Kent v. The King, [1924] SCR 388

Supreme Court of Canada

Kent v. The King, [1924] S.C.R. 388

Date: 1924-06-08

William Kent Appellant;

and

His Majesty The King Respondent.

1924: May 14, 15; 1924: June 8.

Present: Idington, Duff, Mignault and Malouin JJ. and Maclean J. ad hoc.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Taxation—Income of non-residents derived from working of mines—Reenactment of taxation clause—Retrospectivity—Ultra vires—B.N.A. Act (1867) s. 92, ss. 2—Taxation Act, R.S.B.C. (1911) c. 222, s. 155— (B.C.) 1918, c. 89, ss. 25, 26—(B.C.) 1920, c. 89, s. 19.

Section 155 of the Taxation Act, R.S.B.C. (1911) c. 222, as re-enacted by section 25 of c. 89, 1918, has not the effect of making taxable the income of non-residents, as well as the income of residents, derived from the working of mines. The words therein " as provided in Part I," have reference not only to the manner and machinery of taxation of incomes but also to the persons to be taxed; and, by Part I, the non-residents are expressly not assessable to income tax. Idington J. expressing no opinion.

[Page 389]

Per Idington J.—Section 19 of c. 89 of B.C. Statute of 1920, making the re-enactment of section 155 of the Taxation Act retrospective so as to make any person who earned income from mines in the years 1915 and 1917 liable to taxation under its provisions, is ultra vires.

Judgment of the Court of Appeal ([1923] 3 W.W.R. 865) reversed.

APPEAL from the decision of the Court of Appeal for British Columbia[1] affirming the judgment of the Court of Revision which had confirmed the taxation of the appellant in respect of income derived from the working of mines.

The appellant, residing in the United States of America, was operating in 1915 and 1917 a mine in British Columbia and received income therefrom. During the same period, the appellant paid the production or 2 per cent tax on the output of the mine from which he received the income. In 1920 he was assessed on the above-mentioned income received in 1915 and 1917. The appellant appealed to the Court of Revision which confirmed the assessment.

Hamilton K.C. for the appellant.

Donaghy for the respondent.

IDINGTON J.—This is an appeal from the Court of Appeal for British Columbia[2] dealing with an appeal from the assessment in 1920 of the appellant in respect of products of a mining property for the years 1915 and 1917.

The appellant was, during all the said years, a non-resident, being domiciled in the United States. During the years 1915 and 1917 he was possessed of the mine in question and properly assessed there in respect thereof or its products, and paid the taxes he was then liable for under the Taxation Act of said province.

In the last named year he would seem to have sold or given an option of purchase to a company to be operative from the 1st of January, 1918, and thereafter that company operated the mine and was assessed in respect thereof.

In April, 1918, an Act was passed by the legislature changing the law as it stood in said years 1915 and 1917, and further in the year 1919, and again in 1920.

[Page 390]

In the last-named year it is pretended that the legislation then enacted, coupled with what had preceded it in the years 1918 and 1919, had become so effectual as to impose upon the appellant retrospectively income taxes for said years 1915 and 1917, although as the law then stood, he clearly was not so liable.

I should require more clear and express language used to uphold such a confiscatory proposition under the name of a taxing Act.

Moreover I gravely doubt the power of the legislature to do so, and confiscate, pro tanto, the property of non-residents who had parted with their property meantime and yet liable for the future income from the purchase price.

It would only be in the case of the resident in a foreign country that the pretension of the respondent could become operative, for it is only such that had for the years 1915 and 1917 escaped, by virtue of the law as it then stood.

I am quite clear that such retrospective legislation is unjust and also, in this case on the existent facts in question herein, ultra vires, even if it were so expressed as to render its construction operative despite the rule applicable to a taxing Act if intra vires.

The only power the legislature has is that conferred by section 92, subsection (2) of the British North America Act, 1867, which reads as follows:—

Direct taxation within the province in order to the raising of a revenue for provincial purposes.

Can retrospective legislation such as this ever be held to be imposing direct taxation? I submit not.

We have been told that the power of a local legislature over property is such that it can transfer one man's property to another: but even so, it does not enable the local government to take, by way of a penalty called " taxation," the entire property of one of its citizens, much less the property of a foreign citizen, as it would be doing if this tax is to be enforced as against appellant. He is not (we were told in the course of the argument) in possession of the property in question for he had transferred it by an option sale, and if, as probable, he has protected himself against the payment of any taxes by a covenant from his vendees

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who, if that is to be observed, will have to pay the taxes, surely as against them it would be very indirect taxation.

And if appellant has to pay the taxes, he is paying the taxes of another, and in that sense it would be rather an indirect tax as a penalty for nothing.

At every angle from which one can look at such an attempt to recover this assessment, it seems to me a most offensive attempt at violation of the power given by the above quoted power of direct taxation.

The agreement between the appellant and the vendees of the property came before our notice in the case of the vendees' appeal, and seems to have been filed in that case, I find as writing this. Perhaps, therefore, had it not been for what occurred in the course of the argument of counsel for the appellant asserting the fact of this transfer being operative from the 1st of January, 1918, and appellant thereafter being non-resident in Canada, I should not have the right to consider it.

The cases were both argued at the same sitting before us and by the same counsel in each case. He for the appellant seems to have been the same throughout the course of the several appeals.

Retrospective taxation for from three to five years seems so intolerable that if possible at all it must be expressed differently from what are the provisions in this case.

I would therefore allow this appeal with costs throughout.

DUFF J.—The appellant is a citizen of the United States, who has never resided in Canada. During the year 1915, as well as in 1917, he was working a mine in British Columbia, and in receipt of an income from it. For these periods the appellant paid the (so-called) production tax of two per cent on the output of the mine. In 1920 he was assessed by the assessor at Kaslo, B.C., in respect of the income received from the mine in the years mentioned. The appellant's appeal to the Court of Appeal for British Columbia[3] was dismissed, and from that judgment he now appeals to this court.

[Page 392]

It is not disputed that, at the time when the income, in respect of which the assessment is made, was received, it was not assessable under any law then in force in British Columbia. The assessment was made professedly under authority given by statutes passed in the years 1918 and 1920. The law actually in force in the years 1915 and 1917 is, subject to amendments made in 1913 and 1917 mentioned hereafter, to be found in sec. 155 of c. 222, R.S.B.C., 1911, which in effect provides that

there shall be assessed, levied and collected quarterly from every person owning, managing, leasing or working a mine other than a coal mine *** two per cent on the assessed value of all ore *** gained from any lands in the province, and which have been sold or removed from the premises (and) the taxes imposed by this section shall be in substitution for all taxes upon the land *** so long as the said land is not used for other than mining purposes, and shall also be in substitution for all taxes upon the personal property used in the working of the said mines.

By sec. 25 of c. 89 of the Statutes of 1918, sec. 155 was repealed and a new section substituted therefor, in the following words:

155. (1) Subject to subsection (2), every person owning, managing, leasing, or working a mine, other than a coal or gold mine, shall be assessed and taxed on his income from the mine as provided in Part I, or on the output of the mine under this Part, whichever tax shall be the greater in amount. The tax on output shall be assessed, levied, and collected quarterly, and shall consist of two per cent on the assessed value of all ore removed from the premises of the mine. In case the tax on the income proves to be greater in amount, the quarterly payments collected shall be considered to be in part payment of the tax payable on the income earned during the corresponding period.

(2) In the case of ore producing mines which prove taxable on their output not yielding and realizing on ore a market value of five thousand dollars in any one year, and in the case of all mines (placer or dredging) which prove taxable on their output not producing a gross value of two thousand dollars in any one year, the taxpayer shall, upon a statement verified by him and certified by the assessor of the district, and forwarded to the Minister of Mines, be entitled to:—

(a) A refund, in the case of ore-producing mines, of one-half of the tax paid; and

(b) A refund of the whole tax in the case of placer or dredging mines.

(3) Every person owning, managing, leasing, or working a gold mine, which shall for the purposes of taxation consist of a mine in which the market value of the gold recovered from ore is eighty-five per cent or more of the gross value of the metal content of such ore, shall be assessed and taxed on his income from the mine as provided in Part I: Provided that any mineral tax paid during the year 1917 may be applied to payment of the income tax levied in respect of the income from the mine during the corresponding period.

[Page 393]

(4) The taxes imposed by subsections (1) and (2) shall be in substitution for all taxes upon the land from which the said ore or placer gold is mined or won, so long as the said land is not used for other than mining purposes, and shall also be in substitution for all taxes upon the personal property used in the working of the said mines.

(5) In addition to all other taxes imposed by this or any other Act, there shall be assessed, levied, and collected quarterly from every person, owning, managing, leasing, or working a mine in the province, and paid to His Majesty, a tax of thirty-seven and one-half cents per ton of two thousand pounds upon all iron ore removed from the premises of the mine, whether the ore is obtained from mineral claims held under a General Act or under any special Act of the legislature. Nothing in this subsection shall apply in respect of iron ore mined and used in the province as a flux in the smelting of ores or other metals.

This enactment, having been passed in the year 1918, would, of course, in itself not affect the appellant in respect of income received before that year, but by sec. 26 of the same statute it was enacted that :

26. (1) The amendments of said chapter 222, as enacted by section 25 of this Act, shall relate back to and take effect from the first day of January, 1917; and the provisions of the "Surtax Act, 1917," shall apply in respect of all assessments for the year 1917 affected by such amendments.

(2) Forthwith after this Act comes into force the Provincial Assessor for each assessment district shall determine the several amounts payable for taxes and surtaxes therein in respect of the year 1917 pursuant to this section, giving effect to all amendments in respect of deductions brought into force under the provisions of this Act, and shall cause to be inserted in the assessment rolls of the district a statement showing the amounts so levied against each taxpayer, and shall mail a notice of assessment in such form as the Minister of Finance may prescribe to each taxpayer affected, stating the amount payable by him and the date when the same is due and payable.

This last-mentioned section was again amended by sec. 19, c. 89, of the Statutes of 1920, by which ss. 1 of sec. 26 was struck out and the following subsection substituted :

26. (1) The re-enactment of said section 155 by section 25 of this Act shall relate back and take effect and shall be deemed to have always related back and taken effect in such a manner that every person to whom subsection (1) of said section 155, as so re-enacted, applies shall be liable for taxes thereunder in like manner as if he had been liable and had been lawfully assessed and taxed thereunder on the assessment roll for 1917, revised in 1916, and the assessment roll for 1918, revised in 1917, in respect of income earned during the years 1915 and 1916 respectively, or, in the discretion of the Minister, in respect of income earned during the last fiscal or business year of the taxpayer terminating prior to the thirty-first day of December, 1915 and 1916, respectively; and the provisions of the Surtax Act, 1917, shall apply in respect of all assessments for the year 1917 affected by such amendments.

[Page 394]

On behalf of the Crown it is contended, and it has been held by the Court of Appeal for British Columbia, that the effect of this legislation of the years 1918 and 1920 is to bring within the operation of sec. 155 of c. 222, as re-enacted in 1918 by sec. 25 of c. 89 of the statutes of that year, the above-mentioned income earned by the appellant in the years 1915 and 1917.

The fundamental question obviously is whether the conditions, under which a mine owner's income is assessable under sec. 155 as so re-enacted, are conditions which can be affirmed to have been in existence in relation to the income so earned by the appellant in those years; and if that question be answered in the negative the assessment is obviously invalid. On behalf of the appellant, it is contended that this section, in so far as it imposes a tax upon income, has no application to a non-resident. The contention is based upon that part of the section which declares such income to be assessable " as provided in Part I " and admittedly by Part I non-residents are not assessable to income tax. As against that it is argued that section 155 deals with a special case, that the operative part of the section in question is quite unrestricted in its terms, save in this respect, that it applies only to income derived from a mine in British Columbia, and that on its true construction all income so earned, whether by residents or non-residents, falls within its purview.

The important words of sec. 155 as re-enacted in 1918 are

shall be assessed and taxed on his income from the mine, as provided in Part I, or on the output of the mine under this part, whichever tax shall be the greater in amount.

The income is to be assessed and taxed " as provided in Part I." The tax on the output is the tax under Part IV. Part I provides the machinery for assessment and imposes the liability to taxation, fixing the scale of rates, which are graduated according to the amount of taxable income. By sec. 23, every person

other than corporations and persons assessed under Part IV

of the Act, is required, when requested by the assessor, to make a return, upon a form supplied by the assessor, as to property and income; and by sec. 33, provision is made

[Page 395]

authorizing the assessor, in cases of default in furnishing the return or where he is not satisfied with the return, to make the assessment at such sum as, in the assessor's judgment, ought to be charged under the Act; and there is power given to make a supplementary assessment roll, increasing the value of the property or the income assessed where omissions are subsequently discovered. Admittedly, the reference to Part I manifests an intention that in order to ascertain the income from a mine for the purpose of applying the re-enacted section 155, this machinery shall be available, and that any income from the mine shall, for the purpose of applying the provisions of sec. 155, be treated as a part of the whole taxable income of the person assessed, within the meaning of Part I. That is to say, the assessment referred to in this section is not an assessment under Part IV within the meaning of sec. 23 of the Act.

It would appear to be very difficult indeed to harmonize with this view, which appears to me to be incontestable, the proposition that the liability of mine owners to be assessed and taxed in respect of income derived from their mining property is a special liability imposed by section 155 of Part IV. In 1918, when the section was re-enacted in its present form, the resident mine owner was liable to assessment and taxation in respect of such income under Part I. To arrive at the result suggested, it would be necessary to suppose that by the re-enactment of 1918 this liability under Part I is abrogated, and a new liability created, which, in the case of resident mine owners, is, as regards its conditions, its scope, and the pecuniary measure of it, precisely the same as the pre-existing liability.

The contention that the words, " as provided in Part I," refer only to machinery and rate, would be very much more forcible if income from mining property were not assessable and taxable already under Part I. Read literally, the words refer to assessment and taxation, " as provided in Part I," which primarily means assessment and taxation as authorized in Part I. The re-enacted section therefore, in my judgment, construed in light of the relevant parts of the Act, is at least fairly capable of a construction according to

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which no new liability is imposed in respect of income tax; and that, I think, is on the whole the preferable reading.

This conclusion is fortified by two considerations of no little weight: The enactment is a taxing statute, and if construed according to the view advanced by the Crown, imposes a new liability to taxation. In conformity with settled principles, the enactment ought not to receive such a construction unless, on the fair reading of it, its language clearly discloses an intention to ereate such a liability. Words, which are equally consistent with the absence of such an intention, are not sufficient. The other consideration arises from the fact that by sec. 26 of the Act of 1918, sec. 155, as re-enacted in that statute, has a retrospective operation. In so far as it affects non-residents, the legislation of 1918 would appear to have had the effect of lightening the burden resting upon them under the law as it in fact was in the year 1917; for by the Act passed in May of that year, the provision of the statute of 1913, by which it was declared that a tax on output was to be in lieu of all taxes in respect of income derived from the mine, was repealed, and after this statute of 1917, the mine owner continued, until the passing of the statute of 1918, to be liable in respect not only of the output tax, but in respect of income tax as well, as he was before the passing of the Act of 1913. As regards non-residents, however, the effect of the legislation of 1918, on the construction proposed by the Crown, was, for the first time, to impose a liability to income tax and to impose it in respect of income which had been received in the preceding year, 1917. It is conceivable, of course, that the legislature, in a statute having apparently for its principal object the lightening of the burden of taxation upon resident mine owners, should, at one and the same time and by the same clause, impose retrospectively a new burden by way of taxation upon non-resident mine owners; but the intention to do so will not be ascribed to the legislature unless manifested by express words or by necessary implication—nisi nominatim et de praeterito tempore cautum sit; and it is no answer to say that the law, to be construed, is plainly retrospective in a certain degree. The rule is that the maxim is applicable

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whenever we reach the line at which the words of the enactment cease to be plain.

That is a necessary and logical corollary of the general proposition, that you ought not to give a larger retrospective " operation " to a section, even in an Act which is to some extent intended to be retrospective, than you can plainly see the legislature meant. Reid v. Reid[4].

It appears to follow that where an enactment, admittedly retrospective, is expressed in language which leaves the scope of it open to doubt, and according to one construction it imposes retrospectively a new liability, while upon another at least equally admissible, it imposes no such burden, the latter construction is that which ought to be preferred.

The appeal should therefore be allowed and the assessment annulled.

MIGNAULT J.—The question here is whether the appelant, a non-resident, is liable to taxation on the income he derived from a mine in British Columbia in the years 1915 and 1917. It is common ground that under the legislation in force during these years, he was not subject to the provincial income tax levied on residents of the province, but merely to the two per cent production tax on the ore extracted from his mine, which tax he paid. But the amendments to the Taxation Act adopted in 1918 and 1920 were expressly made retrospective, and the British Columbia Court of Appeal[5] has decided that they apply to a nonresident like the appellant, who paid all taxes due for these years and is now asked to pay a tax said to be retrospectively imposed.

The effect of the Taxation Act as it stood in 1915 and 1917 was as I have stated and the non-resident did not pay income tax. In 1919, he was deprived, but not retrospectively, of this privilege to the extent of the income earned by him within the province (c. 79, sect. 3, statutes of 1919). Mines were dealt with in Part V of the Act, and up to 1918 section 155 imposed only the production tax of two per cent, this tax being in substitution for all taxes on the land and on personal property used in the working of the mine, and also, between 1913 and 1917, for all taxes on the income derived from the mine.

[Page 398]

In 1918, section 155, which is in Part V, was re-enacted by section 25, c. 89, of the statutes of that year, and it was declared that

every person owning, managing, leasing, or working a mine, other than a coal or gold mine, shall be assessed and taxed on his income from the mine as provided in Part I, or on the output of the mine under this part, whichever tax shall be the greater in amount.

This tax on the output is two per cent, and by the effect of the amendment, in case the tax on the income from the mine is greater in amount than the production tax, the quarterly payments of the latter tax are considered as part payment of the tax payable on the incomes from the mine.

This of course would have applied only in the future, had not section 26 of the 1918 statute stated that the amendments of chapter 222 of the Revised Statutes (the Taxation Act), as enacted by section 25, should relate back to and take effect from the 1st of January, 1917. Whether this is the real construction of section 26 remains to be seen.

The legislature was apparently not satisfied with this declaration of retroactivity, for in 1920, by chapter 89, section 19, section 26 of the 1918 statute was amended by striking out subsection 1 and substituting therefor the following:

26. (1) The re-enactment of said section 155 of section 25 of this Act shall relate back and take effect and shall be deemed to have always related back and taken effect in such a manner that every person to whom subsection (1) of said section 155, as so re-enacted, applies shall be liable for taxes thereunder in like manner as if he had been liable and had been lawfully assessed and taxed thereunder on the assessment roll for 1917, revised in 1916, and the assessment roll for 1918, revised in 1917, in respect of income earned during the years 1915 and 1916 respectively, or, in the discretion of the Minister, in respect of income earned during the last fiscal or business year of the taxpayer terminating prior to the thirty-first day of December, 1915 and 1916, respectively; and the provisions of the "Surtax Act, 1917," shall apply in respect of all assessments for the year 1917 affected by such amendments.

As a result, section 155 as re-enacted in 1918 must be considered with the provision I have just cited.

The crucial point however is whether the appellant is a

person to whom subsection 1 of section 155, as so re-enacted, applies.

The appellant argues that the statement in the re-enacted section that every person owning, managing, leasing, or working a mine, shall be assessed and taxed on his

[Page 399]

income from the mine "as provided in Part I," excludes a non-resident who is not subject to income tax under Part I.

The respondent, on the other hand, contends that this reference to Part I is tantamount to saying that the income tax imposed upon every person operating a mine shall be calculated and levied in the same way as the tax under Part I, in other words that the machinery for levying and calculating this tax shall be that provided by Part I.

This, however, does not appear to be the necessary meaning of the new section 155. It must be remembered that Part I of the Taxation Act imposes (section 4) a tax generally on real and personal property and on income, but before 1919 this did not apply to the income of non-residents. As defined in the Act, "income" would certainly comprise any amount derived from a mine. But before the amendments of 1918 and 1920, Part V dealt specifically (as it now deals) with taxation of mines and minerals other than coal and coke. And section 155, which, I have said, is in Part V, imposed a production tax of two per cent on the output of mines which tax was in substitution for taxes on land and personal property used in working the mine, and also, from 1913 to 1917, for income derived from the mine. When this system was changed in 1918 by the re-enactment of section 155, the owner or operator of a mine became subject to a tax on his income from the mine or to a two per cent tax on the output of the mine, whichever tax was greater in amount, and the owner or operator was assessed on his income from the mine " as provided in Part I." The tax on the income or output was in substitution for taxes on the land and for taxes on personal property used in working the mine, but no longer in substitution for taxes on income from the mine. Reading together Parts I and V, we find a tax imposed generally on income from all sources, with special provisions as to the part of the income which is derived from a mine. The import of the words "as provided in Part I," which are also found in subsection 3 of section 155, as re-enacted, appears to be that Part I governs the taxation of income generally, and Part V contains special provisions as to income derived from mines, with the obligation of the operator of the mine to pay

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either the tax on his income from the mine or the production tax, according as the one or the other is greater in amount.

This seems to me a more reasonable reading of these provisions than one which would see in the words "as provided in Part I" a mere reference to the machinery sections of Part I. It is a reference to the whole of Part I and not merely to certain of its provisions.

It would follow that Part I determines what persons shall pay tax on income, comprising income from mines, and a non-resident would of course be subject, as before, to the production tax, for he would not be assessable generally on his income from whatever source it might be derived, and the production tax would necessarily be the greater in amount.

This construction harmonizes Parts I and V, for it would be extraordinary to say the least that a non-resident, exempt generally under section 4, until its amendment in 1919, from taxes on his income, should nevertheless be assessed retroactively on the part of his income which, in the years in question, he had derived from a mine. And the amendment of section 4 in 1919, which is not retrospective, subjects him to pay income tax on income earned by him within the province, which of course would include income from mines, and this would give full play, but only for the future, to the special provisions of the new section 155.

Were there any doubt as to this construction of the Act, I confess that I would give the preference to a construction which prevents the entirely unjust result which the Crown seeks to obtain in this case.

I would therefore allow the appeal with costs throughout and annul the assessment.

MALOUIN J.—This appeal should be allowed and the assessment annulled for the reasons given by Mr Justice Duff with which I concur.

MACLEAN J.—The facts have already been stated and I need not repeat them, or enlarge upon them.

It is admitted that by virtue of section 4, Part I, of c. 222, R.S.B.C., the appellant was not liable for income tax for the years 1915 and 1917, as the statute stood in these

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years and up to 1918. Neither was he liable in these years for taxation upon any income derived by him from the mine by virtue of section 155, Part V of the same statute, although the mine itself was subject to an output tax, that is a tax based upon the assessed value of ores recovered from the mine. By sec. 25, c. 89 of the Statutes of 1918, sec. 155 above referred to was repealed and a new section substituted therefor. This substituted section provided that every person owning or working a mine should be assessed and taxed on any income, derived from the mine, as provided in Part I, or upon the output of the mine under Part V, whichever tax should be the greater in amount. The same enactment made this income tax effective as and from Jan. 1,1917. By sec. 19, c. 89 of the Statutes of 1920, the enactment of the new sec. 155 was made to relate back so as to include incomes earned in 1915 and 1917, the years relevant to this appeal.

On behalf of the respondent it is claimed that the effect of the legislation enacted in 1918 and 1920 is to bring within the scope of sec. 155 as enacted by sec. 25, c. 89, Statutes of 1918, the income received from the mine by the appellant for the years 1915 and 1917. The Court of Appeal of British Columbia[6] so held. The appellant claims that this section has no application to income derived from a mine in British Columbia by a non-resident.

Section 155 (1918) is to the effect that income derivable from a mine by any owner is assessable for income tax as provided in Part I. This means that the assessment shall in any event be made and the amount of the tax determined. If the amount of the tax or taxes so determined total more than the tax upon the output from the mine, two per cent of the assessed value of the ore recovered, then the latter shall be applied as payment upon the former. If the income tax is less than the output tax, then the former though assessed is not payable. Under Part I, this income is already taxable as to residents, and it is a little difficult to understand whether or not it was intended that this particular income was subject to further taxation in the contingency mentioned in sec. 155 (1918). However the assessment is clearly to be made under the provisions of Part I, which in explicit terms exempts non-residents from

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income tax. If the legislature intended to abrogate this specific exempting provision in so far as income from mines was concerned, we should find it expressed in certain and unambiguous language, especially in a statute imposing a tax. As re-enacted, sec. 155 does not reveal any clearly expressed intention of repealing partially sec. 4, Part I, so as to make liable non-residents from taxation upon income received from mines in British Columbia. I think it should be read therefore subject to the last-mentioned provision. I do not think this exemption in favour of non-residents, qualifying as it does the general enactment, can be disregarded in any degree, without legislation clearly disclosing the fact that the legislature so intended, and this has not been done. I think therefore that sec. 4 Part I is fully operative in favour of the appellant. Holding the view I do upon this point it is unnecessary to discuss other points raised by the appellant.

The appeal should be allowed with costs.

Appeal allowed with costs.

Solicitors for the appellant: Hamilton & Wragge.

Solicitors for the respondent: Nisbet & Graham.