AUDETTE,
J.:—This
is
an
appeal,
under
the
Income
War
Tax
Act,
1917,
and
amendments
thereto,
as
in
force
in
1922,
from
the
assessment
for
the
year
1921,
upon
that
part
of
the
appellant’s
income
only
which
comprises
his
salary
as
Registrar
of
the
Supreme
Court
of
Ontario,
and
in
respect
of
which
he
claims
exemption
from
taxation
by
the
terms
of
his
appointment.
The
appellant
was
appointed,
on
the
1st
April,
1876,
by
letters
patent
(Exhibit
No.
1),
under
the
Great
Seal
of
the
province
of
Ontario,
as
-“Registrar
of
the
Court
of
Chancery,
with
all
the
rights,
privileges
and
emoluments,
fees
and
perquisites,
which
to
the
said
office
belong,
or
of
right
appertain.’’
The
exemption
from
taxation
claimed
is
under
legislation
dating
as
far
back
as
1849,
which
it
is
contended
was
maintained
by
subsequent
legislation
up
to
and
inclusive
of
the
period
of
taxation
in
question
in
this
ease.
Proceeding
chronologically
to
the
examination
of
the
several
statutes
bearing
upon
the
present
controversy,
it
is
first
found
that
by
c.
64
of
12
Vict.
(1849)
intituled
‘‘An
Act
for
the
more
effectual
administration
of
justice
in
the
Court
of
Chancery
of
the
province
of
Upper
Canada,”
it
was
thought
expedient
to
alter
the
constitution
of
the
Court
of
Chancery
of
that
province
and
by
sec.
12
of
that
Act
it
was,
among
other
things,
provided
that
a
fixed
salary
of
£400
be
paid
to
the
Registrar
of
the
Court
instead
of
fees,
free
and
clear
from
all
taxes
and
deductions
whatsoever.
This
exemption
was
obviously
part
of
the
salary
paid
by
the
province
of
Canada
and
the
Act
is
dealing
with
the
province
of
Upper
Canada.
The
exemption
is
repeated
by
sec.
14
of
e.
12
of
the
Consolidated
Statutes
of
Upper
Canada,
1859,
with
the
exception
that
the
word
"
whatsoever
‛
is
left
out.
Then
comes
the
B.N.A.
Act,
1867,
wherein
is
to
be
found
sec.
129,
reading
as
follows:
”129.
Except
as
otherwise
provided
by
this
Act,
all
laws
in
force
in
Canada,
Nova
Scotia,
or
New
Brunswick
at
the
Union,
and
all
Courts
of
Civil
and
Criminal
Jurisdiction,
and
all
legal
Commissions,
Powers,
and
Authorities,
and
all
Officers,
Judicial,
Administrative,
and
Ministerial,
existing
therein
at
the
Union,
shall
continue,
in
Ontario,
Quebec,
Nova
Scotia,
and
New
Brunswick
respectively,
as
if
the
Union
had
not
been
made;
subject
nevertheless
(except
with
respect
to
such
as
are
enacted
by
or
exist
under
Acts
of
the
Parliament
of
Great
Britain
or
of
the
Parliament
of
the
United
Kingdom
of
Great
Britain
and
Ireland),
to
be
repealed,
abolished,
or
altered
by
the
Parliament
of
Canada,
or
by
the
legislature
of
the
respective
province,
according
to
the
authority
of
the
Parliament
or
of
that
Legislature
under
this
Act.
‘
‘
The
effect
of
this
section
will
be
hereinafter
referred
to.
Now
it
is
contended
at
bar
that
the
appellant
was
appointed
under
ec.
14
of
the
Consolidated
Statutes
for
Upper
Canada,
1859,
and
that
he
is
entitled
to
the
privileges
therein
mentioned
with
respect
to
the
salary
of
Registrar
of
the
Court
of
Chancery.
Proceeding
in
sequence
of
time
with
the
review
of
the
statutes
affecting
the
office
in
question
we
find,
in
1880,
that
by
sec.
95
of
c.
27,
an
Act
respecting
Municipal
Assessments
and
Exemptions,
an
Act
passed
by
the
province
of
Ontario,
it
is
provided
that
:
"5.
The
exemption
to
which
certain
officers
connected
with
the
Superior
Courts
were
at
the
time
of
their
appointment
and
are
now
entitled
by
statute,
in
respect
of
their
salaries,
is
hereby
abolished
as
respects
all
persons
who
may
hereafter
be
appointed
by
the
Lieutenant
Governor
to
such
offices.”
And
by
c.
7,
sec.
19,
of
the
Act
of
1887,
the
following
words
were,
by
amendment,
added
:
“And
continues
in
respect
of
such
officers
only
as
were
appointed
before
that
date.”
Appellant’s
counsel
then
contends
that
while
these
changes
do
not
affect
the
present
incumbent
in
office,
it
duly
recognizes
the
exemption.
The
obvious
answer
to
this
is
that
the
two
last
mentioned
acts
contemplate
taxation
in
Ontario
only
and
that
ex
proprio
vigore
they
cannot
bind
the
Crown
in
the
right
of
the
Dominion.
Coming
to
1881,
it
is
found
that
the
Legislature
of
Ontario
passed
an
act
to
consolidate
the
Superior
Courts,
etc.,
(o.
5)
and
that
by
sec.
3
thereof
the
Court
of
Chancery
is
united
and
consolidated
with
other
courts
to
constitute
"
"
one
Supreme
Court
of
Judicature
for
Ontario’’.
And
by
see.
58
of
that
Act
it
is
further
provided
that,
subject
to
orders
of
the
Lieutenant-
Governor
in
Council,
4
"
all
officers
.
.
.
who
at
the
time
of
the
commencement
of
the
Act
shall
be
attached
to
the
Court
of
Chancery
shall
be
attached
to
the
Chancery
Division
of
the
High
Court.’’
The
next
change
took
place
under
the
Judicature
Act
of
1913
(ec.
19)
where
it
is
provided
by
sec.
3
that
the
Supreme
Court
be
continued
as
a
Superior
Court
of
Record.
The
two
divisions
were
then
created.
And
by
sec.
76
of
that
Act
it
is,
inter
alia,
provided
that
the
official
names
of
the
officers
should
be
changed
and
duties
assigned
to
them.
These
two
last
acts
are
silent
as
to
exemptions
from
taxation.
The
appellant
held
office
under
all
of
such
changes
down
to
the
time
of
his
superannuation
in
1928,
and
he
is
not
mentioned
in
the
enumeration
of
the
persons
exempted
from
paying
income
tax
under
sec.
5
of
The
Income
War
Tax
Act,
1917,
and
amendments
thereto.
The
exemption
from
taxation
under
the
Act
of
1859
may
be
regarded
as
part
of
the
salary
which
was
then
paid
by
the
Old
Province
of
Canada.
Since
Confederation,
the
salary,
with
its
exemption
from
taxation,
and
with
its
increases,
controlled
exclusively
by
the
province,
were
payable
and
paid
from
1867
by
the
province
of
Ontario
in
pursuance
of
subsec.
4,
sec.
92
(B.N.A.
Act),
wherein
it
is
enacted
that
‘‘the
province
has
exclusive
power
over
The
Establishment
and
Tenure
of
Provincal
Offices
and
Appointment
and
Payment
of
Provincial
Officers.’’
The
Dominion
takes
care
of
its
officers
pursuant
to
subsec.
8
of
sec.
91
of
the
Act.
The
province
has
availed
itself
of
this
power
and
has
increased
the
appellant
‘s
salary
with
the
result
that
the
burden
of
taxation
is
doubly
increased.
What
is
now
claimed
is
the
exemption
from
the
payment
of
a
tax
upon
a
fixed
salary
which
is
now
different
as
to
amount
from
that
of
1859.
At
this
time,
of
course,
there
was
no
such
thing
as
income
tax
and
it
was
not
contemplated.
If
this
exemption
were
still
valid,
it
would
have
to
be
confined
to
the
amount
mentioned
in
1859
and
to
be
also
confined
to
such
taxation
as
the
Legislature
of
the
Old
Province
of
Canada
could
validly
impose.
By
sec.
129
of
The
B.N.A.
Act,
1867,
it
is
enacted
that
“except
as
otherwise
provided
by
this
Act,
all
laws
in
force
in.Canada
.
.
.
all
legal
commissions
.
.
.
and
all
officers,
Judicial
.
.
.
shall
continue
in
Ontario
.
.
.
as
if
the
Union
had
not
been
made:
subject
nevertheless
.
.
.
to
be
repealed,
abolished
or
altered
by
the
Parliament
of
Canada,
or
by
the
legislature
of
the
province,
according
to
the
authority
of
the
parliament
or
of
the
legislature
under
this
Act.
‘
‘
The
legislative
power
of
the
Old
Province
of
Canada
to
tax
or
exempt
from
taxation
cannot
prevail
as
against
the
legislative
power
of
the
Dominion
conferred
by
the
B.N.A.
Act.
Exemptions
are
matters
of
favour
and
special
privilege
and
should
be
limited
in
their
operation
to
the
field
of
legislative
authority
in
which
they
were
created.
They
disappear
in
the
event
of
a
change
in
the
constitution
of
the
political
community,
such
constitution
depriving
either
expressly
or
by
implication,
the
preexisting
legislature
of
authority
over
a
new
field
of
taxation.
The
power
and
authority
to
raise
revenue
for
Dominion
purposes
is
specially
given
the
Parliament
of
Canada,
under
the
B.N.A.
Act,
and
any
legislation
passed
by
the
Old
Province
of
Canada
denying
the
right
to
tax—or
exempting
any
subject
in
Ontario
to
pay
such
tax—could
not
obtain
and
be
valid
after
the
passing
of
the
B.N.A.
Act.
The
effect
of
sec.
129
of
the
B.N.A.
Act
has
been
only
once
construed
by
the
court
and
that
is
in
the
case
of
Dobie
v.
Temporalities
Board
(1881)
7
App.
Cas.
136,
wherein
it
was
held
that
the
powers
conferred
by
that
section
upon
the
Provincial
Legislatures
of
Ontario
and
Quebec
to
repeal
or
alter
the
statutes
of
the
Old
Parliament
of
Canada,
are
precisely
co-extensive
with
the
powers
of
"
"
direct
legislation
with
which
those
bodies
are
invested
by
the
other
clauses
of
the
Act
of
1867.’’
Indeed,
this
section
enacts
that
‘‘except
as
otherwise
provided
by
this
Act,’’
all
laws
in
force
and
all
legal
commission
are
subject
to
be
repealed,
abolished
or
altered
by
the
Parliament
of
Canada,
according
to
its
authority
under
the
B.N.A.
Act.
That
is,
in
the
present
instance,
its
authority
to
tax.
Leges
posteriores
priores
contrarias
abrogant.
The
generality
of
this
expression
“except
as
otherwise
provided
by
this
Act’’,
supports
the
right
of
the
Dominion
to
tax
residents
in
the
provinces.
When
the
Dominion
passed
the
Income
Tax
Act
of
1917,
it
entered
upon
a
proper
field
of
legislation
hitherto
lying
dormant.
This
legislation
cannot
be
controlled
or
limited
by
any
inconsistent
or
repugnant
legislation
enacted
by
a
legislature
whose
powers
were
taken
away
quoad
hoc
by
the
provisions
of
a
new
Constitution.
Under
the
Act,
by
subsec.
3
of
sec.
92
the
Dominion
has
been
given
exclusive
legislative
authority
for
‘‘the
raising
of
money
by
any
mode
or
system
of
taxation.’’
The
Dominion
has
done
so
by
the
Act
of
1917,
therefore
by
necessary
implication
and
intendment
the
enactment
for
exemption
of
that
salary
in
Ontario
has
been
repealed.
It
has
also
been
abolished
by
obsolescense.
The
Consolidated
Statutes
of
Upper
Canada,
1859,
under
which
the
exemption
is
claimed,
enacted
in
its
preamble,
ce.
1,
that
the
acts
therein
mentioned
apply
exclusively
to
Upper
Canada,
including
both
these
statutes
passed
by
the
Legislature
of
the
late
Province
of
Upper
Canada
and
those
passed
by
the
Province
of
Canada.
‘
‘
And
by
sec.
6
of
the
Interpretation
Act
(c.
2,
Consolidated
Statutes
of
Upper
Canada),
it
is
further
enacted
that:
The
words
"Upper
Canada’
shall
mean
that
part
of
this
prov-
vince
which
formerly
constituted
the
province
of
Canada.’’
It
cannot
now
be
contended
upon
this
exclusive
legislation,
affecting
only
Ontario,
that
an
exemption
from
taxation
could
arise
as
against
the
Dominion
of
Canada.
That
exemption
became
obsolete
and
void
by
mere
operation
of
law,
under
sec.
129
of
the
B.N.A.
Act.
Perhaps
this
legislation
should
receive
the
interpretation
that
the
exemption,
under
the
statute
of
1859
applying
only
to
Ontario,
should
remain
in
force
only
in
Ontario
and
be
then
controlled
by
sec.
92
of
the
B.N.A.
Act,
1867.
That
is
Ontario
alone
could
retain
or
repeal
the
Act
of
1859
with
respect
to
taxation
in
the
province
under
sec.
92
of
the
B.N.A.
Act.
Clearly
the
taxing
Act
of
1917
comes
within
the
authority
of
the
Parliament
of
Canada
under
see.
91
and
was
not
in
the
mind
of
the
legislature
when
it
enacted
the
Consolidated
Statutes
of
Upper
Canada
in
1859.
The
power
and
authority
of
a
legislature
to
exempt
from
taxation
must
be
measured
by
its
capacity
to
reconstruct
that
which
it
could
destroy.
The
Dominion
with
whom
such
power
rests,
has
enacted
this
taxation
of
1917
and
therefore
by
necessary
implication,
intendment
and
obsolescense,
has,
under
see.
129,
B.N.A.
Act,
repealed
and
abolished
the
exemption.
Western
Counties
Ry.
v.
Windsor
and
Annapolis
Ry.
(1881)
7
App.
Cas.
178
at
p.
188.
Sec.
129
continues
in
force
any
legislation
of
the
province
of
Canada
in
exactly
the
same
manner
and
effect
and
no
more
than
if
it
had
been
enacted
by
the
power
which
could
enact
it
in
1867.
That
is
to
say
the
exempting
provision
before
1867
has
no
more
effect
upon
the
Parliament
of
Canada
than
it
can
have
if
enacted
by
the
legislature
of
Ontario
after
Confederation,
which
could
not
as
said
before,
proprio
vigore,
pass
any
legislation
binding
upon
the
Dominion
of
Canada.
And
under
the
Dobie
case
(ubi
supra)
the
power
to
repeal
or
alter
is
co-extensive
with
direct
legislation.
The
province
of
Ontario
since
Confederation
has
seen
fit
by
legislation
to
modify
the
exemption
limited
by
statute
by
increasing
the
salary,
and
the
appellant
now
relies
upon
such
legislation
to
be
exempted
from
federal
taxation;
but
there
is
no
such
power
in
the
Provincial
Legislation
to
bind
the
Crown
in
the
right
of
the
Dominion.
There
is
now
no
Court
of
Chancery
in
Ontario,
therefore
the
exemption
has
become
obsolete,
the
mere
provincial
legislation
granting
exemption
from
taxation
to
some
judicial
officer
can
only
apply
to
provincial
taxation.
The
question
of
contract,
as
flowing
from
the
appointment
was
raised
at
bar;
but
the
contract,
if
any,
which
would
be
thereby
entered
into
could
only
be
between
the
appellant
and
the
province
of
Ontario
which
appointed
him.
Moreover,
in
dealing
with
the
question
of
such
exemption
from
taxation
must
it
not
be
considered
whether
the
subject
matter
involves
a
national
undertaking
or
merely
a
private
matter
and
in
the
latter
case
it
cannot
be
applied
to
rates
and
taxes
not
in
existence
at
the
date
of
the
Act
or
substituted
for
what
was
then
in
existence,
and
it
is
especially
so
when
the
intention
of
Parliament
would
by
necessary
intendment
deny
such
exemption.
As
before
pointed
out
a
later
Act
which
confers
new
right
such
as
the
B.N.A.
Act,
repeals
by
necessary
implication
and
intendment
an
earlier
Act
governing
the
same
subject
matter
if
the
co-existence
of
the
right
which
the
latter
gave
would
be
productive
of
inconvenience,
for
the
just
inference
from
such
a
result
would
be
that
the
legislature
intended
to
take
the
earlier
right
away.
Maxwell,
On
the
Interpretation
of
Statutes,
5th
ed.,
p.
294.
"‘An
intention
to
repeal
an
Act
may
be
gathered
from
its
repugnancy
to
the
general
course
of
subsequent
legislation.’’
as
in
the
present
case
and
explained
above.
Idem
295.
This
special
enactment
granting
exemption
from
taxation
as
far
back
as
1859
is
absolutely
repugnant
and
inconsistent
with
the
B.N.A.
Act,
and
this
court
has
no
alternative
but
to
declare,
for
the
reasons
above
mentioned,
that
this
special
enactment
was
repealed
by
the
B.N.A.
Act.
The
appeal
is
dismissed
with
costs.
Judgment
accordingly.
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