Supreme Court of Canada
Corporation of City of Sherbrooke v. McManamy, (1891) 18 SCR 594
Date: 1891-02-26
THE CORPORATION OF THE CITY OF SHERBROOKE (PLAINTIFF)
Appellant;
And
DANIEL MCMANAMY ET AL (DEFENDANTS)
Respondents.
1890: Nov 20: 1891: Feb 26
PRESENT. Sir W. J. Ritchie C.J. and Strong, Fournier, Taschereau and Patterson JJ.
ON APPEAL FROM THE COURT OF QUEEN'S BENCH FOR LOWER CANADA (APPEAL SIDE.)
AppeaL—Validity of by-law—Supreme and Exchequer Courts Act, Secs. 29 (a) and (b) 30 and 24 (g)—Constitutional Question—when not matter in controversy.
The plaintiff sued the defendants to recover the sum of $150 being the amount of two business taxes, one of $100 as compounders and the other of $50 as wholesale dealers under the authority of a municipal by-law. The defendants pleaded that the by-law was illegal and ultra vires of the municipal council, and also that the statute 47 Vic., ch. 84 P.Q. was ultra vires of the Legislature of the Province of Quebec The Superior Court held that both the statute and by-law were intra vires and condemned the defendant to pay the amount claimed. On an appeal to the Court of Queen's Bench by the defendants that court confirmed the judgment of the Superior Court as regards the validity of the statute, but set aside the tax of $100 as not being authorized. The plaintiff thereupon appealed to the Supreme Court, complaining of that part of the "judgment which declares the business tax of $100 invalid There was no cross-appeal. On motion to quash for want of jurisdiction.
Held, that the appeal would not lie, sec. 24 (g) of the Supreme and Exchequer Courts Act, not being applicable, and the case not coming within sec. 29 of the Act ; the amount being under $2,000, no future rights within the meaning of said sec. 29 being in con-troversy nor any question as to the constitutionality of the Act -of the legislature being raised. Strong J. dissenting on the ground that the judgment appealed from involved the question of the validity of the Provincial Act.
APPEAL from a judgment of the Court of Queen's Bench for Lower Canada (appeal side).
[Page 595]
By the judgment of the Superior Court for the province of Quebec, at Sherbrooke, rendered the 28th February, 1889, the act 47 Vic. c. 84 P. Q. was held intra vires of the Legislature of the Province of Quebec and respondents were condemned to pay to appellant one hundred and fifty dollars being the amount of two business taxes imposed by a municipal by-law passed in pursuance of the provisions of said act, viz., a tax of fifty dollars on wholesale liquor dealers, and a tax of one hundred dollars on compounders and bottlers of spirituous liquors, doing business in the said city.
The Court of Queen's Bench (appeal side) modified this judgment, and dismissed the action, so far as regards the tax of one hundred dollars for the reasons :
(1.) That neither the charter of the city (39 Vic ch. 50 P. Q.) nor the amending act (47 Vic. ch. 84 P. Q.) in enumerating and specifying the different trades and occupations to be subjected to such tax, has specified the business of compounders or of bottlers of spirituous liquors and that this omission is not covered by the uncertain meaning to be given " to the vague, general and indefinite last lines of section seven of said act more particularly too vague and uncertain in the matter of taxation," &c.
(2.) That the legislature had not delegated by either of said acts or otherwise to the appellant, the power to impose the said tax of one hundred dollars and that the by-law, in so far as regards the said tax is ultra vires null and void.
By their pleas the respondents impeached the constitutionality of the act, 47 Vic. ch. 84 (P.Q.), but did not file a cross-appeal on the appeal to the Supreme Court of Canada.
Mr. Belanger for respondent moved to quash the appeal on the ground that the amount in controversy was under $2000 and that no question as to the constitutionality
[Page 596]
of any act of the legislature of the Province of Quebec was in controversy in the judgment appealed from, that court having decided in favor of the appellant on the question of constitutionality, and the respondents not having filed a cross-appeal, but being willing to rest their case on the illegality of the by law and acquiescing in that part of the judgment which related to the constitutionality of the statute.
Mr. Brown Q. C. and Mr. Ferguson Q. C. for appellant contra contended that the case came within sections 24 (g) and 30 of the Supreme and Exchequer Courts Act and cited and relied on City of Montreal v. Corporation of Longueuil ([1]), Pigeon v. The Recorders Court of Quebec (), Major V. Corporation of Three Rivers () Mayor &c. of Terrebonne v. Sisters of Providence (). In any case upon the face of the record the question of the constitutionality of an act of the Legislature of the Province of Quebec was involved, and therefore the case was appealable under sec. 29 (a) of the Supreme and Exchequer Courts Act.
Sir W. J. Ritchie C.J — In my opinion whatever as to quashing the by-law arises in this case. I think the words i in such like matters or things " in sec 29 of the statute refer to matters of the same nature as the title to lands, etc., previously mentioned, and I cannot see that this appeal comes within any of the exceptions in that section.
I do not think that any question is raised as to the constitutionality of the Quebec statute. The decision as to that was in favour of the appellant and the respondents do not complain and no question was intended to be brought before us in respect to it.
STRONG J.-On the face of the proceedings in this
[Page 597]
case it appears that the constitutionality of an act of the legislature of the province of Quebec is impeached. The first question raised certainly is that as to the construction of the by-law, but if that point should be decided against the respondent, there would still remain, before the appeal could be decided, the question of the constitutionality of the statute of Quebec under the authority of which the by-law purports to have been passed. Should the by-law be held invalid it would be impossible to give judgment without pronouncing upon this constitutional question. The question of waiver by counsel is entirely immaterial. The city of Sherbrooke would have the right to say that the constitutional question was still before this court being patent upon the record and that they were entitled under sec. 29 (a) of the Supreme Court Act, to maintain their appeal inasmuch as the judgment appealed from " involves the question of the validity of an act of the legislature Of the province of. Quebec." For this reason I am of opinion that the motion to quash should be dismissed.
FOURNIER J.—Was of opinion that the appeal should he quashed.
TASCHEREAU J.—The respondent's counsel has demur-red to the jurisdiction of this court in this case, and I think his objection is well taken. The appellant has attempted to support his appeal on sub-sec. (g) of sec. 24 of the Supreme Court act, as being in a case in which a by-law of a municipal corporation has been quashed by rule or order of court. But that enactment, probably of no possible application in the province of Quebec, does not help the appellant. There is no by-law quashed by a rule or order here. In fact there is none quashed at all by the judgment appealed from. We
[Page 598]
are all agreed on this point I believe, neither could it be contended that the case is appealable because it relates to a tax or duty. The statute gives a right of appeal only in matters relating to a duty payable to Her Majesty, where rights in future might be bound, which the tax in controversy could it be called a duty, is clearly not.
It is contended however that the appeal in this case lies because the matter in controversy involves the question of the validity of an act of the legislature of the province of Quebec. If that was so, the appeal would undoubtedly lie. But I cannot see that there is anything in controversy on such a point on the appeal to this court as the case is presented to us. The respondent has abandoned that part of his pleas which put into question the right of the legislature to authorize this corporation to levy a tax of $100" on compounders, the only one now in contestation. He has succeeded before the court of appeal on another ground. He asks now that that judgment be confirmed. The appellants of course do not question the validity of the act, they support their action on this very act itself. Under these circumstances I cannot see that the matter in controversy here involves the validity of the Quebec act. The case of Longueuil v. City of Montreal. () has no application. The constitutionality of an act of the legislature was clearly controverted in that case. I am of opinion that the appeal should be quashed with costs of motion.
PATTERSON J.-I am also of opinion that the appeal should be quashed.
Appeal quashed with costs.
Solicitors for appellant : Ives, Brown & French.
Solicitors for respondents : Bèlanger & Genest.
Email this Content