of the police commissioners for the city of Toronto, includes an incorporated club such as this club.

3. Whether the Dominion Bowling and Athletic Club Limited carries on business for hire or profit within the provisions of bylaw No. 23 of the police commissioners, and within the provisions of the Consolidated Municipal Act, 1903, sec. 583, as amended by 8 Edw. VII. ch. 48, sec. 14.

4. Whether by-law No. 23 of the police commissioners for the city of Toronto, if it affects a club not doing business with the general public, is ultra vires of such police commissioners.

5. Whether the fact of a club providing bowling alleys on the club premises and collecting fees from its members for games played thereon, constitutes an owning or keeping of bowling alleys for hire or profit within the terms of by-law No. 23 of the police commissioners, and within the provisions of the Consolidated Municipal Act, 1903, sec. 583, as amended by 8 Edw. VII. ch. 48,

secs. 14 and 15.

6. Whether I should have permitted questions to be put with the object of shewing that said club was incorporated to evade the provisions of the by-law or of shewing that J. H. Bennett, the manager of the club, promoted the incorporation of the club to obtain a position for himself, and whether, in the event of these facts being proved, the defendant should be convicted of the offence charged.

In the other:

1. Whether, by reason of the amendment of sec. 583, subsec. 14, of the Consolidated Municipal Act, by 8 Edw. VII. ch. 48, sec. 14, an incorporated company, such as the defendant here, may keep or have in its possession or on its premises billiard or bagatelle tables, charging a fee for games played thereon, without a license, while, under sub-sec. 10 of the said section and by-law No. 23 of the board of police commissioners, it is necessary for such a company to take out a license for keeping bowling alleys charging a fee for playing thereon.

2. Whether, upon the facts above set out, the defendant should have been convicted of the offence charged.

3. Whether I should have permitted questions to be put with the object of shewing that the said club was incorporated to evade the provisions of the by-law or of shewing that J. H. Bennett, the manager of the club, promoted the incorporation of the club to obtain a position for himself, and whether, in the event of these facts being proved, the defendant should have been convicted of the offence charged.

The by-law referred to, No. 23 of the consolidated by-laws of the police commissioners, as amended by by-law No. 64, passed on the 9th June, 1908, is, so far as material, as follows:

2. There shall be taken out by

(9) Every person who, for hire or gain, directly or indirectly keeps or has in his possession, or on his premises, any billiard or bagatelle table, or who keeps or has a billiard or bagatelle table in a house or place of public entertainment or resort, whether the said billiard or bagatelle table is used or not; and every proprietary club (as defined by the Consolidated Municipal Act, 1903), which directly or indirectly keeps or has in its possession or on its premises any billiard or bagatelle table;

(10) Every person who owns or keeps for hire or profit a bowling alley;

a license authorising them respectively to carry on their several trades, callings, and businesses in the city, for which said license the person obtaining the same shall pay at the time of taking out of such license such fee as may from time to time be prescribed therefor by by-law of the corporation of the city of Toronto passed for that purpose.

Provided, however, that no license fee shall be payable by the Industrial Exhibition Association of Toronto, the Provincial Agricultural Exhibition, or any other association or society mentioned in the Agricultural and Arts Act, or by the Ontario Society of Artists, or by the Woman's Art Association, or by any persons giving any exhibition, musical, dramatic, or other performance for the benefit of any religious or charitable institution of the city.

TORONTO, April 1, 1909.

I. F. Hellmuth, K.C., for the defendant. The jurisdiction of the police commissioners is under sec. 583, sub-secs. 4 and 10, of the Municipal Act, 3 Edw. VII. ch. 19; and sub-sec. 4 is amended by 8 Edw. VII. ch. 48, sec. 14.* The amendment does not affect bowling alleys. The magistrate held that this was not a proprietary club, because there were none but shareholder members. There is really no distinction between the two cases, and there should not have been a conviction in either. The word "person" has the same meaning in all the clauses. This is a trade by-law; the magistrate overlooked that. The trade must be carried on for profit to bring it within the statute and the by-law. I refer to Graff v. Evans (1882), 8 Q.B.D. 373; Newell v. Hemingway (1888), 60 L.T.R. 544; In re Gun Lang (1900), 7 B.C.R. 457; Smith v. Anderson (1880), 15 Ch. D. 247; New York Life Insurance Co. v. Styles (1889), 14 App. Cas. 381; In re Siddall (1885), 29 As to the form of the case, see Rex v. Ferguson (1906), 12 O.L.R. 411; and S. C., sub nom. Rex ex rel. Burke v. Ferguson (1906), 13 O.L.R. 479. The conviction should be against the manager, if any one-that is, if he is running the club for his own profit, under colour of the club incorporation.

Ch. D. 1.

F. R. MacKelcan, for the prosecutor. The decision in Graff v. Evans, 8 Q.B.D. 373, does not apply to this case, as the defendant is an incorporated company with a share capital. The question as to whether the principle of Graff v. Evans could be applied to

583. By-laws may be passed

by the board of commissioners of police in cities having 100,000 inhabitants or more:

4. For licensing, regulating and governing all persons who for hire or gain, and proprietary clubs which directly or indirectly keep, or have in their possession or on their premises any billiard or bagatelle table, or who keep or have a billiard or bagatelle table in a house or place of public entertainment or resort, whether such billiard or bagatelle table is used or not, and for determining the time during which licenses shall be in force. The words "proprietary club" for the purposes of this sub-section shall be deemed to mean a club wherein the members or some of them are not shareholders of the said club, or in some similar manner interested in the

assets of the club.

10. For preventing or regulating and licensing exhibitions held or kept for hire or profit, theatres, music halls, bowling alleys and other places of

amusement.

an incorporated company was discussed in National Sporting Club Limited v. Cope (1900), 82 L.T.R. 352, and expressly left undecided by the Divisional Court. If that principle could be applied to any incorporated company, it could only be by analogy, as the corporation is a legal entity distinct from the persons composing it, and the legal rights of the shareholders in relation to the company are entirely different from those of members in relation to the club. It may be fair and reasonable to extend the principle of Graff v. Evans to the case of incorporated companies without share capital, of the same character as the Rideau Club, but the decision in Rideau Club v. City of Ottawa (1907), 15 O.L.R. 118, shews that clubs with share capital are in a totally different category. case.

Newell v. Hemingway, 60 L.T.R. 544, does not govern this The actual decision there was that the sale could not be by the manager in any event, and the remarks as to the liability of the incorporated club were purely obiter and in regard to a point not argued. In the Scottish case of McWilliams v. Main (1902), 39 Sc. L.R. 491, the incorporation was not one with a share capital. Reference also to Newman v. Jones (1886), 17 Q.B.D. 132; Bowyer v. Percy Supper Club, [1893] 2 Q.B. 154; Smith v. Anderson, 15 Ch. D. 247, at p. 258; and Wertheimer's Law of Clubs, pp. 1 et seq., 32. In any event the magistrate had power to pass and should have passed upon the bona fides of the club, and the evidence in this case, shewing that the share capital is divided into dollar shares, and that the vast majority of these shares are held by the president and manager, while the persons who play obtain $1 shares after playing a certain number of games, in return for the money paid in, clearly establishes that the club is not a bonâ fide one. In making a finding that it was not bonâ fide, the magistrate would not be going behind the charter issued by the government, but would merely be determining the effect to be given to the issuing of such a charter in the circumstances of this case. The magistrate should have allowed the witness to be asked questions directed to shewing that the club was incorporated for the object of evading the by-law, and the Court has power to send the case back to the magistrate to take this evidence: Archbold's

Quarter Sessions Practice, 4th ed. (1885), pp. 903 et seq.; Rex v. Page (1765), 2 Bott's Poor Law Cases 764; The King v. Bloxam (1834), 1 A. & E. 386. The word "person" in the by-law includes company without any special defining clause: Hirst v. West Riding Union Banking Co., [1901] 2 K.B. 560; Pharmaceutical Society v. London and Provincial Supply Association (1880), 5 App. Cas. 857; other clauses of the by-law shew that it was intended to govern corporations. For example, the clause exempting the Industrial Exhibition Association from the operation of the bylaw. In any case the word "person" should be given the same meaning as in the provincial statutes: In re Hassard und City of Toronto (1908), 16 O.L.R. 500, per Teetzel, J., at p. 507; per Riddell, J., at p. 518. The same argument applies in the billiard tables case as in the bowling alley case. It is not necessary to rely on the amendment, 8 Edw. VII. ch. 48, sec. 14, defining for the purpose of sec. 583, sub-sec. 4, the words "proprietary club.” This amendment was plainly made for the facilitating of prosecutions, and should not be interpreted to make the section less broad than it was before. The object of the amendment was to enable clubs to be prosecuted without giving any evidence shewing that the billiard tables were kept for hire or gain. It is proved here that the tables are kept for hire or gain, and therefore there should be a conviction on the same grounds as in the case of the bowling alley.

Hellmuth, in reply. "Club" is excluded from the comprehensive word "person" by the addition of the words "proprietary club." See Thursby v. Churchwardens, etc., of Briercliffe-withExtwistle, [1895] A.C. 32, 37. It must be a place of public resort. I concede that a proprietary club must have a license, whether carried on for gain or not, but this is not a proprietary club. Salaries are not a factor: Commercial Lague Association of America v. The People (1878), 90 Ill. 166.

TORONTO, July 14, 1909.

FALCONBRIDGE, C.J.:-Case stated by R. E. Kingsford, Esq., one of the police magistrates for the city of Toronto.

8-c.c.c. XV.