the Commission, so far as the first objection is concerned, were based upon the following words of section III: "obstructions on either side of the line affecting the natural level or flow of boundary waters on the other side of the line," and it was contended that these words do not include structures which extend beyond the boundary line or across the whole boundary waters, and affect the flow on both sides of the line. This contention, I must confess, I cannot appreciate.

The Commission has jurisdiction over all obstructions on each side of the boundary line at Kettle Falls which affect the flow or level of water on the other side. It is unnecessary to define the word "obstruction," but it may consist of, among other things, a sand bank formed by the water; a vessel which has been abandoned; a structure accidentally in the river or designedly placed there; and a part of the bank or a part of the vessel, or a part of the structure may and the remaining portion may not be an obstruction. If the question were asked: "Is there anything on the United States side in the contemplated dam which would affect the flow or level of the waters on the Canadian side," there could only be one answer,- "Yes, the whole of the work on the United States side will do so." If the further question were asked: "Is there anything in the contemplated structure on the Canadian side which would similarly affect the waters on the United States side," there could only be one answer to this question also.-"Yes, all that portion of the work which lies in Canadian waters will do so." That each portion is organically or structurally connected with the other, and plays its part in disturbing the whole width of the river cannot alter this plain fact, that it is an obstruction on one side which affects the level or flow of the waters on the other. Not only is each portion an obstruction in fact, it is also an obstruction in law, and the Courts of the country in which it is situate can abate it as such. Each portion of the dam is therefore an obstruction within the meaning of Article III, an obstruction on one side which affects the level or flow of the water on the other side of the boundary line. The dam by reason of its two portions producing these analogous or reciprocal results must be looked upon as coming within the very words of the Treaty. By Article VIII of the Treaty above quoted "all cases" involving obstructions so affecting the flow or level of the

river are within the jurisdiction of this Commission and it is the duty of the Commission to "pass upon " them. Unless there is something in the context of the Treaty which is inconsistent with this construction or unless it would lead to manifest absurdity, it must prevail.

After a most careful analysis of the Treaty, and the fullest consideration of the results which would flow from the adoption of this construction, I have failed to detect any inconsistency or absurdity. I would rest my judgment, so far as this objection is concerned, on this statement of the case; but, inasmuch as the views of some of my colleagues differ from those I have expressed, and the adoption of these views would greatly restrict the judicial powers of the commission and its usefulness, I will discuss briefly the argument adduced by counsel in support of the first objection and the results which would flow from the construction of Article III for which they contended. This construction involves reading into the article as a qualifier of the word "obstructions" the words "which have no physical or structural connection with the obstructions on the other side of the boundary line." It was argued that we must look at Article III, in the light of the "principle or policy" of the Treaty and that the article when so viewed does not apply to a work situate on both sides of a boundary water. This principle or policy must be gathered from the Treaty itself, a task which is very difficult since a treaty is ordinarily a mosaic of compromises founded not on principle but on expediency. The eminent jurists who framed the Treaty did not formulate what they regarded as the best conceivable arangement, but what they felt was the best arrangement acceptable to all parties. The most careful scrutiny, however, will not reveal any principle or policy which would prevent the Treaty applying to such a work. On the contrary the principle or policy of the Treaty gathered from the Treaty itself, is simply an intention to devolve upon the Commission among other questions touching obstructions just such questions as are involved in this application.

Another contention was that the Commission should construe the Treaty in view of the legal situation with regard to boundary waters which existed at the time the Treaty was entered into.

There were or could be, in the legal situation as it then was (as there are or can be in the present legal situation),